| Page Range | 43739-43959 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 43949 - Sunshine Act Meetings | |
| 83 FR 43955 - Rescinding the Notice of Intent for an Environmental Impact Statement; Multiple Counties, Alabama | |
| 83 FR 43955 - Rescinding the Notice of Intent for an Environmental Impact Statement; Huntsville, Madison County, Alabama | |
| 83 FR 43900 - Sunshine Act Meetings | |
| 83 FR 43825 - White Collar Exemption Regulations; Public Listening Sessions | |
| 83 FR 43882 - Notice of Interest Rate on Overdue Debts | |
| 83 FR 43956 - Final Priorities for Amendment Cycle | |
| 83 FR 43957 - Request for Applications; Victims Advisory Group | |
| 83 FR 43954 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification of Repair Stations, Part 145 of Title 14 CFR | |
| 83 FR 43954 - Public Notice for Intent To Release Airport Property | |
| 83 FR 43867 - Proposed Information Collection Request; Comment Request; EPA's WaterSense Program (Renewal); EPA ICR No. 2233.06, OMB Control No. 2040-0272 | |
| 83 FR 43825 - Air Plan Approval; Indiana; Reasonable Further Progress Plan and Other Plan Elements for the Chicago Nonattainment Area for the 2008 Ozone Standard | |
| 83 FR 43792 - Implementation of Import Restrictions; Certification of Admissibility for Certain Fish Products From Mexico | |
| 83 FR 43872 - Privacy Act of 1974; System of Records | |
| 83 FR 43957 - Advisory Committee on Women Veterans, Notice of Meeting | |
| 83 FR 43757 - Special Local Regulation; Ohio River, Owensboro, KY | |
| 83 FR 43797 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Bering Sea and Aleutian Islands Management Area | |
| 83 FR 43846 - Proposed Information Collection; Comment Request; Construction Progress Reporting Surveys | |
| 83 FR 43797 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher Vessels Greater Than or Equal to 50 Feet Length Overall Using Hook-and-Line Gear in the Central Regulatory Area of the Gulf of Alaska | |
| 83 FR 43796 - Snapper-Grouper Fishery of the South Atlantic; 2018 Recreational Accountability Measure and Closure for South Atlantic Golden Tilefish | |
| 83 FR 43897 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Helium Contracts | |
| 83 FR 43898 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Bureau of Land Management Resource Advisory Council Application | |
| 83 FR 43892 - Agency information collection Activities; Bureau of Indian Affairs Housing Improvement Program | |
| 83 FR 43877 - List of Bulk Drug Substances for Which There is a Clinical Need Under Section 503B of the Federal Food, Drug, and Cosmetic Act | |
| 83 FR 43848 - Certain Quartz Surface Products From the People's Republic of China: Postponement of Preliminary Determination in the Less-Than-Fair-Value Investigation | |
| 83 FR 43847 - Drawn Stainless Steel Sinks From the People's Republic of China: Continuation of Antidumping and Countervailing Duty Orders | |
| 83 FR 43848 - Countervailing Duty Investigation of Steel Racks From the People's Republic of China: Postponement of Preliminary Determination | |
| 83 FR 43849 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project-Season 3 | |
| 83 FR 43861 - Environmental Management Site-Specific Advisory Board, Oak Ridge | |
| 83 FR 43862 - Midwest Energy Recycling, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
| 83 FR 43865 - Sendero Carlsbad Gateway, LLC; Notice of Application | |
| 83 FR 43862 - Combined Notice of Filings | |
| 83 FR 43865 - PacifiCorp; Notice of Teleconference | |
| 83 FR 43864 - Domtar Paper Company, LLC; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests | |
| 83 FR 43866 - ECOsponsible, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
| 83 FR 43863 - Combined Notice of Filings #1 | |
| 83 FR 43864 - Swan Lake North Hydro LLC; Notice of Availability of the Draft Environmental Impact Statement for the Swan Lake North Pumped Storage Project and Intention To Hold Public Meeting | |
| 83 FR 43861 - Nebraska Public Power District v. Tri-State Generation Transmission Association, Inc. Southwest Power Pool, Inc.; Notice of Complaint | |
| 83 FR 43760 - Safety Zone; Delaware River Fireworks Display, Delaware River, Philadelphia, PA | |
| 83 FR 43952 - 30-Day Notice of Proposed Information Collection: Electronic Application for Immigrant Visa and Alien Registration | |
| 83 FR 43951 - 30-Day Notice of Proposed Information Collection: Application for Nonimmigrant Visa | |
| 83 FR 43911 - Submission of Information Collection for OMB Review; Comment Request; Survey of Multiemployer Pension Plan Withdrawal Liability Information | |
| 83 FR 43760 - Drawbridge Operation Regulation; Columbia River, Portland, OR and Vancouver, WA | |
| 83 FR 43860 - Agency Information Collection Activities; Comment Request; Health Education Assistance Loan (HEAL) Program: Forms | |
| 83 FR 43860 - Agency Information Collection Activities; Comment Request; Income Based Repayment Notifications | |
| 83 FR 43876 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 43875 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 43857 - Privacy Act of 1974; System of Records | |
| 83 FR 43843 - Submission for OMB Review; Comment Request | |
| 83 FR 43857 - Proposed Collection; Comment Request | |
| 83 FR 43842 - Submission for OMB Review; Comment Request | |
| 83 FR 43762 - Safety Zones, Hurricane Lane Port Closures for Hawaiian Islands | |
| 83 FR 43884 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-0060 | |
| 83 FR 43923 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order Disapproving a Proposed Rule Change To List and Trade the Shares of the GraniteShares Bitcoin ETF and the GraniteShares Short Bitcoin ETF | |
| 83 FR 43912 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Disapproving a Proposed Rule Change Relating to Listing and Trading of the Direxion Daily Bitcoin Bear 1X Shares, Direxion Daily Bitcoin 1.25X Bull Shares, Direxion Daily Bitcoin 1.5X Bull Shares, Direxion Daily Bitcoin 2X Bull Shares, and Direxion Daily Bitcoin 2X Bear Shares Under NYSE Arca Rule 8.200-E | |
| 83 FR 43739 - Airworthiness Directives; General Electric Company Turbofan Engines | |
| 83 FR 43742 - Airworthiness Directives; GE Aviation Czech s.r.o. Turboprop Engines | |
| 83 FR 43946 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 5.5A, Select Provisions of Options Listing Procedures Plan, 5.8, Long-Term Equity Option Series (LEAPS) and Rule 24.9, Terms of Index Option Contracts | |
| 83 FR 43932 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Certain Representations Relating to the Listing and Trading of Shares of the Innovator S&P 500 Buffer ETFs | |
| 83 FR 43934 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Disapproving a Proposed Rule Change To List and Trade the Shares of the ProShares Bitcoin ETF and the ProShares Short Bitcoin ETF | |
| 83 FR 43942 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.31 Relating to Reserve Orders and Re-Name Two Order Types | |
| 83 FR 43919 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.31E Relating to Reserve Orders and Re-Name an Order Type | |
| 83 FR 43899 - Certain Graphics Systems, Components Thereof, and Consumer Products Containing the Same; Commission Final Determination Finding a Section 337 Violation; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Denial of Motion To Amend; and Termination of the Investigation | |
| 83 FR 43739 - Appraisal Subcommittee; Appraiser Regulation | |
| 83 FR 43868 - Notice of Request for Comment on the Exposure Draft of a Proposed Federal Financial Accounting Technical Release (TR), Rescission of Technical Release 8 | |
| 83 FR 43899 - Cast Iron Soil Pipe Fittings From China | |
| 83 FR 43885 - California; Emergency and Related Determinations | |
| 83 FR 43886 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; Manufactured Housing Operations Forms | |
| 83 FR 43887 - Homeland Security Science and Technology Advisory Committee | |
| 83 FR 43888 - Privacy Act of 1974; System of Records | |
| 83 FR 43844 - Information Collection; Pesticide-Use Proposal | |
| 83 FR 43958 - Cost-Based and Inter-Agency Billing Rates for Medical Care or Services Provided by the Department of Veterans Affairs | |
| 83 FR 43893 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Natural and Cultural Resources Agencies Customer Relationship Management | |
| 83 FR 43844 - Southern Region Recreation Resource Advisory Committee | |
| 83 FR 43799 - Pears Grown in Oregon and Washington; Increased Assessment Rate for Fresh Pears | |
| 83 FR 43849 - Change of Publication Manner for Invention Licenses | |
| 83 FR 43870 - Proposed Agency Information Collection Activities; Comment Request | |
| 83 FR 43883 - National Heart, Lung, and Blood Institute Notice of Meeting | |
| 83 FR 43883 - National Center for Complementary & Integrative Health; Notice of Meeting | |
| 83 FR 43884 - National Institute of Mental Health; Notice of Closed Meeting | |
| 83 FR 43884 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed Meeting | |
| 83 FR 43883 - National Cancer Institute; Notice of Meeting | |
| 83 FR 43882 - Agency Information Collection Request. 60-Day Public Comment Request | |
| 83 FR 43845 - Notice of Public Meeting of the Connecticut Advisory Committee | |
| 83 FR 43868 - Proposed Agency Information Collection Activities; Comment Request | |
| 83 FR 43956 - Transit Advisory Committee for Safety; Re-Establishment of Charter | |
| 83 FR 43949 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Wisconsin | |
| 83 FR 43950 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Iowa | |
| 83 FR 43950 - Presidential Declaration Amendment of a Major Disaster for the State of California | |
| 83 FR 43897 - Exxon Valdez Oil Spill Public Advisory Committee | |
| 83 FR 43950 - Presidential Declaration of a Major Disaster for Public Assistance Only for the Confederated Tribes of the Colville Reservation | |
| 83 FR 43855 - Agency Information Collection Activities Under OMB Review | |
| 83 FR 43856 - TRICARE; Fiscal Year (FY) 2019 Continued Health Care Benefit Program (CHCBP) Quarterly Premium Update | |
| 83 FR 43765 - Approval of Air Plan Revisions; Approvals and Promulgations: California; Placer County Air Pollution Control District; Stationary Source Permits | |
| 83 FR 43772 - Hawaii: Final Authorization of State Hazardous Waste Management Program Revisions | |
| 83 FR 43773 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Omaha Lead Superfund Site | |
| 83 FR 43836 - Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revisions to Regulation for Control of Ozone Season Nitrogen Oxide Emissions | |
| 83 FR 43801 - Golden Parachute and Indemnification Payments | |
| 83 FR 43953 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Financial Responsibility for Licensed Launch Activities | |
| 83 FR 43750 - Establishment and Modification of Area Navigation Routes, Florida Metroplex Project; Southeastern United States | |
| 83 FR 43756 - Airspace Designations; Incorporation by Reference | |
| 83 FR 43953 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Advisory Circular (AC): Reporting of Laser Illumination of Aircraft | |
| 83 FR 43767 - Aspartic Acid, N-(1,2-dicarboxyethyl)-, Tetrasodium Salt; Exemption From the Requirement of a Tolerance | |
| 83 FR 43773 - Rules and Policies To Promote New Entry and Ownership Diversity in the Broadcasting Services | |
| 83 FR 43747 - Airworthiness Directives; Bombardier, Inc., Airplanes | |
| 83 FR 43744 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 43901 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined; Licenses Involving No Significant Hazards Considerations |
Agricultural Marketing Service
Forest Service
Census Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
Land Management Bureau
Wage and Hour Division
Federal Aviation Administration
Federal Highway Administration
Federal Transit Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council (ASC).
Final rule amendments.
The ASC is adopting nonsubstantive amendments to its regulations. The amendments correct the street address for the ASC's office, which will be moved October 1, 2018, from 1401 H Street NW, Suite 760, Washington, DC 20005, to 1325 G Street NW, Suite 500, Washington, DC 20005.
Effective October 1, 2018.
Alice M. Ritter, General Counsel, at (202) 595-7577 or
The ASC, since its creation under Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (Title XI), has adopted and amended several regulations that appear at 12 CFR part 1102. These regulations, found in subparts A, B, C, D and E of that part, relate to the ASC's implementation of The Privacy Act of 1974, the Freedom of Information Act, and various sections of Title XI.
On October 1, 2018, the ASC is moving its offices to 1325 G Street NW, Suite 500. Part 1102, as adopted, contains references to the ASC's previous addresses at 2000 K Street and 2100 Pennsylvania Avenue, as well as the present address at 1401 H Street NW. The ASC is amending part 1102 by removing references to the K Street address, the Pennsylvania Avenue address and the H Street address, and replacing it with its new G Street address.
The ASC, under 12 U.S.C. 553, is required, among other things, to publish in the
Administrative practice and procedure, Appraisers, Banks, Banking, Freedom of information, Mortgages, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, title 12, chapter XI of the Code of Federal Regulations is amended as follows:
12 U.S.C. 3348(a), 3332, 3335, 3338 (a)(4)(B), 3348(c), 5 U.S.C. 552a, 553(e); Executive Order 12600, 52 FR 23781 (3 CFR, 1987 Comp., p. 235).
By the Appraisal Subcommittee.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain General Electric Company (GE) CF6-80A, CF6-80A1, CF6-80A2, CF6-80A3, CF6-80C2A1, CF6-80C2A2, CF6-80C2A3, CF6-80C2A5, CF6-80C2A5F, CF6-80C2A8, CF6-80C2B1, CF6-80C2B1F, CF6-80C2B2, CF6-80C2B2F, CF6-80C2B4, CF6-80C2B4F, CF6-80C2B5F, CF6-80C2B6, CF6-80C2B6F, CF6-80C2B6FA, CF6-80C2B7F, CF6-80C2D1F, CF6-80C2L1F, and CF6-80C2K1F turbofan engines. This AD was prompted by an uncontained failure of a high-pressure turbine (HPT) stage 2 disk that resulted in a fire. This AD requires ultrasonic inspection (UI) of HPT stage 1 and 2 disks. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 2, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 2, 2018.
For service information identified in this final rule, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH, 45215; phone: 513-552-3272; email:
You may examine the AD docket on the internet at
Matthew Smith, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7735; fax: 781-238-7199; email:
We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE CF6-80A, CF6-80A1, CF6-80A2, CF6-80A3, CF6-80C2A1, CF6-80C2A2, CF6-80C2A3, CF6-80C2A5, CF6-80C2A5F, CF6-80C2A8, CF6-80C2B1, CF6-80C2B1F, CF6-80C2B2, CF6-80C2B2F, CF6-80C2B4, CF6-80C2B4F, CF6-80C2B5F, CF6-80C2B6, CF6-80C2B6F, CF6-80C2B6FA, CF6-80C2B7F, CF6-80C2D1F, CF6-80C2L1F, and CF6-80C2K1F turbofan engines with HPT disks with part numbers and serial numbers (S/Ns) listed in Table 1 and 2 of Appendix A in GE Service Bulletin (SB) CF6-80C2 SB 72-1562 R03, dated January 10, 2018 and Table 1 of Appendix A in GE SB CF6-80A SB 72-0869 R01, dated October 19, 2017. The SNPRM published in the
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the SNPRM and the FAA's response to each comment.
All Nippon Airways (ANA) and Japan Airlines (JAL) requested that we change the applicability, paragraph (c), to include S/Ns that are listed in revisions of GE CF6-80C2 SB 72-1562 and GE CF6-80A SB 72-0869 that have not yet been published. ANA and JAL reasoned that the SB revisions will include an updated list of affected S/Ns.
We disagree. While future SB revisions may include additional affected S/Ns, we do not require compliance based on service information that has not been published. The applicability of this AD is based on the most recently published service information. Any further change in applicability would require a notice and comment rulemaking for those affected S/Ns. We did not change this AD.
JAL requested that we improve the UI criteria to avoid false-positive indications resulting in rejection of disks. JAL reasoned that GE may publish a GE CF6-80C2 SB 72-1562 revision in which GE will modify the UI criteria.
We disagree. While a future SB revision may include updated UI criteria, we do not require compliance based on service information that has not yet been published. We based the UI criteria on the most recently published service information. We will review any Alternative Methods of Compliance (AMOC) requests submitted if different UI criteria, not specified in this AD, are desired. We did not change this AD.
ANA requested that we change the definition of “piece-part exposure” to the separation of the HPT stage 1 or stage 2 disk from the thermal shield within the HPT rotor module.
We disagree. The current definition is sufficient to describe the piece-part exposure. We did not change this AD.
Boeing Company, FedEx, and United Airlines expressed support for the SNPRM as written.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the SNPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the SNPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We reviewed GE CF6-80C2 SB 72-1562 R03, dated January 10, 2018. The SB describes procedures for UI of CF6-80C2 turbofan engine HPT stage 1 and 2 disks. We also reviewed GE CF6-80A SB 72-0869 R01, dated October 19, 2017. The SB describes procedures for UI of CF6-80A turbofan engine HPT stage 2 disks. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 640 HPT disks on engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 2, 2018.
None.
This AD applies to General Electric Company (GE) CF6-80A, CF6-80A1, CF6-80A2, CF6-80A3, CF6-80C2A1, CF6-80C2A2, CF6-80C2A3, CF6-80C2A5, CF6-80C2A5F, CF6-80C2A8, CF6-80C2B1, CF6-80C2B1F, CF6-80C2B2, CF6-80C2B2F, CF6-80C2B4, CF6-80C2B4F, CF6-80C2B5F, CF6-80C2B6, CF6-80C2B6F, CF6-80C2B6FA, CF6-80C2B7F, CF6-80C2D1F, CF6-80C2L1F, and CF6-80C2K1F turbofan engines with high-pressure turbine (HPT) disks with serial numbers listed in Table 1 and 2 of Appendix A in GE CF6-80C2 Service Bulletin (SB) 72-1562 R03, dated January 10, 2018; and Table 1 of Appendix A in GE CF6-80A SB 72-0869 R01, dated October 19, 2017.
Joint Aircraft System Component (JASC) Code 7250, Turbine/Turboprop Engine—Turbine Section.
This AD was prompted by an uncontained failure of an HPT stage 2 disk. We are issuing this AD to prevent failure of the HPT stage 1 disk (CF6-80C2) and the HPT stage 2 disk (CF6-80C2 and CF6-80A). The unsafe condition, if not addressed, could result in an uncontained HPT disk release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
After the effective date of this AD, perform an ultrasonic inspection (UI) for cracks in HPT stage 1 and stage 2 disks on the CF6-80C2 turbofan engine and in HPT stage 2 disks on the CF6-80A turbofan engine at each piece-part level exposure in accordance with the Accomplishment Instructions, paragraph 3.A.(2), in GE CF6-80C2 SB 72-1562 R03, dated January 10, 2018, or the Accomplishment Instructions, paragraph 3.A.(2) in GE CF6-80A SB 72-0869 R01, dated October 19, 2017, as applicable to the engine model.
The reporting requirements specified in the Accomplishment Instructions, paragraphs 3.A.(2)(c) and 3.A.(2)(f), of GE CF6-80C2 SB 72-1562 R03, dated January 10, 2018, are not required by this AD.
For the purpose of this AD, “piece-part exposure” of the HPT stage 1 or stage 2 disk is separation of that HPT disk from its mating rotor parts within the HPT rotor module (thermal shield and HPT stage 1 and stage 2 disk respectively).
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office send it to the attention of the person identified in paragraph (k) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Matthew Smith, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7735; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) General Electric Company (GE) CF6-80A Service Bulletin (SB) 72-0869 R01, dated October 19, 2017.
(ii) GE CF6-80C2 SB 72-1562 R03, dated January 10, 2018.
(3) For GE service information identified in this AD, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH, 45215; phone: 513-552-3272; email:
(4) You may view this service information at FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA, 01803. For information on the availability of this material at the FAA, call 781-238-7759.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain GE Aviation Czech H80-200 turboprop engines. This AD requires replacing the beta switch and adjusting the engine push-pull control to prevent the propeller governor control from going to a negative thrust position. This AD was prompted by an accident involving an Aircraft Industries (AI) L 410 UVP-E20 airplane caused by one propeller going to a negative thrust position during the landing approach. We are issuing this AD to address the unsafe condition on these products.
This AD is effective September 12, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 12, 2018.
We must receive comments on this AD by October 12, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact GE Aviation Czech s.r.o., Beranových 65, 199 02 Praha 9—Letňany, Czech Republic; phone: +420 222 538 111; fax: +420 222 538 222. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at
You may examine the AD docket on the internet at
Wego Wang, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email:
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2018-0075, dated April 5, 2018 (referred to after this as “the MCAI”), to address an unsafe condition for the specified products. The MCAI states:
A fatal accident of an L 410 UVP-E20 aeroplane has been reported. Preliminary investigation determined that there was an annunciation of Beta mode on right hand engine, that the propeller went inadvertently behind the fine pitch position and reached a negative thrust position, and that the pitch lock system did not intervene.
This event occurred on approach at a speed and altitude which did not allow the crew to recover this control system malfunction.
This condition, if not corrected, could lead to reduced control or loss of control of the aeroplane.
To address this unsafe condition, GE Aviation Czech issued the SB, providing modification instructions.
For the reason described above, this [EASA] AD requires modification of the engine. Addressing the same unsafe condition at aeroplane level, EASA also issued AD 2018-0057, requiring modification of affected AI L 410 UVP-E20 and L 410 UVP-E20 CARGO aeroplanes, if equipped with GE Aviation H80-200 engines and Avia Propeller AV 725 propellers.
You may obtain further information by examining the MCAI in the AD docket on the internet at
We reviewed GE Aviation Czech Service Bulletin (SB) SB-H80-76-00-00-0036, Revision No. 02, dated March 29, 2018. The SB describes procedures for inspecting and adjusting engine push-pull control, part number (P/N) M601-76.3, and replacing beta switch, P/N P-S-2, with beta switch, P/N P-S-2A. 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 product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of
This AD requires adjusting the engine push-pull control and replacing the beta switch to prevent the propeller governor control going to a negative thrust position.
No domestic operators use this product. Therefore, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 0 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 12, 2018.
None.
This AD applies to GE Aviation Czech H80-200 turboprop engines with propeller governor part number, (P/N) P-W22-1, and Avia Propeller AV-725 propellers installed. These engines are installed on Aircraft Industries (AI) L 410 UVP-E20 and L 410 UVP-E20 CARGO airplanes.
Joint Aircraft System Component (JASC) Code 7600, Engine Controls.
This AD was prompted by an accident on an AI L 410 UVP-E20 airplane caused by one propeller going to a negative thrust position during the landing approach. We are issuing
Comply with this AD within the compliance times specified, unless already done.
Within 25 flight hours, 20 flight cycles, or 30 days, whichever occurs first after the effective date of this AD, inspect and adjust the engine push-pull control, P/N M601-76.3, and replace beta switch, P/N P-S-2, with beta switch, P/N P-S-2A, in accordance with paragraphs 1.6. and 1.7. of GE Aviation Czech Service Bulletin (SB) SB-H80-76-00-00-0036, Revision No. 02, dated March 29, 2018.
After the effective date of this AD:
(1) Do not install beta switch, P/N P-S-2, on any engine.
(2) Do not install a GE Aviation Czech H80-200 turboprop engine on any airplane unless the required actions in paragraph (g) of this AD have been complied with. This engine installation prohibition does not apply to an engine removal and subsequent re-installation on the same airplane during an airplane maintenance visit.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Wego Wang, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email:
(2) Refer to European Aviation Safety Agency AD 2018-0075, dated April 5, 2018, for more information. You may examine the European Aviation Safety Agency AD in the AD docket on the internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) GE Aviation Czech Service Bulletin SB-H80-76-00-00-0036, Revision No. 02, dated March 29, 2018.
(ii) Reserved.
(3) For service information identified in this AD, contact GE Aviation Czech s.r.o., Beranových 65, 199 02 Praha 9—Letňany, Czech Republic; phone: +420 222 538 111; fax: +420 222 538 222.
(4) You may view this service information at FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. This AD was prompted by a static analysis performed by Airbus SAS that revealed some areas of the wing structure cannot sustain the damage limits previously published in certain structural repair manuals. This AD requires an inspection to determine whether repair or damage to certain wing areas is beyond the allowable limits; and repair if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 2, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publication listed in this AD as of October 2, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The NPRM published in the
We are issuing this AD to address any repair or damage on the wing structure that is outside the allowable structural limits. Such conditions could reduce the structural integrity of the wings and could result in loss of control of the airplane.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0229, dated November 15, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The MCAI states:
A static analysis performed by Airbus on A300, A310, A300-600, and A300-600ST aeroplanes, revealed that some areas of the wing structure cannot sustain the damage previously published in the A300, A310, A300-600, and A300-600ST Structural Repair Manuals (SRM).
The SRMs were therefore amended to reduce the dimensions of allowable damage and to indicate the areas of the wing structure where damage is no longer acceptable.
This condition, if not detected, could reduce the structural integrity of the wings.
Consequently, Airbus issued Service Bulletins (SB) A300-57-0256, A310-57-2102, A300-57-6114, and A300-57-9027 (hereafter referred to as “the applicable Airbus SB”), as applicable for A300, A310, A300-600, and A300-600ST aeroplanes, to inspect the areas identified in these SBs and determine if the repair(s) or damage(s) found stay within the limits indicated in the latest SRM issue (including temporary revisions).
For the reason described above, this [EASA] AD requires accomplishment of an inspection of the aeroplane records. If aeroplane records are missing or incomplete, a Detail Inspection (DET) of specific wing areas is required to ensure that no repair or damage is beyond the limits allowed in the current revision of the SRM (including temporary revisions) [and repair if necessary].
You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment. FedEx stated that it supported the NPRM.
Airbus and United Parcel Service (UPS) requested that we delay issuance of the final rule until new service information is released. Airbus stated that a configuration issue and an allowable damage limit issue has been identified for certain freighter manufacturer serial numbers, as specified in Airbus Service Bulletin A300-57-6114, Revision 00, dated August 3, 2015. Airbus also stated that it intends to update the service information.
UPS stated that certain configurations specified in Airbus Service Bulletin A300-57-6114, Revision 00, dated August 3, 2015, do not meet the intent of the proposed AD because airplanes with a freighter configuration have an additional inspection of the wing lower skin between ribs 26 and 27. UPS also stated that the allowable damage limitations are inconsistent between Airbus Service Bulletin A300-57-6114, Revision 00, dated August 3, 2015, and applicable SRM references.
We agree with the commenters' request. Since the NPRM has been issued, Airbus SAS has issued Service Bulletin A300-57-6114, Revision 01, dated June 19, 2018, and has updated the applicable SRMs referenced in the service information. Airbus Service Bulletin A300-57-6114, Revision 01, dated June 19, 2018, does not contain substantive changes. Therefore, we have revised paragraph (i)(2) of this AD to refer to Airbus Service Bulletin A300-57-6114, Revision 01, dated June 19, 2018. We have also added paragraph (j) of this AD to give credit for actions in paragraph (g) of this AD completed before the effective date of this AD using Airbus Service Bulletin A300-57-6114, Revision 00, dated August 3, 2015. We redesignated subsequent paragraphs accordingly.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We reviewed the following Airbus SAS Service Information.
• Airbus Service Bulletin A300-57-0256, Revision 00, dated August 3, 2015 (Airbus Model A300 series airplanes).
• Airbus Service Bulletin A300-57-6114, Revision 01, dated June 19, 2018 (for Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes)).
• Airbus Service Bulletin A310-57-2102, Revision 00, dated August 3, 2015 (for Model A310 series airplanes).
This service information describes a review of the airplane maintenance records and a detailed inspection of the left-hand and right-hand wing areas to determine whether any repair or damage is beyond the allowable limits in the current revision of the SRM, and repair if necessary. These documents are distinct since they apply to different airplane models in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 128 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 2, 2018.
None.
This AD applies to Airbus SAS Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes; certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a static analysis performed by Airbus SAS that revealed that some areas of the wing structure cannot sustain the damage limits previously published in the Airbus A300, A310, A300-600, and A300-600ST Structural Repair Manuals. We are issuing this AD to detect and correct any repair or damage on the wing structure that is outside the allowable structural limits. Such conditions could reduce the structural integrity of the wings and could result in loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 36 months after the effective date of this AD: Do a detailed inspection of the left-hand and right-hand wing areas to determine whether any repair or damage exceeds the allowable structural limits, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraph (i) of this AD. A review of airplane maintenance records is acceptable in lieu of this inspection if it can be positively determined from that review whether any repair or damage exceeds the allowable structural limits and the airplane configuration can be conclusively determined from that review.
If, during any review or inspection, as required by paragraph (g) of this AD, any repair or damage is found that is outside the allowable structural limits specified in the applicable service information in paragraph (i) of this AD: Within 3 months after accomplishing the review or inspection required by paragraph (g) of this AD, repair using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus SAS's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.
Use the applicable service information for the actions specified in paragraph (g) of this AD.
(1) Airbus Service Bulletin A300-57-0256, Revision 00, dated August 3, 2015 (for Airbus Model A300 series airplanes).
(2) Airbus Service Bulletin A300-57-6114, Revision 01, dated June 19, 2018 (for Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes)).
(3) Airbus Service Bulletin A310-57-2102, Revision 00, dated August 3, 2015 (for Model A310 series airplanes).
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A300-57-6114, Revision 00, dated August 3, 2015.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0229, dated November 15, 2016, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(3) and (m)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A300-57-0256, Revision 00, dated August 3, 2015.
(ii) Airbus Service Bulletin A300-57-6114, Revision 01, dated June 19, 2018.
(iii) Airbus Service Bulletin A310-57-2102, Revision 00, dated August 3, 2015.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model DHC-8-400 series airplanes. This AD was prompted by reports of arcing and smoke emanating from the windshields. This AD requires a revision to the maintenance or inspection program, as applicable, to include an inspection of the windshield moisture seal for signs of cracks, erosion, wear, and other deterioration; doing that inspection and repair if necessary; and re-torqueing the screws that fasten the windshield heater terminal lugs and applying sealant to the screw heads of the windshield heaters. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 2, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 2, 2018.
For service information identified in this final rule, contact Bombardier, Inc., Q Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone: 416-375-4000; fax: 416-375-4539; email:
You may examine the AD docket on the internet at
Steve Dzierzynski, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model DHC-8-400 series airplanes. The NPRM published in the
We are issuing this AD to detect and correct loose windshield heater terminal lugs. Loose terminal lugs could create sparks that lead to burning of the lugs and, due to the excessive heat, cracking of the windshields. If not corrected, such a condition could cause a loss of cabin pressure resulting in an emergency descent.
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD
There have been numerous reports of arcing and smoke emanating from the windshields. Review of these incidents revealed that the windshield heater terminal lugs tend to loosen over time. Loose terminal lugs could create sparks that lead to burning of the lugs and, due to the excessive heat, cracking of the windshields. If not corrected, this condition could cause a loss of cabin pressure resulting in an emergency descent.
Required actions include a revision to the maintenance or inspection program, as applicable, to include an inspection of the windshield moisture seal for signs of cracks, erosion, wear, or other deterioration; doing that inspection and repair if necessary; and re-torqueing the screws that fasten the windshield heater terminal lugs and applying sealant (Humiseal) to the screw heads of the windshield heaters. You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.
Horizon Air requested that paragraph (g) of the proposed AD be revised to either refer to Bombardier Q400 Dash 8 Maintenance Requirements Manual (MRM) Part 1, Revision 13, dated March 15, 2017 (“MRM Part 1, Revision 13”), or include a statement that, “When this temporary revision has been included in general revisions of the PSM [product support manual], the general revisions may be inserted in the maintenance or inspection program, as applicable, provided the relevant information in the general revision is identical to that in Bombardier [Q400 Dash 8 Maintenance Review Board Report] TR MRB-0099 [dated December 9, 2016 (“TR MRB-0099”)].” The commenter noted that paragraph (g) of the proposed AD would require incorporation of TR MRB-0099 and that this TR has already been incorporated into MRM Part 1, Revision 13.
We agree to clarify the requirement in paragraph (g) of the AD. As noted by the commenter, the TR has already been incorporated into MRM Part 1, Revision 13. Therefore, if operators incorporate MRM Part 1, Revision 13, into the maintenance or inspection program, as applicable, they are in compliance with paragraph (g)(1) of this AD (
Horizon Air requested that Bombardier Q400 Dash 8 MRB Task 561001E201, “General Visual Inspection of the Windshield Moisture Seal,” (“MRB Task 561001E201”), Task 56-10-01-210-801, of the Bombardier Q400 Dash 8 Airplane Maintenance Manual, be included in paragraph (i) of the proposed AD as approved instructions for doing the inspection of the moisture seal on the left and right windshields.
We agree with the commenter's request. We have included information in Note 1 to paragraph (i) of this AD that guidance for doing the inspection of the moisture seal can be found in MRB Task 561001E201. We also re-designated Note 1 to paragraph (i) of the proposed AD to Note 2 to paragraph (i) of this AD.
Horizon Air requested that Note 1 to paragraph (i) of the proposed AD include PPG Sierracin Component Maintenance Manual (CMM) 56-10-12, Revision B, dated October 21, 2004. The commenter observed that Note 1 to paragraph (i) of the proposed AD provided additional guidance for repair of the moisture seal and referred to PPG Aerospace Transparencies Abbreviated CMM, Part Number NP-157901, Revision 6, dated June 16, 2015. The commenter did not provide justification for this request.
We partially agree with the commenter's request. We have moved the content of Note 1 to paragraph (i) of the proposed AD into Note 2 to paragraph (i) of this AD. Instead of Revision B, we have included Revision D, dated April 6, 2017, of PPG Sierracin CMM, 56-10-12, as an additional source of guidance for repair of the moisture seal.
Horizon Air requested that only the sections of the Accomplishment Instructions of Bombardier Service Bulletin 84-30-16, Revision A, dated September 27, 2017, that address the unsafe condition be specified in paragraph (j) of the proposed AD. The commenter stated that including the job set-up and close out sections of the Accomplishment Instructions restricts an operator's ability to perform other maintenance in conjunction with the incorporation of the actions specified in this service bulletin.
We agree with the commenter's request to clarify which section of the Accomplishment Instructions of Bombardier Service Bulletin 84-30-16, Revision A, dated September 27, 2017, that operators must use to accomplish the actions required by paragraph (j) of this AD. We have revised paragraph (j) of this AD to specify that operators must do the applicable actions in accordance with paragraph 3.B., “Procedure,” of the Accomplishment Instructions of Bombardier Service Bulletin 84-30-16, Revision A, dated September 27, 2017.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
Bombardier has issued Service Bulletin 84-30-16, Revision A, dated September 27, 2017. This service information describes procedures for re-torqueing the screws that fasten the windshield heater terminal lugs and applying sealant to the screw heads of the windshield heaters.
Bombardier has also issued Q400 Dash 8 Maintenance Review Board Report Temporary Revision (TR) MRB-0099, dated December 9, 2016. This
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 54 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
We have received no definitive data that will enable us to provide a cost estimate for the on-condition repair specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
3. Will not affect intrastate aviation in Alaska, and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 2, 2018.
None.
This AD applies to Bombardier, Inc., Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001 through 4524 inclusive.
Air Transport Association (ATA) of America Code 30, Ice and Rain Protection.
This AD was prompted by reports of arcing and smoke emanating from the windshields. We are issuing this AD to detect and correct loose windshield heater terminal lugs. Loose terminal lugs could create sparks that lead to burning of the lugs and, due to the excessive heat, cracking of the windshields. If not corrected, such a condition could cause a loss of cabin pressure resulting in an emergency descent.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 30 days after the effective date of this AD: Revise the maintenance or inspection program, as applicable, to incorporate the task specified in Bombardier Q400 Dash 8 Maintenance Review Board Report Temporary Revision (TR) MRB-0099, dated December 9, 2016.
(2) If the information in Bombardier Q400 Dash 8 Maintenance Review Board Report Temporary Revision (TR) MRB-0099, dated December 9, 2016, has been included in the general revisions of the Bombardier Q400 Dash 8 Maintenance Requirements Manual and the general revisions have been inserted into the maintenance or inspection program, as applicable, the requirement in paragraph (g)(1) of this AD is met.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Within 1,600 flight hours or 12 months after the effective date of this AD, whichever occurs first, do a general visual inspection of the moisture seal on the left and right windshields for signs of cracks, erosion, wear, and other deterioration (including discoloration, warping, or missing material). If any crack, erosion, wear, or other deterioration is found, before further flight, repair the moisture seal in accordance with a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.
Additional guidance for inspection of the moisture seal can be found in Bombardier Q400 Dash 8 Maintenance Review Board (MRB) Task 561001E201, “General Visual Inspection of the Windshield Moisture Seal,” (Task 56-10-01-210-801, of the Bombardier Q400 Dash 8 Airplane Maintenance Manual).
Additional guidance for repair of the moisture seal can be found in PPG Aerospace Transparencies Abbreviated Component Maintenance Manual, Part Number NP-157901, Revision 6, dated June 16, 2015; and PPG Sierracin Component Maintenance Manual, 56-10-12, Part Number 802600, Revision D, dated April 6, 2017.
Within 8,000 flight hours or 60 months after the effective date of this AD, whichever occurs first: Re-torque the windshield heater terminal lug screws for the left and right windshields and apply Humiseal to the screw heads of the windshield heaters, in accordance with paragraph 3.B., “Procedure,” of the Accomplishment Instructions of Bombardier Service Bulletin 84-30-16, Revision A, dated September 27, 2017.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2017-18, dated May 26, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Steve Dzierzynski, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Bombardier Q400 Dash 8 Maintenance Review Board Report Temporary Revision (TR) MRB-0099, dated December 9, 2016.
(ii) Bombardier Service Bulletin 84-30-16, Revision A, dated September 27, 2017.
(3) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone: 416-375-4000; fax: 416-375-4539; email:
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes 16 high altitude area navigation (RNAV) routes (Q-routes), and modifies 7 existing Q-routes, in support of the Florida Metroplex Project. The routes were developed to improve the efficiency of the National Airspace System (NAS) and reduce dependency on ground-based navigational systems that cause system inefficiencies due to their limitations. This action also makes minor corrections to the waypoint names and geographic coordinates of certain Q-routes.
Effective date 0901 UTC, November 8, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA, Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
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 supports the air traffic service route structure in the southeastern United States to maintain the efficient flow of air traffic.
The FAA published a notice of proposed rulemaking in the
Area navigation routes are published in paragraph 2006, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The area navigation routes listed in this document will be subsequently published in the Order.
The commenter did not present an objection to the proposal, but posed questions regarding the benefits of the stated reduction in air traffic control sector complexity; reduced pilot-to-air traffic controller communications; and details of the expected increases in NAS capacity that were noted in the NPRM.
The implementation of these routes will reduce sector complexity and air traffic controller workload by reducing the need for offset radar vectors when climbing and descending air traffic. The routes will deconflict dedicated route options when transitioning departures and arrivals from the overhead streams. Additionally, the routes will create parallel, de-conflicted routes to achieve higher throughput, more optimal altitudes, and increased routing options, particularly in constricted airspace along the mid-Atlantic U.S. coast. These initiatives are expected to reduce air traffic controller and pilot workload as well as enhance NAS efficiency.
Regarding NAS capacity improvements, the implementation of the routes will contribute to the integration of recent Metroplex work along the East Coast into the high altitude enroute structure. Capacity will be enhanced through more efficient routings, reduced delays, and increased flexibility for users. Further, the routes will eliminate reliance on the ground-based navigation aid (NAVAID) structure and will enable the VOR Minimum Operational Network (VOR MON) Program to achieve its cost reduction objectives associated with the decommissioning of designated NAVAIDs. The FAA monitors a number of NAS performance metrics on a daily basis. Additionally, various forecasts are available, such as the FAA Aerospace Forecast, which projects future aviation activity and demand for FAA services. Based on analysis of these data, adjustments can be made where necessary.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
Minor editorial corrections are made to the descriptions of a number of Q-routes as listed below:
The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 by establishing 16 new Q-routes, and amend 7 existing Q-routes, in the southeastern United States in support of the Florida Metroplex Project. The new routes are designated Q-75, Q-77, Q-79, Q-81, Q-83, Q-85, Q-87, Q-89, Q-93, Q-97, Q-99, Q-109, Q-113, Q-135, Q-172, and Q-409. In addition, existing routes Q-65, Q-69, Q-103, Q-104, Q-110, Q-116, and Q-118 are amended. The end points of the new and amended routes are listed below. Full route descriptions are in “The Amendment” section of this rule. The full route descriptions include the corrections listed in the “Differences from the NPRM” section, above.
The new Q-routes are as follows:
The amended Q-routes are as follows:
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of establishing 16 high altitude area navigation (RNAV) routes (Q-routes), and modifying 7 existing Q-routes, in support of the Florida Metroplex Project qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F—Environmental Impacts: Policies and Procedures, paragraph 5-6.5i—Establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL), procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas, modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 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.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 relating to airspace designations to reflect the approval by the Director of the Federal Register of the incorporation by reference of FAA Order 7400.11C, Airspace Designations and Reporting Points. This action also explains the procedures the FAA will use to amend the listings of Class A, B, C, D, and E airspace areas; air traffic service routes; and reporting points incorporated by reference.
These regulations are effective September 15, 2018, through September 15, 2019. The incorporation by reference of FAA Order 7400.11C is approved by the Director of the Federal Register as of September 15, 2018, through September 15, 2019.
FAA Order 7400.11C, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Sarah A. Combs, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
FAA Order 7400.11B, Airspace Designations and Reporting Points, effective September 15, 2017, listed Class A, B, C, D and E airspace areas; air traffic service routes; and reporting points. Due to the length of these descriptions, the FAA requested approval from the Office of the Federal Register to incorporate the material by reference in the Federal Aviation Regulations section 71.1, effective September 15, 2017, through September 15, 2018. During the incorporation by reference period, the FAA processed all proposed changes of the airspace listings in FAA Order 7400.11B in full text as proposed rule documents in the
This document incorporates by reference FAA Order 7400.11C, airspace Designations and Reporting Points, dated August 8, 2017, and effective September 15, 2018, in section 71.1. FAA Order 7400.11C is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to reflect the approval by the Director of the Federal Register of the incorporation by reference of FAA Order 7400.11C, effective September 15, 2018, through September 15, 2019. During the incorporation by reference period, the FAA will continue to process all proposed changes of the airspace listings in FAA Order 7400.11C in full text as proposed rule documents in the
The FAA has determined that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. This action neither places any new restrictions or requirements on the public, nor changes the dimensions or operation requirements of the airspace listings incorporated by reference in part 71.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 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.
A listing for Class A, B, C, D, and E airspace areas; air traffic service routes; and reporting points can be found in FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 8, 2018. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The approval to incorporate by reference FAA Order 7400.11C is effective September 15, 2018, through September 15, 2019. During the incorporation by reference period, proposed changes to the listings of Class A, B, C, D, and E airspace areas; air traffic service routes; and reporting points will be published in full text as proposed rule documents in the
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a temporary special local regulation for all navigable waters of the Ohio River, extending the entire width of the river, from mile marker (MM) 754.0 to MM 760.0. This action is necessary to provide for the safety of persons, vessels, and the marine environment during the Owensboro Airshow. This rulemaking will prohibit persons and vessels from being in the regulated area unless authorized by the Captain of the Port Sector Ohio Valley or a designated representative.
This rule is effective from noon through 4 p.m. on September 13, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Riley Jackson, Sector Ohio Valley, U.S. Coast Guard;
The City of Owensboro notified the Coast Guard that it would be conducting an airshow practice over the Ohio River from mile marker (MM) 754.0 to MM 760.0 from noon to 4 p.m. on September 13, 2018. In response, on June 27, 2018 the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Ohio River, Owensboro, KY (83 FR 30089). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this airshow. During the comment period that ended July 27, 2018, we received no comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the airshow on September 13, 2018 will be a safety concern for anyone on a six-mile stretch of the Ohio River. The purpose of this rule is to ensure safety of persons, vessels, and the marine environment on the navigable waters in the regulated area before, during, and after the scheduled event.
As noted above, we received no comments on our NPRM published July 27, 2018. There are no changes in the regulatory text of this rule from the text proposed in the NPRM.
This rule establishes a special local regulation from noon through 4 p.m. on September 13, 2018. The special local regulation area will cover all navigable waters of the Ohio River, extending the entire width of the river, between MM 754.0 and MM 760.0 in Owensboro, KY. The duration of the special local regulation is intended to ensure the safety of persons, vessels, and the marine environment on these navigable waters before, during, and after the Owensboro Airshow.
No vessel or person will be permitted to enter the special local regulation area 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 units under the operational control of USCG Sector Ohio Valley. They may be contacted on VHF-FM Channel 16 or by telephone at 1-800-253-7465. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”. All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP to patrol the regulated area.
Spectator vessels desiring to transit the regulated area may do so only with prior approval of the PATCOM and, when so directed by that officer, will be operated at a minimum safe navigation speed in a manner which will not endanger any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel. Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the airshow.
The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the regulated area, citation for failure to comply, or both.
The COTP or a designated representative may terminate the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative will terminate enforcement of the special local regulation at the conclusion of the airshow. The COTP or a designated representative will inform the public of the enforcement times and date for this regulated area through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Broadcasts (MSIBs) 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, duration, and time-of-day of the temporary special local regulation. This special local regulation restricts transit on a six-mile stretch of the Ohio River for four hours on one day. Moreover, the Coast Guard will issue BNMs, LNMs, and MSIBs about this special local regulation so that
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary special local regulation 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 affects 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 (DHS) 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 special local regulation that will prohibit entry on a six-mile stretch of the Ohio River for four hours on one day. It is categorically excluded from further review under paragraph L(61) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) 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
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C 1233; 33 CFR 1.05-1.
(a)
(b)
(c)
(2) All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official
(3) Spectator vessels desiring to transit the regulated area may do so only with prior approval of the PATCOM and when so directed by that officer will be operated at a minimum safe navigation speed in a manner which will not endanger any other vessels.
(4) No spectator vessel shall anchor, block, loiter, or impede the through transit of official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel.
(5) Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the airshow.
(6) The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the regulated area, citation for failure to comply, or both.
(7) The COTP or a designated representative may terminate the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(8) The COTP or a designated representative can terminate enforcement of the special local regulation at the conclusion of the airshow.
(d)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Interstate 5 (I-5) Bridge, north bound, across the Columbia River, mile 106.5, between Portland, Oregon, and Vancouver, Washington. The deviation is necessary to conduct gear alignment and bearing clearances. This deviation allows the bridge to remain in the closed-to-navigation position during the event.
This deviation is effective from 12:01 a.m. on September 10, 2018, to 11:59 p.m. on September 19, 2018.
The docket for this deviation, USCG-2018-0799 is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
Oregon Department of Transportation (bridge owner) requested a temporary deviation from the operating schedule for the I-5 Bridge, north bound, mile 106.5, across the Columbia River between Vancouver, WA, and Portland, OR, to align lift span operating rope drive gear and sheave bearing clearances. The I-5 Bridge provides three designated navigation channels with vertical clearances ranging from 39 to 72 feet above Columbia River Datum 0.0 while the lift span is in the closed-to-navigation position. The normal operating schedule for the I-5 Bridge is 33 CFR 117.869. The deviation is effective from 12:01 a.m. on September 10, 2018 until 11:59 p.m. on September 19, 2018. The I-5 Bridges (north bound) are to remain in the closed to navigation position for the duration of the deviation, and need not be raised upon signal. Waterway usage on this part of the Columbia River includes vessels ranging from large commercial ships and tug and tow vessels to recreational pleasure craft.
Vessels able to pass under the bridge in the closed-to-navigation positions may do so at any time. The bridge will not be able to open for emergencies, and there is no immediate alternate route for vessels to pass except for the fixed height spans. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters of the Delaware River in the vicinity of Penn's Landing, Philadelphia, PA, from 8:30 p.m. through 9:30 p.m. on September 1, 2018, during the Delaware River Waterfront Corp Fireworks Display. The safety zone is necessary to ensure the safety of participant vessels, spectators, and the boating public during the event. This regulation prohibits persons and non-participant vessels from entering, transiting through, anchoring in or remaining within the safety zone unless authorized by the Captain of the Port Delaware Bay or a designated representative.
This rule is effective from 8:30 p.m. through 9:30 p.m. on September 1, 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 Petty Officer Thomas Welker, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division; telephone (215) 271-4814, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest to do so. The rule must be established by September 1, 2018, to serve its purpose of ensuring the safety of spectators and the general public from hazards associated with the fireworks display. Hazards include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks display on September 1, 2018, will be a safety concern for anyone within a 500-yard radius of the fireworks barge, which will be anchored in approximate position 39°56′49.66″ N, 075°08′11.69″ W. This rule is needed to protect persons, vessels and the public near the fireworks barge during the fireworks display.
This rule establishes a temporary safety zone from 8:30 p.m. through 9:30 p.m. on September 1, 2018, for the navigable waters in the vicinity of Penn's Landing, Philadelphia, PA, during a fireworks display from a barge. The event is scheduled to take place at approximately 9 p.m. on September 1, 2018. The safety zone will extend 500 yards around the barge, which will be anchored at approximate position 39°56′49.66″ N, 075°08′11.69″ W. Persons or vessels will not be permitted to enter, transit through, anchor in or remain within the safety zone without obtaining permission from the COTP or the COTP's designated representative. If authorization to enter, transit through, anchor in or remain within the safety zone is granted by the COTP or the COTP's designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP or the COTP's designated representative. The Coast Guard will provide public notice of the safety zone by Broadcast Notice to Mariners and by on-scene actual notice.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone, which will impact a small designated area of the Delaware River for one hour during the evening when vessel traffic is normally low. Although persons and vessels may not enter, transit through, anchor in or remain within the safety zone without authorization from the COTP or a designated representative of the COTP, they may operate in the surrounding area during the enforcement period. Additionally, persons and vessels will be able to enter, transit through, anchor in or remain within the safety zone if authorized by the COTP or the COTP's designated representative. The Coast Guard will provide advance notification of the safety zone to the local maritime community by Broadcast Notice to Mariners, and by on-scene actual notice from designated representatives.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in or remaining within a limited area on the navigable water in the Delaware Bay, during a fireworks display lasting one hour. 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 (REC) supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter or remain in the zone, contact the COTP or the COTP's designated representative via VHF-FM channel 16 or 215-271-4807. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(3) No vessel may take on bunkers or conduct lightering operations within the safety zone during its enforcement.
(4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing 9 temporary safety zones encompassing Hawaii's commercial
This rule is effective without actual notice from August 28, 2018 until August 29, 2018. For the purposes of enforcement, actual notice will be used from August 22, 2018, until August 28, 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 John E. Bannon, Waterways Management Division, U.S. Coast Guard; telephone 808-541-4359, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule due to the imminent approach of Hurricane Lane and its potential impacts to the island of Hawaii. Closing the ports and ordering evacuation of vessels over 200 gross tons is in accordance with Coast Guard Sector Honolulu's Maritime Heavy Weather and Hurricane Plan. It is impracticable to publish an NPRM because of the rapid escalation of the tropical storm to hurricane status and the imminent threat posed.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Honolulu (COTP) has determined that potential hazards associated with Hurricane Lane constitute a safety concern for all commercial harbors in Hawaii. This rule is needed to protect personnel, vessels, maritime commercial facilities, and the marine environment in the navigable waters of Nawiliwili and Port Allen, Kauai; Barber's Point and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii. This temporary rulemaking implements the closure of the port and evacuation of vessels called for in the Coast Guard Sector Honolulu Heavy Weather & Hurricane Plan. Consistent with the Plan, the Captain of the Port finds sufficient indications that the approaching Hurricane Lane poses considerable safety concerns, creating the need for these safety zones.
