| Page Range | 45325-45534 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 45469 - Sunshine Act Meeting | |
| 83 FR 45471 - Sunshine Act Meeting; National Science Board | |
| 83 FR 45421 - Sunshine Act Meetings | |
| 83 FR 45411 - Revision of the Land Management Plan for the Colville National Forest in Washington State | |
| 83 FR 45469 - Agency Information Collection Activities; Proposed Revision of a Currently Approved Collection; Request for Comments; H-2B Temporary Non-Agricultural Labor Certification Program Forms (OMB Control Number 1205-0509) | |
| 83 FR 45342 - Safety Zone; Perch and Pilsner Fireworks; Lake Erie, Conneaut, OH | |
| 83 FR 45455 - Charter Renewal for the Advisory Committee on Organ Transplantation | |
| 83 FR 45480 - Pipeline Safety: Meeting of the Voluntary Information-Sharing System Working Group | |
| 83 FR 45461 - Agency Information Collection Activities; Loan Guarantee, Insurance and Interest Subsidy Program | |
| 83 FR 45411 - Submission for OMB Review; Comment Request | |
| 83 FR 45339 - Special Local Regulation; Upper Mississippi River, St. Paul, MN | |
| 83 FR 45460 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; National Cooperative Geologic Mapping Program (EDMAP and STATEMAP) | |
| 83 FR 45480 - Notice To Rescind a Notice of Intent To Prepare an Environmental Impact Statement for the Southern Evacuation Life Line Project in Georgetown and Horry Counties, SC | |
| 83 FR 45468 - Bulk Manufacturer of Controlled Substances Registration | |
| 83 FR 45464 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Safety and Environmental Management Systems (SEMS) | |
| 83 FR 45447 - Meeting of the Community Preventive Services Task Force (CPSTF) | |
| 83 FR 45462 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Relief or Reduction in Royalty Rates | |
| 83 FR 45463 - Agency Information Collection Activities; Oil and Gas Production Requirements | |
| 83 FR 45465 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Well Control and Production Safety Training | |
| 83 FR 45466 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Plans and Information | |
| 83 FR 45412 - Proposed Information Collection; Comment Request; Generic Clearance for Customer Satisfaction Research | |
| 83 FR 45421 - Proposed Collection; Comment Request | |
| 83 FR 45364 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH Helicopters | |
| 83 FR 45481 - Pipeline Safety: Meeting of the Voluntary Information-Sharing System Working Group | |
| 83 FR 45415 - Large Power Transformers From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 | |
| 83 FR 45417 - Certain Crystalline Silicon Photovoltaic Products From the People's Republic of China: Notice of Partial Rescission of Antidumping Duty Administrative Review; 2017-2018 | |
| 83 FR 45462 - Advisory Board for Exceptional Children | |
| 83 FR 45442 - Environmental Impact Statements; Notice of Availability | |
| 83 FR 45418 - Multilayered Wood Flooring From the People's Republic of China: Correction to the Final Results of Antidumping Duty Administrative Review; 2015-2016 | |
| 83 FR 45413 - Foreign-Trade Zone (FTZ) 207-Richmond, Virginia; Notification of Proposed Production Activity; Kaiser Aluminum Fabricated Products, LLC (Aluminum Extrusions); Richmond, Virginia | |
| 83 FR 45420 - Procurement List; Deletions | |
| 83 FR 45419 - Procurement List; Proposed Deletions | |
| 83 FR 45448 - Solicitation of Nominations for Appointment to the World Trade Center Health Program Scientific/Technical Advisory Committee (STAC) | |
| 83 FR 45471 - Information Collection: NRC Form 664, General Licensee Registration | |
| 83 FR 45414 - Submission for OMB Review; Comment Request; Licensing Responsibilities and Enforcement | |
| 83 FR 45344 - Safety Zone; Moonlight on the Bay Fireworks, Presque Isle Bay, Lake Erie, Erie, PA | |
| 83 FR 45346 - Safety Zone; PA Municipal Authorities Annual Conference Fireworks, Presque Isle Bay, Erie, PA | |
| 83 FR 45457 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0018 | |
| 83 FR 45425 - Combined Notice of Filings #2 | |
| 83 FR 45438 - Combined Notice of Filings #1 | |
| 83 FR 45423 - Midwest Hydro, LLC, STS Hydropower, Ltd.; Notice of Application Accepted for Filing, Soliciting Comments, Protests and Motions To Intervene | |
| 83 FR 45433 - Corpus Christi Liquefaction Stage III, LLC; Corpus Christi Liquefaction, LLC; and Cheniere Corpus Christi Pipeline, L.P.; Notice of Schedule for Environmental Review of the Stage 3 Project | |
| 83 FR 45433 - Notice of Availability of the Environmental Assessment for the Proposed Dominion Energy Transmission, Inc. Sweden Valley Project | |
| 83 FR 45426 - Notice of Anticipated Schedule of Final Order for the Jordan Cove Project: Jordan Cove Energy Project, LP; Pacific Connector Gas Pipeline, LP | |
| 83 FR 45435 - Pacific Connector Gas Pipeline LP, Jordan Cove Energy Project LP; Notice of Schedule for Environmental Review Pacific Connector Pipeline Project and Jordan Cove Energy Project | |
| 83 FR 45426 - Freeport LNG Development, L.P.; Notice of Schedule for Environmental Review of the Train 4 Project | |
| 83 FR 45438 - Notice of Revised Schedule for Environmental Review of the Alaska Gasline Development Corporation Alaska LNG Project | |
| 83 FR 45482 - Agency Information Collection Activity: Department of Veterans Affairs Acquisition Regulation; Architect-Engineer Fee Proposal; Contractor Production Report; Daily Log and Contract Progress Report | |
| 83 FR 45422 - Notice of Schedule for Environmental Review of the Annova LNG Common Infrastructure, LLC, Annova LNG Brownsville A, LLC, Annova LNG Brownsville B, LLC, and Annova LNG Brownsville C, LLC Annova LNG Brownsville Project | |
| 83 FR 45427 - Notice of Schedule for Environmental Review of the Rio Grande LNG, LLC and Rio Bravo Pipeline Company, LLC Rio Grande LNG Project | |
| 83 FR 45428 - Notice of Intent To Prepare an Environmental Assessment for the Proposed Gulf South Pipeline Company, LP Willis Lateral Project, and Request for Comments on Environmental Issues | |
| 83 FR 45436 - Notice of Anticipated Schedule of Final Order for the Alaska Gasline Development Corporation Alaska LNG Project | |
| 83 FR 45425 - Notice of Revised Schedule for Environmental Review of the Driftwood LNG LLC and Driftwood Pipeline LLC Driftwood LNG Project | |
| 83 FR 45436 - Notice of Schedule for Environmental Review of the Venture Global Plaquemines LNG, LLC and Venture Global Gator Express, LLC Plaquemines LNG and Gator Express Pipeline Project | |
| 83 FR 45422 - Notice of Schedule for Environmental Review of the Eagle LNG Partners Jacksonville, LLC Jacksonville Project | |
| 83 FR 45441 - Notice of Schedule for Environmental Review of the Port Arthur Liquefaction Project, the Texas Connector Project, and the Louisiana Connector Project: Port Arthur LNG, LLC; PALNG Common Facilities Company, LLC; Port Arthur Pipeline, LLC | |
| 83 FR 45434 - Notice of Schedule for Environmental Review of the UGI LNG, Inc. Temple Truck Rack Expansion Project | |
| 83 FR 45437 - Notice of Schedule for Environmental Review of the Texas LNG Brownsville LLC Texas LNG Project | |
| 83 FR 45424 - Notice of Anticipated Schedule of Final Order for the Calcasieu Pass Project: Venture Global Calcasieu Pass, LLC; TransCameron Pipeline, LLC | |
| 83 FR 45440 - Gulf LNG Liquefaction Company, LLC, Gulf LNG Energy, LLC, Gulf LNG Pipelines, LLC; Notice of Schedule for Environmental Review of the Gulf LNG Liquefaction Project | |
| 83 FR 45424 - Gulf LNG Liquefaction Company, LLC, Gulf LNG Energy, LLC, Gulf LNG Pipeline, LLC; Notice of Anticipated Schedule of Final Order for the Gulf LNG Liquefaction Project | |
| 83 FR 45467 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 83 FR 45443 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 45444 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 45449 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 45452 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 45451 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 45442 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 45474 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940 | |
| 83 FR 45476 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Provide New Optional Functionality to Minimum Quantity Orders | |
| 83 FR 45472 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Expand the Types of Messages That Users May Submit Into Bulk Order Ports | |
| 83 FR 45479 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To Make Permanent the Exchange's Retail Price Improvement Program, Which is Set To Expire on December 31, 2018 | |
| 83 FR 45483 - Advisory Committee on Former Prisoners of War, Notice of Meeting | |
| 83 FR 45359 - Identifying and Reporting Human Performance Incidents | |
| 83 FR 45454 - Policy Regarding Quantitative Labeling of Dietary Supplements Containing Live Microbials; Draft Guidance for Industry; Availability | |
| 83 FR 45335 - Airworthiness Directives; Rolls-Royce Deutschland Ltd & Co KG Turbofan Engines | |
| 83 FR 45351 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard | |
| 83 FR 45337 - Airspace Designations; Incorporation by Reference | |
| 83 FR 45337 - Amendment of Air Traffic Service (ATS) Routes in the Vicinity of Mattoon and Charleston, IL | |
| 83 FR 45396 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Groundfish Bottom Trawl and Midwater Trawl Gear in the Trawl Rationalization Program | |
| 83 FR 45455 - Submission for OMB Review; 30-Day Comment Request; Responsibility of Applicants for Promoting Objectivity in Research for Which Public Health Service (PHS) Funding is Sought and Responsible Prospective Contractors (Office of the Director) | |
| 83 FR 45367 - Interpretive Rule, Shipping Act of 1984 | |
| 83 FR 45458 - Revised Draft Environmental Impact Statement; Amendment to the 1997 Washington State Department of Natural Resources State Lands Habitat Conservation Plan and Incidental Take Permit | |
| 83 FR 45362 - Airworthiness Directives; Fokker Services B.V. Airplanes | |
| 83 FR 45356 - Air Plan Approval; New Hampshire; Single Source Orders and Revisions to Definitions | |
| 83 FR 45333 - Airworthiness Directives; General Electric Company Turbofan Engines | |
| 83 FR 45325 - Partial Exemptions From the Requirements of the Home Mortgage Disclosure Act Under the Economic Growth, Regulatory Relief, and Consumer Protection Act (Regulation C) | |
| 83 FR 45414 - Renewal of the Civil Nuclear Trade Advisory Committee and Solicitation of Nominations for Membership | |
| 83 FR 45359 - Airworthiness Directives; International Aero Engines Turbofan Engines | |
| 83 FR 45348 - Air Plan Approval; Wisconsin; 2017 Revisions to NR 400 and 406 | |
| 83 FR 45486 - Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children | |
| 83 FR 45374 - VA Acquisition Regulation: Contracting by Negotiation; Service Contracting | |
| 83 FR 45384 - VA Acquisition Regulation: Construction and Architect-Engineer Contracts | |
| 83 FR 45366 - Revisions to Procedural Rules Governing Practice Before the Occupational Safety and Health Review Commission |
Forest Service
Census Bureau
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Coast Guard
Bureau of Safety and Environmental Enforcement
Fish and Wildlife Service
Geological Survey
Indian Affairs Bureau
Drug Enforcement Administration
Foreign Claims Settlement Commission
Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
Pipeline and Hazardous Materials Safety 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.
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Bureau of Consumer Financial Protection.
Interpretive and procedural rule.
The Bureau of Consumer Financial Protection (Bureau) is issuing an interpretive and procedural rule to implement and clarify the requirements of section 104(a) of the Economic Growth, Regulatory Relief, and Consumer Protection Act, which amended certain provisions of the Home Mortgage Disclosure Act.
This interpretive and procedural rule is effective on September 7, 2018.
Rachel Ross, Project Analyst; Alexandra Reimelt, Counsel; or Amanda Quester, Senior Counsel, Office of Regulations, at 202-435-7700 or
On May 24, 2018, the President signed the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act) into law.
The rule clarifies that insured depository institutions and insured credit unions covered by a partial exemption have the option of reporting exempt data fields as long as they report all data fields within any exempt data point for which they report data; clarifies that only loans and lines of credit that are otherwise HMDA reportable count toward the thresholds for the partial exemptions; clarifies which of the data points in Regulation C are covered by the partial exemptions; designates a non-universal loan identifier for partially exempt transactions for institutions that choose not to report a universal loan identifier; and clarifies the exception to the partial exemptions for negative Community Reinvestment Act examination history. At a later date, the Bureau anticipates that it will initiate a notice-and-comment rulemaking to incorporate these interpretations and procedures into Regulation C and further implement the Act.
The Home Mortgage Disclosure Act (HMDA), 12 U.S.C. 2801 through 2810, requires certain depository institutions and for-profit nondepository institutions to collect, report, and disclose data about originations and purchases of mortgage loans, as well as mortgage loan applications that do not result in originations (for example, applications that are denied or withdrawn). The purposes of HMDA are to provide the public with loan data that can be used: (i) To help determine whether financial institutions are serving the housing needs of their communities; (ii) to assist public officials in distributing public-sector investment so as to attract private investment to areas where it is needed; and (iii) to assist in identifying possible discriminatory lending patterns and enforcing antidiscrimination statutes.
In 2010, Congress enacted the Dodd-Frank Act, which amended HMDA and also transferred HMDA rulemaking authority and other functions from the Board of Governors of the Federal Reserve System (Board) to the Bureau.
In October 2015, the Bureau issued a final rule implementing the Dodd-Frank Act amendments to HMDA (2015 HMDA Final Rule).
The 2015 HMDA Final Rule also established transactional thresholds that determine whether financial institutions are required to collect and report data on open-end lines of credit or closed-end mortgage loans.
After issuing the 2015 HMDA Final Rule, the Bureau heard concerns that the open-end threshold of 100 transactions was too low. In August 2017, the Bureau finalized a rule after notice and comment (2017 HMDA Final Rule) that temporarily increases the open-end threshold to 500 open-end lines of credit for calendar years 2018 and 2019.
Recognizing the significant systems and operations challenges needed to adjust to the revised regulation, the Bureau issued a statement in December 2017 indicating that, for HMDA data collected in 2018 and reported in 2019, the Bureau does not intend to require data resubmission unless data errors are material.
Section 104(a) of the Act amends HMDA section 304(i) by adding partial exemptions from HMDA's requirements for certain insured depository institutions and insured credit unions.
The Act does not provide an effective date for section 104(a). Because there is no specific effective date and because there are no other statutory indications that section 104(a) becomes effective upon regulatory action or some other event or condition, the Bureau believes that the best interpretation is that section 104(a) took effect when the Act became law on May 24, 2018. On July 5, 2018, the Bureau, the Board, the FDIC, the NCUA, and the OCC released statements reiterating or referring to their December 2017 compliance statements, providing information about formatting and submission of 2018 loan/application registers, and indicating that the Bureau expected to issue guidance this summer on the applicability of the Act to HMDA data collected in 2018.
The Bureau issues this rule pursuant to the authority granted by the Dodd-Frank Act and HMDA. HMDA authorizes the Bureau to prescribe regulations that it finds necessary to carry out HMDA's purposes.
Section 104(a) of the Act provides that the requirements of HMDA section 304(b)(5) and (6) shall not apply to closed-end mortgage loans of an insured depository institution or insured credit union if the institution originated fewer than 500 closed-end mortgage loans in each of the two preceding calendar years, and it includes a similar partial exemption with respect to open-end lines of credit.
Aspects of the Bureau's HMDA platform used for receiving HMDA submissions, including edit checks
Section 104(a) of the Act does not define the term “closed-end mortgage loan” or “open-end line of credit.” It also does not specify whether these terms include loans or lines of credit that would otherwise not be subject to HMDA reporting under Regulation C, such as loans used primarily for agricultural purposes.
If a transaction qualifies for one of the Act's partial exemptions, section 104(a) of the Act provides that the requirements of HMDA section 304(b)(5) and (6) shall not apply. For the reasons explained below, the Bureau interprets the requirements of HMDA section 304(b)(5) and (6) to include the 26 data points listed in the first column of table 1 at the end of this part VI. For loans or applications covered by a partial exemption, insured depository institutions and insured credit unions therefore are required to collect and report only the remaining 22 data points specified in the 2015 and 2017 HMDA Final Rules, which are identified in the second column of table 1 below.
As explained in part II.B above, the Dodd-Frank Act added HMDA section 304(b)(5) and (6), which requires certain data points and provides the Bureau discretion to require additional data points.
• The total points and fees payable at origination;
• The difference between the APR associated with the loan and a benchmark rate or rates for all loans;
• The term in months of any prepayment penalty or other fee or charge payable on repayment of some portion of principal or the entire principal in advance of scheduled payments; and
• Such other information as the Bureau may require.
HMDA section 304(b)(6) requires disclosure of the number and dollar amount of mortgage loans and completed applications grouped according to measurements of:
• The value of the real property pledged or proposed to be pledged as collateral;
• The actual or proposed term in months of any introductory period after which the rate of interest may change;
• The presence of contractual terms or proposed contractual terms that would allow the mortgagor or applicant to make payments other than fully amortizing payments during any portion of the loan term;
• The actual or proposed term in months of the mortgage loan;
• The channel through which application was made;
• As the Bureau may determine to be appropriate, a unique identifier that identifies the loan originator as set forth in section 5102 of this title;
• As the Bureau may determine to be appropriate, a universal loan identifier;
• As the Bureau may determine to be appropriate, the parcel number that corresponds to the real property pledged or proposed to be pledged as collateral;
• The credit score of mortgage applicants and mortgagors; and
• Such other information as the Bureau may require.
For purposes of the Act, the Bureau interprets the requirements of HMDA section 304(b)(5) and (6) to include the 12 data points that the Bureau added to Regulation C in the 2015 HMDA Final Rule to implement data points specifically identified in HMDA section 304(b)(5)(A) through (C) or (b)(6)(A) through (I), which are the following: ULI; property address; rate spread
The Bureau interprets the requirements of HMDA section 304(b)(5) and (6) not to include four other data points that are similar or identical to data points added to Regulation C by the Board and that the Bureau re-adopted in the 2015 HMDA Final Rule: lien status of the subject property; whether the loan is subject to the Home Ownership and Equity Protection Act of 1994 (HOEPA); construction method for the dwelling related to the subject property; and the total number of individual dwelling units contained in the dwelling related to the loan (number of units).
The Board adopted its versions of these data points before HMDA section 304(b)(5) and (6) was added to HMDA by the Dodd-Frank Act, pursuant to HMDA authority that pre-existed section 304(b)(5) and (6). Although the Bureau cited HMDA section 304(b)(5) and (6) as additional support for these four data points in the 2015 HMDA Final Rule, the Bureau relied on HMDA section 305(a), which pre-existed the Dodd-Frank Act and independently provides legal authority for their adoption.
The requirements of HMDA section 304(b)(5) and (6), and thus the partial exemptions, also do not include 17 other data points included in the 2015 HMDA Final Rule that are similar or identical to pre-existing Regulation C data points established by the Board and that were not required by HMDA section 304(b)(5) and (6) or promulgated using discretionary authority under HMDA section 304(b)(5)(D) and (b)(6)(J). These are: the Legal Entity Identifier (which replaced the pre-existing respondent identifier); application date; loan type; loan purpose; preapproval; occupancy type; loan amount; action taken; action taken date; State; county; census tract; ethnicity; race; sex; income; and type of purchaser.
With respect to transactions covered by one of the Act's new partial exemptions, insured depository institutions and insured credit unions are therefore required to report 22 of the 48 data points currently set forth in Regulation C, as indicated in table 1 below. Because the Act does not make any changes with respect to these 22 data points, insured depository institutions and insured credit unions that are eligible for a partial exemption under the Act must continue to report these 22 data points in the manner currently specified in Regulation C. For example, insured depository institutions and insured credit unions that are eligible for a partial exemption under the Act are still required to report a Legal Entity Identifier as well as lien status for purchased loans.
In the 2015 HMDA Final Rule, the Bureau interpreted “universal loan identifier” (ULI) as used in HMDA section 304(b)(6)(G) to mean an identifier that is unique within the industry and required that the ULI include the Legal Entity Identifier of the institution that assigned the ULI.
Regardless, as was true prior to the Dodd-Frank Act HMDA amendments and under Regulation C as it existed prior to the 2015 HMDA Final Rule, loans and applications must be identifiable in the HMDA data to ensure proper HMDA submission, processing, and compliance.
A non-universal loan identifier does not need to be unique within the industry and therefore does not need to include a Legal Entity Identifier as the ULI does.
1. May be letters, numerals, or a combination of letters and numerals;
2. Must be unique within the insured depository institution or insured credit union; and
3. Must not include any information that could be used to directly identify the applicant or borrower.
To ensure that a non-universal loan identifier is unique within the insured depository institution or insured credit union, the institution must assign only one non-universal loan identifier to any particular covered loan or application, and each non-universal loan identifier must correspond to a single application and ensuing loan in the case that the application is approved and a loan is originated. Similarly, refinancings or applications for refinancing should be assigned a different non-universal loan identifier than the loan that is being refinanced. An insured depository institution or insured credit union with multiple branches must ensure that its branches do not use the same non-universal loan identifier to refer to multiple covered loans or applications. An institution may not use a non-universal loan identifier previously reported if the institution reinstates or reconsiders an application that was reported in a prior calendar year.
Notwithstanding the new partial exemptions, new HMDA section 304(i)(3) provides that an insured depository institution must comply with HMDA section 304(b)(5) and (6) if it has received a rating of “needs to improve record of meeting community credit needs” during each of its two most recent Community Reinvestment Act (CRA) examinations or a rating of “substantial noncompliance in meeting community credit needs” on its most recent CRA examination. The Act does not specify as of what date an insured depository institution's two most recent CRA examinations must be assessed for purposes of this exception. The Bureau interprets the Act to require that this assessment be made as of December 31 of the preceding calendar year. This is consistent with Regulation C's asset-size threshold and requirement that a financial institution have a home or branch office located in a Metropolitan
For example, in 2020, the preceding December 31 is December 31, 2019. Assume Insured Depository Institution A received a rating of “needs to improve record of meeting community credit needs” during each of its two most recent examinations under section 807(b)(2) of the CRA
Because this rule is solely interpretive and procedural, it is not subject to the 30-day delayed effective date for substantive rules under section 553(d) of the Administrative Procedure Act.
Section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act; and the impact on consumers in rural areas. Section 1022(b)(2)(B) directs the Bureau to consult with the appropriate prudential regulators or other Federal agencies regarding consistency with objectives those agencies administer. The manner and extent to which these provisions apply to a rulemaking of this kind, which interprets and provides guidance regarding existing law and establishes Bureau procedures but does not establish standards of conduct, is unclear. Nevertheless, to inform this rulemaking more fully, the Bureau performed the analyses and consultations described in those provisions of the Dodd-Frank Act.
Section 104(a) of the Act amends HMDA section 304(i) by adding partial exemptions from HMDA's requirements for certain institutions. This interpretive and procedural rule implements the requirements of section 104(a). The rule provides clarification and guidance to all affected entities on the institutions covered by the partial exemption and what data must be collected, recorded, and reported.
The rule provides clarification and guidance on five general items:
1. Partially exempt institutions have the option to report data points covered by the partial exemption. If a data point covered by the partial exemption includes multiple data fields, partially exempt institutions report all of the data fields if they choose to report at least one of the data fields.
2. The terms “closed-end mortgage loan” and “open-end line of credit” include only loans and lines of credit that are otherwise reportable under HMDA.
3. Partially exempt institutions are not required to report 26 data points specified in this rule.
4. Partially exempt institutions are required to report a non-universal loan identifier if they choose not to report a ULI.
5. For a given reporting year, the CRA ratings used to determine whether the CRA reporting exception applies are the two most recent CRA ratings as of December 31 of the preceding calendar year.
In developing this rule, the Bureau has considered potential benefits, costs, and impacts of these clarifications and guidance. The Bureau has consulted with, or offered to consult with, the Board, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, the Department of Housing and Urban Development, the Securities and Exchange Commission, the Department of Justice, the Department of Veterans Affairs, the Federal Housing Finance Agency, the Department of the Treasury, the Department of Agriculture, the Federal Trade Commission, and the Federal Financial Institutions Examination Council.
Under section 104(a) of the Act, an insured depository institution or insured credit union is eligible for a partial exemption for its closed-end mortgage loans if it originated fewer than 500 closed-end mortgage loans in each of the two preceding calendar years and did not receive a rating of “needs to improve record of meeting community credit needs” during both of its two most recent CRA examinations or a rating of “substantial noncompliance in meeting community credit needs” during its most recent CRA examination. After applying all current HMDA reporting requirements, including Regulation C's complete regulatory exclusion for institutions that originated fewer than 25 closed-end mortgage loans in either of the two preceding calendar years, the Bureau estimates that section 104(a) of the Act provides a partial exemption with respect to collection, recording, and reporting of 2018 HMDA data to approximately 3,300 institutions.
For open-end lines of credit, the Bureau estimates that the new reporting criteria in section 104(a) of the Act will not have any effect on data collected in 2018. Regulation C currently provides a complete regulatory exclusion for open-end lines of credit for institutions that originated fewer than 500 open-end lines of credit in either of the preceding two years, and this exclusion applies to more institutions than the section 104(a) partial exemption criterion of fewer than 500 originations in each of the two preceding calendar years. The effect that section 104(a) will have on data collected for open-end lines of credit on or after January 1, 2020, is unclear because the temporary threshold of 500 open-end lines of credit for the complete regulatory exclusion applies only for 2018 and 2019. The Bureau has indicated that it intends to reconsider the threshold for the permanent regulatory exclusion for open-end lines of credit, which is currently set at 100
The Bureau is using a post-statute baseline to assess the impact of this rule because the rule merely interprets and provides guidance regarding what Congress required in section 104(a) of the Act and provides procedures related to applying those requirements.
Covered persons should benefit from this rule because it will ease review, understanding, and compliance with section 104(a) of the Act, which will in turn reduce the likelihood of potentially inconsistent or incorrect implementation. It is not practicable to quantify the precise magnitude of these informational benefits; however, they will likely vary over time, with earlier guidance providing higher benefits because covered persons have more time to incorporate this information into their planning and preparation. Without this rule, covered persons would either need to rely more heavily on their own independent evaluations of the statute, which would increase the likelihood of inconsistent or incorrect implementation and non-compliance, or wait for guidance in the anticipated notice-and-comment rulemaking, which would provide covered persons less time to incorporate authoritative guidance while adopting the changes under the Act.
These short-run benefits of the rule are somewhat offset by guidance the Bureau provided in December 2017, indicating that it does not intend to require data resubmission of 2018 HMDA data unless data errors are material or to assess penalties for data errors. The Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the National Credit Union Administration released similar statements. Decreased potential for data resubmission and penalties in the short-run reduces the value to covered persons of receiving earlier guidance and clarification.
An additional benefit is that this rule provides covered persons with additional options, and increased options generally translate into increased benefits. For example, the rule allows for voluntary reporting of partially exempt data points such as ULI. During the 2015 HMDA rulemaking process, however, some commenters suggested that options increased reporting burden, because they added uncertainty and required more interpretation.
The Bureau expects this rule to impose negligible costs on covered persons. There are three items of note here. First, this rule provides specific definitions of the terms “closed-end mortgage loan” or “open-end line of credit,” which are not defined in section 104(a) of the Act. The Bureau is interpreting these terms to include only loans and lines of credit that would otherwise be reportable under Regulation C. The Bureau believes that tying the definitions to the same criteria that already determines HMDA reportability will not impose any additional costs. By contrast, if the Bureau had interpreted these terms to have a broader meaning, the rule would have resulted in fewer covered persons being eligible for the Act's partial exemptions and additional costs for covered persons.
Second, requiring partially exempt institutions that choose not to report a ULI (an exempt data point) to report a non-universal loan identifier, consistent with criteria specified in the rule, could potentially increase burden. However, the Bureau believes that this burden, if any, will be negligible, because most institutions will already have a loan identifier for internal processing and tracking purposes, and, for those that do not, creating and reporting a loan identifier will be low cost.
Third, requiring a partially exempt institution to report all data fields for an exempt data point if it voluntarily chooses to report at least one of the data fields could increase burden. In some circumstances, the institution could face increased costs in having to report all data fields rather than only the data fields it chooses to report. However, the Bureau believes that this additional burden will be small. This requirement will affect only partially exempt institutions that would prefer to voluntarily report some, but not all, data fields for a particular data point, and the number of such institutions is likely small. In addition, of the 26 exempt data points, only seven have multiple data fields (property address, credit score, reason for denial, total loan costs or total points and fees, non-amortizing features, application channel, and automated underwriting system), which also serves to limit the burden associated with this provision.
In addition to effects on covered persons discussed above, this rulemaking is expected to have negligible impact on consumers, in terms of either costs or benefits.
The Bureau estimates that approximately 3,300 institutions are partially exempt under section 104(a) of the Act, and that most of these institutions are depository institutions with no more than $10 billion in assets. The benefits of this rule to these institutions are summarized in part X.C. The Bureau expects the burden of this rule on these institutions to be negligible.
The Bureau does not expect this rule to affect consumers' access to credit. The scope of the rulemaking is limited to clarification of reporting requirements that would not be of sufficient magnitude to materially affect access to credit.
The Bureau does not believe that this rule will have a unique impact on consumers in rural areas. Any potential effects on consumers, expected to be negligible in all cases, would be indirect effects passed through by HMDA reporters, and any impact on HMDA reporters is not expected to vary by geographic area. In addition, many rural lenders are not required to report because of HMDA's requirement that a financial institution have a home or branch office located in a Metropolitan Statistical Area, so the rule would have no specific impacts on rural areas.
This rule articulates the Bureau's interpretation of section 104(a) of the Economic Growth, Regulatory Relief, and Consumer Protection Act. It also alters the manner and procedure in which insured depository institutions and insured credit unions eligible for
The Bureau has determined that this interpretive and procedural rule does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 through 3521. To the extent that eligible reporters may take advantage of the Act's partial exemptions, the Bureau lacks sufficient information at present to estimate the potential burden reduction. When the Bureau has sufficient data to make an estimate, it will revise its burden estimates as appropriate.
Pursuant to the Congressional Review Act,
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all General Electric Company (GE) GE90-76B, GE90-77B, GE90-85B, GE90-90B, and GE90-94B turbofan engines with full authority digital engine control (FADEC) software, version 9.3.2.4 or earlier, installed. This AD requires upgrading the FADEC software to a software version eligible for installation. This AD was prompted by an ice-crystal icing (ICI) event that caused damage to both engines, a single engine stall, and subsequent engine shutdown. We are issuing this AD to address the unsafe condition on these products.
This AD is effective September 24, 2018.
We must receive comments on this AD by October 22, 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 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
John Frost, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7756; fax: 781-238-7199; email:
We received a report of a commanded in-flight shutdown and an air turn back shortly after takeoff. After further investigation, the operator found high-pressure compressor (HPC) damage, which was the result of an earlier ICI event. After the ICI event and subsequent progressive HPC damage, engine performance decreased and an engine stall occurred. As a result, GE improved the FADEC software to provide ICI event detection and to provide an alternate variable bypass valve (VBV) schedule that opens the VBV doors to extract ice crystals from the core flowpath and reduce accretion when ICI is detected. This condition, if not addressed, could result in failure of the HPC, failure of one or more engines, loss of thrust control, and loss of the airplane. We are issuing this AD to address the unsafe condition on these products.
We reviewed GE GE90 Service Bulletin (SB) 73-0146, dated May 2, 2018. The SB introduces new FADEC software and describes procedures for upgrading the FADEC software.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or
This AD requires upgrading the FADEC software to a software version eligible for installation.
GE GE90 SB 73-0146, dated May 2, 2018, recommends that you load the new FADEC software as soon as possible, but no later than six months after the original issue date of the SB. This AD requires compliance within 90 days after the effective date of this AD. We expect this difference to be minimal because the GE SB was issued earlier than this AD.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because engine failure due to an ICI event is more likely to occur during the current convective weather season and such failure could result in failure of one or more engines and loss of the airplane. Because of this, the compliance time for the required action is shorter than the time necessary for the public to comment and for us to publish the final rule to ensure the unsafe condition is fixed during the convective weather season. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and 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 57 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 September 24, 2018.
None.
This AD applies to all GE GE90-76B, GE90-77B, GE90-85B, GE90-90B, and GE90-94B turbofan engines with full authority digital engine control (FADEC) software, version 9.3.2.4 or earlier, installed.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by an ice-crystal icing event that caused damage to both engines, a single engine stall, and subsequent engine shutdown. We are issuing this AD to prevent failure of the high-pressure compressor (HPC). The unsafe condition, if not addressed, could result in failure of the HPC, failure of one or more engines, loss of thrust control, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 90 days after the effective date of this AD, remove FADEC software, version 9.3.2.4 or earlier, from the engine.
(2) Install a FADEC software version eligible for installation.
Within 90 days after the effective date of this AD, do not operate any engine with FADEC software, version 9.3.2.4 or earlier, installed.
(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) 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 John Frost, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7756; fax: 781-238-7199; email:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Rolls-Royce Deutschland Ltd & Co KG (RRD) BR700-710A2-20 and BR700-710C4-11 turbofan engines. This AD was prompted by reports of deterioration of the intumescent heat resistant paint system on the electronic engine controller (EEC) firebox assembly that was found to be beyond acceptable limits. This AD requires replacement of affected EEC firebox assembly parts with improved parts, which have a more durable paint system. We are issuing this AD to address the unsafe condition on these products.
This AD becomes effective October 12, 2018.
For service information identified in this final rule, contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlewitz, 15827 Blankenfelde-Mahlow, Germany; phone: +49 (0) 33 7086 2673; fax: +49 (0) 33 7086 3276. You may view this service information at the 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. It is also available on the internet at
You may examine the AD docket on the internet at
Barbara Caufield, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7146; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain RRD BR700-710A2-20 and BR700-710C4-11 turbofan engines. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017-0198, dated October 10, 2017 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:
Occurrences were reported where deterioration of an Electronic Engine Controller (EEC) firebox assembly intumescent heat resistant paint system was found to be beyond acceptable limits. Subsequent investigation determined that lack of paint adhesion, due to incorrect surface preparation during manufacturing, had caused this deterioration.
This condition, if not corrected, could reduce the fire protection capability of the EEC firebox, possibly leading to reduced control of an engine during engine fire, engine overspeed and release of high-energy debris, resulting in damage to, and/or reduced control of, the aeroplane.
To address this potential unsafe condition, RRD issued Alert SB SB-BR700-73-A101977, SB-BR700-73-A101981 and SB-BR700-73-A101985 to provide modification
For the reason described above, this AD requires replacement of affected EEC firebox assembly parts with improved parts.
You may obtain further information by examining 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 comment received on the NPRM and the FAA's response to this comment.
RRD requested that we align the compliance time of this AD with EASA AD 2017-0198, dated October 10, 2017, and RRD Alert Service Bulletins (ASBs) SB-BR700-73-A101977, SB-BR700-73-A101981 and SB-BR700-73-A101985. RRD suggested that we revise the compliance time of the FAA AD to meet the end date of the RRD ASBs, which is January 31, 2021.
We agree. The proposed compliance time of 6 months in the NPRM was an error. We revised the compliance time for performance of the required actions of this AD to a timeframe consistent with the EASA AD and the RRD ASBs. The revised compliance time requires performance of the required actions within 28 months after the effective date of this AD.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule with the change 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 RRD ASB SB-BR700-73-A101977, Revision 3, dated July 10, 2017; RRD ASB SB-BR700-73-A101981, Revision 3, dated July 10, 2017; and RRD ASB SB-BR700-73-A101985, Revision 3, dated July 10, 2017. The service information describes procedures for installing new or reworked EEC firebox assembly parts for BR700-710A2-20 and BR700-710C4-11 turbofan engines, which includes BR700-710C4-11/10 turbofan engines.
We estimate that this AD affects 842 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 October 12, 2018.
None.
This AD applies to:
(1) Rolls-Royce Deutschland Ltd & Co KG (RRD) BR700-710A2-20 turbofan engines with any electronic engine controller (EEC) firebox assembly installed, with any of the following component part numbers (P/Ns): FW42888, FW42886, FW38590, FW38591, or FW58255.
(2) RRD BR700-710C4-11 turbofan engines with any EEC firebox assembly installed, with any of the following component P/Ns: FW38504, FW38503, FW38590, FW38591, or FW58255.
Joint Aircraft System Component (JASC) Code 7600, Engine Controls.
This AD was prompted by reports of deterioration of the intumescent heat resistant paint system on the EEC firebox assembly that was found to be beyond acceptable limits. We are issuing this AD to prevent failure of the EEC. The unsafe condition, if not addressed, could result in failure of the EEC, loss of engine thrust control, and reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 28 months after the effective date of this AD, perform the following:
(i) For RRD BR700-710A2-20 engines, remove from service the EEC firebox assembly components with P/N FW42888, FW42886, FW38590, FW38591, and FW58255, and replace with parts eligible for installation.
(ii) For RRD BR700-710C4-11 engines, remove from service the EEC firebox assembly components with P/N FW38504, FW38503, FW38590, FW38591, and FW58255, and replace with parts eligible for installation.
(2) Reserved.
(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 (i)(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 Barbara Caufield, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7146; fax: 781-238-7199; email:
(2) Refer to EASA AD No. 2017-0198, dated October 10, 2017, for more information. You may examine the EASA AD in the AD docket on the internet at
None.
Federal Aviation Administration (FAA), DOT.
Final rule, correction.
This action corrects a final rule published in the
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.
Sarah A. Combs, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA published a final rule in the
Accordingly, pursuant to the authority delegated to me, Airspace Designations; Incorporation by Reference, published in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies two VHF Omnidirectional Range (VOR) Federal airways (V-72 and V-429) in the vicinity of Mattoon and Charleston, IL.
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.
Colby Abbott, 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 would support the route structure in the Mattoon and Charleston, IL, area as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).
The FAA published a notice of proposed rulemaking in the
In their comment, IDOT recommended the FAA amend theV-429 airway segment between the Bible Grove, IL, VOR/Tactical Air Navigation (VORTAC), Mattoon, IL, VOR/DME, and Champaign, IL, VORTAC by establishing a segment running directly between the Bible Grove VORTAC and Champaign VORTAC. They argued the discontinuity of the FAA proposal to remove the V-429 airway segment between the Bible Grove and Champaign VORTACs does not make effective use of the airspace in the area. In support of their recommendation, they noted the Bible Grove and Champaign VORTACs are located 68 nautical miles (NM) apart and establishing an airway segment between the two NAVAIDs is within the associated standard service volume (40 NM each) with a total segment service volume of 80 NM.
In support of Next Generation Air Transportation System (NextGen) initiatives aimed at modernizing the NAS to make flying safer, more efficient, and more predictable, the FAA is working to reduce the NAS dependency on its conventional navigational infrastructure and transition to a performance based navigation (PBN) infrastructure. To that end, as part of a NAS Efficient Streamlined Services Initiative, the VOR MON program is working to gradually reduce the number of conventional legacy NAVAIDs while more efficient PBN area navigation (RNAV) air traffic service (ATS) routes and procedures are being implemented throughout the NAS. As such, the FAA's goal is to provide additional RNAV ATS routes, point-to-point navigation where operationally beneficial, and to remove most conventional ATS routes, except where needed in mountainous regions and areas without radar coverage.
As noted in the NPRM, the FAA identified available mitigations to overcome the proposed gaps in theV-72 and V-429 ATS routes. Instrument flight rules (IFR) traffic could use adjacent VOR Federal airways (including V-5, V-7, V-69, V-171,V-191, V-192, V-262, and V-586) to circumnavigate the affected area; file point to point through the affected area using fixes that will remain in place; or receive air traffic control (ATC) radar vectors through the area. And, visual flight rules (VFR) pilots who elect to navigate via V-72 and V-429 through the affected area could also take advantage of the adjacent VOR Federal airways or ATC services. Additionally, the FAA planned to retain the Mattoon DME facility, charted as a DME facility, using the existing “MTO” three-letter identifier.
In consideration of IDOT's recommendation, the FAA agrees that amending V-429 by establishing an airway segment directly between the Bible Grove and Champaign legacy VORTACs would continue to provide an uninterrupted, conventional ATS route between the Cape Girardeau, MO, VOR/DME and Joliet, IL, VORTAC. However, the FAA also notes that IDOT's recommendation does not support the FAA's NextGen efforts to modernize the NAS and that the mitigations identified in the NPRM provide alternatives for pilots to overcome and navigate through the ATS route gaps in the Charleston and Mattoon area that are successfully used in other parts of the NAS. As such, the FAA is moving forward with the ATS route amendments as proposed in the NPRM.
Although the determination is to proceed with the amendments to V-72 and V-429 addressed in the NPRM, the FAA is in the planning stages for establishing a PBN area navigation (RNAV) T-route that closely mirrors the ATS route segment recommended by IDOT, beginning near the Bible Grove VORTAC and proceeding northbound to near the Champaign VORTAC. Once all the coordination and development actions for establishing that RNAV T-route are completed, the FAA will propose the new T-route in a separate rulemaking action.
VOR Federal airways are published in paragraph 6010(a) 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 VOR Federal airways listed in this document will be subsequently published in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017,
The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 by modifying the descriptions of VOR Federal airways V-72 and V-429 due to the planned decommissioning of the Mattoon, IL, VOR. The VOR Federal airway changes are described below.
V-72: V-72 extends between the Razorback, AR, VOR/Tactical Air Navigation (VORTAC) and the Bloomington, IL, VOR/DME. The airway segment between the Bible Grove, IL, VORTAC and the Bloomington, IL, VOR/DME is removed. The unaffected portions of the existing airway remain as charted.
V-429: V-429 extends between the Cape Girardeau, MO, VOR/DME and the Joliet, IL, VORTAC. The airway segment between the Bible Grove, IL, VORTAC and the Champaign, IL, VORTAC is removed. The unaffected portions of the existing airway remain as charted.
All radials in the route descriptions below are unchanged and stated in True degrees.
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 modifying VOR Federal airways V-72 and V-429 in the vicinity of Mattoon and Charleston, IL, qualifies for categorical exclusion under the National Environmental Policy Act, 42 U.S.C. 4321, and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.
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.
From Razorback, AR; Dogwood, MO; INT Dogwood 058° and Maples, MO, 236° radials; Maples; Farmington, MO; Centralia, IL; to Bible Grove, IL.
From Cape Girardeau, MO; Marion, IL; INT Marion 011° and Bible Grove, IL, 207° radials; to Bible Grove. From Champaign, IL; Roberts, IL; to Joliet, IL.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation for the navigable waters of the Upper Mississippi River from Mile Marker (MM) 846 to MM 847. The special local regulation is necessary to protect event participants, spectators, and vessels transiting the area from potential hazards during the WCCO-TV Pulling Together marine event. Entry of vessels or persons into the regulated area is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.
This rule is effective from 10 a.m. through 5 p.m. on September 8, 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 Chief Petty Officer Joshua Wilson, Sector Upper Mississippi River, Waterways Management Division, U.S. Coast Guard; telephone 314-269-2548, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable. This rule must be established by September 8, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the temporary special local regulation until after the scheduled date of the event, which would compromise public safety.
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 Sector Upper Mississippi River (COTP) has determined that there are potential hazards associated with the WCCO-TV Pulling Together event consisting of a tug of war competition between teams on opposing banks of the Upper Mississippi River between Mile Marker (MM) 846 and MM 847. This event will span the entire width of the river, potentially causing an extra or unusual hazard to the safety of life on the navigable waters of the United States. This rule is necessary to protect event participants, and persons and vessels transiting the regulated area during the event.
This rule establishes a temporary special local regulation during the WCCO-TV Pulling Together event from 10 a.m. until 5 p.m. on September 8, 2018, or until cancelled by the COTP, whichever occurs first. The regulated area will cover all navigable waters of the Upper Mississippi River from MM 846 to MM 847. This special local regulation is intended to protect the public from potential navigation hazards during the event. No person or vessel is permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). If established, the PATCOM may be contacted on VHF-FM Channel 16 by using the call sign “PATCOM”. The COTP or designated representative may be contacted by phone at 314-269-2332 or VHF-FM Channel 16.
All persons and vessels not registered with the event sponsor as sponsors or official patrol vessels are considered “spectators”. The “official patrol vessels” consist of any Coast Guard, State and local law enforcement, and sponsor provided vessels assigned or approved by the COTP to patrol the regulated area.
Spectator vessels desiring to enter, transit through or within, or exit the regulated area may do so only with permission from the COTP or a designated representative and, when permitted by the COTP or a designated representative, must operate at a minimum safe navigation speed in a manner which will not endanger event participants or other persons or vessels within the regulated area.
No spectator vessel shall anchor, block, loiter, or impede the through transit of event participant or 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.
The COTP or designated representative may forbid and control the movement of any and 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 area, a citation for failure to comply, or both.
The COTP or designated representative may terminate the event or 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 the enforcement of the temporary special local regulation at the conclusion of the event.
The COTP or a designated representative will inform the public of the enforcement times and the establishment of a PATCOM for this regulated area through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Safety Marine Information Bulletins (SMIBs), as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).This regulatory action determination is based on the size, location, and duration for the temporary special local regulation. The regulated area will be enforced on a one-mile stretch of the Upper Mississippi River for a period of up to seven hours on one day. Vessel traffic may request to transit the regulated area by contacting the COTP or a designated representative. Moreover, the COTP or a
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 regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary special local regulation that will restrict access on a one-mile stretch of the Upper Mississippi River for seven hours on one day. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. Because this rulemaking is to establish a temporary special local regulation for a permitted marine event that is not located in, proximate to, or above an area designated environmentally sensitive by an environmental agency of the Federal, State, or local government a Record of Environmental Consideration (REC) is not required. Should any detail of this rule change to such an extent that will require a REC, a REC will be available in the docket indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Maritime 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 event sponsor as sponsors or official patrol vessels are considered “spectators”. The “official patrol vessels” consist of any Coast Guard, State and local law enforcement, and sponsor provided vessels assigned or approved by the COTP to patrol the regulated area.
(3) Spectator vessels desiring to enter, transit through or within, or exit the regulated area may do so only with permission from the COTP or a designated representative and, when permitted by the COTP or a designated representative, must operate at a minimum safe navigation speed in a manner which will not endanger event participants or other persons or vessels within the regulated area.
(4) No spectator vessel shall anchor, block, loiter, or impede the through transit of event participant or 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.
(6) The COTP or designated representative may forbid and control the movement of any and 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 area, a citation for failure to comply, or both.
(7) The COTP or designated representative may terminate the event or 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 the enforcement of the temporary special local regulation at the conclusion of the event.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 210-foot radius of the fireworks launch site at 500 Erie Street, Conneaut, OH. This safety zone is needed to restrict vessels from a portion of Lake Erie during the Perch and Pilsner Festival fireworks display. This temporary safety zone is necessary to protect personnel, vessels, and the marine environment from the potential hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Buffalo.
This rule is effective from 8:15 p.m. until 9:00 p.m. on September 8, 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 LT Ryan Junod, Chief of Waterways Management, U.S. Coast Guard Marine Safety Unit Cleveland; telephone 216-937-0124, 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 find that those procedures are “impracticable, unnecessary, or contrary to 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 the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be contrary to the public interest by inhibiting the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display.
Under 5 U.S.C. 553 (d)(3), the Coast Guard finds that good cause exists for making this temporary 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 Buffalo, NY (COTP) has determined that potential hazards associated with vessels in the vicinity of firework displays on September 8, 2018 will be a safety concern for vessels and spectators within a 210 foot radius of the launch point of the fireworks. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display is happening.
This rule establishes a safety zone from 8:15 p.m. through 9:00 p.m. on September 8, 2018. The safety zone will cover all navigable waters within 210-foot of the fireworks launch site at position 41°58′01.64″ N, 080°33′38.22″ W, 500 Erie St, Conneaut, OH. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a
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 conclusion that this rule is not a significant regulatory action. We anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
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 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 a safety zone lasting one hour that will prohibit entry within 210-foot radius of the launch area for the fireworks display. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 280-foot radius of the launch site located at Erie Sand and Gravel, Presque Isle Bay, Erie, PA. This safety zone is intended to restrict vessels from portions of Presque Isle Bay during the Moonlight on the Bay fireworks display. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Buffalo.
This rule is effective from 9:30 p.m. until 11:00 p.m. on September 7, 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 LTJG Sean Dolan, Chief Waterways Management Division, U.S. Coast Guard; telephone 716-843-9322, 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 the event sponsor did not submit notice to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date would be contrary to the rule's objectives of enhancing safety of life on the navigable water and protection of persons and vessels in vicinity of the fireworks display.
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 Buffalo (COTP) has determined that a fireworks display presents significant risks to the public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display takes place.
This rule establishes a temporary safety zone on September 7, 2018, from 9:30 p.m. until 11:00 p.m. The safety zone will encompass all waters of Presque Isle Bay, Erie, PA contained within a 280-foot radius of: 42°08′55.3″ N, 80°04′58.1″ W.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
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 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 conclusion that this rule is not a significant regulatory action. We anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
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 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 establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 280-foot radius of the launch site located at Dobbins Landing, Erie, PA. This safety zone is intended to restrict vessels from portions of Presque Isle Bay during the Pennsylvania Municipal Authorities Annual Conference fireworks display. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Buffalo.
This rule is effective from 8:45 p.m. until 9:45 p.m. on September 11, 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 LTJG Sean Dolan, Chief Waterways Management Division, U.S. Coast Guard; telephone 716-843-9322, 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 it being impracticable and contrary to public interest. The final details of this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish a NPRM.
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 Buffalo (COTP) has determined that a fireworks display presents significant risks to the public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display takes place.
This rule establishes a safety zone on September 11, 2018, from 8:45 p.m. until 9:45 p.m. The safety zone will encompass all waters of Presque Isle Bay; Erie, PA contained within 280-foot radius of: 42°08′19.87″ N, 80°05′29.45″ W.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
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 conclusion that this rule is not a significant regulatory action. We anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
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 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 establishes a temporary safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving certain changes to the Wisconsin State Implementation Plan (SIP). This action relates to changes in Wisconsin's construction permit rules as well as the change in the definition for “emergency electric generators” in NR 400. This request for the revision of the SIP was submitted by the Wisconsin Department of Natural Resources (WDNR) on May 16, 2017.
This final rule is effective on October 9, 2018.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2017-0280. All documents in the docket are listed on the
Rachel Rineheart, Environmental Engineer, Air Permits Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7017,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: is used, we mean EPA. This supplementary information section is arranged as follows:
This final rulemaking addresses the May 16, 2017 WDNR submittal for a SIP revision, revising the rules in the Wisconsin SIP to align them with Federal requirements. WDNR's submittal includes changes to the term “electric generator,” replacing it with “restricted internal combustion engine” as well as other minor language and administrative changes. Specifically, NR 400.02(136m) replaces the existing definition of emergency “electric generator” with a definition of “restricted use internal combustion engine,” and NR 406.04(1)(w) amends the exemption language for “emergency electric generators,” replacing it with an exemption for “restricted use reciprocating internal combustion engines.” NR 406.08(1) and NR 406.10 involve minor changes to language, and NR 406.11(1) amends procedures for revoking construction permits. These changes serve the purpose of aligning Wisconsin's definitions with the Federal definitions.
WDNR is also requesting the removal of NR 406.16(2)(d) and NR 406.17(3)(e) from the SIP. These provisions address the eligibility of coverage under general and registration construction permits based on whether the project constituted a Type 2 action under the previous chapter NR 150. However, the current chapter NR 150 was amended and no longer defines or sets requirements for Type 2 actions. Removing these provisions from Wisconsin's SIP ensures consistency with the Wisconsin Environmental Protection Act (WEPA), and does not affect consistency with the Clean Air Act (CAA). It is also consistent with Section 110(l) of the CAA. Sources covered under registration and general permits are still subject to all emission caps and applicable requirements contained in those permits.
EPA published a direct final rule on November 7, 2017 (82 FR 51575), approving Wisconsin's requested revisions to the SIP, along with a proposed rule (82 FR 51594) that provided a 30-day public comment period. EPA received two comment letters during the public comment process. There were comments on the proposed approval from Sierra Club and the Center for Biological Diversity combined and one comment from an anonymous commenter. The letter from the anonymous commenter was dated December 2, 2017 and the letter from Sierra Club and the Center for Biological Diversity was dated December 7, 2017. Consequently, the direct final rule on this approval was withdrawn on December 21, 2017 (82 FR 60545). A summary of the comments received and EPA's response follows.
As mentioned in Subsection A, above, Wisconsin has included two categories of engines within its definition of Restricted Use Reciprocating Internal Combustion Engines (RICE):
(a) One that is operated no more than 200 hours per year and that meets the definition of emergency stationary RICE or black start engine in 40 CFR 63.6675.
(b) One that is operated in accordance with the definition of limited use RICE in 40 CFR 63.6675.
In order to evaluate whether the air quality will be maintained despite the change in definition, we have addressed the two categories of engines separately. The first category of engines within the definition of emergency stationary RICE or black start engines, as defined in 40 CFR 63.6675, operates no more than 200 hours per year (NR 400.02(136m)(a)). NR 406.04(1)(w) exempts restricted use reciprocating internal combustion engines fueled by gaseous fuels, gasoline or a clean fuel and which have a combined electrical output of less than 3000 kilowatts. This is consistent with the definition and exemption for emergency electric generators prior to the revision, which referred to an electric generator whose purpose is to provide electricity to a facility if normal electrical service is interrupted and which is operated no more than 200 hours per year. The prior exemption excluded “emergency electric generators powered by internal combustion engines which are fueled by gaseous fuels, gasoline or distillate fuel oil with an electrical output of less than 3000 kilowatts.” Since the size as well as the number of operating hours per year of engines used for emergency purposes remains the same before and after the revision, there will be no additional impact to air quality as a result of this revision.
The second category of engine within Wisconsin's definition of restricted use RICE are limited use engines as defined in 40 CFR 63.6675 that operate less than 100 hours per year (NR 400.02(136m)(b)). We reviewed information on how the State permitted limited use RICE prior to the proposed exemption. Limited use RICE, as opposed to restricted use RICE, was not a defined category and these engines were permitted as stationary RICE with permit restrictions. However, this provision in the Wisconsin code exempting limited use RICE from obtaining a permit will not result in an increase in emissions beyond what would result from construction or modification of these types of engines through an individual minor new source review (NSR) construction permit. Wisconsin has shown that this permit exemption is consistent with conditions that would have been part of a construction permit under the prior version of the state regulations.
For example, prior to the exemption, limited use RICE were included in permits with a permit limitation or an operational restriction. The permit may or may not have included a restriction in the number of hours. Under the proposed exemption, however, sources will need to operate for less than 100 hours per year in order to be eligible for this exemption, in accordance with 40 CFR 63.6675. Therefore, in some cases, this provision in the rule may be more protective of air quality than an individual permit. An increase in the hours of operation to over 100 hours per year will make the source ineligible for this exemption, as per the definition of limited use engines. Further, an increase to 100 hours per year or greater will make the source subject to the requirements under the Federal National Emission Standards for Hazardous Air Pollutants (NESHAP). An exemption from obtaining a permit does not relieve the source from having to comply with the NESHAP. Therefore, the NESHAP acts as a backstop to ensure emissions from these engines are controlled. As mentioned above, EPA may approve a SIP revision under section 110(l) if EPA finds it will at least preserve status quo air quality.
EPA response: In this action, EPA is referring to the Federal definition of RICE under 40 CFR 63.6675. The Federal regulations do not specifically define emergency generators. 40 CFR 63.6675 defines internal combustion engines that are used for emergency purposes. WDNR's revised definition conforms to the Federal definition of internal combustion engines used for emergency purposes.
EPA does not find the need to re-propose this action, since commenters had adequate notice of these Federal requirements. The Federal citation is clearly mentioned in Wisconsin's revised definition of RICE under NR 400.02(136m).
Further, this action is only aligning Wisconsin's definitions with the Federal definitions, thereby aligning permitting exemptions with certain NESHAP exemptions. The revision does not attempt to align the regulatory requirements or the pollutants addressed by these programs in a manner that is inconsistent with the CAA requirements for either program.
The Wisconsin Code NR 406.04(4) has provisions that exclude certain types of changes from constituting a modification. The purpose of these exclusions is to minimize the administrative and economic burdens on both the agency and low emitting sources without sacrificing environmental protection. NR 406.04(4)(e) excludes from the definition of modification sources that increase their hours of operation if: (1)
EPA is approving the requested revisions to WDNR's SIP. Specifically EPA is approving revisions to Wisconsin rules NR 400.02(136m), NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR 406.11(1). EPA is also approving the removal of NR 406.16(2)(d) and NR 406.17(3)(e) from the SIP.
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Wisconsin Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 6, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(113) * * *
(i) * * *
(D) NR 400.02(73m) and (131m), 406.02(1) and (2), 406.04(2m), NR 406.11(1)(g)(1), 406.11(3), 406.16, 406.17, 406.18, 407.02(3m), 407.105, 407.107, 407.14 Note, 407.14(4)(c), 407.15(8)(a) and 410.03(1)(a)(6) and (7) as created and published in the (Wisconsin) Register, August 2005, No. 596, effective September 1, 2005. Sections NR 406.16(2)(d) and NR 406.17(3)(e) were repealed in 2015 and are removed without replacement; see paragraph (c)(137) of this section.
(137) On May 16, 2017, the Wisconsin Department of Natural Resources submitted a request to revise Wisconsin's air permitting rules NR 400.02(136m), NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR 406.11(1). These revisions replace the existing definition of “emergency electric generator” with the Federal definition of “restricted internal combustion engine”, amends procedures for revoking construction permits and include minor language changes and other administrative updates. Wisconsin has also requested to remove from the SIP NR 406.16(2)(d) and NR 406.17(3)(e), provisions affecting eligibility of coverage under general and registration construction permits, previously approved in paragraph (c)(113) of this section. This action ensures consistency with Wisconsin Environmental Protection Act (WEPA) laws.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code, NR 400.02(136m) as published in the Wisconsin Administrative Register November 2015 No. 719, effective December 1, 2015.
