| Page Range | 47027-47282 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 47281 - National Farm Safety and Health Week, 2018 | |
| 83 FR 47279 - National Hispanic Heritage Month, 2018 | |
| 83 FR 47067 - Energy Labeling Rule | |
| 83 FR 47215 - Sunshine Act Meetings | |
| 83 FR 47176 - Announcement of Intent To Issue an OPDIV-Initiated Supplement Under the Standing Announcement for Residential (Shelter) Services for Unaccompanied Children, HHS-2017-ACF-ORR-ZU-1132 | |
| 83 FR 47171 - Notice of Closed Meeting | |
| 83 FR 47069 - Listing of Color Additives Subject to Certification; D&C Black No. 4; Confirmation of Effective Date | |
| 83 FR 47119 - Market Tests | |
| 83 FR 47147 - Access to Confidential Business Information by General Dynamics Information Technology | |
| 83 FR 47074 - Beauveria bassiana Strain PPRI 5339; Exemption From the Requirement of a Tolerance | |
| 83 FR 47234 - Delegation of Authority Payment of Rewards | |
| 83 FR 47192 - Xcel Energy, Monticello Nuclear Generating Plant; Independent Spent Fuel Storage Installation | |
| 83 FR 47242 - Veterans' Family, Caregiver, and Survivor Advisory Committee, Notice of Meeting | |
| 83 FR 47124 - Submission for OMB Review; Comment Request | |
| 83 FR 47229 - Proposed Collection; Comment Request | |
| 83 FR 47218 - Proposed Collection; Comment Request | |
| 83 FR 47207 - Proposed Collection; Comment Request | |
| 83 FR 47218 - Submission for OMB Review; Comment Request | |
| 83 FR 47144 - National Coal Council | |
| 83 FR 47159 - Granting of Requests for Early Termination of the Waiting Period Under the Premerger Notification Rules | |
| 83 FR 47166 - Granting of Requests for Early Termination of the Waiting Period Under the Premerger Notification Rules | |
| 83 FR 47161 - Patriot Puck; Analysis To Aid Public Comment | |
| 83 FR 47154 - Sandpiper of California and PiperGear USA; Analysis To Aid Public Comment | |
| 83 FR 47153 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 83 FR 47180 - Meeting of the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment | |
| 83 FR 47180 - National Advisory Council on Migrant Health | |
| 83 FR 47181 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 83 FR 47183 - National Institute on Deafness and Other Communication Disorders; Notice of Meeting | |
| 83 FR 47183 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meetings | |
| 83 FR 47183 - National Center for Advancing Translational Sciences; Notice of Closed Meeting | |
| 83 FR 47182 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 83 FR 47184 - Center for Scientific Review; Notice of Closed Meetings | |
| 83 FR 47181 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meeting | |
| 83 FR 47182 - National Institute on Deafness and Other Communication Disorders; Notice of Closed Meetings | |
| 83 FR 47186 - Iowa; Major Disaster and Related Determinations | |
| 83 FR 47077 - Suspension of Community Eligibility | |
| 83 FR 47131 - Foreign-Trade Zone (FTZ) 149-Freeport, Texas; Notification of Proposed Production Activity; DSM Nutritional Products, LLC; (Vinylol) Freeport, Texas | |
| 83 FR 47130 - Foreign-Trade Zone (FTZ) 230-Piedmont Triad Area, North Carolina; Authorization of Production Activity; Deere-Hitachi Construction Machinery Corp.; (Forestry Machinery, and Forestry Machinery and Hydraulic Excavator Frames/Booms/Arms); Kernersville, North Carolina | |
| 83 FR 47130 - Foreign-Trade Zone (FTZ) 7-Mayaguez, Puerto Rico; Authorization of Production Activity; Lilly del Caribe; (Pharmaceutical Products); Carolina, Puerto Rico | |
| 83 FR 47154 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 83 FR 47150 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 83 FR 47149 - Information Collections Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 83 FR 47151 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 83 FR 47099 - Fisheries of the Exclusive Economic Zone Off Alaska; “Other Flatfish” in the Bering Sea and Aleutian Islands Management Area | |
| 83 FR 47171 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 47170 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 83 FR 47236 - Procedures To Consider Requests for Exclusion of Particular Products From the Additional Action Pursuant to Section 301: China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation | |
| 83 FR 47173 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 47168 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 83 FR 47139 - Senior Executive Service Performance Review Board Membership | |
| 83 FR 47145 - Proposed Agency Information Collection: Security | |
| 83 FR 47148 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 83 FR 47210 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To List and Trade Shares of the iShares iBonds Dec 2025 Term Muni Bond ETF of iShares Trust Under BZX Rule 14.11(c)(4) (Index Fund Shares) | |
| 83 FR 47187 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 83 FR 47145 - Environmental Management Site-Specific Advisory Board, Oak Ridge | |
| 83 FR 47178 - Endocrinologic and Metabolic Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments | |
| 83 FR 47128 - National Advisory Committee | |
| 83 FR 47239 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Guidance on Stress Testing for Banking Organizations With More than $10 Billion in Total Consolidated Assets | |
| 83 FR 47127 - Notice of Public Meeting of the Minnesota Advisory Committee | |
| 83 FR 47127 - Notice of Public Meeting of the Illinois Advisory Committee to the U.S. Commission on Civil Rights | |
| 83 FR 47069 - Defense Logistics Agency Freedom of Information Act Program | |
| 83 FR 47138 - Proposed Information Collection; Comment Request; U.S. Territorial Catch and Fishing Effort Limits | |
| 83 FR 47065 - Operating Limitations at New York Laguardia Airport | |
| 83 FR 47176 - Proposed Information Collection Activity | |
| 83 FR 47241 - Proposed Collection; Comment Request on Information Collection for Form 8569 | |
| 83 FR 47070 - Impact Aid Program; Corrections | |
| 83 FR 47241 - Proposed Collection; Comment Request for Regulation Project | |
| 83 FR 47153 - Notice of Agreements Filed | |
| 83 FR 47144 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Federal Perkins/NDSL Loan Assignment Form | |
| 83 FR 47118 - Oakshire Naturals LP; Filing of Food Additive Petition | |
| 83 FR 47143 - Agency Information Collection Activities; Comment Request; High School and Beyond 2020 (HS&B:20) Base-Year Field Test Sampling and Recruitment | |
| 83 FR 47126 - Notice of Solicitation of Applications for the Multifamily Preservation and Revitalization Demonstration Program Under Section 514, Section 515, and Section 516; Correction | |
| 83 FR 47177 - Post-Marketing Pediatric-Focused Product Safety Reviews; Establishment of a Public Docket; Request for Comments | |
| 83 FR 47136 - Submission for OMB Review; Comment Request | |
| 83 FR 47203 - Vistra Operations Company LLC; Comanche Peak Nuclear Power Plant, Unit No. 1 | |
| 83 FR 47235 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: “Victorian Radicals: From the Pre-Raphaelites to the Arts & Crafts Movement” Exhibition | |
| 83 FR 47235 - 60-Day Notice of Proposed Information Collection: Request To Change End User, End Use and/or Destination of Hardware | |
| 83 FR 47136 - Proposed Information Collection; Comment Request; Coastal and Estuarine Land Conservation Planning, Protection or Restoration | |
| 83 FR 47137 - Submission for OMB Review; Comment Request | |
| 83 FR 47069 - Special Local Regulations, Marine Events Within the Fifth Coast Guard District; Correction | |
| 83 FR 47129 - Proposed Information Collection; Comment Request; Automated Export System Program | |
| 83 FR 47238 - Petition for Waiver of Compliance | |
| 83 FR 47146 - Combined Notice of Filings | |
| 83 FR 47190 - Temporary Labor Camps; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) Requirements | |
| 83 FR 47243 - Agency Information Collection Activity Under OMB Review: Accelerated Aging Among Vietnam-Era Veterans Survey | |
| 83 FR 47242 - Agency Information Collection Activity Under OMB Review: Certification of Change or Correction of Name Government Life Insurance | |
| 83 FR 47168 - SES Performance Review Board | |
| 83 FR 47146 - Combined Notice of Filings #1 | |
| 83 FR 47216 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Equities Fees and Charges To Introduce a New Pricing Tier, Step Up Tier 3 | |
| 83 FR 47230 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Price List To Amend the Threshold Levels and Rebate Amounts Payable Under the Liquidity Provider Incentive Program, and To Amend the Rebate Amount Payable Under the Agency Order Incentive Program | |