This rule establishes nine safety zones encompassing Hawaii's 9 commercial harbors; Nawiliwili and Port Allen, Kauai; Barber's Point and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii. The Coast Guard is closing all commercial harbors to vessels over 200 gross tons, in accordance with the Coast Guard Sector Honolulu's Heavy Weather & Hurricane Plan and requires the evacuation of all vessels over 200 gross tons. Notice of actual port closure times will be given to the maritime community via marine safety information bulletins and broadcast notice to mariners. All vessels unable to comply with this safety zone and seeking to remain in port, must submit a request to remain in port detailing vessel specifics and a mooring plan for approval from the Captain of the Port. Vessels are not authorized to enter or remain in port without the specific authorization of the COTP Honolulu. The harbors will remain closed until the Coast Guard issues an “All Clear” for the harbor after the storm passes and a survey of the Harbor for potential hazards is completed by the Coast Guard.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the anticipated short duration of the storm and protection of personnel, vessels, maritime commercial facilities, and the marine environment from potential impacts of Hurricane Lane. Moreover, the Coast Guard will issue marine safety information bulletins and broadcast notice to mariners on marine channel 16 about the safety zones and the rule allows vessels to seek permission to enter the safety zones.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zones 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. This rule may affect the following small entities: The owners or operations of vessels intending to transit, anchor, or moor within nine safety zones encompassing Hawaii's 9 commercial harbors; Nawiliwili and Port Allen, Kauai; Barber's Point and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii between August 22, 2018 and August 29, 2018. Upon passing of the hurricane and verification of the safety of the waterways, all vessels will be allowed to reenter or exit the commercial ports of Hawaii as soon as reasonably expected and safe to allow.
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 zones lasting 7 days that will prohibit entry into 9 Hawaii commercial harbors; Nawiliwili and Port Allen, Kauai; Barber's Point and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii. It is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be made available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(1) All waters of Barber's Point Harbor, Oahu inland from a line drawn between 21°19′30″ N, 158°07′14″ W and 21°19′18″ N, 158°07′18″ W;
(2) All waters of Honolulu Harbor, Oahu inland from a line drawn between 21°17′56″ N, 157°52′15″ W and 21°17′45″ N, 157°52′10″ W;
(3) All waters of Kaunakakai Harbor, immediately adjacent to the Interisland Cargo Terminal out to 100 yards of the west face of the pier;
(4) All waters of Kaumalapau Harbor, Lanai inland from a line drawn between 20°47′10″ N, 156°59′32″ W and 21°47′01″ N, 156°59′31″ W;
(5) All waters of Kahului Harbor, Maui inland from a line drawn between 20°54′01″ N, 156°28′26″ W and 20°54′02″ N, 156°28′18″ W;
(6) All waters of Kawaihae Harbor, Hawaii inland from a line drawn between 20°02′14″ N, 158°50′02″ W and 20°02′19″ N, 155°49′55″ W;
(7) All waters of Hilo Harbor, Hawaii inland from a line drawn between 19°44′17″ N, 155°05′22″ W and 19°44′34″ N, 155°04′31″ W;
(8) All waters of Nawiliwili Harbor, Kauai inland from a line drawn between 21°56′58″ N, 159°21′28″ W and 21°57′11″ N, 159°21′10″ W;
(9) The Port Allen, Kauai from all waters immediately adjacent to the Department of Transportation commercial pier (located at 21°53′59″ N, 157°35′21″ W) extending out to 100 yards from the piers faces;
(b)
(1) All persons and vessels are required to comply with the general regulations governing safety zones found in 33 CFR part 165.
(2) Entry into or remaining in this zone is prohibited unless authorized by the COTP Honolulu or his designated representative.
(3) Persons or vessels desiring to transit the safety zones identified in paragraph (a) of this section may contact the COTP Honolulu through his designated representatives at the Command Center via telephone: (808) 842-2600 and (808) 842-2601; fax: (808) 842-2642; or on VHF channel 16 (156.8 Mhz) to request permission. If permission is granted, all persons and vessels must comply with the instructions of the COTP Honolulu or his designated representative.
(5) The commercial ports of the Hawaiian Islands will be closed to all inbound traffic when the COTP Honolulu issues a marine safety information bulletin twelve hours before the onset of tropical storm force winds are forecasted to impact the port. All vessels over 200 gross tons must evacuate.
(6) All vessels unable to comply with this safety zone may request a waiver from the COTP Honolulu by submitting a request with their hurricane plans for review and approval by the designated representative of COTP Honolulu.
(7) The harbors will remain closed until the Coast Guard issues an “All Clear” for the harbor after the storm passes and a survey of the Harbor for potential hazards is completed by the Coast Guard.
(c)
(f)
(g)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing action on a revision to the Placer County Air Pollution Control District (PCAPCD or District) portion of the California State Implementation Plan (SIP). This revision concerns the District's Prevention of Significant Deterioration (PSD) permitting program for new and modified sources of air pollution. We are finalizing action on a local rule under the Clean Air Act as amended in 1990 (CAA or the Act).
This rule will be effective on September 27, 2018.
The EPA has established a docket for this action under Docket No. EPA-R09-OAR-2018-0282. All documents in the docket are listed on the
Laura Yannayon, EPA Region IX, (415) 972-3534,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On June 14, 2018 (83 FR 27738), the EPA proposed to fully approve the following rule that was submitted for incorporation into the PCAPCD portion of the California SIP.
We proposed approval of this rule because we determined that the rule met the statutory requirements for SIP revisions as specified in section 110(l) of the CAA, as well as the substantive statutory and regulatory requirements for a PSD permit program as contained in CAA section 110(a)(2)(C) and 40 CFR 51.166.
The EPA's proposed action provided a 30-day public comment period. During this period, we received two comments on the proposed rule. These comments raised issues that are outside the scope of our proposed approval of Rule 518, including air pollution monitoring in China and India, climate change, and wind and solar power costs and regulations. None of those comments are germane to our evaluation of Rule 518.
The EPA is required to approve a state SIP submission if the submittal meets
No comments were submitted that change our assessment that submitted Rule 518 satisfies the applicable CAA requirements. Therefore, under CAA sections 110(k)(3) and 301(a), and for the reasons set forth in our June 14, 2018 proposed rule, we are fully approving Rule 518. This action incorporates the submitted rule into the PCAPCD portion of the California SIP and makes it federally enforceable. In addition, because we are finalizing our proposed action, we are removing the existing Rule 518 from the PCAPCD portion of the California SIP.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the PCAPCD rule listed in Table 1 of this document. The EPA has made, and will continue to make, these documents available through
Under the CAA, 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 CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, New source review, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(391) * * *
(i) * * *
(C) * * *
(
(497) * * *
(i) * * *
(B) * * *
(
(b) * * *
(6) The PSD program for the Placer County Air Pollution Control District (PCAPCD), as incorporated by reference in § 52.220(c)(497)(i)(B)(
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt (CAS Reg. No. 144538-83-0) when used as an inert ingredient in antimicrobial pesticide products for which, when ready for use, the end-use concentration does not exceed 5,000 parts per million (ppm) of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt. Lanxess Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt, when used in accordance with the terms of the exemption.
This regulation is effective August 28, 2018. Objections and requests for hearings must be received on or before October 29, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0474, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. 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:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0474 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 29, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0474, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has limited the maximum end-use concentration, when ready for use, of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt not to exceed 5,000 ppm in
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt follows.
EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by aspartic acid, N-(1,2- dicarboxyethyl)-, tetrasodium salt as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.
In a mammalian metabolism study, only 37% of the administered dose was systematically available (34.7% urine and 2.2% tissues and carcass), and most of that was from second phase absorption. Primary radioactivity recovered after 72 hours was from urine and feces, with 68.7% of the radioactive dose being excreted in the feces and 34.7% of the radioactive dose being excreted in the urine.
Aspartic acid, N-(1,2- dicarboxyethyl)-, tetrasodium salt exhibits low levels of acute toxicity. An acute study in rats showed an oral Lethal Dose (LD)
Two 28-day studies (drinking water and gavage) were conducted with Wistar rats using aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt. There were no toxicologically related adverse effects seen at dosed up to and including 1,750 kg/kg/day or 1,000 mg/kg/day, respectively.
Aspartic acid, N-(1,2- dicarboxyethyl)-, tetrasodium salt was administered to rats (drinking water and gavage) in two 90-day toxicity studies. In both studies effects were seen in the kidneys and urinary bladder. In the drinking water study, the most sensitive endpoint (
In the 90-say gavage study, again effects were seen in the kidney and urinary bladder, this time the most sensitive endpoint was based on the effects seen at 1,000 mg/kg/day: Hyperplasia of the transitional cell epithelium of the bladder, basophilic cortical tubules in the kidneys, and other urinary changes (
In a developmental toxicity study, groups of inseminated female rats were treated with aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt daily by oral gavage from day 6 to day 19 post coitum in doses of 0, 100, 300, or 1,000 mg/kg/day. Decreased food consumption and body weight gain were seen in treated females at 1,000 mg/kg/day. No developmental effects were observed in this study at doses up to and including 1,000 mg/kg/day.
Aspartic acid, N-(1,2- dicarboxyethyl)-, tetrasodium salt was administered to groups of rats in drinking water in a one generation reproductive toxicity study. Reproduction parameters were not affected at dose levels up to 16,000 ppm (~2081 mg/kg/day). The body weight development of F
Aspartic acid, N-(1,2- dicarboxyethyl)-, tetrasodium salt was administered in drinking water to Wistar rats for up to two years, groups of inseminated female rats were treated daily by oral gavage from day 6 to day 19 post coitum in doses of 0, 100, 300, or 1,000 mg/kg/day. Decreased food consumption and body weight gain were seen in treated females at 1,000 mg/kg/day. No developmental effects were observed in this study at doses up to and including 1,000 mg/kg/day.
Body weight development of males treated at 1,000 mg/kg/day was slightly decreased but statistically significant. Water consumption was increased in all treated groups; however, at 100 mg/kg/day the differences were slight. Increased urine excretion and changed feces consistency (soft) observed at clinical observation of the animals are regarded to be secondary to the increased water intake. The most consistent finding in the urinalysis was an increase of the pH of the urine at 1,000 mg/kg/day in both sexes at most all time points.
At microscopy of urinary sediment, erythrocytes were more frequently observed at 1,000 mg/kg/day mainly in males at the first three of four time points. At necropsy, kidneys weights were increased starting at 300 mg/kg/day in females and 1,000 mg/kg/day in males. Furthermore, the kidneys of females treated for two years showed discoloration and increased surface changes starting at 300 mg/kg/day. Histopathological evaluation of the kidneys revealed increased incidence of small mineralizations in the renal parenchyma in males at 1,000 mg/kg/day, mineralized concretions in the renal pelvis in both sexes starting at 300 mg/kg/day, and increased severity of chronic progressive nephropathy (CPN) in females starting at 300 mg/kg/day. These findings likely indicate a mineral imbalance/influence on calcium homeostasis, leading to an increased incidence of parenchymal and pelvic mineralizations. The NOAEL for this study was 100 mg/kg/day with a LOAEL of 300 mg/kg/day based on increased water consumption, increased severity of CPN, and macroscopic and microscopic changes in the kidney. Aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt was not carcinogenic in this study.
There is no evidence that oral exposure to aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt suppresses or otherwise harms immune function in mammalian systems. No signs of neurotoxicity were reported in acute or repeat-dose oral studies. There were also no signs of carcinogenicity in the database including the 2-year feeding study. Similarly, all tests for genotoxicity, mutagenicity, and clastogenicity were negative.
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern (LOC) to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
The point of departure for this risk assessment for all durations (except acute) and routes of exposure is from the two-year drinking water toxicity study in rats. The NOAEL is 100 mg/kg/day and the LOAEL is 300 mg/kg/day based on increased water consumption, CPN, macroscopic and microscopic changes in the kidney. Similar effects were seen in a 90-day drinking water study and the same NOAEL and LOAEL were recorded. A 100-fold uncertainty factor was used (10X interspecies extrapolation, 10X for intraspecies variability, and 1X Food Quality Protection Act Safety Factor (FQPA SF)). The FQPA SF is reduced to 1X because the reproductive and developmental toxicity database is complete and there is no evidence of increased risk to infants and children. See Section VII below for more information on the FQPA SF.
Because no acute effect was attributed to aspartic acid, N-(1,2- dicarboxyethyl)-, tetrasodium salt, an acute assessment was not conducted. When the 100X uncertainty or safety factor is applied, the cPAD is 1 mg/kg/day. The residential and aggregate LOC is for MOEs that are less than 100 and is based on 10X interspecies extrapolation, 10X for intraspecies variability and 1X FQPA factor. In the absence of dermal absorption data, dermal absorption is estimated to be 100%
1.
To assess dietary exposure, the Agency calculated the Daily Dietary Dose (DDD) and the Estimated Daily Intake (EDI) using US Food and Drug Administration (FDA) Food Contact Surface Sanitizing Solution Dietary Exposure Assessment Model. EPA's assessment used FDA's default assumptions for the amount of residual solution or quantity of solution remaining on the treated surface without rinsing with potable water (1 mg/cm
The use of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt as a bleaching stabilizer in the manufacture of paper and paperboard has been approved by the FDA as an indirect food additive in food-contact paper and paperboard at levels not to exceed 0.18 percent by weight of the dry pulp. The migration of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt from
2.
3.
The wiping scenario was utilized for this assessment. In this scenario, residential handlers (
4.
1.
2.
3.
i. The toxicity database for aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt is complete.
ii. There is no indication that aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. In order to account for all potential exposure, a conservative exposure assessment was performed assuming a 100% transfer coefficient and 100% dermal absorption. This model assumes a worst case scenario of no gloves, shorts and short sleeved shirt. Based on these conservative assumptions, EPA believes that using this model will not underestimate the exposure and risk from aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt as an inert ingredient in antimicrobial pesticide products.
1.
2.
3.
Using the exposure assumptions described above for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 200. Because EPA's level of concern for aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt is a MOE of 100 or below, this MOE is not of concern.
4.
Using the exposure assumptions described above for intermediate-term exposures, EPA has concluded the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 200. Because EPA's level of concern for aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt is a MOE of 100 or below, this MOE is not of concern.
5.
6.
An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt in or on any food commodities. EPA is establishing limitations on the amount of aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt that may be used in pesticide formulations applied to semi-permanent or permanent food-contact surfaces. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136
Although the petition did not specify a limitation on concentration of this inert ingredient in end-use antimicrobial pesticide formulations, the Agency is establishing this exemption with the limitation of 5,000 ppm in pesticide formulations. Based upon an evaluation of the data included in the petition, unlimited use resulted in risks of concern; therefore, EPA is establishing a limitation in formulation when ready for use, (
Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for aspartic acid, N-(1,2-dicarboxyethyl)-, tetrasodium salt (CAS Reg. No. 144538-83-0) when used as an inert ingredient (as a chelating agent) in antimicrobial pesticide formulations (food-contact surface sanitizing solutions) applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils at a maximum of 5,000 parts per million (ppm) in final formulation.
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, 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) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10,
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is granting final authorization of changes to Hawaii's hazardous waste program submitted to EPA in the authorization application. As a result of EPA's authorization, Hawaii's revised program will become part of the authorized state hazardous waste program, and therefore will be federally enforceable. The Agency published a proposed rule on June 25, 2018, and provided for public comment. No substantive comments were received that were relevant to our proposed action.
This final authorization is effective August 28, 2018.
Laurie Amaro,
On December 13, 2017, Hawaii submitted a final complete program revision application (with subsequent corrections) seeking authorization in accordance with 40 CFR 271.21. Having received no public comments relevant to our proposed authorization, we have determined that Hawaii's hazardous waste program revisions satisfy all requirements necessary to qualify for final authorization. For a list of rules that become effective with this final action, please see the proposed rule published in the
Codification is the process of placing a state's statutes and regulations that comprise the state's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized state rules in 40 CFR part 272. EPA is not codifying the authorization of Hawaii's revisions as part of today's action.
This final authorization revises Hawaii's authorized hazardous waste management program pursuant to RCRA section 3006 and imposes no requirements other than those currently imposed by state law. For further information on how this authorization complies with applicable executive orders and statutory provisions, please see the proposed rule published in the
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Environmental Protection Agency (EPA).
Final rule.
Environmental Protection Agency (EPA) Region 7 announces the deletion of 101 residential parcels of the Omaha Lead Superfund site (Site or OLS) located in Omaha, Nebraska, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Nebraska, through the Nebraska Department of Environmental Quality, determined that all appropriate Response Actions under CERCLA were completed at the identified parcels. However, this deletion does not preclude future actions under CERCLA.
This partial deletion pertains to 101 residential parcels. The remaining parcels will remain on the NPL and are not being considered for deletion as part of this action.
This action is effective August 28, 2018.
EPA has established a docket for this action under Docket ID no. EPA-HQ-SFUND-2003-0010. All documents in the docket are listed on the
• EPA Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219, open from 8 a.m. to 4 p.m. Monday-Friday.
• W. Dale Clark Library, located at 215 S 15th Street, Omaha, NE 68102, open 10 a.m. to 8 p.m. Monday-Thursday; 10 a.m. to 6 p.m. Friday and Saturday; and 1 p.m. to 6 p.m. Sunday.
Elizabeth Hagenmaier, Remedial Project Manager, U.S. Environmental Protection Agency, Region 7, SUPR/LMSE, 11201 Renner Boulevard, Lenexa, KS 66219, telephone (913) 551-7939, email:
The portion of the site to be deleted from the NPL are 101 residential parcels of the Omaha Lead Superfund site, Omaha, Nebraska. A Notice of Intent for Partial Deletion for this Site was published in the
The closing date for comments on the Notice of Intent for Partial Deletion was July 26, 2018. One public comment was received which was not site-related and EPA has determined it will proceed with the partial deletion.
EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion of a site from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. Deletion of portions of a site from the NPL does not affect responsible party liability, in the unlikely event that future conditions warrant further actions.
Environmental protection, air pollution Control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Federal Communications Commission.
Final action.
In this document, the Federal Communications Commission establishes the requirements that will govern the incubator program that the Commission decided to adopt to support the entry of new and diverse voices into the broadcast industry.
This action contains information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Commission will publish a document in the
Federal Communications Commission, 445 12th Street SW, Room TW-C305, Washington, DC 20554.
Radhika Karmarkar,
This is a summary of the Commission's
1. With this
2. The Commission has long contemplated the potential for an incubator program to provide new sources of capital and support to entities that may otherwise lack access to financing or operational experience. In concept, an incubator program seeks to provide an established broadcaster with an inducement in the form of an ownership rule waiver or similar benefit to invest the time, money, and resources needed to facilitate broadcast station ownership by new and diverse entrants. An incubator program contemplates that, in exchange for a defined benefit, an established company could assist a new owner by providing “management or technical assistance, loan guarantees, direct financial assistance through loans or equity investments, training, or business planning assistance.”
3. Although the concept of an incubator program has been discussed since at least the early 1990s and has received general support, the Commission had never undertaken the creation of such a program, and explicitly declined to adopt a program as part of its 2010/2014 Quadrennial Media Ownership Review. In late 2017, however, the Commission reconsidered that determination and at long last decided to adopt an incubator program to help address the lack of access to capital and technical expertise faced by potential new entrants and small businesses. While the Commission committed to initiating an incubator program, it desired further input regarding how best to structure and implement a comprehensive program in light of current market and regulatory conditions. Accordingly, the
4. The record developed in this proceeding presents a range of thoughtful suggestions and recommendations for the incubator program. We are particularly grateful to the Commission's Advisory Committee on Diversity and Digital Empowerment (ACDDE) for the group's extensive consideration of the incubator program and the elements that should define it. The ACDDE working group members devoted many hours to meetings and review of empirical data before making recommendations to the full committee on how to structure the incubator program. The resulting extensive comments provided invaluable research and proposals that the Commission has carefully considered.
5. With this
6. The incubator program we outline today will apply to full-service AM and FM radio broadcast stations, as we find that the radio industry provides the best opportunities for successful incubation relationships and the best opportunity for an appropriate reward. In the
7. Perhaps most importantly, the cost of obtaining a radio station is significantly lower than the cost of obtaining a television station. Indeed, the cost of acquiring a television station is generally many times that of a radio station. For example, in 2016 the average sales price of a radio station on the secondary market was approximately $1 million, and the average price of a television station was $53 million. Due to their lack of broadcasting experience and financial collateral, new entrants and small broadcasters often face significant difficulties in accessing the capital needed to purchase broadcast stations in the secondary market or to participate in Commission broadcast auctions for new construction permits. Indeed, the record reveals that access to capital is most often the barrier to broadcast station ownership. Furthermore, given the larger numbers of radio stations in the country (11,371 commercial, full-service AM and FM stations) versus television stations (1,377 commercial, full-service stations), we find that radio is a more accessible entry point than television. In addition, the operating costs of running a radio station are significantly lower than those for operating a television broadcast station. As a going concern, radio is less cash flow intensive, requires fewer personnel to operate, and requires programming resources that are less costly than those for television stations. For these reasons, we find that transitioning from a qualifying incubation relationship to independent ownership will be more feasible for incubated entities in the radio service than in television. Consequently, for entities with already limited capital resources and operational experience,
7. We expect that implementing an incubator program focused on the radio market will also motivate the participation of incumbent broadcasters, who are key to the success of the program, as they have the power to ensure that the new entrants and small businesses attracted to the radio industry are able to acquire, operate, and grow a broadcast station. As noted above, we anticipate that the inducement of a waiver of the Commission's Local Radio Ownership Rule will provide sufficient incentive for incumbent broadcasters to participate in the program. That is, we expect that radio station group owners will seek to incubate a new entrant or small broadcaster in order to obtain permission to exceed the applicable ownership limit in a market. In reaching this conclusion, we note that the local radio numerical limits and the AM/FM service caps have remained unchanged since they were prescribed by Congress over 20 years ago in the Telecommunications Act of 1996. Thus, the existing Local Radio Ownership Rule has restricted the ability of incumbent broadcasters to grow larger in any given market for over two decades. In addition, Joint Sales Agreements (JSAs) for greater than 15 percent of a station's time remain attributable in radio. Accordingly, given the longstanding strictures remaining on radio ownership, we believe a waiver of the Local Radio Ownership Rule will provide an effective incentive for incumbent broadcasters to incubate either new entities seeking entry into the broadcasting industry or small broadcasters.
8. By contrast, the Commission has recently revised the rules governing local television ownership, including eliminating the attribution of television JSAs; eliminating the eight voices test, which required that at least eight independently owned television stations remain in the market after combining ownership of two stations in a market; and, adopting a hybrid approach to application of the top-four prohibition, permitting case-by-case review of the restriction on ownership of two top-four ranked stations in the same market. In light of these changes and the state of the record in this proceeding as it pertains to television station incubation, we do not believe that it would be appropriate at this time to offer a waiver of the Local Television Ownership Rule as a reward for incubating a television station. However, we do not foreclose the possibility of reaching a different conclusion following the completion of our next quadrennial review depending on the record that is compiled regarding the local television marketplace in that proceeding. Additionally, were Congress to provide an alternative benefit for incubating broadcasters, we would be strongly inclined to expand the program to include television stations.
9. Based on our consideration of the record and the current broadcast marketplace, including the existing broadcast ownership rules, we conclude that an incubator program has the greatest likelihood of success in the radio industry. Although some commenters, including NAB, advocate for an incubator program for both radio and television broadcast services, for the reasons stated in this section, we determine that the better approach at this time is to focus our program on the radio market. We note, however, that the “leg up” provided to these new and small broadcasters via the incubator program, by allowing them to establish a track record of successful station ownership and providing them increased access to capital, may ultimately position them to add television stations to their radio holdings. For all the reasons provided above, we determine that our initial foray into the use of an incubator program as a mechanism to increase broadcast ownership diversity should be limited to full-service radio. As we gain more experience with the program and assess evolving market and regulatory trends in the television sector, we will be able to analyze whether it is appropriate to expand the program to television.
10. In this section, we establish the eligibility criteria governing which entities may qualify for incubation under our program. Our criteria consist of both a numeric limit on the number of stations a potential incubated entity may own prior to entering into a qualifying incubation relationship (based on our existing new entrant bidding credit), as well as a revenue cap (based on our existing eligible entity definition). Additionally, as discussed below, we adopt certain safeguards to ensure further that a potential incubated entity genuinely lacks the necessary resources that would have enabled it to enter or succeed in the broadcast industry absent the incubation relationship. Finally, we also address alternative eligibility criteria that were proposed in our record.
11. The
12. The ultimate goal of the incubator program is to encourage new entry into the broadcast industry, an industry which—as our record demonstrates—is extremely capital-intensive. The Commission has previously recognized, and the record here confirms, that new entrants and small businesses have had longstanding difficulties accessing the needed capital to participate in broadcast ownership. For example, Diane Sutter, President of ShootingStar Inc., notes that “[t]he size of a deal is extremely important to most banks. Many entrants are limited to purchasing smaller broadcast stations, given their resources; however, banks often consider it not worth the potential risk to finance smaller deals for a new owner.” For our incubator program to redress the lack of access to capital, as well as to facilitate operational, managerial, and technical support, it is critical that our eligibility criteria properly identify those entities that are most likely to benefit from program participation and, thereby, increase diversity in the broadcast sector.
13. After careful consideration of the record in this proceeding and the various standards discussed in the
14.
15. Moreover, analyses of Commission broadcast auctions data provided in the record show that the new entrant bidding credit—a modified version of which we adopt herein—has increased successful participation of small businesses owned by women and minorities in the auction of construction permits for AM, FM, and TV stations. NAB performed an analysis of the Commission's broadcast auctions data and found that winning bidders relying on the Commission's new entrant bidding credits were more likely to have indicated that they were owned by women and minorities than winning bidders who did not use the credit. NAB's analysis focused on nine FM broadcast auctions that utilized the new entrant bidding credit. Its study concluded that winning bidders relying on new entrant bidding credits were 93 percent more likely to be women, and 40 percent more likely to be minorities, than winning bidders who did not use the credit. In addition, NAB found that collectively winning bidders using new entrant bidding credits were 64 percent more likely to be minorities or women than other winning bidders.
16. We note that the ACDDE also found that the use of the “new entrant” standard in auctions revealed a statistically significant improvement in female and minority participation after its review of 20 FCC broadcast auctions, more than twice the number evaluated by NAB. The ACDDE determined that these auctions attracted a total of 2,531 applicants, of which 1,681 were determined to be qualified bidders. Of the 1,681 qualified bidders, the ACDDE found that (1) 1,457 were new entrants (
17. Commission staff also evaluated data from a number of Commission broadcast auctions conducted over the past several years, and that data reveal that the new entrant bidding credit has increased successful participation of small businesses owned by women and minorities in the auction process for AM, FM, and TV construction permits. The Commission collects data on information voluntarily filed by auction participants utilizing FCC Form 175. Staff analysis of auctions data for 20 auctions shows that of the 2,534 total applicants for those auctions, 1,457 of them, or 57.5 percent of the applicants, indicated that they qualified for the new entrant bidding credit. A total of 408 new entrant bidders were successful in their auction. The percentage of winning bidders that used a new entrant bidding credit and identified as women-owned was three times larger (12 percent) than the percentage of bidders that won without a new entrant bidding credit and were women-owned (4 percent). Similarly, the percentage of winning bidders that used a new entrant bidding credit and identified as minority-owned was almost three times larger (14 percent) than the percentage of bidders that won without the new entrant bidding credit and were minority-owned (5 percent).
18. NAB's and the ACDDE's evaluations of the Commission's broadcast auctions data, like the Commission staff's analysis, suggest that the Commission's use of the new entrant bidding credit standard has been effective in diversifying the pool of successful bidders in the broadcast auctions context. Our assessment encompassed twice as many auctions as those reviewed by NAB, and the overall results of those evaluations were similar—that the percentage of winning bidders who used a new entrant bidding credit and identified as either women-owned or minority-owned consistently exceeded the percentage of winning bidders who did not use a new entrant bidding credit and were women-owned or minority-owned. Thus, we expect that use of a similar new entrant eligibility standard will be an effective means to diversify the applicant pool for the incubator program, by targeting those small broadcasters most in need of the support provided by the incubator program, including minority and female applicants.
19.
20. After close review of the record, we find that the eligibility standard set forth above is the best means for identifying incubated entities whose lack of access to capital and operational
21. Moreover, drawn from existing Commission rules, the standard we adopt today provides a clear, objective metric that is familiar to broadcasters. Use of an objective standard has the advantage of being straightforward and transparent for potential applicants, as well as administrable for the Commission without application of significant additional processing resources. Furthermore, unlike some of the other proposals contained in the record, because the new entrant bidding credit standard is race and gender neutral, it does not raise constitutional concerns.
22. We decline to adopt an Overcoming Disadvantage Preference (ODP) standard. The ACDDE advocates for such a standard, which it describes as a “race-and-gender-neutral preference” focused on the experiences and efforts of an individual person that affords a preference to those who strived, through superior individual efforts, to attempt to overcome major impediments to success. According to the ACDDE, “success or failure in overcoming obstacles is not pertinent;” rather, what would matter is “effort, the steps the person took to persevere.” We note the concerns raised by NAB that a standard such as ODP will require the Commission to make subjective decisions on the qualifications of candidates proposed to be the incubated entity, which could be time-consuming, complex, and subject to disputes.
23. The Commission has previously assessed ODP and articulated its concern that the agency lacks the resources to conduct the individualized reviews recommended as a central component of implementing ODP. In the broadcast licensing context, the Commission indicated that the type of individualized consideration that would be required under an ODP standard could prove to be “administratively inefficient, unduly resource intensive, and inconsistent with First Amendment values.” We do not find the ACDDE's current filing to have assuaged those concerns. In the Part I Competitive Bidding Rules proceeding, the Commission stated that “it is not clear what proof should be required from those individuals or entities seeking to receive such a preference or how to apply the ODP on a neutral basis. We are also concerned that our review of such a claim would involve a costly and lengthy process.” While the ACDDE did offer suggestions for the administration of an ODP standard, the standard remains inherently subjective and, we believe, inappropriate for the broadcast licensing context. Consequently, we affirm our earlier decisions regarding the administrative infeasibility of an ODP standard. For all of the reasons stated above, we decline to implement an ODP standard for the incubator program.
24. In addition to advocating for the use of ODP as the eligibility standard, the ACDDE also proposes that “mission-based entities” and Native American Nations be automatically presumed to be eligible for incubation. Although the ACDDE's incubator proposal and the benefits that it would provide incubators—namely the award of tax certificates for stations donated to a mission-based entity or Native American Nation—are not the same as the incentives that we adopt today, we share the ACDDE's goal of including diverse participants in our incubator program. We encourage them to apply and establish clearly in their certified supplemental statements how their participation in the incubator program is consistent with the goals of the program. We recognize that, unlike small, aspiring, and struggling broadcasters, many mission-based entities and Native American Nations have broader missions that encompass much more than broadcasting and thus these entities may be less likely to learn of our incubator program absent education and outreach by the Commission. Therefore, the Commission will conduct outreach to help encourage participation in the incubator program by mission-based entities and Native American Nations that meet the program's eligibility requirements. We decline, however, to adopt the proposed automatic presumption of eligibility.
25.
26. To address such concerns, we adopt certain safeguards in conjunction with our two-pronged eligibility standard. As part of the application process, which is described in greater detail below, potential incubated entities must demonstrate that they have met both the numeric and revenue limitation for the preceding three years. Thus, an entity must not only comply with the eligibility standard at the time it applies to participate in a qualifying incubation relationship, but also for the three years prior to its application. NAB proposed a one-year certification period, which would require that applicants certify that, for the year prior to applying for participation in the incubator program, they have met the applicable eligibility standards in terms of the number of stations owned. Such a certification would, in NAB's view, help to discourage any potential manipulation of the program by applicants who dispose of financial interests in additional broadcast properties prior to applying for participation in the incubator program. NAB further proposes that program applicants be required to certify compliance with any revenue eligibility standards that are adopted. We concur with NAB that a certification requirement will safeguard our eligibility concerns; however, we find that a longer 3-year period is more likely to deter any fraud or manipulation than a shorter timeframe.
27. In addition, as part of the incubator program application process, we will require a potential incubated entity to include in its application a certified statement attesting that it would be unable to acquire a station, or continue to operate successfully a station proposed for incubation that it already owns, absent the proposed incubation relationship and the funding, support, or training provided thereby. The Commission, in its discretion, may investigate the accuracy of the certification if it is made aware of information that suggests that the potential incubated entity does not, in fact, need the incubation relationship to purchase and operate a broadcast radio station. All applicants will further be required to detail any attributable interests in broadcast stations held by family members pursuant to FCC Forms 301, 314, and 315, thereby revealing any familial or spousal relations as part of
28. The incubator program is designed to assist those new or small broadcasters who do not have access to the necessary capital or technical expertise absent a qualifying incubation relationship. Thus, an individual who provides evidence of a meager bank account and attests to limited resources might subsequently be disqualified from the program, while also being subject to any penalties associated with making misrepresentations to a federal agency, if it is later determined that this individual also had access to a large personal trust fund designed to assist him or her in business ventures. Likewise, the incubating entity affiliated with this incubation relationship may find its reward waiver withheld or revoked, depending on whether it knew, or should reasonably have known, about the incubated individual's access to such a trust fund or other assets. We expect that the possibility of negative consequences for both the incubated and incubating entities for any misrepresentations regarding the incubated entity's need for the program should serve as a sufficient deterrent against such behavior.
29. In this section, we adopt requirements for qualifying incubation relationships. As discussed below, we will require that qualifying incubation relationships provide the incubated entity with the financial and operational support it lacks (including management training), that such relationships include an option for the incubated entity to purchase the incubating entity's equity interest in the incubated station and/or terminate the incubating entity's creditor-debtor relationship with the incubated entity, and that the standard time period for such relationships be three years, with the option to extend for up to another three years. We also adopt certain safeguards to ensure that the incubated entity retains control of the incubated station.
30. The
31.
32. Rather than dictate specific minimums for the financial and/or operational support that an incubating entity must provide, we conclude that the better approach is to give parties the flexibility to tailor an incubation plan to the needs of the incubated entity, the realities of the marketplace, and the needs of the community in which the incubated station operates. For example, an incubated entity that already owns and operates an AM or FM station will likely need less financial and operational support than a first-time owner of a broadcast station. Similarly, an incubated entity that has previously programmed a station and sold advertising time will likely need less operational support than a new owner with less experience. Thus, the financial and operational needs of each incubated entity will likely differ depending on how much experience it has in broadcasting and its other assets. It is possible that in some cases, an incubated entity will just need one form of support or the other—
33. These are just a few examples of how the specific financial and operational needs of an incubated entity may differ depending on the circumstances. We emphasize that qualifying incubation relationships must provide an incubated entity with the level of support needed to enable the incubated entity to own and operate a full-service AM or FM station independently at the conclusion of the qualifying incubation relationship. Depending on the needs of the incubated entity, a qualifying incubation relationship will likely provide or guarantee a substantial share of the financing needed to acquire the incubated full-service AM or FM station and operate it effectively. The incubation relationship must ensure that the incubated entity has sufficient financial resources to hire enough employees to oversee the operation of the station, acquire and produce station programming, acquire and maintain
34. For operational support, a qualifying incubation relationship will likely also provide operational assistance and intensive training in the following areas: Engineering/technical operations, office support, sales, programming, and management, including business planning, finances, and administration. These areas of operational support encompass those that commenters have proposed and that proponents have traditionally conceived of as part of a comprehensive incubator program.
35. The specific components of a qualifying incubation relationship may vary based on the amount of industry experience an incubated entity has previously obtained, the incubating entity's existing resources, and the specific needs of the station to be incubated. Parties may be able to demonstrate that an incubated entity already has significant experience in some of the areas listed above and that a qualifying incubation relationship for that entity requires fewer components. Regardless of which of these specific components are included in a particular incubation relationship, the support required by a qualifying incubation relationship must ultimately enable the incubated entity to own and operate independently either the incubated station or another full-service AM or FM station at the conclusion of the incubation relationship. We expect that an incubation relationship where both parties have established a plan for the incubated entity to own and operate independently either the incubated station or a newly acquired full-service AM or FM station at the end of the incubation relationship, with progress indicators identified as part of a contract between the parties, holds the greatest likelihood of success. As discussed below, after the second year of incubation we will not allow any brokering or sharing arrangements involving the incubated station to ensure that the incubated entity demonstrates its ability to operate the incubated station independently prior to the end of the relationship.
36.
37. By requiring an option as described in the preceding paragraph, we ensure that, before the incubating entity is eligible to receive a waiver, the incubated entity has acquired independent ownership of a full-service AM or FM station, consistent with our program goal of introducing new, independent broadcasters to the industry. Because our approach will provide multiple paths for an incubated entity to achieve the goal of independent station ownership, we conclude that our approach will not unduly direct or limit the incubated entity's activities following its participation in the program, thereby preserving options as NAB suggests.
38.
39. As the ACDDE notes, there may also be instances in which an incubated entity makes exceptional progress towards becoming an independent owner and operator of the incubated station and seeks to acquire full equity ownership and independent control of the incubated station before the incubation term ends. In such circumstances, we will consider granting requests from parties seeking to conclude their incubation relationship before the end of the term.
40. Accordingly, we will require that the incubation agreement provide that the parties must perform the incubation activities for three years, although the parties may jointly seek to conclude their incubation relationship early or request a one-time extension of an additional three years or less, depending on need, upon a showing of good cause. The three-year time period will begin on the effective date of the incubation contract. Extension requests must be submitted before the initial term expires. We direct the Media Bureau (Bureau) to find good cause to grant an extension where (1) the parties need additional time to incubate the full-service AM or FM station as discussed below, or (2) the parties need more time to identify a full-service AM or FM station for the incubated entity to acquire or additional time for the incubated entity to close on the pending
41.
42. Below, we adopt certain safeguards to ensure that the incubated entity has the requisite level of autonomy during the incubation relationship. As a threshold matter, we require the incubated entity to satisfy a control test as discussed below, consistent with our revenue-based eligible entity definition. In addition, we place limits on the use of brokering and sharing arrangements. We agree with the ACDDE that JSAs and shared service agreements (SSAs) may be used only to assist in, and must not be used to substitute for, incubation. Finally, both to promote the incubated entity's autonomy and to guard from potential conflicts of interest, we place limits on the ability of individuals to take on management or oversight positions in both the incubating entity and incubated entity.
43. First, we require the incubated entity to satisfy the following control test consistent with our existing revenue-based eligible entity definition, upon which we are basing the second prong of the eligibility standard for our incubator program as discussed above. Specifically, we require that the incubated entity hold more than 50 percent of the voting power of the licensee of the incubated station, and if the licensee is not a publicly traded company (which will almost assuredly be the case), a minimum of either 15 percent or 30 percent of the equity interests, depending on whether someone else owns or controls more than 25 percent of the equity interests. Both the ACDDE and NAB agree that the incubated entity must hold more than 50 percent of the voting power to control the incubated station. The ACDDE, however, also calls for the incubated entity to hold a minimum equity interest of 20 percent. Veteran broadcaster Skip Finley proposes that the Commission limit the investment of the incubating entity to 25 percent, which he argues would not permit control or, standing alone, create an attributable ownership interest. We conclude that applying the control test in our existing eligible entity rule will best ensure that the incubated entity retains control of the incubated station while still giving the parties some flexibility to establish incubation relationships that suit their specific needs. Also, as noted above, we find that it is important for the incubated entity to have some minimum “skin in the game” as a sign of its commitment to the success of the incubation relationship. In this regard, we find that the minimum equity holding requirements of the control test contained in the revenue-based eligible entity definition are appropriate. Using these existing requirements should facilitate both participation in and administration of the incubator program, as the requirements are already familiar to licensees. Hence, as discussed more fully below, all incubation applications must demonstrate that control will rest with the incubated entity and that the incubated entity meets the requisite minimum holding level discussed herein.
44. We remind parties that our rules prohibit unauthorized transfers of control, including de facto transfers of control. Thus, even if the incubated entity has a controlling interest in the incubated station, we will also look to whether the incubated entity maintains control over the station's core operations, including programming, personnel, and finances, when addressing questions relating to control.
45. To ensure that the incubated entity retains autonomy over the incubated station's core operating functions so as to gain the necessary level of operational expertise, and in light of concerns raised by the ACDDE and REC Networks, we place certain restrictions on the use of LMAs, JSAs, and SSAs. Our current attribution standards recognize that same-market radio LMAs and JSAs above a certain percentage of the station's broadcast day may confer on the brokering station the potential to exert a significant degree of influence over core station operating functions (
46. First, to ensure that the incubated entity retains control of the programming aired on the incubated station, we prohibit LMAs involving the incubated station. As defined in our rules, an LMA is any agreement that involves “the sale by a licensee of discrete blocks of time to a `broker' that supplies the programming to fill that time and sells the commercial spot announcements in it,” regardless of how the agreement is titled. Second, to ensure that the incubated entity is able to gain operational expertise by performing the core operations of the incubated station, we limit any JSAs or SSAs involving the incubated station to the first two years of the initial incubation period. Pursuant to the definitions in our rules, we consider a JSA to be any agreement with the licensee of a brokered station that authorizes a broker to sell advertising time for the brokered station, and we consider an SSA to be any agreement or series of agreements in which (i) a station provides any station-related services to a station that is not directly or indirectly under common de jure
47. Moreover, these safeguards will enable the parties to evaluate whether the incubated entity is prepared to operate independently before the incubation period has ended and while the incubating entity remains contractually obligated to provide support. By requiring that the incubated entity actually obtain or produce programming, sell advertising, and perform other core operating functions for the incubated station for at least one full year prior to the expiration of the incubation relationship, these protections will provide for a more informed assessment of the incubated entity's progress and any areas where it needs additional training and support to be viable as an independent owner and operator of the incubated station or another full-service AM or FM station. The incubated entity's experience performing core operating functions may provide a persuasive justification for extending the incubation relationship if the parties determine that more time is needed to incubate the station; thus, we are likely to rely on the parties' assessment that an extension of the incubation relationship is needed. While we are allowing limited use of JSAs and SSAs, we emphasize that these agreements, if used, must be accompanied by proper training in the relevant area(s)—
48. Finally, we require that none of the officers, directors, managing partners, or managing members of the incubated entity hold an attributable interest in or be an employee of the incubating entity. We are concerned that allowing an employee or an attributable interest holder of the incubating entity to serve as an officer, director, managing partner, or managing member of the incubated entity may jeopardize the independence of the incubated station given the significant conflicts of interests that could arise for these individuals and the significant authority and potential for influence they would wield over the incubated station. While U.S. antitrust laws prohibit, with certain exceptions, one individual from serving as an officer or director of two competing corporations, we believe that an additional safeguard is needed to address circumstances that may be exempt from or not covered by the antitrust laws, such as where the two companies are not competitors, where either company is not a corporation or does not meet certain financial thresholds, or where an officer or director of one company is an employee but not an officer or director of the other company. We note that NAB and MMTC previously stated that the incubating entity and the incubated entity should not share common officers or directors. As discussed above, we believe that an even stronger safeguard is necessary to ensure the independence of the incubated station.
49.
50. In this section, we discuss the benefit that an established broadcaster will be eligible to receive for successfully completing a qualifying incubation relationship, namely a waiver of the Local Radio Ownership Rule. We discuss below the terms associated with the waiver and the standard for granting such a waiver.
51. Acknowledging that proponents of a broadcast incubator program have previously suggested that incubating entities receive a waiver of our local broadcast ownership rules in exchange for participating in an incubator program, the
52.
53. There is, however, a divergence of views over what would be the best incentive. According to the broadcasters, a waiver of the local broadcast ownership rules is the appropriate incentive. The ACDDE, on the other hand, advocates for two forms of tax relief: A tax certificate entitling the incubating entity to defer capital gains taxes on the sale of its interest in the incubated station upon reinvestment in a comparable property, and a tax credit of an amount equal to the appraised fair market value of the station if the incubating entity donates the station to a mission-based entity or a Native American Nation. REC Networks proposes a regulatory fee exemption.
54. We conclude that allowing an incubating entity to seek a waiver of the Local Radio Ownership Rule, including the AM/FM subcap (reward waiver), in exchange for successfully completing a qualifying incubation relationship will provide a meaningful economic incentive to established broadcasters and thereby encourage them to incubate a new entrant. Those broadcasters who have the experience and resources needed to incubate a new or small broadcaster successfully are likely to be longtime station group owners that may be at or near the local ownership limits in one or more markets. Consequently, based on the record in this proceeding, we expect that a waiver of the Local Radio Ownership Rule will be sufficiently attractive to these prospective incubating entities to entice them to participate in the incubator program. While some commenters assert that granting waivers of local ownership rules to incubating entities could harm rather than promote ownership diversity, we find that the record demonstrates a waiver of the Local Radio Ownership Rule is the benefit within our authority that will best provide a sufficient incentive for established broadcasters to participate in our incubator program. In establishing requirements for the use of reward waivers under our incubator program for full-service AM and FM stations, we balance our goal of preserving our local radio ownership limits with the need to provide enough flexibility to foster participation in our program by incubating entities. We conclude that the requirements we adopt herein regarding the use of reward waivers will help ensure that they do not work against our local radio ownership limits and that our incubator program preserves a market structure that facilitates and encourages new entry into the local media market, as discussed below.
55. We decline to rely on regulatory fee exemptions or tax incentives to encourage participation in our incubator program. With regard to a regulatory fee exemption, we agree with the 22 ACDDE Members who filed reply comments that a six-to-twelve-month exemption of this sort would not provide a sufficient incentive for established broadcasters to incubate new entrants. In addition, we note that the Commission has previously found that it does not have the authority to waive or defer fees categorically.
56. As for tax certificates and tax credits, we agree that they can provide an incentive for established broadcasters to enter qualifying incubation relationships and that some believe tax certificates have been successful in the past in bringing new and diverse entrants to the broadcasting industry, but we are unable to use such measures to encourage participation in our incubator program absent authorization from Congress. Since the prior tax certificate program was eliminated in 1995, supporters have from time to time advocated for the return of the program. Indeed, the Commission itself has previously supported the effort to reinstate tax certificates as a means for increasing ownership diversity. To date, however, those efforts have been unavailing. Thus, rather than indefinitely delaying implementation of an incubator program pending Congressional introduction and passage of the necessary tax legislation, we find that it is in the public interest to proceed with the program we implement today, which will provide a meaningful incentive for established broadcasters to incubate new entrants that genuinely need financial and/or operational support to become independent owners. Of course, following our action today, Congress would be able to adopt legislation either authorizing or mandating the use of tax certificates and tax credits in our incubator program, either in addition to or in lieu of reward waivers, should it so choose.
57.
58. We do, however, recognize that retaining the value of a station cluster that includes a reward waiver is an important part of the benefit afforded to an incubating entity. Consequently, as long as the cluster that is initially formed using the reward waiver is transferred intact, we will permit the waiver to be transferred with the station group. Permitting transfer of the initial cluster preserves any increase in value achieved by the incubating entity for its efforts in bringing a new broadcaster into the market. We do not, however, permit the waiver to move separately from the station cluster, as we also seek to ensure that those who have not advanced diversity via participation in the program do not receive a windfall. Consequently, the waiver will continue in effect as long as the cluster remains intact. Further, a single party may not hold the benefit of more than one waiver in a market granted under our incubation program, meaning that a station cluster that exceeds the applicable ownership rule by virtue of an incubation reward waiver may not be transferred to an entity that already holds such a waiver in the market. In addition, we will permit the incubating entity to use its reward waiver to engage in an in-market station swap, which will not impact ownership diversity in the market or allow a broadcaster to obtain a reward waiver without making a
59.
60. We will consider a market to be “comparable” to the market where the incubation relationship occurred if, at the time the incubating entity seeks to use the reward waiver, the chosen market and the incubated market fall within the same market size tier under our Local Radio Ownership Rule and the number of independent owners of full-service, commercial and noncommercial radio stations in the chosen market is no fewer than the number of such owners that were in the incubation market at the time the parties submitted their incubation proposal to the Commission. Restricting an incubating entity that uses a reward waiver to purchase a station in another market to a comparable market will help ensure that the local impact of the reward waiver on the number of independent owners is similar to that of the incubated station in its market. Thus, it balances our desire to limit the impact of any potential consolidation that could result from the use of a reward waiver with our goal of expanding broadcast station ownership opportunities for small businesses and potential new entrants by allowing an incubating entity to incubate in markets other than those in which it is at or near the applicable local radio ownership caps. To the extent NAB seeks even greater flexibility and proposes that we permit an incubating entity to use a reward waiver in any market it wishes, we reject that element of NAB's proposal. For the reasons discussed above, we believe that the better approach is to require that a reward waiver be used either in the same market where the incubation relationship occurred or in a comparable market.
61. A group of commenters contend that our definition of comparable market could result in applying a reward waiver in a much larger market than that in which incubation occurred and propose limiting the definition of a “comparable market” to those markets ranked “5 Up/5 Down” from the incubation market based on Nielsen's population rankings. We conclude, however that the proposed definition would not necessarily lead to incubation and use of waivers in markets that are truly more “comparable” with respect to the number of stations and independent owners than the definition we adopt above. As an initial matter, we note that the Nielsen rankings are based on the population of the relevant market, not on the number of stations in a given market or the number of independent owners. Thus, the markets five up or five down from the incubation market might not have the same number of stations or independent owners as the incubation market—the very factors we find most relevant in assessing the diversity of the market. For example, according to Nielsen data from Fall 2017, Baltimore is ranked as market 21 and St. Louis is ranked as market 23, yet Baltimore has only 35 stations, while St. Louis has 68 stations, resulting in the markets being subject to different ownership caps under our rules. In crafting our standard, we focused primarily on preventing the potential for ownership consolidation in a market with fewer stations and independent owners than the market in which the incubation relationship added a new entrant. In addition, we note that ownership interests and circumstances vary widely among incumbent broadcasters, and it is not self-evident that an incubating entity will seek to use a reward waiver in the market with the largest population possible. Rather, we expect the decision will be driven by where the group owner faces ownership restrictions or wishes to grow a successful cluster. Finally, it is possible that the incubating entity does not own any stations in markets that are within five up or five down from the incubation market, in which case it would have no flexibility to use the reward waiver. In this regard, we agree with NAB that the “5 Up/5 Down” proposal is “unduly restrictive” and could have the effect of inhibiting participation by potential incubating broadcasters. For all of the foregoing reasons, therefore, we decline to adopt the “5 Up/5 Down” proposal.
62. While we believe that incubating entities will have no difficulty using reward waivers under our market comparability standard, we may allow an incubating entity to use a reward waiver in a market that does not meet our comparability standard if, due to changed circumstances following the parties' submission of their incubation proposal, there is no longer a comparable market in which the incubating entity is at the local radio ownership cap or AM/FM subcap and the incubating entity demonstrates why doing so is consistent with the public interest. However, we anticipate that incubating entities will consider our market comparability standard when choosing a candidate to incubate given
63. We will allow an incubating entity that receives multiple reward waivers under our program (as a result of incubating multiple new entrants) to use no more than one reward waiver per market. This, as well as our decision above to grant an incubating entity a reward waiver only after the incubating entity successfully completes a qualifying incubation relationship and only in the same market as the incubated station or a comparable market, will help ensure that reward waivers do not work against our local radio ownership limits. Indeed, our local radio ownership limits promote competition and viewpoint diversity by ensuring a sufficient number of independent radio voices and by preserving a market structure that facilitates and encourages new entry into the local media market. The safeguards that we adopt today will help ensure that our incubator program preserves such a market structure while further promoting the entry of new and diverse voices in broadcast radio.
64.
65.