(B) Wisconsin Administrative Code, NR 406.04(1)(w), NR 406.08(1), NR 406.10 and NR 406.11(1) as published in the Wisconsin Administrative Register November 2015 No. 719, effective December 1, 2015.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the Commonwealth of Virginia's state implementation plan (SIP). The revision is in response to EPA's February 3, 2017 Findings of Failure to Submit for various requirements relating to the 2008 8-hour ozone national ambient air quality standards (NAAQS). This SIP revision is specific to nonattainment new source review (NNSR) requirements. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on October 9, 2018.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0399. All documents in the docket are listed on the
David Talley, (215) 814-2117, or by email at
On April 4, 2018 (83 FR 14386), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA proposed approval of the SIP submitted in response to EPA's final 2008 8-hour ozone NAAQS Findings of Failure to Submit for NNSR requirements.
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm).
Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS based on the three most recent years of ambient air quality data available at the conclusion of the designation process. The Washington, DC Nonattainment Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data.
Based on initial nonattainment designations for the 2008 8-hour ozone standard, as well as the March 6, 2015 final SIP Requirements Rule, Virginia was required to develop a SIP revision addressing certain CAA requirements for the Washington, DC Nonattainment Area, and submit to EPA a NNSR Certification SIP or SIP revision no later than 36 months after the effective date of area designations for the 2008 8-hour ozone NAAQS (
This rulemaking action is specific to Virginia's NNSR requirements. NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area.
The minimum SIP requirements for NNSR permitting programs for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.165.
Virginia's SIP-approved NNSR program is implemented through Article 9, Permits for Major Stationary Sources and Major Modifications Locating in Nonattainment Areas or the Ozone Transport Region, in the Virginia Administrative Code (VAC), 9VAC5-80—
EPA notes that neither 9VAC5-80 nor Virginia's approved SIP have the regulatory provision for any emissions change of VOC in extreme nonattainment areas, specified in 40 CFR 51.165(a)(1)(v)(F), because Virginia has never had an area designated extreme nonattainment for any of the ozone NAAQS. Nonetheless, the Virginia SIP is not required to have this requirement for VOC in extreme nonattainment areas until such time as Virginia has an extreme ozone nonattainment area. In Virginia's May 11, 2017 SIP revision, VADEQ asserted that anti-backsliding provisions do not apply to any area within Virginia, including the northern Virginia/Metropolitan Washington, DC area, because Virginia submitted to EPA a final “redesignation substitute” request for the 1997 ozone NAAQS for the Washington, DC area on April 29, 2016. As noted, in its February 16, 2018 decision, the
Given the D.C. Circuit's vacatur of the redesignation substitute mechanism in
Thus, EPA finds that Virginia's SIP includes relevant and required anti-backsliding requirements. Virginia has not changed these major stationary source threshold and offset provisions in 9VAC5-80-2010 C, and furthermore, they remain in Virginia's federally-approved SIP unless and until EPA approves a full redesignation request in accordance with CAA section 107.
EPA has not amended the SIP provisions related to 9VAC5-80 since the August 28, 2017 rulemaking where EPA last approved Virginia's NNSR provisions as meeting CAA requirements for a NNSR program. The SIP-approved version of 9VAC5-80 covers Virginia's portion of the Washington, DC Nonattainment Area and remains adequate to meet all applicable NNSR requirements for the 2008 8-hour ozone NAAQS in 40 CFR 51.165, the Phase 2 Rule, and the SIP Requirements Rule.
EPA received a total of sixteen sets of comments on the April 4, 2018 NPR. Fifteen of those did not concern any of the specific issues raised in the NPR, nor did they address EPA's rationale for the proposed approval of VADEQ's submittal. Therefore, EPA is not responding to those comments. EPA did receive one set of relevant comments. Those comments and EPA's responses are discussed in this Section. All of the comments received are included in the docket for this rulemaking action.
With respect to the commenter's assertion that EPA must evaluate the SIP as a whole and in light of the February 18, 2018 approval action, in order to grant approval to Virginia's May 17, 2017 submittal, EPA disagrees. EPA clearly stated in the NPR, and reiterates in this action, this action is specific to the NNSR program requirements of 40 CFR 51.165, which are codified by Virginia under Article 9 of 9VAC5-80. EPA's February 18, 2018 approval action did not revise or address any of the NNSR requirements in 9VAC5-80 and is therefore irrelevant to this action. EPA is not obligated, when reviewing each SIP submission, to re-review all prior SIP submissions already acted on. Such an interpretation of the CAA would subject the Agency to never-ending review of the state's implementation plan.
The February 18, 2018 action approved revisions to 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. The amendment to 9VAC5-30-55 added text stating that the primary and secondary ambient air quality standard of 0.08 ppm shall no longer apply after April 6, 2015, consistent with EPA's revocation of the 1997 standard. The revisions to 9VAC5-151-20 and 9VAC5-160-30 were related to transportation conformity and general conformity, neither of which are germane to this action. Subdivision (A)(2) of 9VAC5-20-204 defines and classifies the nonattainment area for the 1997 ozone standard. EPA's February 18, 2018 final rulemaking action approved a revision to 9VAC5-20-204 which provided that subdivision (A)(2) would no longer be effective after April 6, 2015. This is appropriate given the revocation of the 1997 standard. It is important to note that subdivision (A)(2) was not removed. Pursuant to 9VAC5-80-2000(B), the NNSR requirements of Article 9 apply to “. . . nonattainment areas designated in 9VAC5-20-204 . . .” This is the mechanism through which Virginia's NNSR requirements are applied to the various nonattainment areas in the Commonwealth. While the nonattainment area status for the 1997 ozone NAAQS is no longer active or “effective” due to the fact that that standard has been revoked, the only “designation” and “classification” that applies to the Washington DC Nonattainment Area for purposes of the revoked 1997 ozone NAAQS, and specifically for purposes of establishing the NNSR preconstruction permitting requirements of Article 9, remain on the books at 9VAC5-20-204. Therefore, even if the February 18, 2018 action might require amendment in light of
EPA is approving Virginia's May 17, 2017 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Washington DC Nonattainment Area. EPA has concluded that the State's submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under EPA's February 3, 2017 Findings of Failure to Submit.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its NSR program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 6, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Virginia's NNSR program and the 2008 ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving State Implementation Plan (SIP) revisions submitted by the State of New Hampshire. The revisions incorporate a single source order into the New Hampshire SIP, remove a previously-approved order from the SIP, and approve various definitions used within New Hampshire's air pollution control regulations. This action is being taken in accordance with the Clean Air Act.
This rule is effective on October 9, 2018.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2017-0442. All documents in the docket are listed on the
Bob McConnell, Environmental Engineer, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1046;
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On July 6, 2018 (83 FR 31513), EPA published a Notice of Proposed Rulemaking (NPRM) for the State of New Hampshire. The NPRM proposed approval of revisions to New Hampshire's SIP consisting of an order establishing reasonably available control technology (RACT) requirements for the Diacom Corporation, removal from the SIP of a previously-approved RACT order for the Kalwall Corporation, and a request to revise a few definitions used within the State's air pollution control regulations. Other specific requirements of New Hampshire's RACT orders and revised definitions and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.
We received a number of anonymous comments that address subjects outside the scope of our proposed action, do not explain (or provide a legal basis for) how the proposed action should differ in any way, and make no specific mention of the substantive aspects of the proposed action. Consequently, these comments are not germane to this rulemaking and require no further response.
EPA is approving an order establishing RACT for the Diacom Corporation, removal from the SIP of a previously-approved RACT order for the Kalwall Corporation, and a revision to eleven definitions used within the State's air pollution control regulations as revisions to the New Hampshire 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 revisions located within New Hampshire's Env-A, Rules Governing the Control of Air
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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);
• This action is not an Executive Order 13771 regulatory action because this action is not significant 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 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 6, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxide, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(d) * * *
Nuclear Regulatory Commission.
Draft regulatory issue summary; withdrawal.
The U.S. Nuclear Regulatory Commission (NRC) is withdrawing the draft regulatory issue summary (RIS), RIS 2017-XX, “Identifying and Reporting Human Factor Incidents.” This document is being withdrawn because after further consideration, the NRC determined that the RIS did not provide the clarification intended regarding licensees' required reporting of human performance incidents.
The withdrawal of draft RIS 2017-XX, “Identifying and Reporting Human Factor Incidents” is effective as of September 7, 2018.
Please refer to Docket ID NRC-2017-0181 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Carmen Franklin, Office of Nuclear Regulatory Research, telephone: 301-415-2386, email:
The NRC is withdrawing draft RIS 2017-XX, “Identifying and Reporting Human Factor Incidents” because after further consideration, the NRC determined that the RIS did not provide the clarification intended regarding licensees' required reporting of human performance incidents “Licensee event report system” under § 50.73 of title 10 of the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan engines with certain low-pressure turbine (LPT) 1st- and 3rd-stage disks installed. This proposed AD was prompted by a report of manufacturing defects found on delivered LPT 1st- and 3rd-stage disks. This proposed AD would require removing the LPT 1st- or 3rd-stage disk from service and replacing with a part eligible for installation. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by October 22, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington MA, 01803; phone: 781-238-7088; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report that multiple LPT 1st- and 3rd-stage disks were delivered before the ingot lot was rejected due to material inclusion. The suspect LPT 1st- and 3rd-stage disks may include defects that may have not been discovered during inspections. This condition, if not addressed, could result in uncontained LPT 1st- or 3rd-stage disk release, damage to the engine, and damage to the airplane.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require removing from service and replacing the LPT 1st- or 3rd-stage disk with a part eligible for installation.
We estimate that this proposed AD affects 0 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by October 22, 2018.
None.
This AD applies to International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan engines with a low-pressure turbine (LPT) 3rd-stage disk with a serial number (S/N) listed in Figure 1 to paragraph (g) of this AD or an LPT 1st-stage disk with an S/N listed in Figure 2 to paragraph (g) of this AD, installed.
Joint Aircraft System Component (JASC) Code 7250, Turbine Section.
This AD was prompted by a report of manufacturing defects found on delivered
Comply with this AD within the compliance times specified, unless already done.
Remove from service the LPT 1st- or 3rd-stage disk within 30 days after the effective date of this AD, or as identified in paragraphs (g)(1) or (2) of this AD, whichever occurs later, and replace with a part eligible for installation:
(1) Remove the LPT 3rd-stage disk with an S/N listed in Figure 1 to paragraph (g) of this AD at the next shop visit, not to exceed 4,800 cycles since new.
(2) Remove the LPT 1st-stage disk with an S/N listed in Figure 2 to paragraph (g) of this AD at next shop visit, not to exceed 2,240 cycles since new.
For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation of the engine without subsequent engine maintenance does not constitute an engine shop 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,
(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 Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. This proposed AD was prompted by reports that debris from the parking brake shut off valve (PBSOV) could create a partial blockage of the restrictor check valve in the hydraulic return line of the PBSOV. This proposed AD would require replacing the restrictor check valve with an improved valve that has a filter screen. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by October 22, 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 NPRM, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0077 dated April 6, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The MCAI states:
Service experience with Fokker 70 and Fokker 100 aeroplanes has shown that debris from the parking brake shut-off valve (PBSOV) can eventually block the restrictor check valve in the hydraulic return line of the PBSOV. Prompted by these findings, Fokker Services issued [Service Bulletin F100/70] SBF100-32-159 to introduce a new PBSOV and a one-time inspection for debris in the affected part of the hydraulic return system. EASA issued AD 2009-0220 [which corresponds to AD 2010-22-05 (75 FR 66649, October 29, 2010) (“AD 2010-22-05”)] to require those actions. In addition, Fokker Services issued SBF100-32-163 to introduce the option to install a restrictor check valve with a filter screen in the return line of the PBSOV. A recent review of in-service experience and the SBF100-32-159 inspection results revealed new occurrences of debris that obstructed (but did not completely block) the restrictor check valve.
This condition, if not corrected, might prevent complete main landing gear extension, possibly resulting in damage to the aeroplane during landing, and consequent injury to occupants.
To address this potential unsafe condition, Fokker Services issued Revision 1 of SBF100-32-163, providing instructions to replace the restrictor check valve with the improved valve incorporating a filter screen.
For the reason described above, this [EASA] AD requires the replacement of the restrictor check valve in the return line of the PBSOV with the improved valve.
You may examine the MCAI in the AD docket on the internet at
This NPRM does not propose to supersede AD 2010-22-05. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This proposed AD would require replacing the restrictor check valve with an improved valve that has a filter screen. Accomplishment of the proposed
Fokker Services B.V. has issued Fokker Service Bulletin F100/70 SBF100-32-163, Revision 1, dated February 21, 2018. This service information describes procedures for removing the restrictor check valve in the hydraulic return line of the PBSOV and installing an improved restrictor check valve that has a filter screen. 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 the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 4 airplanes of U.S. registry. We estimate the following costs to comply with this proposed 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 proposed 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by October 22, 2018.
This AD affects AD 2010-22-05, Amendment 39-16484 (75 FR 66649, October 29, 2010) (“AD 2010-22-05”).
This AD applies to Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by service experience showing that debris from the parking brake shut off valve (PBSOV) could create a partial blockage of the restrictor check valve in the hydraulic return line of the PBSOV. We are issuing this AD to address this condition, which, if not corrected, may prevent complete main landing gear extension, possibly resulting in damage to the airplane during landing, and consequent injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
For the purposes of this AD, the definitions in paragraphs (g)(1) through (g)(3) apply.
(1) An affected part is any hydraulic restrictor check valve having part number(P/N) D71293-003, P/N D71295-401, or P/N D71296-401.
(2) Group 1 airplanes are those that have an affected part installed.
(3) Group 2 airplanes are those that do not have an affected part installed.
For Group 1 airplanes, within 24 months after the effective date of this AD, modify the airplane by replacing each affected part with a restrictor check valve that has a filter screen, P/N CKLX0517200B or P/N CKLX0520100B, as applicable, in accordance with the accomplishment instructions of Fokker Service Bulletin F100/70 SBF100-32-163, Revision 1, dated February 21, 2018.
Do not install an affected part on any airplane, as required by paragraph (i)(1) or (i)(2) of this AD, as applicable.
(1) For Group 1 airplanes: After modification of the airplane as required by paragraph (h) of this AD.
(2) For Group 2 airplanes: From the effective date of this AD.
Accomplishing the actions required by paragraph (h) of this AD terminates all requirements of AD 2010-22-05.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2018-0077, dated April 6, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, and EC135T3 helicopters. This proposed AD would require replacing the retaining ring and inspecting the hoist cable hook assembly (hook). This proposed AD is prompted by a report that a hook detached from the hoist cable. The actions of this proposed AD are intended to prevent an unsafe condition on these products.
We must receive comments on this proposed AD by November 6, 2018.
You may send comments by any of the following methods:
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•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2017-0199, dated October 11, 2017, to correct an unsafe condition for Airbus Helicopters Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, EC135T3, EC635P2+, EC635P3, EC635T1, EC635T2+, and EC635T3 helicopters. EASA advises of a report of a hook separating from the hoist cable. According to EASA, an investigation determined that failure of the internal retaining ring combined with a permanent compression set of the elastomeric energy absorber caused the separation. EASA states that this condition, if not corrected, could lead to the detachment of an external load or person from the hoist, possibly resulting in personal injury or injury to persons on the ground.
The EASA AD consequently requires repetitive inspections of the hook assembly and replacement of the retaining ring. Depending on the findings of the inspection, the EASA AD also requires replacement of the elastomeric energy absorber. According to the manufacturer of the hook, the retaining ring can corrode in a salt-laden environment. Therefore, replacement of the retaining ring is required with each inspection. EASA considers its AD an interim measure and states that further AD action may follow.
These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.
We reviewed Goodrich Service Bulletin No. 44301-10-17, Revision 4, dated July 26, 2017. The Goodrich Service Bulletin is attached as an appendix to Airbus Helicopters Alert Service Bulletin No. ASB EC135-85A-069, Revision 0, dated August 2, 2017. This service information specifies an initial and repetitive inspections of the hook assembly and replacement of the retaining ring. If the inspections of elastomeric energy absorber detect a permanent compression set, this service information also specifies replacing the elastomeric energy absorber.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This proposed AD would require, within 90 hours time-in-service (TIS) and thereafter at intervals not to exceed 180 hours TIS, replacing the retaining ring and inspecting the elastometric energy absorber for a permanent compression set, and if necessary, replacing the elastometric energy absorber before the next hoist operation.
The EASA AD requires corrective actions in terms of months in service. This proposed AD would require compliance within 90 hours TIS and thereafter at intervals not to exceed 180 hours TIS. The EASA AD applies to Airbus Helicopters Model EC635P2+, EC635P3, EC635T1, EC635T2+, and EC635T3 helicopters. This proposed AD would not because these model helicopters have no FAA type certificate.
We consider this proposed AD to be an interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.
We estimate that this proposed AD would affect 278 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:
• Inspecting the hoist cable hook assembly and replacing the retaining ring would require 0.5 work-hour and parts would be minimal for a cost of $43 per helicopter and $11,954 for the U.S. fleet per inspection cycle.
• Replacing an elastomeric energy absorber would require 0.5 work-hour and parts would cost $2,152 for a cost of $2,195 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Airbus Helicopters Deutschland GmbH Model EC135P1, EC135P2, EC135P2+, EC135P3, EC135T1, EC135T2, EC135T2+, and EC135T3 helicopters, certificated in any category, with an external mounted hoist (hoist) part number (P/N) and hook assembly (hook)P/N shown in Table 1 to paragraph (a) of this AD:
This AD defines the unsafe condition as detachment of a hook from a hoist cable resulting in in-flight failure of the hoist, which could result in injury to persons being lifted.
We must receive comments by November 6, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 90 hours time-in-service (TIS) and thereafter at intervals not to exceed 180 hours TIS:
(1) Inspect the hook and determine whether the elastometric energy absorber has taken a permanent compression set by following the Accomplishment Instructions, paragraphs 2.A and 2.B, of Goodrich Service Bulletin No. 44301-10-17, Revision 4, dated July 26, 2017 (SB 44301-10-17). If the elastometric energy absorber has taken a permanent compression set, replace the elastometric energy absorber before the next hoist operation.
(2) Replace the retaining ring by following the Accomplishment Instructions, paragraphs 2.D through 2.K, of SB 44301-10-17.
Special flight permits may be permitted provided the hoist is not used.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0199, dated October 11, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 2500, Cabin Equipment/Furnishings.
Occupational Safety and Health Review Commission.
Advance notice of proposed rulemaking.
This document solicits recommendations for amendments to the Commission's rules of procedure.
Submit comments on or before October 9, 2018.
You may submit comments by any of the following methods:
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•
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Ron Bailey, via telephone at 202-606-5410, or via email at
In accordance with 29 U.S.C. 661(g), the Occupational Safety and Health Review Commission last implemented a comprehensive revision of its rules of procedure in 2005. Since that time, technological advances, including implementation of the E-filing system, as well as the evolution of practice before the Commission, have called for a careful reexamination of the Commission's rules of procedure, as set forth in 29 CFR part 2200. To assist in determining what revisions should be made, the agency is soliciting recommendations from the public. It is especially interested in hearing from those who practice before it on what rules their experience suggests would benefit from a revision. While recommended changes to any rule will be considered, the Commission is especially interested in whether: Rules on the computation of time should be simplified; electronic filing and service should be mandatory and, if so, what exceptions, if any, should be allowed; the definition of “affected employee” should be broadened; citing to Commission decisions as posted on the agency's website should be allowed; the rule on the staying of a final order is not needed and should be eliminated; the requirement for agency approval of settlements should be narrowed or eliminated; the grounds for obtaining Commission review of interlocutory orders issued by its administrative law judges should be revised; protection of sensitive personal information should be broadened; and whether the threshold amount for cases referred for mandatory settlement proceedings should be increased. Comments suggesting a rule change should include a brief discussion of the reasons for the change, why the change would facilitate improved practice before the Commission, and a reference to authority where necessary.
Federal Maritime Commission.
Notice of proposed rulemaking.
The Federal Maritime Commission (FMC or Commission) is seeking public comment on its interpretation of the scope of the Shipping Act prohibition against failing to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property. Specifically, the Commission is clarifying that the proper scope of that prohibition in the Shipping Act of 1984 and the conduct covered by it is guided by the Commission's interpretation and precedent articulated in several earlier Commission cases, which require that a regulated entity engage in a practice or regulation on a
Submit comments on or before: October 10, 2018.
You may submit comments, identified by the Docket No. 18-06 by the following methods:
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Rachel E. Dickon, Secretary; Phone: (202) 523-5725; Email:
The Federal Maritime Commission is issuing this notice to obtain public comments on clarification and guidance regarding the Commission's interpretation of the scope of 46 U.S.C. 41102(c) (section 10(d)(1) of the Shipping Act of 1984).
Beginning with the
Specifically, the Commission is considering an interpretive rule consistent with Commission precedent articulated in cases including
This interpretation restores § 41102(c) to its proper function and purpose under the Shipping Act of 1984 and will return the Commission's focus and priorities to the activities of maritime regulated entities that negatively affect the broader shipping public—all as intended by Congress in its enactment of the 1916 Act and the 1984 Act. Recognizing that this interpretation would prune and pare back the types of recent claims that have been be filed with the Commission to those related to the purposes of the Shipping Act's § 41102(c), traditional legal venues will continue to be available to parties injured by discrete instances of unreasonable or unjust conduct consistent with long established maritime actions and other statutes specifically enacted by Congress, and long recognized common law remedies, all designed to address such circumstances.
We are seeking comment on this refocus of § 41102(c), how such an interpretation would affect regulated entities including ocean carriers, marine terminal operators (MTOs), and ocean transportation intermediaries (OTIs), as well as members of the shipping public, including cargo shippers and drayage truckers, and whether claims that would no longer fall under § 41102(c) under the contemplated interpretation would be adequately resolved before the Commission under other sections of the Act or in other legal dispute venues. The interpretation would take the form of an interpretive rule codified in 46 CFR part 545. The language of the proposed rule is set forth below.
Congress first used the statutory language addressing the legal duty of transportation common carriers to “establish, observe, and enforce just and reasonable . . . regulations and practices . . . affecting [cargo] classification, rates, or tariffs . . . [and] the manner and method of presenting, marking, packing, and delivering property for transportation . . .” in the 1910 Mann-Elkins Act amendment (Mann-Elkins)
The provenance of the statutory language and its inclusion six years later in the Shipping Act of 1916 (1916 Act)
As the enactment of the 1916 Act demonstrates, together with the use of identical language in other federal statutes,
Section 41102(c) of the 1984 Act originates from section 17 of the 1916 Act. Section 17 was commonly divided into two parts and referred to as “section 17, first paragraph” and “section 17, second paragraph.” The first paragraph addressed unjustly discriminatory rates charged to shippers while the second paragraph addressed just and reasonable practices by carriers and other persons subject to the Act. The second paragraph of section 17 reads as follows:
Every such carrier and every other person subject to this act shall establish, observe, and enforce just and reasonable regulations and practices relating to or connected with the receiving, handling, storing, or delivering of property. Whenever the Board finds any such regulation or practice is unjust or unreasonable it may determine, prescribe, and order enforced a just and reasonable regulation or practice.
As a part of the general transportation deregulatory reform trends in the 1970's through 1990's,
Having a long legislative provenance, Congress used the word “practice” and the full phrase, “establish, observe, and enforce just and reasonable regulations and practices,” in both the original 1916 Act and in section 10(d)(1) of the 1984 Act, now § 41102(c), in a particular way and in a context that was clear to the drafters, to the Commission, and to the reviewing courts.
In
The word “practice”, considered generally and without regard to context, is not capable of useful construction. If broadly used, it would cover everything carriers are accustomed to do. Its meaning varies so widely and depends so much upon the connection in which it is used that Congress will be deemed to have intended to confine its application to acts or things belonging to the same general class as those meant by the words associated with it.
The Interstate Commerce Commission (ICC), the United States Shipping Board (USSB) (the agency created by Congress in the 1916 Act), its successor agencies, and the currently constituted Commission,
The USSBB, a predecessor to the Commission, considered the term “practice” as used in the 1916 Act in
The provisions of the Shipping Act, 1916, also apply to these respondents. It is there provided . . . that carriers shall establish, observe, and enforce just and reasonable rates, charges, (cargo) classifications, and tariffs and just and reasonable regulations and practices related thereto . . .The terms “rates”, “charges”, “tariffs”, and “practices” as used in transportation have received judicial interpretation . . . Owing to its wide and variable connotation, a practice, which unless restricted
Prior to the 1984 Act, Commission decisions analyzing situations that involved discrete conduct focused on the meaning of the word “practice” and determined that conduct that did not reflect a practice was outside the scope of the first sentence of the second paragraph of section 17. In
In
Similarly, in
In
These cases addressing Section 10(d)(1) violations correctly hold that a complainant must demonstrate
In the 2013
The Commission looked to a single rule of construction, the surplusage cannon, to support its course change from prior Commission and court rulings. That rule provides that, “If possible, every word and every provision is to be given effect.”
First, in discussing the Principle of Interrelating Canons, they advise, “No canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions . . . It is a rare case in which each side does
The Commission has, in these recent cases, strained to give independent application of the elements, “establish, observe,
It is this line of recent cases determining that a discrete failure to observe and enforce an established just and reasonable regulation or practice that the Commission seeks to reform in this rulemaking so as to return the scope of § 41102(c) to its proper role and purpose within the Shipping Act. In the future, the Commission intends to follow the reasoning in
The precedent in
(1) The
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(3) The
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(5) In
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(7) The
The Commission is aware that modifying the application of recent § 41102(c) cases may pare back complainants' ability in some factual circumstances to claim a Shipping Act violation and thus seek redress before the Commission when they are harmed by an act or omission of a regulated entity. However, § 41102(c) was not designed to be the universal
In
It is clear that COGSA was enacted to clarify the responsibilities as well as the rights and immunities of carriers and ships with respect to loss and damage claims. Consequently, the use of the Shipping Act of 1984 to circumvent COGSA provisions would constitute a wholly unwarranted frustration of Congressional intent. Furthermore, some of the logical conclusions of such a step would be absurd. For example, COGSA provides a one-year period for the filing of suit; after that period, a claim is time barred. To accept Deringer's premise, one would have to conclude that a one-year period exists during which a claimant may file suit, but two additional years exist in which to file with the FMC. Inasmuch as COGSA stipulates that the carrier and ship, in the absence of a suit, are discharged from liability after one year, such a conclusion is unacceptable.
As a further note on the discordant conflict between COGSA and the Commission's current usage of section 10(d)(1) of the Shipping Act, consider that COGSA provides for a limitation of liability scheme, including a cargo valuation cap of $500 per customary freight unit unless the shipper declares a higher cargo value. As the
This proffer of a conflict between section 10(d)(1) and COGSA is not speculation or a mere hypothetical. In the Commission's
As a last observation concerning the comity between COGSA and the Shipping Act, consider section 2 of the Shipping Act's Declaration of Policy where Congress stated:
The purposes of this Act are . . . (2) to provide an efficient and economic transportation system in the ocean commerce of the United States that is, insofar as possible,
Returning the Commission's interpretation to its proper statutory purpose and scope will not leave claimants without remedy. Claimants would have full and adequate remedies under numerous legal proscriptions including common law, state statutes, admiralty law, and other federal statutes. Such claims should be presented to proper courts of common pleas. The Commission notes that other provisions or regulations of the Shipping Act could also provide remedy.
The Commission believes that the interpretation and application of § 41102(c) should be properly aligned with the broader common carriage foundation and purposes of the Act. The interpretive rule is consistent with the purposes of the Shipping Act and focuses Commission activities on regulated entities who abuse the maritime shipping public by imposing unjust and unreasonable business methods, and who do so on a normal, customary, and continuous basis, and thereby negatively impact maritime transportation competition or inflict detrimental effect upon the commerce of the United States. This interpretation reflects the clear intent of Congress and reflects Commission precedent articulated in
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The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612) provides that whenever an agency is required to publish a notice of proposed rulemaking under the Administrative Procedure Act (APA) (5 U.S.C. 553), the agency must prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the impact of the proposed rule on small entities. 5 U.S.C. 603. An agency is not required to publish an IRFA, however, for the following types of rules, which are excluded from the APA's notice-and-comment requirement: Interpretative rules; general statements of policy; rules of agency organization, procedure, or practice; and rules for which the agency for good cause finds that notice and comment is impracticable, unnecessary, or contrary to public interest.
Although the Commission has elected to seek public comment on this proposed rule, the rule is an interpretative rule. Therefore, the APA does not require publication of a notice of proposed rulemaking in this instance, and the Commission is not required to prepare an IRFA.
The Commission's regulations categorically exclude certain rulemakings from any requirement to prepare an environmental assessment or an environmental impact statement because they do not increase or decrease air, water or noise pollution or the use of fossil fuels, recyclables, or energy. 46 CFR 504.4. The proposed rule describes the Commission's proposed interpretation of the scope of 46 U.S.C. 41102(c) and the elements necessary for a successful claim for reparations under that section. This rulemaking thus falls within the categorical exclusion for matters related solely to the issue of Commission jurisdiction and the exclusion for investigatory and adjudicatory proceedings to ascertain past violations of the Shipping Act.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in proposed rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. This proposed rule does not contain any collections of information as defined by 44. U.S.C. 3502(3) and 5 CFR 1320.3(c).
This rule meets the applicable standards in E.O. 12988 titled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.
The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at
Antitrust, Exports, Freight forwarders, Maritime carriers, Non-vessel-operating common carriers, Ocean transportation intermediaries, Licensing requirements, Financial responsibility requirements, Reporting and recordkeeping requirements.
For the reasons set forth above, the Federal Maritime Commission proposes to amend 46 CFR part 545 as follows:
5 U.S.C. 553; 46 U.S.C. 305, 40307, 40501-40503, 41101-41106, and 40901-40904; 46 CFR 515.23.
46 U.S.C. 41102(c) is interpreted to require the following elements in order to establish a successful claim for reparations:
(a) The respondent is an ocean common carrier, marine terminal operator, or ocean transportation intermediary;
(b) The claimed acts or omissions of the regulated entity are occurring on a normal, customary, and continuous basis;
(c) The practice or regulation relates to or is connected with receiving, handling, storing, or delivering property;
(d) The practice or regulation is unjust or unreasonable; and
(e) The practice or regulation is the proximate cause of the claimed loss.
By the Commission.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, we will publish them in the
Comments must be received on or before November 6, 2018 to be considered in the formulation of the final rule.
Written comments may be submitted through
Mr. Ricky L. Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. This is not a toll-free number.
This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.
VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by an Integrated Product Team of agency stakeholders.
The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections.
The Office of Federal Procurement Policy Act, as codified in 41 U.S.C.1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR.
When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at title 48 CFR, chapter 8, parts 801 to 873.
The VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authorities that are removed from the VAAR will be included in VA Acquisition Manual (VAAM) as internal agency guidance.
In the table in 801.106, we propose to amend the clause number 852.237-7 to 852.237-70 to conform to the FAR numbering system for agency regulations.
We propose to add 41 U.S.C. 1702 as an authority for part 815, which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency.
We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein.
In subpart 815.3, Source Selection, we propose to remove 815.303, Responsibilities, to the VAAM since it contains procedural guidance that is internal to the VA and will be updated and moved to the VA Acquisition Manual (VAAM).
We propose to remove 815.304, Evaluation factors and significant subfactors, and move it to the VAAM as it contains procedural guidance that is internal to the VA and will be updated and moved to the VAAM.
We propose to amend section 815.304-70, Evaluation factor commitments, by deleting paragraph (a)(4). This paragraph was removed because the VA Mentor-Protégé Program is no longer current. We propose to revise the section by removing paragraph (b) and moving it to the VAAM as it contains procedural information. We also propose to renumber the paragraphs of the section accordingly.
We propose to amend section 815.304-71, Solicitation provision and clause, to make a correction to add in the words “Small Business” that are
In subpart 815.3, Source Selection, we propose to add a new section, 815.370, Only one offer. This is a newly developed section for VA. The inclusion of this policy gives the contracting officer the ability to re-solicit for an action if they only receive one offer and if the solicitation gave offerors less than 30 days to submit a proposal. The following sections have been added to this section and provide additional guidance pertaining to this new policy: 815.370-1, Policy; 815.370-2, Promote competition; 815.370-3, Fair and reasonable price, 815.370-4, Exceptions and 815.370-5, Solicitation provision. These subsections under section 815.370 explain that it is VA policy, if only one offer is received in response to a competitive solicitation, to take action to promote competition and ensure that the price is fair and reasonable. It describes the necessary steps to meet these requirements. Section 815.370-4, Exceptions, cites the exceptions to the policy and 815.370-5, Solicitation provision, prescribes the inclusion of 852.215-72, Notice of Intent to Re-solicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items that will be solicited for fewer than 30 days, unless an exception at 815.370-4 applies.
We propose to remove subpart 815.4, Contract Pricing, as it contains procedural guidance that is internal to the VA and will therefore be moved to the VAAM.
We propose to remove subpart 815.6, Unsolicited Proposals, as it contains procedural guidance that is internal to the VA and will therefore be moved to the VAAM.
The authority citation for part 816 is revised to correct the citation for 41 U.S.C. 1121 by adding reference to paragraph (c)(3).
In subpart 816.5, we propose to add section 816.506-70, Requirements—supplement for mortuary services, prescribing clause 852.216-76, Requirements—Supplement for Mortuary Services, for all contracts for mortuary services.
We propose to amend the authority citation for part 837 to add reference to the Crime Control Act of 1990 and the Pro-Children Act of 2001 which provide the authority for new clauses that address protection of children under contracts providing child care services. We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein.
We also propose to revise the part 837 authorities to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. 38 U.S.C. 501 is a more general authority for the Secretary to utilize to prescribe all rules and regulations. The title 41 authority is more appropriate to cite when publishing the VAAR.
We propose to remove section 837.103, Contracting officer responsibility, and to address the subject of documenting personal versus non-personal services determinations in the VAAM.
We propose to remove the title and text at section 837.110, Solicitation provisions and contract clauses, since FAR 52.237-2 Protection of Government Buildings, Equipment and Vegetation and 852.228-71, Indemnification and Insurance, outline contractor liabilities and required insurance levels.
We propose to amend section 837.110-70, Services provided to eligible beneficiaries, to retitle it “VA solicitation provisions and contract clauses,” to remove the prescription for the clause, 852.271-70, Nondiscrimination in services provided to beneficiaries, and to add the prescriptions for the new clauses 852.237-74, Nondiscrimination in Service Delivery, and 852.237-75, Key Personnel.
In subpart 837.2, Advisory and Assistance Services, and section 837.203, Policy, we propose to remove the entire subpart since it duplicates coverage in FAR.
In subpart 837.4, Nonpersonal Health Care Services, section 837.403, Contract clause, we propose to amend the section to redesignate it as section 837.403-70, VA contract clauses; to renumber clause 852.237-7, Indemnification and Medical Liability Insurance, as 852.237-70 to conform to the FAR guidance for numbering of clauses; to insert in the clause a five day notice requirement for evidence of coverage and of any change in insurance providers during the term of the contract; and to add prescriptions for three new clauses that address protection of children under contracts providing child care services as required by FAR 37.103(d): 852.237-71, Nonsmoking Policy for Children Services; 852.237-72, Crime Control Act—Reporting of Child Abuse; and 852.237-73, Crime Control Act—Requirement for Background Checks.
We propose the following revisions to subpart 837.70, Mortuary Services, to remove internal and outdated guidance and to address only acquisition policy affecting mortuary services:
We propose to add section 837.7000, Scope, and to cite the statutory basis for the mortuary service benefits covered.
We propose to remove the existing section 837.7001, General, and add a new section 837.7001, Solicitation provisions and contract clauses, to prescribe one new provision, 852.237-76, Award to Single Offeror; and four new clauses specific to the coverage of mortuary services: 852.237-77, Area of Performance, which describes the contractor's responsibilities both within and outside of the contract designated area of performance and the basis for payment of any transportation fees for pick-up from or delivery points outside that area; 852.237-78, Performance and Delivery, which requires the contractor's response to requests for services within 36 hours and allows the Government to require that the remains be held for up to 72 hours from completion of services; 852.237-79, Subcontracting, which stipulates that the Contractor shall not subcontract any work under this contract without the contracting officer's written approval and states the clause does not apply to contracts of employment between the Contractor and its personnel; and 852.237-80, Health Department and Transport Permits, which requires to contractor to meet all State and local licensing requirements and obtain and furnish all necessary health department and shipping permits at no additional cost to the Government. We also propose to add a cross-reference to the availability of clauses prescribed in 816.506-70 and 849.504-70.
We propose to remove sections 837.7002, List of qualified funeral directors; 837.7003, Funeral authorization; 837.7004, Administrative necessity; and 837.7005, Unclaimed remains—all other cases, because this material is based on internal VA guidance that has been rescinded.
We propose to revise the authority citation for part 849 to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that
We also propose to revise the part 849 authorities to add 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency.
In part 849, we propose to add subpart 849.5, Contract Termination Clauses, section 849.504, Termination of fixed-price contracts for default, which contains no text but implements FAR 49.504, and section 849.504-70, Termination of mortuary services, to prescribe a new clause 852.249-70, Termination for Default—Supplement for Mortuary Services.
We propose to amend the authority citation for part 852 to add reference to the 20 U.S.C. 7181-7183 (Pro-children Act of 2001), and Public Law 101-647, (Crime Control Act of 1990) which provided the authority for new clauses that address protection of children under contracts providing child care services. We also propose to add as an authority 41 U.S.C. 1303, which is an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.
In subpart 852.2, we propose to amend 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors. This was revised to change it from a clause to a provision and language was added to comply with the statute that requires that any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years.
We propose to amend 852.215-71, Evaluation Factor Commitments. This was revised to add language to comply with the statute that requires that any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years.
We propose to add clause 852.215-72, Notice of Intent to Re-Solicit, which informs offerors that in the event that only one offer is received in response to a solicitation that allows offerors fewer than 30 days to submit their proposal, the Contracting Officer may cancel the solicitation and re-solicit for an additional period of at least 30 days in accordance with 815.370-2.
We propose to add clause 852.216-76, Requirements—Supplement for Mortuary Services, for all requirements contracts for mortuary services.
We are providing the final publication and effective dates of March 2018 for the following clauses published in final under rule AP82: 852.216-71, 852.216-72, 852.216-73, 852.216-74, 852.216-75, 852.228-71, and 852.228-73.
We propose to remove the title and text of clause 852.237-70, Contractor Responsibilities, which is determined to be unnecessary since FAR clause 52.237-2, Protection of Government Buildings, Equipment and Vegetation, and VAAR clause 852.228-71, Indemnification and Insurance, both outline contractor liabilities and required insurance levels.
We propose to revise clause 852.237-7, Indemnification and Medical Liability Insurance, to renumber it 852.237-70, and to make minor revisions to require the contracting officer to insert the dollar amount values of standard coverages prevailing within the local community as to the specific medical specialty, or specialties, concerned, or such higher amount as the contracting officer deems necessary to protect the Government's interests; and to insert a requirement for the contractor to notify the contracting officer within 5 days of becoming aware of a change in insurance providers during the performance period of the contract for all health-care providers performing under it; and to furnish to the contracting officer evidence of insurance at least five days before commencement of work.
We propose to add the following clauses to address protection of children under contracts providing child care services as required by 20 U.S.C. 7181-7183 (Pro-Children Act of 2001), and Public Law 101-647, (Crime Control Act of 1990): 852.237-71, Nonsmoking Policy for Children's Services, prohibiting smoking in facilities where certain federally funded children's services are provided; 852.237-72, Crime Control Act—Reporting of Child Abuse, which imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity, as defined in the Act, on Federal land or in a federally-operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse; and 852.237-73, Crime Control Act—Requirement for Background Checks, which requires the contractor's compliance with the Act requiring that all individuals involved with the provision of child care services, as defined in the act, to children under the age of 18 undergo a criminal background check.
We propose to add new clause 852.237-75, Key Personnel, requiring the written consent of the Contracting Officer to changes in key personnel, and new clauses specific to the coverage of mortuary services: 852.237-76, Award to Single Offeror, to stipulate that awards will be made to a single offeror rather than to multiple offerors; 852.237-77, Area of Performance, to clarify Contractor's responsibilities for its designated area of service; 852.237-78, Performance and Delivery, to specify the required time frame for completion of services and the Government's right to require a hold on services; 852.237-79, Subcontracting, to require the Contracting Officer's written approval to subcontract any work; and 852.237-80, Health Department and Transport Permits, to stipulate the contractor's responsibility to obtain all transport permits required under the contract at no additional cost to the Government.
We propose to add the clause 852.249-70, Termination for Default—Supplement for Mortuary Services, for use in contracts for mortuary services. This clause expressly identifies actions, such as soliciting families of decedents to provide additional services, subcontracting services without Government consent, or refusing to perform services for any particular remains.
We propose to redesignate and retitle clause 852.271-70, Non-discrimination in Services Provided to Beneficiaries, as 852.237-74, Non-discrimination in Service Delivery, and prescribed the clause at under VAAR section 837.110-70(a) to conform to FAR structure. This clause states that it is the policy of the Department of Veterans Affairs that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of VA programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). This clause also stipulates that by acceptance of this contract, the contractor agrees to comply
In the authority citation for part 871, we propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein.
We also propose to revise the part 871 authorities to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. 38 U.S.C. 501 is a more general authority for the Secretary to utilize to prescribe all rules and regulations. The title 41 authority is more appropriate to cite when publishing the VAAR. In section 871.212, we propose to revise this section to redesignate the first paragraph as (a); to remove the prescription of clause 852.271-70, Nondiscrimination In Services Provided To Beneficiaries; to renumber the remaining paragraphs as (1) through (4); and to add new paragraph (b) to refer the contracting officer to section 837.110-70(a) for the prescription of the new clause 852.237-74, Non-discrimination In Service Delivery.
Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the VAAR for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts.
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines “significant regulatory action” to mean any regulatory action that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.” VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 12866. VA's impact analysis can be found as a supporting document at
This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). This proposed rule will impose one new and one amended information collection requirement. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action OMB for its review. Notice of OMB approval for the new information collection and the information collection amendment will be published in a future
Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), a current collection of information, OMB No. 2900-0590, contained in part 837 at proposed section 837.403-70 (currently numbered 837.403) and in part 852 at proposed section 852.237-70 (currently numbered 852.237-7), is being revised as set forth in the
Clause 852.237-70 is used in lieu of FAR clause 52.237-7, Indemnification and Medical Liability Insurance, in solicitations and contracts for the acquisition of non-personal health care services. It requires the apparent successful bidder/offeror, upon the request of the contracting officer, prior to contract award, to furnish evidence of insurability of the offeror and/or all health-care providers who will perform under the contract. In addition, the clause requires the contractor, prior to commencement of services under the contract, to provide Certificates of Insurance or insurance policies evidencing that the firm possesses the types and amounts of insurance
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), a new collection of information is proposed, under OMB No. 2900-AQ20, that is contained in Part 837 at proposed section 837.403-70 and Part 852 at proposed clause 852.237-73, as set forth in the
New VAAR clause 852.237-73, Crime Control Act—Requirement for Background Checks, is required in all solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child-(day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the statute.
This clause would enable the VA to be in compliance with the Crime Control Act of 1990 and to protect children that are within its health care systems.
Interested persons have 60 days in which to provide comment on the information collection. The Department considers comments by the public on proposed collections of information in—
• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing the burden of the collections 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,
Comments on the collection of information contained in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1068, Washington, DC 20420; fax to (202) 273-9026, email to
Individuals are not required to respond to a collection of information unless it displays a currently valid OMB control number.
OMB is required to make a decision concerning the proposed collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the
This proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule will generally be small business neutral. The overall impact of the proposed rule will be of benefit to small businesses owned by Veterans or Service-Disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA estimates no cost impact to individual business would result from these rule updates. On this basis, the adoption of this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of
Administrative practice and procedure.
Government procurement.
Government procurement, Reporting and recordkeeping requirements.
Government procurement, Loan programs—social programs, Loan programs—veterans, Reporting and recordkeeping requirements, Vocational rehabilitation.
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 20, 2018, for publication.
For the reasons set out in the preamble, VA proposes to amend 48 CFR parts 801, 815, 816, 837, 849, 852 and 871 as follows:
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702 and 48 CFR 1.301-1.304.
VA contracting officers shall—
(a) Include the provision at 852.215-70, Service-Disabled Veteran Owned Small Business (SDVOSB) and Veteran Owned Small Business (VOSB) Evaluation Factors, in negotiated solicitations giving preference to offers received from VOSBs and additional preference to offers received from SDVOSBs;
(b) Use past performance in meeting SDVOSB subcontracting goals as a non-price evaluation factor in making award determination; and
(c) Use the proposed inclusion of SDVOSBs or VOSBs as subcontractors as an evaluation factor when competitively negotiating the award of contracts or task or delivery orders.
(a) The contracting officer shall insert the provision at 852.215-70, Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) Evaluation Factors, in competitively negotiated solicitations that are not set aside for SDVOSBs or VOSBs.
(b) The contracting officer shall insert the clause at 852.215-71, Evaluation Factor Commitments, in solicitations and contracts that include VAAR provision 852.215-70, Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) Evaluation Factors.
It is VA policy, if only one offer is received in response to a competitive solicitation, to—
(a) Take action to promote competition (see 815.370-2); and
(b) Ensure that the price is fair and reasonable (see 815.370-3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4).
Except as provided in 815.370-4, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer should—
(a) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b) and 11.002); and
(b) Consider re-soliciting, allowing an additional period of at least 30 days for receipt of proposals.
(a) If there was “reasonable expectation that two or more offerors, competing independently, would submit priced offers” but only one offer is received, this circumstance does not constitute adequate price competition unless an official at a level above the contracting officer approves the determination that the price is reasonable (see FAR 15.403-1(c)(1)(ii)).
(b) Except as provided in 815.370-4(a), if only one offer is received when competitive procedures were used and the solicitation allowed at least 30 days for receipt of proposals (unless the 30-day requirement is not applicable in accordance with 815.370-4(a)(3), the contracting officer shall—
(1) Determine through cost or price analysis that the offered price is fair and reasonable and that adequate price competition exists (with approval of the determination at a level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies (see FAR 15.403-1(c) and 15.403-4). In these circumstances, no further cost or pricing data is required; or
(2)(i) Obtain from the offeror cost or pricing data necessary to determine a fair and reasonable price and comply with the requirement for certified cost or pricing data at FAR 15.403-4. For acquisitions that exceed the cost or pricing data threshold, if no exception
(ii) Enter into negotiations with the offeror as necessary to establish a fair and reasonable price. The negotiated price should not exceed the offered price.
(a) The requirements at 815.370-2 do not apply to—
(1) Acquisitions at or below the simplified acquisition threshold;
(2) Acquisitions in support of emergency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack;
(3) Small business set-asides under FAR subpart 19.5, set asides offered and accepted into the 8(a) Program under FAR subpart 19.8, or set-asides under the HUBZone Program (see FAR 19.1305(c)), the VA Small Business Program (see VAAR 819), or the Women-Owned Small Business Program (see FAR 19.1505(d));
(4) Acquisitions of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement; or
(5) Acquisitions of architect-engineer services (see FAR 36.601-2).
(b) The applicability of an exception in paragraph (a) of this section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable.
Use the provision at 852.215-72, Notice of intent to re-solicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items that will be solicited for fewer than 30 days, unless an exception at 815.370-4 applies.
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
Insert the clause 852.216-76, Requirements—Supplement for Mortuary Services, in contracts for mortuary services containing FAR clause 52.216-21, Requirements. The contracting officer shall insert activities authorized to place orders in paragraph (e) of the clause.
Public Law 101-647; 20 U.S.C. 7181-7183; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
(a) Contracting officers shall include the clause at 852.237-74, Nondiscrimination in Service Delivery, in all solicitations and contracts covering services provided to eligible beneficiaries.
(b) The contracting officer shall insert the clause at 852.237-75, Key Personnel, in solicitations and contracts when the contracting officer will require the contractor to designate contractor key personnel.
(a) The contracting officer shall insert the clause at 852.237-70, Indemnification and Medical Liability Insurance, in lieu of FAR clause 52.237-7, in solicitations and contracts for nonpersonal health-care services, including contracts awarded under the authority of 38 U.S.C. 7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may include the clause in bilateral purchase orders for nonpersonal health-care services awarded under the procedures in FAR part 13 and part 813.
(b) The contracting officer shall insert the clause at 852.237-71, Nonsmoking Policy for Children's Services, in solicitations, contracts, and orders that involve health or daycare services that are provided to children under the age of 18 on a routine or regular basis pursuant to the Nonsmoking Policy for Children's Services (20 U.S.C. 6081-6084).
(c) The contracting officer shall insert the clause at 852.237-72, Crime Control Act—Reporting of Child Abuse, in solicitations, contracts, and orders that require performance on Federal land or in a federally operated (or contracted) facility and involve the professions/activities performed by persons specified in the Crime Control Act of 1990 (42 U.S.C. 13031) including, but not limited to, teachers, social workers, physicians, nurses, dentists, health care practitioners, optometrists, psychologists, emergency medical technicians, alcohol or drug treatment personnel, child care workers and administrators, emergency medical technicians and ambulance drivers.
(d) The contracting officer shall insert the clause at 852.237-73, Crime Control Act—Requirement for Background Checks, in solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child- (day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the Crime Control Act of 1990 (42 U.S.C. 13041).
This subpart applies to mortuary (funeral and burial) services for beneficiaries of VA as provided in 38 U.S.C. 2302, 2303, and 2308 when it is determined that a contract would be the most efficient and effective method. Contract payment terms for use of the purchase card as a method of payment should also be considered.
(a) The contracting officer shall insert the basic or the alternate of the provision at 852.237-76, Award to Single Offeror, in solicitations and contracts for mortuary services as follows:
(1) Insert the provision in all sealed bid solicitations for mortuary services; and
(2) Insert the basic provision with its alternate I in all negotiated solicitations for mortuary services.
(b) The contracting officer shall insert in addition to FAR 52.216-21 Requirements, ALT VI, the following VA clauses in all mortuary service solicitations and contracts:
(1) 852.237-77, Area of Performance.
(2) 852.237-78, Performance and Delivery.
(3) 852.237-79, Subcontracting.
(4) 852.237-80, Health Department and Transport Permits.
(c) See also 816.506-70 and 849.504-70 for additional clauses for use in contracts for mortuary services.
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
Use the clause at 852.249-70, Termination for Default—Supplement for Mortuary Services, in all solicitations and contracts for mortuary services. This clause is to be used with FAR clause 52.249-8, Default (Fixed-Price Supply and Service).
Public Law 101-647; 20 U.S.C. 7181-7183; 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 1.301-1.304.
As prescribed in 815.304-71(a), insert the following provision:
(a) In an effort to achieve socioeconomic small business goals, VA shall evaluate offerors based on their service-disabled veteran-owned or veteran-owned small business status and their proposed use of eligible service-disabled veteran-owned small businesses and veteran-owned small businesses as subcontractors.
(b) Eligible service-disabled veteran-owned offerors will receive full credit, and offerors qualifying as veteran-owned small businesses will receive partial credit for the Service-Disabled Veteran-Owned and Veteran-owned Small Business Status evaluation factor. To receive credit, an offeror must be registered and verified in Vendor Information Pages (VIP) database.
(c) Non-veteran offerors proposing to use service-disabled veteran-owned small businesses or veteran-owned small businesses as subcontractors will receive some consideration under this evaluation factor. Offerors must state in their proposals the names of the SDVOSBs and VOSBs with whom they intend to subcontract and provide a brief description of the proposed subcontracts and the approximate dollar values of the proposed subcontracts. In addition, the proposed subcontractors must be registered and verified in the VIP database.
(d) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.
As prescribed in 815.304-71(b), insert the following clause:
(a) The offeror agrees, if awarded a contract, to use the service-disabled veteran-owned small businesses or veteran-owned small businesses proposed as subcontractors in accordance with 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors, or to substitute one or more service-disabled veteran-owned small businesses or veteran-owned small businesses for subcontract work of the same or similar value.
(b) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.
As prescribed at 815.370-5, use the following provision:
This solicitation provides offerors fewer than 30 days to submit proposals. In the event that only one offer is received in response to this solicitation, the Contracting Officer may cancel the solicitation and re-solicit for an additional period of at least 30 days in accordance with 815.370-2.
As prescribed in 816.506-70, insert the following clause:
(a) Except as provided in paragraphs (c) and (d) of this clause, the Government will order from the Contractor all of its requirements in the area of performance for the supplies and services listed in the schedule of this contract.
(b) Each order will be issued as a delivery order and will list—
(1) The supplies or services being ordered;
(2) The quantities to be furnished;
(3) Delivery or performance dates;
(4) Place of delivery or performance;
(5) Packing and shipping instructions;
(6) The address to send invoices; and
(7) The funds from which payment will be made.
(c) The Government may elect not to order supplies and services under this contract in instances where the body is removed from the area for medical, scientific, or other reason.
(d) In an epidemic or other emergency, the contracting activity may obtain services beyond the capacity of the Contractor's facilities from other sources.
(e) Contracting Officers of the following activities may order services and supplies under this contract—
As prescribed in 837.403-70(a), insert the following clause:
(a) It is expressly agreed and understood that this is a non-personal services contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under which the professional services rendered by the Contractor or its health-care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered including, by example, the Contractor's or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments. The Contractor and its health-care providers shall be liable for their liability-producing acts or omissions. The Contractor shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than the following amount(s) per specialty per occurrence: [
(b) An apparently successful offeror, upon request of the Contracting Officer, shall, prior to contract award, furnish evidence of the insurability of the offeror and/or of all health-care providers who will perform under this contract. The submission shall provide evidence of insurability concerning the medical liability insurance required by paragraph (a) of this clause or the provisions of State law as to self-insurance, or limitations on liability or insurance.
(c) The Contractor shall, prior to commencement of services under the contract, provide to the Contracting Officer Certificates of Insurance or insurance policies evidencing the required insurance coverage and an endorsement stating that any cancellation or material change adversely affecting the Government's interest shall not be effective until 30 days after the insurer or the Contractor gives written notice to the Contracting Officer. Certificates or policies shall be provided for the Contractor and/or each health-care provider who will perform under this contract.
(d) The Contractor shall notify the Contracting Officer within 5 days of becoming aware of a change in insurance providers during the performance period of this contract for all health-care providers performing under this contract. The notification shall provide evidence that the Contractor and/or health-care providers will meet all the requirements of this clause, including those concerning liability insurance and endorsements. These requirements may be met either under the new policy, or a combination of old and new policies, if applicable.
(e) The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts for health-care services under this contract. The Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the provisions set forth in paragraph (a) of this clause. At least 5 days before the commencement of work by any subcontractor, the Contractor shall furnish to the Contracting Officer evidence of such insurance.
As prescribed in 837.403-70(b), insert the following clause:
(a) Smoking in facilities where certain federally funded children's services are provided shall be prohibited. The Pro-Children Act of 2001 (20 U.S.C. 7181-7183) prohibits smoking within any indoor facility (or portion thereof), whether owned, leased, or contracted for, that is used for the routine or regular provision of health or day care services that are provided to children under the age of 18. The statutory prohibition also applies to indoor facilities that are constructed, operated, or maintained with Federal funds.
(b) By acceptance of this contract or order, the Contractor agrees to comply with the requirements of the Act. The Act also applies to all subcontracts awarded under this contract for the specified children's services. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. Failure to comply with the Act may result in the imposition of a civil monetary penalty in an amount not to exceed $1,000 for each violation and/or the imposition of an administrative compliance order on the responsible entity. Each day a violation continues constitutes a separate violation.
As prescribed in 837.403-70(c), insert the following clause:
(a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity, as defined in the Act, on Federal land or in a federally-operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse.
(b) The Contractor shall comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under this contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act.
As prescribed in 837.403-70(d), insert the following clause:
(a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), requires that all individuals involved with the provision of child care services, as defined in the Act, to children under the age of 18 undergo a criminal background check.
(b) The Contracting Officer will provide the necessary information to the Contractor regarding the process for obtaining the background check. The Contractor may hire a staff person provisionally prior to the completion of a background check, if at all times prior to the receipt of the background check during which children are in the care of the newly-hired person, the person is within the sight and under the supervision of a previously investigated staff person.
(c) The Contractor shall comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under the contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act.
As prescribed in 837.110-70(a), the Contracting Officer shall insert the following clause in solicitations and contracts:
It is the policy of the Department of Veterans Affairs that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of VA programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). By acceptance of this contract, the contractor agrees to comply with this policy in supporting the program and in performing the services called for under this contract. The contractor shall include this clause in all sub-contracts awarded under this contract for supporting or performing the specified program and services. Accordingly, the contractor shall ensure that each of its employees, and any sub-contractor staff, is made aware of, understands, and complies with this policy.
As prescribed in 837.110-70(b), insert the following clause:
The key personnel specified in this contract are considered to be essential to work performance. At least 30 days prior to the contractor voluntarily diverting any of the specified individuals to other programs or contracts the Contractor shall notify the Contracting Officer and shall submit a justification for the diversion or replacement and a request to replace the individual. The request must identify the proposed replacement and provide an explanation of how the replacement's skills, experience, and credentials meet or exceed the requirements of the contract. If the employee of the contractor is terminated for cause or separates from the contractor voluntarily with less than thirty days notice, the Contractor shall provide the maximum notice practicable under the circumstances. The Contractor shall not divert, replace, or announce any such change to key personnel without the written consent of the Contracting Officer. The contract will be modified to add or delete key personnel as necessary to reflect the agreement of the parties.