| 83 FR 47232 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the NYSE Arca Options Fee Schedule | |
| 83 FR 47221 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Options Rules To Make Certain Non-Substantive Changes and To Harmonize Certain Rules With Those of Its Affiliate, NYSE American LLC | |
| 83 FR 47207 - Self-Regulatory Organizations; Miami International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 404A, Select Provisions of Options Listing Procedures Plan, Rule 406, Long-Term Option Contracts, and Rule 1809, Terms of Index Options Contracts | |
| 83 FR 47188 - Certain Robotic Vacuum Cleaning Devices and Components Thereof Such as Spare Parts; Commission Determination To Review a Final Initial Determination in Part; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target Date | |
| 83 FR 47239 - Hazardous Materials: Emergency Waiver No. 6 | |
| 83 FR 47187 - Indian Gaming; Approval of Tribal-State Class III Gaming Compact Amendments in the State of Oklahoma | |
| 83 FR 47135 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Northwest Fisheries Science Center Fisheries Research | |
| 83 FR 47131 - Draft 2018 Marine Mammal Stock Assessment Reports | |
| 83 FR 47027 - Summaries of Rights Under the Fair Credit Reporting Act (Regulation V) | |
| 83 FR 47097 - VA Acquisition Regulation: Subcontracting Policies and Procedures; Government Property | |
| 83 FR 47138 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; AmeriCorps Child Care Benefit Forms; Proposed Information Collection; Comment Request | |
| 83 FR 47059 - Amendment of the Prohibition Against Certain Flights in the Pyongyang Flight Information Region (FIR) (ZKKP) | |
| 83 FR 47073 - Air Plan Approval; Oregon; Interstate Transport Requirements for the 2012 PM2.5 | |
| 83 FR 47192 - Advisory Committee for International Science and Engineering; Notice of Meeting | |
| 83 FR 47174 - Revised Draft NIOSH Current Intelligence Bulletin: Health Effects of Occupational Exposure to Silver Nanomaterials | |
| 83 FR 47124 - Notice of Availability of the Alabama Trustee Implementation Group Final Restoration Plan II and Environmental Assessment: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; Nutrient Reduction (Nonpoint Source); Sea Turtles; Marine Mammals; Birds; and Oysters and Finding of No Significant Impact | |
| 83 FR 47123 - Petition of the World Shipping Council for an Exemption From Certain Provisions of the Shipping Act of 1984, as Amended, and for a Rulemaking Proceeding; Notice of Filing and Request for Comments | |
| 83 FR 47076 - National Oil and Hazardous Substances Pollution Contingency Plan National Priorities List: Partial Deletion of the Beloit Corporation Superfund Site | |
| 83 FR 47154 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 83 FR 47185 - National Boating Safety Advisory Council | |
| 83 FR 47113 - Airworthiness Directives; Bombardier, Inc., Airplanes | |
| 83 FR 47071 - Transporting Bows and Crossbows Across National Park System Units | |
| 83 FR 47116 - Airworthiness Directives; Weatherly Aircraft Company | |
| 83 FR 47101 - Covered Savings Associations | |
| 83 FR 47246 - Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits | |
| 83 FR 47056 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 47042 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 47054 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 47047 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 47044 - Airworthiness Directives; Learjet, Inc. Airplanes | |
| 83 FR 47079 - Assessment and Collection of Regulatory Fees for Fiscal Year 2018 |
Natural Resources Conservation Service
Rural Housing Service
Census Bureau
Foreign-Trade Zones Board
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
National Park Service
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Bureau of Consumer Financial Protection.
Interim final rule with request for public comment.
The Bureau of Consumer Financial Protection (Bureau) is issuing an interim final rule to update the Bureau's model forms for the Summary of Consumer Identity Theft Rights and the Summary of Consumer Rights to incorporate a notice of rights required by a new provision of the Fair Credit Reporting Act, added by the Economic Growth, Regulatory Relief, and Consumer Protection Act.
This interim final rule is effective on September 21, 2018. Comments must be received on or before November 19, 2018.