66. We find that “good cause” exists to grant these temporary and reward waivers because doing so yields benefits to competition and ownership diversity in a local market that outweigh the impact on local competition in the market in which a waiver is granted. By tying grant of the reward waiver directly to station ownership by a new or previously struggling entity and restricting the use of reward waivers as discussed herein, any consolidation resulting from the use of a reward waiver will be limited and accompanied by the establishment of a new, or stronger, broadcaster in the same or a comparable market. Indeed, it is our determination herein that the public interest would not be served by strictly applying the Local Radio Ownership Rule (including the AM/FM subcaps) where an established broadcaster that engages in a qualifying incubation relationship seeks a waiver of the rule as discussed in this Order. While in the context of § 1.3 waiver requests, the Commission has considered showings of undue hardship, the equities of a particular case, or other good cause, in this particular context an applicant is required to make a narrower showing as discussed herein. If the applicant demonstrates that it has engaged in a successful qualifying incubation relationship and that grant of a waiver is consistent with the goals of our incubator program, there will be a rebuttable presumption that granting a waiver in the incubation market or a comparable market is in the public interest.
67. Before the parties commence a qualifying incubation relationship, the Bureau must determine that the relationship is designed to help a new entrant, small broadcaster, or struggling broadcaster gain the ability to own and operate a full-service AM or FM station independently and that the relationship otherwise qualifies for the program. This section lays out the process for submission and review of incubation relationship proposals and how compliance will be monitored during the incubation relationship. In addition, this section describes how the Bureau will determine whether a particular incubation relationship has been successful, such that the incubating entity is eligible to seek a reward waiver. We direct the Bureau to implement these procedures.
68. As a threshold matter, we note that all incubation proposals must be based on prospective relationships. Incubating broadcasters will derive a significant benefit by receiving the reward waiver. Consequently, all incubation proposals must demonstrate a strong likelihood of promoting the ultimate program goal of bringing greater ownership diversity to the broadcast sector. This will be done by either enabling the incubated entity to own and operate a newly acquired full-service AM or FM radio station independently, or by improving the incubated entity's ability to retain and operate independently the struggling station it currently owns. To ensure that a proposed incubation relationship comports with the program's goal of broadening ownership diversity, we require prior Bureau review of the
69.
70. For any incubation relationship that does not trigger a FCC Form filing requirement, the proposal must be filed as a Petition for Declaratory Ruling in the Incubator docket, MB Docket No. 17-289, in the Commission's Electronic Comment Filing System (ECFS). Just as in the application context, if a temporary waiver of the ownership rules is needed for the incubation relationship, then the waiver request must accompany the Petition for Declaratory Ruling. The Bureau will act on such petitions and temporary waiver requests pursuant to its standard processes. As described above, any temporary waivers needed for the incubator program, irrespective of whether the proposal comes via an application or a Petition for Declaratory Ruling, will be granted (or denied) pursuant to § 1.3 of the Commission's rules.
71. The key factors guiding review of an incubation proposal will be whether: (1) The potential incubated entity has the wherewithal to obtain the necessary financing and support, absent the proposed incubation relationship; (2) the proposal provides for an incubation relationship addressing the needs that the incubated entity has (
72.
73. The contract must detail the level of equity interest each party will bring to the relationship. The incubated entity must show that it is providing a minimum equity stake as detailed above. The contract must also detail the parties' plan to unwind the incubation relationship and the steps they will take to enable the incubated entity to own and operate a full-service AM or FM station independently, be it the station that is the subject of incubation or another station to be acquired upon conclusion of the incubation relationship. The contract must provide the incubated entity with the option to buy out the incubating entity's non-controlling interest in the incubated station. As described above, the incubated entity can choose not to pursue this option and maintain the existing relationship along with its controlling interest. Alternatively, the incubated entity may choose to sell its interest in the incubated station and use the proceeds from the sale to acquire another full-service AM or FM station. In that case, we expect the incubating entity to help the incubated entity identify a full-service AM or FM station to buy and obtain the financing necessary to purchase the station. The contract must also provide for this alternative option. We require the contract to contain both options because we recognize that the incubated entity may not be well-positioned at the outset of the relationship to determine which approach best suits its long-term business interests in the broadcast sector. The incubated entity's anticipated growth trajectory may change as a result of the incubating entity's mentorship and introduction to capital sources that may have been previously unavailable. Indeed, we hope this will be the case. Consequently, while still ensuring that the incubated entity ultimately independently owns and operates a radio station, we do not mandate a pre-determined mechanism for how this goal will be achieved. As described below, however, the parties must notify the Bureau no later than six months before the end of the contract term which option they intend to pursue.
74.
75. Likewise, the incubating entity must certify that it has the resources and experience necessary to help the incubated entity become an independent owner and operator of the incubated station or another full-service AM or FM station and that it will devote those resources and experience to achieve that goal. Dedicating executive and management personnel to provide training, strategic advice, and other support to the incubated entity may help demonstrate that an experienced broadcaster is committed and has the resources necessary to incubate a new entrant successfully. Longtime ownership of radio stations that are in the same service as the incubated station and in multiple markets is another indicator of the owner's potential for success as an incubator. Indeed, due to their resources and experience, station group owners may be in a particularly good position to help persons not only become radio licensees but also succeed in radio station ownership. In addition, the incubated and incubating entities must both certify that the incubated entity will maintain operational and management control of the station, including decisions regarding programming, personnel, and finances. These submissions will enable the Bureau to verify that the incubated entity is a bona fide entity, without links to the incubating entity absent the incubation relationship, and truly needs the resources of the incubator program.
76. The goal of this program is to bring new voices to the local radio market and to stabilize those small broadcasters that might otherwise drop out of the market. While recognizing that the waiver the incubating entity will receive at the end of the incubation relationship is the best way to encourage participation in our program by established broadcasters, we do not grant these waivers lightly. The submissions described above provide an additional opportunity to ensure that both the incubating and incubated entities are legitimate participants in the program. If the Commission determines at a later date that either submission contained a misrepresentation this could lead to a withholding or revocation of a waiver, as well as referral to the Enforcement Bureau for further action.
77. Once the incubation contract has gone into effect, on the annual anniversary of the effective date of the contract, the incubating and incubated entities must jointly file a certified statement describing the incubation activities during the preceding year and how these comport with the commitments laid out in the incubation contract. The statement must describe the progress being made towards the ultimate goal of station ownership, or greater stability regarding current ownership, by the incubated entity. This annual certified statement must be filed both in the Incubator docket via ECFS and the parties' public inspection files, so as to enable public review. These statements will be the primary mechanism by which the Commission and the public can gauge compliance with the terms of the incubation contract and progress towards the goal of independent station ownership. If, upon review of an annual statement, the Bureau has questions or concerns, staff may follow up with the parties.
78. No later than six months before the contract termination date, the parties must make a submission to the Commission stating which option for station ownership the incubated entity plans to pursue at the conclusion of the relationship—
79. At the end of the three-year contract period, the parties must again file a joint certified statement reporting on the previous year's incubation activities. This submission will, however, also state whether the incubated entity has acquired a new station or will continue to retain its controlling interest in the incubated station, either with or without pursuing its option to buy out the incubating entity's non-controlling interest. If the goal of the incubation relationship was to stabilize a previously struggling station, this third annual filing must describe the current status of the incubated station and whether it is now on a firmer footing. In the event of a shorter incubation relationship due to exceptional progress on the part of the incubated entity in becoming an independent owner and operator of a full-service AM or FM station, the same filing requirement will apply, only the filing may be made before the third year. The Bureau will have 120 days after the filing of this statement to review the submission and ensure that the expectations for the incubation relationship and all program requirements were met. The Bureau may extend the review period if needed. If the incubation relationship required a temporary waiver of the ownership cap and the incubating entity plans to use its reward waiver to retain an otherwise impermissible attributable interest in the incubated station, including buying out the incubated entity's interest in the incubated station, then the incubating entity must file a waiver request along with the final joint statement. The temporary waiver will remain in effect during the Bureau's review period. In the event that the incubation relationship is deemed unsuccessful and the incubating entity cannot receive a reward waiver, the Bureau will extend the temporary waiver for a set time period as necessary to give the parties an opportunity to unwind the relationship.
80. In the absence of any negative determination from the Bureau by the end of the 120-day review period, following submission of a final joint statement, the incubating entity will then have three years in which to submit a request to use the presumptive reward waiver. The request must be submitted with a copy of the Bureau document(s) that approved the qualifying incubation relationship, including any document(s) that approved an extension of the original term as discussed above. If the incubation relationship proposal was submitted and approved as part of a Form 301 construction permit application or a Form 314 or Form 315 assignment or transfer of control application, the waiver request must also include the file number of the approved application. As described above, there is a rebuttable presumption that granting a reward waiver is in the public interest if the incubating entity seeks the waiver for either the incubated market or a comparable market and the incubating entity is otherwise in compliance with the Commission's rules and requirements. If the incubating entity wishes to use its reward waiver to purchase the incubated station, it must file its application seeking an assignment of license or transfer of control application contemporaneously with its final annual
81. While incubation contracts are intended to last no longer than three years, parties may extend the incubation relationship for one additional period of up to three years subject to Bureau approval. For example, if the parties believe they need an additional six months beyond the initial three-year period to complete a new station purchase then they must seek an extension for six months. Parties that wish to extend their relationships must file this request no later than 120 days before the end of the initial three-year contract period. The incubating entity, however, may only seek a reward waiver, either for the incubated market or another market, after the successful completion of the incubation relationship, whatever the extended time period is—be it six months or three years. If, as part of the extension, there are any revisions to the initial incubation contract, the proposed revised contract must be filed along with the extension request. The Bureau will have 120 days to review the revised contract and request for extension. Absent Bureau action to the contrary within the 120-day period, the revised contract and request for extension time will be deemed effective, assuming they do not involve an assignment or transfer of control of a station. If there are no changes in the ownership/attribution/control structure of the agreement (
82.
83. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (
84. The
85. To qualify for participation in the incubator program, the parties must seek prior approval from the Commission that their proposed incubation relationship comports with the program requirements. The key factors guiding review of incubation proposals will be whether the potential incubated entity would have been able to obtain the necessary financing and support absent the proposed incubation relationship; whether the proposal provides the incubated entity with adequate financing, training, and support over the course of the incubation relationship to ensure its success; and whether the incubated entity retains de jure and de facto control over the station to be incubated. The standard term required for a qualifying incubation relationship will be three years, but the relationship may be extended up to an additional three years.
86. Qualifying incubation relationships must provide the incubated entity with an option to purchase the incubating entity's equity interest in the incubated station, if it holds one, for a price that is no more than fair market value and/or terminate the incubating entity's creditor-debtor relationship with the incubated entity at the conclusion of the incubation relationship. At the end of the qualifying incubation relationship, the incubated entity may decide not to exercise this option and choose instead to retain its existing controlling interest in the incubated station. Alternatively, the incubated entity may choose to sell its interest in the incubated station and use the proceeds from the sale to acquire another full-service AM or FM station. In that case, the Commission expects the incubating entity to help the incubated entity identify a full-service AM or FM station to buy and obtain the financing necessary to purchase the station. Absent a showing at the end of the qualifying incubation relationship that the incubated entity holds a controlling interest in the incubated station or a newly acquired full-service AM or FM station, the incubating entity will not be eligible to receive a waiver of the Local Radio Ownership Rule. If the goal of the incubation relationship was to stabilize a previously struggling station, then the joint certified filing must describe the status of the incubated station and whether it is now on a firmer footing. If an incumbent broadcaster successfully incubates a new, small entrant, or a small struggling station owner, as part of the incubator program, it will be eligible to receive a waiver of the Local Radio Ownership Rule following the conclusion of the qualifying incubation relationship. Such a waiver can be used for up to three
87. In addition, to the extent the incubating entity needs a waiver of the Local Radio Ownership Rule to engage in a qualifying incubation relationship (for example, if the incubating entity is already at the applicable local radio ownership limit in the market and its investment in the incubated station would exceed that limit), we will grant the incubating entity a temporary waiver of the Local Radio Ownership Rule (including the AM/FM subcap) to allow the incubating entity to acquire an otherwise impermissible noncontrolling, attributable interest in the incubated station for the duration of the qualifying incubation relationship. With regard to the temporary waiver, the incubating entity and incubated entity must demonstrate that they are both eligible for, and intend to engage in, a qualifying incubation relationship, as discussed in the
88. The
89. The Commission received no comments in response to the IRFA.
90. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
91. 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.
92. The rules proposed herein will directly affect small radio broadcast stations. Below, we provide a description of these small entities, as well as an estimate of the number of such small entities, where feasible.
93.
94. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database on June 22, 2018, about 11,365 (or about 99.9 percent) of 11,371 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,633 stations and the number of licensed commercial FM radio stations to be 6,738, for a total number of 11,371. We note the Commission has also estimated the number of licensed noncommercial (NCE) FM radio stations to be 4,128. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
95. We also note, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. We further note that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these bases; thus, our estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities, and the estimates of small businesses to which they apply may be over-inclusive to this extent.
96. In this section, we identify the reporting, recordkeeping, and other compliance requirements adopted in the
97.
98. The incubation proposal must contain a written contract between the parties memorializing all aspects of the incubation relationship, so as to demonstrate both compliance with program requirements (
99. Along with an agreement detailing the terms of the incubation relationship and the rights and obligations of each party, the incubating and incubated entities must each file a certified statement describing, among other things, each party's background, qualifications, and resources, and how these will enable the party, via the incubation relationship, to promote the goals of the incubator program—
100. In addition, the incubated and incubating entities must each certify that the incubated entity will maintain operational and management control of the station, including decisions regarding programming, personnel, and finances. These submissions will enable the Bureau to verify that the incubated entity is a bona fide entity, without links to the incubating entity absent the incubation relationship, and truly needs the resources of the incubator program.
Once the incubation contract has gone into effect, on the annual anniversary of the effective date of the contract, the incubating and incubated entities must jointly file a certified statement describing the incubation activities during the preceding year and how these comport with the commitments laid out in the incubation contract. The statement must describe the progress being made towards the ultimate goal of station ownership, or greater stability regarding current ownership, by the incubated entity. This annual certified statement must be filed both in the Incubator docket via ECFS and the parties' public inspection files, so as to enable public review. These statements will be the primary mechanism by which the Commission and the public can gauge compliance with the terms of the incubation contract and progress towards the goal of independent station ownership. If, upon review of an annual statement, the Bureau has questions or concerns, staff may follow up with the parties. No later than six months before the contract termination date, the parties must make a submission to the Commission stating which option for station ownership the incubated entity plans to pursue at the conclusion of the relationship—
101. At the end of the three-year contract period, the parties must again file a joint certified statement reporting on the previous year's incubation activities. This submission will, however, also state whether the incubated entity has acquired a new station or will continue to retain its controlling interest in the incubated station, either with or without pursuing its option to buy out the incubating entity's non-controlling interest. If the goal of the incubation relationship was to stabilize a previously struggling station, this third annual filing must describe the current status of the incubated station and whether it is now on a firmer footing. In the event of a shorter incubation relationship due to exceptional progress on the part of the incubated entity in becoming an independent owner and operator of a full-service AM or FM station, the same filing requirement will apply, only the filing may be made before the third year. If the incubation relationship required a temporary waiver of the ownership cap and the incubating entity plans to use its reward waiver to retain an otherwise impermissible attributable interest in the incubated station, including buying out the incubated entity's interest in the incubated station, then the incubating entity must file a waiver request along with the final joint statement.
102. While incubation contracts are intended to last no longer than three years, parties may extend the incubation relationship for one additional period of up to three years subject to Bureau approval. Parties that wish to extend their relationships must file this request no later than 120 days before the end of the initial three-year contract period. The incubating entity, however, may only seek a reward waiver, either for the incubated market or another market, after the successful completion of the qualifying incubation relationship, whatever the extended time period is—be it six months or three years. If, as part of the extension, there are any revisions to the initial incubation contract, the proposed revised contract must be filed along with the extension request.
103. In the absence of any negative determination from the Bureau by the end of the 120-day review period, following submission of a final joint certified statement, the incubating entity will then have three years in which to submit a request to use the presumptive reward waiver. The request must be submitted with a copy of the Bureau document(s) that approved the qualifying incubation relationship, including any document(s) that approved an extension of the original term as discussed in the
104.
105.
To ensure that the incubated entity derives the maximum benefit from the training and mentoring provided by the incubated entity, the
106. First, the
107. To ensure that the incubated entity retains autonomy over the incubated station's core operating functions so as to gain the necessary level of operational expertise, and in light of concerns raised by some commenters, the
108. First, to ensure that the incubated entity retains control of the programming aired on the incubated
109. Moreover, these safeguards will enable the parties to evaluate whether the incubated entity is prepared to operate independently before the incubation period is complete and while the incubating entity remains contractually obligated to provide support. By requiring that the incubated entity actually obtain or produce programming, sell advertising, and perform other core operating functions for the incubated station for at least one full year prior to the expiration of the incubation relationship, these protections will provide for a more informed assessment of the incubated entity's progress and any areas where it needs additional training and support to be viable as an independent owner and operator of the incubated station or another full-service AM or FM station. The incubated entity's experience performing core operating functions may provide a persuasive justification for extending the incubation relationship if the parties determine that more time is needed to incubate the station. While the
110. Finally, the
111. The RFA requires an agency to describe any significant, specifically small business, 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 account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
112. As discussed above, the Commission decided to adopt an incubator program with the goal of creating ownership opportunities for new entrants and small businesses, thereby promoting competition and diversity in the broadcast industry. In adopting the requirements that will govern the incubator program, the Commission considered various options and alternatives that were proposed in the
113.
114. Accordingly,
115.
116.
117.
118.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification.
The Secretary of Commerce, in cooperation with the Secretaries of Treasury and Homeland Security, is, under the authority of the Marine Mammal Protection Act (MMPA), giving notice of import restrictions on fish and fish products from Mexico caught with gillnets deployed in the range of the vaquita, an endangered porpoise. Importation into the United States from Mexico of fish and fish products harvested by gillnets in the upper Gulf of California (UGC) within the vaquita's geographic range is now prohibited. These import restrictions are being implemented as required by a court order. These trade restrictions remain in effect until further court action amends the preliminary injunction. Harmonized Tariff Schedule (HTS) codes associated with the prohibited fish and fish products are identified below. NMFS is also requiring that all other fish and fish products not within the scope of the import restrictions but imported under the same published HTS codes be accompanied by a Certification of Admissibility.
Compliance with the import restrictions and Certification of Admissibility described in this document is required beginning August 24, 2018, and will remain in effect until further notice is published in the
Nina Young, NMFS F/IASI at email:
In August 2016, NMFS published a final rule (81 FR 54390 (August 15, 2016); 50 CFR 216.24) implementing the fish and fish product import provisions (section 101(a)(2)) of the Marine Mammal Protection Act (MMPA). This final rule established conditions for evaluating a harvesting nation's regulatory programs to address incidental and intentional mortality and serious injury of marine mammals in its fisheries producing fish and fish products exported to the United States.
Under the final rule, fish or fish products cannot be imported into the United States from commercial fishing operations that result in the incidental mortality or serious injury of marine mammals in excess of U.S. standards (16 U.S.C. 1371(a)(2)). NMFS published a List of Foreign Fisheries (LOFF) on March 16, 2018 (83 FR 11703) to classify fisheries subject to the import requirements. Effective January 1, 2022, fish and fish products from fisheries identified by the Assistant Administrator for Fisheries in the LOFF can only be imported into the United States if the harvesting nation has applied for and received a comparability finding from NMFS. The rule established the procedures that a harvesting nation must follow and the conditions it must meet to receive a comparability finding for a fishery on the LOFF. The final rule established a five-year exemption period, ending January 1, 2022, under 50 CFR 216.24(h)(2)(ii) before imports would be subject to any trade restrictions.
Vaquita are a species of porpoise endemic to northern Gulf of California waters in Mexico and are listed as an endangered species under the U.S. Endangered Species Act. In November 2016, the International Committee for the Recovery of the Vaquita (CIRVA)—a group of international scientists supported by Mexico and led by Mexican scientists—reported that less than 30 individuals are likely to remain. Gillnets deployed in an illegal fishery for totoaba (an endangered fish sought for its swim bladder due to black market demand within China) are the primary source of vaquita mortality. NMFS has identified products coming from fisheries interacting with vaquita as a potential focus for import restrictions under the MMPA.
On May 18, 2017, the Natural Resources Defense Council (NRDC), Center for Biological Diversity (CBD), and the Animal Welfare Institute (AWI) petitioned the Secretaries of Homeland Security, the Treasury, and Commerce to “ban the importation of commercial fish or products from fish” sourced using fishing activities that “result in the incidental mortality or incidental serious injury” of vaquita “in excess of United States standards.” The petitioners requested that the Secretaries immediately ban imports of all fish and fish products from Mexico that do not satisfy the MMPA import provision requirements, claiming that emergency action banning such imports is necessary to avoid immediate, ongoing, and “unacceptable risks” to vaquita. NMFS published a notification of the petition's receipt on August 22, 2017 (82 FR 39732), and opened a 60-day comment period. No final decision has been taken on the petition.
On March 21, 2018, the petitioners filed suit before the Court of International Trade seeking an injunction requiring the U.S. Government to ban the import of fish or fish products from any Mexican commercial fishery that uses gillnets within the vaquita's range. On April 16, 2018, petitioners filed a motion for a preliminary injunction with oral arguments held July 10, 2018. The Court of International Trade granted the motion for preliminary injunction and denied the U.S. Government's motion to dismiss the lawsuit. The court has required the U.S. Government to ban the importation of all fish and fish products from Mexican commercial fisheries that
The Government of Mexico's existing Regulatory Agreement, published on June 30, 2017 (
Pursuant to court orders issued July 26, 2018 and August 14, 2018, the Court of International Trade (Slip-Op 18-92) required the U.S. Government to immediately ban the importation from Mexico of all shrimp, curvina, sierra, and chano fish and their products, imported under the HTS codes in Table 1, caught with gillnets inside the vaquita's range under section 101(a)(2) of the MMPA (16 U.S.C. 1371(a)(2). On August 14, 2018, in response to these orders, U.S. Customs and Border Protection (CBP), in cooperation with the NMFS, imposed immediate import restrictions on fish and fish products from Mexico caught with gillnets deployed in the range of the vaquita. CBP's action prohibits the importation into the United States from Mexico of all shrimp, curvina, sierra, and chano fish and fish products harvested by gillnets in the upper Gulf of California (UGC) within the vaquita's geographic range (Cargo Systems Messaging Service (CSMS) (#18-000482). The court-ordered preliminary injunction is effective immediately regardless of the five-year exemption under 50 CFR 216.24(h)(2)(ii).
Curvina, sierra, and chano are not imported into the United States under HTS codes that are specific to the type of fish. Instead these fish are imported under non-specific fish and marine fish codes. Consequently, the list in Table 1 includes those non-specific HTS codes necessary to encompass the range of probable codes used for products subject to the trade restriction. In addition, to effectuate the Court's ruling while allowing imports of seafood outside the scope of the court order, and to minimize disruptions to trade, fish and fish products of the same or similar fish or fish products imported to the United States under the HTS codes listed in Table 1 from Mexico that are not subject to these import prohibition must be accompanied by a Certification of Admissibility. The Certification of Admissibility and accompanying instructions are available at
As of the compliance date, imports of the fish and fish products from Mexico and filed under the HTS codes listed in Table 1 are required to be accompanied by a Certification of Admissibility in order to obtain release of the inbound shipment. See
The HTS codes applicable to the products subject to the requirements of the preliminary injunction may be revised from time to time due to updates to the HTS by the International Trade Commission. Any such changes will be notified to the trade community in accordance with CBP's notification procedures. In addition, NMFS and CBP will actively monitor the border operations of the trade restriction and the certification requirement in the initial weeks of implementation to determine if the list of affected HTS codes can be adjusted to further minimize disruption to trade while maintaining compliance with the court order.
Importers are advised to determine if other NMFS program requirements (
Until such time as the Court of International Trade (or other court of competent appellate jurisdiction) lifts the preliminary injunction, trade restrictions on these products harvested by gillnets in the UGC of Mexico within the vaquita's range will continue and Certification of Admissibility will be required for the HTS codes listed in this notice.
16 U.S.C. 1361
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for the golden tilefish recreational sector in the exclusive economic zone (EEZ) of the South Atlantic for the 2018 fishing year through this temporary rule. NMFS estimates recreational landings of golden tilefish in 2018 has reached the recreational annual catch limit (ACL). Therefore, NMFS closes the golden tilefish recreational sector in the South Atlantic EEZ on August 28, 2018. This closure is necessary to protect the golden tilefish resource.
This rule is effective 12:01 a.m., local time, August 28, 2018, until 12:01 a.m., local time, January 1, 2019.
Frank Helies, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes golden tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council 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.
On January 2, 2018, as a result of golden tilefish being determined to be undergoing overfishing, NMFS published a final temporary rule in the
As the commercial sector, including both longline and hook-and-line components, are also closed, during the recreational closure, the bag and possession limits for golden tilefish in or from the South Atlantic EEZ are zero, and all harvest and possession of golden tilefish is prohibited. The recreational sector for golden tilefish will reopen on January 1, 2019, the beginning of the 2019 fishing year and the recreational fishing season.
The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of South Atlantic golden tilefish and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(a)(2)(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 responds to the best scientific information available. The AA finds that the need to immediately implement this action to close the recreational sector for golden tilefish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations at 50 CFR 622.193(a)(2)(i) have already been subject to notice and comment,
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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels greater than or equal to 50 feet length overall (LOA) using hook-and-line gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the annual allowance of the 2018 Pacific cod total allowable catch apportioned to catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2018, through 2400 hours, A.l.t., December 31, 2018.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The annual allowance of the 2018 Pacific cod total allowable catch (TAC) apportioned to catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA is 404 metric tons (mt), as established by the final 2018 and 2019 harvest specifications for groundfish of the GOA (83 FR 8768, March 1, 2018).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the annual allowance of the 2018 Pacific cod TAC apportioned to catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 344 mt and is setting aside the remaining 60 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 22, 2018.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure; request for comments.
NMFS is opening directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2018 total allowable catch of Pacific cod allocated to catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2018, through 2400 hours, A.l.t., December 31, 2018. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 12, 2018.
Submit your comments, identified by NOAA-NMFS-2017-0108, by either of the following methods:
•
•
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.
NMFS closed directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI under § 679.20(d)(1)(iii) on January 23, 2018 (83 FR 3626, January 26, 2018).
NMFS has determined that as of August 22, 2018, approximately 742 metric tons of Pacific cod remain in the 2018 Pacific cod apportionment for catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2018 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 22, 2018.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 12, 2018.
This action is required by § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Fresh Pear Committee (Committee) to increase the assessment rate established for the 2018-2019 and subsequent fiscal periods. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by September 27, 2018.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet:
Barry Broadbent, 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, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 927, as amended (7 CFR part 927), regulating the handling of pears grown in Oregon and Washington. Part 927, (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 growers and handlers operating within the area of production, and a public member.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This proposed rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed 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 proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, Oregon and Washington pear handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate would be applicable to all assessable pears 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 the 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 where all directly affected persons have an opportunity to participate and provide input.
This proposed rule would increase the assessment rate from $0.449 to $0.463 per 44-pound standard box or equivalent of fresh “summer/fall” and “winter” pears handled for the 2018-2019 and subsequent fiscal periods. The proposed higher rate is necessary to fully cover the Committee's 2018-2019 fiscal period budgeted expenditures. The Committee has had to draw from its monetary reserve to partially fund program activities during the last two fiscal periods. Drawing from reserves to fund operations on an on-going basis is not a sustainable strategy. Therefore, increasing the continuing assessment rate would allow the Committee to fully fund budgeted expenses and replenish its financial reserve.
The Committee met on May 31, 2018, and unanimously recommended 2018-
The major expenditures recommended by the Committee for the 2018-2019 fiscal period include $550,790 for contracted administration by Pear Bureau Northwest, $190,700 for administrative expenses, $771,643 for production research and market development, and $7,700,000 for promotion and paid advertising for both “summer/fall” and “winter” varieties of fresh pears. In comparison, major expenses for the 2017-2018 fiscal period included $512,928 for contracted administration, $232,200 for administrative expenses, $836,931 for production research and market development, and $7,700,000 for promotion and paid advertising.
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. Income derived from handler assessments of $9,260,000 (20 million standard boxes or equivalent at $0.463 per box) would be adequate to cover budgeted expenses of $9,213,133, with any excess funds used to replenish the Committee's monetary reserve. Funds in the reserve (currently $1,096,332) would be kept within the maximum permitted by § 927.42(a) and would not exceed the expenses of approximately one fiscal period.
The assessment rate proposed in this rule would 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 would be in effect for an indefinite period, the Committee would 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 would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's budget for subsequent fiscal periods would 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 proposed rule on small entities. Accordingly, AMS has prepared this initial 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 827 growers of fresh pears in the production area and approximately 38 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 Market News, the industry, and the Committee, for the 2016-17 season, the weighted average f.o.b. price for Oregon-Washington fresh pears was approximately $26.99 per standard 44-pound box. Total shipments for that period were 17,878,219 standard boxes or equivalent. Using the number of handlers, and assuming a normal distribution, the majority of handlers would have average annual receipts of more than $7,500,000 ($26.99 per box times 17,878,219 equals $482,533,130 divided by 38 handlers equals $12,698,240 per handler).
In addition, based on National Agricultural Statistics Service data, the industry produced 441,950 tons of fresh pears in the production area during the 2016-2017 season, with an average grower price of $797 per ton. Based on the average grower price, production, and the total number of Oregon-Washington fresh pear growers, and assuming a normal distribution, the average annual grower revenue is below $750,000 ($797 per ton times 441,950 tons equals $352,234,150 divided by 827 growers equals $425,918 per grower). Thus, the majority of Oregon and Washington fresh pear handlers may be classified as large entities, while the majority of growers may be classified as small entities.
This proposal would increase the assessment rate collected from handlers for the 2018-2019 and subsequent fiscal periods from $0.449 to $0.463 per standard box or equivalent of Oregon and Washington fresh “summer/fall” and “winter” pears handled. The Committee unanimously recommended 2018-2019 fiscal period expenditures of $9,213,133 and the $0.463 per standard box or equivalent assessment rate. The proposed assessment rate of $0.463 is $0.014 higher than the rate for the 2017-2018 fiscal period. The quantity of assessable fresh “summer/fall” and “winter” pears for the 2018-2019 fiscal period is estimated at 20 million standard boxes or equivalent. Thus, the $0.463 rate should provide $9,260,000 in assessment income. Income derived from handler assessments would be adequate to cover budgeted expenses, with any excess funds used to replenish the Committee's monetary reserve.
The major expenditures recommended by the Committee for the 2018-2019 fiscal period include $550,790 for contracted administration by Pear Bureau Northwest, $190,700 for administrative expenses, $771,643 for production research and market development, and $7,700,000 for promotion and paid advertising for both “summer/fall” pears and “winter” pears. Budgeted expenses for these items in the 2017-2018 fiscal period were $512,928, $232,200, $836,931, and $7,700,000, respectively.
The proposed higher rate is necessary to fully cover the Committee's 2018-2019 fiscal period budgeted expenditures. The Committee has had to draw from its monetary reserve to partially fund program activities during the 2016-2017 and 2017-2018 fiscal periods. Drawing from its financial reserve to fund operations on an on-going basis is not a sustainable strategy. Increasing the continuing assessment rate would allow the Committee to fully fund budgeted expenses and replenish its financial reserve.
Prior to arriving at this budget and assessment rate, the Committee considered maintaining the current assessment rate of $0.449 per standard box or equivalent. However, leaving the assessment unchanged would not generate sufficient revenue to meet the Committee's 2018-2019 fiscal period budgeted expenses of $9,213,133, and would have required the Committee to continue to deplete its financial reserve. Based on estimated shipments, the
A review of historical information and preliminary information pertaining to the upcoming fiscal year indicates that the average grower price for the 2018-2019 season should be approximately $800 per ton of fresh pears. Therefore, the estimated assessment revenue for the 2018-2019 fiscal period as a percentage of total grower revenue would be about 2.6 percent.
This proposed action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to growers. However, these costs would be offset by the benefits derived by the operation of the Order. In addition, the Committee's meetings were widely publicized throughout the Oregon and Washington fresh pear industry. All interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the May 31, 2018, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and information collection impacts of this action on small businesses.
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. 0581-0189 Fruit Crops. No changes in those requirements would be necessary because of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large Oregon and Washington fresh pear 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.
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.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
Marketing agreements, Pears, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 927 is proposed to be amended as follows:
7 U.S.C. 601-674.
On and after July 1, 2018, the following base rates of assessment for fresh pears are established for the Fresh Pear Committee:
(a) $0.463 per 44-pound net weight standard box or container equivalent for any or all varieties or subvarieties of fresh pears classified as “summer/fall”;
(b) $0.463 per 44-pound net weight standard box or container equivalent for any or all varieties or subvarieties of fresh pears classified as “winter”; and
Federal Housing Finance Agency.
Notice of Proposed Rulemaking.
The Federal Housing Finance Agency (FHFA) is proposing to amend its rule on golden parachute payments to better align the rule with areas of FHFA's supervisory concern and reduce administrative and compliance burdens. The current rule requires FHFA review and consent before a regulated entity or the Office of Finance (OF) enters into an agreement to make, or makes, a payment that is contingent on the termination of an affiliated party, if the regulated entity or OF is in a troubled condition, in conservatorship or receivership, or insolvent. FHFA's experience implementing the rule indicates that the rule requires review of some agreements and payments where there is little risk of excess or abuse, and thus that it is too broad.
If amended as proposed, the rule would focus on the types of agreements and payments that are of greater supervisory concern to FHFA. In general, these are payments to and agreements with executive officers, broad-based plans covering large numbers of employees (such as severance plans), and payments made to non-executive-officer employees who may have engaged in certain types of wrongdoing. The proposed amendments would also revise and clarify definitions, exemptions, and procedures to implement FHFA's supervisory approach. Where possible, FHFA would also align procedures and outcomes of review under the Golden Parachute Payment Rule with requirements of FHFA's rule on executive compensation. FHFA expects implementation of these changes would result in reduced administrative and compliance burdens.
Comments must be received by October 12, 2018.
You may submit your comments on the proposed rule, identified by regulatory information number (RIN) 2590-AA72, by any one of the following methods:
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Alfred Pollard, General Counsel, (202) 649-3050,
FHFA invites comments on all aspects of the proposed rule and will take all comments into consideration before issuing a final rule. Copies of all comments will be posted without change, and will include any personal information you provide such as your name, address, email address, and telephone number, on the FHFA website at
FHFA has broad discretionary authority to prohibit or limit any “golden parachute payment,” generally defined as any payment, or any agreement to make a payment, in the nature of compensation by a regulated entity for the benefit of an “affiliated party” that is contingent on the party's termination, when the regulated entity is in troubled condition, in conservatorship or receivership, or insolvent (a “troubled institution”).
Section 4518(e) requires the Director to promulgate rules defining “troubled condition” and prescribing factors to be considered when prohibiting or limiting any “golden parachute payment,” and suggests some factors the Director may consider.
To ensure that FHFA has an opportunity to review and, if necessary, prohibit or limit golden parachute payments and agreements before they are made, the current rule prohibits all golden parachute payments and agreements that are not exempt from or permitted by the rule. Prohibited agreements or payments may be permitted by the Director after review. The rule defines terms, addresses payments that are exempt from the “golden parachute payment” definition or are permitted by the rule, establishes a process for FHFA to determine the permissibility of any other golden parachute payment or agreement, and sets forth review factors used by the Director in that process.
Because the rule applies equally to golden parachute payments and agreements, it requires FHFA to determine the permissibility of prohibited agreements before they are entered into and of prohibited payments before they are made. In most cases, this means that a troubled institution must request FHFA's prior review and consent to a payment that would be made in accordance with an agreement to which FHFA has already consented. This “double approval” requirement was recognized by FHFA and commenters when the rule was proposed in 2013 and finalized in 2014.
Narrowly drafted exemptions from the rule have also given rise to numerous requests for review. For example, because severance pay plans of the regulated entities do not meet an exemption for “nondiscriminatory” plans, troubled institutions are not permitted to make severance payments to any employees—even small payments to low level employees—without FHFA review and consent. Likewise, an exemption for payments pursuant to a “bona fide deferred compensation plan or arrangement” does not apply or is lost if the plan is established or amended in the one-year period prior to the time the regulated entity became a troubled institution, meaning such plans and any plan payments must be reviewed by FHFA.
Based on FHFA's review experience, FHFA has now determined that the scope of the current rule is too broad, insofar as it requires a troubled institution to request, and FHFA to review, agreements and payments where there is very little concern about an abusive or excessive payment or threat to the financial condition of the paying regulated entity, and little likelihood
Separately, FHFA has also determined that the current Golden Parachute Payments rule could be harmonized with other requirements related to the compensation of executive officers of the regulated entities, including termination payments.
Having considered FHFA's statutory authority and its experience implementing the Golden Parachute Payments and Executive Compensation rules, FHFA is proposing to amend the Golden Parachute Payments rule to better balance FHFA's supervisory concerns for golden parachute payments with the rule's administration and compliance burdens. FHFA invites comments on all aspects of the proposed amendments and will take all comments into consideration.
In general, FHFA has higher supervisory concern for golden parachute payments to and agreements with executive officers than lower ranking employees, because executive officers hold positions of greater responsibility and influence within a company. FHFA also has a higher supervisory concern for agreements, and in particular for broad-based agreements or plans such as severance plans, than for a subsequent payment in accordance with a plan or agreement. A broad-based agreement or plan typically covers numerous employees, bases the amount to be paid on criteria such as job level or length of employment, and provides for payments based on the occurrence of stated events. When reviewing the plan, FHFA can assess whether proposed payments to employees as members of a defined class or group would be excessive for that class or group (for example, whether a severance payment determined by job level and length of service is excessive for that level and service term). In addition, FHFA can assess the cumulative impact on the regulated entity if the same event were to occur for many employees at the same time or over a short time span, resulting in a high aggregate payout (for example, a severance plan that provides payments on involuntary termination not for cause may result in a high aggregate payment for a significant reduction in force). Finally, FHFA has a higher supervisory interest in payments to employees where there is a concern that the employee may have engaged in wrongdoing that had a material effect on the financial condition of the regulated entity or in certain financial crimes, or may be substantially responsible for the regulated entity's becoming a troubled institution. Review in such cases can inform FHFA of the employee's possible conduct and whether additional supervisory action may be appropriate.
To better reflect these supervisory policies, FHFA proposes to amend the rule to distinguish agreements from payments, executive officers from other affiliated parties, and affiliated parties for whom there is a concern about wrongdoing from those for whom there is not. Generally, the amended rule would require a troubled institution to obtain prior review of and consent for (1) most agreements with and payments to executive officers; (2) most agreements with employees who are below the executive officer level (including plans covering such employees); and (3) most payments to employees who are below the executive officer level, where the regulated entity has concerns that the employee may have engaged in certain types of wrongdoing.
FHFA has also reviewed the current rule for clarity and has determined that several changes could make it easier to understand and apply. These include relocating exempt payments and agreements, which do not require FHFA review or consent, from the rule's definitions section to its substantive provisions and changing rule terminology that could be confusing. FHFA also considered consistency with the treatment of compensation agreements with and payments to executive officers under the Executive Compensation rule, because the Executive Compensation and Golden Parachute Payment rules can overlap in some cases. FHFA expressly desires to align procedures and outcomes where possible, thereby further reducing administrative and compliance burdens.
FHFA proposes to retain the rule's current approach and require FHFA review of golden parachute agreements and payments unless they are expressly permitted by the rule. This framework serves to notify a troubled institution that, if an agreement or payment is not exempt from the definition of “golden parachute payment” or permitted by the terms of the rule, then the troubled institution must obtain FHFA's consent prior to entering into the agreement or making a payment.
Fundamentally, the current approach requires an understanding of the scope of the “golden parachute payment” definition—whether an agreement or payment is subject to review under the rule first turns on whether it is covered. In that regard, FHFA is clarifying its interpretation of “golden parachute payment” and proposing some amendments to the rule definition.
First, the statutory definition addresses payments (including agreements) “in the nature” of compensation.
The current rule definition addresses any “golden parachute payment” that is “contingent on the termination of [a party's] affiliation with the regulated entity” (as the statute provides) as well
However, some payments received after termination, such as payments that would have been provided to the employee during the employment period had an intervening event (termination) not occurred, do not become “golden parachute payments” merely because of the timing of payment. Two examples of such payments are the last payment of earned salary and cashed out accrued but unused vacation benefits. FHFA has provided these interpretations to troubled institutions in the past, but has not previously published them. To avoid suggesting that the timing of a payment alone—on or after termination—causes the payment to be a “golden parachute payment,” and to ensure an appropriate nexus between the occurrence of termination and the golden parachute payment, FHFA proposes to replace the phrase “by its terms is payable on or after termination” with the phrase “is contingent on or provided in connection with” termination. FHFA requests comment on this proposed amendment.
FHFA is also proposing other amendments to the rule definition. As noted above, the statutory “golden parachute payment” definition covers both payments and agreements to make payments, clearly permitting FHFA to prohibit or limit both an agreement to make a payment and, separately, the payment itself. FHFA now proposes to amend the rule to establish outcomes or treatments that depend on whether a troubled institution is entering into an
FHFA also proposes to remove the phrase “pursuant to an obligation of the regulated entity or the Office of Finance” from the rule's “golden parachute payment” definition. The statutory definition addresses payments that are “pursuant to an obligation” of the regulated entity, made by the regulated entity when it is a troubled institution.
FHFA's experience implementing the current rule has been that the overwhelming majority of golden parachute payments are the subject of an “obligation.” However, FHFA does not interpret Section 4518(e) or its current rule as impeding FHFA's ability to prohibit or limit improper payments that are not pursuant to an “obligation.” As safety and soundness supervisor for the regulated entities, FHFA could always prohibit (or limit) improper gifts or contributions to an affiliated party,
FHFA also notes that the statutory and rule definitions include any payment that would be a “golden parachute payment” but for the fact it was made before the paying regulated entity became a troubled institution, if the payment was made “in contemplation of” becoming a troubled institution.
Since the presumption is rebuttable, a regulated entity need not request review of any agreements or payments made within the 90-day period where there is a reasonable basis for concluding that such agreements or payments were not made “in contemplation of” becoming a troubled institution. On the other hand, FHFA also expects that if a regulated entity took a more conservative approach and sought FHFA review of agreements and payments made during the 90-day period, the actual number of review requests would not increase materially. Pursuant to its obligations for oversight of executive compensation, FHFA must review agreements with and payments to executive officers regardless of their timing relative to the regulated entity's becoming a troubled institution. There may be a slight increase in the number of requests for review of plans or agreements with other employees, but FHFA review and consent in those cases could be stabilizing to the regulated entity as it works to improve its condition (because employees may be reassured that any promised payments on termination would be permissible even if the
FHFA is proposing one change to the “golden parachute payment” definition to improve its readability. Currently, the statute defines “golden parachute payment” with reference to a regulated entity that has experienced a triggering event: The regulated entity is in troubled condition (as defined by FHFA by regulation); FHFA has been appointed conservator or receiver for the regulated entity; or the regulated entity has become insolvent.
This rule construct has the effect of dividing the triggering events between two definitions and also makes it difficult to refer to a regulated entity that has experienced a triggering event. FHFA proposes to amend the “golden parachute payment” definition to cover payments made by a regulated entity that is, or is in contemplation of becoming, a “troubled institution,” and proposes to add “troubled institution” as a newly defined term that will list all of the triggering events, including those that previously defined “troubled condition.” The current rule's definition of “troubled condition” would be removed. FHFA believes that this approach would continue to meet the statutory requirement that FHFA define “troubled condition” by regulation, but would result in a rule that is easier to understand.
FHFA requests comment on the preceding proposed amendments to the “golden parachute payment” definition.
Agreements and payments that are exempt from the “golden parachute payment” definition are not subject to the Golden Parachute Payment rule.
FHFA is also clarifying that it interprets the statutory “golden parachute payment” definition as not covering indemnification payments. Thus, rule provisions on golden parachute payments and agreements do not apply to indemnification payments.
Generally, it may be possible to construe indemnification payments as “golden parachute payments,” through interpretation of the phrase “in the nature of compensation” (where an indemnification payment arises from the party's affiliation with a regulated entity and would reimburse the affiliated party for expenses he would otherwise bear) and application of the current rule definition to payments made after an affiliated party's affiliation is terminated (where a termination agreement could include the troubled institution's promise of indemnification in future actions arising from the party's affiliation). FHFA also notes, however, that payment of indemnification is contingent on a legal action and, similar to a last salary payment after termination, is an expense that could have been incurred and paid during the period of affiliation. Thus, FHFA does not view either indemnification agreements covering payments to be made, or actual indemnification payments that are made, after termination as “contingent on termination.”
FHFA also observes that Section 4518(e) addresses “indemnification payments” separately from “golden parachute payments” but does not exempt such payments from the statutory “golden parachute payment” definition. FHFA interprets this construct as demonstrating the assumption that it was not necessary to exempt indemnification payments because those types of payments were never viewed as within the “golden parachute payment” definition. Thus, instead of reading Section 4518(e) as carving out from the “golden parachute payment” definition only the subset of “indemnification payments” that Section 4518(e) expressly addresses, FHFA believes it is more plausible that Section 4518(e) applies separately to golden parachute payments and indemnification payments, such that “golden parachute payment” should not be construed to cover indemnification payments in general. Indemnification in actions brought by the agency are covered by the indemnification rule
FHFA is addressing this interpretation in the preamble rather than the rule to avoid suggesting that indemnification payments are “golden parachute payments.” Specifically, FHFA believes that amending the rule to exempt or permit indemnification payments and agreements would imply such payments are “golden parachute payments,” which is not what FHFA intends. FHFA requests comment on this interpretation, and on the decision to address it in the preamble as an interpretation, instead of through a rule amendment.
Beyond that interpretation, FHFA proposes to amend exemptions currently set forth in the rule. FHFA proposes amendments to exemptions for any “bona fide deferred compensation plan or arrangement,” certain tax qualified retirement or pension plans, and “benefit plans.” FHFA also proposes to remove an exemption for nondiscriminatory severance pay plans or arrangements and to make a minor change to a separate exemption for other severance or similar payments. Finally, FHFA proposes to retain without change an exemption for payments made because of the affiliated party's death, or termination caused by disability.
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In practice, failure to meet this condition has had the effect of eliminating the exemption for any otherwise “bona fide” deferred compensation plan that is established or amended by the regulated entity within the year prior to its becoming, or at any time when it is, a troubled institution, even if the plan or any amendment would not be objectionable to FHFA. Eliminating the exemption means that FHFA must review the revised plan and, even if FHFA determines the plan to be permissible, must also review all subsequent payments pursuant to it.
FHFA also notes that it has a separate statutory obligation to prohibit a regulated entity from providing compensation to an executive officer, including compensation in connection with termination of employment that is not reasonable and comparable with compensation for employment in other similar businesses involving similar duties and responsibilities.
FHFA's current rule exempts any “benefit plan” and, separately, any “severance pay plan” that meets certain conditions and is “nondiscriminatory.”
Specifically, FHFA is proposing to exempt from the “golden parachute payment” definition any employee plan or program that is a “nondiscriminatory employee plan or program” in accordance with Internal Revenue Service (IRS) rules and published guidance interpreting 26 U.S.C. 280G.
In conjunction with this amendment, FHFA is proposing to remove an exemption for “usual and customary [benefit] plans such as dependent care, tuition reimbursement, group legal services or cafeteria plans” and to add whether a benefit plan is “usual and customary” to the factors for the Director's consideration when reviewing requests for consent to a plan. Thus, a regulated entity would be required to seek FHFA's consent for a benefit plan that is not otherwise exempt from the rule, and FHFA could determine the plan to be permissible after considering, among other factors, whether the plan is “usual and customary.” FHFA believes this change will not materially affect the operation of the rule regarding such plans for two reasons. First, because the rule's current exemption relies on the characterization of a plan as “usual and customary,” troubled institutions have sought FHFA's concurrence that specific plans are considered “usual and customary,” which has resulted in a
Distinguishing between exempt “nondiscriminatory employee plans and programs” and plans that FHFA may permit as a matter of discretion because they are usual and customary (among other considerations) appears to align more closely with the language of Section 4518(e). Under this approach, a “nondiscriminatory employee plan or program” will be exempt even if it is not “usual and customary.”
FHFA also recognizes that there may be benefit plans that are nondiscriminatory, but are not included within the IRS list of “nondiscriminatory employee plans and programs.” Because Section 4518(e) exempts all “nondiscriminatory benefit plans” from the “golden parachute payment” definition, FHFA is proposing to amend its process for requests for review to expressly address a request for an exemption for any other “benefit plan” that the regulated entity believes is “nondiscriminatory.” In that case, the regulated entity would be permitted to submit a single request that includes a request for exemption, in which the regulated entity must address the basis for its assertion that the plan is “nondiscriminatory,” and a request for consent. Based on the information in that submission, FHFA would determine if the plan is “nondiscriminatory;” if so, it would be exempt, and if not, FHFA would then determine whether it should nonetheless be a permissible golden parachute agreement. FHFA proposes this approach to better implement Section 4518(e)'s express exemption for “other nondiscriminatory benefit plans” and to reduce burdens on the regulated entity.
A regulated entity could request an exemption for any benefit plan it believes is “nondiscriminatory.” FHFA is proposing to remove the rule's current definition of “nondiscriminatory” and is not proposing to establish a new definition. The current definition is applicable only to “severance pay plans” as defined in the rule, and it is not clear that any single “nondiscriminatory” definition would be appropriate for all types of plans. Having one definition for all plans may mistakenly result in some plans being treated as if they are subject to the rule, where in fact they should be exempt because they are “nondiscriminatory.” FHFA also believes that considering whether a particular plan is nondiscriminatory in conjunction with the plan's design and purpose would aid FHFA in carrying out the purposes of Section 4518(e).
Nonetheless, FHFA believes that the rule's current definition of “nondiscriminatory” identifies appropriate criteria for assessing discrimination, such as length of service, salary, total compensation, job grade, or classification. These criteria are similar to some used for IRS “nondiscriminatory employee plans and programs.”
Finally, the current rule's definition of “benefit plan” includes (and thus exempts from the “golden parachute payments” definition) those “employee welfare benefit plans” as defined by section 3(1) of the Employee Retirement Income Security Act of 1974 (ERISA), at 29 U.S.C. 1002(1). FHFA is not proposing to amend this exemption, though it would be relocated.
FHFA understands that some ERISA employee welfare benefit plans must meet statutory nondiscrimination tests, and thus are exempt from the “golden parachute payment” definition by the express terms of Section 4518(e). FHFA also believes that many such plans are simply not covered by the statutory “golden parachute payment” definition. Specifically, though the benefit provided to the employee—the opportunity to participate in such a plan—is “in the nature of compensation,” FHFA believes it is unlikely that benefit is “contingent on
FHFA requests comment on all aspects of its proposed amendments to the rule's current treatment of “benefit plans”; the proposed process for requesting either an exemption, for a plan believed to be “nondiscriminatory,” or consent, if FHFA determines that a plan is not “nondiscriminatory”; removal of the rule's current definition of “nondiscriminatory”; and its treatment of employee welfare benefit plans.