As prescribed in 837.7001(a)(1), insert the following provision:
(a) Award shall be made to a single offeror.
(b) Offerors shall include unit prices for each item. Failure to include unit prices for each item will be cause for rejection of the entire offer.
(c) The Government will evaluate offers on the basis of the estimated quantities shown.
(d) Award will be made to that responsive, responsible offeror whose total aggregate offer is the lowest price to the Government.
(d) Award will be made to that responsive, responsible offeror whose total aggregate offer is in the best interest of the Government.
As prescribed in 837.7001(b)(1), insert the following clause:
(a) The area of performance is as specified in the contract.
(b) The Contractor shall take possession of the remains at the place where they are located, transport them to the Contractor's place of preparation, and later transport them to a place designated by the Contracting Officer.
(c) The Contractor will not be reimbursed for transportation when both the place where the remains were located and the delivery point are within the area of performance.
(d) If remains are located outside the area of performance, the Contracting Officer may place an order with the Contractor under this contract or may obtain the services elsewhere. If the Contracting Officer requires the Contractor to transport the remains into the area of performance, the Contractor shall be paid the amount per mile in the schedule for the number of miles required to transport the remains by a reasonable route from the point where located to the boundary of the area of performance.
(e) The Contracting Officer may require the Contractor to deliver remains to any point within 100 miles of the area of performance. In this case, the Contractor shall be paid the amount per mile in the schedule for the number of miles required to transport the remains by a reasonable route from the boundary of the area of performance to the delivery point.
As prescribed in 837.7001(b)(2), insert the following clause:
(a) The Contractor shall furnish the material ordered and perform the services specified as promptly as possible, but not later than 36 hours after receiving notification to remove the remains, excluding the time necessary for the Government to inspect and check results of preparation.
(b) The Government may, at no additional charge, require the Contractor to hold the remains for an additional period not to exceed 72 hours from the time the remains are casketed and final inspection is completed.
As prescribed in 837.7001(b)(3), insert the following clause:
The Contractor shall not subcontract any work under this contract without the Contracting Officer's written approval. This clause does not apply to contracts of employment between the Contractor and its personnel.
As prescribed in 837.7001(b)(4), insert the following clause:
The Contractor shall meet all State and local licensing requirements and obtain and furnish all necessary health department and shipping permits at no additional cost to the Government. The Contractor shall ensure that all necessary health department permits are in order for disposition of the remains.
As prescribed in 849.504-70, insert the following clause:
The clause entitled “Default” in FAR 52.249-8, is supplemented as follows:
The Contracting Officer may terminate this contract for default by written notice without the ten-day notice required by paragraph (a)(2) of the Default clause if—
(a) The Contractor, through circumstances reasonably within its control or that of its employees, performs any act under or in connection with this contract, or fails in the performance of any service under this contract and the act or failures may reasonably be considered to reflect discredit upon the Department of Veteran Affairs in fulfilling its responsibility for proper care of remains;
(b) The Contractor, or its employees, solicits relatives or friends of the deceased to purchase supplies or services not under this contract. (The Contractor may furnish supplies or arrange for services not under this contract, only if representatives of the deceased voluntarily request, select, and pay for them.);
(c) The services or any part of the services are performed by anyone other than the Contractor or the Contractor's employees without the written authorization of the Contracting Officer;
(d) The Contractor refuses to perform the services required for any particular remains; or
(e) The Contractor mentions or otherwise uses this contract in its advertising in any way.
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
(a) Contracting officers shall use the following clauses, as appropriate, in solicitations and contracts for vocational rehabilitation and employment services as they pertain to training and rehabilitation services and contracts for counseling services:
(1) 852.271-72 Time Spent by Counselee in Counseling Process.
(2) 852.271-73 Use and Publication of Counseling Results.
(3) 852.271-74 Inspection.
(4) 852.271-75 Extension of Contract Period.
(b) See 837.110-70(a) for clause 852.237-74 Non-discrimination in Service Delivery.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, will publish them in the
Comments must be received on or before November 6, 2018 to be considered in the formulation of the final rule.
Written comments may be submitted through
Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. (This is not a toll-free number.)
This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.
VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders.
The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections.
The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR.
When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at title 48 CFR, chapter 8, parts 801 to 873.
VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authorities that are removed from the VAAR will be included in the VAAM as internal agency guidance. The VAAM is being created in parallel with these revisions to the VAAR and is not subject to the rulemaking process as they are internal VA procedures and guidance. Therefore, the VAAM will not be finalized until corresponding VAAR parts are finalized, and the VAAM is not yet available on line.
This proposed rule contains existing information collection requirements. The proposed rule results in multiple actions affecting these information collections, including outright removal of the information collection.
In 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend 801.106 table columns titled “48 CFR part or section where identified and described,” and “Current OMB control number.” We propose to remove the reference to 852.236-84, Schedule of Work Progress, and discontinue the associated corresponding OMB Control Number 2900-0422 as the information is adequately covered in agency specifications and its use in a clause is not required or appropriate. For access to agency specifications where such information is adequately covered, see the VA Technical Information Library (TIL), VA's source for Electronic Design and Construction Information, at
In 801.106, in reference to table described, we propose to remove the reference to 852.236-89, Buy American Act, and discontinue the associated corresponding OMB Control Number 2900-0622 as the clause is being removed as set forth in the preamble when describing actions under VAAR part 852 as it duplicates FAR clauses and is unnecessary.
In 801.106, in reference to the table described, we propose to remove the reference to 852.236-91, Special Notes, and discontinue the associated corresponding OMB Control Number 2900-0623. Paragraph (a) of the clause is already covered via required System for Award Management (SAM) representations and certifications. Paragraphs (b), (c) and (d) are addressed in Section 01 00 00, General Requirements, contained in all construction contract specifications (reference the VA Office of Construction and Facilities Management, Technical Information Library (TIL), VA Numbered Standards for Construction, PG-18-1, Master Construction Specifications, Division 01—General Requirements). Paragraph (e), which references claims by the contractor for delay attributed to unusually severe weather under FAR 52.249-14, Excusable Delays, is governed by the Network Analysis System specifications—Section 01 32 16.13, Network Analysis Schedules—Major Projects; 01 32 16.15, Project Schedules (Small Projects Design-Bid-Build); 01 32 16.16, (Network Analysis System (Design-Build Only); or 01 32 16.17, Project Schedule (Small Projects Design-Build), as applicable, which provide details of the requirements the contractor must follow to justify time extensions. VA internal procedures related to how contracting officers and Government Resident Engineers or technical reviewers should analyze contractor data and which records to review to support such claims for time extensions due to unusually severe weather, not having a significant effect beyond the internal operating procedures of the VA, would be moved to the VAAM.
We propose to revise the authority citations under part 825 to include a reference to 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency.
We propose to remove subpart 825.2, Buy American Act—Construction Materials, and the associated prescribed clauses under subpart 825.11, Solicitation Provisions and Contract Clauses, as it is duplicative of the FAR. Clause 852.236-89, Buy American Act, along with its Alternate I and II, is
We propose to revise the authority citations under part 836 to include a reference to 41 U.S.C. 1121(c)(3) and 1303(a)(2), which is from Title 41, Public Contracts, and speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. 41 U.S.C. 1303(a)(2) is added to reflect VA's authority as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.
We propose to revise the authority citations under part 836 to include a reference to 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency.
In 836.202, Specifications, we propose to remove paragraphs (a) and (b) as internal procedural guidance, and to redesignate and renumber it to 836.202-70 to indicate that it is a VA supplement to FAR 36.202. The title would be revised from “Specifications” to “Specifications—use of equal products” to reflect the topic that fits intelligibly under this section of the FAR. The existing paragraph (c) would be revised to reflect that use of clause 852.236-90, Restriction on Submission and Use of Equal Products, in solicitations and contracts requires approval of the justification documentation required by FAR 11.105, Items peculiar to one manufacturer. The paragraph reference to (c) under this section would be removed as the VAAR is being supplemented and only one paragraph will be reflected which would be unnumbered and unlettered. The existing VAAR language which is proposed for revision with this rule is necessary as the FAR speaks to “brand name or equal” and the purpose of the VA's clause is to be clear that when the VA enters products for items peculiar to one manufacturer (brand name), “or equal” products are not permissible substitutes.
In 836.203, Government estimate of construction costs, we propose to renumber and retitle the section to 836.203-70, Protection of the independent government estimate—sealed bid, and would revise it to more specifically clarify VA procedures to protect the independent government estimate in sealed bid acquisitions when bid openings are held. This would also provide policy regarding marking the Independent Government Estimate (IGE) as “For Official Use Only (FOUO)” as well as procedures for filing the document and later removing the protective marking after a public bid opening.
In 836.204, Disclosure of the magnitude of construction projects, we propose to revise the estimated price ranges to provide a better measure for contractors to gauge estimated construction costs for projects of the National Cemetery Administration and the Office of Construction and Facilities Management.
In 836.206, Liquidated damages, we propose to remove the entire section since the subject matter is adequately covered in the FAR.
In 836.209, Construction contracts with architect-engineer firms, we propose to remove the entire section as internal procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)), and which would be moved to the VAAM.
In 836.213, Special procedures for sealed bidding in construction contracting, we propose to remove the section title as the underlying subsections are proposed for removal.
We propose to remove 836.213-4, Notice of award, as internal procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)), and which would be moved to the VAAM.
We propose to remove 836.213-70, Notice to proceed, as procedural information internal to VA which would be moved to the VAAM.
We propose to revise 836.500, Scope of subpart, to remove paragraphs (b) and (c) which duplicate the authority to use other clauses and provisions as already provided for in FAR 36.500. We propose to redesignate paragraph (a) as an unnumbered paragraph in keeping with FAR Drafting Guidelines and formatting style.
We propose to revise 836.501, Performance of work by the contractor, to make minor edits and to add a reference to VAAR subpart 819.70, which implements the Veterans First Contracting Program.
In 836.513, Accident prevention, we propose to remove the entire section since the prescribed clause is duplicative of coverage in FAR clause 52.236-1, Accident Prevention.
We propose to revise 836.521, Specifications and drawings for construction, only to make minor edits for capitalization.
We propose to remove 836.570, Correspondence, as the clause it prescribes 852.236-76, Correspondence, is proposed for removal. The subject matter will be addressed more appropriately in a “Notice to Proceed” letter to the contractor from the contracting officer. Therefore, the clause and its prescription are unnecessary.
We propose to remove 836.571, Reference to “standards,” since the clause it prescribes 852.236-77, Reference to “Standards”, is proposed for removal. The subject matter is addressed in the VA Master Specifications (located at:
In 836.572, Government supervision, we propose to remove the entire section and redesignate the numbering and placement to the more appropriate VAAR part 842, Contract Administration and Audit Services, by adding a new section 842.204, Contract clause for Government construction contract administration. The clause would be therefore renumbered and revised accordingly.
In 836.573, Daily report of workers and materials, we propose to amend the title of the section and report to “Contractor production report,” and would prescribe a revised clause 852.236-79, Contractor Production Report.
We propose to revise 836.574, Subcontracts and work coordination, only to make minor edits for capitalization.
We propose to remove 836.575, Schedule of work progress, since the subject matter of the prescribed clause 852.236-84, Schedule of Work Progress, is addressed in the VA Master Specifications, Division 01, General Requirements: 01 32 16.01, Architectural and Engineering CPM
We propose to remove 836.576, Supplementary labor standards provisions, since the subject matter of the prescribed clause 852.236-85, Supplementary Labor Standards Provisions, is addressed in FAR clauses 52.222-6, Construction Wage Rate Requirements (formerly known as Davis-Bacon Act) and 52.222-8, Payrolls and Basic Records. The clause is proposed for removal and therefore its prescription would be unnecessary.
We propose to remove 836.577, Workers' compensation, which prescribes clause 852.236-86, Workers' Compensation. The clause is unnecessary since it merely cites a Public Law regarding applicability of States' workers' compensation laws. The VAAR is not required to cite individual States' workers' compensation laws to make them applicable to companies performing work in individual states. The clause is proposed for removal and therefore its prescription would be unnecessary.
We propose to remove 836.579, Special Notes, which prescribes the clause at 852.236-91, Special Notes. As stated under VAAR part 801 in the preamble of this proposed rule, the clause's paragraph (a) is already covered via required System for Award Management (SAM) representations and certifications. Paragraphs (b), (c) and (d) are addressed in Section 01 00 00, General Requirements, contained in all construction contract specifications (reference the VA Office of Construction and Facilities Management, Technical Information Library (TIL), VA Numbered Standards for Construction, PG-18-1, Master Construction Specifications, Division 01—General Requirements). And, paragraph (e), which references claims by the contractor for delay attributed to unusually severe weather under FAR 52.249-14, Excusable Delays, is governed by the Network Analysis System specifications—Section 01 32 16.13, Network Analysis System; 01 32 16.13, Project Schedules (Small Projects Design-Bid-Build); 01 32 16.16, (Network Analysis System (Design-Build Only); or 01 32 16.17, Project Schedule (Small Projects Design-Build), as applicable, which provide details of the requirements the contractor must follow to justify time extensions. VA internal procedures related to how contracting officers and Government Resident Engineers or technical reviewers should analyze contractor data and which records to review to support such claims for time extensions due to unusually severe weather, not having a significant effect beyond the internal operating procedures of the VA, would be moved to the VAAM. The clause is proposed for removal and therefore its prescription as contained in this section would be unnecessary.
We propose to add 836.580, Notice to bidders—additive or deductive bid line items, and a prescription requiring the contracting officer to insert the provision 852.236-92, Notice to Bidders—Additive or Deductive Bid Line Items, in invitations for bids when the contracting officer determines that funds may not be available for all the desired construction features at contract award.
We propose to remove 836.602, Selection of firms for architect-engineer contracts. Previously there was no text under this heading/title. As all sections under this are now proposed for removal, no heading/title would be required.
We propose to remove 836.602-1, Selection criteria, as internal procedural information which will be revised and moved to the VA Acquisition Manual.
We propose to remove 836.602-2, Evaluation boards; 836.602-4, Selection authority; and 836.602-5, Short selection process for contracts not to exceed the simplified acquisition threshold, as internal procedural information which will be revised and moved to the VA Acquisition Manual.
We propose to revise 836.603, Collecting data on and appraising firms' qualifications. The title would be revised to correct a typo and the text would be revised to include a Veterans Benefits Administration point of contact for filing and maintaining Standard Form (SF) 330 Files as required by the FAR.
In 836.606, Negotiations, we propose to revise the section in its entirety to remove internal agency procedural guidance in section 836.606-70, General, as unnecessary, and to remove the title, “General,” by redesignating section 836.606-71, Architect-Engineer's proposal, to 836.606-70, and retitling it to read “Architect-Engineer firms' proposal.” We propose to revise the text which requires use of the VA Form 6298, Architect-Engineer Fee Proposal, which has been updated with the new form number and updating FAR citation references and thresholds. This form is used for the submission of a contractor's proposal and supporting cost data from the selected firm during negotiation of an A-E contract for design services estimated at $50,000 or more. And, we propose to change the word “must” to “shall” when requiring the use of the form as prescribed in this section.
In 836.606-72, Contract price, we propose to remove the section in its entirety and move it to the companion VA Acquisition Manual as internal operating procedures of the VA.
We propose to redesignate and revise 836.606-73, Application of 6 percent architect-engineer fee limitation, to section 836.606-71, and retain the same title, “Application of 6 percent architect-engineer fee limitation,” to place all text now under section 836.606 in sequential subsections. 836.606-71, Application of 6 percent architect-engineer fee limitation, would provide policy explaining when the limitation applies, what costs the 6 percent fee limitation does and does not cover, and delete use of VA Form 10-1193, Application for Health Care Facility Program, and VA Form 10-6238, EMIS Construction Program Estimate Worksheet. The forms proposed for deletion are not required for use in this instance.
We propose to add subpart 836.70—Unique Forms for Contracting for Construction, Architect-Engineer Services, and Dismantling, Demolition, or Removal of Improvements, and the sections falling under that subpart—836.7000, Scope of subpart; and 836.7001, Unique construction and architect-engineer services forms. This would prescribe forms contracting officers may use for construction, architect-engineer services or dismantling, demolition or removal of improvements.
In 836.7000, Scope of subpart, it sets forth the requirements for use of VA unique forms.
In the new proposed 836.7001, Unique construction and architect-engineer services forms, we propose to add the following forms as prescribed elsewhere in the VAAR or as reflected in the individual prescriptions—
In paragraph (a) we propose to add information referencing VA Form 6298, Architect-Engineer Fee Proposal (see 853.236-70), and pointing information to the prescription. VA Form 6298, Architect-Engineer Fee Proposal, shall be used as prescribed in 836.606-71.
In paragraph (b) we propose to add the prescription for VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) (see 853.236-71). VA Form 2138, Order for Supplies or Services (Including Task Orders for
In paragraph (c) we propose to add information referencing VA Form 10101, Contractor Production Report (see 853.236-72), and pointing information to the prescription. Contractors may use VA Form 10101, Contractor Production Report, or a contractor generated form containing the same type of information contained in the form, as required by 836.573 which prescribes the clause at 852.236-79, Contractor Production Report.
We propose to revise the authority citations under part 842 to include a reference to 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency.
We propose to add coverage under VAAR subpart 842.2, Contract Administration Services, and 842.271, Contract clause for Government construction contract administration, to prescribe clause 852.242-70, Government Construction Contract Administration, that would describe contract administration functions to be delegated under construction contracts that exceed the micro-purchase threshold for construction. It would describe the role of the designated contracting officer performing contract administration, as well as certain functions that are delegated to VA resident engineers, if assigned. It also contains some language found under the previous clause, 852.236-78, Government Supervision. The information more properly falls under FAR part 42 and the VAAR supplement, so the new clause number more properly follows FAR drafting conventions, to include placing the prescription in the same part where the clause itself is located.
We propose to revise the part 846 authorities to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein.
In 846.312, Construction contracts, which prescribes clause 852.236-74, Inspection of construction, we propose to remove the entire section since VA Master Specifications provide the requirements for performing inspections. The clause is proposed for removal and therefore its prescription would be unnecessary.
In 852.236-71, Specifications and Drawings for Construction, we propose to amend the clause to place with the contractor the responsibility for checking all drawings furnished immediately upon receipt, and comparing them and verifying figures before laying out the work. It would also require the prompt notification of the contracting officer of any discrepancies. It would hold the contractor responsible for any errors that might have been avoided by complying with these requirements, for identifying errors or omissions that are necessary to carry out the intent of the drawings and specifications, and for performing such work as if fully and correctly set forth.
In 852.236-72, Performance of Work by the Contractor, we propose to amend the clause and Alternate 1 to make the text gender-neutral, to update terminology and to clarify language.
In 852.236-74, Inspection of Construction, we propose to remove and reserve the clause in its entirety since VA Master Specifications provide the requirements for performing inspections.
In 852.236-76, Correspondence, we propose to remove and reserve the clause since it is administrative guidance covered in the Notice to Proceed letter.
In 852.236-77, Reference to “Standards,” we propose to remove and reserve the clause as unnecessary since VA Master Specifications are used in VA contracts.
In 852.236-78, Government Supervision, we propose to remove and reserve the clause and would propose to include a revised version at 852.242-70, Government Construction Contract Administration.
In 852.236-79, Daily Report of Workers and Materials, we propose to amend the title of the clause to “Contractor Production Report” and would revise the clause to reflect use of VA Form 10101 which is based on industry reporting standards.
In 852.236-80, Subcontracts and Work Coordination, we propose to make minor capitalization corrections for Contractor and Contracting Officer, and to clarify in paragraph (d) that the Government reserves the right to refuse to permit employment on the work, or require dismissal from the work, of any subcontractor or subcontractor employee, who, by reason of previous unsatisfactory work on Department of Veterans Affairs projects or for any other reason, is considered by the contracting officer to be incompetent, careless, or otherwise objectionable. The words “or subcontractor employee” and “careless” would be added that were previously missing from the text.
In 852.236-84, Schedule of Work Progress, we propose to remove the clause in its entirety and reserve it since the subject is already covered in the Network Analysis Schedules section of the VA Master Specifications.
In 852.236-85, Supplementary Labor Standards Provisions, we propose to remove the clause in its entirety and reserve it since it is procedural and is addressed in FAR clauses 52.222-6, Construction Wage Rate Requirements, and 52.222-8, Payrolls and Basic Records.
In 852.236-86, Workers' Compensation, we propose to remove the clause in its entirety and reserve it since it merely cites a Public Law regarding applicability of States' workers' compensation laws. The VAAR is not required to cite individual States' workers' compensation laws to make them applicable to companies performing work in individual states.
In 852.236-87, Accident Prevention, we propose to remove the clause in its entirety and reserve it since the subject is already covered in the Accident Prevention Plan section of the VA Master Specifications.
In 852.236-89, Buy American Act, along with its Alternate I and II, we propose to remove and reserve the clause as it is redundant to the FAR and is unnecessary.
In 852.236-90, Restriction on Submission and Use of Equal Products, we propose to revise the clause to clarify the language to reinforce that the submission of “equal” products is not permitted; and to reformat the clause to standard FAR drafting convention and specify that notwithstanding any other clause or provision, only brand name
In 852.236-91, Special Notes, we propose to remove the clause in its entirety and reserve it since the material addressed is covered by the certification under the System for Award Management or under the Shop Drawings, Product Data & Submittals section of the VA Master Specifications.
We propose to add a new clause 852.236-92, Notice to Bidders—Additive or Deductive Bid Line Items, to provide guidance on how such bid items will be evaluated to determine the low bidder.
We propose to add a new clause 852.242-70, Government Construction Contract Administration, to enumerate the responsibilities being delegated.
We propose to amend the authority if part 853 to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. We also propose to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency.
In subpart 853.1—General, in 853.107, Obtaining forms, we propose to revise the text to provide the current website address where VA forms are obtained now:
In subpart 853.2—Prescription of Forms, we propose to revise the list of forms applicable to VAAR part 836 that are used between VA and its contractors, potential offerors or bidders, or the general public.
In 853.236, Construction and architect-engineer contracts, in section 853.236-70, VA Form 6298, Architect-Engineer Fee Proposal, we are revising the number of the form and changing the location of the prescription reference from 836.606-71 to 836.7001(a).
In 853.236 we also propose to add the following sections identifying forms applicable to part 836:
853.236-71, VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) which provides the prescription reference for use of the form for ordering supplies or services, including task orders for Construction or A-E services, to include dismantling, demolition, or removal of improvements.
853.236-72, VA Form 10101, Contractor Production Report, which provides the prescription reference for use of the form or a contractor generated form containing the same type of information contained in the form.
Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the VAAR for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts.
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review, defines “significant regulatory action” to mean any regulatory action that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal Governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 12866.
VA's impact analysis can be found as a supporting document at
This proposed rule impacts eight existing information collection requirements associated with four Office of Management and Budget (OMB) control number approvals. The proposed actions in this rule result in multiple actions affecting some of these information collections, such as: The proposed outright removal of the information collection; no change in information collection burdens although titles and number of the information collection would be slightly revised; or no change to the existing OMB control number and associated burden.
The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).
This proposed rule contains one provision constituting a collection of information at 48 CFR 836.606-71, Architect-engineer's proposal, concerning use of and prescription for VA Form 10-6298, Architect-Engineer Fee Proposal, which is proposed to be revised with updated thresholds and FAR citations, as well as an updated number to remove the “10-” currently part of the form number. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 836.606-71 is currently approved by OMB and has been assigned OMB control number 2900-0208. The burden of this information collection would remain unchanged. There would be no change in the information collection burden that is associated with this proposed request. However, we are proposing to amend the information collection requirement to renumber the form currently numbered and titled as VA Form 10-6298, Architect-Engineer Fee Proposal, to now read: VA Form 6298, Architect-Engineer Fee Proposal. Additionally, older dollar thresholds and FAR citations in the form would be updated to current levels and correct citations. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has approved the reporting or recordkeeping provisions that are included in the text and form under 836.606-71 cited above against the assigned OMB control number. For the requested administrative amendments to the form, as required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future
This proposed rule also contains two provisions constituting a collection of information at 48 CFR 852.236-72, Performance of Work by the Contractor; and 48 CFR 852.236-88, Contract Changes—Supplement, that would remain unchanged. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collection of information is associated with these provisions as a part of this proposed rule. The information collection requirements for 852.236-72 and 852.236-88 are currently approved by OMB and have been assigned OMB control number 2900-0422. The burden of these information collections would remain unchanged. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), OMB has approved the reporting or recordkeeping provisions that are included in the clause at 852.236-72 and 852.236-88 cited above and against the assigned OMB control number. Further proposed revision to the associated OMB control number relating to other information collections and provisions of this proposed rule are identified separately in this submittal.
This proposed rule would impose the following amended information collection requirements to one of the four existing information collection approval numbers associated with this proposed rule. Although this action contains the following provision constituting a collection of information at 48 CFR 852.236-79, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 852.236-79 is currently approved by OMB and has been assigned OMB control number 2900-0208. There would be no change in the information collection burden that is associated with this proposed request. However, we are proposing to amend the information collection requirement to revise the title and to renumber the form currently numbered and titled as VA Form 10-6131, Daily Log (Contract Progress Report—Formal Contract) to replace this form, along with replacing the number and title of VA Form 10-6001a, Supplement Contract Progress Report with one new number, title and format—VA Form 10101, Contractor Production Report. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future
This action also contains a provision constituting a collection of information at 48 CFR 852.236-80, however, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 852.236-80 is currently approved by OMB and has been assigned OMB control number 2900-0422. The currently approved burden associated with this clause would remain unchanged. However, this information collection has been submitted to OMB to amend the information collection requirement to make a minor correction to the title of the clause, as stated in paragraph 1 of the Supporting Statement, to reflect the full name of the clause—“Subcontracts and Work Coordination” in lieu of an abbreviated title reflected on the Supporting Statement—“Work Coordination.” The clause was otherwise referenced correctly in the remainder of the supporting statement. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review to revise the title in paragraph 1 of the submitted statement. Notice of OMB approval for this information collection will be published in a future
This proposed rule would remove one of the existing information collection requirements associated with this action at 48 CFR 852.236-84, Schedule of Work Progress. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), while the actual OMB control number will remain in existence due to other information collections on the same OMB control number that are approved and active, it discontinues the inclusion of 852.236-84 under the associated corresponding approved OMB control number, 2900-0422. As a result of this proposed rule, there would be a removal in the information collection burden that is associated with it. For 48 CFR 852.236-84, Schedule of Work Progress, as now included on OMB control number 2900-0422, this would result in a removal of 1828.5 estimated annual burden hours and an annual cost savings of $70,800. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future
This proposed rule would remove two of the existing information collection requirements associated with this action at 48 CFR 852.236-89, Buy American Act; and 852.236-91, Special Notes. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it discontinues the associated corresponding approved OMB control numbers, 2900-0622 and 2900-0623, respectively. As a result of this proposed rule, there would be a removal
This proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating processes or procedures. VA estimates no cost impact to individual business would result from these rule updates. This rulemaking clarifies VA's policy regarding the contracting order of priority for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) as a result of VA's implementation of 38 U.S.C. 8127-8128 as a result of the U.S. Supreme Court's decision in
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector.
Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements.
Customs duties and inspection, Foreign currencies, Foreign trade, Government procurement.
Government procurement, Reporting and recordkeeping requirements.
Accounting, Government procurement.
Government procurement.
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 20, 2018, for publication.
For the reasons set out in the preamble, VA proposes to amend 48 CFR parts 801, 825, 836, 842, 846, 852, and 853 as follows:
38 U.S.C. 8123; 38 U.S.C. 8153; 38 U.S.C. 8303; 40 U.S.C. 121(c); 41 U.S.C. 1702; 41 U.S.C. 1707; and 48 CFR 1.301-1.304.
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), 1303(a)(2) and 1702; and 48 CFR 1.301-1.304.
Upon approval of the justification documentation required by FAR 11.105, Items peculiar to one manufacturer, the contracting officer shall include the clause found at 852.236-90, Restriction on Submission and Use of Equal Products, in solicitations and contracts. The contracting officer shall complete the clause by inserting the items which have been approved for restriction to a brand name. This clause also places offerors or bidders on notice that the “brand name” provisions of any clause or provision that may authorize the
For sealed bid acquisitions the contracting officer or bid custodian is not authorized to release the basis for calculating the estimate at any time. The person preparing the independent government estimate (IGE) shall—
(a) Designate the IGE as “For Official Use Only (FOUO)”;
(b) The contracting officer or bid custodian shall file a sealed copy of the IGE with the bids. (In the case of two-step acquisitions, the contracting officer or bid custodian accomplishes this during the second step);
(c) After the bids are read and recorded during a Public Bid Opening, remove the “For Official Use Only (FOUO)” designation then read and record the estimate as if it were a bid, in the same detail as the bids; and
(d) In instances where only one bid has been received, the government estimate shall not be read by the contracting officer as it may be needed to conduct negotiations with the offeror.
The contracting officer shall utilize the estimated price ranges defined in FAR 36.204 as further supplemented below when identifying the magnitude of a VA project in advance notices and solicitations:
(f) For estimated price ranges between $1,000,000 and $5,000,000, the contracting officer shall identify the magnitude of a VA project in advance notices and solicitations in terms of the following price ranges:
(1) Between $1,000,000 and $2,000,000.
(2) Between $2,000,000 and $5,000,000.
(g) Between $5,000,000 and $10,000,000.
(h) For estimated price ranges greater than $10,000,000, the contracting officer shall identify the magnitude of a VA project in advance notices and solicitations in terms of one of the following price ranges:
(1) Between $10,000,000 and $20,000,000.
(2) Between $20,000,000 and $50,000,000.
(3) Between $50,000,000 and $100,000,000.
(4) Between $100,000,000 and $150,000,000.
(5) Between $150,000,000 and $200,000,000.
(6) Between $200,000,000 and $250,000,000.
(7) More than $250,000,000.
The clauses and provisions prescribed in this subpart are set forth for use in fixed-price construction contracts in addition to those in FAR subpart 36.5.
The contracting officer shall insert the clause at 852.236-72, Performance of Work by the Contractor, in solicitations and contracts for construction that contain the FAR clause at 52.236-1, Performance of Work by the Contractor, except those awarded pursuant to subpart 819.70. When the solicitations or contracts include a section entitled “Network Analysis System (NAS),” the contracting officer shall use the clause with its Alternate I.
The contracting officer shall insert the clause at 852.236-71, Specifications and Drawings for Construction, in solicitations and contracts for construction that include the FAR clause at 52.236-21, Specifications and Drawings for Construction.
The contracting officer shall insert the clause at 852.236-79, Contractor Production Report, in solicitations and contracts for construction expected to exceed the simplified acquisition threshold. The contracting officer may, when in the best interest of the Government, insert the clause in solicitations and contracts for construction when the contract amount is expected to be at or below the simplified acquisition threshold.
The contracting officer shall insert the clause at 852.236-80, Subcontracts and Work Coordination, in invitations for bids and contracts for construction expected to exceed the micro-purchase threshold for construction. When the solicitations or contracts are for new construction work with complex mechanical-electrical work, the contracting officer may use the clause with its Alternate I.
The contracting officer may include the provision 852.236-92, Notice to Bidders—Additive or Deductive Bid Line Items, in invitations for bids when the contracting officer determines that funds may not be available for all the desired construction features at contract award.
The Associate Executive Director, Office of Facilities Engineering, for Central Office; the Director, Office of Construction Management, for National Cemetery Administration; the Senior Executive Service for Administration and Facilities for Veterans Benefits Administration; and the Chief, Engineering Service, for field facilities, are responsible for collecting Standard Forms 330 and maintaining a data file on architect-engineer qualifications.
(a) When the contract price is estimated to be $50,000 or more, the contracting officer shall use VA Form 6298, Architect-Engineer Fee Proposal, to obtain the proposal and supporting cost data from the proposed contractor and subcontractor in the negotiation of an A-E contract for design services.
(b) In obtaining A-E services for research study, seismic study, master planning study, construction management and other related services contracts, the contracting officer shall use VA Form 6298, supplemented or modified as needed for the particular project type.
(a) The production and delivery of designs, plans, drawings, and specifications shall not exceed 6 percent of the estimated cost of construction. Other A-E fees are not included in this 6 percent. Such fees are delineated in paragraph (c) of this section.
(b) The 6 percent limit also applies to contract modifications, including modifications involving:
(1)
(2)
(i) Add the estimated construction cost of the redesign features to the original estimated construction cost;
(ii) Add the contract cost for the original design to the contract cost for redesign; and,
(iii) Divide the total contract design cost by the total estimated construction cost. The resulting percentage may not exceed the 6 percent statutory limitation.
(c) The 6 percent fee limitation does not apply to the following architect or engineer services:
(1) Investigative services including but not limited to—
(i) Determination of program requirements, including schematic or preliminary plans and estimates;
(ii) Determination of feasibility of proposed project;
(iii) Preparation of measured drawings of existing facility;
(iv) Subsurface investigation;
(v) Structural, electrical, and mechanical investigation of existing facility;
(vi) Surveys: topographic, boundary, utilities, etc.;
(vii) Environmental services;
(viii) Geo-Tech studies; and
(ix) Feasibility studies.
(2) Special consultant services that are not normally available in organizations of architects or engineers and that are not specifically applied to the actual preparation of working drawings or specifications of the project for which the service are required.
(3) Other—
(i) Reproduction of approved designs through models, color renderings, photographs, or other presentation media;
(ii) Travel and per diem allowances other than those required for the development and review of working drawings and specifications;
(iii) Supervision or inspection of construction, review of shop drawings or samples, and other services performed during the construction phase;
(iv) All other services that are not an integral part of the production and delivery of plans, designs, and specifications; and,
(v) The cost of reproducing drawings and specifications for bidding and their distribution to prospective bidders and plan file rooms.
This subpart sets forth requirements for the use of VA unique forms, as prescribed in this part, for contracting for construction, architect-engineer services, or dismantling, demolition, or removal of improvements. See part 853.
Contracting officers may use the following forms, as prescribed in this part or subpart, for construction, architect-engineer services or dismantling, demolition, or removal of improvements contracts as set forth below and in the referenced prescriptions:
(a) VA Form 6298, Architect-Engineer Fee Proposal (see 853.236-70).
VA Form 6298, Architect-Engineer Fee Proposal, shall be used as prescribed in 836.606-70.
(b) VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services) (see 853.236-71). VA Form 2138, Order for Supplies or Services (Including Task Orders for Construction or A-E Services), may be used for ordering supplies or services, including task orders for Construction or A-E services, to include dismantling, demolition, or removal of improvements.
(c) VA Form 10101, Contractor Production Report (see 853.236-72). Contractors may use VA Form 10101, Contractor Production Report or a contractor generated form containing the same type of information contained in the form, as required by 836.573 which prescribes the clause at 852.236-79, Contractor Production Report.
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
The contracting officer shall insert the clause at 852.242-70, Government Construction Contract Administration, in solicitations and contracts for construction expected to exceed the micro-purchase threshold for construction.
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
As prescribed in 836.521, insert the following clause:
The clause entitled “Specifications and Drawings for Construction” in FAR 52.236-21 is supplemented as follows:
(a) The Contracting Officer's interpretation of the drawings and specifications will be final, subject to the Disputes clause.
(b) The Contractor shall—
(1) Check all drawings and specifications furnished immediately upon receipt;
(2) Compare all drawings and the specifications, and verify the figures before laying out the work;
(3) Promptly notify the Contracting Officer of any discrepancies;
(4) Be responsible for any errors that might have been avoided by complying with this paragraph (b); and
(5) Reproduce and print contract drawings and specifications as needed.
(c) In general—
(1) Drawings of greater detail shall govern over drawings of lesser detail unless specifically noted otherwise; and
(2) Figures and numerical quantities noted on drawings govern over scale measurements.
(d) Omissions from the drawings or specifications or the misdescription of details of work that are manifestly necessary to carry out the intent of the drawings and specifications, or that are customarily performed, shall not relieve the Contractor from performing such omitted or misdescribed details of the work. The Contractor shall perform such details as if fully and correctly set forth and described in the drawings and specifications.
(e) The work shall conform to the specifications and the contract drawings identified on the following index of drawings:
Title File Drawing No.
As prescribed in 836.501, insert the following clause:
(a) In accordance with FAR 52.236-1, the contract work accomplished on the site by laborers, mechanics, and foreman/superintendent on the contractor's payroll and under their direct supervision shall be used in establishing the percent of work to be performed by the Contractor. Cost of material and equipment installed by such labor may be included. The work by the contractor's executive, administrative and clerical forces shall be excluded in establishing compliance with the requirements of this clause.
(b) The Contractor shall submit, simultaneously with the schedule of costs required by the Payments under Fixed-Price Construction Contracts clause of the contract, a statement designating the portions of contract work to be performed with the contractor's own forces. The approved schedule of costs will be used in determining the value of a work activity/event, or portions thereof, of the work for the purpose of this article.
(c) Changes to established activity/event identifiers or responsibility codes for Contractor activities shall not be made without approval from the Contracting Officer.
(d) In the event the Contractor fails to comply with FAR 52.236-1, Performance of Work by the Contractor, the Contracting Officer will withhold retention in the amount of 15% of the value of any work activity/element being invoiced that was not authorized by the Contracting Officer to be performed by someone other than the prime contractor's own workforce.
(b) The Contractor shall submit, simultaneously with the cost per activity of the construction schedule required by Section 01310 or 01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all activities of the network for which the contractor's forces will perform the work. The cost of these activities will be used in determining the portions of the total contract work to be executed by the contractor's forces for the purpose of this article.
As prescribed in 836.573, insert the following clause:
(a) The Contractor shall furnish to the resident engineer, for each workday, a consolidated report for the preceding workday. Reporting shall begin from date of mobilization until the date of final acceptance except for authorized holidays. VA Form 10101, Contractor Production Report, or a Contractor generated form containing the same type of information shall be signed, dated and submitted by the Contractor superintendent.
(b) Each report shall include and specifically identify at least one safety topic germane to the jobsite that day.
As prescribed in 836.574, insert the following clause:
(a) Nothing contained in this contract shall be construed as creating any contractual relationship between any subcontractor and the Government. Divisions or sections of specifications are not intended to control the Contractor in dividing work among subcontractors, or to limit work performed by any trade.
(b) The Contractor shall be responsible to the Government for acts and omissions of his/her own employees, and of the subcontractors and their employees. The Contractor shall also be responsible for coordination of the work of the trades, subcontractors, and material suppliers.
(c) The Government or its representatives will not undertake to settle any differences between the Contractor and subcontractors or between subcontractors.
(d) The Government reserves the right to refuse to permit employment on the work, or require dismissal from the work, of any subcontractor or subcontractor employee who, by reason of previous unsatisfactory work on Department of Veterans Affairs projects or for any other reason, is considered by the Contracting Officer to be incompetent, careless, or otherwise objectionable.
(b) The Contractor shall be responsible to the Government for acts and omissions of his/her own employees, and subcontractors and their employees. The Contractor shall also be responsible for coordination of the work of the trades, subcontractors, and material suppliers. The Contractor shall, in advance of the work, prepare coordination drawings showing the location of openings
As prescribed in 836.202-70, insert the following clause in solicitations and contracts when it is determined that only one product will meet the Government's minimum needs and the submission of “equal” products is not permitted:
(a) This clause applies to the following items: [
(b) Notwithstanding the “Material and Workmanship” clause of this contract, FAR 52.236-5(a), nor any other clause or provision, only brand name products for the items listed above will be authorized for use on this contract.
As prescribed in 836.580, insert the following provision:
(a) Additive or deductive line items in the Schedule shall be evaluated to determine the low offeror and the items to be awarded. The evaluation shall be made as follows—
(1) Prior to the opening of bids, the Government will determine the amount of funds available for the project.
(2) The low bid shall be the Bidder that—
(i) Is otherwise eligible for award; and
(ii) Offers the lowest aggregate amount for the first or base line item, plus or minus (in the order stated in the list of priorities in the bid schedule) those additive or deductive line items that provide the most features within the funds determined available.
(3) All bids shall be evaluated on the basis of the same additive or deductive line items.
(i) If adding another item from the bid schedule list of priorities would make the award exceed the available funds for all offerors, the Contracting Officer will skip that item and go to the next item from the bid schedule of priorities; and
(ii) Add that next item if an award may be made that includes that line item and is within the available funds.
(b) The Contracting Officer will use the list of priorities in the bid Schedule only to determine the low offeror. After determining the low offeror, an award may be made on any combination of items if—
(1) It is in the best interest of the Government;
(2) Funds are available at the time of award; and
(3) The low offeror's price for the combination to be awarded is less than the price offered by any other responsive, responsible offeror.
(c)
As prescribed in 842.271, insert the following clause. This is a fill-in clause.
(a) Contract administration functions set forth in FAR 42.302 are hereby delegated to:
[
(b) The work will be under the direction of a Department of Veterans Affairs Contracting Officer, who may designate another VA employee to act as resident engineer at the construction site.
(c) Except as provided below, the resident engineer's directions will not conflict with or change contract requirements. Within the limits of any specific authority delegated by the Contracting Officer, the resident engineer may, by written direction, make changes in the work. The Contractor shall be advised of the extent of such authority prior to execution of any work under the contract.
(d) The Contracting Officer identified in paragraph (a) of this clause may further delegate the responsibilities below to the following warranted personnel on site:
[
(1) Conduct post-award orientation conferences.
(2) Issue administrative changes, correcting errors or omissions in typing, Contractor address, facility or activity code, remittance
(3) For actions not to exceed $ (insert dollar amount) negotiate and execute supplemental agreements incorporating Contractor proposals resulting from change orders issued under the Changes clause.
(4) Negotiate and execute supplemental agreements changing contract delivery schedules where the time extension does not exceed (insert number) calendar days.
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
VA forms may be obtained online at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule, request for comments.
NMFS proposes revising Federal regulations that restrict the use and configuration of bottom and midwater trawl gear for vessels fishing under the Pacific Coast Groundfish Fishery's Trawl Rationalization Program. The gear restrictions were originally implemented to limit discarding and protect overfished rockfish species. These restrictions are no longer necessary because of changes to the fishery, including implementation of the Trawl Rationalization Program in 2011, and improved status of a number of overfished rockfish stocks. By eliminating these regulations, the proposed action could increase flexibility in how vessels can use and configure gear to increase access to target stocks and efficiency of fishing practices, while still limiting the catch of target and non-target discards to meet the conservation objectives of the Trawl Rationalization Program.
Comments on this proposed rule must be received on or before October 9, 2018.
Submit your comments, identified by NOAA-NMFS-2018-0081, by any of the following methods:
•
•
NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record and NMFS will post the comments for public viewing on
Electronic copies of supporting documents referenced in this proposed rule, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Regulatory Flexibility Analysis (RFA), are available from
Karen Palmigiano, Fishery Management Specialist, 206-526-4491, or
Prior to 2011, the Pacific Coast Groundfish fishery was primarily managed with trip and landing limits and area closures and monitoring was limited (
In 2011, NMFS implemented Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management Plan (PCGFMP), which established the Trawl Rationalization Program. The Trawl Rationalization Program, a type of catch share program, replaced trip and landing limits with fixed allocations for limited entry trawl participants, through an individual fishing quota (IFQ) management system. To allow managers to accurately account for catch against IFQ, the program increased at-sea and shoreside monitoring to 100 percent of trips and landings for groundfish bottom and midwater trawl vessels. This management system, which increased individual vessel accountability, successfully reduced bycatch of target and non-target rockfish in the trawl fishery. Since implementation of the Trawl Rationalization Program, five of the seven previously overfished rockfish species are now rebuilt.
Building on the successes of the Trawl Rationalization Program at reducing discards, NMFS and the Pacific Fishery Management Council (Council) began working with industry members on several fishery management actions, known as Program Improvements or Enhancements (PIE) trailing actions. The PIE trailing actions included identifying regulations that limit the use and configuration of groundfish bottom and midwater trawl gears, and may no longer be necessary because the Trawl Rationalization Program effectively limits target and non-target species bycatch.
In March 2011, groundfish industry members, through the Council's Groundfish Advisory Sub-Panel (GAP), requested that the Council eliminate and revise various regulations related to mesh size and requirements to use four-seam trawl shoreward of the trawl RCA. To address the GAP's recommendations, the Council formed an ad hoc committee to identify specific regulations that, if revised or eliminated, would allow fishermen to increase the efficiency of their fishing strategy as the Council had intended when they recommended implementation of the Trawl Rationalization Program. The Council authorized the appointment of the new ad hoc committee, the Trawl Rationalization Regulatory Evaluation Committee (TRREC), at its April 2011 meeting.
The TRREC held a meeting during the summer of 2011. At the Council's November meeting that year, the TRREC recommended the Council consider, as part of the PIE trailing actions, revising regulations to: (1) Allow multiple gear (trawl gears and fixed gear) use and possession seaward and shoreward of the trawl RCA; (2) remove restrictions on chafing gear for midwater trawl gear; and, (3) eliminate codend, mesh size, and selective flatfish trawl gear requirements and restrictions. The TRREC prioritized these three measures over others, but also recommended the Council consider revising additional regulations they felt were unnecessary and costly, including the prohibition on fishing more than one individual fishing quota (IFQ) management area and the definitions of large and small footropes.
In March 2012, the Council adopted preliminary preferred alternatives for most of the gear measures under the PIE trailing actions; adopted its preferred alternative for chafing gear requirements for midwater trawl gear and put this action on a fast track for implementation; and, authorized a one-day public workshop of the Council's Enforcement Consultants (EC), GAP, and Groundfish Management Team (GMT) to discuss and make recommendations on the remaining gear related measures. Further discussion on gear measures were delayed until results of the gear workshop were presented to the Council.
The purpose of the gear workshop, which took place August 29-30, 2012, in Portland, Oregon, included scoping of various gear restriction measures that had been recommended to the Council by the TRREC and providing recommendations for how the Council can move forward. The gear workshop report was presented to the Council at its November 2012 meeting and made similar recommendations to those in the TRREC report, including (1) allowing the use of multiple gears (trawl and fixed gear) on the same trip; (2) a reduction in the minimum mesh size for groundfish bottom trawl gear; (3) eliminating the selective flatfish trawl gear requirement; and (4) allowing vessels in the IFQ Program to move fixed gear across management lines. Additionally, the report included a recommendation to allow year-round use of midwater gear within and outside the trawl RCA north of 40°10′ North (N) latitude.
The Council next took action on these measures in September 2015. At the time, the Council adopted the purpose and need statement, a rulemaking schedule, and the range of alternatives, along with some additional alternatives and measures suggested by the GAP. These new measures included changing how mesh size is defined so that regulations would allow for the enforcement of both knotted and knotless webbing; allowing vessels fishing under the Shorebased IFQ Program to fish across IFQ management lines; allowing whiting fishing with any type of trawl gear; allowing a tow to be brought onboard before previous catch is stowed; and, the option to further review and revise additional requirements in regulations at § 660.130 which provides trawl gear requirements and restrictions. After Council and NMFS staff reviewed that section of the regulations, further measures were added to the list of potential gear changes, including eliminating codend restrictions. Several other possible measures were not forwarded at the time due to potential for delays in implementation. The Council scheduled final action on the suite of measures for March 2016.
On March 3, 2016 (81 FR 11189), NMFS published a notice of intent (NOI) to prepare an environmental impact statement (EIS) to consider revisions to the regulations for groundfish bottom and midwater trawl gear used by vessels under the Trawl Rationalization Program. The Council conducted an additional scoping during its March 2016 meeting to gather public comments on the proposed regulations. Based on discussions at the meetings and public comments on the NOI, the Council selected their final preferred alternatives for all of the proposed measures at its March 2016 meeting, except the restriction on fishing across IFQ management lines. The Council delayed its decision on management lines, and selected its final preferred alternative at the June 2016 Council meeting. Detailed information, including the supporting documentation the Council considered at each meeting, is available at the Council's website,
After the Council selected final recommendations on the proposed measures in March and June 2016, NMFS completed extensive analyses on the measures, including an Endangered Species Act section 7 consultation on the impacts of the PCGFMP on listed salmon stocks. These analyses supported NMFS' determination that the impacts of implementing the proposed measures would likely not be significant and, therefore, there was no need to complete an EIS. Instead NMFS completed an integrated analysis that included an EA. On June 8, 2018, NMFS published a notice to withdraw preparation of the EIS (83 FR 26640). A
If implemented, the proposed regulations would provide flexibility to groundfish bottom and midwater trawl vessels fishing under the Trawl Rationalization Program in how they may use and configure their gear, and operate on fishing trips. This flexibility is expected to foster innovation and allow for more optimal harvest operations for the groundfish fleet.
The Council deemed the proposed regulations consistent with and necessary to implement this action in an August 14, 2018, letter from Council Executive Director, Chuck Tracy, to Regional Administrator Barry Thom. Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is required to publish proposed rules for comment after preliminarily determining whether they are consistent with applicable law. We are seeking comment on the proposed regulations in this action and whether they are consistent with the PCGFMP, the Magnuson-Stevens Act and its National Standards, and other applicable law.
The discussion in this proposed rule and in the EA/RIR/RFA (See
• Adjust a suite of restrictions related to how nets are configured, including eliminating minimum mesh size restrictions, changing the definition of mesh size, removing chafing gear placement restrictions, and removing restrictions on using double-walled codends from groundfish bottom and midwater trawl vessels fishing under the Trawl Rationalization Program;
• Remove the requirement to use selective flatfish trawl gear north of 40° 10′ N lat. and shoreward of the trawl RCA;
• Adjust a number of provisions related to vessel operations on a single fishing trip, including allowing vessels that fish in the Shorebased IFQ Program under the Trawl Rationalization Program to carry and fish groundfish bottom and midwater trawl gears on the same trip, fish across IFQ management lines, and bring a new haul on deck before the catch from a previous haul is stowed.
This section discusses the proposed regulations that would remove some minimum mesh size restrictions, revise the definition of mesh size, remove chafing gear placement restrictions, and remove the prohibition on using double-walled codends for groundfish bottom and midwater trawl vessels fishing under the Trawl Rationalization Program. These measures all relate to net configuration, and all affect the mesh size for trawl nets. Because changing any of these restrictions could result in similar impacts, the analysis supporting this proposed rule considers both the individual and collective impacts of all of the measures. Below is a short description of each of the proposed regulations followed by a summary of the potential impacts of each of these measures combined.
Mesh size is the opening between opposing knots in a fishing net, and minimum mesh size is the smallest distance allowed from the inside of one knot to the inside of the opposing knot. Currently, vessels fishing with groundfish trawl gear, including chafing gear, must use nets with a minimum mesh size greater than or equal to 4.5 inches (11.4 cm) for bottom trawl, and greater than or equal to 3.0 inches (7.6 cm) for midwater trawl gears. These regulations were first implemented in the 1990s to reduce fishing mortality for smaller fish, thus increasing survival to maturity. Increasing size selectivity through minimum mesh size restrictions was also expected to reduce bycatch of non-target species.
Midwater trawl gear must be constructed so that the first 20 feet (6.51 m) immediately behind the footrope or head-rope is constructed with bare ropes or mesh with a minimum size of 16 inches (40.64 cm). Also implemented in the 1990s, this restriction makes midwater trawl gear impractical or ineffective at capturing fish when in contact with the seafloor, which ensures that vessels do not make bottom contact with midwater trawl gear.
This action would remove both the 4.5 in (11.4 cm) minimum mesh size requirement for groundfish bottom trawl gear and the 3.0 in (7.6 cm) minimum mesh size requirement for midwater trawl. The Council did not recommend revising the current restriction on the minimum mesh size restriction for the first 20 feet (6.51 m) behind the footrope or head-rope for midwater trawl gears. This requirement is essential to the definition of midwater trawl gear.
Under the proposed regulations, it is not anticipated that groundfish bottom or midwater trawl vessel operators would significantly reduce their mesh size, throughout their codend, intermediate, and/or body of the trawl to create less selective fishing gear because this may increase the catch of undersized IFQ species or other unwanted species, decrease the efficiency of the trawl, and increase fuel consumption. Some groundfish bottom trawlers may use smaller meshes closer to the 3.0 in (7.6 cm) minimum allowed for midwater trawl to reduce gilling of species like widow rockfish and yellowtail rockfish. But there does not currently appear to be a need for midwater trawl vessel operators to reduce their minimum mesh size through their trawl gear lower than the requirement, even though they would be allowed to do so under the proposed regulatory changes, because the current 3.0 in (7.6 cm) minimum mesh size requirement is sufficient for preventing excessive gilling of midwater species (
The proposed regulations would likely provide vessel operators with the flexibility to configure their gear to enable efficient catch of target species, including the strategic use of smaller mesh sizes to facilitate the use or construction of excluder devices (
In addition to revising minimum mesh size restrictions for bottom and midwater trawl gear, this action updates the definition for measuring minimum mesh size to include knotless nets, as well as redefining the approach for measuring mesh size as the opening between opposing corners. These changes to the definition for mesh size are necessary because most vessels today use knotless trawl gear. Revising the definition of mesh size would allow NMFS Office of Law Enforcement (OLE) to enforce current mesh size requirements for nets that do not have knots. Additionally, removing the minimum mesh size requirements would reduce minor enforcement violations that occur when net shrinkage reduces mesh size below legal limits.
Even if the minimum mesh size requirement is eliminated, as discussed
The current groundfish regulations prohibit double-walled codends on any trawl gear, and prohibits vessel operators from outfitting nets with chafing gear to effectively create a double-walled codend. Double-walled codend is defined in regulation as a codend constructed of two walls or layers of webbing. The prohibition was originally implemented in 1992 to prevent vessel operators from using double-walled codends to effectively reduce their mesh size below the minimum size requirements, which would have prevented undersized species from escaping the net, and resulted in more discards.
The Council recommended and NMFS proposes eliminating the restrictions that prohibit groundfish bottom and midwater trawl vessels from using double-walled codends. This proposed regulations could provide flexibility necessary to reinforce webbing in certain areas of the trawl net that could facilitate escapement of fish through escape panels (
The November 2011 TRREC report also suggested eliminating restrictions on the use of chafing gear. The groundfish regulations define chafing gear as a webbing or other material that attaches to the codend to protect trawl nets from wear and damage from bottom contact and contact with the vessels during net retrieval. Regulations implemented in the 1990s required chafing gear with large meshes be fastened to allow escapement of small fish through mesh openings (57 FR 12212, April 9, 1992). These regulations were intended to prevent vessel operators from using chafing gear to create double-walled codends or effectively reducing the mesh size below the minimum mesh size restrictions. Over the past 30 years, NMFS implemented several proposed regulations to expand the use of chafing gear to protect trawl nets to better align with regulations off Alaska.
The current regulations allow vessels to configure chafing gear to encircle no more than 50 percent of a bottom trawl net's circumference. Chafing gear on bottom trawls may be used only on the last 50 meshes, issued from the terminal (closed) end of the codend. Only the front edge (edge closest to the open end of the codend) and sides of each section of chafing gear may be attached to the codend. With the exception of the corners, the terminal edge (edge closest to the closed end of the codend) of each section of chafing gear must not be attached to the net. Chafing gear must be attached outside any riblines and restraining straps.
For midwater trawl, current regulations allow that chafing gear may cover the bottom and sides of the codend in either one or more sections. Only the front edge (edge closest to the open end of the codend) and sides of each section of chafing gear may be attached to the codend; except at the corners, the terminal edge (edge closest to the closed end of the codend) of each section of chafing gear must not be attached to the net. Chafing gear is not permitted on the top codend panel on midwater trawl gear except for a band of mesh (a “skirt”) may encircle the net under or over transfer cables, lifting or splitting straps (chokers), riblines, and restraining straps, but must be the same mesh size and coincide knot-to-knot with the net to which it is attached and be no wider than 16 meshes.
NMFS proposes removing all restrictions in regulations on the use of chafing gear for groundfish bottom trawl and midwater trawl gear. Removing these restrictions would allow vessel operator flexibility in how they use chafing gear to protect nets and codends and how they fish relative to the seafloor. It is anticipated that under the proposed regulations, vessel operators would use chafing gear strategically to provide protection in areas where the net can be susceptible to wear. This will allow vessels to extend the life of their nets and ultimately reduce operational costs.
It is not anticipated that vessel operators would attach large sections of chafing gear to these additional sections for added net protection, because doing so would increase the drag on the net, which could increase fuel consumption and reduce fishing efficiency. In addition, it would likely provide no additional protection from bottom contact, because the top of the net and tapered portion of the net in front of the codend rarely contact the seabed. Wear patterns on midwater trawl nets indicate that when bottom contact occurs, it typically occurs at the very end of the codend, which can already be protected by chafing gear under the current regulations. The ability of vessels to fish in more rocky habitat has more to do with the size of the footrope than the chafing gear protections, and vessels operators would still be required to abide by the small footrope requirement shoreward of the trawl RCA. Therefore, limiting their ability to fish in high relief areas regardless of chafing gear requirements.
This change is not expected to result in increased catch of undersized or non-target fish. Attaching more chafing gear than necessary to protect the net could also limit the flow within the net, which is needed to allow for adequate escapement of undersized fish, if meshes are blocked. Researchers have also shown there is no detectable difference in selectivity between codends with and without top-side chafing gear if the chafing gear consists of larger meshes than the codend mesh size (
This change is not expected to substantially alter gear contact with the bottom. Numerous disincentives already exist for midwater vessel operators to fish close to the substrate. These disincentives include: (a) Risk of damage to the net from snagging or hanging on hard bottom would not be lessened by increases in chafing gear coverage; (b) reduced gear efficiency and increased operating costs when bottom contact occurs; and (c) bare footropes, sweeps, and 16 in (40.64 cm) mesh size restriction for the first 20 ft (6.1 m) on the front of the net make the gear impractical or ineffective for fishing hard on the bottom (soft or hard bottom).