You may submit comments, identified by Docket No. CFPB-2018-0025 or RIN 3170-AA82, by any of the following methods:
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•
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All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Seth Caffrey, David Hixson, Amanda Quester, or Pavneet Singh, Senior Counsels, Office of Regulations, at 202-435-7700 or
Effective September 21, 2018, new section 605A(i)(5) of the Fair Credit Reporting Act (FCRA), added by the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act), requires that a new notice of rights be included whenever a consumer is required to receive a summary of rights required by FCRA section 609. This new notice of rights does not appear in the model forms currently in Appendices I and K, which were published on November 14, 2012. The interim final rule amends the model forms to incorporate the new required notice of rights, amends the model form in Appendix I to reflect a statutory change to the minimum duration of initial fraud alerts, and makes adjustments to update contact information for certain FCRA enforcement agencies in the model form in Appendix K. To mitigate the impact of these changes on users of the existing model forms, the interim final rule also provides that the Bureau will regard the use of the model forms published in Appendices I and K on November 14, 2012, to constitute compliance with the FCRA provisions requiring such forms, so long as a separate page that contains the additional required information is provided in the same transmittal. The Bureau is soliciting comment on the interim final rule's amendments to Appendices I and K to inform possible further revisions to the model forms that the Bureau may consider in the future.
Section 609 of the FCRA requires the Bureau to prepare two consumer disclosures: A model summary of rights to obtain and dispute information in consumer reports and to obtain credit scores (Summary of Consumer Rights); and a model summary of rights of identity theft victims (Summary of Consumer Identity Theft Rights).
The Summary of Consumer Rights explains certain major consumer rights under the FCRA, including the right to obtain a copy of a consumer report, the frequency and circumstances under which a consumer is entitled to receive a free consumer report, the right to dispute information in a consumer's file, and the right to obtain a credit score. A consumer reporting agency must provide a Summary of Consumer Rights whenever it makes a written disclosure of information from a consumer's file or a credit score to the consumer.
The Summary of Consumer Identity Theft Rights explains the rights consumers have under the FCRA when they seek to remedy the effects of fraud or identity theft, including the right to place a fraud alert and block certain information from appearing in a consumer report. A consumer reporting agency must provide a Summary of Consumer Identity Theft Rights that contains all of the information required by the Bureau if a consumer contacts the consumer reporting agency and expresses a belief that the consumer is a victim of fraud or identity theft involving credit, an electronic fund transfer, or an account or transaction at or with a financial institution or other creditor.
Regulation V provides that use or distribution of the Bureau's model forms and disclosures in Appendices I and K, or substantially similar forms and disclosures, will constitute compliance with any FCRA section or subsection requiring that such forms and disclosures be used by or supplied to any person.
On May 24, 2018, the President signed the Act into law.
The Bureau is issuing this interim final rule pursuant to its authority under the FCRA and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Bureau for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.
The Bureau finds that prior notice and public comment are unnecessary because the revisions involve technical changes necessary for the regulation to contain model forms that comply with section 301 of the Act. The revisions merely incorporate a new notice of rights required by the Act into the model forms, update the description of initial fraud alerts in the Summary of Consumer Identity Theft Rights to reflect the new minimum duration of initial fraud alerts specified in the Act, and make adjustments to update contact information for certain FCRA enforcement agencies in the Summary of Consumer Rights. The revisions also include in both model forms optional language clarifying that the security freeze right applies only to nationwide consumer reporting agencies. Entities that do not wish to use the new model forms may use substantially similar forms. They may also continue using the existing model forms (or substantially similar forms) to comply with the provisions in the FCRA that require such forms if they provide the notice of rights required by new FCRA section 605A(i)(5) on a separate page in the same transmittal and, for the Summary of Consumer Identity Theft Rights, a short explanation of the changed minimum duration of initial fraud alerts.
The Bureau also finds that prior notice and public comment are impractical because notice and comment would afford insufficient time to finalize the revisions to the model forms necessary for them to comply with section 301 of the Act before the effective date of that section. If revisions to the model forms were not finalized prior to the effective date of the statutory changes, legal uncertainty and risk could arise as to how entities could comply with both the regulation and section 301 of the Act at the same time.