FHFA review of troubled institution severance pay plans was required because these plans did not meet the current rule's “nondiscriminatory” definition and thus were not exempt. Instead, troubled institutions requested FHFA's consent to such plans, and FHFA made decisions applying the rule's consideration factors. FHFA has determined this review is very useful for assessing the potential or intended impact of the plan on the troubled institution, given its specific circumstances. Where the plan covers a described event,
For these reasons, FHFA believes that these plans should be reviewed, as a result of which they may be permitted—or even deemed exempt, if determined to be nondiscriminatory based on a request for exemption by the troubled institution. FHFA notes that severance pay plans are not currently included in the IRS list of “nondiscriminatory employee plans and programs,” but also that it is possible for the list to evolve to include them through amendments to the IRC or IRS interpretation. In that case, severance pay plans that meet specifically applicable IRC or IRS “nondiscrimination” requirements would be exempt from the FHFA rule without the need for an exemption request. This treatment is consistent with FHFA's proposed approach to applying Section 4518(e)'s statutory exemption for “other nondiscriminatory benefit plans.”
FHFA requests comment on the proposed removal of the current rule's exemption for severance pay plans that are “nondiscriminatory” and meet other conditions.
Under the current rule, agreements and payments that are within the definition of “golden parachute payment” may be permitted, either by operation of the rule or after review and consent by FHFA.
Section 4518(e) defines a “golden parachute payment” in part as a payment, including an agreement to make a payment, to an “affiliated party.” “Affiliated party” is not defined by statute, though a similar statutory term, “entity-affiliated party,” used primarily in the context of FHFA's enforcement authority, is defined.
FHFA is also proposing substantive changes to the definition of “affiliated party” for purposes of rule provisions related to “golden parachute payments.”
FHFA has also identified other issues with the rule definition of “entity-affiliated party” that it proposes to address. Specifically, for the regulated entities, the current rule includes parties to whom it is unlikely that excessive or abusive termination payments would be made. For OF, the current rule defines “entity-affiliated party” more narrowly than for FHFA's regulated entities.
If amended as proposed, the definition of “affiliated party” for purposes of golden parachute payments would cover all employees, officers, and directors of a regulated entity or OF, and any other party the Director, by regulation or on a case-by-case basis, determines to be participating in the conduct of the affairs of a regulated entity or OF. For the regulated entities, as applied to golden parachute payments, the “affiliated party” definition would be narrower on its face but its potential scope would not change, as it would retain the “catch-all” that permits FHFA to deem parties other than directors, officers and employees to be “affiliated parties.” For OF, the amended definition would be broader. Each of these proposed changes is described below.
For these reasons, FHFA proposes to remove listed parties other than directors, officers, and employees from the rule's definition. The “catch-all” provision would be retained, though it would be slightly amended to incorporate a provision of the current rule that states a member of a Bank shall not be deemed an “affiliated party” solely because it is a shareholder of, or obtains advances from, a Bank.
FHFA continues to believe that OF should be treated as a “regulated entity” for purposes of golden parachute payments and agreements. FHFA does not believe OF employees should be outside the rule's scope, however. There is no supervisory policy that supports excluding any OF employees and, further, no supervisory policy that supports a different definition of “affiliated party” for OF than for the regulated entities. Thus, to ensure that OF is treated similarly to any “regulated entity” for purposes of the rule, FHFA proposes to remove the rule's separate definition of “entity-affiliated party” for OF and to apply the same “affiliated party” definition, amended as described above, to any regulated entity and OF. This change expands the scope of the rule with regard to OF, as it would now cover OF employees and any other person the Director determines, by regulation or on a case-by-case basis, to be participating in the conduct of the affairs of OF. FHFA requests comment on these proposed changes.
For the Enterprises and the Banks, the Executive Compensation rule's definition of “executive officer” includes “any individual who performs functions similar to such positions, whether or not the individual has an official title” and, for any regulated entity and the OF, “any other officer as identified by the Director.”
FHFA further notes that the Executive Compensation rule establishes different “executive officer” definitions for the Enterprises, the Banks, and OF.
FHFA also believes that it could be appropriate for any affiliated party to be treated as an “executive officer” for purposes of the Golden Parachute Payments rule, based on the affiliated party's degree of influence or level of responsibility. For that reason, the proposal would allow the Director to designate any affiliated party as an “executive officer” for purposes of the Golden Parachute Payments rule. FHFA anticipates basing such decisions on consideration of whether the affiliated party's participation in the conduct of the affairs of the regulated entity is of such influence or responsibility that the party could materially affect decisions about termination payments or the financial condition of the regulated entity, or could engage in certain types of financial crimes (identified in the rule).
FHFA expects to address whether a party who becomes an “affiliated party” as a result of the “catch-all” provision should be treated as an “executive officer” at the same time it determines to apply the “catch-all.” However, FHFA reserves the right to make a determination that an affiliated party should be treated as an “executive officer” for purposes of the rule at any time (in that case, the determination would not be applied retroactively, such that agreements or payments previously entered into or made could be in violation of the rule. Instead, FHFA would review future payments, including any agreement pursuant to which payment is made, as payments arise).
FHFA requests comments on all aspects of its proposed definition of “executive officer.”
As previously noted, the approach of the current rule—that agreements and payments not exempted from the definition of “golden parachute payment” are prohibited unless they are permitted, either by operation of the rule or after review and consent by FHFA-would continue in the rule as proposed to be amended. To implement FHFA's intention to distinguish the treatment of agreements from the treatment of payments in some cases, the rule would be amended to address agreements and payments separately.
In addition, FHFA proposes to add three types of agreements that would be permitted by operation of the rule—(1) compensation arrangements (including plans or agreements) that are directed by FHFA exercising authority conferred by 12 U.S.C. 4617, which covers FHFA's conservatorship and receivership authorities and authorities with regard to any limited life regulated entity (“LLRE”)), (2) individually negotiated settlement agreements with affiliated parties who are not executive officers, where certain conditions are met, and (3) agreements to make payments to affiliated parties other than executive officers, where the amount of the payment is
Appointment as receiver also authorizes or requires FHFA to organize an LLRE for the regulated entity in receivership.
Where FHFA, exercising authority conferred by 12 U.S.C. 4617, acts to direct the establishment of a compensation arrangement by a regulated entity, including an LLRE, the Director's consent to that arrangement is conveyed by the direction to establish it. For that reason, FHFA proposes to amend the Golden Parachute Payments rule to permit troubled institutions to make compensation plans or agreements that provide for termination payments to affiliated parties of a regulated entity without FHFA review, when such arrangements are established or directed by FHFA pursuant to authority conferred by 12 U.S.C. 4617. FHFA requests comments on this amendment.
This proposed amendment reflects FHFA's interpretation, addressed above, that the “golden parachute payment” definition covers a settlement agreement involving payment to and termination of an employee of a troubled institution, as an agreement to make a payment “in the nature” of compensation. It also recognizes that such agreements with
Conversely, there is a somewhat higher supervisory concern that executive officers, who are better positioned to influence negotiations and decision-making and who could have built relationships with those in charge of negotiating or approving settlements, could receive payments through individually negotiated settlement agreements that do not fairly reflect an assessment of risk, potential damages, and associated costs, and thus that are excessive or abusive. On that basis, individually negotiated settlement agreements with executive officers would continue to be subject to review by FHFA.
Limiting application of the amendment to “individually negotiated settlement agreements” requires defining that term. Consistent with the foregoing discussion, FHFA is proposing a definition that seeks to capture only those individually negotiated agreements that (1) settle a claim that an affiliated party has brought or avoid a claim the regulated entity reasonably believes the affiliated party would bring and (2) involve a settlement payment to the affiliated party, a release of claims by the party (and possibly the regulated entity), and the termination of the party's affiliation with the regulated entity. As payment and termination are already included in the “golden parachute payment” definition, FHFA is not repeating them in its proposed definition of an “individually negotiated settlement agreement.” FHFA intends the definition to cover those agreements where obtaining a settlement and release of claims significantly motivates negotiation between the regulated entity and the affiliated party, as distinguished from other individual agreements where a release of claims is an important but more incidental feature. FHFA requests comment on the proposed definition of “individually negotiated settlement agreement.”
In order for an individually negotiated settlement agreement to be permissible without FHFA prior review and consent, the regulated entity must be reasonably assured, at the time the agreement is entered into, that the affiliated party has not engaged in certain types of wrongdoing. The types of wrongdoing that a regulated entity must consider are set forth in the current rule and are not changing.
Specifically, under the current rule a regulated entity submitting a request for FHFA review of a proposed golden parachute payment or agreement must “demonstrate that it does not possess and is not aware of any information, evidence, documents, or other materials that would indicate that there is a reasonable basis to believe” that the person to whom payment would be made has engaged in any of the types of wrongdoing listed. This standard could imply that the regulated entity must have a high degree of certainty about the person's actions, gained through considerable investigation, which may not be reasonable or, in some cases, even possible. For example, the current rule requires the regulated entity to provide certification when requesting review of an agreement, even where the parties to whom payment could ultimately be made are not known and would be expected to change over time (
To address these issues, FHFA proposes to amend the current rule's certification requirement. First, FHFA is clarifying the standard that a requesting regulated entity must meet: It must be reasonably assured that the affiliated party has not engaged in wrongdoing listed in the rule, following appropriate due diligence. FHFA expects that the nature of the due diligence performed by a regulated entity will vary based on the opportunity of the affiliated party to engage in the types of wrongdoing listed, when considering the party's affiliation, duties, functions, and privileges. It is possible that some affiliated parties would have no opportunity to engage in any listed wrongdoing, and in that case, simply noting an assessment of “no opportunity” could be sufficient. A regulated entity may make an affirmation or similar statement by the terminating affiliated party a component of its due diligence process. When an appropriate due diligence process does not give cause for concern that the affiliated party may have engaged in the rule's listed types of wrongdoing, the “reasonably assured” standard is met. The standard does not require a regulated entity to demonstrate or prove that the affiliated party has not engaged in wrongdoing.
If the regulated entity determines that the “reasonably assured” standard is met, it may enter into an individually negotiated settlement agreement with an affiliated party other than an executive officer without FHFA's review and consent. The regulated entity should retain records necessary to support its application of the standard in accordance with 12 CFR part 1235. If the regulated entity cannot meet the “reasonably assured” standard, it must obtain FHFA's consent to enter into the agreement. FHFA is also proposing to require any regulated entity that concludes, after appropriate due diligence, that it is not “reasonably assured” the affiliated party has not engaged in the listed types of wrongdoing to provide notice of its concerns to FHFA, even if the regulated entity does not enter into the individually negotiated settlement agreement. This requirement is intended to balance FHFA's supervisory concern about the occurrence of wrongdoing listed in the rule with the desire of the regulated entity to resolve claims (or potential claims) by affiliated parties.
FHFA requests comments on all aspects of its proposed amendments related to individually negotiated settlement agreements with affiliated parties who are not executive officers.
This amendment would apply to individually negotiated agreements as well as plans that cover multiple employees, including broad-based plans, if the agreement or plan provides for payment that does not exceed the
FHFA proposes $2,500 as the cap for a golden parachute payment that a troubled institution could agree to make without FHFA review and consent. While it is possible that a higher or lower amount could be supported, FHFA's past experience indicates there is a significant likelihood that payments of $2,500 or less would permitted after review.
The
To ensure the specific
To facilitate use of the adjustment by troubled institutions, FHFA also proposes to permit troubled institutions to calculate it themselves and apply it accordingly. Thus, no action by FHFA would be required in order for a troubled institution to use an inflation-adjusted dollar value.
FHFA requests comment on all aspects of its proposed treatment of agreements to make
In addition, the current rule is not clear as to whether the Director's consent to the terms and amount of payment is required when the agreement is entered into or could be provided later, at the time the payment is made. The reason for treating these employment agreements differently from other types of agreements is to facilitate the hiring of a turnaround specialist to address the regulated entity's problems, when the regulated entity's condition could be a disincentive to joining the company. In that light, FHFA believes review and consent at the time of agreement would provide greater assurance to the
Finally, the current rule does not make it clear how consent obtained at the time an agreement is entered into operates to trigger provisions of the rule if the regulated entity is not then a troubled institution. By statute, an agreement or payment is a “golden parachute payment” if it is made by a regulated entity when it is, or is in contemplation of becoming, a troubled institution. However, as noted above, the current rule does not address FHFA's interpretation of “in contemplation of.”
Several proposed revisions to the rule will address these issues. To clarify that FHFA intends to review any employment agreement with a turnaround specialist, FHFA is removing the rule's current provision that permit such agreements. Within the rule's general construct, agreements that are not permitted by operation of the rule cannot be entered into without FHFA's review and consent; by removing the rule provision that makes such agreements permissible, FHFA is thus making them subject to its prior review.
That change will operate in conjunction with other amendments related to payments that are described below. If those proposed amendments are adopted, a troubled institution will be required to obtain FHFA's consent to the employment agreement, but could be permitted to make payment to a turnaround specialist without further review or consent, provided (1) the payment is in accordance with the agreement, (2) the Director provided consent to the subsequent payment when providing consent to the agreement, and (3) the troubled institution meets any other condition that the Director imposed when providing consent. This proposed treatment of payments could apply to any employee who is hired as a turnaround specialist, including an executive officer.
In FHFA's view, a regulated entity that hires a turnaround specialist to prevent it from imminently becoming a troubled institution could meet the “in contemplation of” criteria and, if so, would become subject to all of the rule's provisions. It is also plausible that a regulated entity experiencing problems would seek FHFA's consent to a proposed employment agreement as though it were a troubled institution, to reassure a prospective employee that the agreement would not be prohibited should the regulated entity's condition deteriorate further. Nothing in the rule prevents this; where the rule requires a troubled institution to request FHFA's consent to an agreement, it does not preclude a regulated entity that is not a troubled institution from doing so. FHFA notes, however, that consent to an agreement is contextual, and it may not be feasible to consent to an agreement as though it were a golden parachute agreement, if there appears little likelihood that the regulated entity would become a troubled institution in the reasonably near term. FHFA requests comment on this proposed approach, and on all aspects of its proposed treatment of employment agreement with turnaround specialists.
The approach of the current rule, permitting some change in control agreements to be entered into without FHFA review, is not consistent with FHFA's supervisory concern for agreements to make golden parachute payments, especially agreements to make payments to executive officers, or with FHFA's interest in reviewing agreements that provide severance pay. For those reasons, FHFA proposes to treat a change in control agreement as it would any other agreement under the rule as proposed to be amended. Thus, for example, any individually negotiated change in control agreement (whether with an executive officer or another affiliated party) would require FHFA's prior review and consent, as would any plan that included executive officers and provided for severance pay on a change in control. If a change in control agreement or plan provided for only a
FHFA recognizes that a regulated entity may enter into agreements or establish severance pay plans that provide for payments on a change in control prior to the regulated entity becoming a troubled institution. A regulated entity does not violate the rule simply because FHFA has not provided consent to an agreement or plan that is in place at the time the entity becomes a troubled institution. FHFA anticipates that it would review such agreements or plans either at the time a regulated entity becomes a troubled institution or at the time a payment is proposed to be made. Since FHFA could then determine that the agreement or plan to make a golden parachute payment is not permissible, however, the regulated entities should address that contingency—possible future application of the rule—in their plans and agreements to avoid later contractual disputes.
FHFA requests comments on its proposed amendment to remove the rule's provision on change in control agreements and thereby require FHFA's prior review and consent to change in control agreements and plans providing for golden parachute payments (other than a
As is the case with golden parachute agreements, under the current rule a troubled institution may not make a golden parachute
To implement these policies, FHFA is proposing to permit a troubled institution to make a payment pursuant to a permitted individually negotiated settlement agreement to any affiliated party, including an executive officer, without further review and consent. This proposal acknowledges that the payment could be construed as essential consideration for the agreement, such that consent to the payment would be incorporated in the determination to permit an individually negotiated settlement agreement.
FHFA is also proposing to clarify the Director's authority to consent to any future payment to any affiliated party that would otherwise be subject to prior review, at the same time or after the Director consents to the plan or agreement pursuant to which the payment would be made, provided the payment is made in accordance with a permitted agreement (whether by operation of the rule or after FHFA review and consent) and meets any other conditions that the Director may establish. This authority has been implicit in the rule, and would now be explicit.
FHFA is proposing to permit a troubled institution to make two other types of payments to affiliated parties who are not executive officers without FHFA review and consent. These are (1)
Finally, FHFA is proposing to permit a troubled institution to provide small value gifts to executive officers to recognize significant, nonrecurring, life events (such as retirement) without FHFA's review and consent.
All golden parachute payments other than those permitted by operation of the rule would be subject to FHFA review and consent.
FHFA agrees with the ruling that there was no taking, but observes that awarding damages in an action for breach of contract by an affiliated party against a regulated entity, where FHFA prohibits the regulated entity from making a golden parachute payment in accordance with its rule, would clearly defeat the purpose of Section 4518(e), which is to prevent the affiliated party from receiving such a payment.
In contrast, the Court of Federal Claims had held in that case that no taking occurred (see
FHFA also recognizes that some timing issues could present interpretive questions. For example, an individually negotiated settlement agreement entered into before the regulated entity becomes a troubled institution, and when the regulated entity is not “in contemplation of” becoming troubled, could provide for future payments that may ultimately be made after the regulated entity becomes a troubled institution. In that case, FHFA would view the agreement as permitted for purposes of the rule, because at the time it was entered into, the rule did not apply to the agreement and thus it could not be “impermissible” in the rule's context. Because the agreement would be deemed permitted, payments pursuant to it would also be permitted.
Because other proposed amendments would permit a troubled institution to make most payments to affiliated parties other than executive officers without FHFA review, FHFA expects this provision would most often be used with regard to payments to executive officers. FHFA also expects that consent in such instances would impose the condition that the troubled institution make the payment only if, after appropriate due diligence, it is reasonably assured that the executive officer has not engaged in wrongdoing of the types listed in the rule. Other conditions could also be imposed, such as the condition that payment be made within a certain time period. A troubled institution should establish an appropriate compliance process to ensure any conditions imposed on making the payment are met. If the troubled institution is not able to meet the conditions, it may submit the
FHFA requests comment on its proposal addressing concurrent review of and consent to any agreement to make a golden parachute payment to an affiliated party and any subsequent payment and conditions that must be met for a troubled institution to make such a payment without further FHFA review and consent.
FHFA's proposal related to
FHFA also notes that, while the rule would not require any due diligence prior to making a
FHFA requests comment on its proposal to permit troubled institutions to make
Permitted agreements, the standard of “reasonably assured,” and the standard of appropriate due diligence have been addressed above. Thus, the nature of due diligence performed will vary (based on the opportunity of the affiliated party to engage in the types of wrongdoing listed, considering the party's affiliation, duties, functions, and privileges), and a regulated entity may make an affirmation or a similar statement by the affiliated party part of its due diligence process. When an appropriate due diligence process does not indicate a concern that the affiliated party may have engaged in the rule's listed types of wrongdoing, the “reasonably assured” standard is met, and the payment would be in accordance with a permitted agreement, then the troubled institution may make a golden parachute payment without FHFA review. The regulated entity should retain records necessary to support its decision in accordance with 12 CFR part 1235. If the troubled institution cannot meet the “reasonably assured” standard, it must obtain FHFA's consent to make the golden parachute payment. If the troubled institution concludes that the “reasonably assured” standard is not met and elects not to make the payment, it would be required to provide notice of its concerns to FHFA.
FHFA requests comment on all aspects of its proposed treatment of permitted payments to affiliated parties other than executive officers.
Specifically, FHFA is proposing to permit a troubled institution to provide a small value gift to an executive officer without FHFA review, where the gift is provided in recognition of a nonrecurring life event such as retirement. This proposal reflects FHFA's balancing of the administrative and compliance burdens of reviewing such payments, and its determination that reviewing such payments, even when made to an executive officer, exceeds FHFA's level of supervisory concern where the payment is in an amount that does not suggest an evasion of the rule. For that reason, FHFA proposes to cap permissible gifts at $500 or less. A gift exceeding $500 would be subject to review.
To ensure that the small value gift provision remains at a relevant dollar amount FHFA is proposing an annual inflation adjustment in the same manner as proposed for
FHFA requests comments on all aspects of the proposed treatment of small value gifts, including whether the provision should expressly cover any types of gifts, and if so, what types. FHFA also requests comment on the proposed inflation adjustment formula.
The rule currently sets forth instructions for filing requests for consent, including the contents of a filing and to whom requests should be sent. In general, FHFA proposes to retain without change filing requirements related to the reason the troubled institution seeks to enter into
For example, to align with proposed changes related to “nondiscriminatory benefit plans,” FHFA proposes to add a requirement related to any benefit plan that the regulated entity believes is “nondiscriminatory” even though it is not listed among the IRS “nondiscriminatory employee plans and programs” explicitly exempted from the “golden parachute payment” definition. The regulated entity should support its assertion that the benefit plan is nondiscriminatory with a description of how it operates (or will operate) with regard to eligible participants at different levels of employment. If FHFA agrees that the plan is nondiscriminatory, then it will be exempt as a matter of law.
It is possible that FHFA would disagree with the regulated entity's suggested characterization of an agreement (
FHFA is also proposing changes to a filing requirement related to a troubled institution's certification and documentation of factors related to wrongdoing. Under the current rule, a troubled institution is required to “demonstrate that it does not possess and it not aware of any information, evidence, documents or other materials that would indicate that there is a reasonable basis to believe” that the party to receive payment has engaged in four listed types of wrongdoing.
Because the rule does not distinguish golden parachute payments from agreements, certification is required for any request to FHFA, including a request for FHFA review of a broad-based plan covering a large and fluid number of employees. FHFA believes that approach as applied to plans and agreements is unnecessarily burdensome (and may be infeasible) if it requires the troubled institution to make a certification with regard to a class of affiliated parties, particularly considering that a similar analysis and certification is required prior to actually providing the golden parachute payment. For that reason, FHFA is proposing to require troubled institutions to undertake the rule's due diligence review only when entering into a golden parachute payment agreement with an individual affiliated party and when making any payment. In those cases, the affiliated party to whom payment would be made can be readily identified, making the review more meaningful and manageable.
FHFA has previously addressed amendments to clarify the applicable standard and the expected level of due diligence review by a troubled institution. For purposes of making a request for FHFA consent to an individual agreement or any payment, however, a troubled institution would now be required to state either that it is reasonably assured that any affiliated party identified in the request has not engaged in the listed types of wrongdoing or, if it is not reasonably assured, the results of its due diligence and, in light of those results, why the troubled institution believes FHFA should nonetheless provide consent. These changes are intended to clarify that a troubled institution may request FHFA's review and consent even if the “reasonably assured” standard is not met.
FHFA is also proposing minor changes to update the rule. For example, the rule currently refers to requests as “letter applications.” FHFA now proposes to require simply that the request be in writing. FHFA also proposes to state expressly that it may waive or modify any form or content requirement. Thus, it could be appropriate for a troubled institution to make an oral request. Though the current rule does not prevent this, an express waiver provision would clarify that FHFA intends to be flexible where warranted by the circumstances of an agreement or payment.
Finally, nothing prevents a troubled institution from providing any other information it believes is relevant to its request, including information relevant to factors for FHFA's consideration that are set forth in the rule (and discussed further below). For example, a troubled institution may wish to note, and provide support for, its conclusion that a benefit plan is “usual and customary.”
Review factors suggested by statute include whether there is a reasonable basis to believe that the affiliated party (1) has committed any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse, or has violated any provision of federal or state law, that has had a material effect on the troubled institution's financial condition, or (2) is substantially responsible for the troubled condition or insolvency of, or the appointment of a conservator or receiver for, the troubled institution. The current rule requires the regulated entities to consider these factors and an additional factor related to committing or conspiring to commit certain federal crimes, prior to submitting a request for consent. The rule also sets forth additional factors for the Director's consideration when reviewing requests (including two factors suggested by Section 4518(e) that address the affiliated party's position and length of affiliation with the regulated entity) and states that FHFA may consider any other factor that is relevant to the facts and circumstances, including any fraudulent act or omission, breach of fiduciary duty, violation of law, rule, regulation, order or written agreement, and the level of willful misconduct, breach of fiduciary
FHFA is not proposing any changes to the rule factors that a troubled institution would be required to consider prior to submitting a request for FHFA's consent. FHFA is proposing to add three new factors for the Director's consideration, to reflect FHFA's understanding of the purpose of Section 4518(e) and other proposed changes to the rule.
As noted above, the legislative history and language of Section 4518(e) indicate it was intended to permit FHFA to prohibit or limit golden parachute payments that are excessive or abusive, or that would materially adversely affect the financial condition of the regulated entity. FHFA has always been guided by the purposes of Section 4518(e) in administering the rule, but proposes to add these factors now for transparency.
FHFA is also proposing to add as a review factor whether an agreement (including a plan) is usual and customary. FHFA believes this can be an important factor given that the regulated entities hire employees with special expertise and must compete in the market for such talent. While the fact that the requesting regulated entity considers a benefit to be usual and customary would not, alone, determine permissibility, it is a factor that would inform FHFA's review.
Also for transparency, FHFA is proposing to add a review factor for any other information submitted by a regulated entity. This factor has been implicit in the current rule, as FHFA routinely considers all information submitted with a request for consent, but it would now be explicit.
If amended as proposed, the rule would permit a troubled institution to enter into two types of agreements to make golden parachute payments without FHFA review: Individually negotiated settlement agreements and agreements to make
For individually negotiated settlement agreements, FHFA believes the risk that the rule as proposed to be amended would permit an agreement that would be prohibited if subject to FHFA review is small because of the type of agreement, and because, to be permitted, the agreement must be with an affiliated party who is not an executive officer, where the troubled institution is reasonably assured that the affiliated party has not engaged in listed types of wrongdoing. FHFA's experience generally is that individually negotiated settlement agreements reflect the unique facts and circumstances that gave rise to the dispute, as considered and weighed by parties with opposing interests in achieving the agreed-upon settlement. This may include consideration of factors similar to those set forth in the rule (such as type of wrongdoing suspected and position, duties, or responsibilities of the affiliated party) in addition to factors that are not generally applicable, such as the anticipated cost of litigating a dispute and the potential benefit of avoiding future, similar, actions by other affiliated parties. Where the affiliated party is not in a position to influence an unduly favorable settlement offer—as an executive officer may be, based on prior relationships with higher ranking employees authorized to negotiate or approve settlement offers—the fact that the parties are opposed also supports the conclusion that the agreed-to settlement payment is not abusive or excessive. If, in addition, the troubled institution is reasonably assured that the affiliated party has not engaged in the listed types of wrongdoing, then there is relatively little risk that it is settling a claim as to which FHFA would have such a significant supervisory interest as to prohibit the agreement.
For agreements to make
FHFA has also considered the likelihood that the rule as proposed to be amended would operate to permit payments that FHFA would prohibit, if subject to FHFA review. Where FHFA has determined to permit an agreement and the rule as amended would permit the troubled institution to make payments in accordance with that agreement
If amended as proposed, the rule would permit payments to be made without review of employee conduct related to the rule's listed types of wrongdoing at the time of payment, by either FHFA or the regulated entity, in three instances: Settlement payments pursuant to permissible individually negotiated settlement agreements to any affiliated party, small value gifts to an executive officer, and
In sum, FHFA believes the rule as proposed to be amended appropriately identifies those golden parachute payments and agreements where FHFA review should occur, balancing FHFA's supervisory concerns with the burdens of administration and compliance. FHFA also recognizes the possibility that, in some few cases, the amended rule could operate to permit an agreement or payment that FHFA may have prohibited if it had been reviewed, however. Apart from prohibiting golden parachute payments and agreements through the rule, FHFA has other supervisory, remedial and enforcement authority that it may use to address improper payments or agreements and prevent them in the future. For example, if FHFA determined that a regulated entity did not have an appropriate process for entering into and administering agreements to make golden parachute payments to affiliated parties, FHFA could require the regulated entity to take corrective action, or FHFA could initiate an enforcement action. If an affiliated party obtained a golden parachute payment on the basis of a false representation about their actions while affiliated with the regulated entity, the regulated entity or FHFA could bring an action seeking restitution or reimbursement, or another legal remedy.
FHFA is proposing conforming changes to this section.
For the Enterprises and the Banks, fewer parties would be covered by type of affiliation (
For OF, the scope of the amended “affiliated party” definition would be broader than the current definition, which covers OF managers and officers but does not cover other OF employees, and which does not have a “catch-all” for OF. FHFA has determined that, with regard to OF, the “affiliated party” definition is unnecessarily narrow and should be aligned with the definition applied to the Enterprises and the Banks.
FHFA is not amending the substance of the existing “entity-affiliated party” definition for purposes of provisions of part 1231 that address indemnification payments. For that reason, FHFA is adding language to distinguish which portion of the “affiliated party” definition applies to which type of payment (golden parachute payments and indemnification payments).
Finally, FHFA is proposing to change the placement, within the rule, of exemptions from the “golden parachute payment” definition. Following the structure of Section 4518(e), exemptions have been listed in the definitional section. As a legal matter, the effect of an exemption is that an agreement or payment that could otherwise be construed as a “golden parachute payment” is permitted without FHFA review and consent and cannot be prohibited using authority conferred by Section 4518(e). Since the practical effect of an exemption is the same as if the agreement or payment were permitted by the rule, FHFA believes the rule will be easier to understand and apply if all permissible agreements and payments—whether they are permitted to implement a statutory exemption from the “golden parachute payment” definition or by operation of the rule—are located together. To accomplish this, FHFA is proposing to relocate exemptions to the rule's substantive section.
FHFA also proposes to add an interpretation of the phrase “or is made in contemplation of” to the “troubled institution” definition. That phrase is used in Section 4518(e) to refer to agreements or payments that are made before a regulated entity becomes a “troubled institution” but which would be “golden parachute payments” if they had occurred after the triggering event. This interpretation would establish a rebuttable presumption that an agreement or payment made in the 90 days prior to the regulated entity's becoming a troubled institution is “made in contemplation of” becoming a “troubled institution” and thus is a golden parachute payment or agreement.
FHFA is proposing several changes to § 1231.3, which currently prohibits golden parachute payments unless they are permissible by operation of the rule or are consented to by the Director of FHFA. To reflect the proposed rule's distinctions between agreements and payments, the phrase “and agreements” would be added to titles, as appropriate.
FHFA is also proposing to add new exemptions for any “nondiscriminatory employee plan or program” as defined for purposes of an IRC provision on parachute payments, at 26 U.S.C. 280G, and for any other benefit plan that the Director determines to be nondiscriminatory. The statutory golden parachute payment definition includes an exemption for “nondiscriminatory benefit plans,” but that term is not defined. Incorporation of the IRC “nondiscriminatory employee plans and programs” provides FHFA and its regulated entities a common reference and aligns FHFA and IRC treatment for purposes of parachute payments. Because there could be other benefit plans that are “nondiscriminatory” but that are not included among the IRC “nondiscriminatory employee plans and programs,” however, the rule would also exempt those benefit plans that the Director determines are nondiscriminatory, on request for review by a regulated entity.
New § 1231.3(c) would address only agreements, and would establish three types of agreements that are permitted by operation of the rule. Proposed new § 1231.3(c)(1) would permit agreements with or plans covering any affiliated party, where the plan or agreement is directed or established by the Director exercising authority conferred by 12 U.S.C. 4617. Proposed new § 1231.3(c)(2)(i) and (ii) would address agreements that are permitted provided they are with an affiliated party other than an executive officer—individually negotiated settlement agreements that meet certain conditions, and agreements to make
Provisions of the current rule at § 1231.3(b)(1)(ii) and (iii), on permitted agreements made to hire a person when the regulated entity is, or to prevent it from imminently becoming, a troubled institution, and permitted changed in control agreements, would be removed. These provisions are subsumed in the other proposed amendments.
Proposed new § 1231.3(d)(3) would address two other types of payments that could be made to affiliated parties other than executive officers without FHFA review. Section 1231.3(d)(3)(i) would permit payments above a
FHFA is also proposing to clarify the standard that a regulated entity must meet when, in conjunction with a request for FHFA's consent to an agreement or a payment, it considers the behavior of the affiliated party to whom payment would be made. The rule's current standard could imply that a regulated entity may not request FHFA consent if it is not able to certify, with a high degree of certainty, that the affiliated party has not engaged in certain types of wrongdoing listed in the rule. FHFA is not proposing any change to the types of wrongdoing listed, which are currently set forth at § 1231.3(b)(1)(iv)(A) through (D) and would appear in the rule if amended as proposed at § 1231.3(e)(1)(i) through (iv). However, FHFA is proposing new § 1231.3(e)(1) to clarify that the due diligence required of a troubled institution, when assessing whether the affiliated party engaged in the listed types of wrongdoing, should be appropriate to the level and responsibilities of the affiliated party.
Proposed new § 1231.3(e)(2) would set forth the standard that a troubled institution must meet with regard to its assessment and understanding of the affiliated party's behavior, and would operate in conjunction with other proposed provisions that would permit a troubled institution to enter into an agreement to make a golden parachute payment, or to make such a payment without requesting FHFA review. Specifically, § 1231.3(e)(2) would provide that a troubled institution must be “reasonably assured” that the affiliated party has not engaged in the listed types of wrongdoing.
Proposed new § 1231.3(e)(3) would require notice to FHFA if a troubled institution intended to enter into a golden parachute payment agreement or make a payment that would be permitted by the rule without FHFA review but was not able to do so because it cannot meet the “reasonably assured” standard, and thereafter determines not to submit a request for review. Such notice is intended to ensure that FHFA is informed of concerns about wrongdoing that rise to a level where the troubled institution is not “reasonably assured” so that FHFA may follow up with appropriate supervisory action, and would be required to be provided to FHFA within 15 business days after the troubled institution determined that it could not meet the required standard.
Proposed new § 1231.3(f) would set forth factors the Director would consider when reviewing requests for
Proposed new § 1231.3(g) would permit, but not require, the regulated entities to increase the regulatory caps for permitted small value gifts and agreements and payments that do not exceed a
Section 1231.4 of the current rule is reserved.
FHFA is proposing conforming changes to § 1231.5 of the current rule, which addresses the effect of the appointment of a receiver for a regulated entity on any consent or approval provided pursuant to the rule.
Section 1231.6 of the current rule sets forth instructions for filing requests for consent, including where such requests must be filed and their content. Minor amendments to § 1231.6(a), on the scope of the filing instructions, would conform to substantive changes proposed to the rule. Likewise, § 1231.6(b), which addresses where to file a request, would be updated and amended to cover any required notice to FHFA.
Content requirements currently set forth in the rule at § 1231.6(c)(1) through (5) would be retained, but would be re-numbered (c)(2) through (6) because of the addition of a requirement that the request be in writing (this was previously implied by reference to a “letter request”; FHFA wishes to clarify that other forms of writing, such as email, would meet the requirement). Two new requirements would also be added to proposed § 1231.6(c)(7) and (8), to address specific types of agreements or payments (
A content-of-request requirement currently set forth at § 1231.6(c)(6), which addresses certification that a regulated entity must make when submitting a request, would be removed. A new requirement would be added at § 1231.6(c)(9), that the troubled institution requesting review of an agreement with an individual affiliated party or any payment state in the request either that the troubled institution meets the “reasonably assured” standard or, if it does not, the reasons why it does not and the further reasons why the troubled institution believes FHFA should nonetheless consent to the golden parachute payment or agreement.
Section 1231.6(e), which addresses FHFA's response to a request, will be relocated to § 1231.6(d), to follow the content-of-request requirements. New subsection (e) will address the content of the notice that must be provided to FHFA when a troubled institution is not “reasonably assured” that an affiliated party has not engaged in the rule's listed types of wrongdoing but elects not to submit a request for consent to a golden parachute payment or agreement to FHFA for review. These requirements are intended to ensure that the notice informs FHFA of the results of the troubled institution's due diligence and the basis for its concern that the affiliated party may have engaged in wrongdoing of a type listed in the rule in detail sufficient for an appropriate supervisory response, while not being overly burdensome on the troubled institution.
Section 1231.6 would also be amended to include a new subsection (f), to clarify that FHFA may waive any filing requirement set forth in the rule. FHFA recognizes that in some cases, for example, an oral request may be appropriate.
Finally, notice that FHFA may request additional information during the processing of a request would be re-located to new § 1231.3(g) and expanded to cover notices to FHFA, in addition to requests.
Section 1313(f) of the Safety and Soundness Act (12 U.S.C. 4513(f)), as amended by section 1201 of HERA, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. The Director may also consider any other differences that are deemed appropriate.
In preparing this proposed rule, the Director considered the differences between the Banks and the Enterprises as they relate to the above factors. The Director requests comments from the public about whether differences related to these factors should result in a revision of the proposed rule as it relates to the Banks.
The proposed rule would not contain any information collection requirement that would require the approval of the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501
The Regulatory Flexibility Act (5 U.S.C. 601
Golden parachutes, Government sponsored enterprises, Indemnification.
For the reasons stated in the Supplementary Information, under the authority of 12 U.S.C. 4511, 4513, 4518, 4518a, and 4526, FHFA proposes to amend part 1231 of Title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 12 U.S.C. 4511, 4513, 4518, 4518a, 4526, and 4617.
The purpose of this part is to implement section 1318(e) of the Safety and Soundness Act (12 U.S.C. 4518(e)) by setting forth the factors that the Director will take into consideration in determining whether to limit or prohibit golden parachute payments and agreements and by setting forth prohibited and permissible indemnification payments that regulated entities and the Office of Finance may make to affiliated parties.
The following definitions apply to the terms used in this part:
(1) With respect to a golden parachute payment:
(i) Any director, officer, or employee of a regulated entity or the Office of Finance; and
(ii) Any other person as determined by the Director (by regulation or on a case-by-case basis) who participates or participated in the conduct of the affairs of the regulated entity or the Office of Finance, provided that a member of a Federal Home Loan Bank shall not be deemed to have participated in the affairs of that Federal Home Loan Bank solely by virtue of being a shareholder of, and obtaining advances from, that Federal Home Loan Bank; and
(2) With respect to an indemnification payment:
(i) By the Office of Finance, any director, officer, or manager of the Office of Finance; and
(ii) By a regulated entity:
(A) Any director, officer, employee, or controlling stockholder of, or agent for, a regulated entity;
(B) Any shareholder, affiliate, consultant, or joint venture partner of a regulated entity, and any other person as determined by the Director (by regulation or on a case-by-case basis) that participates in the conduct of the affairs of a regulated entity, provided that a member of a Federal Home Loan Bank shall not be deemed to have participated in the affairs of that Federal Home Loan Bank solely by virtue of being a shareholder of, and obtaining advances from, that Federal Home Loan Bank;
(C) Any independent contractor for a regulated entity (including any attorney, appraiser, or accountant) if:
(
(
(D) Any not-for-profit corporation that receives its principal funding, on an ongoing basis, from any regulated entity.
(1) Whereby an affiliated party voluntarily elects to defer all or a portion of the reasonable compensation, wages, or fees paid for services rendered which otherwise would have been paid to such party at the time the services were rendered (including a plan that provides for the crediting of a reasonable investment return on such elective deferrals); or
(2) That is established as a nonqualified deferred compensation or supplemental retirement plan, other than an elective deferral plan described in paragraph (1) of this definition:
(i) Primarily for the purpose of providing benefits for certain affiliated parties in excess of the limitations on contributions and benefits imposed by sections 401(a)(17), 402(g), 415, or any other applicable provision of the Internal Revenue Code of 1986 (26 U.S.C. 401(a)(17), 402(g), 415); or
(ii) Primarily for the purpose of providing supplemental retirement benefits or other deferred compensation for a select group of directors, management, or highly compensated employees; and
(3) In the case of any plans as described in paragraphs (1) and (2) of this definition, the following requirements shall apply:
(i) The affiliated party has a vested right, as defined under the applicable plan document, at the time of termination of employment to payments under such plan;
(ii) Benefits under such plan are accrued each period only for current or prior service rendered to the employer (except that an allowance may be made for service with a predecessor employer);
(iii) Any payment made pursuant to such plan is not based on any discretionary acceleration of vesting or accrual of benefits which occurs at any time later than one year prior to the regulated entity or the Office of Finance becoming a troubled institution;
(iv) The regulated entity or Office of Finance has previously recognized compensation expense and accrued a liability for the benefit payments according to GAAP, or segregated or otherwise set aside assets in a trust which may only be used to pay plan benefits and related expenses, except that the assets of such trust may be available to satisfy claims of the troubled institution's creditors in the case of insolvency; and
(v) Payments pursuant to such plans shall not be in excess of the accrued liability computed in accordance with GAAP.
(1) Any direct or indirect transfer of any funds or any asset;
(2) Any forgiveness of any debt or other obligation;
(3) The conferring of any benefit, including but not limited to stock options and stock appreciation rights; and
(4) Any segregation of any funds or assets, the establishment or funding of any trust or the purchase of or arrangement for any letter of credit or other instrument, for the purpose of
(i) The determination, after such date, of the liability for the payment of such amount; or
(ii) The liquidation, after such date, of the amount of such payment.
(1) Insolvent;
(2) In conservatorship or receivership;
(3) Subject to a cease-and-desist order or written agreement issued by FHFA that requires action to improve its financial condition or is subject to a proceeding initiated by the Director, which contemplates the issuance of an order that requires action to improve its financial condition, unless otherwise informed in writing by FHFA;
(4) Assigned a composite rating of 4 or 5 by FHFA under its CAMELSO examination rating system as it may be revised from time to time;
(5) Informed in writing by the Director that it is a troubled institution for purposes of the requirements of this part on the basis of the most recent report of examination or other information available to FHFA, on account of its financial condition, risk profile, or management deficiencies; or
(6) In contemplation of the occurrence of an event described in paragraphs (1) through (5) of this definition. A regulated entity or the Office of Finance is subject to a rebuttable presumption that it is in contemplation of the occurrence of such an event during the 90 day period preceding such occurrence.
(a)
(b)
(1) Any pension or retirement plan that is qualified (or is intended within a reasonable period of time to be qualified) under section 401 of the Internal Revenue Code of 1986 (26 U.S.C. 401);
(2) Any “employee welfare benefit plan” as that term is defined in section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. 1002(1)), other than:
(i) Any deferred compensation plan or arrangement; and
(ii) Any severance pay plan or agreement;
(3) Any benefit plan that:
(i) Is a “nondiscriminatory employee plan or program” for the purposes of section 280G of the Internal Revenue Code of 1986 (26 U.S.C. 280G) and applicable regulations; or
(ii) Has been submitted to the Director for review in accordance with this part and that the Director has determined to be nondiscriminatory, unless such a plan is otherwise specifically addressed by this part;
(4) Any “bona fide deferred compensation plan or arrangement” as defined in this part provided that the plan:
(i) Was in effect for, and not materially amended to increase benefits payable thereunder (except for changes required by law) within, the one-year period prior to the regulated entity or Office of Finance becoming a troubled institution; or
(ii) Has been determined to be permissible by the Director;
(5) Any payment made by reason of:
(i) Death; or
(ii) Termination caused by disability of the affiliated party; and
(6) Any severance or similar payment that is required to be made pursuant to a state statute that is applicable to all employers within the appropriate jurisdiction (with the exception of employers that are exempt due to their small number of employees or other similar criteria).
(c)
(1) With any affiliated party where the agreement is directed or established by the Director exercising authority conferred by 12 U.S.C. 4617.
(2) With an affiliated party who is not an executive officer where the agreement:
(i) Is an individually negotiated settlement agreement, and the conditions of paragraph (e)(2) of this section are met; or
(ii) Provides for a golden parachute payment that, when aggregated with all other golden parachute payments to the affiliated party, does not exceed $2500 (subject to any adjustment for inflation pursuant to paragraph (g) of this section).
(d)
(1) To any affiliated party where:
(i) The payment is required to be made pursuant to a permitted individually negotiated settlement agreement; or
(ii) The Director previously consented to such payment in a written notice to the troubled institution (which may be included in the Director's consent to the agreement), the payment is made in accordance with a permitted agreement, and the troubled institution has met any conditions established by the Director for making the payment.
(2) To an executive officer where the payment recognizes a significant life event and does not exceed $500 in value (subject to any adjustment for inflation pursuant to paragraph (g) of this section).
(3) Other payments to an affiliated party who is not an executive officer. A troubled institution may make a golden parachute payment to an affiliated party who is not an executive officer without the Director's consent in accordance with this part, where:
(i) The payment is made in accordance with a permitted agreement and the conditions of paragraph (e)(2) of this section are met; or
(ii) The payment when aggregated with other golden parachute payments to the affiliated party does not exceed $2500 (subject to any adjustment for inflation pursuant to paragraph (g) of this section).
(e)
(i) Has committed any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the regulated entity or Office of Finance that is likely to have a material adverse effect on the regulated entity or the Office of Finance;
(ii) Is substantially responsible for the regulated entity or the Office of Finance being a troubled institution;
(iii) Has materially violated any applicable Federal or State law or regulation that has had or is likely to have a material effect on the regulated entity or Office of Finance; or
(iv) Has violated or conspired to violate sections 215, 657, 1006, 1014, or 1344 of title 18 of the United States Code, or section 1341 or 1343 of such title affecting a “financial institution” as the term is defined in title 18 of the United States Code (18 U.S.C. 20).
(2)
(3)
(f)
(1) Whether, and to what degree, the affiliated party was in a position of managerial or fiduciary responsibility;
(2) The length of time the affiliated party was affiliated with the regulated entity or the Office of Finance, and the degree to which the proposed payment represents a reasonable payment for services rendered over the period of affiliation;
(3) Whether the golden parachute payment would be made pursuant to an employee benefit plan that is usual and customary;
(4) Whether the golden parachute payment or agreement is excessive or abusive or threatens the financial condition of the troubled institution; and
(5) Any other factor the Director determines relevant to the facts and circumstances surrounding the golden parachute payment or agreement, including any fraudulent act or omission, breach of fiduciary duty, violation of law, rule, regulation, order, or written agreement, and the level of willful misconduct, breach of fiduciary duty, and malfeasance on the part of the affiliated party.
(g)
The provisions of this part, or any consent or approval granted under the provisions of this part by FHFA, shall not in any way bind any receiver of a regulated entity. Any consent or approval granted under the provisions of this part by FHFA shall not in any way obligate FHFA as receiver to pay any claim or obligation pursuant to any golden parachute, severance, indemnification, or other agreement. Nothing in this part may be construed to permit the payment of salary or any liability or legal expense of an affiliated party contrary to section 1318(e)(3) of the Safety and Soundness Act (12 U.S.C. 4518(e)(3)).
(a)
(b)
(c)
(1) Be in writing;
(2) State the reasons why the troubled institution seeks to enter into the agreement or make the payment;
(3) Identify the affiliated party or describe of the class or group of affiliated parties who would receive or be eligible to receive payment;
(4) Include a copy of any agreement, including any plan document, contract, other agreement or policy regarding the subject matter of the request;
(5) State the cost of the proposed payment or payments, and the impact on the capital and earnings of the troubled institution;
(6) State the reasons why consent to the agreement or payment, or to both the agreement and payment, should be granted;
(7) For any plan that the troubled institution believes is a nondiscriminatory benefit plan, other than a plan covered by § 1231.3(b)(3)(i), state the basis for the conclusion that the plan is nondiscriminatory;
(8) For any bona fide deferred compensation plan or arrangement, state whether the plan would be exempt under this part but for the fact that it was either established or materially amended to increase benefits payable thereunder (except for changes required by law) within the one-year period prior to the regulated entity or Office of Finance becoming a troubled institution;
(9) For any agreement with an individual affiliated party, or for any payment, either:
(i) State that the troubled institution is reasonably assured that the affiliated party has not engaged in any of the actions listed in § 1231.3(e)(1)(i) through (iv), or,
(ii) If the troubled institution is not reasonably assured that the affiliated party has not engaged in any of the actions listed in § 1231.3(e)(1)(i) through (iv) but nonetheless wishes to request consent, describe the results of its due diligence and, in light of those results, the reason why consent to the agreement or payment should be granted.
(d)
(e)
(1) Be in writing;
(2) Identify the affiliated party who would receive or be eligible to receive payment;
(3) Include a copy of any agreement or policy regarding the subject matter of the request; and
(4) State each reason why the troubled institution cannot meet the standard set forth in § 1231.3(e)(2).
(f)
(g)
Wage and Hour Division, Department of Labor.
Notification of public listening sessions.
The Department of Labor will conduct public listening sessions to gather views on white collar exemption regulations. The Fair Labor Standards Act (FLSA) generally requires covered employers to pay their employees at least the federal minimum wage (currently $7.25 an hour) for all hours worked, and overtime premium pay of not less than one and one-half times the employee's regular rate of pay for any hours worked over 40 in a workweek. The FLSA exempts from both minimum wage and overtime protection “any employee employed in a bona fide executive, administrative, or professional capacity” and delegates to the Secretary of Labor the power to define and delimit these terms through regulation.
The dates, locations, and times for the public listening sessions are listed below:
Members of the public may attend these listening sessions in person up to the seating capacity of the room. The Department will not attempt to achieve a consensus view in these listening sessions, but rather is interested in hearing the views and ideas of participants.
To obtain specific location details and register to attend, please visit this link:
Stephen Davis, Listening Session Coordinator, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this notice may be obtained in alternative formats (Large Print, Braille, Audio Tape, or Disc), upon request, by calling (202) 693-0023 (not a toll-free number). TTY/TTD callers may dial toll-free (877) 889-5627 to obtain information or request materials in alternative formats.
On July 26, 2017, the Department of Labor published a Request for Information (RFI), Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.
1. What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply? Why?
2. What benefits and costs to employees and employers might accompany an increased salary level? How would an increased salary level affect real wages (
3. What is the best methodology to determine an updated salary level? Should the update derive from wage growth, cost-of-living increases, actual wages paid to employees, or some other measure?
4. Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees? If so, how should these updates be made? How frequently should updates occur? What benefits, if any, could result from more frequent updates?
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Indiana State Implementation Plan (SIP) to meet the base year emissions inventory, reasonable further progress (RFP), RFP contingency measure, nonattainment new source review (nonattainment NSR), volatile organic compound (VOC) reasonably available control technology (RACT), and motor vehicle inspection and maintenance (I/M) requirements of the Clean Air Act (CAA) for the Indiana portion of the Chicago-Naperville, Illinois-Indiana-Wisconsin area (Chicago area) for the 2008 ozone national ambient air quality standard (NAAQS or standard). EPA is also proposing to approve the 2017 transportation conformity motor vehicle emissions budgets (MVEBs) for the Indiana portion of the Chicago area for the 2008 ozone NAAQS. EPA is proposing to approve the state's submission as a SIP revision pursuant to section 110 and part D of the CAA and EPA's regulations because it satisfies the emission inventory, RFP, RFP contingency measure, nonattainment NSR, VOC RACT, I/M, and transportation conformity requirements for areas classified as moderate
Comments must be received on or before September 27, 2018.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0147, at
Kathleen D'Agostino, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767,
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm).
Areas that EPA designates nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and also to the ozone-specific planning requirements of CAA section 182. Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. For marginal areas, a state is required to submit a baseline emissions inventory, adopt provisions into the SIP requiring emissions statements from stationary sources, and implement a nonattainment NSR program for the relevant ozone NAAQS.
On June 11, 2012,
In addition, effective March 6, 2017, EPA found that 15 states and the District of Columbia failed to submit SIP revisions in a timely manner to satisfy certain nonattainment plan requirements for the 2008 ozone NAAQS.
Indiana submitted a SIP revision request on February 28, 2017, and submitted supplemental information on January 9, 2018, to address the moderate area requirements for the Indiana portion of the Chicago area for the 2008 ozone NAAQS. The submission contained a number of nonattainment plan elements, including a revised 2011 base year emissions inventory for VOC and oxides of nitrogen (NO
CAA sections 172(c)(3) and 182(a)(1), 42 U.S.C. 7502(c)(3) and 7511a(a)(1), require states to develop and submit, as SIP revisions, comprehensive, accurate, and complete emissions inventories for all areas designated as nonattainment for the ozone NAAQS. An emissions inventory for ozone is an estimation of actual emissions of VOC and NO
In the original 2011 base year emissions inventory approved by EPA, Indiana derived 2011 onroad mobile emissions by back-casting emissions estimates generated by the MOVES2014 model for 2015 and 2020. The revised onroad emissions estimates were generated by running the MOVES2014 model for 2011. This is a more accurate method for estimating 2011 onroad emissions. Thus, EPA is proposing to approve the 2011 base year emissions inventory the state submitted with the RFP plan as a revision to the Indiana SIP.