Eliminating restrictions on groundfish bottom and midwater trawl net configuration would allow vessels to experiment with different mesh sizes,
Proposed regulations which could result in a reduction in mesh sizes used and increased net protections could increase bottom trawl effort targeting semi-pelagic rockfish species or longspine thornyhead, and therefore result in some redistribution of effort or a shift of effort to deeper waters. These shifts in effort are not anticipated to result in additional impacts to the physical environment beyond what already occurs under the current regulations. The proposed regulations do not open any new areas to trawling. Any redistribution of effort would not be expected to impact any new habitats which are not already fished with trawl gear. Other restrictions on net configurations, such as the small-footrope requirement shoreward of the trawl RCA, haven been shown to be very effective in limiting effort in high relief areas. Vessel operators would still be at risk of damage to their nets and hang-ups from entering into high relief habitats, even with the ability to provide additional chafing gear or codend protections, which do not provide any protection to the ropes.
Increasing net protections which result in extensively armoring the trawl and reducing mesh sizes is also unlikely for many reasons, including: (a) Increased drag and decreased flow; (b) increased expense while hauling due to increased fuel consumption; (c) increased expense to purchase smaller mesh, additional chafing gear, and double-walled nets; and (d) increased retention of undersized and unmarketable fish. It is important to note that increased drag may not only increase fuel consumption, but also may reduce fishing efficiency, such as reducing door spread of the trawl net.
If vessels make mesh size, chafing gear, or double-walled codend changes throughout the codend and/or intermediate net in a manner that reduces trawl gear selectivity, then catches of undersized or unwanted groundfish could increase. However, the Trawl Rationalization Program creates a strong disincentive for vessel operators to avoid the catch of undersized, unmarketable groundfish. Catching more small fish is not economically advantageous to vessel operators. Although most undersized fish are unmarketable, vessels operators must still account for the catching of undersized fish with individual quota pounds. Vessel operators must debit each pound of unmarketable, undersized fish caught from their total allocation for that species, which means they must forgo the opportunity to use their allocation for marketable catch. For this reason, catching unmarketable, undersized fish has the potential to reduce vessel revenue, as well as add sorting time (workload), for the vessel's crew and processor's employees.
Revisions to the restrictions on net configurations could have a positive impact on harvesters by allowing vessel operators to configure their nets in the most efficient way possible, including the opportunity to experiment with excluders and various combinations of mesh size and mesh shape (square or T-90 mesh) that could reduce bycatch while simultaneously improving the sustainability of the fishery and increasing the likelihood of attainment. Vessel operators have repeatedly testified to the Council that they desire more flexibility to experiment with trawl gear to reduce catch of unwanted species and increase catch of marketable fish. This may ultimately result in improved quality and consistency of product to first receivers and processors over time. Vessel operators would also benefit from the reduced complexity of the regulations by removing additional restrictions that they were subject to previously. This could save time and effort for vessel operators and ultimately reduce operational costs as vessel operators would no longer need to ensure compliance with these regulations.
Eliminating restrictions on mesh size will also likely reduce enforcement costs. Although enforcement of the remaining mesh size restriction on midwater trawl gear would still be required, enforcement of the other restrictions would be removed.
Selective flatfish trawl is a type of small footrope trawl developed to maintain a nearshore flatfish trawl fishery while reducing the non-target catch of canary rockfish and other overfished rockfish species. The selective flatfish trawl features a headrope set back from a flattened net body to capture low-swimming flatfish while allowing rockfish, particularly canary rockfish, to escape over the upper edge of the trawl net. Along with the elimination of the codend, chafing gear, and mesh size provisions, the 2011 TRREC report suggested the Council consider eliminating the selective flatfish trawl gear requirement and replace them with a small footrope requirement, as well as revising the definition of selective flatfish trawl to allow for four-seam nets. Similar to the adjustments discussed above in Section A., the TRREC pointed to the Trawl Rationalization Program to support this regulatory change.
The current regulations define selective flatfish trawl as a two-seamed net with no more than two riblines, excluding the codend. The breastline may not be longer than 3 feet (0.92 m). There may be no floats along the center third of the headrope or attached to the top panel except on the riblines. The footrope must be less than 105 feet (32.26 m). The headrope must be no less than 30 percent longer than the footrope. The headrope is issued along the length of the headrope from the outside edge to the opposite outside edge.
Since 2005, the groundfish regulations have required the use of selective flatfish trawl gear shoreward of the trawl RCA north of 40°10′ N latitude. The regulations further prohibit vessels fishing north of 40°10′ N latitude from having small footrope trawl gear on board, other than selective flatfish trawl gear, while fishing shoreward of the trawl RCA. Vessels are allowed, but not required, to use selective flatfish trawl gear shoreward of the trawl RCA south of 40°10′ N latitude, and seaward of the trawl RCA coastwide.
This rule proposes revising the definition of selective flatfish trawl gear to allow either a two-seam or a four-seam net with up to four riblines, while retaining all the other existing restrictions related to the configuration of this gear. In addition, the Council proposed eliminating the requirement that vessels use selective flatfish trawl gear shoreward of the trawl RCA north of 40°10′ N latitude. Instead, groundfish bottom trawl vessels would be allowed to use any small footrope trawl gear shoreward of the trawl RCA north and south of 40°10′ N latitude. Large footrope trawl gear would still be prohibited in this area.
Revising the definition of selective flatfish trawl to allow for a four-seam net could potentially provide for better flow and improved selectivity compared to a two-seam net. A four-seam net has more open meshes for smaller fish to escape. In addition, studies have
Eliminating the requirement to use selective flatfish trawl gear north of 40°10′ N. latitude could result in a shift in bottom trawl effort shoreward of the trawl RCA north of 40°10′ N. latitude and increased catch of selected pelagic or semi-pelagic groundfish species (
During development of the proposed action for the 2017 Salmon Biological Opinion, the Council considered several analyses that discussed the potential impacts that the future fishery, including possible impacts from the elimination of the selective flatfish trawl gear requirement, may have on the incidental take of Chinook salmon in the Pacific Coast's groundfish trawl fishery. NMFS presented an analysis at the April 2017 Council meeting, under the 2017 Salmon Biological Opinion agenda item, that suggested that removal of this requirement could dramatically increase the incidental take of Chinook salmon north of 40°10′ N. latitude. At the time, the data that were used suggested this gear requirement is driving the differences in bycatch rates. However, that analysis acknowledged numerous caveats associated with comparing bycatch rates between different periods of time (
To gather data about the potential impacts of changing the existing selective flatfish trawl gear requirement for today's fishery, NMFS issued two EFPs for the 2017 and 2018 groundfish fishing years that, among other measures, exempted vessels from the selective flatfish trawl gear requirement. At its March 2017 and March 2018 meetings, during development of the 2017 and 2018 Trawl Gear EFPs, the Council twice considered and rejected including the area shoreward of the trawl RCA between 42° N latitude and 40°10′ N latitude in the exemption to the selective flatfish trawl gear requirement due to concerns over potential impacts to Chinook salmon. NMFS ultimately permitted more than 40 vessels to participate in the two EFPs. These vessels have completed more than 200 EFP trips. Based on the analysis of this new information, changes that have occurred within the fishery over the past several year, and the analysis in the December 2017 biological opinion, NMFS has determined that Chinook salmon bycatch is unlikely to increase in the area north of 42° N latitude (the southern boundary of the 2017 and 2018 Trawl Gear EFPs) on a scale shown in the report NMFS presented April 2017.
Potential impacts to Chinook salmon in the area between 42° N latitude and 40°10′ N latitude are less certain. The December 2017 biological opinion on salmon bycatch in the Pacific Coast Groundfish Fishery discussed that significant uncertainty exists in the magnitude of impacts, especially the species-level impacts, for fisheries in locations or time periods outside the available data. Areas south of 42° N latitude, particularly between January and early May (outside the Pacific primary whiting season), have particularly limited information because most fishing tends to take place north of 42° N latitude due to other restrictions (
In addition to concerns about the uncertainty in Chinook salmon bycatch in the groundfish fishery in the area between 42° N. latitude and 40°10′ N latitude, NMFS has made the preliminary determination that the proposed changes to the selective flatfish trawl gear requirement shoreward of the trawl RCA between 42° N latitude and 40°10′ N latitude may be out of compliance with the terms and conditions of the December 2017 Salmon Incidental Take Statement. Term and Condition 4b requires that “prior to allowing additional non-whiting trawling south 42° N latitude, NMFS will implement one or more EFPs designed to collect information about Chinook and coho bycatch levels and stock composition from fishing in those areas or at those times for a minimum of three years.”
Based on these concerns and the information presented at the Council meetings and while developing this rule, NMFS is specifically asking for public comment on the elimination of the requirement to use selective flatfish trawl gear in the area between 42° N latitude and 40°10′ N latitude.
This section discusses the three proposed regulations that relate to vessel operations on a single fishing trip, including allowing vessels that fish in the Shorebased IFQ Program under the Trawl Rationalization Program to carry and fish groundfish bottom and midwater trawl gears on the same trip, fish across IFQ management lines, and bring a new haul on deck before the catch from a previous haul is stowed. These three measures are discussed together because they could have similar impacts on vessel operations and catch accounting. Below is a short description of each of the proposed regulations followed by a summary of the potential impacts of each of these measures combined.
The GMT suggested the use of multiple fishing gears on a single trip under the Shorebased IFQ Program to the Council at its November 2011 meeting. The current restrictions on the use of multiple fishing gears during a single trip under the IFQ Program are complex, with different sections of the regulations allowing vessels to carry different gear combinations in different parts of the EEZ. For example, the regulations prohibit vessels from using multiple types of bottom trawl gear during a single trip when fishing seaward or shoreward of the trawl RCA south of 40°10′ N latitude. However, the regulations do not include a similar prohibition for the area north of 40°10′ N latitude, where vessels may fish with multiple types of trawl gear seaward of the trawl RCA. The GMT suggested that simplifying the regulations to allow vessels to carry and fish with multiple types of gear on the same trip could improve economic efficiency and improve safety at sea by reducing the number of trips and days at sea.
Regulations define the following trawl gear types: Large footrope trawl, small footrope trawl, selective flatfish trawl, and midwater trawl. North of 40°10′ N latitude, a vessel may not have both groundfish trawl gear and non-groundfish trawl gear on board simultaneously, or have multiple trawl gear types (groundfish bottom or midwater trawl gear) on board
Limited entry trawl vessels were allowed to fish with multiple trawl gears during the same trip prior to the development of the trawl RCA. To ensure that bottom trawl gear was not used within trawl RCA, a new regulation was published in 2003 to allow no more than one type of trawl gear on board during a single fishing trip (68 FR 907, January 7, 2003). Regulations requiring vessel monitoring systems (VMS), paired with vessel declarations, became effective on January 1, 2004, to ensure adequate monitoring and to enforce these new gear-specific area restrictions (68 FR 62375, November 4, 2003). Additional monitoring requirements implemented through the Trawl Rationalization Program and changes to when a declaration can be made, proposed through this rule, have made the prohibition unnecessary to achieve its original purpose.
The Council recommended and NMFS proposes eliminating the prohibition on vessels carrying both groundfish bottom trawl gear and midwater trawl gear onboard simultaneously while fishing under the Shorebased IFQ Program north of 40°10′ N latitude, or south of 40°10′ N latitude. Additionally, the rule proposes eliminating the prohibition on having bottom trawl gear, other than selective flatfish trawl gear, on board shoreward of the RCA and north of 40°10′ N latitude. Instead, vessels would be allowed to have any type of bottom trawl (small/large footrope or selective flatfish trawl) and midwater trawl gear on board simultaneously and would be allowed to fish any of these trawl gears during a single trip as long as the appropriate declaration is made when gears are changed. Vessels would be required to keep and land all catch separately by gear type, and catch would be reported on electronic fish tickets by gear type. This rule would not adjust the current provision that requires vessels to stow any gear not authorized for use in the area when transiting through a groundfish conservation area. For species managed with trip limits, crossover provisions, and gear-specific trip limits, all current regulations would remain in effect.
This rule would also modify recordkeeping and reporting requirements for vessels fishing in the Shorebased IFQ Program who choose to use more than one type of groundfish trawl gear on the same trip. These vessels would be required to make a new gear declaration from sea to indicate that they have chosen to fish with a new gear type (
Allowing the use of multiple IFQ trawl gears on the same trip could potentially reduce the time at sea, further reducing daily fuel and observer coverage costs. It would also allow greater flexibility for harvesters while at sea when choosing how best to use quota pounds. For instance, vessels could choose to avoid using bottom trawl gear when that gear might result in high catch of prohibited species. Instead they could switch their gear type, and fishing strategy, to target non-whiting midwater species complexes in the same area, which may have reduced interactions with prohibited species, by changing to another trawl gear type. Alternatively, a vessel could choose to target more abundant bottom trawl species on the same trip if it finds targeting non-whiting midwater species to be less profitable or carry increased risk of encountering non-target catch.
Allowing groundfish bottom and midwater trawl gear to be fished on the same trip could have some limited indirect effects on stock assessments for target and non-target species. Because it is impossible for observers and vessels using electronic monitoring to monitor the hold once the catch is stored, there is the potential that removing the prohibition on multiple types of trawl gear could reduce the quality of stock assessments and economic analysis to some extent if the catch mingles and is recorded incorrectly.
The proposed elimination of the prohibition on bringing a new haul on board before all catch from a previous haul had been stowed first came to the Council from the GAP at the Council's November 2015 during discussions of the range of alternatives for the trawl gear changes package. Under current regulations, vessels fishing in the Shorebased IFQ Program are prohibited from bringing a new haul on board the deck until all catch from the previous haul has been stowed. Catch cannot be stowed until all protocols under the Electronic Monitoring Program or the West Coast Groundfish Observer Program (WCGOP) have been completed. Additionally, the regulations require vessels to stow all catch from a haul before the new haul is brought onboard. These requirements were added to the regulations in 2011, through implementation of the Trawl Rationalization Program, to aid observers in carrying out their duties.
This rule proposes eliminating the existing prohibition on bringing a haul on board before the previous haul has been stowed, and the requirement to stow all catch before catch from a new haul is brought on board. However, vessels would be required to keep separate catch from separate hauls until the observer could complete the haul-specific collection of catch for sampling. Vessels fishing with electronic monitoring would be required to keep catch from different hauls separate on deck until fully documented according to protocols established in the specific vessel's monitoring plan. All vessels would still be required to land any catch that was caught using different gears separated by gear type.
Eliminating this prohibition could provide some limited benefit to the vessels. Completely sorting and stowing
Eliminating the prohibition on bringing a new haul on board could have some potential negative effects on observers if this causes vessel operators to pressure observers to complete their duties more quickly so a new haul could be brought onboard. Degraded observer data could result in indirect impacts on stocks if stock data is affected. The current regulations require that the observers are provided reasonable assistance to complete all duties, including providing adequate time and space to do so. These regulations would still be enforced if the prohibition on bringing a new haul onboard is eliminated.
There are currently four IFQ management areas in the regulations that are based on the stock information for select species, harvest allocations, and the corresponding quota shares for species. The IFQ management areas include:
The Council created these areas as part of the Trawl Rationalization Program to allow for different management measures for species or species groups in different IFQ management areas. Several IFQ species are tracked either as a single species with different quota share by area, or as a single species in one area and as a component of an assemblage in another area (
As mentioned previously, the Council held a workshop in Portland, Oregon on August 29 and 30, 2012. The result of that workshop was a list of recommendations to the Council at its November 2012 meeting. One of those recommendations included the elimination of the prohibition on fishing across management lines for vessels fishing under the Shorebased IFQ Program. Instead, participants suggested allowing vessels to move across IFQ management lines on a single tow.
This rule proposes eliminating the prohibition on fishing in multiple IFQ management areas on the same trip for vessels fishing in the Shorebased IFQ Program. These vessels would be allowed to fish in multiple IFQ management areas on the same trip and the same haul. If retaining catch from multiple IFQ management areas, catch would not need to be sorted by area. Catch from multiple IFQ management areas would be recorded on the same ticket.
Based on recommendations from industry, this rule also proposes to allow vessels to fish across management lines in the same tow. Catch from vessels fishing across management lines would be assigned to an area and quota pounds would be deducted from vessel accounts based on the proportion of hauls in a given management area. For example, if six hauls were taken in one IFQ management area, and two hauls were taken in another management area, the total catch would be apportioned to management areas by a 6 to 2 ratio.
The proposed regulations would improve flexibility for vessels when selecting their harvest strategies to best utilize their available IFQ. Vessels that operate near a management line would most likely benefit the most from reduced operational costs by not having to haul back gear and reset to start a new haul on the other side of the management area boundary line. Vessel towing across lines could reduce the number of hauls and therefore fuel costs and time at sea.
The proposed regulations do increase the catch accounting complexity and could potentially reduce the accuracy of catch reporting. NMFS would need to accurately track the number of hauls in a given area and apply this estimation to total catch landing weight to determine the pro-rata assignment. Additionally, the combination of allowing multiple trawl gears onboard and fishing in multiple management areas creates more complexity to managers in assigning catches.
The proposed regulations would change how vessels in the Shorebased IFQ Program may operate as they would be allowed to tow across IFQ management areas, carry and fish with groundfish bottom and midwater trawl gear, and bring a new haul on board before the previous haul has been stowed. The effect of eliminating these prohibitions is most directly felt by harvesters who would have more flexibility in how they operate their vessels. The proposed regulations are unlikely to increase fishing effort (
Vessel operators are expected to use the flexibility to create an efficient fishing strategy that best limits bycatch of non-target and protected species while still maximizing catch of their target species. Vessels would maximize attainment of IFQ by carrying and fishing with both midwater and groundfish bottom trawl gear on the same trip. According to vessel operators, trawl vessels average between 10 and 20 days spent annually traveling back and forth to port to change gear types. If vessels in the Shorebased IFQ Program had less restrictions on how they operate their vessels, including carrying multiple types of trawl gear onboard, vessel operators may be able to eliminate most days spent traveling back and forth to port to change gears resulting in financial savings. For example, the mean fixed operational costs for non-whiting trawl vessels in the Trawl Rationalization Program is just over $5,000 per day. If these vessels were to eliminate 10-20 days which had been previously used to transit back and forth to port, then that would be a savings of between $50,000 and $100,000 per vessel per year.
Vessel operators would also likely create efficiencies and save money if fishing near an IFQ management line. A vessel operator would not have to haul
Eliminating regulations that manage vessel operations could also have some potential negative impacts to processors, observers, and managers. Due to the complexity of the sorting options for vessels fishing across IFQ management lines, processors could have difficulty handling deliveries, as the number of hauls in each area would need to be tracked and reported on fish tickets. Additional catch accounting complexity would also result from needing to track the number of hauls by management area. Vessels using multiple groundfish trawl gears on a single trip would need to keep all catch separated by gear type. However, as there are no monitors or cameras below deck, it would be impossible for shoreside monitors, first receivers, vessel operators, or observers to ensure that catch has been kept separate.
A vessel observer's ability to process samples would be the limiting factor for increased efficiency on vessels where an operator would like to bring a new haul onboard before the previous haul has been stowed. Catch from hauls caught by the same gear could not be mixed until the observer had taken all the necessary samples. Therefore, additional pressure on the observer to do their work quickly may result. This pressure could cause mistakes and ultimately degrade data quality. Maintaining restrictions on pressuring observers or catch monitors would ensure continued accurate monitoring and reporting of catch, and help maintain quality catch at sea and landing data used to manage the fishery in season and for stock assessments used to develop catch limits and harvest guidelines.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. In making the final determination, NMFS will consider the data, views, and comments received during the public comment period. NMFS also prepared an environmental assessment (EA) for this action. Copies of the draft EA and other supporting documentation is available from NMFS (see
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
This proposed rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
The proposed regulations for groundfish bottom trawl and midwater trawl gear would directly affect vessels fishing under the Pacific Coast Groundfish Fishery's Trawl Rationalization Program. Eliminating restrictions on mesh size, chafing gear, and codend will allow vessels to experiment with different mesh sizes and net coverings, which could help reduce fishing operational costs and days on sea. Removing the requirement to use selective flatfish trawl gear and revising the definition to allow for four-seam nets will allow vessel operators to target recently rebuilt overfished stocks, such as widow and yellowtail rockfishes. Allowing vessels that fish in the Shorebased IFQ Program, a component of the Trawl Rationalization Program, to carry and fish with multiple groundfish trawl gears, fish across management lines, and bring a new haul onboard the vessel before the previous haul is stowed could help improve the efficiency of fishing practices. Vessels would not be required to return to port to change gears or haul back to move and reset on the other side of an IFQ management line. Vessels could spend less time at sea, which would reduce fuel and observer costs. Our analysis of the likely economic impacts of this action predicts that these regulatory changes will have positive impacts on fishing vessels, seafood processors, and fishing communities.
For the purposes of our Regulatory Flexibility Act (RFA) analysis, the proposed action is expected to affect entities that both process and harvest groundfish under the Trawl Rationalization Program. The U.S. Small Business Association (SBA) established criteria for business in the fishery sector to qualify as small entities. Under that standard, two small processing entities, each of which owns one groundfish permit, would be regulated by the proposed rule. Seven large entities, which own 30 groundfish permits, would be regulated by the proposed rule.
For RFA purposes only, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The determination as to whether the entity is large or small is based on the average annual revenue for the 3 years from 2013 through 2015. Limited entry groundfish vessels are required to self-report size across all affiliated entities. Of the businesses who earn the majority of their revenue from commercial fishing, one self-reported as large. This entity owns four groundfish permits. The remaining 117 entities primarily involved in seafood harvest self-identified as small, and own 139 permits.
A total of 113 vessels harvested groundfish in the Trawl Rationalization at some point and would potentially benefit from some or all of the flexibility offered in the proposed rule. However, this number of entities represents the maximum number of affected entities. Not all permit owners choose to fish each season, therefore, not all 113 vessels would benefit from this action each year. Only those vessels which are active vessels are the most likely to benefit and be directly impacted by regulations.
The proposed regulations would eliminate and revise regulations that govern the use and configuration of groundfish bottom and midwater trawl gear fished under the Pacific Coast Groundfish Fishery's Trawl Rationalization Program. The specific revisions would eliminate the minimum mesh size requirement for groundfish bottom trawl and midwater trawl gear; the prohibition on the use of double-walled cod-ends; restrictions on where and how chafing gear can be attached to the trawl net; the requirement to use
This action contains a change to an information collection requirement, which has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0573: Expanded Vessel Monitoring System Requirement for the Pacific Groundfish Fishery. The proposed regulatory change, which is described above in section C.1 of the preamble, would allow vessel operators who fish in the Shorebased IFQ Program to make a new declaration from sea when a new gear fished on a trip. This revision would remove the requirement that vessels return to port to make a new declaration. The numbers of declaration reports the vessel operator is required to submit to NMFS would not change under this request. Therefore, no small entity would be subject to additional reporting requirements.
Overall, the proposed regulations are expected to have a positive economic effect on small entities. The elimination of these regulations would alleviate some restrictions on how vessels fishing in the Trawl Rationalization may use and configure their gear. Eliminating regulations that may be constraining on industry members and are no longer needed due to the new management system is likely to generate additional groundfish gross revenues as vessels are able to obtain more of their quota and reducing their fishing operational costs. Allowing vessels more flexibility to configure their gear will also allow vessel operators to innovate and adapt to an ever changing environment.
This action is not expected to have a significant economic impact on a substantial number of small entities. The effects on the regulated small entities identified in this analysis are expected to be positive. Under the proposed action, small entities would not be placed at a competitive disadvantage relative to large entities, and the regulations would not reduce the profits for any small entities. As a result, an initial regulatory flexibility analysis is not required, and none has been prepared.
Fisheries, Fishing, and Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
16 U.S.C. 1801
(7)
(11) * * *
(iii) * * *
(B)
(d)
(1)
(i) Limited entry trawl vessels fishing in the Shorebased IFQ Program must provide NMFS OLE with a new declaration report each time a different groundfish trawl gear (bottom or midwater only) is fished. The declaration may be made from sea and must be made to NMFS before a different type (bottom or midwater only) of groundfish trawl gear is fished.
(ii) [Reserved]
(2)
(3)
(4)
(ii) A declaration report will be valid until another declaration report revising the existing gear or fishery declaration is received by NMFS OLE. The vessel operator must send a new declaration report when:
(A) A gear type that is different from the gear type most recently declared for the vessel will be used, or
(B) A vessel will fish in a fishery other than the fishery most recently declared.
(iii) During the period of time that a vessel has a valid declaration report on file with NMFS OLE, it cannot fish with a gear other than a gear type declared by the vessel or fish in a fishery other than the fishery most recently declared.
(iv) Declaration reports will include: The vessel name and/or identification number, the gear type, and the fishery
(A) One of the following gear types or sectors must be declared:
(
(
(
(
(
(
(
(
(B) [Reserved]
(v) Upon receipt of a declaration report, NMFS will provide a confirmation code or receipt to confirm that a valid declaration report was received for the vessel. Vessel owners or operators are responsible for retaining the confirmation code or receipt to verify that a valid declaration report was filed.
(b) * * *
(4) * * *
(vii) * * *
(C)
(h) * * *
(7)
(i)
(ii) * * *
(A)
(B) * * * (
(
(b) * * *
(1) * * *
(vii) For vessels fishing with multiple trawl gear types on a single trip, fail to keep catch from different trawl gears separate and land the catch separately by gear type.
(xi) Mix catch from different hauls before all sampling and monitoring requirements for the hauls have been met.
(xii) * * *
(A) A vessel that is 75-ft (23-m) or less LOA that harvests Pacific whiting and, in addition to heading and gutting, cuts the tail off and freezes the whiting, is not considered to be a C/P vessel nor is it considered to be processing fish, and
(c) * * *
(4) Catch, take, or harvest fish in the MS Coop Program with a vessel that does not have a valid VMS declaration for limited entry midwater trawl, Pacific
(e) * * *
(4) Fish in the C/P Coop Program with a vessel that does not have a valid VMS declaration for limited entry midwater trawl, Pacific whiting catcher/processor sector, as specified at § 660.13(d)(4)(iv)(A).
(b) * * *
(3)
The revisions read as follows:
(b) * * *
(1) * * *
(ii) * * *
(A)
(2)
(c) * * *
(1)
(2)
(i)
(ii) [Reserved]
(3) * * *
(ii) South of 40°10′ N latitude, midwater groundfish trawl gear is prohibited within and shoreward of the RCA boundaries (see § 660.130(e)(4)(i)) and allowed seaward of the RCA boundaries.
(4) * * *
(i) * * *
(A) A vessel may not have both groundfish trawl gear and non-groundfish trawl gear onboard simultaneously.
(B) If a vessel fishes exclusively with large or small footrope trawl gear during an entire cumulative limit period, the vessel is subject to the cumulative limits for that gear.
(D) If more than one type of groundfish bottom trawl gear (selective flatfish, large footrope, or small footrope) is on board, either simultaneously or successively, at any time during a cumulative limit period, then the most restrictive cumulative limit associated with the groundfish bottom trawl gear on board during that cumulative limit period applies for the entire cumulative limit period.
(E) If a vessel fishes both north and south of 40°10′ N latitude with any type of small or large footrope gear onboard the vessel at any time during the cumulative limit period, the most restrictive trip limit associated with the gear on board applies for that trip and will count toward the cumulative limit for that gear (See crossover provisions at § 660.60(h)(7)).
(ii) * * *
(A) A vessel may not have both groundfish trawl gear and non-groundfish trawl gear onboard simultaneously.
(B) If a vessel fishes both north and south of 40°10′ N latitude with any type of small or large footrope gear onboard the vessel at any time during the cumulative limit period, the most restrictive cumulative limit associated with the gear on board would apply for that trip and all catch would be counted toward that cumulative limit (See crossover provisions at § 660.60(h)(7)).
(d) * * *
(2) * * *
(ii)
(e)
(4) * * *
(ii) Trawl vessels may transit through an applicable GCA, with or without groundfish on board, provided all prohibited groundfish trawl gear: Is stowed below deck; or, if the gear cannot readily be moved, is stowed in a secured and covered manner detached from all towing lines so that it is rendered unusable for fishing; or, if remaining on deck uncovered, is stowed disconnected from the trawl doors with the trawl doors hung from their stanchions. These restrictions do not apply to vessels allowed to fish within the trawl RCA under paragraph (e)(4)(i) of this section.
(iv) If a vessel fishes in the trawl RCA using midwater trawl gear, it may also fish outside the trawl RCA with groundfish bottom trawl gear on the same trip. Nothing in these Federal regulations supersedes any state regulations that may prohibit trawling shoreward of the fishery management area (3-200 nm).
(c) * * *
(1)
(i) Between the US/Canada border and 40°10′ N lat.,
(ii) Between 40°10′ N lat. and 36° N lat.,
(iii) Between 36° N lat. and 34°27′ N lat., and
(iv) Between 34°27′ N lat. and the US/Mexico border.
(2) [Reserved]
(b) * * *
(1) It is declared “non-groundfish trawl gear for ridgeback prawn” under § 660.13(d)(4)(iv)(A)(
(c) * * *
(1) It is declared “non-groundfish trawl gear for California halibut” under § 660.13(d)(4)(iv)(A)(
(d) * * *
(1) It is declared “non-groundfish trawl gear for sea cucumber” under § 660.13(d)(4)(iv)(A)(
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 or other forms of information technology.
Comments regarding this information collection received by October 9, 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 20502. Commenters 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 of the opportunity to object to the Revised Land Management Plan for the Colville National Forest.
The USDA Forest Service has prepared a Revised Land Management Plan (Forest Plan) for the Colville National Forest. The Forest Service has also prepared a Final Environmental Impact Statement (FEIS) and a Draft Record of Decision (ROD). This notice is to inform the public that a 60-day objection period is being initiated for individuals or entities who have submitted substantive formal comments related to the revision of the Forest Plan during the opportunities for public comment provided during the planning process for that decision. Objections must be based on previously submitted substantive formal comments attributed to the objector unless the objection concerns an issue that arose after the opportunities for formal comment.
The Revised Forest Plan, FEIS, Draft ROD, and other supporting documentation are available on the following web page:
A legal notice of the initiation of the 60-day objection period is being published in
Electronic objections must be submitted to the Objection Reviewing Officer via email to
Faxed objections must be sent and addressed to “Chris French, Objection Reviewing Officer” at (202) 649-1172 and must include a subject line stating: “Objection regarding the Revised Colville Plan.” The fax coversheet should specify the number of pages being submitted.
Hardcopy objections may be submitted by regular mail, private carrier, or hand delivery to the following address: USDA Forest Service, Attn: Chris French, Objection Reviewing Officer, 1400 Independence Ave. SW, EMC-PEEARS, Mailstop 1104, Washington, DC 20250. Office hours are Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. Hardcopy submissions must include a subject line on page one stating: “Objection regarding the Revised Colville Forest Plan.”
Individuals who need to use telecommunication devices for the deaf (TDD) to transmit objections may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
Holly Hutchinson, Team Leader, 765 S Main St., Colville, WA 99114, phone: (509) 684-7201.
The decision to approve the Revised Forest Plan will be subject to the objection process identified in 36 CFR part 219 Subpart B (219.50 to 219.62). Individuals and entities who have submitted substantive formal comments related to the revision of the Forest Plan during the opportunities for public comment, as provided in 36 CFR part 219 Subpart A, during the planning process for that decision may file an objection. Objections must be based on previously submitted substantive formal comments attributed to the objector unless the objection concerns an issue that arose after the opportunities for formal comment. The burden is on the objector to demonstrate compliance with the requirements for objection. All objections must be filed, in writing, with the reviewing officer for the Revised Forest Plan. Objections received in response to this solicitation, including names and addresses of those who object, will be considered part of the public record on these proposed actions and will be available for public inspection. At a minimum, an objection must include the following (36 CFR 219.54(c)):
(1) The objector's name and address along with a telephone number or email address if available. In cases where no identifiable name is attached to an objection, the Forest Service will attempt to verify the identity of the objector to confirm objection eligibility;
(2) Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector, when multiple names are listed on an objection. The Forest Service will communicate to all parties to an objection through the lead objector. Verification of the identity of the lead objector must also be provided if requested;
(4) The name of the Plan Revision document(s) being objected to, and the name and title of the responsible official;
(5) A statement of the issues and/or parts of the Plan Revision document(s) to which the objection applies;
(6) A concise statement explaining the objection and suggesting how the proposed Forest Plan decision may be improved. If the objector believes that the Plan Revision is inconsistent with law, regulation, or policy, an explanation should be included;
(7) A statement that demonstrates the link between the objector's prior substantive formal comments and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment; and
(8) All documents referenced in the objection (a bibliography is not sufficient), except that the following need not be provided:
a. All or any part of a Federal law or regulation,
b. Forest Service Directive System documents and land management Plans or other published Forest Service documents,
c. Documents referenced by the Forest Service in the planning documentation related to the proposal subject to objection, and
d. Formal comments previously provided to the Forest Service by the objector during the plan revision comment period.
Prior to the issuance of the reviewing officer's written response, either the reviewing officer or the objector may request to meet to discuss issues raised in the objection. Interested persons who wish to participate in meetings to discuss issues raised by objectors must have previously submitted substantive formal comments related to the objection issues. Interested persons must file a request to participate as an interested person within 10 days after legal notice of objections received has been published. Requests must be sent to the same email or address identified for filing objections, above, and the interested person must identify the specific issues they have interest in discussing. During the objection meeting, interested persons will be able to participate in discussions related to issues on the agenda that they have listed in their request to be an interested person.
The Regional Forester for the Pacific Northwest Region (1220 SW 3rd Avenue, Portland, OR 97204, (503) 808-2200), is the responsible official who will approve the final ROD for the Revised Forest Plan.
Chris French, Associate Deputy Chief, is the delegated reviewing officer for the Chief of the Forest Service (36 CFR 219.56(e)(2)).
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, Public Law 104-13.
To ensure consideration, written comments must be submitted on or before November 6, 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 Rebecca E. Vilky, 301-
The Census Bureau is requesting generic clearance to conduct customer satisfaction research which may be in the form of mailed or electronic questionnaires and/or focus groups, telephone interviews, or web-based interviews.
The Census Bureau has ranked a customer-focused environment as one of its most important strategic planning objectives. The Census Bureau routinely needs to collect and analyze customer feedback about its products and services to better align them to its customers' needs and preferences. Several programs, products, and distribution channels have been designed and/or redesigned based on feedback from its various customer satisfaction research efforts.
Each research design is reviewed for content, utility, and user-friendliness by a variety of appropriate staff (including research design and subject-matter experts). The concept and design are tested by internal staff and a select sample of respondents to confirm its appropriateness, user-friendliness, and to estimate burden (including hours and cost) of the proposed collection of information. Collection techniques are discussed and included in the research, concept, and design discussion to define the most time-, cost-efficient and accurate collection media.
The clearance operates in the following manner: A block of burden hours is reserved at the beginning of the clearance period. The particular activities that will be conducted under the clearance are not specified in advance because they would not be known at the beginning of the clearance period. The Census Bureau provides detailed information to the Office of Management and Budget (OMB) about the specific activities a minimum of two weeks prior to the planned start date of the collection. OMB provides any comments it may have prior to the start date of the planned activity. At the end of each year, a report is submitted to OMB that summarizes the number of hours used as well as the nature and results of the activities completed under the clearance.
This research may be in the form of mailed or electronic questionnaires and/or focus groups, telephone or web-based interviews.
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.
Kaiser Aluminum Fabricated Products, LLC (Kaiser) submitted a notification of proposed production activity to the FTZ Board for its facility in Richmond, Virginia. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 29, 2018.
The applicant indicates that it will be submitting a separate application for FTZ designation at the Kaiser facility under FTZ 207. The facility is used for the production of aluminum extrusions for the automotive industry. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Kaiser from customs duty payments on the foreign-status components used in export production. On its domestic sales, for the foreign-status materials/components noted below, Kaiser would be able to choose the duty rates during customs entry procedures that apply to: Hollow profile tubes of aluminum alloys; bars and rods of aluminum alloys; rounded bars and rods of aluminum alloys; non-rounded bars and rods of aluminum alloys; and, tube pipe of aluminum alloys (duty rate ranges from 1.5% to 5.7%). Kaiser would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The components and materials sourced from abroad include alloyed aluminum logs and billets (duty-free). The request indicates that the materials/components are subject to special duties under Section 232 of the Trade Expansion Act of 1962 (Section 232), depending on the country of origin. The applicable Section 232 decision requires subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is October 17, 2018.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230-0002, and in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Elizabeth Whiteman at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at reginfo.gov
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
International Trade Administration, Department of Commerce.
Notice of renewal of the Civil Nuclear Trade Advisory Committee and solicitation of nominations for membership.
Pursuant to provisions of the Federal Advisory Committee Act, the Department of Commerce (the Department) announces the renewal of the Civil Nuclear Trade Advisory Committee (CINTAC or “Committee”) and requests nominations for membership. The purpose of the CINTAC is to provide advice to the Secretary of Commerce regarding the development and administration of programs to expand U.S. exports of civil nuclear goods and services in accordance with applicable U.S. laws and regulations, which will be used by the Department in its role as a member of the Civil Nuclear Trade Working Group of the Trade Promotion Coordinating Committee and of the TeamUSA interagency group to promote U.S. civil nuclear trade.
Nominations for members must be received on or before 4:00 p.m. Eastern Daylight Time (EDT) on September 28, 2018.
Nominations may be emailed
Jonathan Chesebro, Office of Energy & Environmental Industries, Room 28018, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; phone 202-482-1297; fax 202-482-5665; email
The CINTAC was established on September 17, 2008, pursuant to the Department of Commerce authority under 15 U.S.C. 1512 and the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. The CINTAC functions solely as an advisory committee in accordance with the provisions of FACA. As noted in the
(1) Matters concerning trade policy development and negotiations relating to U.S. civil nuclear exports;
(2) The effect of U.S. Government policies, regulations, programs, and foreign government policies and practices on the export of U.S. civil nuclear goods and services;
(3) The competitiveness of U.S. industry and its ability to compete for civil nuclear products and services opportunities in international markets, including specific problems in exporting, and provide specific recommendations regarding U.S. Government and public/private actions to assist civil nuclear companies in expanding their exports;
(4) The identification of priority civil nuclear products and services markets with the potential for high immediate returns for U.S. exports, as well as emerging markets with a longer-term potential for U.S. exports;
(5) Strategies to increase private sector awareness and effective use of U.S. Government export promotion programs, and recommendations on how U.S. Government programs may be more efficiently designed and coordinated;
(6) The development of complementary industry and trade association export promotion programs, including ways for greater and more effective coordination of U.S. Government efforts with private sector
(7) The development of U.S. Government programs to encourage producers of civil nuclear products and services to enter new foreign markets, in connection with which CINTAC may advise on how to gather, disseminate, and promote awareness of information on civil nuclear exports and related trade issues.
CINTAC shall consist of approximately 40 members appointed by the Secretary, in accordance with applicable Department of Commerce guidance and based on their ability to carry out the objectives of the Committee. Members shall represent U.S. entities involved in the export of civil nuclear products and services and reflect the diversity of this sector, including in terms of entities' size and geographic location. The Committee shall also represent the diversity of company or organizational roles in the development of civil nuclear energy projects, including, for example, U.S. civil nuclear manufacturing and services companies, U.S. utilities, U.S. trade associations, and other U.S. organizations in the U.S. civil nuclear sector. The Secretary shall appoint to the Committee at least one individual representing each of the following:
a. Civil nuclear manufacturing and services companies;
b. small businesses;
c. utilities;
d. trade associations in the civil nuclear sector;
e. research institutions and universities; and
f. private sector organizations involved in strengthening the export competitiveness of U.S. civil nuclear products and services.
Members shall serve in a representative capacity, expressing the views and interests of a U.S. entity, as well as its particular subsector; they are, therefore, not Special Government Employees. Each member of the Committee must be a U.S. citizen and must not be registered as a foreign agent under the Foreign Agents Registration Act. No member may represent a U.S. entity that is majority owned or controlled by a foreign government entity (or foreign government entities). The Secretary of Commerce invites applications for the CINTAC, consistent with the above membership requirements. To be considered for membership, submit the following information (2 pages maximum) by 5:00 p.m. EDT on September 28, 2018 to the email or mailing address listed in the
(1) Name;
(2) Title;
(3) Work phone, fax, and, email address;
(4) Name of entity to be represented and address including website address;
(5) Short biography of nominee including credentials;
(6) Brief description of the entity and its business activities, size (number of employees and annual sales), and export markets served; and,
(7) An affirmative statement that the applicant and entity to be represented meet all eligibility criteria, specifically addressing that the applicant:
(a) Is a U.S. citizen; and
(b) Is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Please do not send organization brochures or any other information.
All applications should be submitted in pdf or MS Word format via email to
Nominees selected for appointment to the Committee will be notified by mail.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Hyundai Heavy Industries Co., Ltd. (HHI) and Hyundai Electric & Energy Systems Co. (HEES) (collectively, Hyundai) made sales of subject merchandise at less than normal value, and that Hyosung Corporation (Hyosung) did not make sales of subject merchandise at less than normal value, during the period of review (POR) August 1, 2016, through July 31, 2017. Interested parties are invited to comment on these preliminary results.
Applicable September 7, 2018.
Joshua DeMoss, Tyler Weinhold, or John Drury, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3362, (202) 482-1121, or (202) 482-0195, respectively.
Commerce initiated this review on October 16, 2017.
The Preliminary Decision Memorandum is a public document and
The scope of this order covers large liquid dielectric power transformers having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete. The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States at subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540. This tariff classification is provided for convenience and Customs purposes; however, the written description of the scope of the order is dispositive.
Commerce is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our conclusions,
Pursuant to section 776(a) of the Act, Commerce is preliminarily relying upon facts otherwise available to assign an estimated weighted-average dumping margin to Hyundai in this review because Hyundai withheld necessary information that was requested by Commerce, thereby significantly impeding the conduct of the review. Further, Commerce preliminarily determines that Hyundai failed to cooperate by not acting to the best of its ability to comply with requests for information and, thus, Commerce is applying adverse facts available (AFA) to Hyundai, in accordance with section 776(b) of the Act. For a full description of the methodology underlying our conclusions regarding the application of AFA,
In accordance with the U.S. Court of Appeals for the Federal Circuit's decision in
We preliminarily determine that, for the period August 1, 2016, through July 31, 2017, the following weighted-average dumping margins exist:
Commerce will disclose to parties to the proceeding any calculations performed in connection with these preliminary results of review within five days after the date of publication of this notice.
Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a date and time to be determined.
Commerce intends to publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, no later than 120 days after publication of these preliminary results, unless extended.
Upon completion of this administrative review, Commerce shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If a respondent's weighted-average dumping margin is not zero or
If the preliminary results are unchanged for the final results, we will instruct CBP to apply an
Regarding entries of subject merchandise during the period of review that were produced by Hyosung and Hyundai and for which they did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate un-reviewed entries at the all-others rate of 22.00 percent, as established in the less-than-fair-value investigation of the order, if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Hyosung and Hyundai and other companies listed above will be equal to the weighted-average dumping margin established in the final results of this administrative review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which they were reviewed; (3) if the exporter is not a firm covered in this review, a prior review, or in the investigation but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be the all-others rate of 22.00 percent, the rate established in the investigation of this proceeding.
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding, in part, the administrative review of the antidumping duty (AD) order on certain crystalline silicon photovoltaic products from the People's Republic of China (China) for the period of review (POR), February 1, 2017, through January 31, 2018.
Applicable September 7, 2018.
Jeff Pedersen, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-2769.
On February 1, 2018, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the parties that requested the review withdraw their requests within 90 days of the date of publication of the notice of initiation of the requested review. All requesting parties withdrew their respective requests for an administrative review of the nine companies or group of companies listed in the Appendix to this notice within 90 days of the date of publication of the
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all subject merchandise exported by the companies listed in the Appendix to this notice that was entered, or withdrawn from warehouse, for consumption during the period of review. The entries shall be assessed AD duties that are equal to the cash deposit of estimated AD duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the
This notice serves as the only reminder to importers whose entries will be liquidated as a result of this rescission notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of AD duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of the AD duties occurred and the subsequent assessment of doubled AD duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable September 7, 2018.
Michael Bowen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-0768.
On July 26, 2018, the Department of Commerce (Commerce) published the
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed deletions from the Procurement List.
The Committee is proposing to delete products and services from the Procurement List that were previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: October 7, 2018.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following products and services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes services from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
On 8/3/2018 (83 FR 150), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the services deleted from the Procurement List.
Accordingly, the following services are deleted from the Procurement List:
The Board of Directors of the Corporation for National and Community Service gives notice of the following meeting:
Wednesday, September 19, 2018, 12:00 p.m.-1:00 p.m. (ET).
Corporation for National and Community Service, 250 E Street SW, Suite 4026, Washington, DC 20525. Please go to the first floor lobby reception area for escort.
This meeting is available to the public via conference call through the following toll-free call-in number: 888-603-9224; the call access code number is 8900220. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and CNCS will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Call replays are generally available one hour after a call ends. The toll-free phone number for the replay is 800-860-4697. The end date for the replay is October 3, 2018 at 11:59 p.m. (ET).
Open.
Members of the public who would like to comment on the business of the Board may do so in writing or in person. Individuals may submit written comments to
The Corporation for National and Community Service provides reasonable accommodations to individuals with disabilities, where appropriate. Anyone who needs an interpreter or other accommodation should notify Sandy Scott at
Sandy Scott, Senior Advisor, Corporation for National and Community Service, 250 E Street SW, Washington, DC 20525. Phone: 202-606-6724. Fax: 202-606-3460. TTY: 800-833-3722. Email:
Under Secretary of Defense for Acquisition and Sustainment, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by November 6, 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 Defense Logistics Agency Information Operations, ATTN: Timothy Noll, 2001 Mission Drive, Suite 2, New Cumberland, PA 17070, or call (717) 982-9599.
On January 31, 2017, Eagle LNG Partners Jacksonville, LLC (Eagle LNG) filed an application with the Federal Energy Regulatory Commission (FERC or Commission) in Docket No. CP17-41-000 pursuant to section 3(a) of the Natural Gas Act and Parts 153 and 380 of the Commission's Regulations, requesting authorization to site, construct, and operate a natural gas liquefaction, storage, and liquefied natural gas (LNG) export facility. The proposed project, known as the Jacksonville Project, would consist of three liquefaction trains with a total capacity of 132 million cubic feet per day and one full containment LNG storage tank capable of storing 12,000,000 gallons of LNG (equivalent to 1.0 billion cubic feet of natural gas), for domestic LNG markets and for export overseas. The terminal would receive natural gas to the export facilities from a third-party intrastate pipeline. On July 21, 2016, in Order No. 3867, the U.S. Department of Energy, Office of Fossil Energy, granted to Eagle LNG a long-term, multi-contract authorization to export LNG to Free Trade Agreement nations.
FERC issued its Notice of Application for the Jacksonville Project on February 13, 2017. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final environmental impact statement (EIS) for the Jacksonville Project. This notice identifies the FERC staff's planned schedule for completion of the final EIS for the Jacksonville Project, which is based on an issuance of the draft EIS in November 2018. The forecasted schedule for both the draft and final EIS is based upon Eagle LNG providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of project's progress.
On December 3, 2014, the Commission staff granted Eagle LNG's request to use FERC's pre-filing environmental review process and assigned the Jacksonville Project Docket No. PF15-7-000. On February 24, 2015, the Commission issued a
The U.S. Army Corps of Engineers, the U.S. Coast Guard, the U.S. Department of Transportation, and the U.S. Department of Energy are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents via email. Go to
Additional information about the Jacksonville Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On July 13, 2016, Annova LNG Common Infrastructure, LLC; Annova LNG Brownsville A, LLC; Annova LNG Brownsville B, LLC; and Annova LNG Brownsville C, LLC (collectively, Annova) filed an application in Docket No. CP16-480-000, section 3(a) of the Natural Gas Act (NGA) and Part 153 of the Commission's Regulations, requesting authorization to site, construct, and operate a natural gas liquefaction and liquefied natural gas (LNG) export facility, located on the Brownsville Ship Channel (BSC) in Cameron County, Texas. The proposed project is known as the Annova LNG Brownsville Project (Project) and would receive natural gas from a third-party pipeline, create and store LNG, and load up to 6.95 million tonnes per annum of LNG onto carriers for export to overseas markets. On February 20, 2014, in Order No. 3394, the U.S. Department of Energy, Office of Fossil Energy, granted to Annova a long-term, multi-contract authorization to export LNG to Free Trade Agreement nations.
On July 27, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued its Notice of Application for the Project. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
The proposed Project would be located on about 364 acres of an approximately 731-acre site on the southern bank of the BSC at mile marker 8.2. The site is owned by the Port of Brownsville and Annova has entered into a Lease Option Agreement for possible use of the site. The BSC has direct access to the Gulf of Mexico via the Brazos Santiago Pass.
The Project would include six liquefaction trains with a total capacity of 6 million tons per year of LNG. The natural gas delivered to the site would be treated, liquefied, and stored on site in two single containment LNG storage tanks. The Project would include two principal parts, the LNG facilities and associated marine facilities. The LNG facilities would be designed to receive 0.9 billion cubic feet per day of natural gas via a planned intrastate pipeline; treat the gas to remove constituents that affect the cryogenic process; liquefy the gas; and store the LNG in storage tanks prior to loading for shipment to overseas markets. The marine facilities would allow access to the site and LNG loading onto LNG carriers.
On March 27, 2015, the Commission staff granted Annova's request to use the FERC's Pre-filing environmental review process and assigned the Annova LNG Brownsville Project Docket No. PF15-15-000. On July 23, 2015, the Commission issued a
The NOI was issued during the pre-filing review of the Project in Docket No. PF15-15-000 and was sent to federal, state, and local government agencies; elected officials; affected landowners; environmental and public interest groups; Native American tribes and regional organizations; commentors and other interested parties; and local libraries and newspapers. Major issues raised during scoping include: The purpose and need for the Project; impacts on recreational areas and users; impacts on the socioeconomic conditions of the area; impacts on wildlife, wetlands, and vegetation; and impacts on sensitive areas such as the Bahia Grande wetland restoration area and the Padre Island Seashore.
The U.S. Army Corps of Engineers; U.S. Coast Guard; U.S. Department of Transportation; U.S. Environmental Protection Agency; U.S. Fish and Wildlife Service; National Park Service; the National Oceanic and Atmospheric Administration, National Marine Fisheries Service; Federal Aviation Administration; and U.S. Department of Energy are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i. Deadline for filing comments, motions to intervene and protests, is 30 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, and recommendations, using the Commission's eFiling system at
j.
k. This notice is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE, Washington, DC 20426. The filing may also be viewed on the Commission's website at
l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
m.
n.
On June 19, 2015, Gulf LNG Liquefaction Company, LLC (Gulf Liquefaction), Gulf LNG Energy, LLC (Gulf Energy), and Gulf LNG Pipeline LLC (Gulf Pipeline) filed an application pursuant to section 3(a) of the Natural Gas Act (NGA) and Part 153 of the Commission's regulations, requesting authorization to construct and operate the Gulf LNG Liquefaction Project (Project) at Gulf Energy's liquefied natural gas terminal located near Pascagoula, Jackson County, Mississippi. The Project consists of new natural gas liquefaction and export facilities. Additionally, within the same application, Gulf Pipeline requested, pursuant to section 7(c) of the NGA and Part 157 of the Commission's regulations, to make modifications to the terminal's sendout pipeline to allow for bi-directional flow. These facilities will enable Gulf Liquefaction to liquefy and export about 11 million metric tons of LNG per year.
In accordance with Title 41 of the Fixing America's Surface Transportation Act, enacted on December 4, 2015, agencies are to publish completion dates for all federal environmental reviews and authorizations. This notice identifies the Commission's anticipated schedule for issuance of the final order for the Project, which is based on the anticipated date of issuance of the final Environmental Impact Statement. Accordingly, we currently anticipate issuing a final order for the Project no later than:
If a schedule change becomes necessary for the final order, an additional notice will be provided so that interested parties and government agencies are kept informed of the Project's progress.
On September 4, 2015, Venture Global Calcasieu Pass, LLC filed an application in Docket No. CP15-550-000, pursuant to section 3 of the Natural Gas Act (NGA) and Part 153 of the Commission's regulations, for authorization to site, construct, and operate a new liquefied natural gas (LNG) export terminal and associated facilities along the Calcasieu Ship Channel in Cameron Parish,
In accordance with Title 41 of the Fixing America's Surface Transportation Act, enacted on December 4, 2015, agencies are to publish completion dates for all federal environmental reviews and authorizations. This notice identifies the Commission's anticipated schedule for issuance of the final order for the Project, which is based on the anticipated date of issuance of the final Environmental Impact Statement. Accordingly, we currently anticipate issuing a final order for the Project no later than:
If a schedule change becomes necessary for the final order, an additional notice will be provided so that interested parties and government agencies are kept informed of the Project's progress.
This notice identifies the Federal Energy Regulatory Commission (FERC) staff's revised schedule for the completion of the environmental impact statement (EIS) for Driftwood LNG LLC's liquefied natural gas facility and for Driftwood Pipeline LLC's pipeline facilities, collectively referred to as the Driftwood LNG Project. The first notice of schedule, issued on December 22, 2017, identified October 12, 2018 as the final EIS issuance date. Staff has revised the schedule for issuance of the final EIS, based on an issuance of the draft EIS in September 2018. The forecasted schedule for both the draft and final EIS is based upon Driftwood LNG LLC and Driftwood Pipeline LLC providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary, an additional notice will be provided so that the relevant agencies are kept informed of the project's progress.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Take notice that the Commission received the following electric rate filings:
Description: § 205(d) Rate Filing: SA 697 4th Revised—NITSA with the City of Great Falls to be effective 11/1/2018.
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
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On September 21, 2017, Jordan Cove Energy Project, L.P. filed an application in Docket No. CP17-495-000, pursuant to section 3 of the Natural Gas Act (NGA) and Part 153 of the Commission's regulations, for authorization to site, construct and operate a liquefied natural gas export terminal and associated facilities on the bay side of the North Spit of Coos Bay in unincorporated Coos County, Oregon. On the same day, Pacific Connector Gas Pipeline, LP filed an application in Docket No. CP17-494-000 requesting a Certificate of Public Convenience and Necessity, pursuant to section 7(c) of the NGA and Parts 157 and 284 of the Commission's regulations, to construct, operate, and maintain an approximately 220-mile-long natural gas pipeline to be located in Klamath, Jackson, Douglas, and Coos Counties, Oregon. The combined proposed projects, known as the Jordan Cove Project (Project), would liquefy and export about 7.8 million metric tons of natural gas per annum.
In accordance with Title 41 of the Fixing America's Surface Transportation Act, enacted on December 4, 2015, agencies are to publish completion dates for all federal environmental reviews and authorizations. This notice identifies the Commission's anticipated schedule for issuance of the final order for the Project, which is based on the anticipated date of issuance of the final Environmental Impact Statement. Accordingly, we currently anticipate issuing a final order for the Project no later than:
If a schedule change becomes necessary for the final order, an additional notice will be provided so that interested parties and government agencies are kept informed of the Project's progress.
On June 29, 2017, Freeport LNG Development, L.P. (Freeport LNG) filed an application in Docket No. CP17-470-000 requesting an Authorization for siting, construction, and operation of a liquefied natural gas (LNG) facility pursuant to Section 3 of the Natural Gas Act. The proposed project is known as the Train 4 Project (Project), and would increase Freeport LNG's ability to liquefy and export by 5.1 million metric tonnes per annum of natural gas at the existing Freeport LNG terminal.
On July 14, 2017, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
The Project would add a fourth liquefaction unit (Train 4) and associated infrastructure and utilities to Freeport LNG's terminal on Quintana Island in Brazoria County, Texas. The Project would also expand the Pretreatment Plant located about 4 miles north of the terminal in Freeport, Texas and includes a new pipeline to connect various facilities. The Project would be located adjacent to the facilities authorized and currently under construction for the Phase II Modification Project (Docket No. CP12-29-000) and Liquefaction Project (Docket No. CP12-509-000), which comprises three liquefaction trains and related facilities. The proposed fourth liquefaction train would be within the existing Freeport LNG Terminal site and the additions to the Pretreatment Plant would be within the current construction footprint. The proposed 10.6-mile-long, 42-inch-diameter pipeline would connect the existing Stratton Ridge meter station, the Pretreatment Plant, and the Freeport LNG Liquefaction Plant.
On August 19, 2015 the Commission issued a
The U.S. Department of Transportation, U.S. Environmental Protection Agency, and U.S. Department of Energy are cooperating agencies in the preparation of the EA.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
The eLibrary link on the FERC website also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rule makings.
On May 5, 2016, Rio Grande LNG, LLC (RG LNG) filed an application in Docket No. CP16-454-000 requesting authorization pursuant to Section 3(a) of the Natural Gas Act (NGA) to construct and operate liquefied natural gas (LNG) export facilities. On the same day, Rio Bravo Pipeline Company, LLC (RB Pipeline) filed an application in Docket No. CP16-455-000, requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the NGA to construct, operate, and maintain certain natural gas pipeline facilities. The combined projects, collectively referred to as the Rio Grande LNG Project, would provide gas and processing to produce up to 27 million tons per annum of LNG for export. On August 17, 2016, in Order No. 3869, the U.S. Department of Energy, Office of Fossil Energy, granted to RG LNG a long-term, multi-contract authorization to export LNG to Free Trade Agreement nations.
On May 19, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued its Notice of Application for the project. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final Environmental Impact Statement (EIS) for the Rio Grande LNG Project. This instant notice identifies the FERC staff's planned schedule for completion of the final EIS for the project, which is based on an issuance of the draft EIS in October 2018. The forecasted schedule for both the draft and final EIS is based upon RG LNG and RB Pipeline providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the project's progress.