The Bureau also finds that there is good cause for this interim final rule to be effective less than 30 days after publication to ensure that these necessary technical revisions to the model forms are in effect by the effective date of section 301 of the Act to avoid the legal uncertainty and risk that could arise as to how entities could comply with both the regulation and section 301 of the Act at the same time.
For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for prior public comment are unnecessary and impractical and that there is good cause for this interim final rule to be effective less than 30 days after publication.
Effective September 21, 2018, FCRA section 605A(i)(5) requires that whenever a consumer is required to receive a summary of rights required under FCRA section 609, a notice of rights regarding the new security freeze right must be included. This notice of rights does not appear in the model form for the Summary of Consumer Identity Theft Rights currently in Appendix I. To conform to this statutory change, the Bureau is amending the model form in Appendix I to include the new required notice of rights.
Under section 301 of the Act, a security freeze prohibits consumer reporting agencies that are described in FCRA section 603(p) (nationwide consumer reporting agencies) from releasing information subject to various exceptions. To clarify the scope of the new security freeze right under the FCRA, the Bureau has added a sentence before the new notice of rights in the model form in Appendix I stating that the following FCRA right applies with respect to nationwide consumer reporting agencies. The Bureau will regard the model form in Appendix I without this sentence as substantially similar to the model form in Appendix I and will regard use of the model form without this sentence to constitute compliance with the FCRA provisions requiring such forms.
The model form for the Summary of Consumer Identity Theft Rights currently in Appendix I provides that “[a]n
The Bureau recognizes that some entities may have already begun preparing to implement the Act and may be preparing Summaries of Consumer Identity Theft Rights that include the notice of rights required by FCRA section 605A(i)(5) in a different location on the form than shown on the new model form published today. The Bureau will regard use of forms that are the same as the model form published today but that include the notice of rights required by FCRA section 605A(i)(5) in a different location on the form to constitute compliance with the FCRA provisions requiring the Summary of Consumer Identity Theft Rights and will regard such forms as substantially similar to the model form for the Summary of Consumer Identity Theft Rights published today.
The Bureau recognizes that some entities may find it less burdensome to include the notice of rights required by FCRA section 605A(i)(5) on a separate page in the same transmittal with the Summary of Consumer Identity Theft Rights published on November 14, 2012, and to clarify in the separate page that the Act changed the minimum duration of initial fraud alerts from 90 days to one year. To mitigate the impact of the model form changes on users of the existing model forms, the Bureau will regard the use of the model form for the Summary of Consumer Identity Theft Rights published on November 14, 2012 (or a substantially similar form), with a separate page provided in the same transmittal that includes the notice of rights required by FCRA section 605A(i)(5) and that states on the separate page, before or after the notice of rights required by FCRA section 605A(i)(5), that “The minimum duration of initial fraud alerts changed from 90 days to one year effective September 21, 2018,” to constitute compliance with the FCRA provisions requiring the Summary of Consumer Identity Theft Rights.
Effective September 21, 2018, FCRA section 605A(i)(5) requires that whenever a consumer is required to receive a summary of rights required under FCRA section 609, a notice of rights regarding the new security freeze right must be included. This notice does not appear in the model form for the Summary of Consumer Rights currently in Appendix K. To conform to this statutory change, the Bureau is amending the model form in Appendix K to include the new required notice of rights.
Under section 301 of the Act, a security freeze prohibits consumer reporting agencies that are described in FCRA section 603(p) (nationwide consumer reporting agencies) from releasing information subject to various exceptions. To clarify the scope of the new security freeze right under the FCRA, the Bureau has added a sentence before the new notice of rights in the model form in Appendix K stating that the following FCRA right applies with respect to nationwide consumer reporting agencies. The Bureau will regard the model form in Appendix K without this sentence as substantially similar to the model form in Appendix K and will regard use of the model form without this sentence to constitute compliance with the FCRA provisions requiring such forms.
The Bureau has also amended the model form in Appendix K to update contact information provided for certain FCRA enforcement agencies.
The Bureau recognizes that some entities may have already begun preparing to implement the Act and may be preparing Summaries of Consumer Rights that include the notice of rights required by FCRA section 605A(i)(5) in a different location on the form than shown on the new model form published today. The Bureau will regard use of forms that are the same as the model form published today but that include the notice of rights required by FCRA section 605A(i)(5) in a different location on the form to constitute compliance with the FCRA provisions requiring the Summary of Consumer Rights and will regard such forms as substantially similar to the model form for the Summary of Consumer Rights published today.