The CAA requires that states with areas designated as nonattainment for ozone achieve RFP toward attainment of the ozone NAAQS. CAA section 172(c)(2) contains a general requirement that nonattainment plans must provide for emissions reductions that meet RFP. For areas classified moderate and above, section 182(b)(1) imposes a more specific RFP requirement that a state had to meet through a 15% reduction in VOC emissions from the baseline anthropogenic emissions within 6 years after November 15, 1990. The state must meet the 15% requirement by the end of the 6-year period, regardless of when the nonattainment area attains the NAAQS. As with other nonattainment plan requirements for more recent iterations of the ozone NAAQS, EPA has promulgated regulations and guidance to interpret the statutory requirements of the CAA.
EPA's final rule to implement the 2008 ozone NAAQS (SIP Requirements Rule),
EPA's SIP Requirements Rule indicates the base year for the 2008 ozone NAAQS, for which areas were designated nonattainment effective July 20, 2012, can be 2011 or a different year of the states choosing. However, states selecting a pre-2011 alternate baseline year must achieve 3% emission reductions each year after the initial 6-year period has concluded up to the beginning of the attainment year. For a multi-state area, states must agree on the same base year. Wisconsin, Illinois, and Indiana have selected the EPA-recommended base year of 2011.
States may not take credit for VOC or NO
Except as specifically provided in section 182(b)(1)(D) of the CAA, all state control measures approved into the SIP or Federal measures that provide emissions reductions that occur after the baseline emissions inventory year are creditable for purposes of the RFP requirements, provided that the reductions meet the standard requirements for creditability which include being enforceable, quantifiable, permanent, and surplus in terms of not having previously been counted toward RFP.
States must also include contingency measures in their nonattainment plans. The contingency measures required for areas classified as moderate and above under CAA sections 172(c)(9) and 182(c)(9) must provide for the implementation of specific measures if the area fails to attain or to meet any applicable RFP milestone. The state must submit these measures for approval by EPA into the SIP as adopted measures that would take effect without further rulemaking action by the state or the EPA upon a determination that an area failed to attain or to meet the applicable milestone. Per EPA guidance for purposes of the ozone NAAQS, contingency measures should represent one year's worth of RFP progress, amounting to reductions of at least 3% of the baseline emissions inventory for the nonattainment area.
Regarding the contingency measures, EPA's prior guidance for purposes of the ozone NAAQS specifies that some portion of the contingency measures must include VOC reductions. This previous limitation is no longer necessary in all areas. In particular, EPA has concluded that states with nonattainment areas classified as moderate and above that have already completed the initial 15% VOC reduction required by CAA section 182(b)(1)(A)(i), can meet the contingency measures requirement based entirely on NO
To demonstrate that the Indiana portion of the Chicago area has achieved 15% RFP over the 6-year attainment planning period, Indiana is using a 2011 base year inventory and a 2017 RFP inventory. To develop the 2017 inventory, Indiana calculated on-road emissions using EPA's MOVES2014 model and non-road emissions using EPA's National Mobile Inventory Model (NMIM). The MOVES model for the on-road sector and NMIM for the non-road sector incorporate a number of Federal emissions control programs into its projections. These emissions reduction measures are permanent and enforceable and are implemented in the nonattainment area. The MOVES and NMIM models assumed increases in vehicle or equipment population and usage while projecting decreases in ozone precursor emissions from 2011 to 2017. The estimated emissions reductions are therefore not due to reductions in source activity, but to the implementation of control measures. Tables 2 and 3 list the Federal permanent and enforceable control programs modeled by the MOVES model for the on-road sector and NMIM for the non-road sector, respectively.
Indiana used the 2017 EPA-projected National Emissions Inventory (NEI) to obtain estimated point and area source emissions. While EPA projected point and area source emissions to decrease between 2011 and 2017, Indiana did not document the control programs and associated reductions in emissions for these sectors or determine to what extent any reduction may be attributed to reductions in source activity. Therefore, Indiana took no credit for emissions reductions from these source sectors in its RFP or RFP contingency measures calculations. Table 4 shows Indiana's 2017 projected emissions inventory. Table 5 shows Indiana's 2017 RFP and RFP contingency emissions inventory, which assumes no reduction in emissions between 2011 and 2017 from the point and area source sectors.
Indiana submitted documentation showing that emission reductions in the Indiana portion of the Chicago area met the 15% RFP and 3% RFP contingency measures requirements entirely through Federal permanent and enforceable control measures within the mobile source sectors. Table 6 shows the calculations Indiana used to determine that the mobile source emissions reductions meet the RFP and RFP contingency measures requirements.
Indiana has demonstrated that emission reductions attributable to permanent and enforceable measures will result in at least an 18% reduction (15% for RFP and 3% for contingency measure requirements) in the Indiana portion of the Chicago area over the 6-year attainment planning time period, starting with the 2011 base year. Thus, EPA is proposing to approve Indiana's 15% RFP and 3% contingency measure plan for the Indiana portion of the Chicago area for the 2008 ozone standard.
EPA notes that the control measures Indiana is relying upon to meet the RFP contingency measures requirement are already implemented. Contingency measures may include Federal measures and local measures already scheduled for implementation, as long as the resulting emission reductions are in excess of those needed for attainment or to meet other nonattainment plan requirements. EPA interprets the CAA not to preclude a state from implementing such measures before they are triggered by a failure to meet RFP or failure to attain. For more information on contingency measures, see the General Preamble (57 FR 13510) and the 2008 Ozone Implementation Rule (80 FR 12264, 12285).
The appropriateness of relying on already-implemented control measures to meet the contingency measures requirement has been addressed in two Federal circuit court decisions. See Louisiana Environmental Action Network (LEAN) v. EPA, 382 F.3d 575, 586 (5th Cir. 2004), Bahr v. United States EPA, 836 F.3d 1218 (9th Cir. 2016),
Because there is a split in the Federal circuits on this issue, EPA expects that states located in circuits other than the Ninth may elect to rely on EPA's longstanding interpretation of section 172(c)(9) allowing early triggered measures to be approved as contingency measures, in appropriate circumstances. EPA's revised Regional Consistency regulations pertaining to SIP provisions authorize the Agency to follow this interpretation of section 172(c)(9) in circuits other than the Ninth.
As shown above, the emissions reductions projected through 2018 are sufficient to meet the requirements for RFP contingency measures, consistent with EPA's interpretation of the CAA to allow approval of already implemented control measures as contingency measures in states outside the Ninth Circuit. Therefore, we propose approval of the contingency measures submitted by the state in the nonattainment plan for the Wisconsin portion of the Chicago area.
Under section 176(c) of the CAA, new transportation plans, programs, or projects that receive Federal funding or support, such as the construction of new highways, must “conform” to (
Under the CAA, states are required to submit, at various times, control strategy plans for nonattainment areas and maintenance plans for areas seeking redesignations to attainment of the ozone standard and maintenance areas.
When reviewing control strategy or maintenance plan submissions, EPA must affirmatively find that the MVEBs contained therein are adequate for use in determining transportation conformity. Once EPA affirmatively finds that the submitted MVEBs are adequate for transportation purposes, the MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.
EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process
Indiana's RFP and contingency measure plan includes VOC and NO
As shown in Table 7, the 2017 MVEBs exceed the estimated 2017 on-road sector emissions. In an effort to accommodate future variations in travel demand models and vehicle miles traveled forecast, Indiana allocated a portion of the surplus RFP and contingency plan reductions to the mobile sector. Indiana has demonstrated that the Indiana portion of the Chicago area can meet the 15% RFP and 3% RFP contingency measure requirements of the 2008 ozone NAAQS with mobile source emissions of 6.85 tpsd of VOC and 16.68 tpsd of NO
Sections 172(c)(1) and 182(b)(2) of the CAA require states to implement RACT in ozone nonattainment areas classified as moderate (and higher). Specifically, these areas are required to implement RACT for all major VOC and NO
EPA's SIP Requirements Rule for the 2008 ozone NAAQS indicates that states may meet RACT through the establishment of new or more stringent requirements that meet RACT control levels, through a certification that previously adopted RACT controls in their SIPs approved by EPA for a prior ozone NAAQS also represent adequate RACT control levels for attainment of the 2008 ozone NAAQS, or with a combination of these two approaches. In addition, a state must submit a negative declaration in instances where there are no CTG sources.
In its February 28, 2017 submission, Indiana certified that the existing VOC rules contained in 326 Indiana Administrative Code (IAC) 8 satisfy the VOC RACT requirements of Section 182(b)(2) of the CAA and have been approved into the SIP by EPA. Indiana also certified that the negative declaration approved into the SIP by EPA for the fiberglass boat manufacturing materials CTG is still current.
EPA has reviewed Indiana's certification that it has adopted VOC control regulations for stationary sources that constitute RACT, and determined that the set of regulations cited by the state and negative declaration for fiberglass boat manufacturing constitute RACT for purposes of the 2008 ozone NAAQS in this nonattainment area. Therefore, EPA is proposing to approve the state's submission as meeting the VOC RACT requirements for the Indiana portion of the Chicago area for the 2008 ozone NAAQS.
The requirement to adopt a motor vehicle I/M program for moderate ozone nonattainment areas is described in CAA section 182(b)(4), and the regulations for basic and enhanced I/M programs are found at 40 CFR part 51, subpart S. Under these cumulative requirements, states with areas classified as moderate nonattainment for ozone with 1990 Census-defined urbanized populations of 200,000 or more are required to adopt basic I/M programs, while serious and higher classified ozone nonattainment areas outside of the northeast ozone transport region with 1980 Census-defined urbanized populations of 200,000 or more are required to adopt enhanced I/M programs. The Chicago area meets the criteria for mandatory I/M under the 2008 ozone NAAQS.
The Indiana portion of the Chicago area was required to adopt an enhanced I/M program under the 1-hour ozone NAAQS. EPA approved Indiana's enhanced I/M program on March 19, 1996 (61 FR 11142). Indiana's I/M program is authorized by state statute
CAA sections 110(a)(2) and 172(c)(5) require permits for the construction of new or modified major stationary sources anywhere in a nonattainment area in accordance with CAA section 173. CAA section 182 contains additional requirements applicable to ozone nonattainment areas. Nonattainment NSR requirements are codified at 40 CFR 51.165.
On March 6, 2017, EPA found that Indiana failed to submit marginal ozone nonattainment NSR rules for the Indiana portions of the Chicago area and Cincinnati
Indiana has certified that specific sections of its nonattainment NSR rules at 326 IAC 2-3 continue to meet the nonattainment NSR program requirements for ozone nonattainment areas under the 2008 ozone NAAQS. Table 9 provides the sections of Indiana's nonattainment NSR rule corresponding to the relevant requirements at 40 CFR 51.165. 326 IAC 2-3 was originally approved into the SIP effective December 6, 1994,
For the following reasons, we are proposing to approve Indiana's certification that 326 IAC 2-3 is consistent with 40 CFR 51.165 and meets the requirements of CAA sections 172(c)(5), 173, 110(a)(2), 182(a)(4), and 182(b)(5) under the 2008 ozone standard for the Indiana portion of the Chicago area ozone nonattainment area. Approval of Indiana's nonattainment NSR certification would address the deficiency that was the basis for the March 6, 2017 finding. Therefore, final approval of this SIP revision will permanently stop the sanctions and FIP clocks triggered by EPA's February 3, 2017 finding that Indiana failed to submit a marginal ozone nonattainment NSR plan.
In its February 28, 2017 submission, Indiana states that its nonattainment NSR rules do not include extreme ozone nonattainment requirements because Indiana has never had an extreme ozone nonattainment area. We concur with the statement that Indiana has never had an extreme ozone nonattainment area. Further, the finding of failure to submit applies to marginal ozone nonattainment NSR requirements, not extreme. Finally, the Chicago area ozone nonattainment area was reclassified to a moderate ozone nonattainment area which requires moderate, not extreme, ozone nonattainment NSR requirements. For these reasons, Indiana's nonattainment NSR program does not require extreme ozone nonattainment requirements at this time. The following extreme ozone nonattainment NSR requirements are not included as part of Indiana's nonattainment NSR rules: 40 CFR 51.165(a)(1)(iv)(A)(1)(iv), 40 CFR 51.165(a)(1)(iv)(A)(2)(vi), 40 CFR 51.165(a)(1)(v)(F), 40 CFR 51.165(a)(1)(x)(E), and 40 CFR 51.165(a)(9)(ii)(E).
Indiana's submission does not address ozone transport region requirements. However, no portion of Indiana is currently part of an ozone transport region; therefore, ozone transport region nonattainment NSR requirements do not apply in Indiana. The following ozone transport region nonattainment NSR requirements are not included as part of Indiana's nonattainment NSR rules: 40 CFR 51.165(a)(1)(iv)(A)(1)(ii), 40 CFR 51.165(a)(1)(iv)(A)(2)(ii), 40 CFR 51.165(a)(1)(iv)(A)(2)(ii), 40 CFR 51.165(a)(1)(v)(E), 40 CFR 51.165(a)(1)(x)(C), 40 CFR 51.165(a)(8), and 40 CFR 51.165(a)(9)(iii).
Extreme ozone nonattainment area and ozone transport region nonattainment NSR requirements will not be addressed further in this analysis of Indiana's ozone nonattainment NSR program certification because they do not apply to Indiana at this time. If, in the future, Indiana has an extreme ozone nonattainment area or becomes part of an ozone transport region, then
40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2) defines the major source thresholds for the ozone precursors VOC and NO
326 IAC 2-3-1(z)(1) generally defines a major stationary source as a stationary source that emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant, with an exception for ozone provided in 326 IAC 2-3-1(z)(2). 326 IAC 2-3-1(z)(2) defines a major stationary source for ozone nonattainment areas, specifying that the major source threshold is 100 tons per year or more of VOC or NO
40 CFR 51.165(a)(1)(iv)(A)(3) requires any physical change that would constitute a major stationary source by itself to be treated as a major stationary source if the stationary source does not qualify as a major stationary source. 326 IAC 2-3-1(z)(5) requires the same and remains consistent with 40 CFR 51.165(a)(1)(iv)(A)(3).
40 CFR 51.165(a)(1)(v)(E) requires significant net emissions increases of NO
40 CFR 51.165(a)(1)(x)(A) defines the significant emission rate for ozone as 40 tons per year of VOC or NO
40 CFR 51.165(a)(1)(x)(B) and (C) define the significant emission rate for ozone in serious or severe nonattainment areas as 25 tons per year of VOC or NO
40 CFR 51.165(a)(3)(ii)(C)(1) and (2) are the requirements that make emission reductions achieved by shutting down an existing emission unit or curtailing production or operating hours creditable. Such reductions must be surplus, permanent, quantifiable, and federally enforceable. Shutdowns or curtailments must have occurred after the last day of the base year for the SIP planning process. Reviewing authorities may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes emissions from the previously shutdown or curtailed emissions units, but in no event may credit be granted for shutdowns that occurred prior to August 7, 1977. Shutdown or curtailment reductions occurring before the last day of the base year for the SIP planning process may also be generally credited if the shutdown or curtailment occurred on or after the date the construction permit application is filed or if the applicant can establish that the proposed new emissions unit is a replacement for the shutdown or curtailed emission unit and the emission reductions that result are surplus, permanent, quantifiable, and federally enforceable. 326 IAC 2-3-3(b)(5) remains consistent with 40 CFR 51.165(a)(3)(ii)(C)(1)(i) and 40 CFR 51.165(a)(3)(ii)(C)(2)(ii).
326 IAC 2-3-3(b)(5)(A) credits emission reductions from emission unit shutdowns and curtailments if they occurred on or after the date of the most recent emissions inventory or attainment demonstration. Prior shutdown or curtailment emission reductions may be considered to have occurred after the date of the most recent emissions inventory if the inventory explicitly includes the emissions from the previously shutdown or curtailed emissions units. 326 IAC 2-3-3(b)(5)(A) remains consistent with 40 CFR 51.165(a)(3)(ii)(C)(1)(ii).
326 IAC 2-3-3(b)(5)(B) allows reductions to be credited absent an approved attainment demonstration if the shutdown or curtailment occurred on or after the date the new source permit application is filed or if the applicant can establish that the proposed new source is a replacement for the shutdown or curtailed emissions unit, with the exception of shutdowns occurring prior to August 7, 1977. 326 IAC 2-3-3(b)(5)(B) remains consistent with 40 CFR 51.165(a)(3)(ii)(C)(2)(ii).
40 CFR 51.165(a)(8) requires that all requirements applicable to major stationary sources and major modifications of VOCs shall apply to NO
326 IAC 2-3-1(y) defines major modification. As discussed above, 326 IAC 2-3-1(y)(1) is consistent with 40 CFR 51.165(a)(8) since it considers increases in both VOC and NO
326 IAC 2-3-2(a) states that ozone nonattainment NSR applies to new major stationary sources or major modifications in an area designated as nonattainment for which the stationary source or modification is major. As previously discussed, 326 IAC 2-3-1(z)(1), (2), and (5) and 326 IAC 2-3-1(y) define major source and major
326 IAC 2-3-2(b) applies to modifications of VOC and NO
40 CFR 51.165(a)(9)(ii)(A)-(D) requires the VOC offset ratio to be 1.1:1 in marginal ozone nonattainment areas, 1.15:1 in moderate ozone nonattainment areas, 1.2:1 in serious ozone nonattainment areas, and 1.3:1 in severe ozone nonattainment areas. 326 IAC 2-3-3(a)(5)(B) requires offset ratios for both VOC and NO
40 CFR 51.165(a)(9)(iv) requires, for ozone nonattainment areas subject to CAA Title I, Part D, Subpart 1 but not Subpart 2, an offset ratio of at least 1:1. All of the current ozone nonattainment areas in Indiana were designated pursuant to CAA Title I, Part D, Subpart 2, so this requirement does not apply to Indiana at this time.
40 CFR 51.165(a)(12) requires anti-Backsliding requirements at 40 CFR 51.1105 to apply in any area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015. Indiana certified that there were no areas designated as nonattainment for the 1997 8-hour ozone NAAQS on April 6, 2015.
40 CFR 81.315 provides the attainment status designations for Indiana. For the 1997 8-hour ozone NAAQS, 40 CFR 81.315 codifies the fact that all areas in Indiana attained the 1997 8-hour ozone NAAQS prior to April 6, 2015. Table 10 includes relevant information about the 1997 8-hour ozone NAAQS, including the date that areas previously designated as nonattainment under the 1997 8-hour ozone NAAQS were redesignated to attainment. All other areas in Indiana that are not listed in the table were designated unclassifiable/attainment for the 1997 8-hour ozone standard on June 15, 2004.
Since all areas in Indiana were designated as attainment or unclassifiable/attainment on April 6, 2015 for the 1997 8-hour ozone NAAQS, the anti-backsliding requirements of 40 CFR 51.165(a)(12) do not apply for the 2008 8-hour ozone NAAQS.
Indiana's nonattainment NSR rules, codified at 326 IAC 2-3, remain consistent with Federal marginal and moderate ozone nonattainment NSR rules codified at 40 CFR 51.165. Therefore, EPA is proposing to approve Indiana's certification that its nonattainment NSR rules at 326 IAC 2-3 meet the requirements of 40 CFR 51.165 and CAA sections 172(c)(5), 173, 110(a)(2), 182(a)(4), and 182(b)(5) for the Indiana portion of the Chicago area ozone nonattainment area. EPA's final approval of Indiana's nonattainment NSR certification will permanently stop the sanctions and FIP clocks triggered by EPA's February 3, 2017 finding that Indiana failed to submit a marginal ozone nonattainment NSR plan.
EPA is proposing to approve revisions to Indiana's SIP pursuant to section 110 and part D of the CAA and EPA's regulations because Indiana's February 28, 2017, nonattainment plan submission and January 1, 2018, supplement satisfy the emissions inventory, RFP, RFP contingency measures, transportation conformity, VOC RACT, I/M, and nonattainment NSR requirements of the CAA for the Indiana portion of the Chicago area for the 2008 ozone NAAQS. Final approval of Indiana's SIP as meeting the nonattainment NSR requirements of the CAA for the 2008 ozone NAAQS will permanently stop the sanctions and FIP clocks triggered by EPA's February 3, 2017 finding that Indiana failed to submit a marginal ozone nonattainment NSR plan.
Under the CAA the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve two state implementation plan (SIP) revisions submitted by the State of West Virginia. The revisions pertain to a West Virginia regulation that established the nitrogen oxides (NO
Written comments must be received on or before September 27, 2018.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017- 0633 at
Marilyn Powers, (215) 814-2308, or by email at
On July 13, 2016, the State of West Virginia, through the West Virginia Department of Environmental Protection (WVDEP), submitted a revised version of West Virginia Regulation 45CSR40—
On October 27, 1998 (63 FR 57356), EPA finalized the “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone”—commonly called the NO
On May 12, 2005, 70 FR 25162, EPA promulgated CAIR to address transported emissions that significantly contributed to downwind states' nonattainment and maintenance of the 1997 ozone and fine particulate matter (PM
The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008,
On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM
Starting in January 2015, the CSAPR FIP trading programs for annual NO
On October 26, 2016 (81 FR 74504), EPA finalized the CSAPR Update Rule to address interstate transport of ozone pollution with respect to the 2008 ozone NAAQS, and issued FIPs that updated the ozone season NO
Regulation 45CSR40 was originally adopted by WVDEP to implement the ozone season trading program under CAIR, which included as CAIR trading sources EGUs and the non-EGUs that had formerly been trading under the NO
The July 13, 2016 West Virginia SIP submittal includes a modified 45CSR40 which removed the CAIR ozone season trading program provisions, retained the definitions, applicability, and other provisions responding to the NO
Former Regulation 45CSR40 (State effective date of May 1, 2008), which was approved into the West Virginia SIP, was originally adopted by WVDEP to implement the ozone season trading program under CAIR and to address NO
New sections 4 through 8 of 45CSR40 (effective July 1, 2016) established new ozone season NO
Section 4—
Section 5—
Section 6—
Section 7—
Section 8—
The July 13, 2016 SIP revision submittal did not include the demonstration required under section 8.2 of 45CSR40. On October 11, 2017, WVDEP submitted a supplemental SIP revision consisting of such demonstration showing that total ozone season emissions from large non-EGUs in the State subject to the NO
The October 11, 2017 West Virginia supplemental SIP submission of an initial demonstration shows that total ozone season NO
The previously SIP-approved section 90 of 45CSR40 (effective 200x) entitled
Similarly, section 100 of 45CSR40 entitled
The changes West Virginia has made to 45CSR40 are approvable under CAA section 110 because—(1) CAIR has been replaced by CSAPR and thus removal of CAIR provisions is appropriate; (2) the applicability provisions at section 4.1 of 45CSR40 cover all existing and new NO
On February 8, 2018, WVDEP provided a letter clarifying a provision in the July 13, 2016 SIP submittal. The letter is available in the docket for this rulemaking and is available on
EPA's review of this material indicates the July 13, 2016 SIP revision submittal as supplemented on October 11, 2017 and clarified on February 8, 2018 is approvable. The 2016 SIP submission as amended by the 2017 submission and clarified on February 8, 2018, requests EPA include the amended version of 45CSR40 in the West Virginia SIP. Amended regulation 45CSR40 removes the moot provisions that implemented the CAIR NO
In this document, EPA is proposing to include regulatory text in a final EPA rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the revisions to West Virginia regulation 45CSR40—Control of Ozone Season Nitrogen Oxides Emissions. EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the 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 burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.
Comments regarding this information collection received by September 27, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW, Washington, DC 20503. Commentors are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the 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 burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques and other forms of information technology.
Comments regarding this information collection received by September 27, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20503. Commentors are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the revision of a currently approved information collection, Pesticide-Use Proposal.
Comments must be received in writing on or before October 29, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to: Stephen A. Covell, Mail Stop 1110, USDA Forest Service, Forest Health Protection, 1400 Independence Avenue SW, Washington, DC 20250. Comments also may be submitted by email to
Mr. Stephen A. Covell, State and Private Forestry, Forest Health Protection, telephone 703-605-5342, email
The Forest Service proposes to use the PUP form to collect pesticide project information from those outside entities to facilitate authorization of selected activities. Completion of the PUP form includes identification of pests to be controlled, pesticide to be applied, and other regulatory compliance information such as use of certified applicators. Because diverse pesticide-use projects are designed for local conditions, it is appropriate for the PUP form to be used to ensure that essential details are uniformly assembled for review.
Proposals will be evaluated by Forest Service pesticide use coordinators and other administrative personnel to safeguard human health and ecological protection consistent with Forest Service land use management programs. Form and instructions will be posted on a Forest Service website for ready public availability.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice; solicitation of nominees to the Southern Region Recreation Resource Advisory Committee.
In accordance with the Federal Advisory Committee Act of 1972 (FACA), the United States Department of Agriculture (USDA) announces solicitation for nominations to fill four vacancies on the Southern Region Recreation Resource Advisory Committee (RRAC). Members will be appointed by the Secretary of Agriculture and serve a three-year term.
Applications must be received on or before October 1, 2018. This timeframe may be extended if officials do not receive applications for needed positions. Nominations must contain a completed application packet that includes the nominee's name, a narrative statement on each Nominee Evaluation Criteria, and completed Form AD-755, Advisory Committee or
Interested persons may submit applications to the Southern Region Recreation RAC by U.S. Mail: C. Mitchell, Ouachita National Forest, P.O. Box 1270, Hot Springs, AR 71902, or Express Delivery: C. Mitchell, Ouachita National Forest, 100 Reserve Street, Hot Springs, AR 71901.
Anyone wanting further information regarding this request for nominations may contact the Recreation Resource Advisory Committee Coordinator Tiffany Williams, Southern Region, USDA Forest Service, 1720 Peachtree Road NW, Atlanta, GA 30309; by phone at (404) 347-2769, or by email at
The Federal Lands Recreation Enhancement Act (REA), directs the Secretary of Agriculture, the Secretary of the Interior, or both to establish Recreation RACs, or use existing advisory committees to perform the duties of Recreation RACs, in each State or region for Federal recreation lands and waters managed by the Forest Service or the Bureau of Land Management (BLM). These committees make recreation fee program recommendations on implementing or eliminating standard amenity fees; expanded amenity fees; noncommercial, individual special recreation permit fees; expanding or limiting the recreation fee program; and fee-level changes.
Potential nominees must represent the following forest-related interests:
Completed nomination forms are due by Monday, October 1, 2018.
Members will be appointed for three-year terms based on the following criteria: Which interest groups they represent and how well they are qualified to represent that group; Why they want to serve on the committee and what they can contribute; Their past experience in working successfully as part of a collaborative group.
Nominees' demonstrated ability to represent minorities, women and persons with disabilities will be considered in membership selections. U.S. Department of Agriculture policies regarding equal opportunity will be followed.
Committee members will receive travel and per diem expenses for regularly scheduled meetings; however, they will not receive compensation.
The appointment of members to the Southern Region Recreation RAC will be made by the Secretary of Agriculture. Any individual or organization may nominate one or more qualified persons to represent the vacancies listed above. To be considered for membership, nominees must—
1. Identify what interest group they would represent and how they are qualified to represent that group;
2. State why they want to serve on the committee and what they can contribute;
3. Show their past experience in working successfully as part of a collaborative group;
4. Complete Form AD-755.
Application packets are being accepted at this time for the vacant positions on the RRAC. Application packets, including evaluation criteria and the AD-755 form, are available at
Equal opportunity practices, in line with USDA policies, will be followed in all appointments to the Southern Region Recreation RACs. To ensure that the recommendations of the Recreation RACs have taken into account the needs of the diverse groups served by the Departments, membership should include, to the extent practicable, individuals with demonstrated ability to represent all racial and ethnic groups, women and men, and persons with disabilities.
Recreation RAC members serve without pay but are reimbursed for travel and per diem expenses for regularly scheduled committee meetings. All Recreation RAC meetings are open to the public and an open public forum is part of each meeting. Meeting dates and times will be determined by agency officials in consultation with the Recreation RAC members.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Connecticut Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (EDT) on: Wednesday, September 12, 2018. The purpose of the meeting is for project and roundtable planning.
Wednesday, September 12, 2018 at 12:00 p.m. (EDT).
Evelyn Bohor, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-877-260-1479 and conference call 7670135. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operator with the toll-free conference call-in number: 1-877-260-1479 and conference call 7670135.
Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before October 29, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Erica M. Filipek, U.S. Census Bureau, EID, CENHQ Room 7K057, 4600 Silver Hill Road, Washington, DC 20233-6900, telephone (301) 763-5161 (or via email at
The Census Bureau plans to request an extension of a currently approved collection for forms C-700, C-700(R), C-700(SL), and C-700(F). These forms are used to conduct the Construction Progress Reporting Surveys (CPRS) and collect information on the dollar value of construction put in place. Form C-700 is for nonresidential projects owned by private companies or individuals. Form C-700(R) is for private multifamily residential buildings. Form C-700(SL) is for state and local government projects. Form C-700(F) is for federal government projects.
The Census Bureau uses the information from these surveys to publish the value of construction put in place for the monthly `Construction Spending' principal economic indicator. Published estimates are used by a variety of private businesses and trade associations to estimate the demand for building materials and to schedule production, distribution, and sales efforts. They also provide various government agencies with a tool to evaluate economic policy. For example, Bureau of Economic Analysis staff use data to develop the construction components of gross private domestic investment in the gross domestic product. The Federal Reserve Board and the Department of the Treasury use the value in place data to predict the gross domestic product, which is presented to the Board of Governors and has an impact on monetary policy.
There are currently no planned content changes to the questionnaires. However, beginning with the September 2018 reference period, the Census Bureau will begin mailing redesigned survey forms. They were previously printed on a single legal page, and will now be in booklet form. Additionally, the contact information will now be requested on the front page of the booklet rather than on the back page, and the numbering scheme will reflect this rearrangement of questions.
An independent systematic sample of construction projects is selected each month according to predetermined sample rates. Once a project is selected, it remains in the sample until completion. The Census Bureau mails preprinted survey forms monthly to respondents to fill in current month data and any revisions to previous months. Respondents have the option to report online or mail the forms back. If respondents do not return the form or respond online, Census interviewers will contact them by phone to schedule a phone interview to collect the data. Interviews are scheduled at the convenience of the respondent. We request that respondents have their information available from an internal database at the time of the interview, which greatly reduces the time they spend on the phone during these interviews. After the preliminary mailing, if a respondent consistently reports electronically, the respondent will begin receiving email notifications and reminders to complete the online survey, and the Census Bureau will cease mailing them paper forms.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) and countervailing duty (CVD) orders on drawn stainless steel sinks from the People's Republic of China (China) would be likely to lead to continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD and CVD orders.
Applicable August 28, 2018.
Joshua Tucker at (202) 482-2044, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
In March 2018, Commerce
On August 20, 2018, the ITC published its determinations, pursuant to sections 751(c) and 752 of the Act, that revocation of the AD and CVD orders on drawn stainless steel sinks from China would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The merchandise covered by the orders includes drawn stainless steel sinks with single or multiple drawn bowls, with or without drain boards, whether finished or unfinished, regardless of type of finish, gauge, or grade of stainless steel. Mounting clips, fasteners, seals, and sound-deadening pads are also covered by the scope of this order if they are included within the sales price of the drawn stainless steel sinks.
Excluded from the scope of the orders are stainless steel sinks with fabricated bowls. Fabricated bowls do not have seamless corners, but rather are made by notching and bending the stainless steel, and then welding and finishing the vertical corners to form the bowls. Stainless steel sinks with fabricated bowls may sometimes be referred to as “zero radius” or “near zero radius”
As a result of the determinations by Commerce and the ITC that revocation of the AD and CVD orders would likely lead to a continuation or a recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), Commerce hereby orders the continuation of the AD and CVD orders on drawn stainless steel sinks from China. U.S. Customs and Border Protection (CBP) will continue to collect AD and CVD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.
The effective date of the continuation of the orders will be the date of publication in the
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
These five-year (sunset) reviews and notice are in accordance with sections 751(c) and published pursuant to section 777(i) the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
Applicable August 28, 2018.
Andrew Medley, Blaine Wiltse, or Whitley Herndon at (202) 482-4987, (202) 482-6345, or (202) 482-6274, respectively; AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On May 7, 2018, the Department of Commerce (Commerce) initiated a less-than-fair value (LTFV) investigation of imports of certain quartz surface products from the People's Republic of China.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, and determines that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On July 24, 2018, Cambria Company LLC (the petitioner) submitted a timely request that we postpone the preliminary determination in this LTFV investigation.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(l).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable August 28, 2018.
Eli Lovely at (202) 482-1593 or Robert Galantucci at (202) 482-2923, AD/CVD Operations, Enforcement and
On July 10, 2018, the Department of Commerce (Commerce) initiated a countervailing duty (CVD) investigation of imports of steel racks from the People's Republic of China.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a CVD investigation within 65 days after the date on which Commerce initiated the investigation. However, section 703(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 130 days after the date on which Commerce initiated the investigation if: (A) the petitioner
On August 9, 2018, the petitioner submitted a timely request that Commerce postpone the preliminary determination.
In accordance with 19 CFR 351.205(e), the petitioner has stated the reasons for requesting a postponement of the preliminary determination, and Commerce finds no compelling reason to deny the request. Therefore, in accordance with section 703(c)(1)(A) of the Act, Commerce is postponing the deadline for the preliminary determination to no later than 130 days after the date on which the investigation was initiated,
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).
National Institute of Standards and Technology, Department of Commerce.
Notice.
Currently, the National Institute of Standards and Technology (NIST) publishes notices of prospective exclusive, co-exclusive or partially exclusive domestic or foreign licenses of Government owned inventions in the
Questions related to this notice may be submitted to NIST, Technology Partnerships Office, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899, or emailed to
Paul Zielinski, NIST Technology Partnerships Office, 100 Bureau Drive, Stop 2200, Gaithersburg, MD 20899; by email at
Pursuant to 37 CFR 404.7(a)(1)(i), an exclusive, co-exclusive or partially exclusive domestic license, and, pursuant to 37 CFR 404.7(b)(1)(i), an exclusive, co-exclusive or partially exclusive foreign license, may be granted on Government owned inventions only if notice of a prospective license has been published in the
NIST provides notice that it will publish future notices of prospective exclusive, co-exclusive or partially exclusive domestic or foreign licenses in
35 U.S.C. 200
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Washington Department of Transportation (WSDOT) Ferries Division (WSF) to incidentally take, by Level A and B harassment, marine mammals during construction activities associated with the Mukilteo Multimodal Project, Puget Sound, Washington.
This Authorization is effective from October 1, 2018, through September 30, 2019.
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application, IHA, and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On April 7, 2016, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammals incidental to construction associated with Phase 2 of the Mukilteo Multimodal Project in Mukilteo, Washington, between August 1, 2017, and July 31, 2018. NMFS issued the requested IHA on August 3, 2017, which covered Phase 2 of the project in its entirety; the IHA expired on July 31, 2018 (82 FR 44164; September 21, 2017). On January 9, 2018, we received a request from WSDOT for a subsequent authorization to take marine mammals incidental to the project because all of the Phase 2 work would not be able to be completed under the existing IHA. A final version of the application, which we deemed adequate and complete, was submitted on March 1, 2018.
On June 28, 2018, NMFS published its proposed IHA in the
WSDOT operates and maintains 19 ferry terminals and one maintenance facility, all of which are located in Puget Sound or the San Juan Islands (Georgia Basin) (Figure 1-1 in WSDOT's application). The Mukilteo Multimodal Project is a multi-year construction project designed to improve the operations and facilities serving the mainland terminus of the Mukilteo-Clinton ferry route in Washington State. The 2017 IHA covered the installation of 661 piles of various sizes over an estimated 175 days of pile driving and removal (Table 1). WSDOT did not complete all the work; therefore the issued IHA covers take incidental to the installation of the remaining piles (Table 1). The 2017 IHA authorized Level A and B harassment of two species of marine mammals and Level B harassment of seven species of marine mammals. NMFS has issued an IHA to harass these same species and an additional three species based on recent marine mammal monitoring near the project area (Table 2).
We refer to the notice of proposed IHA (83 FR 30421, June 28, 2018) and documents related to the previously issued 2017 IHA and discuss any new or changed information here. Previous documents include the
WSDOT anticipates piles equal to or less than 36-in would be installed at a rate of 3 per day for a total of 38 days. Removing the 65 24-in temporary piles may also occur at a rate of 3 pile per day for a total of 22 days. An additional two days is needed to install the 78-in piles and 120-in pile. In total, up to 62 days of pile driving and removal may occur. WSDOT anticipates pile driving and removal could occur over a seven month in-water work window (July 15-February 15).
We repeated these calculations using the approach above for Dall's porpoise, minke whales, humpback whales, gray whales, and Steller sea lions; however, we are not authorizing Level A harassment take for the latter three species as the potential for Level A harassment of these species is discountable due to high visibility of these species, small Level A harassment zones, and implementation of mitigation measures (
We also used the same method and rational for estimates utilizing direct counts instead of density estimates as in the proposed IHA (83 FR 30421, June 28, 2018), but again, adjusted the number of days considered. Over 51 days of marine mammal monitoring during the 2017/18 Mukilteo project, 1,525 harbor seals were observed or 30 harbor seals per day. Using the equation #
Monitoring requirements would be similar to the 2017 IHA requirements (see an updated Marine Mammal Monitoring Plan available at
(i) Three land-based PSOs during impact driving of 24-in piles;
(ii) four land-based and one ferry-based PSOs during 24-, 30-, 36-in steel vibratory driving/removal;
(iii) five land-based and one ferry-based PSOs during 78- and 120 in steel vibratory driving/removal; and
(iv) two ferry-based PSOs in addition to land-based PSOs when weather conditions are poor.
In April, 2018, WSDOT submitted a monitoring report for construction that had been completed under the 2017
WSDOT will conduct acoustic monitoring during impact pile driving of 24-in piles per the acoustic monitoring plan submitted for the previous IHA. WSDOT will also conduct acoustic monitoring during vibratory driving 78-in and 120-in piles. Both the impact and vibratory acoustic monitoring plans are available at
A notice of NMFS' proposal to issue an IHA was published in the
In the proposed IHA (83 FR 30421, June 28, 2018), NMFS calculated the number of harbor porpoise potentially taken by Level B harassment using the Smultea
Importantly, such renewals would be limited to circumstances where: The activities are identical or nearly identical to those analyzed in the proposed IHA; monitoring does not indicate impacts that were not previously analyzed and authorized; and, the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the
WSDOT proposes to conduct a subset of activities identical to those covered in the previous 2017 IHA. We have included take for three new species noting these are precautionary as these species are not common in the action area and these species were not observed during previous construction. We also believe the potential behavioral reactions and effects on the cetacean species previously analyzed is applicable to these species, if not to some lesser extent due to lower probability of occurrence.
When issuing the 2017 IHA, NMFS found Phase 2 of the Mukilteo Multimodal Project, in its entirety, would have a negligible impact to species or stocks' rates of recruitment and survival and the amount of taking would be small relative to the population size of such species or stock (less than 15 percent). As described above, the number of estimated takes of the same stocks are less than takes authorized in the 2017 IHA and the anticipated impacts from the project are similar to those previously analyzed. The amount of take for the additional three species is also small (less than 11 percent of each stock). In conclusion, there is no new information suggesting that our analysis or findings should change.
In this year's IHA, we have also included more mitigation with respect to operating the bubble curtains (to ensure effectiveness; thereby, potentially reducing impact pile driving received levels), and required WSDOT to report more details pertaining to monitoring (
Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) The required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) WSDOT's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
The only species listed under the ESA with the potential to be present in the action area is the Mexico Distinct Population Segment (DPS) of humpback whales. The effects of this proposed Federal action were adequately analyzed in NMFS' Biological Opinion for the Mukilteo Multimodal Project, Snohomish, Washington, dated August 1, 2017, which concluded that issuance of an IHA would not jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify any designated critical habitat. NMFS West Coast Region has confirmed the Incidental Take Statement (ITS) issued in 2017 is applicable for the IHA. That ITS authorizes the take of six humpback whales from the Mexico DPS.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that issuance of the IHA qualifies to be categorically excluded from further NEPA review. We have reviewed all comments submitted in response to the proposed IHA
As a result of these determinations, NMFS has issued an IHA to WSDOT for the harassment of small numbers of marine mammals incidental to construction activities related to the Mukilteo Multimodal Project, Puget Sound, Washington, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
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 27, 2018.
Comments regarding the burden estimate 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 the notice's publication by either of the following methods. Please identify the comments by “OMB Control No. 3038-0093.”
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A copy of all comments submitted to OIRA should be sent to the Commodity Futures Trading Commission (the “Commission”) by any of the following methods. The copies should refer to “OMB Control No. 3038-0093.”
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• By Hand Delivery/Courier to the same address; or
• Through the Commission's website at
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Lois Gregory, Associate Director, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5569, email:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. On June 7, 2018, the Commission published in the
Office of the Secretary, Department of Defense.
Notice of CHCBP Quarterly Premiums for FY19.
This notice provides the CHCBP quarterly premiums for FY19.
The FY19 rates contained in this notice are effective for services on or after October 1, 2018.
Defense Health Agency (DHA), TRICARE Health Plan, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042-5101.
Mark A. Ellis, telephone (703) 681-0039.
The final rule published in the
The DHA has updated the quarterly premiums for FY19 as shown below:
The above premiums are effective for services rendered on or after October 1, 2018.
National Guard Bureau (NGB), DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by October 29, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to National Guard, Manpower and Personnel Division (NG-J1), ATTN: LTC Tasleen Panton, 111 S George Mason Drive, Arlington, VA 22204, or call (703) 663-0193.
Department of the Navy, DoD.
Notice of a modified system of records.
The Department of the Navy proposes to modify a system of records notice: Data Warehouse Business Intelligence System (DWBIS), N05220-1, to be compliant with the OMB Circular A-108; by updating contact information for the system manager; by expanding the categories of individuals covered by the system to include the Space and Naval Warfare Systems Command (SPAWAR) and its two systems centers; by updating the categories of records for these individuals, and by providing routine uses that are consistent within the Federal Government. This is necessary to allow a single system to be used for all of SPAWAR to manage workforce education, training, skills, and experience required for the development of its Acquisition Workforce, Cyber Security, and Information Warfare workforce.
Comments will be accepted on or before September 27, 2018. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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Ms. Robin Patterson, Head, PA/FOIA Office (DNS-36), Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350-2000, or by phone at (202) 685-6545.
In addition to the formatting changes required by OMB Circular A-108, this modification updates contact information for the system manager; expands the categories of individuals covered by the system to include the Space and Naval Warfare Systems Command (SPAWAR) and its two systems centers; updates the categories of records for these individuals, and provides routine uses that are consistent within the Federal Government. This is necessary to allow a single system to be used for all of SPAWAR under the same authorities used previously to manage workforce education, training, skills, and experience required for the development of its Acquisition Workforce, Cyber Security, and Information Warfare workforce.
The Department of the Navy's notices for systems of records subject to the Privacy Act of 1974 as amended, have been published in the
The proposed systems reports, as required by the Privacy Act, as amended, were submitted on June 28, 2018, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to Section 6 to OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” revised December 23, 2016 (December 23, 2016, 81 FR 94424).
Data Warehouse Business Intelligence System (DWBIS), N05220-1.
Unclassified.
SPAWAR Systems Center Atlantic, Building 3148, 1 Innovation Drive, Hanahan, SC 29410-4200.
Commanding Officer, ATTN: Code 80E, SPAWARSYSCEN Atlantic, 1837 Morris Street, Suite 3109B, Norfolk, VA 23511-3498,
10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. Chapter 87, Defense Acquisition Workforce; DoD Instruction 5000.66, Defense Acquisition Workforce Education, Training, Experience, and Career Development Program; DoD Manual (DoDM) 5200.02, Procedures for the DoD Personnel Security Program (PSP); DoDM 8570.1, Information Assurance Workforce Improvement Program; SECNAV Manual (SECNAV M) 5239.2, DoN Cyberspace Information Technology and Cybersecurity Workforce Management and Qualification Manual; and SECNAV M-5510.30, Department of Navy Personnel Security Program.
This system is used to help SPAWAR manage its workforce education, training, and career development programs needed to support the design, development and deployment of key information warfare, business information technology and space systems for Naval and DoD programs as assigned to this system command. The system will also help SPAWAR document and manage the skills and experience necessary in its Acquisition, Cyber Security, and Information Warfare workforce to staff current and future programs and projects in its primary roles as a technical authority and an acquisition command.
Active duty and Reserve Naval personnel, DoN Civilians, and contractors currently employed by SPAWAR.
Name, work and alternate work address(es), DoD ID Number, billet number, ID number from the source system, Navy Enterprise Resource Planning (ERP) employee ID number, military rank or government series and grade, military occupation specialty (MOS) employee series and grade, date reported to command, duty station, work location, organizational code, organizational group, supervisor and their contact numbers, position title and pay plan, scheduling (hours per project), defense acquisition workforce coursework planned or completed, position level and continuous learning points required, Cyber Security Workforce membership including credentials, certifications held, and expiration date; contracting officer's representative status, certifications achieved, demonstrated proficiency levels earned under internal competency development model, projects or portfolio work assigned, credentials held on entry to the mid-career leadership program, security clearance held, award(s); education information including college courses applied for, college degrees held and institutions attended, professional certifications held; employee promotion(s), overseas tour begin and end date, number of years at current position or current tour end.
Contractor's information, including user account information in Navy ERP by name and unique ID, government sponsor, and whether they are a current member of the command's Cyber Security Workforce for reporting purposes.
SPAWAR Personnel Officers and Administrators, Navy Enterprise Resource Planning (Navy ERP), SPAWAR Directory Services (LDAP), Total Workforce Management Services (TWMS), Total Force Manpower Management System (TFMMS), DoN Director, Acquisition Career Management (eDACM), DoD Defense Civilian Personnel Data System (DCPDS)/Human Resources Link (HRLink), the Navy Enlisted System (NES), Officer Personnel Information System (OPINS).
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a (b)(3) as follows:
a. To contractors, grantees, experts, consultants, students, and others
b. To any component of the Department of Justice for the purpose of representing the DoD, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
c. To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
d. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other Agency representing the DoD determines the records are relevant and necessary to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
e. To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
f. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
h. To appropriate agencies, entities, and persons when (1) the DoD suspects or confirms there is a breach of the system of records; (2) the DoD determines as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
i. To another Federal agency or Federal entity, when the DoD determines information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
Records are maintained in electronic storage media, in accordance with the safeguards mentioned below.
These records are retrieved primarily by name, work and/or (for former employees and contractors) home address, DoD ID Number, employee ID number, and/or unique ID.
Records are maintained for 1 year after termination of employment or duty station, or when abstracted, or consolidated, whichever is earlier. Per guidance from the Secretary of the Navy M-5210.1 DON Records Management Manual, DoD ID will be retained for the purpose of trend analysis and will be destroyed when no longer needed for reference.
Administrative safeguards: All persons who apply to access to this system are required to have completed annual cybersecurity training and hold an unexpired DoD Common Access Card (CAC) issued by the command. All users must provide a digitally signed OPNAV 5239/14 System Authorization Access Request Navy (SAAR-N) form digitally countersigned by the user's Supervisor or the assigned Contracting Officer's Representative (COR), stating the duty-related justification for access. Users requiring privileged access to maintain the system must complete Command Privacy Act Training and provide a SECNAV 5239/1—Information System Privileged Access Agreement and Acknowledgement (PAA) of Responsibilities form which identifies their credentials and training certifications as a member of the Cyber Security Workforce. All requests for access are independently reviewed by the Command Security Manager; persons requesting non-privileged access must complete a favorably adjudicated Tier 1 (T1) investigation National Agency Check with Written Inquiries (formerly NACI). Privileged access users must complete a favorably adjudicated Tier 3 (T3) investigation (formerly National Agency Check with Law and Credit (formerly ANACI/NACLC)) and be U.S. citizens. Technical safeguards employed for electronic records have data at rest encryption and access is restricted to authorized users holding specific electronic credentials and having a need to know. Physical access to terminals, terminal rooms, buildings, and surroundings are controlled by locked terminals and rooms, guards, personnel screening, and visitor registers.
Individuals seeking access to records about themselves contained in this system of records should address written and signed inquiries to Commanding Officer, ATTN: Code 80E, SPAWARSYSCEN Atlantic, 1837 Morris Street, Suite 3109B, Norfolk, VA 23511-3498.
The requester must provide their full name, mailing/home address, DoD ID Number, and/or employee ID number.
The system manager may require a DoD Public Key Infrastructure (PKI) signed email as a means of proving the identity of the individual requesting access to the records.
In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
The Navy's rules for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individuals seeking to determine whether this system of records contains information about themselves should address written and signed inquiries to Commanding Officer, ATTN: Code 80E, SPAWARSYSCEN Atlantic, 1837 Morris Street Suite 3109B, Norfolk, VA 23511-3498.
The requester must provide their full name, mailing/home address, DoD ID Number, and/or employee ID number.
The system manager may require a DoD Public Key Infrastructure (PKI) signed email as a means of proving the identity of the individual requesting access to the records.
In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
None.
December 23, 2015, 80 FR 79869
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before October 29, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before October 29, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, September 12, 2018, 6:00 p.m.
Kume Japanese Restaurant Meeting Room, 100 Wilson Street, Oak Ridge, Tennessee 37830.
Melyssa P. Noe, Alternate Deputy Designated Federal Officer, U.S. Department of Energy, Oak Ridge Office of Environmental Management (OREM), P.O. Box 2001, EM-942, Oak Ridge, TN 37831. Phone: (865) 241-3315; Fax: (865) 241-6932; Email:
Purpose of the Board: The purpose of the Board is to make recommendations to DOE-EM and site management in the areas of environmental restoration, waste management, and related activities.
Take notice that on August 21, 2018, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824e and 825e and Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206, Nebraska Public Power District (Complainant) filed a formal complaint against Tri-State Generation Transmission Association, Inc. (Tri-State) and Southwest Power Pool, Inc. (SPP) (collectively, Respondents) alleging that the inclusion of certain cost in Tri-State's annual Transmission Revenue Requirement cause rates for transmission service under SPP's, Inc. Open Access Transmission Tariff to be unjust and unreasonable, as more fully explained in the complaint.
Complainant certifies that copies of the complaint were served on the contacts for Respondents on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the
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
On July 17, 2018, Midwest Energy Recycling, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Chippewa County Pumped Storage Project to be located near the Minnesota River and the city of Granite Falls, in Chippewa County, Minnesota. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A new circular 100-acre rockfill embankment (upper reservoir) having a total storage capacity of 3,000 acre-feet with a maximum pond elevation level of 1080 feet mean sea level; (2) a new 2,400-foot by 1,425-foot rectangular lower reservoir with a total storage capacity of 3,300 acre-feet; (3) a new 100-foot-diameter, reinforced concrete (morning glory type) intake connected to a vertical 2,500-foot-long by 18-foot-diameter steel penstock; (4) a new 200-foot-long by 70-foot-wide by 40-foot-high reinforced concrete powerhouse containing two new 333-megawatt (MW) reversible pump turbine units with a total plant rating of 666 MW; (5) a new 50-foot-wide, 240-foot-long, 40-foot-high transformer gallery; (6); a new 200 to 1,000-foot-long, 230-kilovolt transmission line extending from the transformer gallery to an existing substation (the point of interconnection); and (7) appurtenant facilities. The estimated annual generation of the Chippewa County Pumped Storage Project would be 1,450 gigawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's website at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for license for the Swan Lake North Pumped Storage Hydroelectric Project, located about 11 miles northeast of Klamath Falls in Klamath County, Oregon, and has prepared a draft Environmental Impact Statement (EIS) for the project. The project would occupy 730 acres of federal lands administered by the U.S. Bureau of Land Management and the U.S. Bureau of Reclamation, state lands, and private lands.