RG LNG and RB Pipeline, collectively the Rio Grande Developers (RG Developers), propose to construct and operate natural gas pipelines and liquefaction facilities in Jim Wells, Kleberg, Kenedy, Willacy, and Cameron Counties, Texas. The Rio Bravo Pipeline would include two new parallel 42-inch-diameter natural gas pipelines, each about 135.5 miles long, capable of transporting 4.5 billion cubic feet per day of natural gas. In addition, a 2.4-mile-long header system at the origin of the pipelines would interconnect with existing natural gas transmission pipelines. The pipeline facilities would include three new compressor stations in Kleberg, Kenedy, and Cameron Counties and two new interconnect booster stations in Kenedy County.
The Rio Grande LNG Terminal would be located on 750.4 acres of an approximately 1,000-acre site along the Brownsville Ship Channel about 5.5 miles inland from the channel entrance, in Cameron County, Texas. The terminal would include six liquefaction trains capable of producing 27 million tons per annum of LNG; marine facilities, including two LNG berths, a turning basin, and a material offloading facility; truck loading and unloading facilities for LNG and natural gas liquids; and four LNG storage tanks. If approved, RG Developers would construct the project in stages. Operation of the first liquefaction train, and one of the two parallel pipelines, is proposed to begin during the fourth quarter of 2021; operation of the full project is proposed for early 2025.
On April 13, 2015, the Commission staff granted the RG Developers' request to use the FERC's Pre-filing environmental review process. On July 23, 2015, the Commission issued a
The U.S Coast Guard, U.S. Department of Energy, U.S Department of Transportation, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, National Marine Fisheries Service, National Park Service, and Federal Aviation Administration are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Willis Lateral Project involving construction and operation of facilities by Gulf South Pipeline Company, LP (Gulf South) in Montgomery and San Jacinto Counties, Texas. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies about issues regarding the project. The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires the Commission to discover concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of the issues to address in the EA. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on October 1, 2018.
You can make a difference by submitting your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Commission staff will consider and address all filed comments during the preparation of the EA.
If you sent comments on this project to the Commission before the opening of this docket on July 13, 2018, you will need to file those comments in Docket No. CP18-525-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law.
Gulf South provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC website (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP18-525-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Gulf South proposes to construct, operate, and maintain various facilities in connection with its proposed Willis Lateral Project located in Montgomery and San Jacinto Counties, Texas. According to Gulf South, the Willis Lateral Project would provide about 200 million standard cubic feet of natural gas per day to the existing Goodrich Compressor Station.
The Willis Lateral Project would consist of the following facilities:
• Approximately 19 miles of 24-inch-diameter pipeline;
• addition of a new 15,876 horsepower turbine engine to the existing Goodrich Compressor Station and construction of a new Meter and Regulator (M&R) station;
• a tie-in and launcher facility (including a pig
• a M&R station at the terminus of the project (including a pig receiver, filter separators with a liquid storage tank, and ancillary equipment); and
• a mainline valve facility.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb about 465 acres of land for the aboveground facilities and the pipeline. Following construction, Gulf South would maintain about 141 acres of land for permanent operation of the project's facilities; the remaining acreage would be restored and would revert to former uses. About 91 percent of the proposed pipeline route parallels existing pipeline, utility, or road rights-of-way.
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present Commission staffs' independent analysis of the issues. The EA will be available in the public record through eLibrary
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that information related to this environmental review is sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
A
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings
Finally, public sessions or site visits will be posted on the Commission's calendar located at
On June 28, 2018, Corpus Christi Liquefaction Stage III, LLC and Corpus Christi Liquefaction, LLC (collectively with Cheniere Corpus Christi Pipeline, L.P. referred to as Cheniere) filed an application in Docket No. CP18-512-000 requesting an authorization for siting, construction, and operation of a liquefied natural gas (LNG) export facility pursuant to Section 3(a) of the Natural Gas Act (NGA). On the same day, Cheniere Corpus Christi Pipeline, L.P. filed an application in Docket No. CP18-513-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the NGA to construct, operate, and maintain certain natural gas pipeline facilities. Combined, the proposed project is known as the Stage 3 Project (Project) and would provide gas and processing to produce up to 11.45 million tonnes per annum of LNG for export.
On July 12, 2018, the Federal Energy Regulatory Commission (FERC or Commission) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for completion of the EA for the Project. The forecasted schedule for the EA is based upon Cheniere providing complete and timely responses to any data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Cheniere proposes to install seven mid-scale liquefaction trains and one new LNG storage tank expanding the previously authorized and currently under construction Corpus Christi Liquefaction Project in Nueces County, Texas. The proposed LNG facilities would be located primarily within areas previously disturbed for construction and/or operation of the Corpus Christi Liquefaction Project. Cheniere would also construct a new 21-mile-long, 42-inch-diameter natural gas pipeline from the recently completed Sinton Compressor Station (FERC Docket No. CP12-508-000) to the proposed Stage 3 liquefaction facilities, all of which would be located within Nueces County, Texas. The Project would also include the addition of two compressor units totaling approximately 44,000 horsepower at the Sinton Compressor Station. No new marine facilities would be installed as part of the Project; however, Cheniere anticipates that an annual increase of 100 LNG carriers would utilize the LNG terminal during operation of the Project.
On June 9, 2015, the Commission staff granted Cheniere's request to use the FERC's pre-filing environmental review process and assigned the Stage 3 Project Docket No. PF15-26-000. On August 17, 2015, the Commission issued a
The U.S. Department of Transportation Pipeline and Hazardous Materials Administration, U.S. Coast Guard, U.S. Department of Energy, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and U.S. Environmental Protection Agency are cooperating agencies in the preparation of the EA.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the Sweden Valley Project (Project), proposed by Dominion Energy Transmission, Inc. (Dominion) in the above-referenced docket. The Project is designed to provide 120 million cubic feet per day of firm transportation service from an existing point of interconnection located on Dominion's
The EA assesses the potential environmental effects of constructing and operating the Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the Project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The U.S. Army Corps of Engineers (USACE) participated as cooperating agency in the preparation of the EA. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis. The USACE would adopt the EA to fulfill their agency's NEPA obligations and would use the EA and supporting documentation to consider the issuance of Clean Water Act Section 404 permit.
The Sweden Valley Project would consist of the following actions in Ohio:
• Install approximately 1.7 miles of 20-inch-diameter pipeline lateral in Tuscarawas County;
• Re-wheel the compressors on three-existing centrifugal compression sets at Dominion's existing Newark Compressor Station in Licking County;
• Construct a new Metering and Regulation (M&R) site in Tuscarawas County; and
• Install a new pig launcher/receiver on the TL-653 OH Pipeline Lateral in Tuscarawas County.
In Pennsylvania, the Project would include:
• Installation of approximately 3.2 miles of 24-inch-diameter pipeline looping in Greene County;
• Installation of regulation equipment at the South Bend Compressor Station in Armstrong County;
• Installation of M&R equipment at a new interconnect in Clinton County; and
• Installation of new mainline gate assemblies on the TL-654 Loop in Greene County.
The Commission mailed a copy of the
Any person wishing to comment on the EA may do so. Your comments should focus on EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC, on or before 5:00 p.m. Eastern Time on October 1, 2018.
For your convenience, there are three methods you can use to file your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP18-45-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
On November 14, 2016, UGI LNG, Inc. filed an application in Docket No. CP17-14-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the Natural Gas Act to construct and operate certain
On November 29, 2016, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
UGI LNG, Inc. proposes to expand its existing Temple LNG truck loading facility by constructing two additional trailer loading/unloading racks. The new facilities would consist of two racks with scales, trailer loading skid, pump skid, transfer piping, and associated equipment. The Project would also include constructing a new driveway connecting the expansion to Willow Creek Road. The Project is projected to increase truck volumes from an average of one to three trucks per day to an average of three to six trucks per day.
On January 23, 2017, the Commission issued a
The U.S. Department of Transportation is a cooperating agencies in the preparation of the EA.
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On September 21, 2017, Pacific Connector Gas Pipeline LP (Pacific Connector) and Jordan Cove Energy Project L.P. (Jordan Cove) filed applications in Docket Nos. CP17-494-000 and CP17-495-000, respectively. Pacific Connector is requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the Natural Gas Act (NGA) to construct, operate, and maintain certain natural gas pipeline facilities. Jordan Cove is requesting authorization pursuant to Section 3(a) of the NGA to construct and operate liquefied natural gas (LNG) export facilities. The proposed projects are collectively referred to as the Jordan Cove LNG Project (Project). Jordan Cove's LNG facilities would be designed to liquefy about 7.8 million metric tons of natural gas per annum for export to markets across the Pacific Rim. On August 20, 2015, in Order No. 3698, the U.S. Department of Energy, Office of Fossil Energy, granted to Jordon Cove a long-term, multi-contract authorization to export LNG to Free Trade Agreement nations.
On October 5, 2017, the Federal Energy Regulatory Commission (FERC or Commission) issued a Notice of Applications for the Projects. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final Environmental Impact Statement (EIS) for the Projects. This instant notice identifies the FERC staff's planned schedule for completion of the final EIS for the Projects, which is based on an issuance of the draft EIS in February 2019. The forecasted schedule for both the draft and final EIS is based upon Jordon Cove and Pacific Connector providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Jordan Cove proposes to construct and operate an LNG export terminal on the North Spit of Coos Bay in Coos County, Oregon. The terminal would include five liquefaction trains and associated equipment, two full-containment LNG storage tanks, an LNG transfer line, LNG ship loading facilities, a marine slip, access channel, and modifications to the Coos Bay Navigation Channel.
Pacific Connector proposes to construct and operate an approximately 230-mile-long, 36-inch-diameter interstate natural gas transmission pipeline and associated aboveground
On February 10, 2017, the Commission staff granted Jordan Cove and Pacific Connector's requests to use the FERC's Pre-filing environmental review process and assigned them jointly to Docket No. PF17-4-000. On June 9, 2017, the Commission issued a
The NOI was issued during the pre-filing review of the Projects in Docket No. PF17-4-000 and was sent to federal, state, and local government agencies; elected officials; affected landowners; environmental and public interest groups; Native American tribes and regional organizations; commentors and other interested parties; and local libraries and newspapers. Major issues raised during scoping include purpose and need, property rights, use of eminent domain, reliability and safety, cumulative impacts, cultural resources, threatened and endangered species, water resources, vegetation, and alternatives.
The U.S. Forest Service, Bureau of Land Management, Bureau of Reclamation, U.S. Army Corps of Engineers, U.S. Coast Guard, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, National Marine Fisheries Service, U.S. Department of Energy, Pipeline and Hazardous Materials Safety Administration, and the Coquille Indian Tribe are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On April 17, 2017, Alaska Gasline Development Corporation filed an application in Docket No. CP17-178-000, pursuant to section 3 of the Natural Gas Act and Part 153 of the Commission's regulations, for authorization to site, construct, and operate a new liquefied natural gas (LNG) export terminal and associated facilities on the eastern shore of Cook Inlet in the Nikiski area of the Kenai Peninsula in Alaska, and to construct approximately 871 miles of natural gas pipeline and associated facilities, all within the State of Alaska. The proposed project, known as the Alaska LNG (Project), would liquefy and export up to 20.0 million metric tons per annum of LNG.
In accordance with Title 41 of the Fixing America's Surface Transportation Act, enacted on December 4, 2015, agencies are to publish completion dates for all federal environmental reviews and authorizations. This notice identifies the Commission's anticipated schedule for issuance of the final order for the Project, which is based on the anticipated date of issuance of the final Environmental Impact Statement. Accordingly, we currently anticipate issuing a final order in the Project no later than:
If a schedule change becomes necessary for the final order, an additional notice will be provided so that interested parties and government agencies are kept informed of the Project's progress.
On February 28, 2017, Venture Global Plaquemines LNG, LLC (Plaquemines LNG) filed an application in Docket No. CP17-66-000 requesting authorization pursuant to Section 3(a) of the Natural Gas Act (NGA) to construct and operate liquefied natural gas (LNG) export facilities. On the same day, Venture Global Gator Express, LLC (Gator Express Pipeline) filed an application in Docket No. CP17-67-000, requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the NGA to construct, operate, and maintain certain natural gas pipeline facilities. Combined, the proposed project is known as the Plaquemines LNG and Gator Express Pipeline Project (Project) and would provide gas and processing to produce up to 20.0 million tonnes per annum of LNG for export. On July 21, 2016, in Order No. 3866, the U.S. Department of Energy, Office of Fossil Energy, granted to Plaquemines LNG authorization to export LNG to Free Trade Agreement nations.
On March 13, 2017, the Federal Energy Regulatory Commission (FERC or Commission) issued its Notice of Application for the Project. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final Environmental Impact Statement (EIS) for the Plaquemines LNG and Gator Express Pipeline Project. This
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Plaquemines LNG plans to construct an LNG terminal on a 632-acre site on the Mississippi River in Plaquemines Parish, Louisiana. Gator Express Pipeline plans to construct two parallel 42-inch-diameter gas lateral pipelines totaling approximately 26.8 miles, also in Plaquemines Parish, Louisiana. These pipelines would connect the LNG terminal to the existing interstate natural gas grid. Each pipeline would have a nominal gas supply capability of 1.97 standard billion cubic feet per day. The Project would consist of a liquefaction plant, aboveground storage tanks, marine loading berthing docks, a utility dock, and air-cooled electric power generation facilities, in addition to the two lateral pipelines.
On July 2, 2015, the Commission staff granted Plaquemines LNG and Gator Express Pipeline's request to use the FERC's pre-filing environmental review process and assigned the Plaquemines LNG and Gator Express Pipeline Project Docket No. PF15-27-000. On October 5, 2015, the Commission issued a
The NOI and pipeline modification letter were issued during the pre-filing review of the Project in Docket No. PF15-27-000 was sent to federal, state, and local government agencies; elected officials; affected landowners; environmental and public interest groups; Native American tribes and regional organizations; commentors and other interested parties; and local libraries and newspapers. Major issues raised during scoping include potential impacts to the river floodway and the flood protection levee from terminal construction, construction and wetland fill in the Coastal Zone, saltwater intrusion from marsh pipeline construction, impacts on productivity of Barataria Bay estuary, greenhouse gas emissions from project operation, and noise and light pollution impacts on nearby sensitive areas.
The U.S. Army Corps of Engineers, U.S. Coast Guard, U.S. Department of Energy, U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration, and U.S. Environmental Protection Agency are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On March 31, 2016, Texas LNG Brownsville LLC (Texas LNG) filed an application in Docket No. CP16-116-000 requesting authorization pursuant to Section 3(a) of the Natural Gas Act to site, construct, modify, and operate liquefied natural gas (LNG) export facilities located on the Brownsville Ship Channel in Cameron County, Texas. The proposed project is known as the Texas LNG Project (Project) and would include a new LNG export terminal capable of producing up to 4 million tonnes per annum of LNG for export. The terminal would receive natural gas to the export facilities from a third-party intrastate pipeline. On September 24, 2015, in Order No. 3716, the U.S. Department of Energy, Office of Fossil Energy, granted to Texas LNG a long-term, multi-contract authorization to export LNG to Free Trade Agreement nations.
On April 14, 2016, the Federal Energy Regulatory Commission (FERC or Commission) issued its Notice of Application for the Project. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final Environmental Impact Statement (EIS) for the Texas LNG Project. This instant notice identifies the FERC staff's planned schedule for completion of the final EIS for the Project, which is based on an issuance of the draft EIS in October 2018. The forecasted schedule for both the draft and final EIS is based upon Texas LNG providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Texas LNG's proposed facilities include two liquefaction trains, each capable of producing 2 million tonnes per annum, one new LNG storage tank, and a single marine berth capable of accommodating LNG carriers with capacities up to 180,000 cubic meters. The Project would be constructed on about 285 acres of a 625-acre parcel of land, on the north side of the Brownsville Ship Channel near mile marker 4. An additional 26.5 acres would be located outside of the 625-acre parcel to provide deepwater access to the Brownsville Ship Channel.
On April 14, 2015, the Commission staff granted Texas LNG's request to use the FERC's Pre-filing environmental review process and assigned the Texas LNG Project Docket No. PF15-14-000. On July 23, 2015, the Commission issued a
The NOI was issued during the pre-filing review of the project in Docket No. PF15-14-000 and was sent to federal, state, and local government agencies; elected officials; affected landowners; environmental and public interest groups; Native American tribes and regional organizations; commenters and other interested parties; and local libraries and newspapers. Major issues raised during scoping include threatened and endangered species, LNG safety, land use, water quality, air quality, and cumulative impacts.
The U.S. Department of Energy, U.S. Coast Guard, U.S. Department of Transportation, U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, National Park Service, National Marine Fisheries Service, and Federal Aviation Administration are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
This notice identifies the Federal Energy Regulatory Commission (FERC) staff's revised schedule for the completion of the environmental impact statement (EIS) for the Alaska LNG Project (Project). The first notice of schedule, issued on March 12, 2018, identified December 9, 2019 as the final EIS issuance date. Staff has revised the schedule for issuance of the final EIS, based on an issuance of the draft EIS in February 2019. The forecasted schedule for both the draft and final EIS is based upon the Alaska Gasline Development Corporation providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On June 19, 2015, Gulf LNG Liquefaction Company, LLC and Gulf LNG Energy, LLC, and Gulf LNG Pipeline, LLC (collectively referred to as Gulf LNG) filed an application with the Federal Energy Regulatory Commission (FERC or Commission) in Docket No. CP15-521-000 pursuant to section 3(a) and 7(c) of the Natural Gas Act, requesting authorization to construct and operate the Gulf LNG Liquefaction Project (Project) at Gulf Energy's existing import liquefied natural gas (LNG) terminal in Jackson County, Mississippi. Within the same application, Gulf LNG Pipeline, LLC proposes to make modifications to the terminal's send-out pipeline to allow for bi-directional flow. The Project would expand the terminal to enable it to liquefy approximately 11 million metric tons of LNG per year for export. On June 15, 2012, in Order No. 3104, the U.S. Department of Energy, Office of Fossil Energy, granted to Gulf LNG authorization to export LNG by vessel from the terminal to Free Trade Agreement nations. On August 31, 2012, Gulf LNG filed an application with the U.S. Department of Energy, Office of Fossil Energy, for a long-term, multi-contract authorization to export LNG to Non-Free Trade Agreement nations. A decision by the U.S. Department of Energy, Office of Fossil Energy is still pending.
FERC issued its Notice of Application for the Project on July 1, 2015. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final environmental impact statement (EIS) for the Project. This notice identifies the FERC staff's planned schedule for completion of the final EIS for the Gulf LNG Liquefaction Project, which is based on an issuance of the draft EIS in November 2018. The forecasted schedule for both the draft and final EIS is based upon Gulf LNG providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of project's progress.
On May 21, 2014, the Commission staff granted Gulf LNG's request to use FERC's pre-filing environmental review process and assigned the Gulf LNG Liquefaction Project Docket No. PF13-4-000. On July 31, 2014, the Commission issued a
The U.S. Army Corps of Engineers; U.S. Coast Guard; U.S. Department of Energy, Office of Fossil Energy; U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration; U.S. Fish and Wildlife Service; National Oceanic and Atmospheric Administration, National Marine Fisheries Service; and U.S. Environmental Protection Agency are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of
Additional information about the Gulf LNG Liquefaction Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
On November 29, 2016, Port Arthur LNG, LLC and PALNG Common Facilities Company, LLC (collectively referred to as PALNG) filed an application in Docket No. CP17-20-000 requesting authorization pursuant to Section 3(a) of the Natural Gas Act (NGA) to construct and operate liquefied natural gas (LNG) export facilities. On the same day, Port Arthur Pipeline, LLC (PAPL) filed an application in Docket No. CP17-21-000, requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the NGA to construct, operate, and maintain certain natural gas pipeline facilities for its Texas Connector Project. On October 16, 2017, PAPL filed an application in Docket No. CP18-7-000, requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the NGA to construct, operate, and maintain certain natural gas pipeline facilities for its Louisiana Connector Project. The combined projects, collectively referred to as the Port Arthur Liquefaction and Pipeline Projects (Projects), would provide gas and processing to produce up to 13.5 million tonnes per annum of LNG for export. On August 20, 2015, in Order No. 3698, the U.S. Department of Energy, Office of Fossil Energy, granted to Port Arthur LNG, LLC a long-term, multi-contract authorization to export LNG to Free Trade Agreement nations.
On December 13, 2016, and October 30, 2017, the Federal Energy Regulatory Commission (FERC or Commission) issued its Notices of Application for the Projects. Among other things, these notices alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final Environmental Impact Statement (EIS) for the Projects. This instant notice identifies the FERC staff's planned schedule for completion of the final EIS for the Projects, which is based on an issuance of the draft EIS in September 2018. The forecasted schedule for both the draft and final EIS is based upon PALNG and PAPL providing complete and timely responses to any future data requests. In addition, the schedule assumes that the cooperating agencies will provide input on their areas of responsibility on a timely basis.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Projects' progress.
PALNG's proposed facilities consist of an export liquefaction termination that includes two LNG liquefaction trains, three LNG storage tanks, a refrigerant storage area and truck unloading facilities, a condensate storage area and truck loading facilities, a construction dock, a marine offloading facility, a pioneer dock, and two marine berths capable of accommodating two LNG carriers of up to 266,000 cubic meters each. PALNG's proposed facilities would occupy approximately 898 acres of a 2,900-acre site on the western shore of the Port Arthur Canal, about 5 miles south of Port Arthur, Texas and 6 miles north of Sabine, Texas.
PAPL's Texas Connector Project would consist of 26.6 miles of 42-inch-diameter pipeline entering the liquefaction facility from the north; 7.6 miles of 42-inch-diameter pipeline entering the liquefaction facility from the south; 4.7 miles of lateral pipelines; two compressor stations providing a total of approximately 31,600 horsepower of compression; six meter stations; eight pig launchers and receivers; and one mainline valve. These facilities would be located in in Jefferson and Orange Counties, Texas and Cameron Parish, Louisiana.
PAPL's Louisiana Connector Project would consist of 130.8 miles of 42-inch-diameter pipeline; 0.5 mile of lateral pipelines; one compressor station providing a total of approximately 89,900 horsepower of compression; nine meter stations; nine mainline valves; and four pig launchers/receivers in Jefferson and Orange Counties, Texas and Cameron, Calcasieu, Beauregard, Allen, Evangeline, and St. Landry Parishes, Louisiana.
On March 31, 2015, the Commission staff granted PALNG's and PAPL's requests to use the FERC's Pre-filing environmental review process for the Liquefaction and Texas Connector Projects. On June 24, 2015, the Commission issued a
The two referenced Notices of Intent were issued during the respective pre-filing review of the Projects, and were sent to federal, state, and local government agencies; elected officials; affected landowners; environmental and public interest groups; Native American tribes and regional organizations; commentors and other interested
The U.S. Coast Guard; U.S. Department of Energy; U.S. Department of Transportation, Pipeline and Hazardous Materials Safety Administration; U.S. Army Corps of Engineers, Galveston District; and U.S. Environmental Protection Agency are cooperating agencies in the preparation of the EIS.
In order to receive notification of the issuance of the EIS and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Projects is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Understanding Decisions and Barriers about PrEP Use and Uptake Among Men Who Have Sex With Men 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 October 10, 2017 to obtain comments from the public and affected agencies. CDC did not receive 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
(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
Understanding Decisions and Barriers about PrEP Use and Uptake Among Men Who Have Sex With Men—New—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, Centers for Disease Control and Prevention (CDC).
This project involves original, formative research toward improving the uptake and adherence necessary to achieve efficacious levels of protection offered by pre-exposure prophylaxis (PrEP) among the most highly affected population. HIV incidence and prevalence are higher among gay, bisexual, and other men who have sex with men (MSM) than any other risk group in the U.S. Approximately half of all diagnosed HIV infections are among gay, bisexual, and other MSM. The FDA-approved PrEP regimen, daily Tenofovir/emtricitabine (aka Truvada®), has shown greater than 90% efficacy in reducing HIV infections among MSM when taken in accordance with its prescribed daily schedule. In 2014, CDC published clinical practice guidelines for the use of PrEP in high-risk populations, and began national promotion of PrEP as an effective HIV prevention strategy for MSM. While hailed as an HIV-prevention “game-changer,” in reality PrEP uptake has been slow. Some studies report a wide range in the percentages of MSM (28-81%) interested in PrEP. In addition, other studies indicate that specific cities have alarmingly low rates of PrEP uptake (for example, the estimate for Atlanta is 2%). Moreover, recent survey findings have shown that less than 1 in 10 MSM on PrEP are adherent to their PrEP regimen; adherence is necessary to optimize efficacy.
In order to develop effective programs that increase PrEP uptake among MSM at greatest risk for HIV, studies are needed to better understand the decisions men make about their HIV prevention needs. Qualitative methods will be used to explore in-depth the “Whys” and “How's” of MSM's decisions to refuse or use PrEP, and barriers and challenges to successfully undertake a PrEP medication regimen. Quantitative methods will be used to understand the HIV risk behavior context, attitudes towards PrEP, health seeking behavior, and acceptability of new modes of PrEP delivery (that differ from current recommendation of daily PrEP and that are in development or discussion) and emerging biomedical HIV prevention options.
The purpose of this research is to explore decisions, barriers, and facilitators about PrEP use among MSM: (1) Who were offered PrEP but refused it; (2) who were interested in or started a PrEP regimen but did not follow through; and (3) who are eligible for PrEP per CDC guidelines (report condomless anal sex within last three months) but not currently on PrEP.
This study will provide insight on individual and community level PrEP-related decision-making, and identify barriers and facilitators to successful PrEP initiation and PrEP acceptability. Findings will improve programming, in line with the CDC Division of HIV/AIDS Prevention goal of high-impact prevention to reduce HIV infections in the U.S. Findings will assist the CDC and frontline public health programs in identifying and designing programs and intervention approaches that encourage, support, and maintain appropriate PrEP uptake among eligible MSM and anticipate future HIV prevention needs, including anticipated changes in PrEP delivery.
The total annual burden hours are 335. There are no other costs to the respondents other than their time to participate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period; withdrawal.
The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) announces the withdrawal of the notice published under the same title on August 22, 2018 for public comment.
Applicable September 7, 2018.
Information Collection Review Office,
On August 22, 2018 CDC published a notice in the
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 National Healthcare Safety Network (NHSN). NHSN is a public health surveillance system that collects, analyzes, reports, and makes available data for monitoring, measuring, and responding to healthcare associated infections (HAIs), antimicrobial use and resistance, blood transfusion safety events, and the extent to which healthcare facilities adhere to infection prevention practices and antimicrobial stewardship.
CDC must receive written comments on or before November 6, 2018.
You may submit comments, identified by Docket No. CDC-2018-0042 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 Leroy A. Richardson, 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.
National Healthcare Safety Network (NHSN)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
NHSN is a public health surveillance system that collects, analyzes, reports, and makes available data for monitoring, measuring, and responding to healthcare associated infections (HAIs), antimicrobial use and resistance, blood transfusion safety events, and the extent to which healthcare facilities adhere to infection prevention practices and antimicrobial stewardship. The data collected will be used to inform and detect changes in the epidemiology of adverse events resulting from new and current medical therapies and changing risks. NHSN is comprised of six components: Patient Safety, Healthcare Personnel Safety, Biovigilance, Long-Term Care Facility, Outpatient Procedure, and Dialysis.
Changes were made to 33 data collection facility surveys with this new ICR. CDC revised three annual facility surveys for the Patient Safety component for Hospitals, Long-Term Acute Care Facilities, and Inpatient Rehabilitation Facilities. CDC's revisions clarify the reporting requirements for the data collected on fungal testing, facility locations, and laboratory testing locations. Additionally, corresponding response options for these questions have been revised to include updated testing methods used by facilities to capture current HAI specific data specification requirements for NHSN. New required questions have been added to all Patient Safety component surveys. The new questions are designed to provide data on surveillance processes, policies, and standards that are used by reporting facilities to ensure that when an event is detected, the facility has the appropriate mechanism to conduct complete reporting. The Hospital Annual Survey added new required questions to provide data about neonatal antimicrobial stewardship practices because the focus of stewardship efforts in neonatology differ from the focus in adult and pediatric practice. Questions were removed and replaced on all three
CDC is introducing a new optional survey form that is designed to be completed by state and local health departments that participate in HAI surveillance and prevention activities. This new form will provide data on legal and regulatory requirements that are pertinent to HAI reporting. CDC plans to include data the health department survey in its annual National and State Healthcare-Associated Infection Progress Report. The report helps identify the progress in HAI surveillance and prevention at the state and national levels. Data about the extent to which state health departments have validated HAI data that healthcare facilities in their jurisdiction report to NHSN and the extent of state and local health department HAI reporting requirements are important data for users of CDC's HAI Progress Report to consider when they are reviewing and interpreting data in the report.
NHSN now includes a ventilator-associated event available for NICU locations, which requires additional denominator reporting, in which CDC has provided an option to accommodate facilities that are reporting requested data by updating the corresponding surveys. The Pediatric Ventilator-Associated Event (PedVAE) was removed from the survey because a single algorithm is used to detect PedVAE events.
NHSN has made updates to the Antimicrobial Use and Resistance (AUR) data collection tools for the purposes of monitoring additional microorganisms and their antimicrobial susceptibility profiles. Use of these updates in AUR surveillance will provide important additional data for clinical and public health responses to mounting antibiotic resistance problems.
The Long-term Care Facility Component (LTCF) will be updating three forms, two of which will include an update for facilities to document the “CDI treatment start” variable. Early CDI reporting data from nursing homes has shown exceptionally low event rates for many reporting facilities (
Overall, minor revisions have been made to a total of 33 forms within the package to clarify and/or update surveillance definitions, increase or decrease the number of reporting facilities, and add new forms.
The previously approved NHSN package included 72 individual collection forms; the current revision request includes a total of 73 forms. The reporting burden will decrease by 109,745 hours, for a total of 5,393,725 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting.
The Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services announces the next meeting of the Community Preventive Services Task Force (CPSTF) on October 17-18, 2018, in Atlanta, Georgia.
The meeting will be held on Wednesday, October 17, 2018, from 8:30 a.m. to 6:00 p.m. EDT and Thursday, October 18, 2018, from 8:30 a.m. to 1:00 p.m. EDT.
The CPSTF Meeting will be held at the CDC Edward R. Roybal Campus, Centers for Disease Control and Prevention Headquarters (Building 19), 1600 Clifton Road NE, Atlanta, GA 30329. You should be aware that the meeting location is in a Federal government building; therefore, Federal security measures are applicable. For additional information, please see Roybal Campus Security Guidelines under
Onslow Smith, Center for Surveillance, Epidemiology and Laboratory Services; Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-E-69, Atlanta, GA 30329, phone: (404) 498-6778, email:
Those unable to attend the meeting in person are able to do so via Webcast. CDC will send the Webcast URL to registrants upon receipt of their registration. All meeting attendees must register by October 11, 2018 to receive the webcast information. CDC will email webcast information from the
To register for the meeting, whether in person or via webcast, individuals should send an email to
All meeting attendees must register by the dates outlined under MEETING ACCESSABILITY. In planning your arrival time, please take into account the need to park and clear security. All visitors must enter the Edward R. Roybal Campus through the front entrance on Clifton Road. Vehicles may be searched, and the guard force will then direct visitors to the designated parking area. Upon arrival at the facility, visitors must present government-issued photo identification (
Notice.
The Centers for Disease Control and Prevention (CDC), in accordance with provisions of the James Zadroga 9/11 Health and Compensation Act of 2010, is seeking nominations for membership on the World Trade Center (WTC) Health Program STAC. The STAC consists of 17 members including experts in fields associated with occupational medicine, pulmonary medicine, environmental medicine or environmental health, industrial hygiene, epidemiology, toxicology, mental health, and representatives of WTC responders, as well as representatives of certified-eligible WTC survivors. The STAC reviews scientific and medical evidence and makes recommendations to the Administrator of the WTC Health Program on additional Program eligibility criteria and additional WTC-related health conditions and provides consultation on research regarding certain health conditions related to the September 11, 2001 terrorist attacks.
Nominations for membership on the STAC must be received no later than November 16, 2018. Packages received after this time will not be considered for the current membership cycle.
All nominations should be mailed to NIOSH Docket 229-G, c/o Mia Wallace, Committee Management Specialist, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, 1600 Clifton Rd. NE, MS: E-20, Atlanta, Georgia 30333, or emailed (recommended) to
Tania Carreón-Valencia, WTC Health Program Associate Director for Science, 1600 Clifton Rd. NE, MS: R-12, Atlanta, GA 30333; telephone (404)498-2500 (this is not a toll-free number); email
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to accomplishing the committee's objectives. The Administrator of the WTC Health Program is seeking nominations for members fulfilling the following categories:
• Environmental medicine or environmental health specialist;
• Occupational physician who has experience treating WTC rescue and recovery workers;
• Physician with expertise in pulmonary medicine;
• Representative of WTC responders; and
• Representative of certified-eligible WTC survivors.
Members may be invited to serve for three-year terms. Selection of members is based on candidates' qualifications to contribute to the accomplishment of STAC objectives. More information on the committee is available at
U.S. Department of Health and Human Services (HHS) policy stipulates that committee membership be balanced in terms of points of view represented, and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Committee
Candidates should submit the following items:
Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address);
The category of membership (environmental medicine or environmental health specialist, occupational physician, pulmonary physician, representative of WTC responders, representative of certified-eligible WTC survivors, industrial hygienist, toxicologist, epidemiologist, or mental health professional) that the candidate is qualified to represent;
A summary of the background, experience, and qualifications that demonstrates the candidate's suitability for the nominated membership category; and
At least one letter of recommendation from a person(s) not employed by HHS. (Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (
Nominations may be submitted by the candidate him- or herself, or by the person/organization recommending the candidate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
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 Foreign Quarantine Regulations, an information collection related to illness and death reports from airplanes and maritime vessels coming to the United States, illness and death investigations of travelers, and information from importers of certain items specified under 42 CFR 71 subpart F.
CDC must receive written comments on or before November 6, 2018.
You may submit comments, identified by Docket No. CDC-2018-0078 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Foreign Quarantine Regulations (42 CFR 71) (OMB Control No. 0920-0134) (Exp 5/31/2019)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Section 361 of the Public Health Service Act (PHSA) (42 U.S.C. 264) (Attachment A1) authorizes the Secretary of Health and Human Services to make and enforce regulations necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the United States. Statute and the existing
U.S. Quarantine Stations are located at 20 ports of entry and land-border crossings where international travelers arrive. The jurisdiction of each station includes air, maritime, and/or land-border ports of entry. Quarantine Station staff work in partnership with international, federal, state, and local agencies and organizations to fulfill their mission to reduce morbidity and mortality among globally mobile populations. This work is performed to prevent the introduction, transmission, and spread of communicable diseases from foreign countries into the United States or from one State or possession to another State or possession. When an illness suggestive of a communicable disease is reported by conveyance operators or port partners (
CDC is making a number of changes and adjustments to this information collection. The changes are as follows:
• CDC is merging this information collection with another, 0920-0821 Illness Response Forms: Airline, Maritime, and Land/Border Crossing.
• CDC is disaggregating the information collection 42 CFR 71.21(a) report of illness or death from ships so that the influenza like illness (ILI) report, which is voluntary, is separate from the required report of ill person or death.
• CDC is removing the information collection pertaining to Partner Government Agency Message Sets, because CDC will not collect information using these tools.
• CDC is removing the acute gastroenteritis reports from ships and removal of medical logs information collection from this information collection request, because CDC's Vessel Sanitation Program will submit a separate information collection request for these tools.
CDC is requesting the following adjustments
• As described above, CDC is requesting a separation of the maritime (ILI) and other maritime illness or death reports. CDC is also requesting an increase in the total number of maritime reports of illness of each type, ILI and others.
• For fall 2018, CDC is considering a policy change related to requirements for rabies vaccination documentation for dogs coming from certain countries; therefore, CDC is providing estimates of burden and respondents related to importation of dogs into the United States.
• Revised estimates under 42 CFR 71.55, 42 CFR 71.32 Dead Bodies—Death certificates.
• Revised estimate of the number of requests for exemptions for importation of African rodents.
Respondents for this information collection request are any pilot in command of an aircraft or maritime vessel operator. With an ill person meeting certain criteria, or death aboard; any individual who is subject to federal quarantine or isolation; any ill traveler who is reported by the airlines, Customs and Border Protection, or EMS to CDC or the local public health authority that meets the definition of ill person; and any importer or filer who seeks to bring certain animals, animal products, or other CDC-regulated item into the United States.
For most of these collections, there are no costs to respondents other than their time. Examinations of imported animals is only required if the pet is ill on arrival or if it has died during transport. These exams are not routine. Depending on the time of arrival, the initial exam fee may be between $100 and $200. Rabies testing on a dog that dies may be between $50 and $100. The expected number of ill or dead dogs arriving into the United States for which CDC may require an examination is estimated at less than 30 per year. CDC is requesting a three-year approval.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Evaluation of TransLife Center (TLC): A Locally-Developed Combination Prevention Intervention for Transgender Women at High Risk of HIV Infection” 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 January 30, 2018 to obtain comments from the public and affected agencies. CDC received one (1) comment 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
Evaluation of TransLife Center (TLC): A Locally-Developed Combination Prevention Intervention for Transgender Women at High Risk of HIV Infection—New—National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The National Center for HIV/AIDS, Viral Hepatitis, STD and TB Prevention is requesting approval for 24 months of data collection entitled, “Evaluation of TransLife Center (TLC): A Locally-Developed Combination Prevention Intervention for Transgender Women at High Risk for HIV Infection.” The purpose of this study is to evaluate the efficacy of TLC, which provides combination (biomedical, behavioral and social/structural) HIV prevention and care services to adult transgender women at high risk for HIV infection, in a culturally specific and accessible environment. The information collected through this study will be used to evaluate whether the TLC intervention is an effective HIV-prevention strategy by assessing whether exposure to TLC services results in improvements in participants' health and HIV prevention behaviors. The trial will assess whether intervention participants' behaviors significantly change from baseline to 4- and 8-month follow-up periods.
This study will be carried out in Chicago, Illinois, where the TLC program is located. The study population will include 150 HIV-negative adult transgender women living in the Chicago metropolitan area. Participants will be at least 18 years of age; self-identify as transgender, transsexual, women and/or female who was assigned male sex at birth; and have a self-reported history of sex with men in the past four months. The study population will also include 10 TLC staff members. Staff members will be adults, involved in the delivery of TLC intervention services. Participation in this study is voluntary.
We anticipate enrollment of a diverse sample of transgender women comprised mainly of racial/ethnic minority participants under 35 years of age, consistent with the current TLC program and the epidemiology of HIV infection among transgender women. Intervention participants will be recruited to the study through a combination of approaches, including traditional print advertisement, referral, in-person outreach, and through word of mouth. TLC staff members will be randomly selected to participate in the evaluation.
A computer-assisted quantitative assessment will be used to collect information for this study, which will be delivered at the time of study enrollment and again at 4-month and 8-month follow-ups. The assessment will be used to measure changes in sexual risk behavior including condom use and pre-exposure prophylaxis (PrEP) care engagement. Intervention mediators, including gender affirmation, collective self-esteem and social support, and intervention satisfaction will also be
We will also examine intervention experiences through semi-structured interview with 20 of the 150 TLC participants and 10 TLC staff members involved in the delivery of services through the TLC intervention. The audio-recorded interviews will capture participants and staff views about the TLC implementation process, the process through which the TLC intervention influences HIV risk behavior, and the role of the intervention in addressing social determinates of health (housing, employment, legal issues, health care access).
It is expected that 50% of transgender women screened will meet study eligibility. We expect the initial screening to take approximately four minutes to complete and that providing contact information will take four minutes. The assessment will take 60 minutes (one hour) to complete and will be administered to 150 participants a total of three times. The interview will take 60 minutes (one hour) to complete and will be administered to 30 participants (20 intervention participants and 10 TLC staff) one time.
There are no costs to the respondents other than their time. The total estimated annualized burden hours are 255.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Network Epidemiology of Syphilis Transmission (NEST) 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 03/05/2018 to obtain comments from the public and affected agencies. CDC received 1 (one) comment 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
Network Epidemiology of Syphilis Transmission (NEST)—New—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
CDC, Division of STD Prevention (DSTDP), requests a 3-year approval for a new data collection entitled, Network Epidemiology of Syphilis Transmission (NEST). Study participants' sociodemographic, risk behavior, and insurance coverage information will be collected as part of study enrollment.
This study is funded by a cooperative agreement between CDC and three study grantees, two universities (Ohio State University and University of Illinois at Chicago) and one local health department (Baltimore City Health Department) in collaboration with a university (Johns Hopkins School of Medicine). The recruitment of study participants as well as the data collection activities will be carried out at university-affiliated sites including local health departments, community LGBT organizations, local STD clinics and HIV/AIDS care facilities.
The overall objective of NEST is to support the establishment of cohorts of MSM at high risk for syphilis and to prospectively collect behavioral, social, and sexual network data, and biological specimens. Study participants will attend study visits every three months for a period of up to 24 months. NEST is a multi-site study, with a target
At each study visit, study participants will be interviewed and biological specimens (blood and urine) will be collected to facilitate testing for syphilis, gonorrhea, chlamydia, and HIV, which are part of the routine clinical care at participating sites. All data will be collected using Form 1—Questionnaire and Data Elements (Attachment 3) and submitted electronically directly to the CDC NEST data manager. All personal identifying information (
The United States is currently experiencing an ongoing syphilis epidemic. MSM are disproportionately impacted by syphilis and the majority of incident syphilis cases in the United States occur among MSM. However, factors influencing syphilis transmission within this population, such as social and sexual network characteristics, sexual behaviors, and healthcare access and utilization, are poorly understood. In order to address these knowledge gaps, both individual-level and network-level data needs to be collected among this population. As such, we need to develop a better understanding of the feasibility of collecting complex sexual network data among this population. The collection of complex sexual network data—in addition to more traditional individual-level data, such as demographics and individual-level sexual and social behaviors—will help to collectively address some of the knowledge gaps in the transmission dynamics and epidemiology of syphilis among MSM in the United States and point towards effective public health interventions to slow the spread of syphilis.
The goal of NEST is to pilot the use of survey instruments to collect complex longitudinal sexual network data among MSM at high risk for syphilis in the United States. The feasibility of data collection on basic information about recent partners of persons diagnosed with syphilis is clear and is routinely performed by public health officials. However, the feasibility and optimal approaches for serial collection of complex sexual network data among populations that may have dynamic networks are not at all clear. Specifically, it is not clear what the optimal recruitment strategies are to recruit and enroll MSM at high risk for syphilis. The optimal approaches for retaining men as study participants for follow-up visits over a defined study period have not been well defined. Furthermore the best survey format for our proposed data collection activities has not been established. For example, it is not known whether study participants would prefer a survey that is completely self-administered and whether data collected using a self-administered survey will result in complete and valid data being collected or whether a survey administered by study staff would be a better format.
CDC is not engaged in research, and therefore not involved in data collection activities. The grantees are responsible for implementing the testing and collecting data and specimens from the participants.
Before starting any data collection activities a short eligibility screener (Attachment 4) will be administered to prospective study participants and if determined to be eligible consent from the participant will be obtained. Once consent is obtained data collection will begin and will include a baseline visit and follow-up visits every three months for a total follow-up period of 24 months. At each visit participants will provide biological specimens (blood and urine) to facilitate testing for syphilis, gonorrhea, chlamydia, and HIV. In addition to providing biological specimens, participants will complete a standardized survey which will be delivered electronically on a tablet or computer and will collect information on the participants' sexual network, individual behaviors, healthcare access and demographics (Attachment 3). The survey consists of 13 questionnaire modules with a range of 5 to 15 questions per module (Attachment 3). A small subset of sexual behavior questions will be delivered to the participant closer to real time using an open survey format and a weekly format (Attachment 5). The open survey format is a brief survey that participants can respond to at any to record a sexual encounter or other event. The weekly format will be sent on Sunday nights with a reminder on Monday evening, to address sexual behavior in the last week. These brief surveys will be delivered electronically to participants and each survey is expected to take 2 minutes or less. Data collected on electronic devices will be stored on a secure web-accessible local server at each site which will only be accessible with a user name and password. Study site investigators provided input (based on knowledge of relevant local communities) into development of the survey.
The total estimated annualized hourly burden anticipated for this study is 6,828 hours.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of a draft guidance for industry entitled “Policy Regarding Quantitative Labeling of Dietary Supplements Containing Live Microbials.” The draft guidance, when finalized, will advise firms that manufacturer, market, or distribute dietary supplements of FDA's intent to exercise enforcement discretion if a firm wishes to specify the amount of a live microbial in colony forming units (CFUs) in addition to the currently required unit of measure (milligrams) in the Supplement Facts label.
Submit either electronic or written comments on the draft guidance by November 6, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
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• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Office of Dietary Supplement Programs, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
Steven Tave, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2878.
We are announcing the availability of a draft guidance for industry entitled “Policy Regarding Quantitative Labeling of Dietary Supplements Containing Live Microbials.” We are issuing the draft guidance consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternate approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
The draft guidance, when finalized, would advise firms that manufacture, market, or distribute dietary supplements of FDA's intent to exercise enforcement discretion with respect to declaration of live microbial quantity in CFUs, in addition to the quantitative amount by weight declaration required by regulation, within the Supplement Facts label of dietary supplements containing live microbials, provided that certain conditions are met.
Persons with access to the internet may obtain the draft guidance at either
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 101.36 have been approved under OMB control number 0910-0381.
Health Resources and Services Administration (HRSA), The Department of Health and Human Services (HHS).
Notice of charter renewal.
HHS is hereby giving notice that the Advisory Committee on Organ Transplantation (ACOT) has been rechartered. The effective date of the renewed charter is August 31, 2018.
Robert Walsh, Executive Secretary, Advisory Committee on Organ Transplantation, Health Resources and Services Administration, Department of Health and Human Services, Room 08W60, 5600 Fishers Lane, Rockville, Maryland 20857. Phone: (301) 443-6839; fax: (301) 594-6095; email:
The ACOT was authorized by section 121.12 of the amended Final Rule of the Organ Procurement and Transplantation Network (OPTN) (42 CFR part 121). In accordance with the Federal Advisory Committee Act (FACA), Public Law 92-463, it was initially chartered on September 1, 2000, and was renewed at the appropriate intervals.
The ACOT provides advice to the Secretary on all aspects of organ donation, procurement, allocation, and transplantation, and on such other matters that the Secretary determines. The recommendations of the ACOT will facilitate the Department's efforts to oversee the Organ Procurement and Transplantation Network (OPTN), as set forth in the National Organ Transplant Act of 1984, as amended.
The charter renewal for the ACOT was approved on August 31, 2018, which will also stand as the filing date. Renewal of the ACOT charter gives authorization for the Committee to operate until August 31, 2020.
A copy of the ACOT charter is available on the ACOT website at:
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Ms. Diane Dean, Director, Division of Grants Compliance and Oversight, Office of Policy for Extramural Research Administration, Office of Extramural Research, National Institutes of Health, 6705 Rockledge Drive, Room 3525, Bethesda, MD 20892, or call non-toll-free number (301) 435-0930 or Email your request, including your address to:
This proposed information collection was previously published in the
The National Institutes of Health may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 677,820.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) 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: 1625-0018, Official Logbook; without change. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before November 6, 2018.
You may submit comments identified by Coast Guard docket number [USCG-2108-0791] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the internet at
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. In response to your comments, we may revise this ICR or decide not to seek an extension of approval for the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2018-0791], and must be received by November 6, 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
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have jointly developed with the Washington State Department of Natural Resources (WDNR) a revised draft environmental impact statement (RDEIS) addressing an amendment to the 1997 WDNR State Lands Habitat Conservation Plan (HCP) to cover the implementation of a Long-Term Conservation Strategy (LTCS) for the marbled murrelet. The RDEIS also addresses an amendment to the Endangered Species Act incidental take permit (ITP) for take of marbled murrelet resulting from the implementation of the LTCS. The RDEIS is intended to satisfy the requirements of both the National Environmental Policy Act and the Washington State Environmental Policy Act. If approved, the proposed LTCS will replace an interim marbled murrelet conservation strategy that is currently being implemented under the WDNR HCP.
To ensure consideration, please send your written comments by November 6, 2018.
To view the pertinent documents for this proposal, request further information, or submit comments, please use one of the following methods, and note that your information request or comments are in reference to FWS-R1-ES-2018-N106.
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Please contact either of the following:
• Mark Ostwald, by telephone at 360-753-9564, by email at
• Todd Welker, SEPA Center, WDNR, by telephone at 360-902-2117, or by email at
You may alternatively contact either of the above individuals via the Federal Relay Service at 800-877-8339.
We, the U.S. Fish and Wildlife Service (Service), have jointly developed with the Washington State Department of Natural Resources (WDNR) a revised draft environmental impact statement (RDEIS) addressing an amendment to the 1997 WDNR State Lands Habitat Conservation Plan (HCP) to cover the implementation of a Long-Term Conservation Strategy (LTCS) for the marbled murrelet. The RDEIS also addresses an amendment to the Endangered Species Act section 10 incidental take permit (ITP) for take of marbled murrelet resulting from the implementation of the LTCS. The RDEIS is intended to satisfy the requirements of both the National Environmental Policy Act and the Washington State Environmental Policy Act. If approved, the proposed LTCS will replace an interim conservation strategy for the marbled murrelet, which is currently being implemented under the WDNR HCP.
The Service and WDNR have jointly developed a RDEIS for the purpose of analyzing alternatives for the LTCS for the marbled murrelet. The RDEIS analyses seven action alternatives and a no action alternative. If approved, the amended ITP would authorize incidental take of the marbled murrelet that would occur as a result of implementation of the LTCS over the remaining 50-year term of the WDNR HCP. The scope of the proposed amendment to the WDNR HCP and ITP, and thus of the RDEIS, is exclusively limited to consideration of the LTCS for the marbled murrelet.
In addition to this notice, the U.S. Environmental Protection Agency (EPA) is also publishing a notice announcing the availability of the RDEIS, as required under section 309 of the Clean Air Act (42 U.S.C. 7401
The marbled murrelet (
The WDNR HCP (see
Briefly, the interim conservation strategy for the marbled murrelet includes the following components:
(1) Identification of blocks of suitable marbled murrelet habitat on which timber harvest would be deferred;
(2) Implementation of a habitat relationship study using marbled murrelet occupancy surveys to determine the relative importance of forested habitats;
(3) Based on the findings of the habitat relationship study, identification of the lowest quality habitat blocks to be made available for timber harvest (these areas were expected to contain about 5 percent of the marbled murrelet-occupied sites on HCP-covered lands);
(4) Implementation of surveys of higher quality habitat blocks identified by the habitat relationship study to determine marbled murrelet occupancy, and protection of murrelet-occupied habitats, along with some unoccupied habitat; and
(5) Development of a LTCS for the marbled murrelet on WDNR lands.
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This RDEIS differs from the 2016 DEIS in the following ways: (1) The WDNR has developed and selected a preferred WDNR alternative (alternative H), which was not previously identified; (2) a new alternative (alternative G) has been included in response to specific public comments; (3) the WDNR forest estate model, or large data overlay model, has been rerun with WDNR-identified corrections, resulting in different acreage outputs for all the alternatives; (4) the WDNR and the Service have identified separate purpose and needs statements in Chapter 1; and (5) the marbled murrelet population viability analysis has been rerun with modifications.
Section 9 of the ESA prohibits take of fish and wildlife species listed as endangered or threatened under section 4 of the ESA. Under the ESA, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). The term “harm,” as defined in our regulations, includes significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering (50 CFR 17.3). The term “harass” is defined in our regulations as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavioral patterns, which include but are not limited to breeding, feeding, or sheltering (50 CFR 17.3).
However, under specified circumstances, the Service may issue permits that authorize take of federally listed species, provided the take is incidental to, and not the purpose of, an otherwise lawful activity. Regulations governing permits for endangered and threatened species are at 50 CFR 17.22 and 17.32, respectively. Section 10(a)(1)(B) of the ESA contains provisions for issuing ITPs to non-Federal entities for the take of endangered and threatened species, provided the following criteria are met:
(1) The taking will be incidental;
(2) The applicant will prepare a conservation plan that, to the maximum extent practicable, identifies the steps the applicant will take to minimize and mitigate the impact of such taking;
(3) The applicant will ensure that adequate funding for the plan will be provided;
(4) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
(5) The applicant will carry out any other measures that the Service may require as being necessary or appropriate for the purposes of the plan.
The proposed amendment of the ITP and the 1997 WDNR HCP to cover the LTCS for the marble murrelet is a Federal action that triggers the need for compliance with NEPA (42 U.S.C. 4321
WDNR manages approximately 1.38 million acres within 55 miles of marine waters, which is the known inland limit of the nesting range for the marbled murrelet. The RDEIS analyzes Alternative H as DNR's preferred alternative. The Service is not presently identifying a preferred alternative, but will for the final environmental impact statement (FEIS). The no-action alternative involves continuation of the interim conservation strategy for the marbled murrelet under the WDNR HCP. The alternatives in the RDEIS are restricted to implementation within this area.
The alternatives represent a range of approaches to long-term marbled murrelet habitat conservation on WDNR lands. The alternatives differ in the amount and location of WDNR-managed forest land designated for long-term conservation of the murrelet. Alternatives also include a variety of conservation measures proposed to protect marbled murrelet habitat. The alternatives also differ in the amount and quality of marbled murrelet habitat removed through timber harvest.
The EPA is charged under section 309 of the Clean Air Act to review all Federal agencies' EISs and to comment on the adequacy and the acceptability of the environmental impacts of proposed actions in the EISs. EPA also serves as the repository (EIS database) for EISs prepared by Federal agencies and provides notice of their availability in the
We will hold four public meetings during the public comment period, at the following locations in the State of Washington: Ballard, Burlington, Cathlamet, and Forks. The dates, times, and specific locations of the meetings will be posted on the internet at
You may submit your comments and materials by one of the methods listed in
1. Biological information on the marbled murrelet in the terrestrial and marine environments;
2. Cumulative effects on the environment that might influence the status of the marbled murrelet in the ESA listed range;
3. Resiliency of the alternatives in providing current and future marbled murrelet habitat in relation to climate
4. Adequacy of the distribution of marbled murrelet habitat within the HCP covered area to provide for murrelet conservation over the remaining term of the HCP;
5. Other aspects of the human environment not already identified in the DEIS that may be affected, pursuant to NEPA regulations in the Code of Federal Regulations (CFR) at 40 CFR 1506.6.
Comments received from the 2016 DEIS public comment period were used to inform the RDEIS. Comments received on the DEIS and this RDEIS will be responded to in the FEIS. If you submitted comments during the comment period for the DEIS, you do not need to resubmit those comments.
All comments and materials we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personally identifiable information in your comments, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety. Comments and materials we receive, as well as supporting documentation we use in preparing the FEIS, will be available for public inspection by appointment, during normal business hours, at our Washington Fish and Wildlife Office (see
The HCP amendment for the LTCS is intended to replace the interim conservation strategy for the marbled murrelet. We will evaluate that request, associated documents, and public comments in reaching a final decision on whether the application for a permit amendment meets the requirements of section 10 of the ESA. We will prepare responses to public comments and publish a notice of availability for the FEIS. The FEIS will identify the WDNR preferred alternative for the amendment, and also the Service's preferred alternative. We will also evaluate whether the proposed permit action would comply with section 7 of the ESA by conducting an intra-Service section 7 consultation. We will use the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to approve the proposed amendment of the WDNR HCP and ITP. If the ESA section 10 issuance requirements are met, we will approve the amendment of the ITP and HCP. We will issue a record of decision and approve or deny the ITP and HCP amendment request by WDNR no sooner than 30 days after publication of the notice of availability of the FEIS.
We provide this notice in accordance with the requirements of section 10(c) of the ESA and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA and its implementing regulations (40 CFR 1506.6).
U.S. Geological Survey, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Geological Survey (USGS) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 9, 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 Darcy McPhee by email at
We, the USGS, in accordance with the Paperwork Reduction Act of 1995, provide the general public and other Federal agencies with an opportunity to comment on 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.
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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 USGS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS 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 may 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 NCGMP EDMAP program allocates funds to colleges and universities in the United States and Puerto Rico through an annual competitive cooperative agreement process. Every Federal dollar awarded is matched with university funds. Geology professors, who are skilled in geologic mapping, request EDMAP funding to support undergraduate and graduate students at their college or university in a one-year mentored geologic mapping project that focuses on a specific geographic area.
Only State Geological Surveys are eligible to apply to the STATEMAP component of the NCGMP pursuant to the National Geologic Mapping Act (Pub. L. 106-148). Since many State Geological Surveys are organized under a state university system, such universities may submit a proposal on behalf of the State Geological Survey.
Each fall, the program announcements are posted to the
Since 1996, more than $5 million from the NCGMP has supported geologic mapping efforts of more than 1,200 students working with more than 260 professors at 161 universities in 44 states, the District of Columbia, and Puerto Rico. Funds for graduate projects are limited to $17,500 and undergraduate project funds limited to $10,000. These funds are used to cover field expenses and student salaries, but not faculty salaries or tuition. The authority for both programs is listed in the National Geologic Mapping Act (Pub. L. 106-148).
We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection.” Responses are voluntary. No questions of a “sensitive” nature are asked.
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 Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Assistant Secretary—Indian Affairs (AS-IA) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 6, 2018.
Send your comments on this information collection request (ICR) by mail to David Johnson, Acting Chief, Division of Capital Investment, Office of Indian Energy and Economic Development, U.S. Department of the Interior, 1849 C Street NW, MIB 4138, Washington, DC 20240; email:
To request additional information about this ICR, please contact David Johnson by telephone at: (202) 208-3026.
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 AS-IA; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the AS-IA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the AS-IA 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.
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 Indian Affairs, Interior.
Notice of meeting.
The Bureau of Indian Education (BIE) is announcing that the Advisory Board for Exceptional Children will hold a public meeting. The purpose of the meeting is to meet the requirements of the Individuals with Disabilities Education Act of 2004 (IDEA) for Indian children with disabilities.