The Bureau recognizes that some entities may find it less burdensome to
The Bureau may consider possible further revisions to the model forms in Appendices I and K to Regulation V in the future. Although notice-and-comment rulemaking procedures are not required for the revisions made in this interim final rule, the Bureau invites comment on this interim final rule, implementation of the Act in the model forms, and any other changes that may be necessary or appropriate to the model forms in Appendices I and K to Regulation V.
This interim final rule is effective on September 21, 2018.
In developing the interim final rule, the Bureau has considered the potential benefits, costs, and impacts required by section 1022(b)(2) of the Dodd-Frank Act. Specifically, section 1022(b)(2) 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. In addition, section 1022(b)(2)(B) directs the Bureau to consult, before and during the rulemaking, with appropriate prudential regulators or other Federal agencies, regarding consistency with objectives those agencies administer. The Bureau has consulted, or offered to consult, with the prudential regulators and the FTC regarding consistency with any prudential, market, or systemic objectives administered by those agencies.
In considering the relevant potential benefits, costs, and impacts, the Bureau consulted the available data and applied its knowledge and expertise concerning consumer financial markets. Where available, the Bureau used the economic analyses that it regards as most reliable and helpful to consider the relevant potential benefits, costs, and impacts of the interim final rule. However, the Bureau notes that, in some instances, there are limited data available to inform the quantification of the potential benefits, costs, and impacts. Where possible, the Bureau makes quantitative estimates based on economic principles as well as available data. However, where data are limited, the Bureau generally provides a qualitative discussion of the interim final rule's potential benefits, costs, and impacts.
The Bureau is using a post-statute baseline to assess the impact of this interim final rule. Using a post-statute baseline, the analysis evaluates the benefits, costs, and impacts of the interim final rule as compared to enactment of the statute alone. A post-statute baseline focuses the consideration of the benefits, costs, and impacts on the amendments in this interim final rule, which are technical and do not impose any new substantive obligations on regulated entities.
As discussed above, the interim final rule amends Regulation V, which implements the FCRA, to reflect new FCRA section 605A(i), added by the Act. Under the interim final rule, the Bureau is amending two model forms in Regulation V to conform to new FCRA section 605A(i)(5). The amended model form in Regulation V, Appendix K, the Summary of Consumer Rights, reflects two changes relative to the current model form: The addition of a notice of rights that details the consumer's right to a security freeze; and an update to the contact information listed for certain FCRA enforcement agencies. The amended model form in Regulation V, Appendix I, the Summary of Consumer Identity Theft Rights, reflects two changes relative to the current model form: The addition of the same notice of rights detailing the consumer's right to a security freeze that has been added to the Summary of Consumer Rights; and an update to the disclosed minimum amount of time that an initial fraud alert stays in a consumer's file. The rule also includes in both model forms optional language clarifying that the security freeze right applies only to nationwide consumer reporting agencies.
Rather than requiring entities subject to the interim final rule to use the new model forms, the interim final rule allows entities to comply in a variety of ways. These include, for example: (1) Allowing entities to continue to use the current forms while also including a separate page that includes the new statutorily prescribed notice of rights and, with respect to the disclosure in Appendix I, either highlighting in the separate page the change from 90 days to one year for the minimum duration of initial fraud alerts or updating the current forms to include the change in the minimum duration of initial fraud alerts; or (2) allowing entities flexibility as to the placement of the new notice of rights on the forms. For the purpose of this analysis, the Bureau does not differentiate between which of these methods of compliance an entity chooses, and these methods are collectively referred to as the “alternative approach.”
Regarding baseline behavior and practices, the Bureau assumes that if the interim final rule were not adopted, entities subject to the rule would comply with both new FCRA section 605A(i)(5) and current Regulation V. For the purpose of this analysis, the Bureau assumes that if the interim final rule were not adopted, to convey the information required by new FCRA section 605A(i)(5) along with the information contained in either of the current model forms under current Regulation V, entities subject to the rule would comply in a manner that is substantially similar to the alternative approach described above, using two
As this analysis details below, the similarity between the alternative approach and the assumed behavior and practices under the baseline result in the Bureau estimating minimal additional costs under the interim final rule. Where illuminating, the Bureau also considers the costs to entities of adopting the amended model forms. These analyses demonstrate that the Bureau's estimate of costs is not affected by whether entities adopt the model form or use the alternative approach.