The draft EIS contains the staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the draft EIS is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
You may also register online at
Any comments should be filed within 45 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
Anyone may intervene in this proceeding based on this draft EIS (18 CFR 380.10). You must file your request to intervene as specified above.
In addition to or in lieu of sending written comments, you are invited to attend a public meeting that will be held to receive comments on the draft EIS. The time and location of the meeting is as follows:
At this meeting, resource agency personnel and other interested persons will have the opportunity to provide oral and written comments and recommendations regarding the draft EIS. The meeting will be recorded by a court reporter, and all statements (verbal and written) will become part of the Commission's public record for the project. This meeting is posted on the Commission's calendar located at
For further information, contact Dianne Rodman at (202) 502-6077 or
Take notice that the following hydroelectric application has been filed with the Federal Energy Regulatory Commission (Commission) and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, and protests is 30 days from the issuance of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, and comments using the Commission's eFiling system at
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
a.
b.
c.
d.
e.
f. All local, state, and federal agencies, Indian tribes, and other interested parties are invited to attend by phone; however, participation will be limited to representation of the Oregon SHPO, PacifiCorp, and the Commission's representatives. Please call or email Dianne Rodman at (202) 502-6077 or
On August 9, 2018, Sendero Carlsbad Gateway, LLC (Sendero), 1000 Louisiana Street, Suite 6900, Houston, Texas 77002, filed an application pursuant to section 7 of the Natural Gas Act (NGA) and Part 157 of the Federal Energy Regulatory Commission's (Commission) regulations requesting authorization to construct, install, own, operate and maintain a new 23.28 mile, 24-inch-diameter, interstate natural gas pipeline and appurtenant facilities to be located in Eddy County, New Mexico and Culberson County, Texas, all as more fully set forth in the application, which is open to the public for inspection. The filing may also be viewed on the web at
Any questions regarding Sendero's application should be directed to Brad Boister, Chief Commercial Officer, Sendero Carlsbad Gateway, LLC, 1000 Louisiana Street, Suite 6900, Houston, Texas 77002, or phone (832) 917-6952, or by email
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 7 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
On June 15, 2018, ECOsponsible, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of hydropower at the Mount Morris Power Dam located on the Genesee River, near the town of Leicester, Livingston County, New York. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) An existing 30-foot-high, 334-foot-long concrete gravity dam; (2) an existing reservoir with a storage capacity of 250 acre-feet at a normal maximum surface elevation of 579.1 feet mean sea level; (3) an existing 16-foot-wide by 30-foot-long concrete masonry powerhouse containing two new submersible turbines each with a rated capacity of 394 kilowatts (kW) (4) a new Hydrodynamic Screw turbine with a rated capacity of 62 kW to be located on the 18-foot-long concrete spillway next to the powerhouse; (5) a new 75-foot-long transmission line connecting the powerhouse to a nearby 15-kilovolt grid interconnection point; and (6) appurtenant facilities. The proposed project would have an average annual generation of 5,700 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's website at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “EPA's WaterSense Program (Renewal)” (EPA ICR No. 2233.06, OMB Control No. 2040-0272) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through March 31, 2019. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before October 29, 2018.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2006-0408 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Tara O'Hare, WaterSense Branch, Water Infrastructure Division, Office of Wastewater Management, Office of Water (Mail Code 4204M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-8836; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the Paperwork Reduction Act (44 U.S.C. 3501
As part of strategic planning efforts, EPA encourages programs to develop meaningful performance measures, set ambitious targets, and link budget expenditures to results. Data collected under this ICR will assist WaterSense in demonstrating results and carrying out evaluation efforts to ensure continual program improvement. In addition, the data will help EPA estimate water and energy savings and inform future product categories and specifications. All shipment and sales data submitted by WaterSense manufacturer and retailer/distributor partners are collected as confidential business information (CBI) using the procedures outlined in the WaterSense CBI security plan under the Clean Water Act.
Federal Accounting Standards Advisory Board.
Notice.
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules Of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has released an exposure draft of a proposed Federal Financial Accounting Technical Release (TR),
The proposed TR is available on the FASAB website at
Respondents are encouraged to comment on any part of the exposure draft and to provide the reasons for their positions. Written comments are requested by October 5, 2018, and should be sent to
Ms. Wendy M. Payne, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
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 extend for three years, with revision, the Reporting, Recordkeeping, and Disclosure Requirements Associated with the Home Mortgage Disclosure Act (HMDA) and Loan/Application Register (LAR) required by Regulation C (FR HMDA LAR, OMB No. 7100-0247).
Comments must be submitted on or before October 29, 2018.
You may submit comments, identified by
•
•
•
•
All public comments are available from the Board's website at
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
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.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal prior to giving final approval.
The final rules generally will require covered institutions to collect and report any mortgage loan secured by a dwelling, including open-end lines of credit, regardless of the loan's purpose. However, the final rules exclude unsecured home-improvement loans (which historically were required to be reported), dwelling-secured loans that are made principally for a commercial or business purpose, agricultural-purpose loans, and other specifically excluded loans.
The final rules also will require collection of additional data points. For covered institutions that are otherwise not eligible for the partial exemption under section 104(a) of EGRRCPA, as discussed further below, these additional data points will be reported in 2019.
These new fields include
In addition, the Bureau's final rules amend several existing requirements, including the requirements for collection and reporting of information regarding an applicant's or borrower's ethnicity, race and sex.
Effective May 24, 2018, an institution that is eligible for the partial exemption under section 104(a) of EGRRCPA will only need to report a subset of the data points required under HMDA if it originates fewer than 500 closed-end mortgage loans in each of the two preceding calendar years.
The Bureau will collect the HMDA/LAR data on behalf of the applicable Federal supervisory agency, and the data will be combined and aggregated for each Metropolitan Statistical Area (MSA). Certain aggregated data will continue to be publicly available, though the Bureau has yet to determine what the information collected in the new data fields will be disclosed once the final rules are fully effective.
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 extend for three years, without revision, the Supervisory and Regulatory Survey (FR 3052; OMB No. 7100-0322).
Comments must be submitted on or before October 29, 2018.
You may submit comments, identified by
•
•
•
•
All public comments are available from the Board's website at
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, if approved. These documents will also be made available on the Federal Reserve 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.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal prior to giving final approval.
The Board utilizes the survey process, as needed, to collect information on specific issues that affect its decision-making. The principal value of the FR 3052 is the flexibility it provides the Federal Reserve to respond quickly to the need for data due to unanticipated economic, financial, supervisory, or regulatory developments. The Board cannot predict what specific information will be needed, but such needs are generally very time sensitive. Because the relevant questions may change with each survey, there is no fixed reporting form.
Written qualitative questions or questionnaires may include categorical questions, yes-no questions, ordinal questions, and open-ended questions. Written quantitative surveys may include dollar amounts, percentages, numbers of items, interest rates, and other such information. Institutions may also be required to provide copies of existing documents (for example, pertaining to practices and performances for a particular business activity). Before conducting a survey, the Board reviews any information to be collected to determine if the information is available by other means.
The surveys would be conducted on a voluntary basis. The questions asked on each survey would vary, so the ability of the Board to maintain the confidentiality of information collected would be determined on a case by case basis. It is possible that the information collected would constitute confidential commercial or financial information, which may be kept confidential under exemption 4 to the Freedom of Information Act (FOIA) (5 U.S.C. 552(b)(4)). In circumstances where the Board collects information related to individuals, exemption 6 to FOIA
Board of Governors of the Federal Reserve System.
Notice of General Amendment to Federal Reserve Board of Governors Systems of Records.
Pursuant to the provisions of the Privacy Act of 1974, notice is given that the Board of Governors of the Federal Reserve System (Board) is amending its General Routine Uses of Board Systems of Records (General Routine Uses) that apply to the Board's systems of records, by revising an existing routine use and adding a new routine use, both related to breach response. The changes are necessary in order to comply with Office of Management and Budget (OMB) Memorandum M-17-12, “Preparing for and Responding to a Breach of Personally Identifiable Information” (January 3, 2017), which sets forth the two required routine uses. Accordingly, the Board is revising Routine Use I, as prescribed by OMB, which allows the Board to disclose records as necessary to respond to a suspected or confirmed breach of the system of records where the Board has determined the breach poses a risk of harm to individuals, the Board, the Federal Government, or national security, and the disclosure is reasonably necessary to assist the Board in its efforts to respond to the breach or to prevent, minimize or remedy such harm. The Board is also adding Routine Use J as prescribed by OMB to allow the Board to assist another federal agency or federal entity in that agency's or entity's response to a suspected or confirmed breach or efforts to prevent, minimize, or remedy the risk of harm to individuals, the agency or entity, the Federal Government, or national security, resulting from a suspected or confirmed breach.
These breach-response related uses are relevant and apply to all of the Board's systems of records. Accordingly, the Board is revising its list of General Routine Uses and is amending all of the Board's systems of records to include the revised Routine Use I and the new Routine Use J. These uses will ensure that the Board is able to respond as necessary in the event of a breach of personally identifiable information involving a Board system of records and assist other federal agencies or federal entities in their response. Breaches pose a risk of harm to individuals, and thus the revised and new routine uses will further enhance the Board's ability to protect the privacy of individuals by allowing the Board to respond to the suspected or confirmed breach and prevent, minimize, or remedy the resulting harm posed by the breach. In order that the Board's General Routine Uses will be contained in a single notice readily accessible by the public, the Board is republishing the General Routine Uses previously published on May 6, 2008 (73 FR 24985) which were not revised under this notice.
Comments must be received on or before September 27, 2018. The revised systems of records notices and General Routine Uses will become effective September 27, 2018, without further notice, unless comments dictate otherwise. The Office of Management and Budget (OMB), which has oversight responsibility under the Privacy Act, requires a 30-day period prior to publication in the
You may submit comments, identified by
•
•
•
•
All public comments will be made available on the Board's website at
David B. Husband, Senior Attorney, Legal Division, (202) 530-6270, or
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a(r), a report of these systems of records is being filed with the Chair of the House Committee on Oversight and Government Reform, the Chair of the Senate Committee on Homeland Security and Governmental Affairs, and the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget.
BGFRS-1 Recruiting and Placement Records
BGFRS-2 Personnel Security Systems
BGFRS-3 Medical Records
BGFRS-4 General Personnel Records
BGFRS-5 EEO Discrimination Complaint File
BGFRS-6 Disciplinary and Adverse Action Records
BGFRS-7 Payroll and Leave Records
BGFRS-8 Travel Records
BGFRS-9 Supplier Files
BGFRS-10 General Files on Board Members
BGFRS-11 Official General Files
BGFRS-12 Bank Officers Personnel System
BGFRS-13 Federal Reserve System Bank Supervision Staff Qualifications
BGFRS-14 General File of Federal Reserve Bank and Branch Directors
BGFRS-16 Regulation U Reports of NonBank Lenders
BGFRS-17 Municipal or Government Securities Principals and Representatives
BGFRS-18 Consumer Complaint Information
BGFRS-20 Survey of Consumer Finances
BGFRS-21 Supervisory Enforcement Actions and Special Examinations Tracking System
BGFRS-23 Freedom of Information Act and Privacy Act Case Tracking and Reporting System
BGFRS-24 EEO General Files
BGFRS-25 Multi-Rater Feedback Records
BGFRS-26 Employee Relations Records
BGFRS-27 Performance Management Program Records
BGFRS-28 Employee Assistance Program Records
BGFRS-29 Benefits Records
BGFRS-30 Academic Assistance Program Files
BGFRS-31 Protective Information Systems
BGFRS-32 Visitor Registration System
BGFRS-34 ESS Staff Identification Card File
BGFRS-35 Staff Parking Permit File
BGFRS-36 Federal Reserve Application Name Check System
BGFRS-37 Electronic Applications
BGFRS-38 Transportation Subsidy Records
BGFRS-39 General File of the Community Advisory Council
OIG-1 OIG Investigative Records
OIG-2 OIG Personnel Records
Unclassified.
The Board maintains its systems of records at the Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551. Some sub-categories of certain systems may also be maintained by various third-parties, which are described in the corresponding SORNs located here:
The system manager for each system is described in the system's corresponding SORN located here:
The authority for each system is described in the system's corresponding SORN located here:
The purpose for each system is described in the system's corresponding SORN located here:
The categories of individuals covered by each system are described in the system's corresponding SORN located here:
The categories of records covered by each system are described in the system's corresponding SORN located here:
The categories of sources of records for each system is described in the system's corresponding SORN located here:
The Board is amending its General Routine Uses by revising Routine Use I and adding Routine Use J. The Board is also revising all of the SORNs listed above
The Board is also adding Routine Use J to its General Routine Uses to read as follows:
The complete list of General Routine Uses now reads as follows:
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
The storage practices for each system are set out in the corresponding SORN located here:
Depending on the particular system, paper and electronic records may be retrieved by name or other identifying aspects.
The retention period for each system is set out in the corresponding SORN located here:
Access to records is limited to those whose official duties require it. Electronic records are password protected.
The Privacy Act allows individuals the right to access records maintained about them in a Board system of records. Your request for access must: (1) Contain a statement that it is made pursuant to the Privacy Act of 1974; (2) provide either the name of the Board system of records expected to contain the record requested or a concise description of the system of records; (3) provide the information necessary to verify your identity; and (4) provide any other information that may assist in the rapid identification of the record for which you are requesting access.
Current or former Board employees may make a request for access by contacting the Board office that maintains the record. The Board handles all Privacy Act requests as both a Privacy Act request and as a Freedom of Information Act request. The Board does not charge fees to a requestor seeking to access or amend his/her Privacy Act records.
You may submit your Privacy Act request to the—Secretary of the Board, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington DC 20551.
If your request is for records maintained by the Board's Office of Inspector General, submit your request to the—Inspector General, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551.
You may also submit your Privacy Act request electronically through the Board's FOIA “Electronic Request Form” located here:
The Privacy Act allows individuals to seek amendment of information that is erroneous, irrelevant, untimely, or incomplete and is maintained in a system of records about you. To request an amendment to your record, you should clearly mark the request as a “Privacy Act Amendment Request.” You have the burden of proof for demonstrating the appropriateness of the requested amendment and you must provide relevant and convincing evidence in support of your request.
Your request for amendment must: (1) Provide the name of the specific Board system of records containing the record you seek to amend; (2) Identify the specific portion of the record you seek to amend; (3) Describe the nature of and reasons for each requested amendment; (4) Explain why you believe the record is not accurate, relevant, timely, or complete; and (5) Unless you have already done so in a Privacy Act request for access, provide the necessary information to verify your identity.
Same as “Access procedures” above. You may also follow this procedure in order to request an accounting of previous disclosures of records pertaining to you as provided for by 5 U.S.C. 552a(c).
Any exemptions claimed for each specific system is described in the system's corresponding SORN located here:
The history of the Board's various systems can be located at:
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Information Collection for Tuberculosis Data from Panel Physicians to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on May 29, 2018 to obtain comments from the public and affected agencies. CDC received three comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Information Collection for Tuberculosis Data from Panel Physicians—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention's (CDC), National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Division of Global Migration and Quarantine (DGMQ), Immigrant, Refugee, and Migrant Health Branch (IRMH), requests approval for a revision of an existing information collection. This project pertains to collecting annual reports on certain tuberculosis data from U.S. panel physicians.
The respondents are panel physicians. More than 760 panel physicians from 336 panel sites perform overseas pre-departure medical examinations in accordance with requirements, referred to as technical instructions, provided by DGMQs Quality Assessment Program (QAP). The role of QAP is to assist and guide panel physicians in the implementation of the Technical Instructions; evaluate the quality of the overseas medical examination for U.S.-bound immigrants and refugees; assess potential panel physician sites; and provide recommendations to the U.S. Department of State in matters of immigrant medical screening.
To achieve DGMQ's mission, the Immigrant, Refugee and Migrant Health branch (IRMH) works with domestic and international programs to improve the health of U.S.-bound immigrants and refugees to protect the U.S. public by preventing the importation of infectious disease. These goals are accomplished through IRMH's oversight of medical exams required for all U.S.—bound immigrants and refugees who seek permanent residence in the U.S. IRMH is responsible for assisting and training the international panel physicians with the implementation of medical exam Technical Instructions (TI). Technical Instructions are detailed requirements and national policies regarding the medical screening and treatment of all U.S.-bound immigrants and refugees.
Screening for tuberculosis (TB) is a particularly important component of the immigration medical exam and allows panel physicians to diagnose active TB disease prior to arrival in the United States. As part of the Technical Instructions requirements, panel physicians perform chest x-rays and laboratory tests that aid in the identification of tuberculosis infection (Class B1 applicants) and diagnosis of active tuberculosis disease (Class A, inadmissible applicants). CDC uses these classifications to report new immigrant and refugee arrivals with a higher risk of developing TB disease to U.S. state and local health departments for further follow-up. Some information that panel physicians collect as part of the medical exam is not reported on the standard Department of State forms (DS-forms), thereby preventing CDC from evaluating TB trends in globally mobile populations and monitoring program effectiveness.
Currently, CDC is requesting this data be sent by panel physicians once per year. The consequences of reducing this frequency would be the loss of monitoring program impact and TB burdens in mobile populations and immigrants and refugees coming to the United States on an annual basis. Estimated annual burden is being reduced by 1,640 hours per year. The number of respondents is being reduced by 17. Reductions are due to revised estimates on burden time per response, and the removal of four variables from the data collection form and improved IT capacity at most panel sites. The total hours requested is 1,008. There is no cost to the respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled CDC Model Performance Evaluation Program (MPEP) for Mycobacterium tuberculosis Susceptibility Testing information collection. CDC is requesting a three-year approval for revision to the previously approved project used to monitor and evaluate performances and practices among national laboratories M. tuberculosis susceptibility testing.
CDC must receive written comments on or before October 29, 2018.
You may submit comments, identified by Docket No. CDC-2008-00791 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffery M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
CDC Model Performance Evaluation Program (MPEP) for Mycobacterium tuberculosis Susceptibility testing (OMB #0920-0600, expiration 3/31/2019)—Revision—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The CDC is requesting a revision to the approved information collection, CDC Model Performance for Mycobacterium tuberculosis Drug Susceptibility Testing (OMB Control Number 0920-0600). Clearance is requested for a period of three years. Revision of this information collection will not require changes in the scope of the study. This revision includes (a) modification of the Participant Biosafety Compliance Letter of Agreement; (b) modification of the Instructions to Participants Letter; (c) modification of the MPEP Mycobacterium Results Worksheet; (d) Request for approval of a MPEP Mycobacterium tuberculosis Minimum Inhibitory Concentration (MIC) Results Form for laboratories that perform Sensititre Drug Susceptibility Testing (DST) to record MIC results; and (e) reduction in request for burden hours.
While the overall number of cases of TB in the U.S. has decreased, rates still remain high among foreign-born persons, prisoners, homeless populations, and individuals infected with HIV in major metropolitan areas. To reach the goal of eliminating TB, the Model Performance Evaluation Program for Mycobacterium tuberculosis Susceptibility Testing is used to monitor and evaluate performance and practices among national laboratories performing M. tuberculosis susceptibility testing. Participation in this program is one way
By providing an evaluation program to assess the ability of the laboratories to test for drug resistant M. tuberculosis strains, laboratories also have a self-assessment tool to aid in optimizing their skills in susceptibility testing. The information obtained from the laboratories on susceptibility practices and procedures is used to establish variables related to good performance, assessing training needs, and aid with the development of practice standards.
Participants in this program include domestic clinical and public health laboratories. Data collection from laboratory participants occurs twice per year. The data collected in this program will include the susceptibility test results of primary and secondary drugs, drug concentrations, and test methods performed by laboratories on a set of performance evaluation (PE) samples. The PE samples are sent to participants twice a year. Participants also report demographic data such as laboratory type and the number of tests performed annually. The total estimated annual burden hours are 129. There is no cost to respondents to participate other than their time.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is developing a list of bulk drug substances (active pharmaceutical ingredients) for which there is a clinical need (the 503B Bulks List). Drug products that outsourcing facilities compound using bulk drug substances on the 503B Bulks List qualify for certain exemptions from the Federal Food, Drug, and Cosmetic Act (FD&C Act) provided certain conditions are met. This notice identifies three bulk drug substances that FDA has considered and is proposing not to include on the list: Bumetanide, nicardipine hydrochloride, and vasopressin. Additional bulk drug substances nominated by the public for inclusion on this list are currently under consideration and will be the subject of future notices.
Submit either electronic or written comments on the notice by October 29, 2018 to ensure that the Agency considers your comment on this notice before it begins work on a notice reflecting the Agency's final decision about whether to include these substances on the 503B Bulks List.
You may submit comments at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Elizabeth Hankla, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 5216, Silver Spring, MD 20993, 301-796-3110.
Compounded drug products can serve an important role for patients whose clinical needs cannot be met by FDA-approved drug products, such as patients who have an allergy and need a medication to be made without a certain inactive ingredient (
In response to this outbreak, Congress enacted the Drug Quality and Security Act (Pub. L. 113-54), which, among other things, added new section 503B to the FD&C Act (21 U.S.C. 353b) and created a new category of compounders known as outsourcing facilities.
Outsourcing facilities sometimes compound drug products using bulk drug substances and other times using finished drug products as the starting materials. In general, compounding using bulk drug substances presents a greater risk to patients than compounding using FDA-approved drug products. FDA-approved drug products provide certain assurances not provided by bulk drug substances, including assurances associated with premarket review by FDA for safety, effectiveness, and quality. Further, using a bulk drug substance in compounding when an FDA-approved drug product would be suitable would undermine the premarket approval process by reducing the incentive for applicants to invest in and seek FDA approval of drug products. The drug approval process is critical to ensure patient access to pharmaceuticals whose quality, safety, and effectiveness have been established.
The conditions that section 503B of the FD&C Act places on compounding by outsourcing facilities, including conditions on compounding using bulk drug substances, help to mitigate the risks associated with compounded drug products and protect patient health. Among these is the condition that directs FDA to place a bulk drug substance on the list of bulk drug substances that outsourcing facilities can use in compounding (503B Bulks List) only if there is a clinical need for outsourcing facilities to compound drug products using the bulk drug substance.
Section 503B of the FD&C Act describes the conditions that must be satisfied for drug products compounded by an outsourcing facility to be exempt from section 505 (21 U.S.C. 355) (concerning the approval of drugs under new drug applications (NDAs) or abbreviated new drug applications (ANDAs)); section 502(f)(1) (21 U.S.C. 352(f)(1)) (concerning the labeling of drugs with adequate directions for use); and section 582 (21 U.S.C. 360eee-1) (concerning drug supply chain security requirements).
Drug products compounded under the conditions in section 503B are not exempt from CGMP requirements in section 501(a)(2)(B) of the FD&C Act (21 U.S.C. 351(a)(2)(B)).
One of the conditions that must be met for a drug product compounded by an outsourcing facility to qualify for exemptions under section 503B is that the outsourcing facility may not compound a drug using a bulk drug substance unless (a) the bulk drug substance appears on a list established by the Secretary identifying bulk drug substances for which there is a clinical need (the 503B Bulks List); or (b) the drug compounded from such bulk drug substances appears on the drug shortage list in effect under section 506E of the FD&C Act (FDA's drug shortage list) (21 U.S.C. 356e) at the time of compounding, distribution, and dispensing.
For purposes of section 503B,
In the
As FDA evaluates bulk drug substances, it intends to publish notices for public comment in the
FDA intends to maintain a current list of all bulk drug substances it has evaluated on its website, with separate lists for bulk drug substances it has placed on the 503B Bulks List and those it has decided not to place on the 503B Bulks List. FDA will only place a bulk drug substance on the 503B Bulks List where it has determined there is a clinical need for outsourcing facilities to compound drug products using the bulk drug substance. If a clinical need to compound drug products using the bulk drug substance has not been demonstrated, based on the information submitted by the nominator and any other information considered by the Agency, FDA will not place a bulk drug substance on the 503B Bulks List.
FDA intends to evaluate the bulk drug substances nominated for the 503B Bulks List on a rolling basis. FDA will evaluate and publish in the
As noted above, the 503B Bulks List will include bulk drug substances for which there is a clinical need. The Agency is beginning its evaluation of some of the bulk drug substances that were nominated for inclusion on the 503B Bulks List, proceeding case by case, under the standard provided by the statute.
The bulk drug substances that we are addressing in this notice are components of FDA-approved drug products, and we therefore began our evaluation by asking the following questions:
(a) Is there a basis to conclude, for each FDA-approved product that includes the nominated bulk drug substance, that (i) an attribute of the FDA-approved drug product makes it medically unsuitable to treat certain patients for a condition that FDA has identified for evaluation, and (ii) the drug product proposed to be compounded is intended to address that attribute?
(b) Is there a basis to conclude that the drug product proposed to be compounded must be produced from a bulk drug substance rather than from an FDA-approved drug product?
The reason for question (a) is that unless an attribute of the FDA-approved drug is medically unsuitable for certain patients, and a drug product compounded using a bulk drug substance that is a component of the approved drug is intended to address that attribute, there is no clinical need to compound a drug product using that bulk drug substance. Rather, such compounding would unnecessarily expose patients to the risks associated with drug products that do not meet the standards applicable to FDA-approved drug products for safety, effectiveness, quality, and labeling and would undermine the drug approval process. The reason for question (b) is that to place a bulk drug substance on the 503B Bulks List, FDA must determine that there is a clinical need for outsourcing facilities to compound a drug product
If the answer to both of these questions is “yes,” there may be clinical need for outsourcing facilities to compound using the bulk drug substance, and we would analyze the question further.
The three bulk drug substances that have been evaluated to date and that FDA is proposing not to place on the list, and the reasons for those proposals, are as follows:
Bumetanide has been nominated for inclusion on the 503B Bulks List to compound a drug product that manages edema associated with congestive heart failure, cirrhosis, and renal disease.
Because bumetanide is a component of an FDA-approved drug product, we considered whether there is a basis to conclude that the drug product proposed to be compounded must be compounded using a bulk drug substance. The nomination does not provide a basis to conclude that a bulk drug substance must be used to prepare a drug product containing bumetanide at concentrations below the concentration of the FDA-approved drug product (0.25 mg/mL). The nomination states that it may not be safer to prepare a drug product at such concentrations by starting with the approved drug; however, the nomination also recognizes that doing so would only require a dilution. It does not take the position or provide support for a position that a bulk drug substance must be used to prepare these concentrations of bumetanide.
Accordingly, FDA finds no basis to conclude that the drug products proposed to be compounded at a lower concentration than FDA-approved bumetanide must be compounded using a bulk drug substance rather than the approved drug product. We also find no basis to conclude that there is a clinical need for an outsourcing facility to compound a drug product using the bulk drug substance bumetanide and, therefore, we propose to not include bumetanide on the 503B Bulks List.
Because we are proposing not to include bumetanide on the 503B Bulks List for this reason, we do not consider question (a) in the analysis described above—whether an attribute of the FDA-approved drug product makes it medically unsuitable to treat certain patients and whether the drug product proposed to be compounded is intended to address that attribute.
Nicardipine hydrochloride has been nominated for inclusion on the 503B Bulks List.
Because nicardipine hydrochloride is a component of an FDA-approved drug product, we considered whether there is a basis to conclude that the drug product proposed to be compounded must be compounded using a bulk drug substance. The nomination does not provide a basis to conclude that a bulk drug substance must be used to prepare drug products containing nicardipine hydrochloride at concentrations at or below the concentrations of the FDA-approved products (0.1, 0.2, and 2.5 mg/mL) and for the same route of administration (intravenous) as that described in the approved drug product labeling. Initially, we note that two nicardipine drug products are approved in ready-to-administer form (
Accordingly, FDA finds no basis to conclude that the drug products proposed to be compounded at a concentration at or lower than FDA-approved nicardipine hydrochloride must be compounded using a bulk drug substance rather than the approved drug product. We also find no basis to conclude that there is clinical need for an outsourcing facility to compound using the bulk drug substance nicardipine hydrochloride and, therefore, we propose to not include nicardipine hydrochloride on the 503B Bulks List. Because we are proposing not to include nicardipine hydrochloride on the 503B Bulks List for this reason, we do not consider question (a) in the analysis described above—whether an attribute of the FDA-approved drug product makes it medically unsuitable to treat certain patients and whether the drug product proposed to be compounded is intended to address that attribute.
Vasopressin was nominated for inclusion on the 503B Bulks List to compound a drug product that treats septic shock, post-cardiotomy shock, diabetes insipidus, and hypotension.
Because vasopressin is a component of an FDA-approved drug product, we considered the nominations under questions (a) and (b) of the analysis described previously.
One of the nominations proposes vasopressin for the 503B Bulks List so that it can be used to compound a drug product whose concentration of vasopressin is higher than undiluted VASOSTRICT. The nomination does not identify an attribute of VASOSTRICT that makes it medically unsuitable for patients and that such high-concentration products are intended to address. The nomination does not identify any data or information as to the need for a higher concentration than the approved product, nor does the nomination identify specific higher concentrations it proposes to compound. In addition, the information provided in the nomination does not identify patients for whom a concentration at or below 20 U/mL is medically unsuitable and who would therefore require a higher concentration, and FDA is not aware of patients who would need concentrations above 20 U/mL.
Both nominations propose vasopressin for the 503B Bulks List so that it can be used to compound drug products whose concentrations of vasopressin are lower than undiluted VASOSTRICT. The nominations do not provide a basis to conclude that a bulk drug substance must be used to prepare a drug product that contains vasopressin at concentrations below the concentration of VASOSTRICT (20 U/mL) and uses the same diluents (dextrose and sodium chloride) and the same route of administration (intravenous) as that described in the approved product labeling. The nominations do not take the position or provide support for the position that a bulk drug substance rather than the FDA-approved drug product must be used to prepare these lower concentrations of vasopressin.
Accordingly, FDA finds no basis to conclude that an attribute of VASOSTRICT makes it medically unsuitable to treat patients such that patients would need a higher concentration higher than that of VASOSTRICT. FDA also finds no basis to conclude that the drug products proposed to be compounded at a lower concentration than VASOSTRICT must be compounded using a bulk drug substance rather than the approved drug. Further, we find no basis to conclude that there is a clinical need for an outsourcing facility to compound
Section 30.18 of the Department of Health and Human Services' claims collection regulations (45 CFR part 30) provides that the Secretary shall charge an annual rate of interest, which is determined and fixed by the Secretary of the Treasury after considering private consumer rates of interest on the date that the Department of Health and Human Services becomes entitled to recovery. The rate cannot be lower than the Department of Treasury's current value of funds rate or the applicable rate determined from the “Schedule of Certified Interest Rates with Range of Maturities” unless the Secretary waives interest in whole or part, or a different rate is prescribed by statute, contract, or repayment agreement. The Secretary of the Treasury may revise this rate quarterly. The Department of Health and Human Services publishes this rate in the
The current rate of 10
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before October 29, 2018.
Submit your comments to
When submitting comments or requesting information, please include the document identifier 0990-New—60D and project title for reference., to
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
The CDC estimates that 23 million women have experienced completed or attempted rape in their lifetimes. (National Intimate Partner and Sexual Violence Survey,
The College Sexual Assault Policy, and Prevention Initiative of the Department of Health and Human Services, Office of Women's Health, has three main goals: (1) Disseminate sexual assault policy and prevention information to organizations in a position to influence and implement policies and practices at post-secondary schools; (2) provide technical assistance to post-secondary schools to establish policies and practices that prevent sexual assault; and (3) assess the success of policy establishment and sustained prevention strategies enacted by partnering organizations and post-secondary schools.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council for Complementary and Integrative Health.
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 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.
Any interested person may file written comments with the committee by forwarding the 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.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Sickle Cell Disease Advisory Committee.
The meeting will be open to the public, 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.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Clinical Trials and Translational Research Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such
Any interested person may file written comments with the committee by forwarding the 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.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
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 a meeting of the Board of Scientific Counselors, National Institute of Mental Health.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Mental Health, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Thirty-Day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0060, Vapor Control Systems for Facilities and Tank Vessels; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
Comments must reach the Coast Guard and OIRA on or before September 27, 2018.
You may submit comments identified by Coast Guard docket number [USCG-2018-0491] to the Coast Guard using the Federal eRulemaking Portal at
(1)
(2)
A copy of the ICR is available through the docket on the internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection. The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2018-0491], and must be received by September 27, 2018.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
OIRA posts its decisions on ICRs online at
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (83 FR 24484, May 29, 2018) required by 44 U.S.C. 3506(c)(2). That Notice elicited no comments. Accordingly, no changes have been made to the Collections.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of California (FEMA-3398-EM), dated July 28, 2018, and related determinations.
The declaration was issued July 28, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency
Notice is hereby given that, in a letter dated July 28, 2018, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of California resulting from a wildfire beginning on July 23, 2018, and continuing, are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, William Roche, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of California have been designated as adversely affected by this declared emergency:
Shasta County for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Notice and request for comments.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. This notice seeks comments concerning the collection of information related to FEMA's temporary housing assistance, which provides temporary housing to eligible survivors of federally declared disasters. This information is required to determine whether a potential site supports the installation of a temporary housing unit, to obtain permission to place the temporary housing unit on the property, to allow ingress and egress to the property where the temporary housing unit is placed, and to document the installation and maintenance of the unit.
Comments must be submitted on or before September 27, 2018.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Information Management Division, 500 C Street SW, Washington, DC 20472, email address
This proposed information collection previously published in the
Comments may be submitted as indicated in the
Science and Technology Directorate, DHS
Committee management; notice of open Federal Advisory Committee meeting.
The Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in-person with the option to join via webinar on Thursday, September 13, 2018. The meeting will be open to the public.
The HSSTAC meeting will take place Thursday, September 13, 2018 from 9:30 a.m. to 5:30 p.m.
The meeting may close early if the committee has completed its business.
Due to security requirements, pre-registration is required for this event. Please see the “REGISTRATION” section below.
The in-person meeting will be held at 1120 Vermont Ave. NW, 8th Floor, Washington, DC 20005. To participate via webinar or for additional information on the webinar, please see the REGISTRATION section below.
You may send comments, identified by docket number DHS-2018-0049 by
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•
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For information on services for individuals with disabilities or to request special assistance at the meeting, please contact the individual listed in the
Michel Kareis, HSSTAC Designated Federal Official, Science and Technology Directorate (S&T) Interagency Office (IAO), STOP 0205, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0205, 202-254-8778 (Office), 202-254-6176 (Fax),
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (Pub. L. 92-463). The committee addresses areas of interest and importance to the Senior Official Performing the Duties of the Under Secretary, such as new developments in systems engineering, cyber-security, knowledge management and how best to leverage related technologies funded by other Federal agencies and by the private sector. It also advises the Under Secretary on policies, management processes, and organizational constructs as needed.
If you plan to attend the meeting in-person, you must RSVP by September 12, 2018. To register for the meeting, email
To pre-register for the webinar, please send an email to
At the end of the open session, there will be a thirty minute period for oral statements. The public is limited to 2 minutes per speaker. Please note that the comments period may end before the time indicated, following the last call for oral statements. To register as a speaker, contact the person listed in the
To facilitate public participation, we invite public comment on the issues to be considered by the committee as listed in the “Agenda” below. Anyone is permitted to submit comments at any time, including orally at the meeting. However, those who would like their comments reviewed by committee members prior to the meeting must submit them in written form no later than September 10, 2018 per the instructions in the
The afternoon session will begin with an emerging technology discussion and subcommittee updates. Information will be provided by the Social Media Working Group for Emergency Services and Disaster Management
There will be a discussion on new topics for the Social Media Working Group for Emergency Services and Disaster Management Subcommittee including future technology shifts and trends in using social media to support disaster management. The final session of the day will be on updates to the whitepapers from the Quadrennial Homeland Security Review Subcommittee along with discussions on technology trends and innovations that impact S&T and DHS mission space.
At the end of the open session, there will be a thirty minute period for oral statements. The public is limited to 2 minutes per speaker. Please note that the comments period may end before the time indicated, following the last call for oral statements.
Meeting materials and the final meeting agenda will be posted on the following website by September 4, 2018:
Department of Homeland Security, Transportation Security Administration.
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to modify and reissue a current DHS system of records titled, “DHS/Transportation Security Administration-001 Transportation Security Enforcement Record System System of Records.” This system of records allows DHS/Transportation Security Administration (TSA) to collect and maintain records related to the TSA's screening of passengers and property, as well as records related to the investigation or enforcement of transportation security laws, regulations, directives, or Federal, State, local, or international law. For example, records relating to an investigation of a security incident that occurred during passenger or property screening would be covered by this system. DHS is updating this system of records notice to cover records relating to the TSA Insider Threat program, modify the category of individuals and category of records, reflect an approved records retention schedule for records covered by this system, and modify two existing routine uses. Additionally, this notice includes non-substantive changes to simplify the formatting and text of the previously published notice. The existing Privacy Act exemptions for this system of records will continue to apply.
This modified system will be included in DHS's inventory of record systems.
Submit comments on or before September 27, 2018. This modified system will be effective upon publication. New or modified routine uses for this modified system of records will be effective September 27, 2018.
You may submit comments, identified by docket number DHS-2018-0017 by one of the following methods:
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For general questions, please contact: Peter Pietra,
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS/TSA proposes to modify and reissue a current DHS system of records notice (SORN) titled, “DHS/TSA-001 Transportation Security Enforcement Record System System of Records.”
This modification more clearly identifies that this SORN contains records relating to the TSA Insider Threat program. In furtherance of TSA's responsibility for security in all modes of transportation and to ensure the adequacy of security measures at airports and other transportation facilities pursuant to its establishing legislation, the Aviation and Transportation Security Act (ATSA), Public Law 107-71, 49 U.S.C. 114(d) and (f), provides authority for TSA to establish its Insider Threat program in order to deter, detect, and mitigate insider threats to TSA's personnel, operations, information, critical infrastructure, and transportation sectors subject to TSA authorities. For purposes of this TSA system of records, “insider threats” are, or present themselves to be, current or former transportation sector workers (including both TSA and private sector personnel) and individuals employed or otherwise engaged in providing services requiring authorized access to transportation facilities, assets, or infrastructure who intend to cause harm to the transportation domain.
This system of records is being modified to: Cover records relating to the TSA's Insider Threat program; include a new category of individuals and category of records; reflect an approved records retention schedules for records covered by this system; and change existing routine uses. The category of individuals covered under this SORN will be modified to reflect that the system may contain information on both current and former owners, operators, and employees in all modes of transportation for which DHS/TSA has security-related duties; and will also cover individuals who have access to Sensitive Security Information (SSI) and are “covered persons” under the Sensitive Security Information regulation, 49 CFR part 1520.7. The category of records in this SORN will be modified to include place of birth; Government-issued identification; citizenship; results of any law enforcement, criminal history record, or open source checks; employment information and work history; and security and access clearances and background investigation information. This SORN also reflects that the applicable records retention schedules are approved by the National Archives and Records Administration (NARA). This SORN modifies routine uses “E” and “F” to be in conformity with Office of Management and Budget Memorandum M-17-12. This SORN
Consistent with DHS's information sharing mission, information covered by DHS/TSA-001 Transportation Security Enforcement Record System may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, TSA may share information with appropriate Federal, State, local, tribal, territorial, foreign, or international government agencies consistent with any applicable laws, rules, regulations, and information sharing and access agreements or arrangements, and as permitted pursuant to an applicable Privacy Act authorized disclosure, including routine uses set forth in this system of records notice.
As stated above, this modified system of records will rely on an existing rule for exempting TSA from certain provisions of the Privacy Act pursuant to 5 U.S.C. secs. 552a(j)(2), (k)(1), and (k)(2). These exemptions are reflected in the final rule published on August 4, 2006, in 71 FR 44223. This modified system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides covered persons with a statutory right to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/TSA-001 Transportation Security Enforcement Record System System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS) Transportation Security Administration (TSA)-001 Transportation Security Enforcement Record System System of Records.
Classified, sensitive.
Records are maintained at the TSA Headquarters offices, 601 South 12th Street, Arlington, Virginia, 20598 and at various TSA field offices.
Information Systems Program Manager,
49 U.S.C. 114(d), 44901, 44903, 44916, 46101, and 46301.
The purpose of this system is to maintain an enforcement and inspections system for all modes of transportation for which TSA has security-related duties and to maintain records related to the investigation or prosecution of violations or potential violations of Federal, State, local, or international criminal law. They may be used, generally, to identify, review, analyze, investigate, and prosecute violations or potential violations of transportation security laws, regulations, and directives or other laws as well as to identify and address potential threats to transportation security. They may also be used to record the details of TSA security-related activity, such as passenger or property screening.
Current and former owners, operators, and employees, including TSA personnel, in all modes of transportation for which DHS/TSA has security-related duties; individuals reported or investigated as insider threat risks (that is, individuals who are, or present themselves to be, current or former transportation sector workers (including both TSA and private sector personnel) and individuals employed or otherwise engaged in providing services requiring authorized access to transportation facilities, assets, or infrastructure who intend to cause harm to the transportation domain); individuals who have access to SSI and are “covered persons” under the Sensitive Security Information regulation, 49 CFR part 1520; witnesses and other third parties who provide information; individuals undergoing screening of their person (including identity verification) or property; individuals against whom investigative, administrative, or civil or criminal enforcement action has been initiated for violation of certain TSA regulations or security directives, relevant provisions of 49 U.S.C. 449, or other laws; and individuals who communicate security incidents, potential security incidents, or otherwise suspicious activities.
Information related to the screening of property and the security screening and identity verification of individuals, including identification media and identifying information such as:
• Individual's name;
• Address;
• Date and place of birth;
• Gender;
• Contact information (
• Social Security number;
• Government-issued identification (
• Citizenship;
• Fingerprints or other biometric identifiers;
• Physical description, photographs or video;
• Travel information or boarding passes;
• Results of any law enforcement, criminal history record, intelligence, immigration, public records or open source checks;
• Military status (branch, traveling on orders);
• Employment information and work history;
• Security and access clearances and background investigations information.
• TSA Information technology network activity information; and
• Information from other agencies (
Additionally, information related to the investigation or prosecution of any
Records are obtained from the alleged violator, TSA employees or contractors, witnesses to the alleged violation or events surrounding the alleged violation, other third parties who provided information regarding the alleged violation, State and local agencies, and other Federal agencies.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or other Federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization 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.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of this system of records; and (2) DHS has determined that as a result of the suspected or confirmed breach, there is a risk of harm to individuals, harm to DHS (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 DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another Federal agency or Federal entity when DHS determines that information from this system of records is reasonably necessary to assist another Federal 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.
G. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
H. To an appropriate Federal, State, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
I. To the United States Department of Transportation, its operating administrations, or the appropriate State or local agency, when relevant or necessary to:
1. Ensure safety and security in any mode of transportation;
2. Enforce safety- and security-related regulations and requirements;
3. Assess and distribute intelligence or law enforcement information related to transportation security;
4. Assess and respond to threats to transportation;
5. Oversee the implementation and ensure the adequacy of security measures at airports and other transportation facilities;
6. Plan and coordinate any actions or activities that may affect transportation safety and security or the operations of transportation operators; or
7. Issue, maintain, or renew a license, certificate, contract, grant, or other benefit.
J. To the appropriate Federal, State, local, tribal, territorial, foreign, or international agency, regarding individuals who pose, or are suspected of posing, a risk to transportation or national security.
K. To federal, state, local, tribal, territorial, foreign, or international agencies, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or the issuance, grant, renewal, suspension, or revocation of a security clearance, license, contract, grant, or other benefit; or to the extent necessary to obtain information relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit.
L. To international and foreign governmental authorities in accordance with law and formal or informal international agreement.
M. To third parties during the course of an investigation into any matter before DHS/TSA to the extent necessary to obtain information pertinent to the investigation.
N. To airport operators, aircraft operators, and maritime and surface transportation operators, indirect air carriers, and other facility operators about individuals who are their employees, job applicants, or contractors, or persons to whom they issue identification credentials or grant clearances to secured areas in transportation facilities when relevant to such employment, application, contract, or the issuance of such credentials or clearances.
O. To any agency or instrumentality charged under applicable law with the protection of the public health or safety
P. With respect to members of the armed forces who may have violated transportation security or safety requirements and laws, to disclose the individual's identifying information and details of their travel on the date of the incident in question to the appropriate branch of the armed forces to the extent necessary to determine whether the individual was performing official duties at the time of the incident. Members of the armed forces include active duty and reserve members, and members of the National Guard. This routine use is intended to permit TSA to determine whether the potential violation must be referred to the appropriate branch of the armed forces for action pursuant to 49 U.S.C. 46301(h).
Q. To the DOJ, U.S. Attorney's Office, or other Federal agencies for further collection action on any delinquent debt when circumstances warrant.
R. To a debt collection agency for the purpose of debt collection.
S. To airport operators, aircraft operators, air carriers, maritime, and surface transportation operators, indirect air carriers, or other facility operators when appropriate to address a threat or potential threat to transportation security or national security, or when required for administrative purposes related to the effective and efficient administration of transportation security laws.
T. To a former employee of DHS, in accordance with applicable regulations, for purposes of responding to an official inquiry by a Federal, State, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
U. To a court, magistrate, or administrative tribunal when a Federal agency is a party to the litigation or administrative proceeding 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.
V. To the public, on the TSA website at
W. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy.
X. To the appropriate Federal, State, local, tribal, territorial, foreign, or international agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, order, license, or treaty, when DHS/TSA determines that the information would assist in the enforcement of a civil or criminal law.
DHS/TSA stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
DHS/TSA retrieves records by name, address, Social Security number, administrative action or legal enforcement numbers, or other assigned identifier of the individual on whom the records are maintained.
Retention and disposal varies depending on the type of record. Passenger, baggage, and cargo screening incident reports that are not referred for investigation are maintained for three years from the end of the fiscal year in which they were created, in accordance with NARA authority, N1-560-12-002. Security incident reports are cut off at the end of involvement and destroyed four years after cut-off (N1-560-03-6). Items that are referred for investigation within TSA or to an outside agency are destroyed 25 years after the case is closed (N1-560-03-6). Insider Threat information and inquiry records are destroyed no sooner than five years after an inquiry is opened and 25 years after a case is closed, in accordance with NARA authority DAA-GRS-2017-0006.
DHS/TSA safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. TSA has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act, and the Judicial Redress Act if applicable, because it is a law enforcement system. However, DHS/TSA will consider individual requests to determine whether or not information may be released. Thus, individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and the TSA Freedom of Information Act (FOIA) Officer, whose contact information can be found at
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify your identity, meaning that the individual must provide his/her full name, current address, and date and place of birth. The individual must sign his/her request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, an individual may obtain
• Explain why he or she believes the Department would have information on him/her;
• Identify which component(s) of the Department the individual believes may have the information about him/her;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records;
If an individual's request is seeking records pertaining to another living individual, the first individual must include a statement from the second individual certifying his/her agreement for you to access his/her records.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered JRA records, individuals may make a request for amendment or correction of a record of the Department about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record.
See “Record Access Procedures.”
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted portions of this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(3), (e)(4)(G), (H), and (I); and (f). Portions of the system pertaining to investigations or prosecutions of violations of criminal law are exempt under 5 U.S.C. 552a(j)(2). Further, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), has exempted portions of this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (H), and (I); and (f).
78 FR 73868 (Dec. 9, 2013); 75 FR 28042 (May 19, 2010); 71 FR 44223 (Aug. 4, 2006).
Bureau of Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 29, 2018.
Send your comments on the information collection request (ICR) by mail to Mr. Les Jensen, Bureau of Indian Affairs, 1849 C Street NW, Mail Stop 4660, Washington, DC 20240; or by email to
To request additional information about this ICR, contact Mr. Les Jensen by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BIA (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BIA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BIA minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. 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.
A.
B.
C.
D.
E.
F.
G.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of the Secretary, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of the Secretary, Department of the Interior are proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before September 27, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Marta Kelly, National Park Service, U.S. Department of the Interior, 1849 C Street NW, MS 2266-MIB, Washington, DC 20240, fax 202-354-2825, or by email to
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We published a
As to the desire to collect from PLC Corpsmembers “agency work for, partner organization, project dates, where the work was completed, and total hours worked on the specific project,” it would be useful to have a profile for each partner organization and Corpsmember on the new system that
As to Corpsmembers providing “qualifying factors and training” when developing a profile, we would urge further clarification and standardization around what those may be, as unclear definitions could hurt recruitment and placement of individuals with the wrong opportunities. In addition, it may be challenging to leave it up to Corpsmembers or the public to determine their qualifying factors, training, and skill sets for certain projects or programs that Corps offer. Our Corps use their own recruiting, training, and screening processes to hire Corpsmembers and meet project partner's goals. Our Corps are liable for meeting the goals of a project agreement and for the safety of Corpsmembers and the public, so we should maintain an ability to screen and train Corpsmembers as necessary.
Collection of information around accomplishments of partner organizations, and hours for NCE, housed electronically in one system will help with timeliness of compilation and utilization of this data. At the same time, if Corps are still required to report to the various DOI units, states, regions, and nationally and report through this new system, it will slow down the process and create an additional burden. Data is only as good as the inputs, so ensuring uniform definitions and categories for collection across DOI, and other federal partners utilizing this system, will be critical and will ease processing and use of data.
Given the different features envisioned through the new online portal system it is difficult for us to estimate the hour's burden. If DOI internally utilizes such data, or Corps are able to utilize existing information already provided to various DOI bureaus, the hour's burden would be lower. Additionally, if Corpsmembers are able to enter their information for NCE one time toward the end of their term of service, and Corps themselves had the ability to upload Corpsmember information if necessary, that would be helpful in reducing the burden.
Again, data is only as good as the inputs, so ensuring uniform definitions and categories for collection across DOI, and other federal partners utilizing this system, will be critical, and will ease processing and use of data. For example, when considering the Partnerships Module in the past, DOI defined “partner hires” based on the number of hours a Corpsmember worked through a partner organization for a DOI bureau. In order to ensure accurate data, definitions like this should be developed with input from partners, be uniform across DOI and projects should be tracked for example by partner organization, legal authority, dollar figure, and project type in order for DOI to accurately collect information. It should not be the burden of partner organizations to track the data though as these are DOI accomplishes these projects with DOI funding. A uniform system for tracking and reporting this information across DOI should streamline this information collection, and/or require a re-examination of existing data sources to be uniform across DOI.
On the Stewards Engagement Portal, one challenge with the utilization of PLC NCE is the inability to represent NCE electronically or search for NCE-approved jobs on USA Jobs. Developing the ability for Corpsmembers who qualify for NCE to have a PLC NCE designation on their profile on USA Jobs would be helpful, and adding a search term for job postings, or some kind of PLC NCE signifier or certification would also be helpful. An additional consideration is that the federal project supervisor must certify the hours, and sign off on the certificate for NCE. An electronic system where project sponsors are able to certify the hours, and sign a digital certificate would eliminate paperwork and delays.