The Advisory Board will meet Saturday, September 22, 2018 from 8 a.m. to 5 p.m. Mountain Time. A public comment period is scheduled from 11:30 a.m. to 12 p.m. Mountain Time. In order for written comments to be considered by the Advisory Board during the meeting, comments must be received by September 17, 2018.
The meeting will be held at the 1011 Indian School Rd. NW, Large Conference Room on the 3rd floor in Albuquerque, NM 87104. Telephone number: (480) 777-7986. Those wishing to participate via conference call may do so by calling in to telephone number 1-888-417-0376, passcode 1509140.
Jennifer Davis, Designated Federal Officer, Bureau of Indian Education, 2600 N Central Ave. Suite 800, Phoenix, Arizona 85004, telephone number (480) 777-7986; fax number (602) 265-0293 Attention: Jennifer Davis, DFO; or email
The Advisory Board was established to advise the Secretary of the Interior, through the Assistant Secretary—Indian Affairs, on the needs of Indian children with disabilities. The meeting is open to the public. During the meeting the Advisory Board will discuss the priorities, advice, and recommendations that will be included in the 2018 Annual Report; there will be an opportunity for public comment; and the Advisory Board will finalize the 2018 Annual Report. Those wishing to make comments during the meeting may do so or can send written comments to the DFO (see
5 U.S.C. Appendix 5; 20 U.S.C. 1400
Bureau of Safety and Environmental Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Safety and Environmental Enforcement (BSEE) proposes to renew an information collection.
Interested persons are invited to submit comments on or before October 9, 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 Kelly Odom 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
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The BSEE uses the information to make decisions on the economic viability of leases requesting a suspension or elimination of royalty or net profit share. These decisions have enormous monetary impact on both the lessee and the Federal Government. Royalty relief can lead to increased production of natural gas and oil, creating profits for lessees, and royalty and tax revenues for the Federal Government that they might not otherwise receive. We could not make an informed decision without the collection of information required by 30 CFR part 203.
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 Safety and Environmental Enforcement, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Safety and Environmental Enforcement (BSEE) proposes to renew an information collection.
Interested persons are invited to submit comments on or before November 6, 2018.
Send your comments on this information collection request (ICR) by either of the following methods listed below:
• Electronically go to
• Email
To request additional information about this ICR, contact Nicole Mason by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. 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.
The information collected under Subpart K is used in our efforts to conserve natural resources, prevent waste, and protect correlative rights, including the Government's royalty interest. Specifically, BSEE uses the information to:
• Evaluate requests to burn liquid hydrocarbons and vent and flare gas to ensure that these requests are appropriate;
• determine if a maximum production or efficient rate is required; and,
• review applications for downhole commingling to ensure that action does not result in harm to ultimate recovery.
Form BSEE-0126, Well Potential Test Report, BSEE uses this information for reservoir, reserves, and conservation analyses, including the determination of maximum production rates (MPRs) when necessary for certain oil and gas completions. This requirement implements the conservation provisions of the OCS Lands Act and 30 CFR 250. The information obtained from the well potential test is essential to determine if an MPR is necessary for a well and to establish the appropriate rate. It is not possible to specify an MPR in the absence of information about the production rate capability (potential) of the well.
Form BSEE-0128, Semiannual Well Test Report, BSEE uses this information to evaluate the results of well tests to determine if reservoirs are being depleted in a manner that will lead to the greatest ultimate recovery of hydrocarbons. This information is collected to determine the capability of hydrocarbon wells and to evaluate and verify an operator's approved maximum production rate if assigned. The form was designed to present current well data on a semiannual basis to permit the updating of permissible producing rates, and to provide the basis for estimates of currently remaining recoverable gas reserves.
We have not identified any other non-hour cost burden associated with this collection of information.
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 Safety and Environmental Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Safety and Environmental Enforcement (BSEE) proposes to renew an information collection.
Interested persons are invited to submit comments on or before October 9, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Nicole Mason by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The Subpart S regulations hold the operator accountable for the overall safety of the offshore facility, including ensuring that all employees, contractors, and subcontractors have safety policies and procedures in place that support the implementation of the operator's SEMS program and align with the principles of managing safety. An operator's SEMS program must describe management's commitment to safety and the environment, as well as policies and procedures to assure safety and environmental protection while conducting OCS operations (including those operations conducted by all personnel on the facility). BSEE will use the information obtained by submittals and observed via SEMS audits to ensure that operations on the OCS are conducted safely, as they pertain to both human and environmental factors, and in accordance with BSEE regulations, including industry practices incorporated by reference within the regulations. Job Safety Analyses (JSA's) and other recordkeeping required by the SEMS regulation will be reviewed diligently by BSEE during inspections and other oversight activities and by SEMS auditors during regulatory required audits, to ensure that industry is using the documentation required by the SEMS regulation to manage their safety and environmental risks.
Information on Form BSEE-0131, which the SEMS regulation requires to be submitted to BSEE annually, includes company identification, number of company/contractor injuries and/or illnesses suffered, company/contractor hours worked, EPA National Pollutant Discharge Elimination System (NPDES) permit non-compliances, and oil spill volumes for spills less than 1 barrel. Such information is reported on a calendar year basis, with data broken out by calendar quarter. The information is used to develop industry average incident rates that help to describe how well the offshore oil and gas industry is performing. Operators use these incident rates to benchmark against their own performance, and to focus on areas that need improvement. Using the produced data allows BSEE to better focus our regulatory and research programs on areas where the performance measures indicate that operators are having difficulty meeting our expectations. BSEE will be more effective in leveraging resources by redirecting research efforts, promoting appropriate regulatory initiatives, and shifting inspection and Directed Audit program emphasis based on performance results.
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 Safety and Environmental Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Safety and Environmental Enforcement (BSEE) proposes to renew an information collection.
Interested persons are invited to submit comments on or before October 9, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Nicole Mason by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The BSEE will use the information collected under subpart O regulations to ensure that workers in the OCS are properly trained with the necessary skills to perform their jobs in a safe and pollution-free manner.
In some instances, we may conduct oral interviews of offshore employees to evaluate the effectiveness of a company's training program. The oral interviews are used to gauge how effectively the companies are implementing their own training program.
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 Safety and Environmental Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Safety and Environmental Enforcement (BSEE) proposes to renew an information collection.
Interested persons are invited to submit comments on or before October 9, 2018.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Nicole Mason by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection
A
We are again soliciting comments on the proposed ICR that is described below. We are especially interested in public comments addressing the following issues: (1) Is the collection necessary to the proper functions of BSEE; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might BSEE enhance the quality, utility, and clarity of the information to be collected; and (5) How might BSEE minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Post-Approval Requirements for the Exploration Plans, Development and Production Plans, and Development Operation Coordination Document: While the information is submitted to the Bureau of Ocean Energy Management, BSEE analyzes and evaluates the information and data collected under this section of subpart B to verify that an ongoing/completed Outer Continental Shelf (OCS) operation is/was conducted in compliance with established environmental standards placed on the activity.
Deepwater Operations Plan (DWOP): BSEE analyzes and evaluates the information and data collected under this section of subpart B to ensure that planned operations are safe; will not adversely affect the marine, coastal, or human environment; and will conserve the resources of the OCS. We use the information to make an informed decision on whether to approve the proposed DWOPs, or whether modifications are necessary without the analysis and evaluation of the required information.
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
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of ResMed Corp, ResMed Inc. and ResMed Ltd. on August 31, 2018. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain sleep-disordered breathing treatment mask systems and components thereof. The complaint names as respondents: Fisher & Paykel Healthcare Limited of New Zealand; Fisher & Paykel Healthcare, Inc. of Irvine, CA and Fisher & Paykel Healthcare Distribution Inc. of Irvine, CA. The complainant requests that the Commission issue a limited exclusion order and a cease and desist order and impose a bond during the 60-day review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3336”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Notice of registration.
Registrant listed below has applied for and been granted registration by the Drug Enforcement Administration (DEA) as a bulk manufacturer of various classes of schedule I and II controlled substances.
The company listed below applied to be registered as a bulk manufacturer of various basic classes of controlled substances. Information on the previously published notice is listed in the table below. No comments or objections were submitted for this notice.
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of this registrant to manufacture the applicable basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the DEA has granted a registration as a bulk manufacturer to the above listed company.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
Tuesday, September 18, 2018: 9:30 a.m.—Issuance of Proposed Decisions in claims against Iraq.
10:30 a.m.—Issuance of Proposed Decisions under the Guam World War II Loyalty Recognition Act, Title XVII, Public Law 114-328.
Open.
All meetings are held at the Foreign Claims Settlement Commission, 601 D Street NW, Suite 10300, Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 601 D Street NW, Suite 10300, Washington, DC 20579. Telephone: (202) 616-6975.
Employment and Training Administration (ETA), Labor.
Notice and Request for Comment.
The Department of Labor (DOL), as part of its effort to streamline information collection, clarify statutory and regulatory requirements, and provide greater transparency and oversight of the H-2B labor certification program, conducts a preclearance consultation program to provide the public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. In accordance with the Paperwork Reduction Act (PRA), ETA, within DOL, is providing the public notice and opportunity to comment on proposed revisions to the H-2B Foreign Labor Certification Program information collection.
The information collection for each existing form was approved on December 31, 2015 and expires December 31, 2018. A copy of the proposed information collection request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the addresses section below on or before November 6, 2018.
Written comments may be submitted by the following methods:
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William W. Thompson II, Administrator, Office of Foreign Labor Certification, 202-513-7350 (this is not a toll-free number), or for individuals with hearing or speech impairments, 1-877-889-5627 (this is the TTY toll-free Federal Information Relay Service number), Box PPII 12-200, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210.
The information collection is required by Sections 101(a)(15)(H)(ii)(b) and 214(c) of the Immigration and Nationality Act (INA) (8 U.S.C. 1011(a)(15)(H)(ii)(b) and 1184(c)), as well as 8 CFR 214.2(h)(6), 20 CFR 655, Subpart A, and 29 CFR 503. The H-2B program enables employers to bring nonimmigrant foreign workers to the United States to perform non-agricultural work of a temporary or seasonal nature as defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b). The Department of Homeland Security (DHS) consults with DOL with respect to the H-2B program, and DOL provides advice on whether U.S. workers capable of performing the temporary services or labor are available.
This ICR, OMB Control No. 1205-0509, includes the collection of information related to the use of employer-provided surveys for determining prevailing wages and the temporary labor certification process in the H-2B program. The Form ETA-9165,
ETA is seeking comments on proposed revisions to the Form ETA-9142B,
ETA is also seeking comments on its proposed implementation of three new appendices to the Form ETA-9142B. The proposed
To promote greater efficiency in issuing temporary labor certification decisions and minimize delays associated with employers filing H-2B petitions with DHS, ETA is seeking to eliminate the issuance of paper-based labor certification decisions by proposing the creation of a one-page Form ETA-9142B,
Finally, ETA is requesting a three-year extension, without change, of the Form ETA-9142B,
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; and also the agency's estimates associated with the annual burden cost incurred by respondents and the government cost associated with this collection of information;
• enhance the quality, utility, and clarity of the information to be collected; and
• minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This revision request will allow ETA to meet its statutory and regulatory responsibilities pertaining to labor certification applications that are used in the H-2B program and that allow employers to bring foreign labor to the United States on a temporary basis.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB control number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid control number.
Comments submitted in response to this comment request will be summarized and/or included in the request for OMB approval of the ICR; they will also become a matter of public record. Commenters are encouraged not to submit sensitive information (
The National Science Board's Committee on National Science and Engineering Policy (SEP), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Tuesday, September 11, 2018 at 2 p.m.-3 p.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314. An audio link will be available for the public. Members of the public must contact the Board Office to request the public audio link by sending an email to
Open.
Chair's opening remarks; discussion of narrative outlines for thematic reports to be included in
Point of contact for this meeting is: Matt Wilson (
Meeting information and updates (time, place, subject matter or status of meeting) may be found at
The National Science Board's Committee on National Science and Engineering Policy (SEP), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Friday, September 14, 2018 at 4 p.m.-5 p.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314. An audio link will be available for the public. Members of the public must contact the Board Office to request the public audio link by sending an email to
Open.
Chair's opening remarks; continued discussion of narrative outlines for thematic reports to be included in
Point of contact for this meeting is: Matt Wilson, (
Meeting information and updates (time, place, subject matter or status of meeting) may be found at
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “General Licensee Registration.”
Submit comments by November 6, 2018. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2018-0035 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2018-0035 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized in this notice.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to expand the types of messages that Users may submit into bulk order ports.
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The proposed rule change expands the types of messages that Users may submit into bulk order ports. A bulk order port is a logical port that provides Users with the ability to submit bulk messages to enter, modify, or cancel orders designated as Post Only Orders, provided such orders are entered with a Time-in-Force of Day
The proposed rule change permits Users to submit auction responses into bulk order ports, in addition to Post Only Orders with a Time-in-Force of Day or GTD with an expiration time on that trading day. The Exchange offers various auction mechanisms that provide Users with additional execution opportunities and potential price improvement for their orders.
Orders submitted to the Exchange through all ports are subject to various parameters, such as price reasonability checks and volume restrictions.
Pursuant to Exchange technical specifications,
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes the proposed rule change protects investors and the public interest because it provides all Users with an efficient process to enter and update auction responses. Like quoting, auction responses are a critical form of liquidity on the Exchange. Auction mechanisms and the execution and price improvement opportunities they provide are dependent on auction responses submitted during the auctions. Permitting Users to submit auction responses into bulk order ports is consistent with the purpose of these ports and have a similar purpose as the orders that Users are currently permitted to enter into bulk order ports. The Exchange believes the proposed rule change may encourage the provision of additional liquidity in auctions, which will provide additional execution and price improvement opportunities to auctioned orders, which ultimately benefit investors.
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 Exchange does not believe the proposed rule change will impose any burden on intramarket competition, as the use of bulk order ports and the proposed functionality is voluntary and available to all Users of the Exchange. Bulk order entry functionality is available to all Users of the Exchange, as is the proposed functionality to submit auction responses into bulk order ports. Users may already submit auction responses to the Exchange using other types of ports—the proposed rule change merely provides Users of the Exchange with an additional method to submit auction responses to the Exchange. The Exchange does not believe the proposed rule change will have any direct impact on intermarket competition, as the proposed rule change relates solely to the manner in which Users may submit auction responses into auctions occurring on the Exchange.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of August 2018. A copy of each application may be obtained via the Commission's website
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Shawn Davis, Branch Chief, at (202) 551-6413 or Chief Counsel's Office at (202) 551-6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE, Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to provide new optional functionality to Minimum Quantity Orders.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to provide a new optional functionality to the Minimum Quantity Order Attribute,
An Order designated with the Minimum Quantity Order Attribute (“MQ”) allows a market participant to specify a minimum share amount at which it will execute. For example, a market participant seeking to buy or sell a large position may desire to execute only if a large quantity of shares can be traded to reduce the price impact of the security being bought or sold. An Order with MQ will not execute unless the volume of contra-side liquidity available to execute against the order meets or exceeds the designated minimum. When an Order with MQ is received by the Exchange, it will execute immediately
The Exchange is proposing to add a new optional functionality to further enhance the utility of the Minimum Quantity Order Attribute to market participants.
Accordingly, to attract larger Orders with MQ to the Exchange, it is proposing new optional functionality that will allow a market participant to designate a minimum individual execution size, and thus allow users to avoid interaction with such smaller Orders resting on the book. As discussed above, under the current rule, an incoming Order with MQ will execute against any number of smaller contra-side Orders that, in aggregate, meet the minimum quantity set by the market participant. For example, if a market participant entered an Order with MQ to buy with a price of $10, a size of 1,000 and a minimum quantity of 500, and the order was marketable against two resting sell orders for 300 and 400 shares, the System would aggregate both orders for purposes of meeting the minimum quantity, thus resulting in executions of 300 shares and 400 shares respectively with the remaining 300 shares of the Order with MQ posting to the Exchange book with a minimum quantity restriction of 300 shares. The proposed new optional functionality will not allow aggregation of smaller executions to satisfy the minimum quantity of an incoming Order with MQ. Using the same scenario as above, but with the proposed new functionality and a minimum execution size requirement of 400 shares selected by the market participant, the Order with MQ would not execute against the two sell orders because the order at the top of the Exchange book is less than 400 shares. The new functionality will reprice the Order with MQ to one minimum price increment lower than (higher than) the lowest price (highest price) of the resting contra-side Order, and post the Order to the Exchange book as a Non-Displayed Order when the top of the Exchange book is of insufficient size to satisfy the minimum execution size requirement. Applied to the example above, the Order would post to the Exchange book as a Non-Displayed Order to buy 1,000 shares at $9.99. The Exchange notes that the market participant entering the Order with MQ has expressed its intention not to execute against liquidity below a certain minimum size, and therefore cedes execution priority when it would lock or cross resting Orders against which it would otherwise execute if it were not for the minimum execution size restriction.
The Exchange believes that it is appropriate to adjust the price one minimum price increment lower than (higher than) the lowest price (highest price) of the resting contra-side Order prior to posting on the Exchange book because, by using the minimum execution size option, the submitter of the Order is choosing to reduce the number of situations in which the Order could potentially execute. Thus, an Order without this further restriction provides greater contribution to the price discovery process of the market. All bona fide market participation that results in an execution on a data feed contributes to the price discovery process that is essential to a proper functioning market. However, there are different degrees to which activity within the market contributes to price discovery. A displayed Order at the NBBO of an Exchange, and the subsequent execution thereof, contributes significantly to price discovery because both the Displayed Order prior to execution, and the execution itself, provide a reference price to the market. Further, a non-displayed order on an exchange contributes to price discovery as it is part of the continuous auction on a market with publicly displayed orders and quotes—albeit the contribution of a non-displayed order on an exchange is
The Exchange notes that when a non-IOC Order with MQ is partially executed and cancelled in this situation, the contra-side liquidity that is not executed may be Non-Displayed. If an Order with MQ is cancelled due to Non-Displayed contra-side liquidity, the submitter of the Order will know that there may be a resting Order or Orders at the price of the Order with MQ and also that the resting Order or Orders are for fewer shares than the minimum execution size required by the Order. The Exchange believes this is acceptable because the Order with MQ has already partially executed for a size of at least one round lot and thus the Order submitter has taken on risk due to the execution and therefore contributed to price discovery in the market place.
Under the proposed change, a resting Order with MQ will operate the same way as it does currently. When an Order with MQ is posted on the book, it will only execute against incoming Orders if the individual incoming Order is equal to or greater than the minimum designated on the Order. The primary difference between the current functionality and the proposed new functionality is that upon receipt, an incoming Order with MQ will only execute against individual resting Orders if the order at the top of the Exchange book meets or exceeds the minimum on the Order. The Exchange notes that this is no different than Nasdaq's Minimum Quantity Order Attribute, on which the proposed change is based, and is also similar to Cboe BZX Exchange, Inc.'s (“BZX”) Minimum Quantity Order,
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
As discussed above, some market participants have requested the functionality proposed herein so they may avoid transacting with smaller Orders that they believe ultimately increase the cost of the transaction. Market participants, such as large institutions that transact a large number of orders on behalf of retail investors, have noted that because the Exchange does not have this functionality, they avoid sending large orders to the Exchange to avoid potentially more
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, the proposed change allows market participants to condition the processing of their Orders based on a minimum execution size. The changes to the Minimum Quantity Order Attribute will enhance the functionality offered by the Exchange to its members, thereby promoting its competitiveness with other exchanges and non-exchange trading venues that already offer the same or similar functionality. As a consequence, the proposed change will promote competition among exchanges and their peers, which, in turn, will decrease the burden on competition rather than place an unnecessary burden thereon.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 9, 2018, Nasdaq BX, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act and for the reasons stated above,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Highway Administration (FHWA), DOT.
Notice to rescind a Notice of Intent.
The FHWA is issuing this notice to advise the public that, effective immediately, we are rescinding a Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS) for the proposed Southern Evacuation Life Line (SELL) project in Georgetown and Horry counties, South Carolina.
Emily O. Lawton, Division Administrator, Federal Highway Administration, Strom Thurmond Federal Building, 1835 Assembly Street, Suite 1270, Columbia, South Carolina 29201, Telephone: (803) 765-5411, Email:
The FHWA, in cooperation with the South Carolina Department of Transportation (SCDOT), issued a NOI on March 17, 2006, to prepare an environmental impact statement (EIS) on a proposal for a new alignment roadway, known as the Southern Evacuation Life Line (SELL), located in Georgetown and Horry counties, South Carolina. The purpose of the project was to establish a new alignment hurricane evacuation route for the southeastern portion of Horry County and the northeastern portion of Georgetown County in South Carolina, between U.S. 17 near Garden City, SC, and U.S. 501 near Aynor, SC. The FHWA was initially involved as the lead federal agency for this project as there was a federal earmark of $4 million being used for the project that was being administered by FHWA. A Draft Environmental Impact Statement (DEIS) was prepared and a Notice of Availability was issued on August 15, 2008. However, the proposed project was postponed after the DEIS was published due a lack of funding at that time. The $4 million from the federal earmark that was being administered by FHWA was completely expended for this effort.
In late 2016, Horry County passed the RIDE III Capital Project Sales Tax program, which included an allocation of $25 million for the SELL project to fund preliminary engineering (including the preparation of a new environmental impact statement), as well as right-of-way acquisition, should a build alternative be selected for the project.
Since the federal earmark has been completely expended, and no new federal-aid highway program funding has been identified for the project, FHWA no longer has a federal action per Title 23 of the U.S. Code. In addition, given the amount of time that has passed since the DEIS was completed, SCDOT and Horry County will essentially need to restart the NEPA process for the project. Due to this, the FHWA is issuing a Notice to Rescind the Notice of Intent to prepare and EIS for the SELL project that was initially issued March 17, 2006.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice.
This notice announces a public meeting of the Voluntary Information-sharing System (VIS) Working Group. The VIS Working Group will convene to discuss and identify recommendations to establish a voluntary information-sharing system.
The public meeting will be held on October 3, 2018, from 8:30 a.m. to 5:00 p.m. ET. Members of the public who wish to attend in person should register no later than September 26, 2018. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, may notify PHMSA by September 26, 2018. For additional information, see the
The meeting will be held at U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590. The meeting agenda and additional information will be published on the following VIS Working Group registration page at:
The meetings will not be webcast; however, presentations will be available on the meeting website and posted on the E-Gov website,
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). Therefore, consider reviewing DOT's complete Privacy Act Statement in the
If you wish to receive confirmation of receipt of your written comments, please include a self-addressed, stamped postcard with the following statement: “Comments on PHMSA-2016- 0128.” The docket clerk will date stamp the postcard prior to returning it to you via the U.S. mail.
DOT may solicit comments from the public regarding certain general notices. DOT posts these comments, without edit, including any personal information the commenter provides, to
For information about the meeting, contact Dr. Christie Murray by phone at 202-366-4996 or by email at
The VIS Working Group is an advisory committee established in accordance with Section 10 of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (Pub. L. 114-183), the Federal Advisory Committee Act of 1972 (5 U.S.C., App. 2, as amended), and 41 CFR 102-3.50(a).
The VIS Working Group agenda will include briefings on topics such as mandate requirements, subcommittee considerations, lessons learned, examples of existing information-sharing systems, and proposed subcommittee recommendations. As part of its work, the committee will ultimately provide recommendations to the Secretary, as required and specifically outlined in Section 10 of Public Law 114-183, addressing:
(a) The need for, and the identification of, a system to ensure that dig verification data are shared with in-line inspection operators to the extent consistent with the need to maintain proprietary and security-sensitive data in a confidential manner to improve pipeline safety and inspection technology;
(b) Ways to encourage the exchange of pipeline inspection information and the development of advanced pipeline inspection technologies and enhanced risk analysis;
(c) Opportunities to share data, including dig verification data between operators of pipeline facilities and in-line inspector vendors to expand knowledge of the advantages and disadvantages of the different types of in-line inspection technology and methodologies;
(d) Options to create a secure system that protects proprietary data while encouraging the exchange of pipeline inspection information and the development of advanced pipeline inspection technologies and enhanced risk analysis;
(e) Means and best practices for the protection of safety and security-sensitive information and proprietary information; and
(f) Regulatory, funding, and legal barriers to sharing the information described in paragraphs (a) through (d).
The Secretary will publish the VIS Working Group's recommendations on a publicly available DOT website and in the docket. The VIS Working Group will fulfill its purpose once its recommendations are published online.
PHMSA will publish the agenda on the PHMSA meeting page
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice.
This notice announces a public meeting of the Voluntary Information-sharing System (VIS) Working Group. The VIS Working Group will convene to discuss and identify recommendations to establish a voluntary information-sharing system.
The public meeting will be held on November 9, 2018, from 8:30 a.m. to 5 p.m. ET. Members of the public who wish to attend in person should register no later than November 1, 2018. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, may notify PHMSA by November 1, 2018. For additional information, see the
The meeting will be held at U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590. The meeting agenda and additional information will be published on the following VIS Working Group registration page at:
The meetings will not be webcast; however, presentations will be available
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). Therefore, consider reviewing DOT's complete Privacy Act Statement in the
If you wish to receive confirmation of receipt of your written comments, please include a self-addressed, stamped postcard with the following statement: “Comments on PHMSA-2016- 0128.” The docket clerk will date stamp the postcard prior to returning it to you via the U.S. mail.
DOT may solicit comments from the public regarding certain general notices. DOT posts these comments, without edit, including any personal information the commenter provides, to
For information about the meeting, contact Dr. Christie Murray by phone at 202-366-4996 or by email at
The VIS Working Group is an advisory committee established in accordance with Section 10 of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (Pub. L. 114-183), the Federal Advisory Committee Act of 1972 (5 U.S.C., App. 2, as amended), and 41 CFR 102-3.50(a).
The VIS Working Group agenda will include briefings on topics such as mandate requirements, integrity management, data types and tools, in-line inspection and other direct assessment methods, geographic information system implementation, subcommittee considerations, lessons learned, examples of existing information-sharing systems, safety management systems, and more. As part of its work, the committee will ultimately provide recommendations to the Secretary, as required and specifically outlined in Section 10 of Public Law 114-183, addressing:
(a) The need for, and the identification of, a system to ensure that dig verification data are shared with in-line inspection operators to the extent consistent with the need to maintain proprietary and security-sensitive data in a confidential manner to improve pipeline safety and inspection technology;
(b) Ways to encourage the exchange of pipeline inspection information and the development of advanced pipeline inspection technologies and enhanced risk analysis;
(c) Opportunities to share data, including dig verification data between operators of pipeline facilities and in-line inspector vendors to expand knowledge of the advantages and disadvantages of the different types of in-line inspection technology and methodologies;
(d) Options to create a secure system that protects proprietary data while encouraging the exchange of pipeline inspection information and the development of advanced pipeline inspection technologies and enhanced risk analysis;
(e) Means and best practices for the protection of safety and security-sensitive information and proprietary information; and
(f) Regulatory, funding, and legal barriers to sharing the information described in paragraphs (a) through (d).
The Secretary will publish the VIS Working Group's recommendations on a publicly available DOT website and in the docket. The VIS Working Group will fulfill its purpose once its recommendations are published online.
PHMSA will publish the agenda on the PHMSA meeting page
The Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 6, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461-5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, OM invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of OM functions, including whether the information will have practical utility; (2) the accuracy of OM estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
• Replace both existing VA forms 10-6131 (Daily Log (Contract Progress Report—Formal Contract)) and 10-6001a (Contract Progress Report) with one new form, which combines the intended purpose for VA Form 10-6131 and VA Form 10-6001a. The new combined form is now read: “VA Form 10101, Contractor Production Report.”
• Renumber VA Form 10-6298 Architect-Engineer Fee Proposal, to “VA Form 6298,” and revise the contents in the form with updated thresholds and FAR citations.
The above proposed revisions do not change the currently approved burden hours. The actual VA forms 10101 and 6298 can be located at VA Forms website (
The Department of Veterans Affairs' Office of Construction and Facilities Management (CFM) manage a multi-million-dollar construction program that involves the design and construction of medical centers, and other VA facilities including building improvements and conversions. The actual construction work is contracted out to private construction firms.
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the Advisory Committee on Former Prisoners of War (FPOW) will meet September 20-23, 2018, from 8 a.m.-5:30 p.m. PDT at the Loma Linda VA Medical Facility located at 11201 Benton Street, Loma Linda, CA 92357. Sessions are open to the public, except when the Committee is conducting a tour of VA facilities. Tours of VA facilities are closed, to protect Veterans' privacy and personal information.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of benefits for Veterans who are FPOWs, and to make recommendations on the needs of such Veterans for compensation, health care, and rehabilitation.
On Thursday, September 20th, the Committee will assemble in open session from 8 a.m. to 5:30 p.m. for discussion and briefings from Veterans Benefits Administration (VBA) and Veterans Health Administration (VHA) officials.
On Friday, September 21st, the Committee will convene an open session to hear briefings from 8 a.m. to 11 a.m. From 11:10 a.m. to 2:30 p.m., the Committee will convene a to travel to and tour the National POW/MIA Memorial. From 2:30 p.m. to 5:30 p.m., the Committee will convene a closed session-to meet at the subcommittee level where they will perform prepatory work covering research areas and
On Saturday, September 22nd from 8 a.m. to 9:30 a.m., the Committee will continue its closed session of those discussions items from the previous afternoon meeting. At 10 a.m., the Committee will take part in a National POW/MIA Recognition Day Ceremony at the Loma Linda VA medical center. At 12 p.m., the committee meeting will be formally adjourned. Public participation will commence as follows:
FPOWs who wish to speak at the public forum are invited to submit a 1-2-page commentary for inclusion in official meeting records. Any member of the public may also submit a 1-2-page commentary for the Committee's review.
Any member of the public wishing to attend the meeting or seeking additional information should contact Ms. Leslie N. Williams, Designated Federal Officer, Advisory Committee on Former Prisoners of War at
U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security (DHS); U.S. Citizenship and Immigration Services (USCIS), DHS; U.S. Customs and Border Protection (CBP), DHS; Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
The U.S. Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) (“the Departments”) propose to amend regulations relating to the apprehension, processing, care, custody, and release of alien juveniles. In 1985, plaintiffs in a class action lawsuit, Flores v. Reno, challenged the policies of the legacy Immigration and Naturalization Service (INS) relating to the detention, processing, and release of alien juveniles. The parties reached a settlement agreement, referred to as the
Most prominently, the rule would create an alternative to the existing licensed program requirement for family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law.
Written comments and related material must be submitted on or before November 6, 2018.
You may submit comments on the entirety of this proposed rule package identified by DHS Docket No. ICEB-2018-0002, by any
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We encourage all interested parties to participate in this rulemaking by submitting written comments, views, and data on all aspects of this proposed rule. The Departments also invite comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. All comments received will be posted, without change, to
All comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to the Departments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. If you submit comments, please indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. As this rule is being promulgated by two Departments, it is especially helpful if your comment, and each relevant part of that comment, indicates a specific section to which it applies, or at a minimum each specific Department or Departments to which it is addressed. In this way, the comment may be better understood and distributed to the appropriate Department for response. You may submit your comments and materials online or by mail, but please use only one of these means. If you submit a comment online via
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
We will consider all comments and materials received during the comment period and may change this rule based on your comments.
The Departments will only consider comments timely submitted to the docket for this rulemaking. In light of the period of time that has elapsed since the 1998 DOJ proposed rule on this topic, the Departments have established a new docket for this rulemaking. Comments submitted to the Departments on this topic prior to opening of the docket for this proposed rule will
As stated in the Submitting Comments section above, please be aware that anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).
This rulemaking would implement the relevant and substantive terms of the
From a practical perspective, one of the most important changes from the literal text of the FSA would be the licensing requirement that applies to programs in which minors may be detained during immigration proceedings. Under the FSA, such facilities must be licensed “by an appropriate State agency . . . for dependent children.” FSA paragraph 6. That requirement is sensible for unaccompanied alien children, because all States have licensing schemes for the housing of unaccompanied juveniles who are by definition “dependent children,” and accordingly the rule would not change that requirement for those juveniles. But the need for the license to come specifically from a “state agency” (rather than a federal agency) is problematic now that the FSA has been held to apply to accompanied minors, including those held at FRCs, because States generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians, and therefore are by definition not “dependent children.” The application of the FSA's requirement for “state” licensing to accompanied minors can effectively require DHS to release minors from detention in a non-state-licensed facility even if the parent/legal guardian and child would otherwise continue to be detained together during their removal proceedings, consistent with applicable law. The rule here would eliminate that barrier to the continued use of FRCs, by creating an alternative federal licensing scheme for such facilities. The goal is to provide materially identical assurances about the conditions of such facilities, and thus to implement the underlying purpose of the FSA's licensing requirement, and in turn to allow families to remain together during their immigration proceedings.
The Secretary of Homeland Security derives her authority to promulgate these proposed regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101
Section 462 of the HSA also transferred to the Office of Refugee Resettlement (ORR) Director “functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization.” 6 U.S.C. 279(a). The ORR Director may, for purposes of performing a function transferred by this section, “exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function” immediately before the transfer of the program. 6 U.S.C. 279(f)(1).
Consistent with provisions in the HSA, the TVPRA places the responsibility for the care and custody of all UACs who are not eligible to be repatriated to a contiguous country with the Secretary of Health and Human Services.
This proposed rule would implement the FSA by putting in regulatory form measures that materially parallel its standards and protections, and also by codifying the current requirements for complying with the FSA, the HSA, and TVPRA. U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) encounter minors and UACs in different manners. CBP generally encounters UACs and minors at the border. In Fiscal Year (FY) 2017, CBP apprehended 113,920 juveniles.
The Departments consider their current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA to be the baseline for the analysis of costs and benefits. DHS already incurs the costs for these operations; therefore, they are not costs of this proposed rule. A primary source of new costs for the proposed rule would be a result of the proposed alternative licensing process, which would allow ICE to continue detaining some minors along with their accompanying parent or legal guardian in FRCs. ICE also is proposing changes to its current practice for parole determinations to align them with applicable statutory and regulatory authority, which may result in fewer minors or their accompanying parent or legal guardian released on parole. These changes may increase variable annual FRC costs paid by ICE. While DHS acknowledges that this rule may result in additional or longer detention for certain minors, DHS is unsure how many individuals will be detained at FRCs after this rule is effective or for how much longer individuals may be detained because there are so many other variables to consider. Therefore, DHS is unable to provide a quantified estimate of any increased FRC costs. DHS is also unable to provide an estimate of the cost of any increased detention on the individuals being detained. HHS does not anticipate significant new costs associated with this rule, although it will assume some costs from the Department of Justice related to hearings for UACs, with potential associated start-up costs.
The primary benefit of the proposed rule would be to implement the FSA in regulations, and in turn to terminate the agreement as contemplated by the FSA itself. The result would be to provide for the sound administration of the detention and custody of alien minors and UACs to be carried out fully, pursuant to the INA, HSA, TVPRA, and existing regulations issued by the Departments responsible for administering those statutes, rather than partially carried out via a decades-old settlement agreement. The rule would ensure that applicable regulations reflect the Departments' current operations with respect to minors and UACs in accordance with the relevant and substantive terms of the FSA and the TVPRA, as well as the INA. Further, by modifying the literal text of the FSA in limited cases to reflect and respond to intervening statutory and operational changes, DHS will ensure that it retains discretion to detain families, as appropriate and pursuant to its statutory and regulatory authorities, to meet its enforcement needs, but while still providing similar protections to minors. HHS was not an original party to the FSA and instead inherited administration of some of its provisions. The proposed rule similarly benefit HHS as it clearly delineates ORR's responsibilities from that of other Federal partners. Additionally, the proposed implementation of the FSA's substantive provisions, specifically the minimum standards for licensed facilities and the release process, would provide clear standards for the program's network of state licensed facilities.
Prior to the enactment of the HSA, the Attorney General and the legacy INS had the primary authority to administer and enforce the immigration laws. In the period leading up to the
On July 11, 1985, four alien juveniles filed a class action lawsuit in the U.S. District Court for the Central District of California,
Prior to a ruling on any of the issues, on November 30, 1987, the parties entered into a Memorandum of Understanding (MOU) on the conditions of detention. The MOU stated that minors in INS custody for more than 72 hours following arrest would be housed in facilities that met or exceeded the standards set forth in the April 29, 1987, U.S. Department of Justice Notice of Funding in the
At approximately the same time that the MOU was executed, the INS published a proposed rule on the Detention and Release of Juveniles to amend 8 CFR parts 212 and 242.
On May 24, 1988, the district court where the original
The INS appealed, and in 1993, the U.S. Supreme Court rejected Plaintiffs' facial challenge to the constitutionality of the INS's regulation concerning the care of alien juveniles.
The regulations promulgated in 1988 have remained in effect since publication, but were moved to 8 CFR 236.3 in 1997.
The Supreme Court decision in
Whereas only one Department was involved in the creation of the FSA, three Departments now implement the FSA's substantive terms. After the 2001 Stipulation, Congress enacted the HSA and the TVPRA, both of which impact the treatment of alien juveniles. Among other changes, the HSA created DHS and, along with the TVPRA, transferred the functions under the immigration laws with respect to the care and then custody of UACs referred by other Federal agencies to HHS ORR. The TVPRA also further regulated the Departments' respective roles with respect to UACs.
To summarize those roles under the current statutory framework: DHS apprehends, provides care and custody for, transfers, and removes alien minors; DHS apprehends, transfers, and removes UACs; and ORR provides for care and custody of UACs who are in federal custody (other than those permitted to withdraw their application for admission) referred to ORR by other Departments. DHS and HHS are therefore now proposing to issue regulations implementing the relevant and substantive terms of the FSA, consistent with the HSA and TVPRA, and in turn to terminate the FSA.
The INA, as amended, provides the primary authority for DHS to detain certain aliens for violations of the immigration laws. Congress expanded legacy INS's detention authority in IIRIRA, Public Law 104-208, 110 Stat. 3009. In that legislation, Congress amended the INA by providing that certain aliens were subject to either mandatory or discretionary detention by the INS. This authorization flowed to DHS after the reorganization under the HSA. Specifically, DHS's authority to detain certain aliens comes from sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C. 1225, provides that applicants for admission to the United States, including those subject to expedited removal, shall be detained during their removal proceedings, although such aliens may be released on parole in limited circumstances, consistent with the statutory standard set forth in 8 U.S.C. 1182(d)(5) and standards set forth in the regulations. Section 236 of the INA, 8 U.S.C. 1226, provides the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, and section 241, 8 U.S.C. 1231, authorizes the detention of aliens during the period following the issuance of a final order of removal. Other provisions of the INA also mandate detention of certain classes of individuals, such as criminal aliens.
As noted, the HSA, Public Law 107-296, 116 Stat. 2135, transferred most of the functions of the INS from DOJ to the newly-created DHS. DHS and its various components are responsible for border security, interior immigration enforcement, and immigration benefits adjudication, among other duties. DOJ's EOIR retained its pre-existing functions relating to the immigration and naturalization of aliens, including conducting removal proceedings and adjudicating defensive filings of asylum claims.
The functions regarding care of UACs were transferred from the INS to ORR. The HSA states ORR shall be responsible to coordinate and implement the care and placement of UACs who are in Federal custody by reason of their immigration status. ORR was also tasked with identifying a sufficient number of qualified individuals, entities, and facilities to house UACs, and with ensuring that the interests of the child are considered in decisions and actions relating to his or her care and custody.
Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, Title II, Subtitle D, 122 Stat. 5044 (codified in principal part at 8 U.S.C. 1232), then stated that consistent with the HSA, and except as otherwise provided with respect to certain UAC from contiguous countries (
The Secretary of HHS delegated the authority under the TVPRA to the
As discussed above, in 1996 the U.S. Government and
Paragraph 9 of the FSA explains its purpose: To establish a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Paragraph 4 defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS,” but the definition excludes minors who have been emancipated or incarcerated due to a criminal conviction as an adult. The FSA established procedures and conditions for processing, transportation, and detention following apprehension, and set forth the procedures and practices that the parties agreed should govern the INS's discretionary decisions to release or detain minors and to whom they should or may be released.
The FSA was originally set to expire within five years, but on December 7, 2001, the Parties agreed to a termination date of “45 days following defendants' publication of final regulations implementing this Agreement.” A copy of the FSA and the 2001 Stipulation is available in the docket for this rulemaking. The primary purpose of the regulations is to “implement[] the Agreement,” and in turn to terminate the FSA.
On January 26, 2004, Plaintiffs filed their first motion to enforce the agreement, alleging, among other things, that CBP and ICE: (1) Regularly failed to release class members
On February 2, 2015, Plaintiffs filed a second motion to enforce the agreement, alleging that CBP and ICE were in violation of the FSA because: (1) ICE's supposed no-release policy—
On July 24, 2015, the district court granted Plaintiffs' second motion to enforce and denied Defendant DHS's contemporaneous motion to modify the agreement.
On August 21, 2015, the court denied the Government's motion to reconsider and issued a subsequent remedial order for DHS to implement six remedies.
On May 17, 2016, plaintiffs filed a third motion to enforce the agreement, claiming that DHS continued to violate the agreement by: (1) Holding class members in CBP facilities that did not meet the requirements of the FSA; (2) failing to advise class members of their rights under the FSA; (3) making no efforts to release or reunify class members with family members; (4) holding class members routinely with unrelated adults; (5) detaining class members for weeks or months in secure, unlicensed facilities in violation of the FSA; and (6) interfering with class members' right to counsel. The Government filed a response on June 3, 2016.
On June 27, 2017, the district court issued an opinion concluding that ICE had not complied with the FSA because it had failed to advise class members of their rights under the FSA, failed to make continuous efforts to release class
The district court also concluded that CBP acted in violation of the FSA in the Rio Grande Valley Border Patrol Sector. The court pointed to allegations that CBP failed to provide class members adequate access to food and water, detained class members in conditions that were not safe and sanitary, and failed to keep the temperature of the holding cells within a reasonable range. The court ordered the appointment of a Juvenile Coordinator for ICE and CBP, responsible for monitoring the agencies' compliance with the Agreement. The Government's appeal of that decision remains pending.
On August 12, 2016, Plaintiffs filed a fourth motion to enforce the agreement, claiming that ORR violated the agreement by failing to provide UACs in ORR custody with a bond redetermination hearing by an immigration judge. The Government argued that the HSA and the TVPRA effectively superseded the FSA's bond-hearing requirement with respect to UACs, that only HHS could determine the suitability of a sponsor (thus determining release), and that immigration judges lacked jurisdiction over UACs in ORR custody. The district court agreed that only HHS could determine the suitability of a sponsor, but disagreed that subsequent laws fully superseded the FSA.
On January 20, 2017, the court found that HHS breached the FSA by denying UACs the right to a bond hearing as provided for in the FSA.
On April 16, 2018, Plaintiffs filed a fifth motion to enforce the agreement, claiming ORR unlawfully denied class members licensed placements, unlawfully medicated youth without parental authorization, and peremptorily extended minors' detention on suspicion that available custodians may be unfit. On July 30, 2018, the district court issued an Order.
On June 21, 2018, in accordance with the President's June 20, 2018, Executive Order “Affording Congress an Opportunity to Address Family Separation,” the Government sought limited emergency relief from two provisions of the FSA—the release provision of Paragraph 14, as well as the licensing requirements of Paragraph 19. This relief was sought in order to permit DHS to detain alien family units together for the pendency of their immigration proceedings. The court denied this motion on July 9, 2018.
This Motion to Modify sought relief consistent with this proposed rule, although this rule includes some affirmative proposals (like the federal-licensing regime) that were not at issue in that motion. For example, as discussed below, by creating a federal licensing scheme for FRCs, the proposed rule would eliminate a barrier to keeping family units in detention during their immigration proceedings, consistent with all applicable law while still providing similar substantive protections to minors.
Under the requirements of the FSA, when DHS apprehends an alien parent or legal guardian with his or her child(ren) either illegally entering the United States between the ports of entry or found inadmissible at a port of entry, it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: (1) Parole all family members into the United States; (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or transfer them to HHS to be treated as an UAC; or (3) detain the family unit together by placing them at an appropriate FRC during their immigration proceedings. The practical implications of the FSA, including the lack of state licensing for FRCs, have effectively prevented the Government from using the third option for more than a limited period of time. This rule would, when finalized, eliminate that barrier and allow for the full range of options at each stage of proceedings.
On June 20, 2018, the President issued Executive Order 13841 specifying that “[i]t is . . . the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” E.O. 13841 sec. 1, 83 FR 29435. The President further provided that the Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any . . . immigration proceedings involving their members.”
There are several advantages to maintaining family unity during immigration proceedings. Those include the interest in the child being with and under the considerate care of the parent, the strong interest parents have in caring for their children, the guidance parents can provide to children during immigration proceedings and the manner in which keeping families together facilitates communications among family members, the consolidation of the family members'
This rule serves to clear the way for the sensible use of family residential centers when it is lawful and appropriate. In particular, it would create a federal licensing process to resolve the current problem caused by a state-licensing requirement that is ill-suited to family detention, and it would allow for compatible treatment of a family unit in immigration custody and proceedings by eliminating barriers to that compatibility imposed by the FSA. Further, it would eliminate the disparate legal regime that currently applies to decisions to detain a family unit, with one regime applying to the minor (the FSA, including the state-licensing requirement and release provisions under FSA paragraph 14) and another regime applying to the parent (the existing statutes and regulations governing release on bond or parole under the relevant circumstances). That disparate regime creates problems for maintaining family unity while also enforcing the immigration laws. Instead, the proposed rule would ensure that a single regime applies to the family unit, namely, the existing statutes and regulations governing release on bond or parole.
This rule would allow for detention at FRCs for the pendency of immigration proceedings (subject to all applicable statutes and regulations governing their detention or release) in order to permit families to be detained together and parents not be separated from their children. It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles will remain in the United States outside of immigration detention may incentivize these risky practices.
In the summer of 2014, an unprecedented number of family units from Central America illegally entered or were found inadmissible to the United States. In Fiscal Year 2013, the total number of family units apprehended entering the United States illegally on the Southwest Border was 14,855. By Fiscal Year 2014, that figure had increased to 68,445.
Prior to 2014, the only option available to the Government for the large majority of family units entering the United States was the first option described above—
DHS mounted a multi-pronged response to this situation. As one part of this response, DHS placed families at existing FRCs and oversaw the construction of appropriate facilities to detain family units together, in a safe and humane environment, during the pendency of their immigration proceedings, which typically involved expedited removal. Although it is difficult to definitively prove a causal link given the many factors that influence migration, DHS's assessment is that this change helped stem the border crisis, as it correlated with a significant drop in family migration: Family unit apprehensions on the Southwest Border dropped from 68,445 in Fiscal Year 2014 to 39,838 in Fiscal Year 2015.
Although the border crisis prompted DHS to hold family units together, DHS quickly faced legal challenges asserting that the FSA applied to accompanied minors and that family detention did not comply with the provisions of the FSA. In July 2015, a federal court rejected the Government's interpretation of the FSA to permit family residential centers, and declined to modify the FSA to allow DHS to address this significant influx of family units crossing the border and permit family detention.
When the FSA was found to apply to accompanied minors—an interpretation with which the Government continues to disagree—the agencies faced new practical problems. The FSA requires DHS to transfer minors to a non-secure, licensed facility “as expeditiously as possible,” and further provides that a “licensed” facility is one that is “licensed by a State agency.” FSA paragraphs 6, 12(A). That prompted significant and ongoing litigation regarding the ability to obtain state licensing of FRCs, as many States did not have, and have not succeeded in putting in place, licensing schemes governing facilities that hold family units together. That litigation severely limited the ability to maintain detention of families together. Again, although it
As long as the licensing must come from a state specifically (rather than from the federal government), DHS's ability to effectively use family detention is limited. A federal program (especially immigration enforcement) that the Constitution and Congress commit to federal discretion should not depend on state licensing, particularly when a well-established state licensing scheme does not already exist. In order to avoid separating family units, DHS needs to release adult family members in cases where detention would otherwise be mandatory and DHS determines parole is not appropriate, or in cases where DHS and/or immigration courts believe detention of the parent is needed to ensure appearance at future removal proceedings or to prevent danger to the community.
As described above, there have been several important changes in law and circumstance since FSA was executed: (1) A significantly changed agency structure addressing the care and custody of juveniles, including the development of FRCs that provide appropriate treatment for minors while allowing them to be held together with their families; (2) a new statutory framework that governs the treatment of UACs; (3) significant increases in the number of families and UACs crossing the border since 1997, thus affecting immigration enforcement priorities and national security; and (4) further recognition of the importance of keeping families together during immigration proceedings when appropriate and the legal and practical implications of not providing uniform proceedings for family units in these circumstances. The agencies have thus determined that it is necessary to put into place regulations that comply with the relevant and substantive terms of the FSA regarding the conditions for custodial settings for minors, but, through federal licensing, will provide the flexibility necessary to protect the public safety and enforce the immigration laws given current challenges that did not exist when the FSA was executed. This proposed rule will provide DHS with the option of keeping families who must or should be detained together at appropriately licensed FRCs for the time needed to complete immigration proceedings, subject to the sound implementation of existing statutes and regulations governing release on parole or bond.
The primary purpose of this action is to promulgate regulations that would ultimately lead to the termination of the FSA, as provided for in FSA paragraph 40. This proposed rule would implement the relevant and substantive terms of the FSA and provisions of the HSA and TVPRA where they necessarily intersect with the FSA's provisions. The rule would also make some modifications to the literal text of the FSA, but while providing similar substantive protections to juveniles. For example, the rule would allow for detention of families together in federally-licensed programs (rather than facilities licensed specifically by a state). States generally do not have licensing schemes for family residential centers. Thus, the literal text of the FSA currently imposes a limitation on DHS's ability to detain family units together in a FRC during their immigration proceedings, consistent with applicable law. The federal licensing scheme in turn would provide similar substantive protections regarding the conditions of such facilities, and thus implement the underlying purpose of the state-licensing requirement.
This rule is proposed under the FSA's guiding principle that the Government treats, and shall continue to treat, all juveniles in its custody with dignity, respect, and special concern for their particular vulnerability as minors.A07SE2.
The current DHS regulations on the detention and release of aliens under the age of 18 found at 8 CFR 236.3 have not been substantively updated since their promulgation in 1988.
As noted, the proposed regulations would implement the relevant and substantive terms of the FSA and related statutory provisions. Separate from the FSA, DHS has over time developed various policies and other sub-regulatory documents that address issues related to DHS custody of minor aliens and UACs.
Finally, this proposed rule excludes those provisions of the FSA that are
As stated above, the purpose of this rule is to terminate the FSA by to promulgating regulations that implement it, with minor modifications to reflect changes in governing law and the operational realities on the ground. These proposed regulations, therefore, largely replicate the language of the FSA for publication in the Code of Federal Regulations. The Departments propose some modifications to the literal text of the FSA, however, to ensure the Government continues to comply with the underlying goals of the FSA in a legal and operational environment that has significantly changed since the FSA was signed over 20 years ago.
The Departments have different responsibilities vis-à-vis implementation of the FSA, and so each Department's proposed regulatory text seeks to address these various responsibilities. DHS's proposed regulations seek to establish procedures for the apprehension, processing, care, custody, and release of alien minors, consistent with its obligations under the FSA. While the following sections explain why the proposed regulations do not adopt the literal text of the FSA in certain circumstances, one notable change is the proposal for an alternative licensing process that would allow FRCs to be considered “licensed programs” under FSA paragraph 6, and thus suitable for the detention of non-UAC minors, along with their accompanying parents or legal guardians, for longer periods of time than they are currently used. DHS proposes these changes to allow the Department to fully and consistently apply the law to all aliens who are subject to detention, so that aliens do not have the opportunity to abscond from DHS custody simply because they were encountered with children.
HHS's proposed regulations seek to establish procedures for the processing, care, custody, and release of certain UACs that by law are subject to the care and custody of ORR.
DHS proposes to make edits to current section 212.5 primarily to ensure that the terminology used in that section is consistent with the language used in the additional proposed amendments codifying the FSA, explained below. DHS proposes to remove the term “juvenile” from 8 CFR 212.5(b) and replace it with “minor in DHS custody,” as the proposed amendments to 8 CFR 236.3 remove the term “juvenile,” from its definitions section.
DHS also proposes to remove the words “relative,” “brother,” “sister,” “aunt,” “uncle,” “or grandparent,” and replace these terms with “parent or legal guardian.” Given that, pursuant to the HSA and TVPRA, DHS does not have the legal authority to release a juvenile in its custody to anyone other than a parent or legal guardian,
DHS is also proposing to remove the cross-reference to section 235.3(b) as it currently appears in section 212.5(b), to eliminate an ambiguity and to codify its longstanding understanding of how certain provisions in section 235.3(b) relating to parole of aliens in expedited removal proceedings apply to minors. In particular, eliminating that cross reference would make it clear that the provisions in section 235.3(b) governing parole of an aliens in expedited removal apply to all such aliens, and not merely adults. The current cross-reference to section 235.3(b) is confusing, however, because it suggests that the more flexible standard in section 212.5(b) might override those provisions when a minor is in expedited removal. DHS disagrees with that interpretation of its current regulations, which, among other things, is in tension with the text of the relevant statutory provision. See 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (“Any alien subject to [expedited removal] shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”). DHS is accordingly amending section 212.5(b) to codify its understanding and to eliminate the ambiguity and any potential tension with the statute. This change is discussed more fully below.” DHS proposes to revise its current regulations on the detention and release of minor aliens by replacing section 236.3 in its entirety. Proposed paragraph 236.3(a)(1) codifies the FSA's general policy statement, found in paragraph 11 of the FSA, that minors and UACs in DHS custody shall be treated with dignity, respect, and special concern for their particular vulnerability.
Current section 236.3 on the “Detention and release of juveniles” is silent with respect to whether its provisions apply to aliens detained under mandatory or discretionary legal authorities. This distinction is often meaningful in immigration law because the authority under which aliens are detained may dictate which regulations apply to those detained aliens. However, the FSA does not distinguish the applicability of its provisions as between aliens held under mandatory or discretionary legal authorities. Proposed § 236.3(a)(2), therefore, provides that the provisions of the section apply equally to those minors who are subject to mandatory detention as those subject to discretionary detention, to the extent authorized by law.
The current regulations at section 236.3(a) contain a single definition of the term “juvenile,” which is defined as any alien under the age of 18. The FSA does not use the term “juvenile,” but it contains several other terms of art that must be defined in DHS regulations to parallel the terms of the agreement. This proposed rule, therefore, removes the term “juvenile” from the definitions in section 236.3 and adds several other definitions that are either explicitly written into the FSA or are necessary to understanding the FSA's provisions, given the changes in law that have occurred since the FSA's signing.
The definitions of minor and UAC are not mutually exclusive, because although most UACs will also meet the definition of minor, some will not. For instance, an alien juvenile who has been legally emancipated does not meet the definition of a minor as set out in the FSA, so the provisions of this proposed rule would not apply to that juvenile. The definition of UAC, however, does not exclude emancipated juveniles. Thus, if an immigration officer encounters any alien juvenile (regardless of whether such juvenile has been emancipated) who has no lawful immigration status, has not attained 18 years of age, and has no parent or legal guardian present in the United States or no parent or legal guardian is available to provide care and physical custody for that juvenile, the juvenile meets the definition of a UAC, and the immigration officer must transfer the juvenile to HHS as set forth under this rule. While the proposed rule does not include a definition of juvenile, this preamble uses the term juvenile to mean any alien under the age of 18.
The impact, severity, and timing of a given emergency situation dictate the operational feasibility of providing certain items to minors, and thus the regulations cannot contain every possible reality DHS will face. Thus, the definition of “emergency” is flexible and designed to cover a wide range of possible emergencies.
The FSA defines an influx as a situation where legacy “INS has, at any given time, more than 130 minors eligible for placement in a licensed program under Paragraph 19, including those who have been so placed or are awaiting such placement.” Accordingly, as proposed, DHS would adopt this definition of “influx” without change, except to reflect the transfer of responsibilities from legacy INS to DHS and ORR, and to reflect that DHS maintains custody of minors, as defined in this section, and, for the short period pending their transfer to ORR, UACs.
However, DHS regularly has more than 130 minors and UACs in custody who are eligible for placement in a licensed program, and for years has been operating at the current FSA definition of “influx.” DHS nonetheless believes that this defined term continues to be useful in the context in which it is used. As reflected in the discussion of proposed § 236.3(e) below, the main implication of the threshold for an “influx” is that in general, under the FSA, DHS is required to transfer non-UAC minors to licensed facilities “as expeditiously as possible” rather than within either a 3- or a 5-day timeframe, because DHS is currently operating under an influx. Notably, the FSA's transfer timeframes no longer control for DHS operations with respect to UACs—the TVPRA requires that UACs be transferred out of DHS custody within 72 hours of determining that the alien is a UAC, absent exceptional circumstances. As a result, although the number of UACs in custody could impact whether DHS is operating under an “influx,” the transfer of UACs to ORR remains governed by the requirements of the TVPRA at all times. Given current operational realities, the “as expeditiously as possible” timeframe contained in the FSA remains appropriate and consistent with DHS's goal to expeditiously transfer minors who are not UACs. DHS also notes that even under this standard,
DHS nonetheless welcomes public comment on whether it would be appropriate to revise the definition of influx to better reflect current operational realities. For instance, DHS could define an influx as a situation in which DHS determines that significantly more minors or UACs are awaiting transfer than facility space is available to accommodate them, which prevents or delays timely transport or placement of minors or impacts other conditions provided by the regulations. This definition may effectively codify the relevant and substantive terms of the FSA in today's context. It would also allow for flexibility across the national operations of DHS, without imposing a hard numerical trigger for when the definition of “influx” applies. Under this option, DHS would not be operating under an “influx” as a steady state, as the FSA's definition of influx currently requires; instead, an influx would only exist when there is a significant number of minors or UACs compared to available bed space in licensed facilities, and that the surrounding circumstances prevent or delay the timely transport or placement of minors or impact other conditions provided by the regulations. A single factor alone would not trigger such a provision.