The impact on consumers of the interim final rule depends on whether a particular consumer prefers, or would otherwise benefit from, receiving the amended disclosures.
Regarding benefits to industry, this interim final rule harmonizes Regulation V with the FCRA, as amended by the Act. The Bureau intends to reduce legal uncertainty and risk in the industry regarding responsibilities and liabilities among market participants about how they may comply with both the statute and Regulation V at the same time. There may be a general benefit from the certainty and risk reduction provided through this harmonization. However, without data on how entities would comply with the statute and Regulation V absent this interim final rule, the Bureau cannot quantify the benefit of this additional certainty.
The Bureau estimates minimal additional costs under the interim final rule. The Bureau does not anticipate any additional one-time costs due to this rule, relative to the baseline. Regarding ongoing costs, this interim final rule does not alter the circumstances under which disclosures under the FCRA are required. Nor does the Bureau estimate any additional costs to providing disclosures due to this rule, relative to the baseline. Nonetheless, this analysis considers each of the potential sources of cost for each of the disclosures that are updated by this interim final rule, given the baseline, including: Development of new disclosure templates, destruction or disposal of out-of-date materials, changes to production of disclosures, and changes to delivery of disclosures.
The Bureau believes that the costs of this interim final rule of development of a new Summary of Consumer Rights disclosure template, or destruction or disposal of out-of-date materials, will be minimal. As stated above, the Bureau believes that the alternative approach allowed by this rule is substantially similar to how entities would comply with both new FCRA section 605A(i)(5) and current Regulation V if this interim final rule were not adopted. The Bureau therefore expects that to come into compliance with this rule, relative to the baseline, entities subject to the rule will not incur additional costs to update disclosure templates or to destroy, or dispose of, out-of-date materials.
Regarding production and delivery of the Summary of Consumer Rights disclosure, there are two relevant classes of recipients: Consumers and employers. The Bureau estimates additional costs under the interim final rule to be very small for production and delivery to either class. Each is considered separately below.
For production and delivery to consumers, the Bureau estimates minimal additional costs under the interim final rule. The Bureau expects that the alternative approach will take two double-sided sheets to be printed, which is the same number of sheets as under the approach the Bureau assumes entities will take under the baseline.
If this analysis were to adopt a pre-statute baseline, then this analysis would still estimate minimal additional costs due to this part of the rule. When printed on double-sided sheets, the disclosure under current Regulation V takes two sheets of standard printer paper, which is the same number of sheets as under both the amended model form and the alternative approach under this interim final rule. Although this rule does technically imply that additional ink would be used relative to printing the current disclosure, the Bureau typically estimates a total cost per sheet of printing inclusive of paper costs, depreciation of printing hardware, and the ink required for a double-sided, completely printed, sheet. Therefore, the implied cost of additional ink would already have been counted in the cost of previous rules.
For production and delivery to employers, the Bureau estimates minimal additional costs under the interim final rule. Under the FCRA, employers must be provided a copy of the Summary of Consumer Rights disclosure by a consumer reporting agency before the consumer reporting agency furnishes a consumer report for employment purposes, unless the consumer reporting agency already provided a copy of the disclosure to that employer. The Bureau believes that, under the baseline, consumer reporting agencies will provide an updated copy of the Summary of Consumer Rights to employers once the Act takes effect. However, because the Bureau assumes that consumer reporting agencies' baseline approach will be substantially similar to the alternative approach under this interim final rule, the Bureau estimates the cost to sending an updated copy to employers to be the same under the rule as under the baseline.
If this analysis were to adopt a pre-statute baseline, the Bureau would estimate a one-time cost to consumer reporting agencies of between $0 and $435,000, depending on the method by which the disclosures are delivered. This estimate assumes printing costs of $0.20 per disclosure (two sheets * $0.10 per sheet), and postage cost of $0.375 per disclosure.