Again, we believe that a large amount of data is already available through the annual reporting our Corps provide to individual DOI units, states, regions, or the national office and through internal DOI bureau data sets and project information systems. It may warrant an examination of those existing sources and their reporting mechanisms to see how they can be fed in to this new online portal. After an examination of existing data sources and collection requirements by DOI, if there needs to be a new collection of information, we encourage there to be some thoughtfulness around data compatibility, and for batch upload ability along with an examination of what information is truly necessary to demonstrate the impact and outcomes.
Corps also report outcomes and performance measures to the Corporation for National and Community Service, which administers
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the Office of the Secretary (OS); (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the OS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the OS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Federal natural and cultural resources management agencies are authorized to manage volunteers, youth programs, and partnerships to recruit, train, and accept the services of citizens to aid in disaster response, interpretive functions, visitor services, conservation measures and development, research and development, recreation, and or other activities as allowed by an agency's policy and regulations. Providing, collecting and exchanging written and electronic information is required from potential and selected program participants of all ages so they can access opportunities and benefits provided by agencies guidelines. Those under the age of 18 years must have written consent from a parent or guardian.
The customer relationship management web based portals are the agencies response to meeting citizens' requests for improved digital customer services to access and apply for engagement opportunities. Secure under one security platform parameter, the portals provide for prospective and current program participants to establish an account for electronic submission of program applications and to obtain status of applications, enrollments, benefits, and requirements. Additionally, citizens have the option of using self-service features to report hours, apply for opportunities, or register for program benefits such as America the Beautiful Pass, Public Land Corps register or Service Learning verification. This collection includes the modernization of electronic process so citizens maintain portal accounts with single program application that can be reused to apply for all interested opportunities verse requiring program participants to electronically complete the application anew for each opportunity they wish to be considered. This specifically minimizes the burden on this collection on the respondents. While electronic records provides a means to streamline data collection and allow citizen access to track benefits and control the sharing of their data, the participating agencies may also provide an accessible paper version of the volunteer forms.
The Partnerships Module collects information from various partnership and volunteer organizations which are under national agreements to manage services and programs on public lands for citizens and provides an annual summary of their activities.
The Cooperating Association Module collects information from not-for-profit public lands partners under national agreements to manage bookstores and sales items with federal agencies.
This request for comments on the information collection is being published by the Office of the Secretary, Department of the Interior and includes the use of common forms that can be leveraged by other Federal agencies. The burden estimates reflected in this notice is only for the Department of the Interior. Other Federal agencies wishing to use the common forms must submit their own burden estimates and provide notice to the public accordingly.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of the Secretary, Interior.
Meeting notice.
The Department of the Interior, Office of the Secretary is announcing a public meeting of the
September 26, 2018, at 9:30 a.m. AKST.
Glenn Olds Hall Conference Room, 4210 University Drive, Anchorage, Alaska.
Dr. Philip Johnson, Department of the Interior, Office of Environmental Policy and Compliance, 1689 “C” Street, Suite 119, Anchorage, Alaska, (907) 271-5011.
The EVOS Public Advisory Committee was created pursuant to Paragraph V.A.4 of the Memorandum of Agreement and Consent Decree entered into by the United States of America and the State of Alaska on August 27, 1991, and approved by the United States District Court for the District of Alaska in settlement of
The EVOS Public Advisory Committee meeting agenda will include discussion of outreach proposals and habitat parcels. An opportunity for public comments will be provided. The final agenda and materials for the meeting will be posted on the EVOS Trustee Council website at
Interested members of the public may submit relevant information or questions for the Committee to consider during the public meeting. Written statements must be received by August 31, 2018, so that the information may be made available to the Committee for their consideration prior to this meeting. Written statements must be supplied to Dr. Philip Johnson (see
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Summary minutes of the conference will be maintained by the Council Designated Federal Officer (see
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before September 27, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Samuel R.M. Burton by email at
In accordance with the Paperwork Reduction Act of 1995, the BLM provides the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BLM; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BLM enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BLM minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
• Quarterly for the Refined Helium Deliveries Detail;
• Annually for the Calculation of Excess Refining Capacity and Refiners' Annual Tolling Report; and
• On occasion for the Refiners' Tolling Occurrence Report.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Land Management (BLM), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before September 27, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Mark Purdy by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format. A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BLM; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BLM enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BLM minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The information that the BLM collects is necessary to ensure that each RAC is structured to provide fair membership balance, as prescribed by each RAC's charter.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
On the basis of the record
The Commission, pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)), instituted these investigations effective July 13, 2017, following receipt of a petition filed with the Commission and Commerce by the Cast Iron Soil Pipe Institute, Mundelein, Illinois. The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of cast iron soil pipe fittings from China were subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)) and sold at LTFV within the meaning of 733(b) of the Act (19 U.S.C. 1673b(b)).
Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)). It completed and filed its determinations in these investigations on August 22, 2018. The views of the Commission are contained in USITC Publication 4812 (August 2018), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 of the Tariff Act of 1930 (“section 337”), as amended, in this investigation. The Commission has issued a limited exclusion order prohibiting the importation of certain graphics systems and televisions containing the same that infringe claim 1-5 and 8 of U.S. Patent No. 7,633,506 (“the '506 patent”). The Commission has also issued cease and desist orders directed to Respondents VIZIO, Inc. (“VIZIO”) and Sigma Designs, Inc. (“SDI”). The Commission has further determined to deny Complainants' motion for leave to amend the complaint and the notice of investigation. The investigation is terminated.
Houda Morad, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-4716. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Commission instituted Investigation No. 337-TA-1044 on March 22, 2017, based on a complaint filed by Complainants
On October 20, 2017, the ALJ issued an initial determination terminating the investigation as to LG based on settlement.
On April 13, 2018, the ALJ issued her final Initial Determination (“FID”) and Recommended Determination on Remedy and Bond (“RD”) finding a violation of section 337 with respect to the '506 patent but not the '133 patent. Specifically, the FID finds that: (1) Certain accused products infringe the asserted claims of the '506 patent but not the '133 patent; (2) the asserted claims are not invalid; and (3) Complainants satisfy the economic and technical prongs of the domestic industry requirement with respect to both asserted patents. In addition, the ALJ recommended that the Commission issue: (1) A Limited Exclusion Order against the infringing accused products; and (2) Cease and Desist Orders against Respondents VIZIO and SDI. The ALJ further recommended against setting a bond during Presidential review.
On June 14, 2018, the Commission issued a Notice determining to review the FID in part.
On June 26, 2018, Complainants filed a motion for leave to amend the complaint and notice of investigation to add V-Silicon Inc. and V-Silicon International, Inc. as respondents in this investigation (
In addition, having examined the record of this investigation, including the FID, the RD, and the parties' submissions, the Commission has determined to affirm the FID's ultimate conclusions of a section 337 violation with respect to the '506 patent and no section 337 violation with respect to the '133 patent. In addition, the Commission has determined to modify the FID in part with respect to: (1) The importation requirement as to Respondents MediaTek and SDI; and (2) the claim construction of the terms “unified shader,” “packet,” and “ALU/memory pair” as well as certain related FID findings on infringement, validity, and the technical prong of the domestic industry requirement. All findings in the FID that are not inconsistent with the Commission's determination are affirmed.
Accordingly, the Commission finds that there is a violation of section 337 with respect to the '506 patent. The Commission has determined that the appropriate remedy is a limited exclusion order against Respondents' infringing products, and cease and desist orders against Respondents VIZIO and SDI. The Commission has also determined that the public interest factors enumerated in subsections 337(d)(l) and (f)(1) (19 U.S.C. 1337(d)(l), (f)(1)) do not preclude the issuance of the limited exclusion order and cease and desist orders. The Commission has further determined to set a bond at zero (0) percent of entered value during the Presidential review period (19 U.S.C. 1337(j)).
The Commission's orders and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Weeks of August 27, September 3, 10, 17, 24, October 1, 2018.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of August 27, 2018.
There are no meetings scheduled for the week of September 3, 2018.
10:00 a.m. Briefing on NRC International Activities (Closed—Ex. 1 & 9).
There are no meetings scheduled for the week of September 17, 2018.
10:00 a.m. Strategic Programmatic Overview of the Operating Reactors Business Line (Public), (Contact: Trent Wertz: 01-415-1568).
This meeting will be webcast live at the web address—
There are no meetings scheduled for the week of October 1, 2018.
For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or you may email
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to publish notice of any amendments issued, or proposed to be issued, and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued, from July 31, 2018, to August 13, 2018. The last biweekly notice was published on August 14, 2018.
Comments must be filed by September 27, 2018. A request for a hearing must be filed by October 29, 2018.
You may submit comments by any of the following methods:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Janet Burkhardt, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1384; email:
Please refer to Docket ID NRC-2018-0181, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2018-0181, facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment provides a Condition and Required Actions for more than one inoperable digital rod position indications (DRPI) per rod group. The DRPls are not an initiator of any accident previously evaluated. The DRPls are one indication used by operators to verify control rod insertion following an accident; however other indications are available. Therefore, allowing a finite period of time to correct more than one inoperable DRPI prior to requiring a plant shutdown will not result in an increase in the consequences of any accident previously evaluated. The proposed amendment does not involve an increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment does not involve a physical alteration to the plant (
3. Does the proposed amendment involve a significant reduction in the margin of safety?
The proposed amendment provides time to correct the condition of more than one DRPI inoperable in a rod group. Compensatory measures are required to verify that the rods monitored by the inoperable DRPls are not moved to ensure that there is no effect on core reactivity. Requiring a plant shutdown with inoperable rod position indications introduces plant risk and should not be initiated unless the rod position indication cannot be repaired in a reasonable period. As a result, the safety benefit provided by the proposed Condition offsets the small decrease in safety resulting from continued operation with more than one inoperable DRPI. Therefore, the proposed amendment does not involve a reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
No. The proposed TS change, which adds a Surveillance Requirement to TS 3.8.1 to test the automatic Keowee auxiliary power transfer circuitry, will allow ONS [Oconee Nuclear Station] to credit an existing design feature to facilitate mitigation of a postulated single failure. The proposed change does not modify the reactor coolant system pressure boundary, nor make any physical changes to the facility design, material, or construction standards. The proposed change is needed to eliminate a previously unrecognized single failure concern that resulted in a non-conservative TS. The proposed change does not affect the safety analyses thus dose consequences will remain within analyzed and acceptable limits. The probability of any design basis accident (DBA) is not increased by this change, nor are the consequences of any DBA increased by this change. The proposed change does not involve changes to any structures, systems, or components (SSCs) that can alter the probability for initiating a DBA event.
Therefore, the proposed TS change does not significantly increase the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
No. The proposed new Surveillance Requirement to test the automatic Keowee auxiliary power transfer circuitry will allow ONS to credit an existing design feature to facilitate mitigation of a postulated single failure. The proposed change does not alter the plant configuration (no new or different type of equipment will be installed) or make changes in methods governing normal plant operation. The automatic Keowee auxiliary power transfer circuitry is currently installed and in use but not credited for accident mitigation. No new failure modes are identified, nor are any SSCs required to be operated outside the design bases. Therefore, the possibility of a new or different kind of accident from any kind of accident previously evaluated is not created.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
No. The proposed new Surveillance Requirement to test the automatic Keowee auxiliary power transfer circuitry will allow ONS to credit an existing design feature to facilitate mitigation of a postulated single failure. The proposed change does not involve: (1) A physical alteration of the Oconee Units; (2) the installation of new or different equipment; (3) a change to any set points for parameters which initiate protective or mitigation action; or (4) any impact on the fission product barriers or safety limits. As long as the equipment continues to perform as expected and within the guidelines captured in the safety analyses, the change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change does not modify any plant equipment or affect plant operation. The proposed change neither impacts any structures, systems, or components (SSCs), nor alters any plant processes or procedures. The proposed change is administrative in nature and cannot adversely impact safety.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change has no impact on the design, function or operation of the plants. The proposed change is administrative in nature, and thereby cannot introduce new failure modes or unanticipated outcomes.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed change does not affect plant safety margins or the reliability of the equipment assumed to operate in the safety analyses. The proposed change is administrative in nature, and thereby cannot affect any safety analysis assumptions, safety limits or limiting safety system settings.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The use of flexible metallic conduit to be used other than to connect components or to be used in greater than short lengths does not impact fire prevention. Flexible metallic conduit has been in use since original plant construction, is allowed by the National Electrical Code and is not expected to increase the potential for a fire to start.
The introduction of flexible metallic conduit does not create ignition sources and does not impact fire prevention. Cable installation procedures are utilized to ensure that the use of flexible metallic conduit is in accordance with the CNP design change process. Also, the use of flexible metallic conduit does not result in compromising automatic fire suppression functions, manual fire suppression functions, fire protection for systems and structures, or post-fire safe shutdown capability.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do allow future physical changes to the facility that deviate from NFPA 805 requirements. However, the proposed changes do not alter any assumptions made in the safety analyses, nor do they involve any changes to plant procedures for ensuring that the plant is operated within analyzed limits. As such, no new failure modes or mechanisms that could cause a new or different kind of accident from any previously evaluated are being introduced.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed changes do not alter the manner in which safety limits or limiting safety system settings are determined. No changes to instrument/system actuation setpoints are involved. The safety analysis acceptance criteria are not affected by this change and the proposed changes will not permit plant operation in a configuration outside the design basis.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change removes the volume of diesel fuel oil and lube oil required to support 7-day operation of an onsite diesel generator, and the volume equivalent to a 6-day supply, to licensee control. The specific volume of fuel oil equivalent to a 7 and 6-day supply is calculated using the Nuclear Regulatory Commission (NRC) approved methodology described in Regulatory Guide 1.137, Revision 1, “Fuel-Oil Systems for Standby Diesel Generators” and ANSI [American National Standards Institute] N195 1976, “Fuel Oil [S]ystems for Standby Diesel-Generators.” The specific volume of lube oil equivalent to a 7-day and 6-day supply is based on a conservative consumption value of 3 gallons/hour for the run time of the diesel generator. Because the requirement to maintain a 7-day supply of diesel fuel oil and lube oil is not changed and is consistent with the assumptions in the accident analyses, and the actions taken when the volume of fuel oil and lube oil are less than a 6-day supply have not changed, neither the probability nor the consequences of any accident previously evaluated will be affected.
The proposed change also relocates the volume of diesel fuel oil required to support 3.9 hours of diesel generator operation at full load in the day tank. The specific volume and time is not changed and is consistent with the existing plant design basis to support the emergency diesel generator under accident loading conditions.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The change does not involve a physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change relocates the volume of diesel fuel oil and lube oil required to support 7-day operation of an onsite diesel generator, the volume equivalent to a 6-day supply, and 3.9 hour day tank supply to licensee control. As the bases for the existing limits on diesel fuel oil, and lube oil are not changed, no change is made to the accident analysis assumptions and no margin of safety is reduced as part of this change.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change addresses conditions during which the secondary containment SRs [surveillance requirements] are not met. The secondary containment is not an initiator of any accident previously evaluated. As a result, the probability of any accident previously evaluated is not increased. The consequences of an accident previously evaluated while utilizing the proposed changes are no different than the consequences of an accident while utilizing the existing four hour Completion Time for an inoperable secondary containment. In addition, the proposed Note for SR 3.6.4.1.1 provides an alternative means to ensure the secondary containment safety function is met. As a result, the consequences of an accident previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any previously evaluated?
The proposed change does not alter the protection system design, create new failure modes, or change any modes of operation. The proposed change does not involve a physical alteration of the plant and no new or different kind of equipment will be installed. Consequently, there are no new initiators that could result in a new or different kind of accident.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change addresses conditions during which the secondary containment SR is not met. Conditions in which the secondary containment vacuum is less than the required vacuum are acceptable provided the conditions do not affect the ability of the SGT [Standby Gas Treatment] System to establish the required secondary containment vacuum under post-accident conditions within the time assumed in the accident analysis. This condition is incorporated in the proposed change by requiring an analysis of actual environmental and secondary containment pressure conditions to confirm the capability of the SGT System is maintained within the assumptions of the accident analysis. Therefore, the safety function of the secondary containment is not affected. The allowance for both an inner and outer secondary containment door to be open simultaneously for entry and exit does not affect the safety function of the secondary containment as the doors are promptly closed after entry or exit, thereby restoring the secondary containment boundary.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes to the TS will not alter the way any structure, system, or component (SSC) functions, and will not alter the manner in which the plant is operated. The proposed changes do not alter the design of any SSC. Therefore the probability of an accident previously evaluated is not significantly increased.
The proposed changes more accurately align the TS with the design bases accident analysis for the main steam line break, feedwater line break and feedwater malfunction. Therefore, the consequences of an accident previously evaluated are not increased.
Therefore, these proposed changes do not represent a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not involve a modification to the physical configuration of the plant or changes in the methods governing normal plant operation. The proposed changes do not impose any new or different requirement or introduce a new accident initiator, accident precursor, or malfunction mechanism.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Do[es] the proposed [change] involve a significant reduction in a margin of safety?
The proposed changes to the TS impose requirements that are consistent with assumptions in the safety analyses. The proposed changes will not result in changes to system design or setpoints that are intended to ensure timely identification of plant conditions that could be precursors to accidents or potential degradation of accident mitigation systems.
The proposed amendment will not result in a design basis or safety limit being exceeded or altered. Therefore, since the proposed changes do not impact the response of the plant to a design basis accident, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes do not adversely affect accident initiators or precursors or alter the design assumptions, conditions, or configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not alter or prevent the ability of structures, systems, and components (SSCs) to perform their intended function to mitigate the consequences of an initiating event within the acceptance limits. The proposed changes do not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. The proposed change is consistent with and continues to support the safety analysis assumptions and resultant consequences.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not alter or involve any design basis accident initiators. The changes to the Technical Specifications regarding RWST operational limits are primarily administrative in nature and do not affect the design or operation of the plant. Increasing the allowable out of service time (AOT) for the RWST does not cause any plant systems to become initiators of a new or different type of accident. Systems and equipment will be operated in the same configuration and manner that is currently allowed and for which the systems were designed.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change does not alter the permanent plant design, including instrument set points, nor does it change the assumptions contained in the safety analyses.
The RWST continues to meet the design requirements relative to core and containment cooling and reactivity control; there is no reduction in capability or change in design configuration. Increasing the RWST AOT for reasons directly related to boron concentration or temperature does not affect any accident analysis assumptions, initial conditions, or results. Adding an upper temperature limit to the LCO [limiting condition for operation] for TS 3.5.5 ensures the RWST remains within temperature ranges assumed in the plant's safety analyses. Removing the upper limit on RWST volume does not alter the RWST design and the limit is not used as an input or assumption in any plant safety analysis. The proposed changes do not alter a design basis or safety limit.
Therefore, it is concluded that the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the
1. Does the proposed change involve a significant increase in the probability or consequence of an accident previously evaluated?
The proposed change will permit the use of a risk-informed categorization process to modify the scope of structures, systems, and components (SSCs) subject to Nuclear Regulatory Commission (NRC) special treatment requirements and to implement alternative treatments per the regulations. The process used to evaluate SSCs for changes to NRC special treatment requirements and the use of alternative requirements ensures the ability of the SSCs to perform their design function. The potential change to special treatment requirements does not change the design and operation of the SSCs. As a result, the proposed change does not significantly affect any initiators to accidents previously evaluated or the ability to mitigate any accidents previously evaluated. The consequences of the accidents previously evaluated are not affected because the mitigation functions performed by the SSCs assumed in the safety analysis are not being modified. The SSCs required to safely shut down the reactor and maintain it in a safe shutdown condition following an accident will continue to perform their design functions.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change will permit the use of a risk-informed categorization process to modify the scope of SSCs subject to NRC special treatment requirements and to implement alternative treatments per the regulations. The proposed change does not change the functional requirements, configuration, or method of operation of any SSC. Under the proposed change, no additional plant equipment will be installed.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change will permit the use of a risk-informed categorization process to modify the scope of SSCs subject to NRC special treatment requirements and to implement alternative treatments per the regulations. The proposed change does not affect any safety limits or operating parameters used to establish the safety margin. The safety margins included in analyses of accidents are not affected by the proposed change. The regulation requires that there be no significant effect on plant risk due to any change to the special treatment requirements for SSCs and that the SSCs continue to be capable of performing their design basis functions, as well as to perform any beyond design basis functions consistent with the categorization process and results.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notice was previously published as a separate individual notice. The notice content was the same as above. It was published as an individual notice either because time did not allow the Commission to wait for this biweekly notice or because the action involved exigent circumstances. It is repeated here because the biweekly notice lists all amendments issued or proposed to be issued involving no significant hazards consideration.
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 31, 2018.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 25, 2018.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 31, 2018.
The Commission's related evaluation of the amendments is contained in a safety evaluations dated August 2, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 1, 2018.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated August 7, 2018.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated August 10, 2018.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated August 6, 2018.
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of request for OMB approval.
The Pension Benefit Guaranty Corporation (PBGC) is requesting that OMB approve, under the Paperwork Reduction Act, a survey of terminated and insolvent multiemployer pension plans to obtain withdrawal liability information. PBGC needs the withdrawal liability information to estimate its multiemployer program liabilities for purposes of its financial statements. This notice informs the public of PBGC's request and solicits public comment on the collection of information.
Comments must be submitted by September 27, 2018.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at
A copy of the request will be posted on PBGC's website at
Hilary Duke (
When a contributing employer withdraws from an underfunded multiemployer pension plan, the plan sponsor assesses withdrawal liability against the employer. The plan sponsor is required to determine and collect withdrawal liability in accordance with section 4219 of the Employee Retirement Income Security Act of 1974 (ERISA). The plan sponsor assesses withdrawal liability by issuing a notice to an employer, including the amount of the employer's liability and a schedule of payments. PBGC's regulation on Notice, Collection, and Redetermination of Withdrawal Liability (29 CFR part 4219) requires the plan sponsor to file with PBGC a certification that notices have been provided to employers.
PBGC is proposing to collect information about withdrawal liability that is owed by withdrawn employers of terminated
On June 21, 2018, PBGC published (at 83 FR 28871) a notice of its intent to request OMB approval of the survey of multiemployer pension plan withdrawal liability information described above. No comments were received on the proposed submission of information collection.
PBGC is requesting that OMB approve PBGC's use of this survey for three years. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The survey initially would be sent to approximately 65 plans.
Issued in Washington, DC.
On January 4, 2018, NYSE Arca, Inc. (“NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On March 1, 2018, pursuant to Section 19(b)(2) of the Exchange Act,
This order disapproves the proposed rule change. Although the Commission is disapproving this proposed rule change, the Commission emphasizes that its disapproval does not rest on an evaluation of whether bitcoin, or blockchain technology more generally, has utility or value as an innovation or an investment. Rather, the Commission is disapproving this proposed rule change because, as discussed below, the Exchange has not met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposal is consistent with the requirements of the Exchange Act Section 6(b)(5), in particular the requirement that a national securities exchange's rules be designed to prevent fraudulent and manipulative acts and practices.
The Exchange proposes to list and trade the Shares under NYSE Arca Rule 8.200-E, Commentary .02, which
According to the Notice, the Funds will seek to obtain daily short, leveraged long, or leveraged short exposure (before fees and expenses) to the target benchmark, which is the lead-month bitcoin futures contract traded on the Chicago Mercantile Exchange (“CME”), the Cboe Global Markets, Inc. (“CBOE”), or any other U.S. exchange that subsequently trades bitcoin futures contracts (“Bitcoin Futures Contract”).
According to the Notice, the target benchmark's value will be calculated as the last sale price published by CME or CBOE, or any other U.S. exchange that subsequently trades bitcoin futures contracts, on or before 11:00 a.m. E.T. for the Bitcoin Futures Contract and may reflect trades occurring and published by CME, CBOE, or another U.S. exchange that subsequently trades bitcoin futures contracts outside the normal trading session for the Bitcoin Futures Contract.
According to the Notice, each Fund, under normal market conditions, will seek to achieve its daily investment objective by investing in the Bitcoin Futures Contract, swaps on the Bitcoin Futures Contract, or listed options on bitcoin or the Bitcoin Futures Contract (collectively, “Bitcoin Financial Instruments”). The Funds' investments in Bitcoin Financial Instruments will be used to produce economically “leveraged” or “inverse leveraged” investment results for the Funds.
[U]nlike the futures markets for traditional physical commodities, the market for exchange-traded bitcoin futures contract[s] has limited trading history and operational experience and may be riskier, less liquid, more volatile and more vulnerable to economic, market and industry changes than more established futures markets. The liquidity of the market will depend on, among other things, the adoption of bitcoin and the commercial and speculative interest in the market for the ability to hedge against the price of bitcoin with exchange-traded bitcoin futures contracts.
The Exchange represents that trading in the Shares of each Fund will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The Commission must consider whether the Exchange's proposal is consistent with Exchange Act Section 6(b)(5), which requires, in relevant part, that the rules of a national securities exchange be designed “to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.”
The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,
To approve the Exchange's proposal to list the Shares, the Commission must be able to find that the proposal is, consistent with Exchange Act Section 6(b)(5), “designed to prevent fraudulent
The Commission has therefore determined that, if the listing exchange for an ETP fails to establish that other means to prevent fraudulent and manipulative acts and practices will be sufficient, the listing exchange must enter into a surveillance-sharing agreement with a regulated market of significant size because “[s]uch agreements provide a necessary deterrent to manipulation because they facilitate the availability of information needed to fully investigate a manipulation if it were to occur.”
Although the Winklevoss Order applied these standards to a commodity-trust ETP based on bitcoin, the Commission believes that these standards are also appropriate for an ETP based on bitcoin futures. When approving the first commodity-futures ETP, the Commission specifically noted that “[i]nformation sharing agreements with primary markets trading index components underlying a derivative product are an important part of a self-regulatory organization's ability to monitor for trading abuses in derivative products.”
Accordingly, the Commission examines below whether the representations by the Exchange, and the comments received from the public, support a finding that the Exchange has entered into a surveillance-sharing agreement with a market of significant size relating to bitcoin, the asset underlying the proposed ETPs, or that alternative means of preventing fraud and manipulation would be sufficient to satisfy the requirement of Exchange Act Section 6(b)(5) that the proposed rule change be designed to prevent fraudulent and manipulative acts and practices.
One commenter states that the market for bitcoin derivatives other than bitcoin exchange-traded futures appears to be developing and that financial institutions are reportedly moving toward launching bitcoin-related trading desks and other operations. This commenter believes that the proposed offering of both long and short ETPs raises the possibility that market makers in bitcoin-related derivatives could make two-sided markets if interest in the long and short ETPs is similar in magnitude. The commenter further believes that interest outside of the bitcoin ETPs may be sufficient to motivate market makers to maintain
This commenter states that a commonly cited factor mitigating possible susceptibility to manipulation is the securities exchanges' own surveillance procedures, in addition to the futures exchanges' surveillance procedures and market surveillance and oversight by the Commodity Futures Trading Commission (“CFTC”). This commenter cites statements by the CFTC that it has the legal authority and means to police certain spot markets for fraud and manipulation through “heightened review” collaboration with exchanges, that exchanges will provide the CFTC surveillance team with trade settlement data upon request, and that the exchanges will enter into information-sharing agreements with spot market platforms and monitor trading activity on the spot markets. The commenter also states that the Gemini exchange has announced that it would use Nasdaq's market surveillance system to monitor its marketplace.
This commenter further asserts that market surveillance is generally a prerequisite to identifying potential market manipulation and discourages market manipulation. The commenter believes that the emergence of institutionalized market surveillance on both futures and spot markets is a positive sign for the long-term future of bitcoin markets.
Unlike previous proposals for bitcoin-based ETPs,
While the Exchange would, pursuant to its listing rules, be able to obtain certain information regarding trading in the Shares and in the underlying bitcoin or any bitcoin derivative through registered market makers,
The Exchange represents that it is able to share surveillance information with CME and CBOE, which are bitcoin futures markets regulated by the CFTC, through membership in the Intermarket Surveillance Group.
The Order Instituting Proceedings sought comment on whether the CME and CBOE bitcoin futures markets are markets of significant size,
The Commission also notes that in recent testimony CFTC Chairman Giancarlo characterized the volume of the bitcoin futures markets as “quite small.”
Furthermore, according to the Notice, under normal market conditions, each Fund intends to obtain exposure to its target benchmark by investing in the Bitcoin Futures Contract as well as other Bitcoin Financial Instruments, which could be options on bitcoin or the Bitcoin Futures Contract and swaps on the Bitcoin Futures Contract.
While one commenter suggests that the market for bitcoin derivatives other than exchange-traded futures appears to be developing—and that the offering of long and short bitcoin ETPs “raises the possibility that market makers in Bitcoin derivatives could make two-sided markets if interest in both the long and short ETFs is similar in magnitude”
The Commission therefore concludes that Exchange has not demonstrated that it has entered into a surveillance-sharing agreement with a regulated market of significant size related to bitcoin, or that, given the current absence of such an agreement, the exchange's own surveillance procedures described above would, by themselves, be sufficient to satisfy the requirement of Exchange Act Section 6(b)(5) that an exchange's rules be designed to prevent fraudulent and manipulative acts and practices.
Although the Exchange has not demonstrated that a regulated bitcoin futures market of significant size currently exists, the Commission is not suggesting that the development of such a market would automatically require approval of a proposed rule change seeking to list and trade shares of an ETP holding bitcoins as an asset. The Commission would need to analyze the facts and circumstances of any particular proposal and examine whether any unique features of a bitcoin futures market would warrant further analysis before approval.
One commenter asserts that approval of the proposed ETPs would provide greater security in the cryptocurrency market, such as greater liquidity, transparency, and safe custody of assets.
One commenter suggests that the Commission could address some of its concerns about the proposed ETPs by working with self-regulatory organizations, and in particular FINRA, to create bitcoin and cryptocurrency-related asset suitability requirements. In addition, this commenter suggests that targeted disclosure requirements could make investors aware of volatility, discourage retail investors from investing more than a small portion of their portfolio in cryptocurrency-related assets, and present historical scenarios to retail investors to demonstrate how an instrument such as a particular bitcoin ETP would have performed over time. This commenter believes that suitability requirements are less prescriptive than an effective ban on a class of product and that they could balance the Commission's interest in protecting retail investors against its interest in allowing cryptocurrency-related asset markets to continue to develop in regulated markets where the Commission can observe their performance closely.
The Exchange asserts that approval of the proposal would enhance competition among market participants, to the benefit of investors.
The Commission acknowledges that, compared to trading in unregulated bitcoin spot markets, trading a bitcoin-based ETP on a national securities exchange may provide some additional protection to investors, but the Commission must consider this potential benefit in the broader context of whether the proposal meets each of the applicable requirements of the Exchange Act. Pursuant to Section 19(b)(2) of the Exchange Act, the Commission must disapprove a proposed rule change filed by a national securities exchange if it does not find that the proposed rule change is consistent with the applicable requirements of the Exchange Act—including the requirement under Section 6(b)(5) that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices.
Thus, even if a proposed rule change would provide certain benefits to investors and the markets, the proposed rule change may still fail to meet other requirements under the Exchange Act. For the reasons discussed above, the Exchange has not met its burden of demonstrating an adequate basis in the record for the Commission to find that the proposal is consistent with Exchange Act Section 6(b)(5), and, accordingly, the Commission must disapprove the proposal.
Comment letters also addressed the intrinsic value of bitcoin
The record before the Commission does not provide a basis for the Commission to conclude that the Exchange has met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposed rule change is consistent with Exchange Act Section 6(b)(5).
For the reasons set forth above, the Commission does not find, pursuant to Section 19(b)(2) of the Exchange Act, that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with Section 6(b)(5) of the Exchange Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 7.31E relating to Reserve Orders and re-name an order type. 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 its Cash Equities Pillar Platform Rule 7.31E
Rule 7.31E(d)(1) defines a Reserve Order as a Limit or Inside Limit Order with a quantity of the size displayed and with a reserve quantity of the size (“reserve interest”) that is not displayed. The displayed quantity of a Reserve Order is ranked Priority 2—Display Orders and the reserve interest is ranked Priority 3—Non-Display Orders.
The Exchange proposes non-substantive amendments to Rules 7.31E and 7.46E to rename the “Limit Non-Displayed Order” as the “Non-Displayed Limit Order.” The Exchange believes this proposed rule change would conform the style of this order type with the name of the Non-Routable Limit Order. The Exchange therefore believes that this proposed rule change would promote clarity and consistency in its rules.
The Exchange proposes to amend Rule 7.31E(d)(1) to change the manner by which the display portion of a Reserve Order would be replenished. As proposed, rather than replenishing the display quantity following any execution, the Exchange proposes to replenish the Reserve Order when the display quantity is decremented to below a round lot. The changes that the Exchange is proposing to Rule 7.31 relating to Reserve Orders are identical to changes that were recently approved for the Exchange's affiliate, New York Stock Exchange LLC (“NYSE”).
As is currently the case, the replenish quantity would be the minimum display size of the order or the remaining quantity of reserve interest if it is less than the minimum display quantity. To reflect this functionality, the Exchange proposes that Rule 7.31E(d)(1)(A) would be amended as follows (deleted text bracketed; new text underlined):
(A) On entry, the display quantity of a Reserve Order must be entered in round lots. The displayed portion of a Reserve Order will be replenished
Under current functionality, because the replenished quantity is assigned a new working time, it is feasible for a single Reserve Order to have multiple replenished quantities with separate working times, each, a “child” order. The proposed change to limit when a Reserve Order would be replenished to when the display quantity is decremented to below a round lot only would reduce the number of child orders for a Reserve Order. The Exchange believes that minimizing the number of child orders for a Reserve Order would reduce the potential for market participants to detect that a child order displayed on the Exchange's proprietary market data feeds is associated with a Reserve Order.
In most cases, the maximum number of child orders for a Reserve Order would be two. For example, assume a Reserve Order to buy has a display quantity of 100 shares and an additional 200 shares of reserve interest. A sell order of 50 shares would trade with the display quantity of such Reserve Order, which would decrement the display quantity to 50 shares. As proposed, the Exchange would then replenish the Reserve Order with 100 shares from the reserve interest,
Generally, when there are two child orders, the older child order of less than a round lot will be executed before the second child order. However, there are limited circumstances when a Reserve Order could have two child orders that equal less than a round lot, which, as proposed, would trigger a replenishment. For such circumstance, the Exchange proposes that when a Reserve Order is replenished from reserve interest and already has two child orders that equal less than a round lot, the child order with the later working time would be reassigned the new working time assigned to the next replenished quantity.
For example, taking the same Reserve Order as above:
• If 100 shares of such order (“A”) are routed on arrival, it would have a display quantity of 100 shares (“B”) and 100 shares in reserve interest.
• While “A” is routed, a sell order of 50 shares would trade with “B,” decrementing “B” to 50 shares and the Reserve Order would be replenished from reserve interest, creating a second child order “C” of 100 shares.
• Next, the Exchange receives a request to reduce the size of the Reserve Order from 300 shares to 230 shares. Because “A” is still routed away and there is no reserve interest, and as described in more detail below, this 70 share reduction in size would be applied against the most recent child order of “C,” which would be reduced to 30 shares. Together with “B,” which would still be 50 shares, the two displayed child orders would equal less than a round lot, but with no quantity in reserve interest.
• Next, “A” is returned unexecuted, and as described below, becomes reserve interest and is evaluated for replenishment. Because the total display quantity (“B” + “C”) is less than a round lot, this Reserve Order would be replenished. But because the Reserve Order already has two child orders, the child order with the later working time, “C,” would be returned to the reserve interest, which would now have a quantity of 130 shares (“C” + “A”), and the Reserve Order would be replenished with 100 shares from the reserve interest with a new working time, which would be a new child order “D.”
• After this replenishment, this Reserve Order would have two child orders of “B” for 50 shares and “D” for 100 shares, and a reserve interest of 30 shares.
To effect these changes, the Exchange proposes to amend current Rule
The Exchange also proposes new Rule 7.31E(d)(1)(B)(ii) to provide that if a Reserve Order is not routable (
The Exchange further proposes to add new subsection (D) to Rule 7.31E(d)(1) to describe when a Reserve Order would be routed. As proposed, a routable Reserve Order would be evaluated for routing both on arrival and each time the display quantity is replenished.
Proposed Rule 7.31E(d)(1)(D)(i) would provide that if routing is required, the Exchange would route from reserve interest before publishing the display quantity. In addition, if after routing, there is less than a round lot available to display, the Exchange would wait until the routed quantity returns (executed or unexecuted) before publishing the display quantity. In the example described above, the Exchange would have published the display quantity before the routed quantity returned because the display quantity was at least a round lot. If, however, 250 shares of a Reserve Order of 300 shares had been routed on arrival, because the unrouted quantity was less than a round lot (50 shares), the Exchange would wait for the routed quantity to return, either executed or unexecuted, before publishing the display quantity.
The Exchange proposes this functionality to reduce the possibility for a Reserve Order to have more than one child order. If the Exchange did not wait, and instead displayed the 50 shares when the balance of the Reserve Order has routed, if the 250 shares returns unexecuted, such Reserve Order would be replenished and would have two child orders—one for the 50 shares that was displayed when the order was entered and a second for the 100 shares that replenished the Reserve Order from the quantity that returned unexecuted. By contrast, by waiting for a report on the routed quantity, if the routed quantity was not executed, the Exchange would display the minimum display quantity as a single child order. If the routed quantity was executed, the Exchange would display the 50 shares, but only because that would be the full remaining quantity of the Reserve Order.
Proposed Rule 7.31E(d)(1)(D)(ii) would provide that any quantity of a Reserve Order that is returned unexecuted would join the working time of the reserve interest, which is current functionality. If there is no quantity of reserve interest to join, the returned quantity would be assigned a new working time as reserve interest. As further proposed, in either case, such reserve interest would replenish the display quantity as provided for in Rules 7.31E(d)(1)(A) and (B). The Exchange believes that this proposed rule text would promote transparency and clarity in Exchange rules. The Exchange further believes it is appropriate for a returned quantity of a Reserve Order to join the reserve interest first because the order may not be eligible for a replenishment to the display quantity.
Proposed Rule 7.31E(d)(1)(E) would provide that a request to reduce in size a Reserve Order would cancel the reserve interest before canceling the display quantity and if there is more than one child order, the child order with the later working time would be cancelled first. This represents current functionality and the example set forth above demonstrates how this would function. The Exchange believes that canceling reserve interest before a child order would promote the display of liquidity on an exchange. The Exchange further believes that canceling a later-timed child order would respect the time priority of the first child order, and any priority such child order may have for allocations.
Because of the technology changes associated with the proposed rule changes to Reserve Orders, the Exchange will announce by Trader Update when these changes will be implemented, which the Exchange anticipates will be in the third quarter of 2018.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed rule change to replenish a Reserve Order only if the display quantity is decremented to below a round lot would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would reduce the number of child orders associated with a single Reserve Order. By reducing the number of child orders, the Exchange believes it would reduce the potential for market participants to detect that a child order is associated with a Reserve Order. The proposed changes to Reserve Orders are identical to recently approved changes to the rules of its affiliated exchange, NYSE, and how a Reserve Order would be replenished is also consistent with how Reserve Orders function on BZX and Nasdaq.
For similar reasons, the Exchange believes that if a Reserve Order has two child orders that equal less than a round lot, it would remove impediments to and perfect the mechanism of a free and open market and a national market system to assign a new working time to the later child order so that when such Reserve Order is replenished, it would have a maximum of only two child orders. The Exchange believes that this proposed change would streamline the operation of Reserve Orders and meet the objective to reduce the potential for market participants to be able to identify that a child order is associated with a Reserve Order.
The Exchange further believes that the proposed rule change to evaluate a Reserve Order for routing both on arrival and when replenishing would remove impediments to and perfect the
The Exchange believes that it would remove impediments to and perfect the mechanism of a free and open market and a national market system to apply a request to reduce in size a Reserve Order to the reserve interest first, and then next to the child order with the later working time, because such functionality would promote the display of liquidity on the Exchange and honor the priority of the first child order with the earlier working time. The Exchange believes that including this existing functionality in Rule 7.31E would promote transparency and clarity in Exchange rules.
The Exchange believes that the proposed non-substantive amendment to rename the “Limit Non-Displayed Order” as the “Non-Displayed Limit Order” would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed change would conform to the naming convention of the Exchange's Non-Routable Limit Order and would therefore promote clarity and consistency in Exchange rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues. Rather, the proposed rule change to Reserve Orders is designed to reduce the potential for market participants to identify that a child order is related to a Reserve Order. The additional proposed rule changes are non-substantive and are designed to promote clarity and consistency in Exchange rules.
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.
On January 5, 2018, Cboe BZX Exchange, Inc. (“BZX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On February 22, 2018, pursuant to Section 19(b)(2) of the Exchange Act,
This order disapproves the proposed rule change. Although the Commission is disapproving this proposed rule change, the Commission emphasizes that its disapproval does not rest on an evaluation of whether bitcoin, or blockchain technology more generally, has utility or value as an innovation or an investment. Rather, the Commission is disapproving this proposed rule change because, as discussed below, the Exchange has not met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposal is consistent with the requirements of the Exchange Act Section 6(b)(5), in particular the requirement that a national securities exchange's rules be designed to prevent fraudulent and manipulative acts and practices.
The Exchange proposes to list and trade the Shares under BZX Rule 14.11(f)(4), which governs the listing and trading of Trust Issued Receipts on the Exchange.
According to the Exchange, the Long Fund's investment objective will be to seek results (before fees and expenses) that, both for a single day and over time, correspond to the performance of lead month bitcoin futures contracts listed and traded on the Cboe Futures Exchange, Inc. (“CFE”) (“Benchmark Futures Contracts”). Conversely, the Short Fund's investment objective will be to seek results (before fees and expenses) that, on a daily basis, correspond to the inverse (−1x) of the daily performance of the Benchmark Futures Contracts for a single day. Each Fund generally intends to invest substantially all of its assets in the Benchmark Futures Contracts and cash and cash equivalents (which would be used to collateralize the Benchmark Futures Contracts), but may invest in other U.S. exchange listed bitcoin futures contracts, as available (together
The Exchange represents that no more than 10% of the net assets of a Fund in the aggregate invested in Bitcoin Futures Contracts shall consist of Bitcoin Futures Contracts whose principal market is neither a member of the Intermarket Surveillance Group nor a market with which the Exchange does not have a comprehensive surveillance-sharing agreement.
The Exchange asserts that “policy concerns related to an underlying reference asset and its susceptibility to manipulation are mitigated as it relates to bitcoin because the very nature of the bitcoin ecosystem makes manipulation of bitcoin difficult.”
The geographically diverse and continuous nature of bitcoin trading makes it difficult and prohibitively costly to manipulate the price of bitcoin and, in many instances, that the bitcoin market is generally less susceptible to manipulation than the equity, fixed income, and commodity futures markets. There are a number of reasons this is the case, including that there is not inside information about revenue, earnings, corporate activities, or sources of supply; it is generally not possible to disseminate false or misleading information about bitcoin in order to manipulate; manipulation of the price on any single venue would require manipulation of the global bitcoin price in order to be effective; a substantial over-the-counter market provides liquidity and shock-absorbing capacity; bitcoin's 24/7/365 nature provides constant arbitrage opportunities across all trading venues; and it is unlikely that any one actor could obtain a dominant market share.
Further, bitcoin is arguably less susceptible to manipulation than other commodities that underlie ETPs; there may be inside information relating to the supply of the physical commodity such as the discovery of new sources of supply or significant disruptions at mining facilities that supply the commodity that simply are inapplicable as it relates to bitcoin. Further, the Exchange believes that the fragmentation across bitcoin exchanges, the relatively slow speed of transactions, and the capital necessary to maintain a significant presence on each exchange make manipulation of bitcoin prices through continuous trading activity unlikely. Moreover, the linkage between the bitcoin markets and the presence of arbitrageurs in those markets means that the manipulation of the price of bitcoin price on any single venue would require manipulation of the global bitcoin price in order to be effective. Arbitrageurs must have funds distributed across multiple bitcoin exchanges in order to take advantage of temporary price dislocations, thereby making it unlikely that there will be strong concentration of funds on any particular bitcoin exchange. As a result, the potential for manipulation on a particular bitcoin exchange would require overcoming the liquidity supply of such arbitrageurs who are effectively eliminating any cross-market pricing differences. For all of these reasons, bitcoin is not particularly susceptible to manipulation, especially as compared to other approved ETP reference assets.
The Notice also asserts that the susceptibility of the underlying futures contracts to manipulation is mitigated by the “significant liquidity that the Exchange expects to exist in the market for Bitcoin Futures Contracts.”
The Commission must consider whether the Exchange's proposal is consistent with Exchange Act Section 6(b)(5), which requires, in relevant part, that the rules of a national securities exchange be designed “to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.”
The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,
To approve the Exchange's proposal to list the Shares, the Commission must be able to find that the proposal is, consistent with Exchange Act Section 6(b)(5), “designed to prevent fraudulent and manipulative acts and practices.”
The Commission has therefore determined that, if the listing exchange for an ETP fails to establish that other means to prevent fraudulent and manipulative acts and practices will be sufficient, the listing exchange must enter into a surveillance-sharing agreement with a regulated market of significant size because “[s]uch agreements provide a necessary deterrent to manipulation because they facilitate the availability of information needed to fully investigate a manipulation if it were to occur.”
Although the Winklevoss Order applied these standards to a commodity-trust ETP based on bitcoin, the Commission believes that these standards are also appropriate for an ETP based on bitcoin futures. When approving the first commodity-futures ETP, the Commission specifically noted that “[i]nformation sharing agreements with primary markets trading index components underlying a derivative product are an important part of a self-regulatory organization's ability to monitor for trading abuses in derivative products.”
Accordingly, the Commission examines below whether the representations by the Exchange, and the comments received from the public, support a finding that the Exchange has entered into a surveillance-sharing agreement with a market of significant size relating to bitcoin, the asset underlying the proposed ETPs, or that alternative means of preventing fraud and manipulation would be sufficient to satisfy the requirement of Exchange Act Section 6(b)(5) that the proposed rule change be designed to prevent fraudulent and manipulative acts and practices.
One commenter asserts that data on a week's activity on the Gemini exchange, which provides a critical input for the CFE bitcoin futures, show substantial quantities of bitcoin are bought and sold all at once. The commenter believes that this behavior does not appear to be the result of natural trading and in the long run would prevent true price discovery.
One commenter states that commencing an ETP without allowing the market to adjust to the cash-settled futures products would be akin to “putting the cart before the horse” and seems to be an attempt to appease institutional investors.
One commenter states that the market for bitcoin derivatives other than bitcoin exchange-traded futures appears to be developing and that financial institutions are reportedly moving toward launching bitcoin-related trading desks and other operations. This commenter believes that the proposed offering of both long and short ETPs raises the possibility that market makers in bitcoin-related derivatives could make two-sided markets if interest in the long and short ETPs is similar in magnitude. The commenter further believes that interest outside of the bitcoin ETPs may be sufficient to motivate market makers to maintain bitcoin derivatives desks.
Six commenters assert that there is manipulation in the bitcoin market.
One commenter asserts that, in an unregulated market, a small minority can manipulate the price of bitcoin and other “altcoins” and that bitcoin and other cryptocurrencies are freely manipulated by players who hold a disproportionate amount of cryptocurrencies or access to fiat currencies. This commenter cites data showing that 4.11% of bitcoin addresses own 96.53% of all the bitcoin in circulation, that the top four addresses control 3.13% of all bitcoin currently in distribution (worth over $4 billion), and that 115 individuals control bitcoin worth over $24 billion.
One commenter asserts that widespread pump-and-dump schemes organized through the messaging platform “Telegram” are evidence of manipulation.
One commenter states that a commonly cited factor mitigating possible susceptibility to manipulation is the securities exchanges' own surveillance procedures, in addition to the futures exchanges' surveillance procedures and market surveillance and oversight by the Commodity Futures Trading Commission (“CFTC”). This commenter cites statements by the CFTC that it has the legal authority and means to police certain spot markets for fraud and manipulation through “heightened review” collaboration with exchanges, that exchanges will provide the CFTC surveillance team with trade settlement data upon request, and that the exchanges will enter into information-sharing agreements with spot market platforms and monitor trading activity on the spot markets. The commenter also states that the Gemini exchange has announced that it would use Nasdaq's market surveillance system to monitor its marketplace.
This commenter further asserts that market surveillance is generally a prerequisite to identifying potential market manipulation and discourages market manipulation. The commenter believes that the emergence of institutionalized market surveillance on both futures and spot markets is a positive sign for the long-term future of bitcoin markets.
A commenter asserts that bitcoin ETPs should be structured in such a way that the funds own bitcoin directly, because this commenter believes that cryptocurrency ETPs that are based on futures or other derivatives would invite manipulation of prices. A bitcoin ETP that holds the underlying cryptocurrency directly, this commenter states, would be simpler, more transparent, and less subject to complex and destabilizing trading strategies.
The Sponsor asserts that the operation of, and risks posed by, an ETP that seeks to track the performance of a bitcoin futures contract, are relatively straightforward and similar to the operation and risks involved with many existing commodity-futures-based ETPs, and that the Commission has not raised concerns about the risk of market manipulation in the underlying commodity markets, even when the risk is disclosed in the offering document for a commodity-futures-based ETP, or when the production of the underlying commodity is dominated by relatively few players operating under a common organization.
The Sponsor asserts that CFE and CME have specific and well-established trading and clearing rules to maintain an orderly and continuous market for bitcoin futures contracts that is supported by market makers providing continuous two-sided markets throughout the day.
The Exchange asserts that the price of bitcoin is inherently resistant to manipulation,
The Sponsor concedes that manipulation of the underlying bitcoin markets may affect the value of the Shares,
The Exchange asserts that its existing surveillance procedures and its ability to share surveillance information with U.S. futures exchanges are sufficient to meet the requirements of Exchange Act Section 6(b)(5).
While the Exchange would, pursuant to its listing rules, be able to obtain certain information regarding trading in the Shares and in the underlying bitcoin or any bitcoin derivative through registered market makers,
The Exchange represents that it is able to share surveillance information with CME and CFE, which are bitcoin futures markets regulated by the CFTC, through membership in the Intermarket Surveillance Group.
The Order Instituting Proceedings sought comment on whether the CME and CFE bitcoin futures markets are markets of significant size,
Whether an underlying market is a “market of significant size,” however, does not depend on whether a market operates by electronic or voice trading, and it does not depend solely on trading volume in isolation from the broader context of the underlying market. Moreover, to the extent that isolated trading volume is relevant, the Commission does not believe that a two-month sample is sufficient to establish that a market is of significant size. Instead, as noted above and stated in the Winklevoss Order, the Commission interprets a “significant market” or “market of significant size” to be “a market (or group of markets) as to which (a) there is a reasonable likelihood that a person attempting to manipulate the ETP would also have to trade on that market to successfully manipulate the ETP, so that a surveillance-sharing agreement would assist the ETP listing market in detecting and deterring misconduct, and (b) it is unlikely that trading in the ETP would be the predominant influence on prices in that market.”
Publicly available data show that the median daily notional trading volume, from inception through August 10, 2018, has been 14,185 bitcoins on CME and 5,184 bitcoins on CFE, and that the median daily notional value of open interest on CME and CFE during the same period has been 10,145 bitcoins and 5,601 bitcoins, respectively.
The Commission also notes that in recent testimony CFTC Chairman Giancarlo characterized the volume of the bitcoin futures markets as “quite small.”
Although this conclusion is dispositive with respect to the Exchange's proposal, the Commission will also address the Exchange's representation that no more than 10% of the net assets of a Fund in the aggregate invested in bitcoin futures contracts will be invested in contracts whose principal market is neither a member of the Intermarket Surveillance Group nor a market with whom the Exchange has a comprehensive surveillance-sharing agreement.