However, most states do not offer licensing for facilities like these FRCs,
Specifically, DHS proposes that if no such licensing scheme is available in a given jurisdiction, a facility will be considered licensed if DHS employs an outside entity to ensure that the facility complies with family residential standards established by ICE. This alternative licensing process is being proposed to enable DHS to house minors together with their parents or legal guardians in FRCs, subject to appropriate standards and oversight, even in jurisdictions in which an applicable licensing regime is unavailable. By providing an alternative to state licensure where such licensure is unavailable, DHS would appropriately preserve its ability to detain minors together with their parents or legal guardians throughout the removal process, if DHS decides, consistent with the standards in the proposed rule and applicable statutes and regulations, that it is necessary or appropriate to maintain custody for more than a brief period. Moreover, the alternative federal licensing scheme would provide effectively the same substantive protections that the state-licensing requirement exists to provide, and accordingly fulfill the underlying purpose of the state-licensing requirement under the FSA. And by requiring DHS to hire an auditor to ensure compliance with ICE's detention standards, DHS's alternative licensing process would mirror analogous state licensure processes for detention centers and achieve the goals of state licensure by providing third-party oversight of a facility's compliance with an established set of standards.
Finally, while the FSA uses the term “non-secure,” as a part of the definition of a licensed program, the FSA does not define this term. The proposed rule provides a definition of non-secure to provide clarity on the use of this term in the immigration detention context. Like the availability of a license for FRCs, the definition of a non-secure facility may vary by state or locality. Accordingly, DHS proposes that a facility will be deemed non-secure if it meets its state's or locality's definition, but if no such definition is provided by the state or locality, the proposed rule provides that a facility will be deemed non-secure if it meets an alternative definition derived from Pennsylvania's definition of secure care.
Determining the age of an alien is not discussed in the current regulations, but is essential for DHS to apply the appropriate provisions of the FSA and the TVPRA to an alien in its custody. Paragraph 13 of the FSA provides a “reasonable person” standard for determining whether a detained alien is an adult or a minor. Paragraph 13 also allows medical or dental examinations by a medical professional, or other appropriate procedures, for purposes of age verification. Proposed 8 CFR 236.3(c) would incorporate the FSA's “reasonable person” standard and the FSA's standards with respect to medical and dental examinations, and would also be consistent with the TVPRA's standards for determining whether an alien is under or over the age of 18. The proposed rule would add that age determinations must be based on the totality of the evidence and circumstances.
The current regulations make no distinction between UACs and other minors. While no distinction is included in the language of the FSA, such a distinction is made necessary by the HSA and TVPRA, as explained above. Accordingly, proposed 8 CFR 236.3(d) would explain when DHS makes a determination whether an alien juvenile is a UAC. Under the proposed rule, immigration officers will make a determination of whether an alien meets the definition of a UAC each time they encounter the alien. Therefore, even though an alien may have been previously determined to be a UAC, the alien may no longer meet the statutory definition of a UAC if the alien reaches the age of 18, acquires legal status, or if a parent or legal guardian is available in the United States to provide care and physical custody. The proposed paragraph also highlights that, once an alien no longer meets the definition of a UAC, the legal protections afforded only to UACs under the law cease to apply.
This section of the proposed rule would address the FSA's requirement that minors and UACs be transferred to and placed in “licensed programs.” Paragraph 12(A) of the FSA requires DHS to place in a licensed program those minors who are not released. As mentioned above, the FSA defines a licensed program as a program, agency, or organization that is “licensed by a State agency to provide residential, group, or foster care services for dependent children.” Facilities operated by licensed programs must be non-
As discussed above in connection with the proposed definition of “licensed facility” in proposed § 236.3(b)(9), this proposed rule would create an alternative system of regulating facilities, in lieu of state licensure. This system would allow ICE to make decisions regarding the detention of families together as a unit, under the applicable legal standard, while fulfilling the goals of state licensure by ensuring independent oversight of FRCs.
FSA paragraph 12(A) provides that legacy “INS will transfer a minor from a placement under this paragraph to a placement under Paragraph 19 [
The revised order of the text (
This provision would not retain two additional exceptions to the 3-day transfer timeframe. First, the exception at Paragraph 12(A)(2), requiring transfer in the timeline provided by “any court decree or court-approved settlement,” is not needed, as a court order would govern in any event. Second, the exception at paragraph 12(A)(4) of the FSA, allowing transfer within 5 days instead of 3 days in cases involving transport from remote areas or where an alien speaks an “unusual” language that requires the Government to locate an interpreter, is not included. DHS has matured its operations such that these factors no longer materially delay transfer.
Proposed § 236.3(e) would apply only to the transfer of non-UAC minors to licensed facilities because, following passage of the TVPRA, DHS transfers to ORR UACs who are not able to withdraw their application for admission in accordance with that Act.
Finally, under the proposed rule, as under FSA paragraph 12(c), DHS would continue to maintain a written plan describing the reasonable efforts it will take to place all minors who are not UACs as expeditiously as possible pursuant to FSA paragraph 12(C). (This would include placement in a federally-licensed FRC.) CBP and ICE have maintained such a plan through internal guidance for law enforcement operations.
The current regulations also do not address the transfer of UACs from DHS to ORR care and custody under the TVPRA. The FSA is also silent on this topic because the FSA does not distinguish between minors and UACs. Given the passage of the TVPRA and its specific requirements related to the transfer of UACs, the proposed regulations at section 236.3(f) track the TVPRA requirements. Specifically, the proposed regulations at section 236.3(f) prescribe procedures for transferring UACs to the care and custody of ORR within 72 hours (absent exceptional circumstances) of determining that an alien is a UAC.
Pursuant to the FSA, UACs, like accompanied minors, must be transferred to a licensed program within the 3- and 5-day timeframes provided by Paragraph 12(A), or, in an emergency or influx, “as expeditiously as possible.” The TVPRA timeline for the transfer of UACs to HHS does not address the requirements of Paragraph 12(A) with respect to the transfer of UACs to licensed programs. However, HHS now has the authority to provide care and custody of UACs referred to it, and thus, HHS ensures that a referred UAC is placed in an appropriate licensed program, when required under the TVPRA and the FSA.
The current regulations do not speak to the necessary conditions during the transfer of UACs between DHS and HHS facilities, although such conditions are addressed by paragraph 25 of the FSA. Consistent with paragraph 25 of the FSA, the proposed regulations stipulate that UACs will not be transported with unrelated detained adults except upon initial apprehension when being transferred to a DHS facility, or if separate transportation is impractical or unavailable.
For the safety and security of UACs and whenever operationally feasible, ICE and CBP currently make every attempt to transport and hold UACs separately from unrelated adults. As an example, CBP's U.S. Border Patrol (USBP) strives to transport UACs and unrelated adults in separate vehicles. However, given the various environments in which USBP operates, such as remote desert locations, separate transportation for UACs from place of apprehension to a USBP station is not always feasible or practical. In these cases, USBP strives to transport the UAC in a manner where she or he can be monitored. There are numerous
Current section 236.3(g) provides that each juvenile apprehended in the immediate vicinity of the border who permanently resides in Mexico or Canada shall be informed, prior to the presentation of the voluntary departure form or being allowed to withdraw his or her application for admission, that he or she may make a telephone call to a parent, close relative, a friend, or organization on the free legal services list. The current regulation also provides that if the juvenile does not reside in Mexico or Canada, that juvenile must in fact communicate with a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form.
In addition, the current regulations at 8 CFR 236.3(h) provide for alien juveniles to be given a Form I-770 Notice of Rights and Disposition, which will be read and explained to the juvenile in a language the juvenile understands if he or she is less than 14 years of age. This paragraph further provides that, in the event that a juvenile who has requested a hearing pursuant to the Form I-770 subsequently decides to accept voluntary departure or is allowed to withdraw his or her application for admission, a new Form I-770 shall be given to, and signed by the juvenile.
The former INS promulgated much of 8 CFR 236.3 to implement the U.S. District Court for the Central District of California's order in
Paragraph 12(A) of the FSA provides that whenever the Government takes a minor or UAC into custody, it shall expeditiously process the minor or UAC and shall provide the minor or UAC with a notice of rights, including the right to a bond redetermination hearing, if applicable. Under paragraph 24(D) of the FSA, DHS promptly provides all non-UAC minors who are not released with a Form I-770, an explanation of the right of judicial review, and a list of free legal services. The proposed rule's section 236.3(g) would retain the provisions related to the presentation of the Form I-770, explanation of the right of judicial review, and the list of free legal services, as set out in current regulations and the FSA.
The proposed regulations at 8 CFR 236.3(g)(1) would change the regulatory text to reflect current operations, but also preserve the intent of these regulations and FSA paragraphs 12(A) and 24(D), and would continue to comply with
Pursuant to the requirements of the current regulations and FSA Paragraph 12(A), CBP currently provides an I-770 to each minor or UAC during processing. If, after processing, CBP determines that a minor or UAC who was processed for a voluntary departure or a withdrawal of his or her application for admission is no longer amenable to such a disposition because, for instance, the minor or UAC is no longer eligible for voluntary departure, CBP will re-process the minor or UAC for a more appropriate disposition, such as the issuance of a Notice to Appear before an immigration judge. When the minor or UAC is reprocessed, the minor or UAC is issued a new I-770, or the original one is updated accordingly. By issuing a new I-770, or updating the original one, CBP ensures that, in situations in which it is appropriate to change a minor or UAC's immigration disposition, the minor or UAC continues to remain aware of his or her rights. In addition, CBP generally provides a minor or UAC who is being processed for a Notice to Appear with the list of free legal service providers.
Proposed 8 CFR 236.3(g) would provide that minors or UACs who enter DHS custody will be provided an I-770 that will include a statement that the minor or UAC may make a telephone call to a parent, close relative, or friend. The proposed rule would specifically address the list of free legal service providers at proposed § 236.3(g)(1)(iii), which would apply to every minor who is not a UAC who is transferred to or remains in a DHS detention facility.
In addition, pursuant to the TVPRA, DHS currently screens all UACs from contiguous countries to determine whether such a UAC may be permitted to withdraw his or her application for admission. As part of this screening, the UAC is provided with an I-770 Notice of Rights. UACs from non-contiguous countries are not permitted to withdraw their application for admission, but are similarly provided with the I-770 Notice of Rights. These TVPRA requirements similarly ensure that the due process concerns identified by the court in
Proposed § 236.3(g)(1)(i) also does not include the requirement in current section 8 CFR 236.3(g) that a juvenile who does not reside in Mexico or Canada must in fact communicate with a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form. However, the passage of the TVPRA has made this requirement no longer necessary. Specifically, pursuant to the TVRPA, only UACs who reside permanently in Mexico or Canada are permitted to withdraw their application for admission. 8 U.S.C. 1232(a)(2). Additionally, any minor who is not a UAC, but who is accompanied by a parent or legal guardian who is permitted to voluntarily depart the United States or withdraw his or her application for admission as a member of a family unit would, in general, be undertaking such action along with his or her accompanying parent or legal guardian. Therefore, the minor would, by default, have an opportunity to communicate with his or her parent or legal guardian at that time.
Proposed § 236.3(g)(1)(i) relates only to situations in which DHS processes a minor or UAC. Thus, it does not address situations in which a minor or UAC is in immigration proceedings before an immigration judge. For example, this regulation does not address a situation in which a minor or UAC has been granted voluntary departure by an immigration judge, but then subsequently requests to proceed to a hearing. In such a situation, DHS envisions that, consistent with current practice, the immigration judge would provide the minor or UAC with an appropriate advisal of rights.
Similarly, proposed §§ 236.3(g)(1)(ii) and (g)(1)(iii) would reflect the requirements in Paragraph 24(D) of the FSA related to the provision of the notice of judicial review and the notice
Proposed § 236.3(g)(2) discusses DHS's custodial care of a minor or UAC immediately following apprehension. Therefore, this paragraph applies, in general, to the time that a minor or UAC remains in a CBP facility prior to being transferred to ICE or to HHS. This paragraph parallels the requirements of FSA paragraphs 11 and 12(A). For instance, paragraph (g)(2), like the FSA, would require that minors and UACs shall be held in the least restrictive setting appropriate to the minor or UAC's age and special needs, provided that such setting is consistent with the need to protect the minor or UAC's well-being and that of others, as well as with any other laws, regulations, or legal requirements. The proposed rule would also include a cross-reference to DHS's regulations at 6 CFR 115.114, dealing specifically with sexual abuse and assault prevention for juvenile and family detainees in DHS's short-term holding facilities.
Proposed paragraph (g)(2), like the FSA, would require that minors and UACs be housed in facilities that are safe and sanitary, and that the facilities provide access to toilets and sinks, drinking water and food as appropriate, access to emergency medical assistance as needed, and adequate temperature and ventilation.
Consistent with FSA paragraphs 11 and 12(A), proposed paragraph (g)(2)(i) provides for contact between a minor or UAC and family members arrested with the minor or UAC. Following arrest of a minor or UAC and accompanying family members, CBP transports all individuals to a CBP facility for processing. During the time that the family group spends at the facility, CBP provides contact between the minor or UAC and all accompanying family members, absent concerns about the safety of the minor or UAC. This paragraph, therefore, addresses only the issue of contact between family members while they remain in CBP custody. The proposed rule is more detailed than FSA paragraph 12(A), insofar as it states, consistent with FSA paragraph 11, that the safety and well-being of the minor or UAC and operational feasibility are relevant considerations when allowing such contact. This is consistent with FSA paragraph 11, which requires that the setting of a juvenile's detention or holding be consistent with a range of factors, including the need to protect the juvenile's well-being or that of others. It is also consistent with DHS's regulations on the prevention of sexual abuse and assault in its facilities.
DHS's use of the term “operationally feasible” in this paragraph does not mean “possible,” but is intended to indicate that there may be limited short-term circumstances in which, while a minor or UAC remains together with family members in the same CBP facility, providing such contact would place an undue burden on agency operations. For instance, if a family member arrested with a minor or UAC requires short-term, immediate medical attention, CBP may be required to temporarily limit contact between that family member and the minor or UAC, in order to provide appropriate medical treatment. Or, CBP may have a legitimate law enforcement reason to temporarily limit contact between a minor or UAC and accompanying family members, such as when CBP decides it is in the minor or UAC's best interest to interview all family members separately. However, CBP will provide contact with family members arrested with the minor or UAC, and/or will hold accompanied minors in the same hold rooms as their accompanying family members, if doing so is consistent with the minor or UAC's safety and well-being and does not place an undue burden on agency operations.
Similarly, the proposed regulations would contain the same limit as the FSA on the amount of time UACs can be housed with an unrelated adult (no more than 24 hours), but the proposed regulations would explicitly allow DHS to depart from this standard in emergencies or other exigent circumstances, to the extent consistent with 6 CFR 115.14(b) and 115.114(b). For example, it may be necessary to house UACs with unrelated adults for more than 24 hours during a weather-related disaster such as hurricanes in southern Texas, or if an outbreak of a communicable disease such as scabies or chicken pox at a facility requires the temporary commingling of the detainee population. Appropriate consideration is given to age, mental condition, physical condition, and other factors when placing UACs into space with unrelated adults.
Where a juvenile is apprehended with his or her parent or legal guardian, the current regulations indicate that such parent or legal guardian may swear out an affidavit designating a person to whom the juvenile may be released. 8 CFR 236.3(b)(3). Since the passage of the TVPRA, however, DHS no longer has the authority to release a juvenile to someone who is not a parent or legal guardian, so this provision must be amended.
DHS's policy, consistent with E.O. 13841, is to maintain family unity, including by detaining families together where appropriate and consistent with law and available resources. The current regulations, however, do not address the detention of non-UAC minors together with their parents or legal guardians as “family units” while in the custody of DHS. Similarly, while the FSA considers that juveniles may be initially held with related family members, the FSA does not address whether the Government may continue to hold minors together with their parents or legal guardians after transfer to a “licensed program.” The proposed regulations in the new section 236.3(h) would set out requirements that must be met for a family to be detained together in an FRC. Per the definitions in proposed paragraph (b), and in accordance with the TVPRA, only minors, not UACs, would be held in DHS custody at an FRC.
The intention of this proposed paragraph is to clarify that DHS may, pursuant to its existing legal authorities,
If the parent or legal guardian of a family unit is subject to mandatory detention, but the non-UAC minor of the family unit is otherwise eligible for release, DHS must continue to detain the parent or legal guardian, consistent with applicable law and policy.
The current regulations contain one short paragraph about juvenile detention, stating that DHS may detain a juvenile if such detention is “necessary, for such interim period of time as is required to locate suitable placement for the juvenile” either with a parent, legal guardian, adult relative, or other suitable custodian or custodial facility. 8 CFR 236.3(d). As explained several times throughout this preamble, the FSA contains significant detail about requirements for DHS to detain juveniles, including a list of requirements for conditions of detention in the FSA's Exhibit 1. The proposed regulations at section 236.3(i) would completely replace the current regulations at section 236.3(d) with respect to the detention of minors who are not UACs.
The current regulations require that juveniles who are detained by DHS be housed in detention facilities that have separate accommodations for juveniles.
The proposed regulations at § 236.3(i)(1) would provide, like paragraph 21 of the FSA, that minors who are not UACs must be transferred to state or county juvenile detention facilities, a secure DHS detention facility, or a DHS-contracted facility having separate accommodations for minors if they meet certain criteria. A non-UAC minor may be placed in one of these facilities because the minor is charged with, is chargeable with, or convicted of a crime or has been charged with, is chargeable with, is the subject to delinquency proceedings or has been adjudicated as delinquent. There is an exception for petty offenses, and another exception for when the offense is isolated, not within a pattern or practice of criminal activity, does not involve violence against a person, and does not involve the use or carrying of a weapon. DHS has retained these exceptions in the proposed rule, but has reworded them in the affirmative for clarity. Rather than explain when DHS
Also included in the FSA's list of reasons to house a minor in a secure facility are committing, or making credible threats to commit, a violent or malicious act while in custody or while in the presence of an immigration officer; engaging, while in a licensed facility, in certain conduct that is unacceptably disruptive of the normal functioning of the licensed facility; being an escape risk; or for the minor's own security. DHS chose not to include in the proposed regulatory text the specific examples of behavior or offenses that could result in the secure detention of a minor, as they appear in FSA paragraph 21, because the examples are non-exhaustive and imprecise. For instance, examples listed in paragraph 21 of what may be considered nonviolent, isolated offenses (
Under proposed § 236.3(i)(2), consistent with FSA paragraph 23, DHS would place a minor in a less restrictive alternative if such an alternative is available and appropriate in the circumstances, even if the provisions of section 236.3(i)(1) apply. Finally, as provided under paragraph 6 of the FSA, proposed § 236.3(i)(3) would provide that, unless a secure facility is appropriate pursuant to proposed § 236.3(i)(1) and (2), DHS facilities used for the detention of minors would be non-secure facilities. This proposed paragraph, like FSA paragraph 32(C), provides that agreements for the placement of minors in non-INS facilities shall permit attorney-client visits. Proposed § 236.3(i)(2) explains that the secure facilities used by DHS to detain non-UAC minors will also permit attorney-client visits pursuant to applicable facility rules and regulations.
Proposed § 236.3(i)(3) sets forth concepts also articulated in FSA paragraphs 12, 14, and 19, that unless a detention in a secure facility is otherwise required, facilities used for the detention of minors shall be non-secure.
Proposed § 236.3(i)(4) would set out the standards for “licensed programs,” as in paragraphs 6 and 19 of the FSA. While the proposed rule would not define “licensed program,” DHS proposes that all non-secure facilities used for the detention of non-UAC minors would abide by these standards. These standards mirror the requirements of Exhibit 1 of the FSA and the current ICE Family Residential Standards. In addition, the standards in proposed paragraph (i)(4) would serve as a baseline of what would be required of a facility audited by a third-party when licensing by the state, county, or municipality is otherwise unavailable, pursuant to proposed paragraph (b)(9) of this section. At a minimum, these standards must include, but are not limited to, proper physical care, including living accommodations, food, clothing, routine medical and dental care, family planning services, emergency care (including a screening for infectious disease) within 48 hours of admission, a needs assessment including both educational and special needs assessments, educational services including instruction in the English language, appropriate foreign language reading materials for leisure time reading, recreation and leisure time activities, mental health services, group counseling, orientation including legal assistance that is available, access to religious services of the minor's choice,
Related to the requirements placed on facilities used for the detention of minors, but not included in the Exhibit 1 standards, is the requirement found at FSA paragraph 19. FSA paragraph 19 permits “licensed programs” to transfer temporary physical custody of minors prior to securing permission from the Government in the event of an emergency, provided that they notify the Government as soon as practicable, but in all cases within 8 hours. Proposed paragraph 236.3(i)(5) does the same, although applies it to “licensed, non-secure facilities,” instead of “licensed programs,” for reasons explained above.
The current regulations at § 236.3(b) address the release of juveniles when a determination is made that such juveniles may be released on bond, parole, or on their own recognizance. Provided detention of a juvenile is not required to secure the juvenile's appearance before DHS or the immigration court, and is not necessary to ensure the juvenile's safety or that of others, the current regulations allow a juvenile to be released to a parent, legal guardian, or an adult relative who is not currently in immigration detention. Current paragraph (b) goes on to state that if the parent, legal guardian, or relative is located at a place far from the current location of the juvenile, the relative can secure the release of the juvenile at the closest DHS office to that relative. The issue of transportation of the juvenile to the relative once release is secured is not discussed in the current regulation.
FSA paragraph 14 requires DHS to release a minor without unnecessary delay when DHS determines that the detention of the minor is not required either to secure timely appearance before DHS or an immigration judge, or to ensure the minor's safety or that of others. FSA paragraph 14 also provides a list of custodians to whom a minor may be released: A parent; legal guardian; adult relative (brother, sister, aunt, uncle, or grandparent); an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor's well-being; a licensed program; or an adult individual or entity seeking custody when it appears that no other likely alternative to long term detention is available and family reunification is not a reasonable possibility. FSA paragraph 26 states that the Government shall assist in making transportation arrangements to the office nearest the location of the person or facility to whom a minor is to be released pursuant to paragraph 14. Despite the language of the current regulations and the FSA, pursuant to the TVPRA and the HSA, DHS does not have the authority to release a minor to anyone other than HHS or a parent or legal guardian. Therefore, in order to comply with both paragraph 14 and the TVPRA, DHS may be required, in some situations, to transfer a child to HHS when it is necessary to continue to detain a parent or legal guardian. DHS typically has discretion under existing authorities to simultaneously parole the child and the parent or legal guardian, which would remain unchanged.
The proposed regulation at § 236.3(j) would amend the approach laid out in current § 236.3(b), and make it consistent with the requirements of the TVPRA and the HSA (enacted after the regulation was originally promulgated), and executive orders, as well as with the current operational environment, which has also changed since the provision's original promulgation. With the exception of removing the list of individuals to whom a minor may be released, as described above, the rule largely incorporates the text of paragraph 14. However, the proposed rule would align the FSA paragraph 14 standards with existing statutes and regulations, and thus permit DHS to exercise its existing discretionary authorities governing release.
Aliens, including minors in family units, who are subject to expedited removal and who have not been found to have a credible fear or are still pending a credible fear determination are subject to mandatory detention. 8 U.S.C. 1225(b)(1)(B)(iii)(IV). DHS, however, retains the discretion to release such aliens on parole, based on a case-by-case determination that parole is for an “urgent humanitarian need or significant public benefit.”
The intended effect of the draft rule is to change current practice and the text of FSA paragraph 14 to affirm that parole is within the discretion of DHS as intended by statute. For example, minors in expedited removal will be subject to the heightened standard in the 8 CFR 235.3(b). As indicated above, DHS is proposing to remove the reference to 8 CFR 235.3(b) in section 212.5(b) to make clear that the parole standard that applies to those in expedited removal is found in section 235.3 and not 212.5. Moreover, DHS will not make universal parole determinations for all minors placed into FRCs.
For individuals not in expedited removal proceedings, parole is available subject to the generally applicable parole regulation.
Aliens who are eligible for release on bond, or release on their own recognizance or other conditions, the availability of such release depends on whether the alien can establish he or she is not a flight risk or a danger to the community.
Once it is determined that the applicable statutes and regulations permit release, proposed § 236.3(j) would permit release of a minor only to a parent or legal guardian who is available to provide care and custody, in accordance with the TVPRA, using the same factors for determining whether release is appropriate as are contained in paragraph 14. Included in the relevant factors would typically be consideration of whether detention is “required either to secure his or her timely appearance before [DHS] or the immigration court, or to ensure the minor's safety or that of others.” DHS also considers family unity when evaluating whether release of a minor is appropriate. This approach is consistent with the President's June 20, 2018, Executive Order 13841, “Affording Congress an Opportunity to Address Family Separation,” which identifies a policy of “maintain[ing] family unity, including by detaining alien families together where appropriate and consistent with law and available resources.”
When determining whether an individual is a parent or legal guardian, DHS would use all available evidence, such as birth certificates or other available documentation, to ensure the parental relationship or legal guardianship is bona fide. If the relationship cannot be established, the juvenile would be treated as a UAC and would be transferred into HHS custody. If the relationship is established, but the parent or legal guardian lives far away, the proposed regulations use the FSA paragraph 26 language, stating that DHS shall assist with making arrangements for transportation and maintains the discretion to actually provide transportation to the DHS office nearest the parent or legal guardian.
Finally, the proposed rule would not include provisions parallel to the requirements in paragraphs 15 or 16 related to release from custody. These requirements have been superseded in part by the TVPRA, under which DHS cannot release a juvenile to anyone other than a parent or legal guardian. Further, parents have no affirmative right of release under the provisions of the FSA. Therefore, if DHS determines that the accompanying parent should be detained, releasing a minor under these circumstances would be either a release to a parent who is not currently in detention, or, in all other cases, a transfer to HHS custody, rather than a release from custody as envisioned under the FSA. In addition, the requirements of paragraphs 15 and 16, which are primarily for the Government's benefit, are not currently implemented.
Current 8 CFR 236.3 does not set out any procedures to specifically govern the transfer of minors. FSA paragraph 27 provides that a minor who is transferred from a placement in one “licensed program” to another shall be transferred with his/her possessions and legal papers, unless the possessions exceed the amount permitted by carriers, in which case the possessions will be shipped to the minor in a timely manner. The proposed regulations at § 236.3(k) include the same requirement for the transfer of possessions when a minor who is not a UAC is transferred between licensed, non-secure facilities. While DHS understands paragraph 27 of the FSA to, in practice, refer to transfer between ICE facilities (the only DHS facilities that qualify as “placements” in “licensed programs,” under the meaning of the FSA), minors are generally transferred with their possessions if they are moving between CBP facilities, or from a CBP facility to an ICE facility.
Paragraph 27 of the FSA also provides that no minor represented by counsel shall be transferred without advance notice to such counsel except in unusual and compelling circumstances. The proposed regulations also provide that if a minor or UAC is represented by counsel, notice to counsel will be provided prior to any transfer of a minor or UAC from one ICE placement to another, or from an ICE placement to an ORR placement, unless unusual and compelling reasons, such as safety or escape-risk, exist, in which case counsel will receive notification within 24 hours of transfer.
The current regulations provide that if a parent of a detained juvenile can be located, and is otherwise suitable to receive custody of the juvenile, and the juvenile indicates a refusal to be released to his or her parent, the parent(s) shall be notified of the juvenile's refusal to be released to the parent(s), and the parent(s) shall be afforded the opportunity to present their views before a custody determination is made (§ 236.3(e)). Similarly, the current regulations provide that if a juvenile seeks release from detention, voluntary departure, parole, or any form of relief from removal, where it appears that the grant of such relief may effectively terminate some interest inherent in the parent-child relationship and/or the juvenile's rights and interests are adverse to those of the parent, and the parent is presently residing in the United States, the parent shall be given notice of the juvenile's application for relief, and shall be afforded an opportunity to present his or her views and assert his or her interest before a determination is made as to the merits of the request for relief (§ 236.3(f)). In both instances, the parents are given an opportunity to present their views to the district director, Director of the Office of Juvenile Affairs, or an immigration judge.
The FSA does not discuss any necessary notification to parents of a juvenile's refusal to be released to a parent or a juvenile's application for relief from removal. DHS has reviewed the current regulatory provision and is proposing amendments to this paragraph to maintain the goals of this type of notification while reflecting the current distribution of responsibilities vis-à-vis juveniles between DHS components and DOJ EOIR. The language of the current and proposed regulation appropriately protects parental rights while balancing a juvenile's potential desire to take an action adverse to the wishes of his/her parent.
Given the current legal environment and operational practices, ICE and CBP would seldom, if ever, be responsible for providing any type of parental notification as required by 236.3(e) or (f). For instance, if a minor seeks release from ICE detention, ICE would only be required to notify that minor's parent if the parent is presently residing in the United States and the minor's release would terminate some interest inherent in the parent-child relationship. Yet even in this scenario, because DHS cannot release a minor to anyone other than a parent or legal guardian as discussed above, it seems unlikely that such release would “terminate some interest inherent in the parent-child relationship” as described in current § 236.3(f). In practice, USCIS and EOIR are the entities most likely to be required to provide parental notification due to a potential termination of an interest inherent in the parent-child relationship, because USCIS adjudicators and EOIR immigration judges more frequently grant relief from removal that could impact a parent-child relationship. The proposed DHS regulations at 236.3(l) would remove language authorizing parents to present their views to immigration judges if their child refuses to be released into their custody, because currently immigration judges do not set conditions of release, and therefore do not decide to whom a minor or UAC will be released. However, the change does not prevent parents from presenting their views to DHS. Refusal of release is primarily an issue that affects DHS and HHS, rather than DOJ. In addition, certain types of requests listed in proposed 236.3(l) (
The proposed changes to current sections 236(e) and (f) (in proposed § 236.3(l)) would clarify the actual scope of DHS's regulations, but would not represent a change in practice. The proposed rule would maintain parents' right to be notified and present their views to DHS (but not an immigration judge) if a minor or UAC in DHS custody refuses to be released to that parent, if a grant of relief might terminate some parent-child relationship interests, or where the child's interests are adverse to those of the parent.
In addition, the proposed rule would not affect the EOIR notice requirement currently contained at 8 CFR 1236.3(f) for applications for relief.
The current regulations make no provision for bond hearings by immigration judges for minors as FSA paragraph 24(A) has been interpreted to require. Paragraph 24(A), states that a minor in “deportation proceedings” shall be afforded a bond redetermination unless he or she refuses such a determination. The proposed regulations at § 236.3(m) provide for review of DHS bond determinations by immigration judges to the extent permitted by 8 CFR 1003.19, but only for those minors: (1) Who are in removal proceedings under INA section 240, 8 U.S.C. 1229a; and (2) who are in DHS custody. Those minors who are not in section 240 proceedings are ineligible to seek review by an immigration judge of their DHS custody determination.
DHS proposes this paragraph to provide for bond hearings as under FSA paragraph 24(A), while updating the language to be consistent with developments in immigration law since the FSA was signed, including the TVPRA. FSA paragraph 24(A) refers to minors in “deportation proceedings.” The term “deportation proceedings,” however, is no longer used in immigration law due to the enactment of IIRIRA in 1996. Prior to IIRIRA's enactment, the INS conducted two types of proceedings for aliens: “exclusion” proceedings and “deportation” proceedings. Section 304 of IIRIRA, however, changed the types of proceedings available to aliens under the INA, and what were previously known as “deportation” proceedings became “removal” proceedings.
The current regulations have no provisions for reassuming custody of previously released minors if they become an escape-risk, become a danger to the community, or are issued a final order of removal after being released. The proposed regulations at § 236.3(n) would provide for this scenario. The regulations also explain that DHS may take a minor into custody if there is no longer a parent or legal guardian available to care for the minor, at which point the minor will be treated as a UAC and DHS will transfer him or her to HHS.
The current regulations at § 236.3(c) describe the duties of the Juvenile Coordinator, including the responsibility of locating suitable placements for juveniles. Paragraph 28(A) of the FSA also includes a provision for a Juvenile Coordinator, but places more reporting and monitoring obligations on the Coordinator than currently exist in the regulations. The proposed regulations eliminate the requirement in the current regulations that the Juvenile Coordinator locate a suitable placement for minors, as these duties are generally exercised by immigration officers and other employees at DHS. Section 236.3(o), however, is being proposed to provide for monitoring, as under paragraph 28(A) of the FSA, by proposing two Juvenile Coordinators—one for ICE and one for CBP—and charges each with monitoring statistics about UACs and minors who remain in DHS custody for longer than 72 hours. The statistical information may include, but would not be limited to, biographical information, dates of custody, placement, transfers, removals, or releases from custody. This information does not include immigration status or hearing dates, as referenced in FSA paragraph 28(A), because the import of this data for monitoring purposes is not immediately apparent. The plain language meaning of “immigration status” of particular aliens in DHS custody is not relevant to monitoring compliance with detention or holding condition requirements. It is only relevant to whether DHS is able to detain an individual. It is unclear what other meaning of the term “immigration status” could be relevant to monitoring compliance with these regulations. The hearing dates for aliens in DHS custody, which are not set by DHS and are frequently subject to change, are also not directly relevant to the monitoring of the conditions of detention for a minor alien. The juvenile coordinators may collect such data, if appropriate. The juvenile coordinators may also review additional data points should they deem it appropriate given operational changes and other considerations.
This subpart states the purpose of this regulation and the general principles behind it, and sets standards for the care and placement of UACs as discussed below. ORR uses the term “placement” to refer to assigning UACs to facilities that ORR operates or arranges through a grant or contract, or assigning them to ORR-funded foster care. ORR uses the term “release” to refer to the release of UACs from ORR custody into the custody of an approved sponsor.
Section 410.100 discusses what is covered under this part. Specifically, it states that this part covers the care, custody, and placement of UACs pursuant to section 462 of the HSA and section 235 of the TVPRA, and in light of the FSA. The proposed rule would make clear that the purpose of this rule is not to govern or describe the entire program, nor is it to implement either the HSA or the TVPRA in their entirety. Rather, the purpose of this rule is to implement the relevant and substantive terms of the FSA, and this rulemaking will apply provisions of the HSA and TVPRA only where such authorities would supersede or alter an FSA provision.
Section 410.101 states the definitions that apply to this part. Notably, the definition of UAC is from the HSA.
Section 410.101 defines unaccompanied alien child according to the definition set forth in the HSA. It, as well as the TVPRA, only gives ORR authority to provide care and custody of individuals who meet that definition. The statutes, however, do not set forth a process for determining whether an individual meets the definition of a UAC. Similar to proposed 8 CFR 236.3(d), § 410.101 would make clear that ORR's determination of whether a particular person is a UAC is an ongoing determination that may change based on the facts available to ORR.
Section 410.102 specifies the children for whom ORR provides care, custody, and placement. The regulation specifies that DHS handles immigration benefits and enforcement. The INS entered into the FSA prior to the enactment of the HSA and TVPRA, which transferred the care, and then custody, of the majority of UACs to ORR. The HSA recognizes that ORR does not have responsibility for adjudicating benefit determinations under the INA. This part recognizes the general principles of the FSA that while in custody, UACs shall be treated with dignity, respect, and special concern for their particular vulnerability.
As stated in§ 410.200, this subpart sets forth factors that ORR considers when placing UACs.
Section 410.201 addresses the considerations that generally apply to the placement of UAC. The provision generally parallels the FSA requirements. The provision notes that ORR makes reasonable efforts to provide placements in the geographic areas where DHS apprehends the majority of UACs. ORR complies with this provision, as ORR maintains the highest number of UAC beds in the state of Texas where most UACs are currently apprehended.
Section 410.202 states that ORR places a UAC into a licensed program promptly after a UAC is referred to ORR legal custody, except in certain enumerated circumstances.
Section 410.203 sets forth criteria for placing UACs in secure facilities. This part is consistent with the FSA criteria, except that under the TVPRA, “[a] child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” 8 U.S.C. 1232(c)(2)(A). With respect to these regulations, therefore, the TVPRA removes the factor of being an escape risk, which is permissible grounds under the FSA, as a ground upon which ORR may place a UAC in a secure facility.
In addition, HHS chose not to include in the proposed regulatory text the specific examples of behavior or offenses that could result in the secure detention of a UAC, as they appear in paragraph 21 of the FSA, because the examples are non-exhaustive and imprecise. For instance, examples listed in paragraph 21 of what may be considered nonviolent, isolated offenses (
Under the proposed regulations, a UAC may be placed in a secure facility if ORR determines that the UAC:
• Has been charged with, is chargeable, or has been convicted of a crime; or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act; and where ORR assesses that the crimes or delinquent acts were not:
○ Isolated offenses that (1) were not within a pattern or practice of criminal activity and (2) did not involve violence against a person, or the use or carrying of a weapon; or
○ petty offenses, which are not considered grounds for a stricter means of detention in any case.
• While in DHS or ORR's custody or while in the presence of an immigration officer, has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself/herself or others.).
• Has engaged while in a licensed program in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed program in which the UAC is placed such that transfer is necessary to ensure the welfare of the UAC or others, as determined by the staff of the licensed program.
• First, if a UAC engages in unacceptably disruptive behavior that interferes with the normal functioning of a “staff secure” shelter, then the UAC may be transferred to secure facility. As written, the FSA looks only to such disruptive behavior when it occurs in a “licensed” facility—which under the FSA does not include in its definition staff-secure facilities—even though the vast majority of such facilities receive the same licenses as non-secure shelters. However, under this rule, UACs could be immediately transferred to a secure facility for disruptive behavior in a non-secure shelter, without the means to evaluate further disruption in a staff secure setting. In addition, allowing for evaluation while in staff-secure care allows HHS to protect the other children residing within such shelter; it allows HHS to move one UAC who is disrupting the operations of the staff secure facility and transfer him or her to a more restrictive level of care.
• Second, the proposed rule adds to the list of behaviors that may be considered unacceptably disruptive. Examples provided in the FSA at paragraph 21 are: Drug or alcohol abuse, stealing, fighting, intimidation of others, etc. The agreement specifically says that the list is not exhaustive. Therefore, we propose to add to this list “displays sexual predatory behavior.”
• Finally, in keeping with the July 30 Order in
Section 410.203 also sets forth review and approval of the decision to place a UAC in a secure facility consistent with the FSA. The FSA states that the determination to place a minor in a secure facility shall be reviewed and approved by the “regional juvenile coordinator.” This proposed rule uses the term “Federal Field Specialist,” as this is the official closest to such juvenile coordinator for ORR. (
Section 410.204 describes the considerations ORR takes into account when determining whether a UAC is an escape risk. This part is consistent with how the term “escape risk” is used in the FSA. The TVPRA removes the factor of being an escape risk as a ground upon which ORR may place a UAC in a secure facility, even though it constitutes permissible grounds under the FSA. The factor of escape risk, however, is still relevant to the evaluation of transfers between ORR facilities under the FSA as being an escape risk might cause a UAC to be stepped up from a non-secure level of care to a staff secure level of care where there is a higher staff-UAC ratio and a secure perimeter at the facility. Notably, an escape risk differs from a “risk of flight,” which is a term of art used in immigration law regarding an alien's risk of not appearing for his or her immigration proceedings.
Section 410.205 provides that ORR does not place a UAC in a secure facility pursuant to § 410.203 if less restrictive alternatives, such as a staff secure facility or another licensed program, are available and appropriate in the circumstances.
Section 410.206 specifies that, within a reasonable period of time, ORR provides each UAC placed in or transferred to a secure or staff secure facility with a notice of the reasons for the placement in a language the UAC understands.
Section 410.207 specifies who has custody of a UAC under subpart B of these rules. The regulation specifies that upon release to an approved sponsor, a UAC is no longer in the custody of ORR. ORR would continue to have ongoing monitoring responsibilities under the HSA and TVPRA, but would not be the legal or physical custodian.
Section 410.208 describes ORR's policy regarding placement of a special needs minor. Note that an RTC may be considered a secure level of care and is discussed in section 410.203 of this Part.
Section 410.209 describes the procedures ORR follows during an emergency or influx. The FSA defines “emergency” and “influx.” HHS proposes to incorporate those definitions into its regulations with minor changes, consistent with the definitions in proposed 8 CFR 236.3. In addition, the FSA states that in the case of an emergency or influx of minors into the United States, UACs
However, as DHS does, ORR also proposes a written plan describing the reasonable efforts it will take to place all UACs as expeditiously as possible into a licensed shelter when there is an influx or emergency consistent with proposed 410.209.
As described in § 410.300, the purpose of this subpart is to address the policies and procedures used to release a UAC from ORR custody to an approved sponsor.
As specified in 410.301, ORR releases a UAC to a sponsor without unnecessary delay when ORR determines that continued ORR custody of the UAC is not required either to secure the UAC's timely appearance before DHS or the immigration courts, or to ensure the UAC's safety or the safety of others.
Section 410.301 also contains the list of individuals (and entities) to whom ORR releases a UAC. ORR refers to the individuals and entities in this list as “sponsors,” regardless of their specific relationship with the UAC. The list follows the order of preference set out in the FSA.
Section 410.302 outlines the process requirements leading to release of a UAC from ORR custody to a sponsor (also referred to as “custodian”). The FSA at paragraph 17 allows ORR the discretion to require a suitability assessment prior to release. Likewise, the TVPRA provides that ORR may not release a UAC to a potential sponsor unless ORR makes a determination that the proposed custodian is “capable of providing for the child's physical and mental well-being. Such determination shall, at a minimum, include verification of the custodian's identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.” 8 U.S.C. 1232(c)(3)(A). As such, this proposed rule requires a background check, including at least a verification of identity for potential sponsors in all circumstances.
Like the FSA, the proposed rule also allows for the suitability assessment to include an investigation of the living conditions in which the UAC would be placed and the standard of care he or she would receive, interviews of household members, a home visit, and follow-up visits after release. Furthermore, where the TVPRA requires a home study, as specified in 8 U.S.C. 1232(c)(3)(B), the proposed regulations acknowledge such requirement.
The FSA says that the proposed sponsor must agree to the conditions of release by signing a custodial affidavit (Form I-134) and release agreement. However, the Form I-134 is a DHS form, and ORR does not use such form. Therefore, this proposed rule would have the sponsor sign an affirmation of abiding by the sponsor care agreement, which is the historical agreement and accompanying form ORR has used so that the sponsor acknowledges his or her responsibilities.
For many years the suitability assessment has involved prospective sponsors and household members to be fingerprinted and for background checks to be run on their biometric and biographical data to ensure that release of a UAC to prospective sponsors would be safe. Fingerprinting of potential sponsors and household members is consistent with child welfare provisions. For example, all states require background checks for prospective foster care and adoptive parents, and kinship caregivers typically must meet most of these same requirements.
Section 410.302(e) lists the conditions and principles of release.
ORR also invites public comment on whether to set forth in the final rule ORR's general policies concerning the following:
• Requirements for home studies (see 8 U.S.C. 1232(c)(3)(B) for statutory requirements for a home study);
• Denial of release to a prospective sponsor, criteria for such denial, and appeal; and
• Post-release services requirements.
As stated at § 410.400, this subpart covers the standards that licensed programs must meet in keeping with the FSA, as set out in the principles of the FSA, including the general principles of the settlement agreement of treating all minors in custody with dignity, respect, and special concern for their particular vulnerability.
Section 410.401 states that the subpart applies to all licensed programs.
Section 410.402 reflects the minimum standards of care listed in Exhibit 1 of the FSA. ORR expects licensed programs to easily meet those minimum standards and, in addition, to strive to provide additional care and services to the UACs in their care. The requirements of 410.402 are consistent with the
Section 410.403 describes how ORR ensures that licensed programs are providing services as required by these regulations. As stated in this section, to ensure that licensed programs continually meet the minimum standards and are consistent in their provision of services, ORR monitors compliance with these rules. The FSA does not contain standards for how often monitoring shall occur, and this regulation does not propose to do so. At present, ORR provides further information on such monitoring in section 5.5 of the ORR Policy Guide (available at:
This subpart concerns the safe transportation of a UAC while he or she is in ORR's custody.
Section 410.500 describes how transportation is conducted for a UAC in ORR's custody. The FSA has two provisions that govern transportation specifically, which are incorporated in this proposed rule at § 410.501. First, a UAC cannot be transported with unrelated detained adults. Second, ORR assists in making transportation arrangements when ORR plans to release a UAC under the sponsor suitability provisions, and ORR may, in its discretion, provide transportation to a UAC.
This subpart sets forth the provisions for transferring a UAC between HHS facilities. In some cases, ORR may need to change the placement of a UAC. This may occur for a variety of reasons, including a lack of detailed information at the time of apprehension, a change in the availability of licensed placements, or a change in the UAC's behavior, mental health situation, or immigration case.
Section 410.600 sets out the principles that apply to the transfer of a UAC between HHS facilities. The transfer of a UAC under the FSA concerns mainly two issues: (1) That a UAC is transferred with all his or her possessions and legal papers, and (2) that the UAC's attorney, if the UAC has one, is notified prior to a transfer, with some exceptions. This rule adopts the FSA provisions concerning transfer of a UAC.
This subpart concerns age determinations for UACs.
Section 410.700 incorporates both the provisions of the TVPRA, 8 U.S.C. 1232(b)(4), and the requirements of the FSA, in setting forth standards for age determinations. These take into account multiple forms of evidence, including the non-exclusive use of radiographs, and may involve medical, dental, or other appropriate procedures to verify age.
Section 410.701 also accords with the FSA and the TVPRA, and states that if the procedures of § 410.700 would result in a reasonable person concluding that an individual is an adult, despite his or her claim to be a minor, ORR must treat such person as an adult for all purposes. As with 410.700, ORR may take into account multiple forms of evidence, including the non-exclusive use of radiographs, and may require such an individual to submit to a medical or dental examination conducted by a medical professional or other appropriate procedures to verify age.
This subpart concerns objections of a UAC to ORR placement.
While the FSA at Paragraph 24(B) and 24(C) contains procedures for judicial review of a UAC's placement in shelter (including in secure or staff-secure), and a standard of review, the agreement is clear that a reviewing federal district court must have both “jurisdiction and venue.” Also, once these regulations are finalized and the FSA is terminated, it would be even clearer that any review by judicial action must occur under a statute where the government has waived sovereign immunity, such as the Administrative Procedure Act. Therefore, we are not proposing regulations for most of paragraphs 24(B) and 24(C) of the FSA, although we do propose that all UACs will continue to receive a notice stating as follows:
“ORR usually houses persons under the age of 18 in an open setting, such as a foster or group home, and not in detention facilities. If you believe that you have not been properly placed or that you have been treated improperly, you may call a lawyer to seek assistance. If you cannot afford a lawyer, you may call one from the list of free legal services given to you with this form.”
The proposed rule also contains a requirement parallel to that of the FSA that when UACs are placed in a more restrictive level of care, such as a secure or staff secure facility, they receive a notice—within a reasonable period of time—explaining the reasons for housing them in the more restrictive
Finally, consistent with the FSA, the proposed provision requires that ORR promptly provide each UAC not released with a list of free legal services providers compiled by ORR and that is provided to UAC as part of a Legal Resource Guide for UAC (unless previously given to the UAC).
The proposed rule makes no provision for immigration judges employed by the DOJ to conduct bond redetermination hearings for UACs under paragraph 24(A) of the FSA. It is not clear statutory authority for DOJ to conduct such hearings still exists, and indeed DOJ argued in the Ninth Circuit that it does not. In the HSA, Congress assigned responsibility for the “care and placement” of UACs to HHS's ORR, and specifically barred ORR from requiring “that a bond be posted for [a UAC] who is released to a qualified sponsor.” 6 U.S.C. 279(b)(1)(A), (4). In the TVPRA, Congress reaffirmed HHS's responsibility for the custody and placement of UACs. 8 U.S.C. 1232(b)(1), (c). The TVPRA also imposed detailed requirements governing ORR's release of UACs to proposed custodians—including, for example, a provision authorizing ORR to consider a UAC's dangerousness and risk of flight in making placement decisions. 8 U.S.C. 1232(c)(2)(A). Congress thus appears to have vested HHS, not DOJ, with control over the custody and release of UACs, and to have deliberately omitted any role for immigration judges in this area.
In
This rule in turn proposes HHS regulations to afford the same type of hearing paragraph 24(A) calls for, and to recognize the transfer of responsibility of care and custody of UAC from the former INS to HHS ORR. Specifically, rather than providing for DOJ-employed immigration judges to preside over these hearings, this rule includes provisions whereby HHS would create an independent hearing officer process that would be guided by the immigration judge bond hearing process currently in place for UACs under the FSA. The basic idea would be to provide essentially the same substantive protections, but through a neutral adjudicator at HHS rather than DOJ.
This proposed rule implements the FSA's substantive protections, and responds to the HSA and TVPRA and the transfer of responsibility for UACs, when they are in government custody, to HHS. The reasonable method of reconciling paragraph 24(A) of the FSA with the HSA and TVPRA, is for the Secretary of HHS to appoint an independent hearing officer or officers who would conduct the hearings envisioned by the FSA for those UAC who qualify for such review.
Under this proposal, the Secretary would appoint independent hearing officers to determine whether a UAC, if released, would present a danger to community (or flight risk). The hearing officer would not have the authority to release a UAC, as the
Thus, the hearing officer would decide only the issues presented by paragraph 24(A) of the FSA—whether the UAC would present a danger to the community or a risk of flight (that is, not appearing for his or her immigration hearing) if released. For the majority of children in ORR custody, ORR has determined they are not a danger and therefore has placed them in shelters, group homes, and in some cases, staff secure facilities. For these children, a hearing is not necessary or even beneficial, and would simply be a misuse of limited government resources. However, for some children placed in secure facilities, the hearing may assist them in ultimately being released from ORR custody in the event a suitable sponsor is or becomes available.
As is the case now, under section 2.9 of the ORR Policy Guide (available at:
Under current
ORR also would take into consideration the hearing officer's decision on a UAC's level of danger when assessing the UAC's placement and conditions of placement, but the hearing officer would not have the authority to order a particular placement for a UAC.
Requests for a hearing under this section (an “810 hearing”) could be made by the child in ORR care, by a legal representative of the child, or by parents/legal guardians on their child's behalf. These parties could submit a written request for the 810 hearing to the care provider using the ORR form (
Because the 810 hearing process would be unique to ORR and HHS, if a UAC turns 18 years old during the pendency of the hearing, the deliberations would have no effect on DHS detention (if any).
If the hearing officer determines that the UAC would be a danger to the community (or a flight risk) if released, the decision would be final unless the UAC later demonstrates a material change in circumstances to support a second request for a hearing. Similarly, because ORR may not have yet located a suitable sponsor at the time a hearing officer issues a decision, ORR may find that circumstances have changed by the time a sponsor is found such that the original hearing officer decision should no longer apply. Therefore, the proposed regulation states that ORR may request the hearing officer to make a new determination if at least one month has passed since the original decision, and ORR can show that a material change in circumstances means the UAC should no longer be released due to danger (or flight risk).
HHS invites public comment on whether the hearing officers for the 810 hearings should be employed by the Departmental Appeals Board, either as Administrative Law Judges or hearing officers, or whether HHS would create a separate office for hearings, similar to the Office of Hearings in the Centers for Medicare & Medicaid Services.
Furthermore, while the FSA contains procedures for judicial review of a UAC's placement in a secure or staff-secure shelter, and a standard of review, once these regulations are finalized and the FSA is vacated, any review by judicial actions would occur in accordance with the Administrative Procedure Act and any other applicable Federal statute. Therefore, we are not proposing regulations for most of paragraphs 24(B) and 24(C) of the FSA.
The Departments have considered numerous statutes and executive orders related to rulemaking. The following sections summarize our analyses based on a number of these statutes and executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory 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. OMB has designated this rule a significant regulatory action, although not an economically significant regulatory action, under Executive Order 12866. Accordingly, OMB has reviewed this regulation.
These proposed regulations aim to terminate the FSA. They would codify current requirements of the FSA and court orders enforcing terms of the FSA, as well as relevant provisions of the HSA and TVPRA. The Federal government's care of minors and UACs has complied with the FSA and related court orders for over 20 years, and complies with the HSA and TVPRA.
The proposed rule applies to minors and UACs encountered by DHS, and in some cases, their families. CBP and ICE encounter minors and UACs in different manners. CBP generally encounters minors and UACs at the border. Generally, ICE encounters minors either upon transfer from CBP to an FRC, or during interior enforcement actions. ICE generally encounters UACs when they are transferred from CBP custody to ORR custody, as well as during interior enforcement actions.
CBP's facilities at Border Patrol stations and ports of entry (POEs) are processing centers, designed for the temporary holding of individuals. CBP facilities are designed to meet the primary mission of CBP, which is to facilitate legitimate travel and trade. CBP's facilities are not designed, nor are there services in place, to accommodate large numbers of minors and UACs waiting for transfer to ICE or ORR, even for the limited period for which CBP is generally expected to have custody of minors and UACs, generally 72 hours or less. All minors and UACs in CBP facilities are provided access to safe and sanitary facilities; functioning toilets and sinks; food; drinking water; emergency medical assistance, as appropriate; and adequate temperature control and ventilation. To ensure their safety and well-being, UACs in CBP facilities are supervised and are generally segregated from unrelated
CBP has apprehended or encountered 61,610 minors accompanied by their parent(s) or legal guardian(s) (defined as a “family unit”), and 55,090 UACs on average annually for the last three fiscal years. In Fiscal Year 2017, CBP apprehended or encountered approximately 105,000 aliens as part of a family unit. Table 2 shows the annual number of accompanied minors (that is, minors accompanied by their parent(s) or legal guardian(s)) and UACs CBP has apprehended or encountered in Fiscal Years (FYs) 2010 through 2017.
CBP makes a case by case determination as to whether an alien is a UAC based upon the information and evidence available at the time of encounter. When making this determination, CBP refers to section 462(g)(2) of the HSA, which defines a UAC as a child who— (A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom— (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.
Once CBP determines that an alien is a UAC, CBP must process the UAC consistent with the provisions of the TVPRA, which requires the transfer of a UAC who is not statutorily eligible to withdraw his or her application for admission into the custody of ORR within 72 hours of determining that the juvenile meets the definition of a UAC, except in exceptional circumstances.
If, upon apprehension or encounter, CBP determines that an alien is a minor who is part of a family unit, the family unit is processed accordingly and transferred out of CBP custody. If appropriate, the family unit may be transferred to an ICE FRC. If the FSA were not in place, CBP would still make a determination of whether an alien was a UAC or part of a family unit upon encountering an alien, in order to determine appropriate removal proceedings pursuant to the TVPRA.
When ICE encounters a juvenile during an interior enforcement action, ICE performs an interview to determine the juvenile's nationality, immigration status, and age. Pursuant to the TVPRA, an alien who has been encountered and has no lawful immigration status in the United States, has not attained 18 years of age, and has no parent or legal guardian in the United States available to provide care and physical custody will be classified as a UAC. The number of juvenile arrests made by ICE is significantly smaller than CBP across all fiscal years as shown in Table 3. An individual would have to be arrested to be booked into an FRC.
Once ICE determines that an alien is a UAC, ICE must process the UAC consistent with the provisions of the TVPRA, which requires the transfer of a UAC into the custody of ORR within 72 hours of determining that the juvenile meets the definition of a UAC, except in exceptional circumstances.
At the time that the FSA was agreed to in 1997, INS generally did not detain alien family units. Instead, family units apprehended or encountered at the border were generally released. When a decision was made to detain an adult family member, the other family members were generally separated from that adult. However, beginning in 2001, in an effort to maintain family unity, INS began opening FRCs to accommodate families who were seeking asylum but whose cases had been drawn out. INS initially opened what today is the Berks Family Residential Center (Berks) in Berks, Pennsylvania, in 2001. ICE also operated the T. Don Hutto medium-security facility in Taylor, Texas as an FRC from 2006 to 2009. In response to the influx of UACs and family units in 2014 in the Rio Grande Valley, ICE opened family residential centers in Artesia, New Mexico in June of 2014; Karnes County, Texas in July of 2014; and Dilley, Texas in December of 2014. The Artesia facility, which was intended as a temporary facility while more permanent facilities were contracted for and established, was closed on December 31, 2014.
The South Texas Family Residential Center in Dilley, Texas (Dilley) has 2,400 beds, Berks has 96 beds, and the
As previously discussed, due to court decisions in 2015 and 2017, DHS ordinarily uses its FRCs for the detention of non-UAC minors and their accompanying parent(s) or legal guardian(s) for periods of up to approximately 20 days. Since 2016, the average number of days from the book-in date to the release date at all FRCs for both minors and adults has been less than 15 days. Table 5 shows the average number of days from book-in date to release date at FRCs for FY 2014 through FY 2017, based on releases by fiscal year. Data on releases are available for all four quarters of FY 2014.
Table 6 shows the reasons for the release of adults and minors from FRCs in FY 2017. As it indicates, the large majority of such individuals were released on an order of their own recognizance or paroled.
Table 7 shows the number of adults and minors removed from the United States from FRCs since FY 2014. Removals include returns. Returns include Voluntary Departures (including Voluntary Returns)
The FSA does not impose requirements on secure facilities used for the detention of juveniles. Juveniles may be placed in secure facilities if they meet the criteria listed in paragraph 21 of the FSA.
The proposed rule also applies to UACs who have been transferred to HHS care. Upon referral, HHS promptly places UACs in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight. HHS takes into consideration the unique nature of each child's situation and incorporates child welfare principles when making placement and release decisions that are in the best interest of the child.
HHS places UACs in a network of over 100 shelters in 17 states. For its first nine years at HHS, fewer than 8,000 UACs were served annually in this program. Since FY 2012, this number has jumped dramatically, with a total of 13,625 children referred to HHS by the end of FY 2012. Between FY 2012 and FY 2018—Year To Date (YTD) (June), HHS has received a total of 267,354 UACs.
For FY 2018—YTD (June) the average length of stay (the time a child is in custody from the time of admission to the time of discharge) for UACs in the program is approximately 50 days. In FY 2018—June '18 the average length of care (the time a child has been in custody, since the time of admission) for UACs in ORR care is approximately 58 days. The overwhelming majority, over 90 percent, of UACs are released to suitable sponsors who are family members within the United States. UACs that are not released to a sponsor typically: Age out or receive an order of removal and are transferred to DHS; are granted voluntary departure and likewise transferred to DHS for removal; or, obtain immigration legal relief and are no longer eligible for placement in ORR's UAC program.
In order to properly evaluate the benefits and costs of regulations, agencies must evaluate the costs and benefits against a baseline. OMB Circular A-4 defines the “no action” baseline as “the best assessment of the way the world would look absent the proposed action.” The Departments consider their current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA to be the baseline for this analysis, from which they estimate the costs and benefits of the proposed rule. The baseline encompasses the FSA that was approved by the court on January 28, 1997. It also encompasses the 2002 HSA legislation transferring the responsibility for the care and custody of UACs, including some of the material terms of the FSA, to ORR, as well as the substantive terms of the 2008 TVPRA. Finally, it includes the July 6, 2016 decision of the Ninth Circuit affirming the district court's finding that the FSA “unambiguously” applies to both accompanied and unaccompanied minors, and that such minors shall not be detained in unlicensed and secure facilities that do not meet the requirements of the FSA.
CBP incurs costs to comply with the FSA, including those related to facility configurations, custodial requirements, and compliance monitoring. To comply with the terms of the FSA, for example, CBP reallocates space in its facilities to allow for separate holding areas for families and/or UACs. Pursuant to the FSA, CBP provides minors and UACs access to food; drinking water; functioning toilets and sinks; adequate temperature and ventilation; emergency medical care, if needed; and safe and sanitary facilities, which impose costs on CBP. Related costs include, for example, the purchase of food; bottled water; first aid kits; blankets, mats, or cots; and age-appropriate transport and bedding. To ensure compliance with the FSA, CBP has added fields in its electronic systems of records, so that CBP officers and Border Patrol agents can continuously record the conditions of the hold rooms and all custodial activities related to each minor or UAC, such as medical care provided, welfare checks conducted, and any separation from accompanying family members.
CBP has experienced other baseline costs from its national and field office Juvenile Coordinators. Under current practice, the national CBP Juvenile Coordinator oversees agency compliance with applicable law and policy related to the treatment of minors and UACs in CBP custody. The national CBP Juvenile Coordinator monitors CBP facilities and processes through site visits and review of juvenile custodial records. Along with the national CBP Juvenile Coordinator role, CBP has field office and sector Juvenile Coordinators who are responsible for managing all policies on the processing of juveniles within CBP facilities, coordinating within CBP and across DHS components to ensure the expeditious placement and transport of juveniles placed into removal proceedings by CBP, and informing CBP operational offices of any policy updates related to the processing of juveniles (
CBP's baseline costs also include the use of translation services, including contracts for telephonic interpretation services.
ICE also incurs facility costs to comply with the FSA. The costs of operation and maintenance of the ICE FRCs for FY 2015-2017 are listed in Table 10, provided by the ICE Office of Acquisition Management. The costs account for the implementation of the FSA requirements, including the cost for the facility operators to abide by all relevant state standards. Two of the FRCs are operated by private contractors, while one is operated by a local government, under contract with ICE. These are the amounts that have been paid to private contractors or to the local government to include beds, guards, health care, and education.
The FRC costs are fixed-price agreements with variable costs added on a monthly basis. Overall, the fixed-price agreements are not dependent on the number of detainees present or length of stay, with some exceptions. At Berks, the contract includes a per-person fee charged in addition to the monthly fixed rate. At two of the FRCs, Berks and Karnes, education is provided per the standards of a licensed program set forth in the FSA, at a per-student, per-day cost. Since FRCs are currently at limited available capacity and the configuration of limited available capacity varies from day to day across all FRCs, the number of children and adults vary at Berks day to day and the number of children at Karnes vary day to day. Thus, these costs charged to ICE vary from month to month.
In addition to the above example of current costs to operate the FRCs, or the baseline cost, DHS (particularly CBP and ICE) incurs costs to process, transfer, and provide transportation of minors and UACs from the point of
The baseline costs also include bond hearing for minors and family units who are eligible for such hearings. When a minor or family unit seeks a bond, ICE officers must review the request and evaluate the individuals' eligibility as well as, where appropriate, set the initial bond amount. Further, should the minor or family unit seek a bond redetermination hearing before an immigration judge, ICE must transport or otherwise arrange for the individuals to appear before the immigration court.
ICE's baseline costs also include the use of translation services, including contracts for telephonic interpretation services.
ICE also incurs baseline costs related to its Juvenile and Family Residential Management Unit (JFRMU), which was created in 2007. JFRMU manages ICE's policies affecting alien juveniles and families. The role of ICE's Juvenile Coordinator is within JFRMU and is not a collateral duty. JFRMU consists of specialized federal staff, as well as contract subject matter experts in the fields of child psychology, child development, education, medicine, and conditions of confinement. JFRMU establishes policies on the management of family custody, UACs pending transfer to the ORR, and UACs applying for Special Immigrant Juvenile specific consent. JFRMU continues to pursue uniform operations throughout its program through implementation of family residential standards. These standards are continually reviewed and revised as needed to ensure the safety and welfare of families awaiting an immigration decision while housed in a family residential facility. DHS conducts an inspection of each FRC at least annually to confirm that the facility is in compliance with ICE Family Residential Standards.
The baseline costs include the monitoring of FSA compliance and reporting to the court. Since 2007, JFRMU has submitted
HHS' baseline costs were $1.4 billion in FY 2017. HHS funds private non-profit and for-profit agencies to provide shelter, counseling, medical care, legal services, and other support services to UACs in custody. Funding levels for non-profit organizations totaled $912,963,474 in FY 2017. Funding levels for for-profit agencies totaled $141,509,819 in FY 2017. Program funded facilities receive grants or contracts to provide shelter, including therapeutic care, foster care, shelter with increased staff supervision, and secure detention care. The majority of program costs (approximately 80 percent) are for bed capacity care. Other services for UACs, such as medical care, background checks, and family reunification services, make up approximately 15 percent of the budget. In addition, some funding is provided for limited post-release services to certain UACs. Administrative expenses to carry out the program total approximately five percent of the budget.
In FY 2016, HHS total approved funding for the UAC program was $743,538,991, with $224,665,994 going to influx programming. In FY 2017, the total funding was $912,963,474, with $141,509,819 for influx.
These are examples of the types of costs the Departments incur under current operations, and are not a result of this rule.
This rulemaking would implement the relevant and substantive terms of the FSA, with limited changes necessary to implement closely related provisions of the HSA and TVPRA, and to ensure that the regulations set forth a sustainable operational model of immigration enforcement. This section assesses the cost of proposed changes to the current operational environment.
The primary source of new costs for the proposed rule would be as a result of the proposed alternative licensing process, changes to ICE parole determination practices to align them with applicable statutory and regulatory authority, and the costs of shifting hearings from DOJ to HHS. The proposed alternative license for FRCs and changes to parole determination practices may result in additional or longer detention for certain minors, but DHS is unable to estimate the costs of this to the Government or to the individuals being detained because we are not sure how many individuals will be detained at FRCs after this rule is effective or for how much longer individuals may be detained because there are so many other variables to consider. The Departments seek comment on how these costs might be reasonably estimated, given the uncertainties.
Table 11 shows the proposed changes to the DHS current operational status compared to the FSA. It contains a preliminary, high-level overview of how the proposed rule would change DHS's current operations, for purposes of the economic analysis. The table does not provide a comprehensive description of all proposed provisions and their basis and purpose.
A primary source of new costs for the proposed rule would be as a result of the proposed alternative licensing process. To codify the requirements of the FSA, DHS is proposing in this rule that facilities that hold minors obtain state, county, or municipal licensing where appropriate licenses are available. If no such licensing regime is available, however, DHS proposes that it will employ an outside entity to ensure that the facility complies with family residential standards established by ICE and that meet the requirements for licensing under the FSA, thus fulfilling the intent of obtaining a license from a state or local agency. That would thus provide effectively the same substantive assurances that the state-licensing requirement exists to provide. ICE currently meets the proposed licensing requirements by requiring FRCs to adhere to the Family Residential Standards and monitoring the FRCs' compliance through an existing contract. Thus, DHS would not incur additional costs in fulfilling the requirements of the proposed alternative licensing scheme. However, most states do not offer licensing for facilities like the FRCs.
ICE is unable to estimate how long detention would be extended for some categories of minors and their accompanying adults in FRCs due to this proposed rule. The average length of stay in the past is not a reliable source for future projections. The average length of stay prior to the court decisions in 2015 and 2017 reflect other policy decisions that will not be directly affected by this proposed rule. In addition, the number of days some minors and their accompanying adults may be detained depends on several factors, including a number of factors that are beyond the scope of this proposed rule. Among other factors, these may include the number of minors and their accompanying adults who arrive in a facility on a given day; the timing and outcome of immigration court proceedings before an immigration judge; whether an individual is eligible for parole or bond; issuance of travel documents by foreign governments; transportation schedule and availability; the availability of bed space in an FRC; and other laws, regulations, guidance, and policies regarding removal not subject to this proposed rule.
Although DHS cannot reliably predict the increased average length of stay for affected minors and their accompanying adults in FRCs, DHS recognizes that generally only certain groups of aliens are likely to have their length of stay in an FRC increased as a result of this proposed rule, among other factors. For instance, aliens who have received a positive credible fear determination, and who are not suitable for parole, may be held throughout their asylum
Of the 14,993 minors shown in Table 12 who had positive credible fear determinations, about 99 percent were paroled or released on their own recognizance. The remaining one percent of minors are those in categories that might have their length of stay in an FRC increased due to this proposed rule.
Separate from the population of minors referenced in Table 12, members of a family unit with administratively final orders of removal, once this rule has been finalized, are likely to be held until removed. 842 such minors who were detained and released at FRCs during FY 2017 either had final orders of removal at the time of their release or subsequently received final orders of removal following their release within the same FY. Minors like these 842 may be held in detention longer as a result of this rule. While DHS generally expects an increase in the average length of stay to affect only these groups, there may be others that may be affected.
In FY 2017, the total number of minors who might have been detained longer at an FRC is estimated to be the number of minors in an FRC who were not paroled or released on order of their own recognizance (131), plus the number of such minors who had negative credible fear determinations (349), plus administratively closed cases (1,465), plus those who were released and either had final orders of removals at the time of their release or subsequently received final orders following their release (842), or 2,787. While the above analysis reflects the number of minors in these groups in the FY 2017, DHS is unable to forecast the future total number of such minors.
The remaining factor in estimating the costs that are attributed to a potentially increased length of stay for these groups of minors and their accompanying parent or legal guardian are the variable contract costs paid by ICE to the private contractor and government entity who operate and maintain the FRCs. The fixed and variable contract costs were obtained from ICE Office of Acquisition Management. For Berks, there is a $16 per-person, per-day fee in addition to the monthly fixed contract rate. Assuming that the contract terms are the same in the future, an increased number of days that all individuals would be at an FRC may also increase this total variable fee amount. Due to the uncertainty surrounding estimating an increased length of stay and the number of aliens this may affect, the total incremental cost of this per day per person fee is not estimated.
Educational services are provided at the Berks and Karnes FRCs at a variable cost per-student, per-day. The cost at Karnes is $75 per-student, per-day, and at Berks the cost is $79 per-student, per-day. There is a fixed monthly cost for educational services at Dilley of $342,083; it is not dependent on the number of students per day.
Assuming again that future contract terms are the same, the total education cost may increase if certain aliens, like the groups described above, are detained longer. However, the incremental variable education cost is not estimated because of the uncertainty surrounding the factors that make up the estimate of the average length of stay and the number of minors that may have an increased length of stay.
This rule also proposes to change current ICE practices for parole determinations to align them with applicable statutory and regulatory authority. ICE is currently complying with the June 27, 2017 court order while it is on appeal. In complying, every detained minor in expedited removal proceedings and awaiting a credible fear determination or determined not to have a credible fear receives an individualized parole determination under the considerations laid out in 8 CFR 212.5(b), which considers only whether the minor is a flight risk. However, ICE proposes to revert to its practice prior to the 2017 court order for those minors in expedited removal proceedings, using its parole authorities under 8 CFR 235.3 sparingly for this category of aliens, as intended by Congress.
At this time, ICE is unable to determine how the number of FRCs may change due to this proposed rule. There are many factors that would be considered in opening a new FRC, some of which are outside the scope of this proposed regulation, such as whether such a facility would be appropriate, based on the population of aliens crossing the border, anticipated capacity, projected average daily population, and projected costs.
With respect to CBP, the proposed rule is not anticipated to have an impact on current operations because CBP is currently implementing the relevant and substantive terms of the FSA, the HSA, and the TVPRA.
HHS has complied with the FSA for over 20 years. The proposed rule would codify current HHS compliance with the FSA, court orders, and statutes. Accordingly, HHS does not expect this proposed rule to impose any additional costs, beyond those costs incurred by the Federal Government to establish the 810 Hearings process within HHS.
This rule will shift responsibility for custody redetermination hearings for
The primary benefit of the proposed rule would be to ensure that applicable regulations reflect the current conditions of DHS detention, release, and treatment of minors and UACs, in accordance with the relevant and substantive terms of the FSA, the HSA, and the TVPRA.
Without codifying the FSA as proposed in this rule, family detention is a less effective tool to meet the enforcement mission of ICE. In many cases, families do not appear for immigration court hearings after being released from an FRC, and even when they do, many more fail to comply with the lawfully issued removal orders from the immigration courts and some families engage in dilatory legal tactics when ICE works to enforce those orders. By departing from the FSA in limited cases to reflect the intervening statutory and operational changes, ICE is reflecting its existing discretion to detain families together, as appropriate, given enforcement needs, which will ensure that family detention remains an effective enforcement tool.
HHS, having not been an original party to the FSA but having inherited some of its requirements, likewise benefits from the current operational environment with proposed rules that clearly delineate ORR's responsibilities from that of other Federal partners. Additionally, the proposed codification of the FSA terms, specifically the minimum standards for licensed facilities and the release process ensures a measure of consistency across the programs network of state licensed facilities.
The regulations are also designed to eliminate judicial management, through the FSA, of functions Congress delegated to the executive branch.
This proposed rule reflects current requirements to comply with the FSA, court orders, the HSA, and the TVPRA. The Departments consider current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA to be the baseline for this analysis. Because these costs are already being incurred, they are not costs of this rule. The primary source of new costs for the proposed rule would be a result of the proposed alternative licensing process, changes to current ICE parole determination practices to align them with applicable statutory and regulatory authority, and the costs of shifting hearings from DOJ to HHS. ICE expects the proposed alternative licensing process and changes to current parole determination practices to extend detention of certain minors in FRCs. This may result in additional or longer detentions for certain minors, increasing annual variable costs paid by ICE to the operators of Berks and Karnes and costs to the individuals being detained, but due to the uncertainty surrounding estimating an increased length of stay and the number of aliens this may affect, this incremental cost is not quantified.
The Departments considered not promulgating this rule. The Departments had been engaged in this alternative prior to proposing this rule, which has required the Government to adhere to the terms of the FSA, as interpreted by the courts, which also rejected the Government's efforts to amend the FSA to help it better conform to existing legal and operational realities. Continuing with this alternative would likely require the Government to operate through non-regulatory means in an uncertain environment subject to currently unknown future court interpretations of the FSA that may be difficult or operationally impracticable to implement and that could otherwise hamper operations. The Departments reject this alternative because past successful motions to enforce the Agreement have consistently expanded the FSA beyond what the Departments believe was its original and intended scope and imposed operationally impracticable or effectively impossible requirements not intended by the parties to the FSA and in tension with (if not incompatible with) current legal authorities. The Departments also reject this alternative because it does not address the current conflict between certain portions of the FSA and the HSA and TVPRA.
The Departments considered proposing within this regulatory action additional regulations addressing further areas of authority under the TVPRA, to include those related to asylum proceedings for UACs. The Departments rejected this alternative in order to solely focus this regulatory action on implementing the terms of the FSA, and provisions of the HSA and TVPRA where they necessarily intersect with the FSA's provisions. And, promulgating this more targeted regulation does not preclude the Departments from subsequently issuing regulations to address broader issues.
Legacy INS's successors are obligated under the FSA to initiate action to publish the relevant and substantive terms of the FSA as regulations. In the 2001 Stipulation, the parties agreed to a termination of the FSA “45 days following the defendants' publication of final regulations implementing this Agreement.” Under this alternative, the Departments are proposing to publish the relevant and substantive terms of the FSA as regulations, while maintaining the operational flexibility necessary to continue operations and ensuring that minors and UACs continue to be treated in accordance with the FSA, the HSA, and the TVPRA.
The Regulatory Flexibility Act of 1980 (RFA), 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 business, 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. Individuals are not considered by the RFA to be a small entity.
An initial regulatory flexibility analysis follows.
(1) A description of the reasons why the action by the agency is being considered.
The purpose of this action is to promulgate regulations that implement the relevant and substantive terms of the FSA. This proposed rule would implement the relevant and substantive terms of the FSA and provisions of the HSA and TVPRA where they necessarily intersect with the FSA's provisions. Publication of final regulations would result in termination of the FSA, as provided for in FSA paragraph 40.
(2) A succinct statement of the objectives of, and legal basis for, the proposed rule.
The main purpose of this action is to promulgate regulations that implement the relevant and substantive terms of the FSA. The FSA provides standards for the detention, treatment, and transfer of minors and UACs. The Secretary of Homeland Security derives her authority to promulgate these proposed regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101
Section 462 of the HSA also transferred to the ORR Director “functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization.” 6 U.S.C. 279(a). The ORR Director may, for purposes of performing a function transferred by this section, “exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function” immediately before the transfer of the program. 6 U.S.C. 279(f)(1).
Consistent with provisions in the HSA, and 8 U.S.C. 1232(a), the TVPRA places the responsibility for the care and custody of UACs with the Secretary of Health and Human Services. Prior to the transfer of the program, the Commissioner of Immigration and Naturalization, through a delegation from the Attorney General, had authority “to establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this Act.” INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the relevant savings and transfer provisions of the HSA,
(3) A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.
This proposed rule would directly regulate DHS and HHS. DHS contracts with private contractors and a local government to operate and maintain FRCs, and with private contractors to provide transportation of minors and UACs. This rule would indirectly affect these entities to the extent that DHS contracts with them under the terms necessary to fulfill the FSA. To the degree this rule increases contract costs to DHS private contractors, it would be incurred by the Federal Government in the cost paid by the contract. Similarly, as of June 2018, HHS is funding non-profit organizations to provide shelter, counseling, medical care, legal services, and other support services to UACs in custody. HHS does not believe this rule would increase costs to any of their grantees.
ICE currently contracts with three operators of FRCs, two of which are businesses and the other a local governmental jurisdiction. ICE and CBP also each have one contractor that provides transportation. To determine if the private contractors that operate and maintain FRCs and the private contractors that provide transportation are small entities, DHS references the Small Business Administration (SBA) size standards represented by business average annual receipts. SBA's Table of Small Business Size Standards is matched to the North American Industry Classification System (NAICS) for these industries.
DHS finds that the revenue of the private contractors that operate and maintain two of the three FRCs to be greater than the SBA size standard of the industry represented by NAICS 531110: Lessors of Residential Buildings and Dwellings. The size standard classified by the SBA is $38.5 million for lessors of buildings space to the Federal Government by Owners.
DHS finds that the revenue of the two private contractors that provide transportation to minors, in some cases their family members, and to UACs for DHS to be greater than the SBA size standard of these industries.
Currently, HHS funds 37 grantees to provide services to UACs. HHS finds that all 37 current grantees are non-profits that do not appear to be dominant in their field. Consequently, HHS believes all 37 grantees are likely to be small entities for the purposes of the RFA.
The proposed changes to DHS and HHS regulations would not directly impact any small entities.
(4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.
The proposed rule would codify the relevant and substantive terms of the FSA. ICE believes the FRCs, which are operated and maintained by private contractors or a local government, comply with these provisions, and will continue to comply through future contract renewals. To the extent this rule increases variable contract costs, such as a per student per day education cost, to any detention facilities, the cost increases would be passed along to the Federal Government in the cost paid for the contract. However, DHS cannot say with certainty how much, if any, increase in variable education costs would result from this rule.
A primary source of new costs for the proposed rule would be as a result of the proposed alternative licensing process. ICE currently fulfills the requirements being proposed as an alternative to licensing through its existing FRC contracts. To codify the requirements of the FSA, DHS is proposing in this rule that facilities that hold minors obtain state, county, or municipal licensing where appropriate licenses are available. If no such licensing regime is available, however, DHS proposes that it will employ an
An increase in the average length of detention may increase the variable costs paid by ICE to the private contractors who operate and maintain Berks and Karnes, as compared to the current operational environment. Due to many uncertainties surrounding the forecast, DHS is unable to estimate the incremental variable costs due to this proposed rule. Refer to Section VI.A. Executive Orders 12866 and 13563: Regulatory Review for the description of the uncertainties.
As discussed above, DHS would incur these potential costs through the cost paid for the contract with these facilities.
There are no cost impacts on the contracts for providing transportation because this rule codifies current operations.
The Departments request information and data from the public that would assist in better understanding the direct effects of this proposed rule on small entities. Members of the public should submit a comment, as described in this proposed rule under Public Participation, if they think that their business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it. It would be helpful if commenters provide as much information as possible as to why this proposed rule would create an impact on small businesses.
(5) Identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap or conflict with the proposed rule.
The Departments are unaware of any relevant Federal rule that may duplicate, overlap, or conflict with the proposed rule.
(6) Description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.
The Departments are not aware any alternatives to the proposed rule which accomplish the stated objectives that would minimize economic impact of the proposed rule on small entities. DHS requests comments and also seeks alternatives from the public that will accomplish the same objectives and minimize the proposed rule's economic impact on small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 858-59, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult ICE or ORR, as appropriate, using the contact information provided in the
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 109 Stat. 48 (codified at 2 U.S.C. 1501
This rule does not exceed the $100 million expenditure threshold in any 1 year when adjusted for inflation. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Additionally, UMRA excludes from its definitions of “Federal intergovernmental mandate,” and “Federal private sector mandate” those regulations imposing an enforceable duty on other levels of government or the private sector which are a “condition of Federal assistance.” 2 U.S.C. 658(5)(A)(i)(I), (7)(A)(i). The FSA provides the Departments with no direct authority to mandate binding standards on facilities of state and local governments or on operations of private sector entities. Instead, these requirements would impact such governments or entities only to the extent that they make voluntary decisions to contract with the Departments. Compliance with any standards that are not already otherwise in place resulting from this rule would be a condition of ongoing Federal assistance through such arrangements. Therefore, this rulemaking contains neither a federal intergovernmental mandate nor a private sector mandate.
The Office of Information and Regulatory Affairs has determined that this rulemaking is not a major rule, as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking pursuant to the Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat. 868, 873 (codified at 5 U.S.C. 804). This rulemaking would not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets. If this rule is implemented as proposed, a report about the issuance of the final rule will be submitted to Congress and the Comptroller General of the United States prior to its effective date.
All Departments are required to submit to OMB for review and approval, any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (codified at 44 U.S.C. 3501
However, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), ACF submitted a copy of this section to the Office of Management and Budget (OMB) for its review. This proposed rule complies with settlement agreements, court orders, and statutory requirements, most of whose terms have been in place for over 20 years. This proposed rule would not require additional information
This proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. This proposed rule implements the FSA by codifying the Departments' practices that comply with the terms of the FSA and relevant law for the processing, transfer, and care and custody of alien juveniles. In codifying these practices, the Departments were mindful of their obligations to meet the requirements of the FSA while also minimizing conflicts between State law and Federal interests.
Insofar, however, as the proposed rule sets forth standards that might apply to immigration detention facilities and holding facilities operated by contract with State and local governments and private entities, this proposed rule has the potential to affect the States, although it would not affect the relationship between the National Government and the States or the distribution of power and responsibilities among the various levels of government and private entities. With respect to the State and local agencies, as well as the private entities, that contract with DHS and operate these facilities across the country, the FSA provides DHS with no direct authority to mandate binding standards on their facilities. Instead, these requirements will impact the State, local, and private entities only to the extent that they make voluntary decisions to contract with DHS for the processing, transportation, care, or custody of alien juveniles. This approach is fully consistent with DHS's historical relationship to State and local agencies in this context.
Typically HHS enters into cooperative agreements or contracts with non-profit organizations to provide shelter, care, and physical custody for UACs in a facility licensed by the appropriate State or local licensing authority. Where HHS enters into cooperative agreements or contacts with a state licensed facility, ORR requires that the non-profit organization administering the facility abide by all applicable State or local licensing regulations and laws. ORR designed agency policies and proposed regulations as well as the terms of HHS cooperative agreements and contracts with the agency's grantees/contractors to complement appropriate State and licensing rules, not supplant or replace the requirements.
Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
Notwithstanding the determination that the formal consultation process described in Executive Order 13132 is not required for this rule, the Departments welcome any comments from representatives of State and local juvenile or family residential facilities—among other individuals and groups—during the course of this rulemaking.
This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988,
Executive Order 13211 requires agencies to consider the impact of rules that significantly impact the supply, distribution, and use of energy. DHS has reviewed this proposed rule and determined that it is not a “significant energy action” under the order because, while it is a “significant regulatory action” under Executive Order 12866, it does not have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, this proposed rule does not require a Statement of Energy Effects under Executive Order 13211.
The U.S. Department of Homeland Security Management Directive (MD) 023-01 Revision Number 01 and Instruction Manual (IM) 023-01-001-01 Revision Number 01 establish procedures that DHS and its Components use to implement the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-1508.
The CEQ regulations allow federal agencies to establish categories of actions that do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. The IM 023-01-001-01, Rev. 01 lists the Categorical Exclusions that DHS has found to have no such effect. IM 023-01-001-01 Rev. 01, Appendix A, Table 1.
For an action to be categorically excluded, IM 023-01-001-01 Rev. 01 requires the action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the Categorical Exclusions;
(2) The action is not a piece of a larger action; and
(3) No extraordinary circumstances exist that create the potential for a significant environmental effect. IM 023-01-001-01 Rev. 01 § V(B)(2)(a)-(c).
Certain categories of proposed actions included in the Categorically Excluded actions list have a greater potential to involve extraordinary circumstances and require the preparation of a Record of Environmental Consideration to document the NEPA analysis. IM 023-01-001-01 Rev. 01 § V(B)(2).
This proposed rule would implement the relevant and substantive terms of the FSA, with such limited changes as are necessary to implement closely related provisions of the HSA and the TVPRA, and to ensure that the regulations set forth a sustainable operational model. The proposed rule would implement regulations to ensure the humane detention of alien juveniles, and satisfy the goals of the FSA, in a manner that is workable and enforceable.
DHS analyzed this proposed rule under MD 023-01 Rev. 01 and IM 023-01-001-01 Rev. 01. DHS has made a preliminary determination 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 proposed rule clearly
For purposes of the joint NPRM, ORR's functions are categorically exempted from NEPA requirements as ORR's state licensed facilities are operated under social service grants. While the exception specifically excludes “projects involving construction, renovation, or changes in land use,” ORR is generally precluded from initiating these types of projects directly for traditional shelter care in state licensed facilities, as the agency lacks construction authority.
The Departments seek any comments or information that may lead to the discovery of any significant environmental effects from this proposed rule.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630,
Executive Order 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. The Departments have reviewed this proposed rule and determined that this rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that may disproportionately affect children. Therefore, the Departments have not prepared a statement under this executive order.
The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (
The Departments have reviewed this proposed rule in accordance with the requirements of section 654 of the Treasury General Appropriations Act, 1999, Public Law 105-277. With respect to the criteria specified in section 654(c)(1), insofar as the proposed rule may ensure the continued availability of FRCs notwithstanding the lack of state licensure, the proposed rule may in some respects strengthen the stability of the family and the authority and rights of parents in the education, nurture, and supervision of their children, within the immigration detention context. The rule would also codify in regulation certain statutory policies with respect to the treatment of UACs. In general, however, as proposed, these regulations would not have an impact on family well-being as defined in this legislation. With respect to family well-being, this proposed rule codifies current requirements of settlement agreements, court orders, and statutes, most of whose terms have been in place for over 20 years, as well as HHS's related authorities.
Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.
Apprehension and detention of inadmissible and deportable aliens, Removal of aliens ordered removed, Administrative practice and procedure, Aliens, Immigration.
Administrative practice and procedure, Child welfare, Immigration, Unaccompanied alien children, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, parts 212 and 236 of chapter I are proposed to be amended as follows:
8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR part 2.
(b) The parole of aliens within the following groups who have been or are detained in accordance with § 235.3(c) of this chapter would generally be justified only on a case-by-case basis for “urgent humanitarian reasons or “significant public benefit,” provided the aliens present neither a security risk nor a risk of absconding:
(3) Aliens who are defined as minors in § 236.3(b) of this chapter and are in DHS custody. The Executive Assistant Director, Enforcement and Removal Operations; directors of field operations; field office directors, deputy field office directors; or chief patrol agents shall follow the guidelines set forth in § 236.3(j) of this chapter and paragraphs (b)(3)(i) through (ii) of this section in determining under what conditions a minor should be paroled from detention:
(i) Minors may be released to a parent or legal guardian not in detention.
(ii) Minors may be released with an accompanying parent or legal guardian who is in detention.
5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1232, 1357, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.
(a)
(2) The provisions of this section apply to all minors in the legal custody of DHS, including minors who are subject to the mandatory detention provisions of the INA and applicable regulations, to the extent authorized by law.
(b)
(1)
(i) Emancipated in an appropriate state judicial proceeding; or
(ii) Incarcerated due to a conviction for a criminal offense in which he or she was tried as an adult.
(2)
(3)
(4)
(5)
(6)
(i) The minor is currently subject to a final order of removal;
(ii) The minor's immigration history includes: A prior breach of bond, a failure to appear before DHS or the immigration courts, evidence that the minor is indebted to organized smugglers for his transport, or a voluntary departure or previous removal from the United States pursuant to a final order of removal; or
(iii) The minor has previously absconded or attempted to abscond from state or federal custody.
(7)
(8)
(9)
(10)
(11)
(12)
(c)
(2) If a reasonable person would conclude that an individual is an adult, despite his or her claim to be under the age of 18, DHS may treat such person as an adult for all purposes, including confinement and release on bond, recognizance, or other conditions of release. In making this determination, an immigration officer may require such an individual to submit to a medical or dental examination conducted by a medical professional or other appropriate procedures to verify his or her age.
(3) If an individual previously considered to have been an adult is subsequently determined to be a under the age of 18, DHS will then treat such individual as a minor or UAC as prescribed by this section.
(d)
(2) When an alien previously determined to have been a UAC has reached the age of 18, when a parent or legal guardian in the United States is available to provide care and physical custody for such an alien, or when such alien has obtained lawful immigration status, the alien is no longer a UAC. An alien who is no longer a UAC is not eligible to receive legal protections limited to UACs under the relevant sections of the Act. Nothing in this paragraph affects USCIS' independent
(3)
(e)
(2) In the case of an emergency or influx, DHS will abide by written guidance detailing all reasonable efforts that it will take to transfer all minors who are not UACs as expeditiously as possible.
(f)
(2) DHS will notify ORR within 48 hours upon the apprehension or discovery of a UAC or any claim or suspicion that an unaccompanied alien detained in DHS custody is under 18 years of age.
(3) Unless exceptional circumstances are present, DHS will transfer custody of a UAC as soon as practicable after receiving notification of an ORR placement, but no later than 72 hours after determining that the minor is a UAC per paragraph (d) of this section. In the case of exceptional circumstances, DHS will abide by written guidance detailing the efforts that it will take to transfer all UACs as required by law.
(4)
(ii) When separate transportation is impractical or unavailable, necessary precautions will be taken to ensure the UAC's safety, security, and well-being. If a UAC is transported with any unrelated detained adult(s), DHS will separate the UAC from the unrelated adult(s) to the extent operationally feasible and take necessary precautions for protection of the UAC's safety, security, and well-being.
(g)
(1) Processing. (i)
(ii)
(iii)
(2)
(ii) Consistent with the statutory requirements, DHS will transfer UACs to HHS in accordance with the procedures described in paragraph (f) of this section.
(h)
(i)
(1) A minor who is not a UAC referenced under this paragraph may be held in or transferred to a suitable state or county juvenile detention facility, or a secure DHS detention facility, or DHS contracted facility having separate accommodations for minors, whenever the Field Office Director and the ICE supervisory or management personnel have probable cause to believe that the minor:
(i) Has been charged with, is chargeable with, or has been convicted of a crime or crimes, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act or acts, that fit within a pattern or practice of criminal activity;
(ii) Has been charged with, is chargeable with, or has been convicted of a crime or crimes, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act or acts, that involve violence against a person or the use or carrying of a weapon;
(iii) Has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself or others) while in federal or state government custody or while in the presence of an immigration officer;
(iv) Has engaged, while in the licensed facility, in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed facility in which the minor has been placed and transfer to another facility is necessary to ensure the welfare of the minor or others, as determined by the staff of the licensed facility;
(v) Is determined to be an escape-risk pursuant to paragraph (b)(6) of this section; or
(vi) Must be held in a secure facility for his or her own safety.
(2) DHS will not place a minor who is not a UAC in a secure facility pursuant to paragraph (i)(1) if there are less restrictive alternatives that are available and appropriate in the circumstances, such as transfer to a facility which would provide intensive staff supervision and counseling services or another licensed facility. All determinations to place a minor in a secure facility will be reviewed and approved by the Juvenile Coordinator referenced in paragraph (o) of this section. Secure facilities shall permit attorney-client visits in accordance with applicable facility rules and regulations.
(3)
(4)
(i) Proper physical care and maintenance, including suitable living, accommodations, food, appropriate clothing, and personal grooming items;
(ii) Appropriate routine medical and dental care, family planning services, and emergency health care services, including a complete medical examination (including screening for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the minor was recently examined at another facility; appropriate immunizations in accordance with the U.S. Public Health Service (PHS), Centers for Disease Control and Prevention; administration of prescribed medication and special diets; appropriate mental health interventions when necessary;
(iii) An individualized needs assessment which includes:
(A) Various initial intake forms;
(B) Essential data relating to the identification and history of the minor and family;
(C) Identification of the minor's special needs including any specific problem(s) which appear to require immediate intervention;
(D) An educational assessment and plan;
(E) An assessment of family relationships and interaction with adults, peers and authority figures;
(F) A statement of religious preference and practice;
(G) An assessment of the minor's personal goals, strengths and weaknesses; and
(H) Identifying information regarding immediate family members, other relatives, godparents, or friends who may be residing in the United States and may be able to assist in family reunification;
(iv) Educational services appropriate to the minor's level of development and communication skills in a structured classroom setting, Monday through Friday, which concentrates primarily on the development of basic academic competencies and secondarily on English Language Training (ELT). The educational program should include subjects similar to those found in U.S. programs and include science, social studies, math, reading, writing, and physical education. The program design should be appropriate for the minor's estimated length of stay and can include the necessary skills appropriate for transition into a U.S. school district. The program should also include acculturation and adaptation services which include information regarding the development of social and inter-personal skills that contribute to those abilities as age appropriate;
(v) Appropriate reading materials in languages other than English for use during the minor's leisure time;
(vi) Activities according to a recreation and leisure time plan which shall include daily outdoor activity, weather permitting, at least one hour per day of large muscle activity and one hour per day of structured leisure time activities (this should not include time spent watching television). Activities should be increased to a total of three hours on days when school is not in session;
(vii) At least one individual counseling session or mental health wellness interaction (if the minor does not want to participate in a counseling session) per week conducted by trained social work staff with the specific objectives of reviewing the minor's progress, establishing new short-term objectives, and addressing both the developmental and crisis-related needs of each minor;
(viii) Group counseling sessions at least twice a week. This is usually an informal process and takes place with all the minors present and can be held in conjunction with other structured activities. It is a time when new minors present in the facility are given the opportunity to get acquainted with the staff, other children, and the rules of the program. It is an open forum where everyone gets a chance to speak. Daily program management is discussed and decisions are made about recreational activities, etc. It is a time for staff and minors to discuss whatever is on their minds and to resolve problems;
(ix) Upon admission, a comprehensive orientation regarding program intent, services, rules (written and verbal), expectations and the availability of legal assistance;
(x) Whenever possible, access to religious services of the minor's choice;
(xi) Visitation and contact with family members (regardless of their immigration status) which is structured to encourage such visitation. The staff shall respect the minor's privacy while reasonably preventing the unauthorized release of the minor and preventing the transfer of contraband;
(xii) A reasonable right to privacy, which shall include the right to:
(A) Wear his or her own clothes, when available;
(B) Retain a private space in the residential facility for the storage of personal belongings;
(C) Talk privately on the phone, as permitted by applicable facility rules and regulations;
(D) Visit privately with guests, as permitted by applicable facility rules and regulations; and
(E) Receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband.
(xiii) When necessary, communication with adult relatives living in the United States and in foreign countries regarding legal issues related to the release and/or removal of the minor;
(xiv) Legal services information regarding the availability of free legal assistance, the right to be represented by counsel at no expense to the Government, the right to apply for asylum or to request voluntary departure; and
(xv) Attorney-client visits in accordance with applicable facility rules and regulations.
(5) In the event of an emergency, a licensed, non-secure facility described in paragraph (i) of this section may transfer temporary physical custody of a minor prior to securing permission from DHS, but shall notify DHS of the transfer as soon as is practicable thereafter, but in all cases within 8 hours.
(j)
(1) DHS will release a minor from custody to a parent or legal guardian who is available to provide care and physical custody.
(2) Prior to releasing to a parent or legal guardian, DHS will use all available reliable evidence to determine whether the relationship is bona fide. If no reliable evidence is available that confirms the relationship, the minor will be treated as a UAC and transferred into the custody of HHS as outlined in paragraph (f) of this section.
(3) For minors in DHS custody, DHS shall assist without undue delay in making transportation arrangements to the DHS office nearest the location of the person to whom a minor is to be released. DHS may, in its discretion, provide transportation to minors.
(4) Nothing herein shall require DHS to release a minor to any person or agency whom DHS has reason to believe may harm or neglect the minor or fail to present him or her before DHS or the immigration courts when requested to do so.
(k)
(2)
(l)
(i) A minor or UAC in DHS custody refuses to be released to his or her parent; or
(ii) A minor or a UAC seeks release from DHS custody or seeks voluntary departure or a withdrawal of an application for admission, parole, or any form of relief from removal before DHS, and that the grant of such request or relief may effectively terminate some interest inherent in the parent-child relationship and/or the minor or UAC's rights and interests are adverse with those of the parent.
(2) Upon notification, the parent will be afforded an opportunity to present his or her views and assert his or her interest to DHS before a determination is made as to the merits of the request for relief.
(m)
(n)
(2) DHS may take a minor back into custody if there is no longer a parent or legal guardian available to care for the minor. In these cases, DHS will treat the minor as a UAC and transfer custody to HHS as outlined in paragraph (e) of this section.
(3) Minors who are not UACs and who are taken back into DHS custody may request a custody redetermination hearing in accordance with paragraph (m) of this section and to the extent permitted by 8 CFR 1003.19 .
(o)
(2) The Juvenile Coordinators shall collect and periodically examine relevant statistical information about UACs and minors who remain in CBP or ICE custody for longer than 72 hours. Such statistical information may include but not necessarily be limited to:
(i) Biographical information;
(ii) Dates of custody; and
(iii) Placements, transfers, removals, or releases from custody, including the reasons for a particular placement.
For the reasons set forth in the preamble, part 410 of Chapter IV of title 45 of the Code of Federal Regulations is proposed to be amended as follows:
6 U.S.C. 279, 8 U.S.C. 1103(a)(3), 8 U.S.C. 1232.
This part governs those aspects of the care, custody, and placement of unaccompanied alien children (UACs) agreed to in the settlement agreement reached in
ORR coordinates and implements the care and placement of UAC who are in ORR custody by reason of their immigration status.
For all UAC in ORR custody, DHS and DOJ handle other matters, including immigration benefits and enforcement matters, as set forth in their respective statutes, regulations and other authorities.
ORR shall hold UACs in facilities that are safe and sanitary and that are consistent with ORR's concern for the particular vulnerability of minors.
Within all placements, UAC shall be treated with dignity, respect, and special concern for their particular vulnerability.
This subpart sets forth what ORR considers when placing a UAC in a particular ORR facility, in accordance with the Flores settlement agreement.
(a) ORR places each UAC in the least restrictive setting that is in the best interest of the child and appropriate to the UAC's age and special needs, provided that such setting is consistent with its interests to ensure the UAC's timely appearance before DHS and the immigration courts and to protect the UAC's well-being and that of others.
(b) ORR separates UAC from delinquent offenders.
(c) ORR makes reasonable efforts to provide placements in those geographical areas where DHS apprehends the majority of UAC.
(d) Facilities where ORR places UAC will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the UAC is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect UAC from others, and contact with family members who were arrested with the minor.
(e) If there is no appropriate licensed program immediately available for placement of a UAC pursuant to Subpart B, and no one to whom ORR may release the UAC pursuant to Subpart C, the UAC may be placed in an ORR-contracted facility, having separate accommodations for minors, or a State or county juvenile detention facility. In addition to the requirement that UAC shall be separated from delinquent offenders, every effort must be taken to ensure that the safety and well-being of the UAC detained in these facilities are satisfactorily provided for by the staff. ORR makes all reasonable efforts to place each UAC in a licensed program as expeditiously as possible.
(f) ORR makes and records the prompt and continuous efforts on its part toward family reunification. ORR continues such efforts at family reunification for as long as the minor is in ORR custody.
(a) ORR places UAC into a licensed program promptly after a UAC is transferred to ORR legal custody, except in the following circumstances:
(1) UAC meeting the criteria for placement in a secure facility set forth in § 410.203 of this part;
(2) As otherwise required by any court decree or court-approved settlement; or,
(3) In the event of an emergency or influx of UAC into the United States, in which case ORR places the UAC as expeditiously as possible in accordance with § 410.209 of this part; or
(4) If a reasonable person would conclude that the UAC is an adult despite his or her claims to be a minor.
(a) Notwithstanding § 410.202 of this part, ORR may place a UAC in a secure facility if the UAC:
(1) Has been charged with, is chargeable, or has been convicted of a crime, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act, and where ORR deems those circumstances demonstrate that the UAC poses a danger to self or others. “Chargeable” means that ORR has probable cause to believe that the UAC has committed a specified offense. This provision does not apply to a UAC whose offense is:
(i) An isolated offense that was not within a pattern or practice of criminal activity and did not involve violence against a person or the use or carrying of a weapon; or
(ii) A petty offense, which is not considered grounds for stricter means of detention in any case;
(2) While in DHS or ORR's custody or while in the presence of an immigration officer, has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself/herself or others);
(3) Has engaged, while in a licensed program or staff secure facility, in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed program or staff secure facility in which he or she has been placed and removal is necessary to ensure the welfare of the UAC or others, as determined by the staff of the licensed program or staff secure facility (
(4) For purposes of placement in a secure RTC, if a licensed psychologist or psychiatrist determines that the UAC poses a risk of harm to self or others.
(5) Is otherwise a danger to self or others.
(b) ORR Federal Field Specialists review and approve all placements of UAC in secure facilities consistent with legal requirements.
When determining whether a UAC is an escape risk, ORR considers, among other factors, whether:
(a) The UAC is currently under a final order of removal;
(b) The UAC's immigration history includes:
(1) A prior breach of a bond;
(2) A failure to appear before DHS or the immigration court;
(3) Evidence that the UAC is indebted to organized smugglers for his or her transport; or
(4) A voluntary departure or a previous removal from the United States pursuant to a final order of removal; and
(c) The UAC has previously absconded or attempted to abscond from state or federal custody.
ORR does not place a UAC in a secure facility pursuant to § 410.203 of this part if less restrictive alternatives are available and appropriate under the circumstances. ORR may place a UAC in a staff secure facility or another licensed program as an alternative to a secure facility.
Within a reasonable period of time, ORR provides each UAC placed or transferred to a secure or staff secure facility with a notice of the reasons for the placement in a language the UAC understands.
A UAC who is placed in a licensed program pursuant to this subpart remains in the custody of ORR, and may only be transferred or released under its authority. However, in the event of an emergency, a licensed program may transfer temporarily the physical placement of a UAC prior to securing permission from ORR, but must notify ORR of the transfer as soon as possible, but in all cases within eight hours of the transfer. Upon release to an approved sponsor, a UAC is no longer in the custody of ORR.
ORR assesses each UAC to determine if he or she has special needs, and if so, places the UAC, whenever possible, in a licensed program in which ORR places unaccompanied alien children without special needs, but which provides services and treatment for such special needs.
In the event of an emergency or influx that prevents the prompt placement of UAC in licensed programs, ORR makes all reasonable efforts to place each UAC in a licensed program as expeditiously as possible using the following procedures:
(a) ORR maintains an emergency placement list of at least 80 beds at programs licensed by an appropriate state agency that are potentially available to accept emergency placements.
(b) ORR implements its contingency plan on emergencies and influxes.
(c) Within one business day of the emergency or influx, ORR, if necessary, contacts the programs on the emergency placement list to determine available placements. To the extent practicable, ORR will attempt to locate emergency placements in geographic areas where culturally and linguistically appropriate community services are available.
(d) In the event that the number of UAC needing placement exceeds the available appropriate placements on the emergency placement list, ORR works with governmental and nongovernmental organizations to locate additional placements through licensed programs, county social services departments, and foster family agencies.
(e) ORR maintains a list of UAC affected by the emergency or influx including each UAC's:
(1) Name;
(2) Date and country of birth;
(3) Date of placement in ORR's custody; and
(4) Place and date of current placement.
(f) Each year ORR reevaluates the number of regular placements needed for UAC to determine whether the number of regular placements should be adjusted to accommodate an increased or decreased number of UAC eligible for placement in licensed programs.
This subpart covers the policies and procedures used to release, without unnecessary delay, a UAC from ORR custody to an approved sponsor.
(a) ORR releases a UAC to an approved sponsor without unnecessary delay, but may continue to retain custody of a UAC if ORR determines that continued custody is necessary to ensure the UAC's safety or the safety of others, or that continued custody is required to secure the UAC's timely appearance before DHS or the immigration courts.
(b) When ORR releases a UAC without unnecessary delay to an approved sponsor, it releases in the following order of preference:
(1) A parent;
(2) A legal guardian;
(3) An adult relative (brother, sister, aunt, uncle, or grandparent);
(4) An adult individual or entity designated by the parent or legal guardian as capable and willing to care for the UAC's well-being in:
(i) A declaration signed under penalty of perjury before an immigration or consular officer, or
(ii) Such other document that establishes to the satisfaction of ORR, in its discretion, the affiant's parental relationship or guardianship;
(5) A licensed program willing to accept legal custody; or
(6) An adult individual or entity seeking custody, in the discretion of ORR, when it appears that there is no other likely alternative to long term custody, and family reunification does not appear to be a reasonable possibility.
(a) The licensed program providing care for the UAC shall make and record the prompt and continuous efforts on its part towards family reunification and the release of the UAC pursuant to the provisions of this section.
(b) ORR requires a background check, including verification of identity and which may include verification of employment of the individuals offering support, prior to release.
(c) ORR also may require further suitability assessment, which may include interviews of members of the household, investigation of the living conditions in which the UAC would be placed and the standard of care he or she would receive, a home visit, a fingerprint-based background and criminal records check on the prospective sponsor and on adult residents of the prospective sponsor's household, and follow-up visits after release. Any such assessment also takes into consideration the wishes and concerns of the UAC.
(d) If the conditions identified in TVPRA at 8 U.S.C. 1232(c)(3)(B) are met, and require a home study, no release to a sponsor may occur in the absence of such a home study.
(e) The proposed sponsor must sign an affidavit of support and a custodial release agreement of the conditions of release. The custodial release agreement requires that the sponsor:
(1) Provide for the UAC's physical, mental, and financial well-being;
(2) Ensure the UAC's presence at all future proceedings before DHS and the immigration courts;
(3) Ensure the UAC reports for removal from the United States if so ordered;
(4) Notify ORR, DHS, and the Executive Office for Immigration Review of any change of address within five days following a move;
(5) Notify ORR and DHS at least five days prior to the sponsor's departure from the United States, whether the departure is voluntary or pursuant to a grant of voluntary departure or an order of removal;
(6) Notify ORR and DHS if dependency proceedings involving the UAC are initiated and also notify the dependency court of any immigration proceedings pending against the UAC;
(7) Receive written permission from ORR if the sponsor decides to transfer legal custody of the UAC to someone else. Also, in the event of an emergency (
(8) Notify ORR and DHS as soon as possible and no later than 24 hours of learning that the UAC has disappeared, has been threatened, or has been contacted in any way by an individual or individuals believed to represent an immigrant smuggling syndicate or organized crime.
(f) ORR is not required to release a UAC to any person or agency it has reason to believe may harm or neglect the UAC or fail to present him or her before DHS or the immigration courts when requested to do so.
This subpart covers the standards that licensed programs must meet in keeping with the principles UACs in custody with dignity, respect and special concern for their particular vulnerability
This subpart applies to all licensed programs, regardless of whether they are providing care in shelters, staff secure facilities, residential treatment centers, or foster care and group home settings.
Licensed programs must:
(a) Be licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children.
(b) Comply with all applicable state child welfare laws and regulations and all state and local building, fire, health and safety codes;
(c) Provide or arrange for the following services for each UAC in care, including:
(1) Proper physical care and maintenance, including suitable living accommodations, food, appropriate clothing, and personal grooming items;
(2) Appropriate routine medical and dental care, family planning services, and emergency health care services, including a complete medical examination (including screening for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the UAC was recently examined at another facility; appropriate immunizations in accordance with the U.S. Public Health Service (PHS), Center for Disease Control; administration of prescribed medication and special diets; appropriate mental health interventions when necessary;
(3) An individualized needs assessment that must include:
(i) Various initial intake forms;
(ii) Essential data relating to the identification and history of the UAC and family;
(iii) Identification of the UAC's special needs including any specific problems that appear to require immediate intervention;
(iv) An educational assessment and plan;
(v) An assessment of family relationships and interaction with adults, peers and authority figures;
(vi) A statement of religious preference and practice;
(vii) An assessment of the UAC's personal goals, strengths and weaknesses; and
(viii) Identifying information regarding immediate family members, other relatives, godparents or friends who may be residing in the United States and may be able to assist in family reunification; and
(4) Educational services appropriate to the UAC's level of development and communication skills in a structured classroom setting, Monday through Friday, which concentrate primarily on the development of basic academic competencies and secondarily on English Language Training (ELT), including:
(i) Instruction and educational and other reading materials in such languages as needed;
(ii) Instruction in basic academic areas that include science, social studies, math, reading, writing, and physical education; and
(iii) The provision to a UAC of appropriate reading materials in languages other than English for use during the UAC's leisure time;
(5) Activities according to a recreation and leisure time plan that include daily outdoor activity, weather permitting, at least one hour per day of large muscle activity and one hour per day of structured leisure time activities, which do not include time spent watching television. Activities must be increased to at least three hours on days when school is not in session;
(6) At least one individual counseling session per week conducted by trained social work staff with the specific objectives of reviewing the UAC's progress, establishing new short-term objectives, and addressing both the developmental and crisis-related needs of each UAC;
(7) Group counseling sessions at least twice a week. This is usually an informal process and takes place with all the UACs present. This is a time when new UACs are given the opportunity to get acquainted with the staff, other children, and the rules of the program. It is an open forum where everyone gets a chance to speak. Daily program management is discussed and decisions are made about recreational and other program activities, etc. This is a time for staff and UACs to discuss whatever is on their minds and to resolve problems;
(8) Acculturation and adaptation services that include information regarding the development of social and inter-personal skills that contribute to those abilities necessary to live independently and responsibly;
(9) Upon admission, a comprehensive orientation regarding program intent, services, rules (provided in writing and verbally), expectations and the availability of legal assistance;
(10) Whenever possible, access to religious services of the UAC's choice;
(11) Visitation and contact with family members (regardless of their immigration status) which is structured to encourage such visitation. The staff must respect the UAC's privacy while reasonably preventing the unauthorized release of the UAC;
(12) A reasonable right to privacy, which must include the right to:
(i) Wear his or her own clothes, when available;
(ii) Retain a private space in the residential facility, group or foster home for the storage of personal belongings;
(iii) Talk privately on the phone, as permitted by the house rules and regulations;
(iv) Visit privately with guests, as permitted by the house rules and regulations; and
(v) Receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband;
(13) Family reunification services designed to identify relatives in the United States as well as in foreign countries and assistance in obtaining legal guardianship when necessary for release of the UAC; and
(14) Legal services information regarding the availability of free legal assistance, the right to be represented by counsel at no expense to the government, the right to a removal hearing before an immigration judge, the
(d) Deliver services in a manner that is sensitive to the age, culture, native language and the complex needs of each UAC;
(e) Formulate program rules and discipline standards with consideration for the range of ages and maturity in the program and that are culturally sensitive to the needs of each UAC to ensure the following:
(1) UAC must not be subjected to corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping: and
(2) Any sanctions employed must not:
(i) Adversely affect either a UAC's health, or physical or psychological well-being; or
(ii) Deny UAC regular meals, sufficient sleep, exercise, medical care, correspondence privileges, or legal assistance;
(f) Develop a comprehensive and realistic individual plan for the care of each UAC in accordance with the UAC's needs as determined by the individualized needs assessment. Individual plans must be implemented and closely coordinated through an operative case management system;
(g) Develop, maintain and safeguard individual client case records. Licensed programs must develop a system of accountability that preserves the confidentiality of client information and protects the records from unauthorized use or disclosure; and
(h) Maintain adequate records and make regular reports as required by ORR that permit ORR to monitor and enforce these regulations and other requirements and standards as ORR may determine are in the interests of the UAC.
ORR monitors compliance with the terms of these regulations.
(a) ORR does not transport UAC with adult detainees.
(b) When ORR plans to release a UAC from its custody under the family reunification provisions at sections 410.201 and 410.302 of this part, ORR assists without undue delay in making transportation arrangements. ORR may, in its discretion, provide transportation to UAC.
(a) ORR transfers a UAC from one placement to another with all of his or her possessions and legal papers. ORR takes all necessary precautions for the protection of UACs during transportation with adults.
(b) If the UAC's possessions exceed the amount permitted normally by the carrier in use, the possessions are shipped to the UAC in a timely manner.
(c) ORR does not transfer a UAC who is represented by counsel without advance notice to his or her legal counsel. However, ORR may provide notice to counsel within 24 hours of the transfer in unusual and compelling circumstances such as:
(1) Where the safety of the UAC or others has been threatened;
(2) The UAC has been determined to be an escape risk consistent with § 410.204 of this part; or
(3) Where counsel has waived such notice.
Procedures for determining the age of an individual must take into account multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the individual. ORR may require an individual in ORR's custody to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age. If ORR subsequently determines that such an individual is a UAC, he or she will be treated in accordance with ORR's UAC regulations for all purposes.
If, the procedures in § 410.700 would result in a reasonable person concluding that an individual is an adult, despite his or her claim to be under the age of 18, ORR must treat such person as an adult for all purposes.
This subpart concerns UACs' objections to ORR placement.
(a) For UACs not placed in licensed programs, ORR shall—within a reasonable period of time—provide a notice of the reasons for housing the minor in secure or staff secure facility. Such notice shall be in a language the UAC understands.
(b) ORR shall promptly provide each UAC not released with:
(i) A list of free legal services providers compiled by ORR and that is provided to UAC as part of a Legal Resource Guide for UAC (unless previously given to the UAC); and
(ii) The following explanation of the right of potential review: ORR usually houses persons under the age of 18 in an open setting, such as a foster or group home, and not in detention facilities. If you believe that you have not been properly placed or that you have been treated improperly, you may call a lawyer to seek assistance. If you cannot afford a lawyer, you may call one from the list of free legal services given to you with this form.
(a) A UAC may request that an independent hearing officer employed by HHS determine, through a written decision, whether the UAC would present a risk of danger to the community or risk of flight if released.
(1) Requests under this section may be made by the UAC, his or her legal representative, or his or her parent or legal guardian.
(2) UACs placed in secure or staff secure facilities will receive a notice of the procedures under this section and may use a form provided to them to make a written request for a hearing under this section.
(b) In hearings conducted under this section, the burden is on the UAC to show that he or she will not be a danger to the community (or risk of flight) if released, using a preponderance of the evidence standard.
(c) In hearings under this section, the UAC may be represented by a person of his or her choosing, at no cost to the government. The UAC may present oral and written evidence to the hearing officer and may appear by video or teleconference. ORR may also choose to present evidence either in writing, or by appearing in person, or by video or teleconference.
(d) A hearing officer's decision that a UAC would not be a danger to the community (or risk of flight) if released is binding upon ORR, unless the provisions of paragraph (e) of this section apply.
(e) A hearing officer's decision under this section may be appealed to the Assistant Secretary of the Administration for Children and Families. Any such appeal request shall be in writing, and must be received
(f) Decisions under this section are final and binding on the Department, and a UAC may only seek another hearing under this section if the UAC can demonstrate a material change in circumstances. Similarly, ORR may request the hearing officer to make a new determination under this section if at least one month has passed since the original decision, and ORR can show that a material change in circumstances means the UAC should no longer be released.
(g) This section cannot be used to determine whether a UAC has a suitable sponsor, and neither the hearing officer nor the Assistant Secretary may order the UAC released.
(h) This section may not be invoked to determine the UAC's placement while in ORR custody. Nor may this section be invoked to determine level of custody for the UAC.
| 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 |