Additionally, while one commenter suggests that the market for bitcoin derivatives other than exchange-traded futures appears to be developing—and that the offering of long and short bitcoin ETPs “raises the possibility that market makers in Bitcoin derivatives could make two-sided markets if interest in the long and short ETFs is similar in magnitude”
The Commission therefore concludes that Exchange has not demonstrated that it has entered into a surveillance-sharing agreement with a regulated market of significant size related to bitcoin, or that, given the current absence of such an agreement, the exchange's own surveillance procedures described above would, by themselves, be sufficient to satisfy the requirement of Exchange Act Section 6(b)(5) that an exchange's rules be designed to prevent fraudulent and manipulative acts and practices.
Although the Exchange has not demonstrated that a regulated bitcoin futures market of significant size currently exists, the Commission is not suggesting that the development of such a market would automatically require approval of a proposed rule change seeking to list and trade shares of an ETP holding bitcoins as an asset. The Commission would need to analyze the facts and circumstances of any particular proposal and examine whether any unique features of a bitcoin futures market would warrant further analysis before approval.
One commenter believes that, while the Commission should deny the proposed ETPs, it should regulate this environment to stop individual consumers from coming to financial harm.
One commenter suggests that the Commission could address some of its concerns about the proposed ETPs by working with self-regulatory organizations, and in particular FINRA, to create bitcoin and cryptocurrency-related asset suitability requirements. In addition, this commenter suggests that targeted disclosure requirements could make investors aware of volatility, discourage retail investors from investing more than a small portion of their portfolio in cryptocurrency-related assets, and present historical scenarios to retail investors to demonstrate how an instrument such as a particular bitcoin ETP would have performed over time. This commenter believes that suitability requirements are less prescriptive than an effective ban on a class of product and that they could balance the Commission's interest in protecting retail investors against its interest in allowing cryptocurrency-related asset markets to continue to develop in regulated markets where the Commission can observe their performance closely.
Several commenters assert that the Commission should deny the proposed ETPs to help protect the public from exposure to financial risk from an unregulated market.
The Exchange asserts that approval of the proposal would enhance competition among market participants, to the benefit of investors and that it would protect investors by permitting them to seek exposure to bitcoin through efficient and transparent ETPs.
The Commission acknowledges that, compared to trading in unregulated bitcoin spot markets, trading a bitcoin-based ETP on a national securities exchange may provide some additional protection to investors, but the Commission must consider this potential benefit in the broader context of whether the proposal meets each of the applicable requirements of the Exchange Act. Pursuant to Section 19(b)(2) of the Exchange Act, the Commission must disapprove a proposed rule change filed by a national securities exchange if it does not find that the proposed rule change is consistent with the applicable requirements of the Exchange Act—including the requirement under Section 6(b)(5) that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices.
Thus, even if a proposed rule change would provide certain benefits to investors and the markets, the proposed rule change may still fail to meet other requirements under the Exchange Act. For the reasons discussed above, the Exchange has not met its burden of demonstrating an adequate basis in the record for the Commission to find that the proposal is consistent with Exchange Act Section 6(b)(5), and, accordingly, the Commission must disapprove the proposal.
Comment letters also addressed the following topics:
• The desire of investors to gain access to bitcoin through an ETP;
• investor understanding about bitcoin;
• the valuation of bitcoin and price differentials across bitcoin trading venues;
• the intrinsic value of bitcoin;
• the reliability of bitcoin as a store of value;
• the volatility of bitcoin prices;
• the regulation of bitcoin spot markets;
• the operation and valuation of the proposed ETPs;
• arbitrage between the price of the Shares and the underlying portfolio instruments;
• the ability of the Funds to meet redemption orders;
• the custody of the assets of the Funds;
• the effect on the Funds of a fork in the bitcoin blockchain;
• the potential impact of Commission approval of the proposed ETP on the price of bitcoin and on the U.S. economy;
• the leadership role that the United States might play in the cryptocurrency space if the Commission were to approve the proposed ETP;
• the utility of a bitcoin ETP as a global tool for wealth distribution;
• the legitimacy that Commission approval of the proposed ETP might confer upon bitcoin as a digital asset.
Ultimately, however, additional discussion of these tangential topics is unnecessary, as they do not bear on the basis for the Commission's decision to disapprove the proposal.
As noted above, the deadline for rebuttal comments in response to the Order Instituting Proceedings was May 15, 2018.
Even if these amendments had been timely filed, however, the Commission would still conclude that the Exchange had not met its burden to demonstrate that its proposal is consistent with Exchange Act Section 6(b)(5). The change that the amendments made to the proposal was to limit the investments of the Funds to Bitcoin Futures Contracts, which trade on CFE and CME, eliminating the Funds' ability to invest in listed or unlisted swaps on bitcoin or on the Benchmark Futures Contracts.
The record before the Commission does not provide a basis for the Commission to conclude that the Exchange has met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposed rule change is consistent with Exchange Act Section 6(b)(5).
For the reasons set forth above, the Commission does not find, pursuant to Section 19(b)(2) of the Exchange Act, that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with Section 6(b)(5) of the Exchange Act.
It is therefore ordered, pursuant to Section 19(b)(2) of the Exchange Act, that proposed rule change SR-CboeBZX-2018-001 is disapproved.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend certain representations made in a proposed rule change previously filed with the Commission pursuant to Rule 19b-4 relating to the Innovator S&P 500 Buffer ETFs (the “Buffer Funds”).
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The shares of the Buffer Funds (the “Shares”) were approved to be listed and traded on the Exchange under Rule 14.11(i),
In this proposed rule change, the Exchange proposes to amend several representations made in the Prior Approval related to the investment strategy, as described below.
The Exchange does not believe that this proposed change raises any substantive issues for the Commission because it represents only a small change to the investment strategy and all other statements and representations made in the Prior Approval regarding the description of the portfolio or reference assets, limitations on portfolio holdings or reference assets, dissemination and availability of reference assets and intraday indicative values, and the applicability of Exchange listing rules specified in the Prior Approval remain true and shall continue to constitute continued listing requirements for the Buffer Funds. Additionally, the change proposed above will constitute a continued listing requirement for the Buffer Funds.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
As described above, all of the representations from the Prior Approval which formed the basis for the Prior Approval remain true and will continue to constitute continued listing requirements for the Buffer Funds with the exception of the one point (changing the downside protection from 10% to 9%) that the Exchange is proposing to amend. This proposed change will not make any changes to the types of instruments that the Buffer Funds can hold, but will only make a small change to the investment strategy. As such, the Exchange believes that the proposal does not raise any substantive issues that were not previously addressed in the Prior Approval.
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 purpose of the Act. The Exchange believes that the proposal to allow the Buffer Funds to amend their investment strategy will enhance competition among both market participants and listing venues by allowing additional series of Managed Fund Shares to come to list on the Exchange, to the benefit of investors and the marketplace.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
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 change 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.
On December 4, 2017, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
On January 30, 2018, pursuant to Section 19(b)(2) of the Exchange Act,
This order disapproves the proposed rule change. Although the Commission is disapproving this proposed rule change, the Commission emphasizes that its disapproval does not rest on an evaluation of whether bitcoin, or blockchain technology more generally, has utility or value as an innovation or an investment. Rather, the Commission is disapproving this proposed rule change because, as discussed below, the Exchange has not met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposal is consistent with the requirements of the Exchange Act Section 6(b)(5), in particular the requirement that a national securities exchange's rules be designed to prevent fraudulent and manipulative acts and practices.
The Exchange proposes to list and trade the Shares under NYSE Arca Rule 8.200-E, Commentary .02, which governs the listing and trading of Trust Issued Receipts on the Exchange.
According to the Notice, the ProShares Bitcoin ETF's investment objective will be to seek results (before fees and expenses) that, both for a single day and over time, correspond to the performance of lead-month bitcoin futures contracts
According to the Notice, the ProShares Short Bitcoin ETF's investment objective will be to seek results, for a single day, that correspond (before fees and expenses) to the inverse of the daily performance of the Benchmark Futures Contract. This Fund generally intends to invest substantially all of its assets through short positions in Benchmark Futures Contracts, but may invest through short positions in Bitcoin Futures Contracts, if available.
The Exchange represents that no more than 10% of the net assets of a Fund in the aggregate invested in Bitcoin Futures Contracts shall consist of Bitcoin Futures Contracts whose principal market is neither a member of the Intermarket Surveillance Group nor a market with which the Exchange does not have a comprehensive surveillance-sharing agreement.
Bitcoin Futures Contracts are a new type of futures contract to be traded on the CFE and CME or other U.S. exchanges (if available). Unlike the established futures markets for traditional physical commodities, the market for Bitcoin Futures Contracts is in the development stage and has very limited trading and operational history. As such, the liquidity of the market for Bitcoin Futures Contracts will depend on, among other things, the supply and demand for Bitcoin Futures Contracts, the adoption of bitcoin and the commercial and speculative interest in the market for Bitcoin Futures Contracts and the potential ability to hedge against the price of bitcoin with exchange-traded Bitcoin Futures Contracts.
The Exchange represents that trading in the Shares of each Fund will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The Commission must consider whether the Exchange's proposal is consistent with Exchange Act Section 6(b)(5), which requires, in relevant part, that the rules of a national securities exchange be designed “to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.”
The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,
To approve the Exchange's proposal to list the Shares, the Commission must be able to find that the proposal is, consistent with Exchange Act Section 6(b)(5), “designed to prevent fraudulent and manipulative acts and practices.”
The Commission has therefore determined that, if the listing exchange for an ETP fails to establish that other means to prevent fraudulent and manipulative acts and practices will be sufficient, the listing exchange must enter into a surveillance-sharing agreement with a regulated market of significant size because “[s]uch agreements provide a necessary deterrent to manipulation because they facilitate the availability of information needed to fully investigate a manipulation if it were to occur.”
Although the Winklevoss Order applied these standards to a commodity-trust ETP based on bitcoin, the Commission believes that these standards are also appropriate for an ETP based on bitcoin futures. When approving the first commodity-futures ETP, the Commission specifically noted that “[i]nformation sharing agreements with primary markets trading index components underlying a derivative product are an important part of a self-regulatory organization's ability to monitor for trading abuses in derivative products.”
Accordingly, the Commission examines below whether the
One commenter states that commencing an ETP without allowing the market to adjust to the cash-settled futures products would be akin to “putting the cart before the horse” and seems to be an attempt to appease institutional investors.
One commenter states that the market for bitcoin derivatives other than bitcoin exchange-traded futures appears to be developing and that financial institutions are reportedly moving toward launching bitcoin-related trading desks and other operations. This commenter believes that the proposed offering of both long and short ETPs raises the possibility that market makers in bitcoin-related derivatives could make two-sided markets if interest in the long and short ETPs is similar in magnitude. The commenter further believes that interest outside of the bitcoin ETPs may be sufficient to motivate market makers to maintain bitcoin derivatives desks.
Three commenters assert that there is manipulation in the bitcoin market.
One commenter asserts that, in an unregulated market, a small minority can manipulate the price of bitcoin and other “altcoins” and that bitcoin and other cryptocurrencies are freely manipulated by players who hold a disproportionate amount of cryptocurrencies or access to fiat currencies. This commenter cites data showing that 4.11% of bitcoin addresses own 96.53% of all the bitcoin in circulation, that the top four addresses control 3.13% of all bitcoin currently in distribution (worth over $4 billion), and that 115 individuals control bitcoin worth over $24 billion.
One commenter asserts that widespread pump-and-dump schemes organized through the messaging platform “Telegram” are evidence of manipulation.
One commenter states that a commonly cited factor mitigating possible susceptibility to manipulation is the securities exchanges' own surveillance procedures, in addition to the futures exchanges' surveillance procedures and market surveillance and oversight by the Commodity Futures Trading Commission (“CFTC”). This commenter cites statements by the CFTC that it has the legal authority and means to police certain spot markets for fraud and manipulation through “heightened review” collaboration with exchanges, that exchanges will provide the CFTC surveillance team with trade settlement data upon request, and that the exchanges will enter into information-sharing agreements with spot market platforms and monitor trading activity on the spot markets. The commenter also states that the Gemini exchange has announced that it would use Nasdaq's market surveillance system to monitor its marketplace.
This commenter further asserts that market surveillance is generally a prerequisite to identifying potential market manipulation and discourages market manipulation. The commenter believes that the emergence of institutionalized market surveillance on both futures and spot markets is a positive sign for the long-term future of bitcoin markets.
Unlike previous proposals for bitcoin-based ETPs,
While the Exchange would, pursuant to its listing rules, be able to obtain certain information regarding trading in the Shares and in the underlying bitcoin or any bitcoin derivative through registered market makers,
The Exchange represents that it is able to share surveillance information with CME and CFE, which are bitcoin futures markets regulated by the CFTC, through membership in the Intermarket Surveillance Group.
The Order Instituting Proceedings sought comment on whether the CME and CFE bitcoin futures markets are markets of significant size,
The Commission also notes that in recent testimony CFTC Chairman Giancarlo characterized the volume of the bitcoin futures markets as “quite small.”
Furthermore, while the Exchange represents that no more than 10% of the net assets of a Fund in the aggregate invested in bitcoin futures contracts will be invested in contracts whose principal market is neither a member of the Intermarket Surveillance Group nor a market with whom the Exchange has a comprehensive surveillance-sharing agreement,
While one commenter suggests that the market for bitcoin derivatives other than exchange-traded futures appears to be developing—and that the offering of long and short bitcoin ETPs “raises the possibility that market makers in Bitcoin derivatives could make two-sided markets if interest in both the long and short ETFs is similar in magnitude”
The Commission therefore concludes that Exchange has not demonstrated that it has entered into a surveillance-sharing agreement with a regulated market of significant size related to bitcoin, or that, given the current absence of such an agreement, the exchange's own surveillance procedures described above would, by themselves, be sufficient to satisfy the requirement of Exchange Act Section 6(b)(5) that an exchange's rules be designed to prevent fraudulent and manipulative acts and practices.
Although the Exchange has not demonstrated that a regulated bitcoin futures market of significant size currently exists, the Commission is not suggesting that the development of such a market would automatically require approval of a proposed rule change seeking to list and trade shares of an ETP holding bitcoins as an asset. The Commission would need to analyze the facts and circumstances of any particular proposal and examine whether any unique features of a bitcoin futures market would warrant further analysis before approval.
One commenter states that approval of a bitcoin ETP on a U.S.-regulated exchange would protect small traders and increase exposure to a new asset class in a safe manner.
One commenter believes that, while the Commission should deny the proposed ETPs, it should regulate this environment to stop individual consumers from coming to financial harm.
One commenter suggests that the Commission could address some of its concerns about the proposed ETPs by working with self-regulatory organizations, and in particular FINRA, to create bitcoin and cryptocurrency-related asset suitability requirements. In addition, this commenter suggests that targeted disclosure requirements could make investors aware of volatility, discourage retail investors from investing more than a small portion of their portfolio in cryptocurrency-related assets, and present historical scenarios to retail investors to demonstrate how an instrument such as a particular bitcoin ETP would have performed over time. This commenter believes that suitability requirements are less prescriptive than an effective ban on a class of product and that they could balance the Commission's interest in protecting retail investors against its interest in allowing cryptocurrency-related asset markets to continue to develop in regulated markets where the Commission can observe their performance closely.
Several commenters assert that the Commission should deny the proposed ETPs to help protect the public from exposure to financial risk from an unregulated market.
The Exchange asserts that approval of the proposal would enhance competition among market participants, to the benefit of investors,
The Commission acknowledges that, compared to trading in unregulated bitcoin spot markets, trading a bitcoin-based ETP on a national securities exchange may provide some additional protection to investors, but the Commission must consider this potential benefit in the broader context of whether the proposal meets each of the applicable requirements of the Exchange Act. Pursuant to Section 19(b)(2) of the Exchange Act, the Commission must disapprove a proposed rule change filed by a national securities exchange if it does not find that the proposed rule change is consistent with the applicable requirements of the Exchange Act—including the requirement under Section 6(b)(5) that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices.
Thus, even if a proposed rule change would provide certain benefits to
Comment letters also addressed the intrinsic value of bitcoin;
The record before the Commission does not provide a basis for the Commission to conclude that the Exchange has met its burden under the Exchange Act and the Commission's Rules of Practice to demonstrate that its proposed rule change is consistent with Exchange Act Section 6(b)(5).
For the reasons set forth above, the Commission does not find, pursuant to Section 19(b)(2) of the Exchange Act, that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with Section 6(b)(5) of the Exchange Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 7.31 relating to Reserve Orders and re-name two order types. 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 Rule 7.31 relating to Reserve Orders and re-name two order types.
Rule 7.31(d)(1) defines a Reserve Order as a Limit or Inside Limit Order with a quantity of the size displayed and with a reserve quantity of the size (“reserve interest”) that is not displayed. The displayed quantity of a Reserve Order is ranked Priority 2—Display Orders and the reserve interest is ranked Priority 3—Non-Display Orders.
Rule 7.31(d)(2) defines a “Limit Non-Displayed Order,” which is a Limit Order that is not displayed and does not route. Rule 7.31(e)(1) defines a “Limit Non-Routable Order,” which is a Limit Order that does not route.
The Exchange proposes non-substantive amendments to Rules 7.31 and 7.46 to re-name the “Limit Non-Routable Order” as the “Non-Routable Limit Order.” This proposed rule change is based on the term used by the Exchange's affiliate, NYSE American LLC (“NYSE American”) for the same order type.
The Exchange also proposes non-substantive amendments to Rules 7.31 and 7.46 to re-name the “Limit Non-Displayed Order” as the “Non-Displayed Limit Order.” In both cases, the Exchange believes that it promotes clarity and consistency in its rules to move the respective modifier for each of these rules before the term “Limit Order.”
The Exchange proposes to amend Rule 7.31(d)(1) to change the manner by which the display portion of a Reserve Order would be replenished. As proposed, rather than replenishing the display quantity following any execution, the Exchange proposes to replenish the Reserve Order when the display quantity is decremented to below a round lot. The changes that the Exchange is proposing to Rule 7.31 relating to Reserve Orders (and Primary Pegged Orders) are identical to changes that were recently approved for the Exchange's affiliate, New York Stock Exchange LLC (“NYSE”).
As is currently the case, the replenish quantity would be the minimum display size of the order or the remaining quantity of reserve interest if it is less than the minimum display quantity. To reflect this functionality, the Exchange proposes that Rule 7.31(d)(1)(A) would be amended as follows (deleted text bracketed; new text underlined):
(A) On entry, the display quantity of a Reserve Order must be entered in round lots. The displayed portion of a Reserve Order will be replenished
Under current functionality, because the replenished quantity is assigned a new working time, it is feasible for a single Reserve Order to have multiple replenished quantities with separate working times, each, a “child” order. The proposed change to limit when a Reserve Order would be replenished to when the display quantity is decremented to below a round lot only would reduce the number of child orders for a Reserve Order. The Exchange believes that minimizing the number of child orders for a Reserve Order would reduce the potential for market participants to detect that a child order displayed on the Exchange's proprietary market data feeds is associated with a Reserve Order.
In most cases, the maximum number of child orders for a Reserve Order would be two. For example, assume a Reserve Order to buy has a display quantity of 100 shares and an additional 200 shares of reserve interest. A sell order of 50 shares would trade with the display quantity of such Reserve Order, which would decrement the display quantity to 50 shares. As proposed, the Exchange would then replenish the Reserve Order with 100 shares from the reserve interest,
Generally, when there are two child orders, the older child order of less than a round lot will be executed before the second child order. However, there are limited circumstances when a Reserve Order could have two child orders that equal less than a round lot, which, as proposed, would trigger a replenishment. For such circumstance, the Exchange proposes that when a Reserve Order is replenished from reserve interest and already has two child orders that equal less than a round lot, the child order with the later working time would be reassigned the new working time assigned to the next replenished quantity.
For example, taking the same Reserve Order as above:
• If 100 shares of such order (“A”) are routed on arrival, it would have a display quantity of 100 shares (“B”) and 100 shares in reserve interest.
• While “A” is routed, a sell order of 50 shares would trade with “B,” decrementing “B” to 50 shares and the Reserve Order would be replenished from reserve interest, creating a second child order “C” of 100 shares.
• Next, the Exchange receives a request to reduce the size of the Reserve Order from 300 shares to 230 shares. Because “A” is still routed away and there is no reserve interest, and as described in more detail below, this 70 share reduction in size would be applied against the most recent child order of “C,” which would be reduced to 30 shares. Together with “B,” which would still be 50 shares, the two displayed child orders would equal less than a round lot, but with no quantity in reserve interest.
• Next, “A” is returned unexecuted, and as described below, becomes reserve interest and is evaluated for replenishment. Because the total display quantity (“B” + “C”) is less than a round lot, this Reserve Order would be replenished. But because the Reserve Order already has two child orders, the child order with the later working time, “C,” would be returned to the reserve interest, which would now have a quantity of 130 shares (“C” + “A”), and the Reserve Order would be replenished with 100 shares from the reserve interest with a new working time, which would be a new child order “D.”
• After this replenishment, this Reserve Order would have two child orders of “B” for 50 shares and “D” for 100 shares, and a reserve interest of 30 shares.
To effect these changes, the Exchange proposes to amend current Rule 7.31(d)(1)(B) to specify that each display quantity of a Reserve Order with a different working time would be referred to as a child order. The Exchange further proposes new Rule 7.31(d)(1)(B)(i) that would provide that when a Reserve Order is replenished from reserve interest and already has two child orders that equal less than a round lot, the child order with the later working time would rejoin the reserve interest and be assigned the new working time assigned to the next replenished quantity.
The Exchange also proposes new Rule 7.31(d)(1)(B)(ii) to provide that if a Reserve Order is not routable (
For a Primary Pegged Reserve Order, the Exchange proposes that the replenished quantity would follow Rule 7.31(h)(2)(B), which provides that a Primary Pegged Order would be rejected if the PBBO is locked or crossed. Because a Primary Pegged Reserve Order would have resting reserve interest, the Exchange proposes to amend Rule 7.31(h)(2)(B) to provide that if the PBBO is locked or crossed when the display quantity of a Primary Pegged Reserve Order is replenished, the entire order would be cancelled. The Exchange believes that cancelling the entire order is consistent with the current rule that provides that the entire order would be rejected on arrival if the display quantity would lock or cross the PBBO.
The Exchange further proposes to add new subsection (D) to Rule 7.31(d)(1) to describe when a Reserve Order would be routed. As proposed, a routable Reserve Order would be evaluated for routing both on arrival and each time the display quantity is replenished.
Proposed Rule 7.31(d)(1)(D)(i) would provide that if routing is required, the Exchange would route from reserve interest before publishing the display quantity. In addition, if after routing, there is less than a round lot available to display, the Exchange would wait until the routed quantity returns (executed or unexecuted) before publishing the display quantity. In the example described above, the Exchange would have published the display quantity before the routed quantity returned because the display quantity was at least a round lot. If, however, 250 shares of a Reserve Order of 300 shares had been routed on arrival, because the unrouted quantity was less than a round lot (50 shares), the Exchange would wait for the routed quantity to return, either executed or unexecuted, before publishing the display quantity.
The Exchange proposes this functionality to reduce the possibility for a Reserve Order to have more than one child order. If the Exchange did not wait, and instead displayed the 50 shares when the balance of the Reserve Order has routed, if the 250 shares returns unexecuted, such Reserve Order would be replenished and would have two child orders—one for the 50 shares that was displayed when the order was entered and a second for the 100 shares that replenished the Reserve Order from the quantity that returned unexecuted. By contrast, by waiting for a report on the routed quantity, if the routed quantity was not executed, the Exchange would display the minimum display quantity as a single child order. If the routed quantity was executed, the Exchange would display the 50 shares, but only because that would be the full remaining quantity of the Reserve Order.
Proposed Rule 7.31(d)(1)(D)(ii) would provide that any quantity of a Reserve Order that is returned unexecuted would join the working time of the reserve interest, which is current functionality. If there is no quantity of reserve interest to join, the returned quantity would be assigned a new working time as reserve interest. As further proposed, in either case, such reserve interest would replenish the display quantity as provided for in Rules 7.31(d)(1)(A) and (B). The Exchange believes that this proposed rule text would promote transparency and clarity in Exchange rules. The Exchange further believes it is appropriate for a returned quantity of a Reserve Order to join the reserve interest first because the order may not be eligible for a replenishment to the display quantity.
Proposed Rule 7.31(d)(1)(E) would provide that a request to reduce in size a Reserve Order would cancel the reserve interest before canceling the display quantity and if there is more than one child order, the child order with the later working time would be cancelled first. This represents current functionality and the example set forth above demonstrates how this would function. The Exchange believes that canceling reserve interest before a child order would promote the display of liquidity on an exchange. The Exchange further believes that canceling a later-timed child order would respect the time priority of the first child order, and any priority such child order may have for allocations.
Because of the technology changes associated with the proposed rule changes relating to Reserve Orders, the Exchange will announce by Trader Update when these changes will be implemented, which the Exchange anticipates will be in the third quarter of 2018.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed rule change to replenish a Reserve Order only if the display quantity is decremented to below a round lot would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would reduce the number of child orders associated with a single Reserve Order. By reducing the number of child orders, the Exchange believes it would reduce the potential for market participants to detect that a child order is associated with a Reserve Order. The proposed changes to Reserve Orders and Primary Pegged Orders are identical to recently approved changes to the rules of its affiliated exchange, NYSE, and how a Reserve Order would be replenished is also consistent with how Reserve Orders function on BZX and Nasdaq.
For similar reasons, the Exchange believes that if a Reserve Order has two child orders that equal less than a round lot, it would remove impediments to and perfect the mechanism of a free and open market and a national market system to assign a new working time to the later child order so that when such Reserve Order is replenished, it would have a maximum of only two child orders. The Exchange believes that this proposed change would streamline the operation of Reserve Orders and meet the objective to reduce the potential for market participants to be able to identify that a child order is associated with a Reserve Order.
The Exchange further believes that the proposed rule change to evaluate a Reserve Order for routing both on arrival and when replenishing would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would reduce the potential for the display quantity of a Reserve Order to lock or cross the PBBO of an away market. The Exchange further believes that routing from reserve interest would
The Exchange believes that it would remove impediments to and perfect the mechanism of a free and open market and a national market system to apply a request to reduce in size a Reserve Order to the reserve interest first, and then next to the child order with the later working time, because such functionality would promote the display of liquidity on the Exchange and honor the priority of the first child order with the earlier working time. The Exchange believes that including this existing functionality in Rule 7.31 would promote transparency and clarity in Exchange rules.
The Exchange believes that the proposed change to Primary Pegged Reserve Orders would remove impediments to and perfect the mechanism of a free and open market and a national market system because similar to how a Primary Pegged Order would function on arrival, if the replenish quantity of a Primary Pegged Reserve Order would lock or cross the PBBO, the entire Reserve Order would be cancelled. The Exchange believes that by cancelling the entire order, the Exchange would reduce the potential for such order to be displayed at a price that would lock or cross the PBBO.
The Exchange believes that the proposed non-substantive amendments to rename the “Limit Non-Displayed Order” as the “Non-Displayed Limit Order” and to rename the “Limit Non-Routable Order” as the “Non-Routable Limit Order” would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed changes are designed to promote clarity and consistency in Exchange rules by moving the modifier describing the function of the order type before the term “Limit Order.”
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues. Rather, the proposed rule change to Reserve Orders is designed to reduce the potential for market participants to identify that a child order is related to a Reserve Order. The additional proposed rule changes are non-substantive and are designed to promote clarity and consistency in Exchange rules.
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rules 5.5A, 5.8, and 24.9.
(a) No change.
(b) The exercise price of each option series listed by the Exchange shall be fixed at a price per share which is reasonably close to the price of the underlying equity security, Exchange Traded Fund (“ETF” and referred to as a “Unit” in Rule 5.3) or Trust Issued Receipt (“TIR”) at or about the time the Exchange determines to list such series. Additionally,
(i) Exercise Price Range Limitations—Except as provided in subparagraphs (ii) through (iv) below, if the price of the underlying security is less than or equal to $20, the Exchange shall not list new option series with an exercise price more than 100% above or below the price of the underlying security. However, the foregoing restriction shall not prohibit the listing of at least three exercise prices per expiration month in an option class. Except as provided in Rule 5.5(d)(4), if the price of the underlying security is greater than $20, the Exchange shall not list new option series with an exercise price more than 50% above or below the price of the underlying security.
The price of the underlying security is measured by:
(1) For intra-day add-on series and next-day series additions, the daily high and low of all prices reported by all national securities exchanges;
(2) for new expiration months, the daily high and low of all prices reported by all national securities exchanges on the day the Exchange determines its preliminary notification of new series; [and]
(3) for option series to be added as a result of pre-market trading, the most recent share price reported by all national securities exchanges between 7:45 a.m. and 8:30 a.m. (Chicago time)[.]
(ii)-(vi) No change.
(a) No change.
(b) [When a new equity LEAPS series is listed, such series will be opened for trading either when there is buying or selling interest, or 40 minutes prior to the close, whichever occurs first. No quotations will be posted for such option series until they are opened for trading.
(c)] With regard to the listing of new January LEAPS series on equity option classes, options on Exchange Traded Funds (“ETFs” and referred to as “Units” in Rule 5.3), or options on Trust Issued Receipts (“TIRs”), the Exchange shall not add new LEAP series on a currently listed and traded option class
(i) Earlier than September (which is 28 months before the expiration), for an option class on the January expiration cycle;
(ii) Earlier than October (which is 27 months before expiration), for an option class on the February expiration cycle; and
(iii) Earlier than November (which is 26 months before expiration), for an option class on the March expiration cycle].
Pursuant to the Options Listing Procedures Plan, exchanges that list and trade the same equity option class, ETF option class, or TIR option class are authorized to jointly determine and coordinate with the Clearing Corporation on the date of introduction of new LEAP series for that option class consistent with this paragraph ([c]
([d]
(a) No change.
(b) Long-Term Index Option Series (“LEAPS”).
(1) Notwithstanding the provisions of Paragraph (a)(2) above, the Exchange may list long-term index option series that expire from 12 to 180 months from the date of issuance.
(A) Index LEAPS may be based on either the full or reduced value of the underlying index.
[(B) When a new Index LEAPS series is listed, such series will be opened for trading either when there is buying or selling interest, or 40 minutes prior to the close, whichever occurs first. No quotations will be posted for such
(2) No change.
(c)-(e) No change.
. . .
.01-.14 No change.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend Rules 5.5A, 5.8, and 24.9 to conform to recently approved changes to the Options Listing Procedures Plan (“OLPP”).
First, the OLPP has been amended to change the earliest date on which new January LEAPS on equity options, options on Exchange Traded Funds (“ETF”), or options on Trust Issued Receipts (“TIR”) may be added to a single date (from three separate months). As noted in the OLPP Notice, in the past, there were operational concerns related to adding new January LEAPs series for all options classes on which LEAPs were listed on a single trading day.
Second, the OLPP has been amended to allow equity, ETF, and TIR option series to be added based on trading after regular trading hours (
The Exchange proposes to modify Rules to delete now obsolete operational language, which dates back to when LEAPs were first adopted. This language provides that when a new equity or index LEAPS series, as applicable, is listed, such series will be opened for trading either when there is buying or selling interest, or 40 minutes prior to the close, whichever occurs first. No quotations will be posted for such option series until they are opened for trading. The Exchange proposes to delete this language because when this language was adopted, LEAPs were not opened for trading until late in the trading day unless there was buying or selling interest.
The Exchange believes the proposed rule change is consistent with the
In particular, the proposed rule change, which conforms to the recently adopted provisions of the OLPP, as amended, allows the Exchange to continue to list extended far term option series that have been viewed as beneficial to traders, investors and public customers. Accordingly, the Exchange believes that the proposal is consistent with the Act because it will allow the Exchange to list all January 2021 expiration series on the Monday prior to the September 2018 expiration. Moreover, this change would simplify the process for adding new January LEAP options series and reduce potential for investor confusion because all new January LEAP options would be made available beginning at the same time, consistent with the amended OLPP. The Exchange notes that this proposal does not propose any new provisions that have not already been approved by the Commission in the amended OLPP, but instead maintains series listing rules that conform to the amended OLPP.
The proposal to permit series to be added based on after-market trading is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system, by allowing the Exchange to make series available for trading with reduced operational difficulties. The Exchange notes that this proposed change, which is consistent with the amended OLPP should provide market participants with earlier notice regarding what options series will be available for trading the following day, and should help to enhance investors' ability to plan their options trading. The Exchange also believes that the proposed technical changes, including deleting obsolete language and reorganizing and consolidating the rule, promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in facilitating transactions in securities, and remove impediments to and perfect the mechanism of a free and open market and a national market system.
Cboe Options does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that by conforming Exchange rules to the amended OLPP, the Exchange would promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Exchange believes that adopting rules, which it anticipates will likewise be adopted by Participant Exchanges, would allow for continued competition between Exchange market participants trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues.
The Exchange neither solicited nor received comments on 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
• 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.
2:30 p.m. on Thursday, August 30, 2018.
Closed Commission Hearing Room 10800.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
Commissioner Jackson, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matters of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Wisconsin (FEMA-4383-DR), dated 08/10/2018.
Issued on 08/10/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/10/2018, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 156646 and for economic injury is 156650.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Iowa (FEMA-4386-DR), dated 08/20/2018.
Issued on 08/20/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/20/2018, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 156616 and for economic injury is 156620.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of California (FEMA-4382-DR), dated 08/04/2018.
Issued on 08/17/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for the State of California, dated 08/04/2018, is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Confederated Tribes of the Colville Reservation (FEMA-4384-DR), dated 08/17/2018.
Issued on 08/17/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/17/2018, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 156576 and for economic injury is 156580.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to September 27, 2018.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Online Application for Nonimmigrant Visa (DS-160) is used to collect biographical information from individuals seeking a nonimmigrant visa. The consular officer uses the information collected to determine the applicant's eligibility for a visa. Form DS-156 is required by regulation of all nonimmigrant visa applicants who do not use the Online Application for Nonimmigrant Visa (Form DS-160). Posts will use the DS-156 in limited circumstances when the DS-160 is unavailable, as outlined below, to elicit information necessary to determine an applicant's visa eligibility.
The DS-160 will be submitted electronically over industry standard encryption technology to maintain a secure connection to the Department via the internet. The applicant will be instructed to print a confirmation page containing a bar coded record locator, which will be scanned at the time of processing. The Nonimmigrant Visa Application (DS-156) paper version will be used only in the following limited circumstances when applicants cannot access the DS-160:
• An applicant has an urgent medical or humanitarian travel need and the consular officer has received explicit permission from the Visa Office to accept form DS-156;
• The applicant is a student exchange visitor who must leave immediately in order to arrive on time for his/her course and the consular officer has explicit permission from the Visa Office to accept form DS-156;
• The applicant is a diplomatic or official traveler with urgent government business and form DS-160 has been unavailable for more than four hours; or
• Form DS-160 has been unavailable for more than three days and the officer receives explicit permission from the Visa Office.
In order to obtain a copy of form DS-156, an applicant must contact the Embassy or consulate at which he or she is applying, and request a copy.
This collection is being revised to include both nonimmigrant visa application methods: The online version (form DS-160) which is used by the vast majority of applications, and the paper version (form DS-156) which is used in limited circumstances. Currently, the online application and paper application are approved under two separate collections. With this renewal, the Department seeks to combine these into a single collection. Upon approval, the Department will seek to discontinue OMB Control Number 1405-0018, the existing collection for form DS-156.
The Department also is revising the collection to add several additional questions for most nonimmigrant visa applicants. One question lists multiple social media platforms and requires the applicant to provide any identifiers used by applicants for those platforms during the five years preceding the date of application. The platforms listed may be updated by the Department by adding or removing platforms. Additional platforms will be added only if collection is consistent with the uses described in the Supporting Statement and after Office of Management and Budget approval. In addition, the applicant will be given the option to provide information about any social media identifiers associated with any platforms other than those that are listed that the applicant has used in the last five years. The Department will collect this information from visa applicants for
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to September 27, 2018.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Electronic Application for Immigrant Visa and Alien Registration (DS-260) is used to collect biographical information from individuals seeking an immigrant visa. The consular officer uses the information collected to elicit information necessary to determine an applicant's eligibility for a visa.
The DS-260 will be submitted electronically over industry standard encryption technology to maintain a secure connection to the Department via the internet. The applicant will be instructed to print a confirmation page containing a bar coded record locator, which will be scanned at the time of processing.
The Department is revising the collection to add several additional questions for immigrant visa applicants. One question lists multiple social media platforms and requires the applicant to provide any identifiers used by applicants for those platforms during the five years preceding the date of application. The platforms listed may be updated by the Department by adding or removing platforms. Additional platforms will be added only if collection is consistent with the uses described in the Supporting Statement and after Office of Management and Budget approval. In addition, the applicant will be given the option to provide information about any social media identifiers associated with any platforms other than those that are listed that the applicant has used in the last five years. The Department will collect this information for identity resolution and vetting purposes based on statutory visa eligibility standards. Other questions seek five years of previously used telephone numbers, email addresses, and international travel; whether the applicant has been deported or removed from any country; and whether specified family members have been involved in terrorist activities. The “Sign and Submit” statement will provide applicants information related to correcting records within Federal Bureau of Investigation databases and additional information regarding the immigrant visa medical examination. Applicants from countries where female genital mutilation/cutting (FGM/C) is prevalent will be provided a link in the DS-260 to an electronic pamphlet that covers the illegality of the practice in the United States. Further, applicants will be required to check a box verifying that the link was provided to them. Finally, the revised visa application forms will include additional information regarding the visa medical examination that some applicants may be required to undergo. Additional details of the changes are available in supporting documents.
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
Written comments should be submitted by September 27, 2018.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Barbara Hall at (940) 594-5913, or by email at:
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
Written comments should be submitted by September 24, 2018.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Barbara Hall at (940) 594-5913, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice of intent to rule on request to release airport property; Nome Airport (OME), Nome, Alaska.
The FAA proposes to rule and invites public comment on the release of land at the Nome Airport, Nome, Alaska.
Comments must be received on or before September 27, 2018.
Documents are available for review by appointment at the FAA Anchorage Airports Regional Office, Molly Lamrouex, Compliance Manager, 222 W 7th Avenue, Anchorage, AK. Telephone: (907) 271-5439/Fax: (907) 271-2851 and the State of Alaska Department of Transportation and Public Facilities, Fairbanks Office, 2301 Peger Road, Fairbanks, AK. Telephone: (907) 451-5226.
Written comments on the Sponsor's request must be delivered or mailed to: Molly Lamrouex, Compliance Manager, Federal Aviation Administration, Airports Anchorage Regional Office, 222 W 7th Avenue, Anchorage, AK 99513, Telephone Number: (907) 271-5439/FAX Number: (907) 271-2851.
Molly Lamrouex, Compliance Manager, Federal Aviation Administration, Alaskan Region Airports District Office, 222 W 7th Avenue, Anchorage, AK 99513. Telephone Number: (907) 271-5439/FAX Number: (907) 271-2851.
The FAA invites public comment on the request to release approximately 2.15 acres of airport property (lots 2 and 2B) at the Nome Airport (OME) under the provisions of 49 U.S.C. 47107(h)(2). The State of Alaska Department of Transportation has requested from the FAA that approximately 2.15 acres of airport property south of the river be released for sale to the City of Nome for utilities infrastructure needs. The FAA has determined that the release of the property will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than 30 days after the publication of this notice.
The disposition of proceeds from the sale of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
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. Persons requesting to obtain an initial air agency certificate for a repair station or changes to an existing repair station (air agency) certificate are required to submit this request in a format acceptable to the FAA. Repair stations perform maintenance, preventive maintenance, alterations of aircraft and aircraft components and parts thereof. In order to remain consistent and provide ease of application, the FAA designed and made available to the public the FAA Form 8310-3 Application for Repair Station Certificate and/or Rating. The form provides space for the applicant to provide certification information such as, but not limited to, ratings sought, physical place of business, ownership, and request to contract maintenance functions. The applicants submit FAA Form 8310-3 to the FAA Flight Standards Office closest to the proposed place of business for initial certification. The information collected is necessary to obtain repair station certification or if currently certificated, a change in ratings, changes in ownership, changes in the physical location of the repair station, or any other purpose the applicant deems appropriate.
Written comments should be submitted by October 29, 2018.
Send comments to the FAA at the following address: Barbara Hall, Federal Aviation Administration, ASP-
Barbara Hall by email at:
Federal Highway Administration (FHWA), DOT.
Rescind Notice of Intent.
The FHWA is issuing this notice to advise the public that the 2002 Notice of Intent (NOI) published in the
Mr. Mark D. Bartlett, Division Administrator, Federal Highway Administration, 9500 Wynlakes Place, Montgomery, Alabama 36117; Email:
The FHWA, in cooperation with the Alabama Department of Transportation, is rescinding the NOI to prepare an EIS for Federal-aid project HPP-1602(507). The proposed project was to construct a multi-lane, limited access roadway from the Florida state line at U.S. 231 to the City of Dothan and connecting to U.S. 231 north of the City. The study area included Dale, Houston and Geneva Counties.
The NOI for the project was published in the
Any future Federal-aid actions within this corridor will comply with environmental review requirements of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321,
23 U.S.C. 315; 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Rescind Notice of Intent.
The FHWA is issuing this notice to advise the public that the 1996 Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for projects M-8508(1) and ST-697-7, the Huntsville Southern Bypass and Weatherly Road Extension, in Madison County, Alabama is rescinded.
Mr. Mark D. Bartlett, Division Administrator, Federal Highway Administration, 9500 Wynlakes Place, Montgomery, Alabama 36117; Email:
The FHWA, in cooperation with the Alabama Department of Transportation (ALDOT), is rescinding the ROD and FEIS for projects M-8508(1) and ST-697-7, the Huntsville Southern Bypass and Weatherly Road Extension. The proposed project was to construct a Southern Bypass of Huntsville from Memorial Parkway near Hobbs Island Road to Interstate Highway 565 (I-565) and to construct an extension of Weatherly Road to the proposed bypass. The proposed Southern Bypass would have been a controlled access divided roadway with frontage roads.
The ROD for the project was issued in July 19, 1996. The FHWA has determined, in conjunction with ALDOT, the ROD and the FEIS for the project shall be rescinded due to
Any future Federal-aid actions within this corridor will comply with environmental review requirements of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321,
23 U.S.C. 315; 49 CFR 1.48.
Federal Transit Administration, DOT.
Notice of re-establishment of Transit Advisory Committee for Safety.
The Federal Transit Administration (FTA) announces the re-establishment of the Transit Advisory Committee for Safety (TRACS) via a new charter. TRACS is a Federal Advisory Committee established by the U.S. Secretary of Transportation (Secretary) in accordance with the Federal Advisory Committee Act to provide information, advice and recommendations to the Secretary and the Administrator of FTA on matters relating to the safety of public transportation systems. This charter will be effective for two years from the date it is filed with Congress.
Henrika Buchanan, TRACS Designated Federal Officer, Acting Associate Administrator, FTA Office of Transit Safety and Oversight, (202) 366-4020; or Adrianne Malasky, FTA Office of Transit Safety and Oversight, (202) 366-1783.
This notice is provided in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2). Please see the TRACS website for additional information at
Issued in Washington, DC.
United States Sentencing Commission.
Notice of final priorities.
In June 2018, the Commission published a notice of proposed policy priorities for the amendment cycle ending May 1, 2019.
Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500,
The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to Congress not later than the first day of May each year pursuant to 28 U.S.C.994(p).
As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, the Commission has identified its policy priorities for the amendment cycle ending May 1, 2019. Other factors, such as legislation requiring Commission action, may affect the Commission's ability to complete work on any or all identified priorities by May 1, 2019. Accordingly, the Commission may continue work on any or all identified priorities after that date or may decide not to pursue one or more identified priorities.
Pursuant to 28 U.S.C. 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.
The Commission has identified the following priorities:
(1) Continuation of its multiyear examination of the structure of the guidelines post-
(2) Continuation of its work with Congress and others to implement the recommendations of the Commission's 2016 report to Congress,
(3) Consideration of possible amendments to § 4B1.2 (Definitions of Terms Used in Section 4B1.1) to (A) allow courts to consider the actual conduct of the defendant, rather than only the elements of the offense (
(4) Continuation of its work with Congress and others to implement the recommendations of the Commission's 2011 report to Congress,
(5) Continuation of its comprehensive, multiyear study of recidivism, including the circumstances that correlate with increased or reduced recidivism.
(6) Implementation of any legislation warranting Commission action.
(7) Study of Chapter Four, Part A (Criminal History), focusing on (A) how the guidelines treat revocations under
(8) Resolution of circuit conflicts as warranted, pursuant to the Commission's authority under 28 U.S.C. 991(b)(1)(B) and
(9) Consideration of other miscellaneous issues, including possible amendments to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) in light of
28 U.S.C. 994(a), (o); USSC Rules of Practice and Procedure 5.2.
United States Sentencing Commission.
Notice.
In view of upcoming vacancies in the membership of the Victims Advisory Group, the United States Sentencing Commission hereby invites any individual who has knowledge, expertise, or experience in federal crime victimization to apply to be appointed to the advisory group. An applicant for membership in the Victims Advisory Group should apply by sending a letter of interest and resume to the Commission as indicated in the addresses section below. Application materials should be received by the Commission not later than October 31, 2018.
Application materials for membership in the Victims Advisory Group should be received not later than October 31, 2018.
An applicant for membership in the Victims Advisory Group should apply by sending a letter of interest and resume to the Commission by electronic mail or regular mail. The email address is
Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500,
The Victims Advisory Group is a standing advisory group of the United States Sentencing Commission pursuant to 28 U.S.C. 995 and Rule 5.4 of the Commission's Rules of Practice and Procedure. Under the charter for the advisory group, the purpose of the advisory group is (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. 994(o); (2) to provide to the Commission its views on the Commission's activities and work, including proposed priorities and amendments, as they relate to victims of crime; (3) to disseminate information regarding sentencing issues to organizations represented by the Victims Advisory Group and to other victims of crime and victims advocacy groups, as appropriate; and (4) to perform any other functions related to victims of crime as the Commission requests. The advisory group consists of not more than nine members, each of whom may serve not more than two consecutive three-year terms. Each member is appointed by the Commission.
The Commission invites any individual who has knowledge, expertise, or experience in federal crime victimization to apply to be appointed to the Victims Advisory Group by sending a letter of interest and a resume to the Commission as indicated in the
28 U.S.C. 994(a), (o), (p), 995; USSC Rules of Practice and Procedure 5.4.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the Advisory Committee on Women Veterans (Committee) will conduct a site visit on September 10-14, 2018, in Chicago, IL. Sessions are open to the public, except when the Committee is conducting tours of VA facilities, participating in off-site events, and participating in workgroup sessions. Tours of VA facilities are closed, to protect Veterans' privacy and personal information. The site visit will also include a town hall meeting for women Veterans and those who provide services to women Veterans.
The purpose of the Committee is to advise the Secretary of Veterans Affairs regarding the needs of women Veterans with respect to health care, rehabilitation, compensation, outreach, and other programs and activities administered by VA designed to meet such needs. The Committee makes recommendations to the Secretary regarding such programs and activities.
On Monday, September 10, the Committee will convene an open session at the Edward Hines Junior Hospital; 5000 5th Avenue Hines, IL 60141, from 8:30 a.m. to 3:00 p.m. in Room E471. The agenda will include overview briefings from the Edward Hines Junior Hospital leadership on the facilities, programs, demographics, women Veterans programs, and other services available for Veterans in Chicago. In the afternoon, the Committee will reconvene a closed session, as it tours the Edward Hines Junior Hospital.
In the morning of Tuesday, September 11, the Committee will convene an open session at Captain James A. Lovell Federal Health Care Center; 30001 Green Bay Road, North Chicago, IL 60064, from 8:30 a.m. to 3:00 p.m. The agenda will include overview briefings from the Captain James A. Lovell Federal Health Care Center leadership on the facilities, programs, demographics, women Veterans programs, and other services available for Veterans. In the afternoon, the Committee will reconvene a closed session, as it tours the Captain James A. Lovell Federal Health Care Center.
On Wednesday, September 12, the Committee will convene closed sessions, as it tours the Chicago Regional Benefits Office (2122 West Taylor Street Chicago, IL 60612) and the
On Thursday, September 13, the Committee will convene an open session at the Jesse Brown VA Medical Center; 820 South Damen Avenue, Chicago, IL 60612, from 8:30 a.m. to 3:00 p.m. in the Prescription Conference Room JB 2446B (2nd Floor, Damen Building). The agenda will include overview briefings from the Jesse Brown VA Medical Center leadership on the facilities, programs, demographics, women Veterans programs, and other services available for Veterans in Chicago. In the afternoon, the Committee will reconvene a closed session, as it tours the Jesse Brown VA Medical Center.
In the morning of Friday, September 14, the Committee will convene an open session at the Jesse Brown VA Medical Center; 820 South Damen Avenue, Chicago, IL 60612, from 8:00 a.m. to 9:00 a.m. in the Prescription Conference Room JB 2446B (2nd Floor, Damen Building), as it conducts an out-briefing with leadership from the Jesse Brown VA Medical Center / Edward Hines Junior Hospital / Captain James A. Lovell Federal Health Care Center / Chicago Regional Benefits Office / Abraham Lincoln National Cemetery. The Committee will reconvene an open session in the Prescription Conference Room JB 2446B (2nd Floor, Damen Building), as it participates in a town hall meeting with the women Veterans and other stakeholders. The town hall meeting will begin at 9:30 a.m. and end promptly at 11:00 a.m.
With the exception of the town hall meeting, there will be no time for public comment during the meeting. Members of the public may submit written statements for the Committee's review to
Department of Veterans Affairs.
Notice.
This document updates the Cost-Based and Inter-Agency billing rates for medical care or services provided by the Department of Veterans Affairs (VA) furnished in certain circumstances.
The rates set forth herein are effective August 28, 2018 and until further notice.
Romona Greene, Office of Community Care, Revenue Operations, Payer Relations and Services, Rates and Charges (10D1C1), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 382-2521. (This is not a toll free number.)
VA's methodology for computing Cost-Based and Inter-Agency rates for medical care or services provided by VA is set forth in 38 CFR 17.102(h). Two sets of rates are obtained by applying this methodology, Cost-Based and Inter-Agency.
In accordance with 38 CFR 17.102(a), (b), (d), and (g) respectively, Cost-Based rates apply to medical care and services that are provided by VA:
• In error or based on tentative eligibility,
• In a medical emergency,
• To pensioners of allied nations; and
• For research purposes in circumstances under which the medical care appropriation shall be reimbursed from the research appropriation.
In accordance with 38 CFR 17.102(c) and (f), Inter-Agency rates apply to medical care and services that are provided by VA to beneficiaries of the Department of Defense or other Federal agencies, when the care or services provided is not covered by an applicable sharing agreement, unless otherwise stated.
The calculations for the Cost-Based and Inter-Agency rates are the same with two exceptions. Inter-Agency rates are all-inclusive, are not broken down into three components (Physician; Ancillary; and Nursing, Room, and Board), and do not include standard fringe benefit costs that cover Government employee retirement, disability costs, and return on fixed assets. When VA pays for medical care or services from a non-VA source under circumstances in which the Cost-Based or Inter-Agency rates would apply if the care or services had been provided by VA, the charge for such care or services will be the actual amount paid by VA for the care or services. Inpatient charges will be at the per diem rates shown for the type of bed section or discrete treatment unit providing the care.
The following table depicts the Cost-Based and Inter-Agency rates that are effective upon publication of this notice and will remain in effect until the next
The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on August 22, 2018, for publication.
| 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 |