For the same reasons described in the previous part, the Bureau believes that the additional costs under this interim final rule of development of a new Summary of Consumer Identity Theft Rights disclosure template, or destruction or disposal of out-of-date materials, will be minimal.
Regarding production and delivery of the Summary of Consumer Identity Theft Rights disclosure, the Bureau estimates the total change in costs will be very small. The Bureau expects that the alternative approach will take no more than two double-sided sheets to be printed, which is the same number of sheets as under the approach the Bureau assumes entities will take under the baseline. Since the printing needs are the same, there are no new costs.
If entities were to choose to adopt the model form, the Bureau would continue to estimate the costs to be very small because the amended Summary of Consumer Identity Theft Rights model form disclosure takes two double-sided sheets to be printed, which is the same number of sheets as under the approach the Bureau assumes entities will take under the baseline.
If this analysis were to adopt a pre-statute baseline, printing the amended Summary of Consumer Identity Theft Rights model form would use one additional sheet of paper relative to the current model form, and the total change in costs would be between $0 and approximately $140,000 annually, depending on the methods by which consumer reporting agencies distribute their disclosures. These estimates assume additional printing costs of $0.10 per disclosure (one sheet * $0.10 per sheet), but no additional postage cost (the cost to send a business class letter via the USPS is the same whether it contains one or two sheets of paper). In addition, these estimates assume that about 1.4 million consumers contact consumer reporting agencies regarding identity theft.
An estimated 42 percent of consumers submit disputes to consumer reporting agencies online, 44 percent by mail, 13 percent by phone, and the remainder by fax, walk-ins, or other methods (which the Bureau assumes result in burden resembling disputes submitted by mail). Under the assumptions that these methods of contact are representative of consumer behavior across products, and that consumer reporting agencies respond in-kind to electronic disputes but respond to all other methods of consumer contact via U.S. mail, 42 percent of these disclosures would be sent electronically, and 58 percent would be sent via U.S. mail. This would result in an expected cost to consumer reporting agencies of approximately $81,200 annually.
The Bureau does not anticipate that the interim final rule will generate costs for consumers, given the baseline.
This analysis estimates minimal additional costs under the interim final rule, and therefore the Bureau does not believe that the rule would reduce consumers' access to consumer financial products or services.
The Bureau does not expect the interim final rule to have distinct impacts on depository institutions and credit unions with $10 billion or less in total assets or on consumers in rural areas, relative to other entities or consumers.
The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where general notice of proposed rulemaking is not required.
The Bureau has determined that the interim final 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
Pursuant to the Congressional Review Act,
Banks, Banking, Consumer protection, Credit unions, Fair Credit Reporting Act, Holding companies, National banks, Privacy, Reporting and recordkeeping requirements, Savings associations, State member banks.
For the reasons set forth above, the Bureau amends Regulation V, 12 CFR part 1022, as set forth below:
12 U.S.C. 5512, 5581; 15 U.S.C. 1681a, 1681b, 1681c, 1681c-1, 1681e, 1681g, 1681i, 1681j, 1681m, 1681s, 1681s-2, 1681s-3, and 1681t; Sec. 214, Public Law 108-159, 117 Stat. 1952.
The prescribed form for this summary is a disclosure that is substantially similar to the Bureau's model summary with all information clearly and prominently displayed. A summary should accurately reflect changes to those items that may change over time (such as telephone numbers) to remain in compliance. Translations of this summary will be in compliance with the Bureau's prescribed model, provided that the translation is accurate and that it is provided in a language used by the recipient consumer.
The prescribed form for this summary is a disclosure that is substantially similar to the Bureau's model summary with all information clearly and prominently displayed. The list of Federal regulators that is included in the Bureau's prescribed summary may be provided separately so long as this is done in a clear and conspicuous way. A summary should accurately reflect changes to those items that may change over time (
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. This AD requires revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 23, 2018. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 23, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The NPRM published in the
We are issuing this AD to address safety-significant latent failures that would, in combination with one or more other specific failures or events, result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0203, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The MCAI states:
Maintenance requirements and airworthiness limitations for the Airbus A310, A300-600 and A300-600ST family aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A310 and A300-600 Airworthiness Limitations Section (ALS) documents. Certification Maintenance Requirements (CMR) for the Airbus A310 and A300-600, which are approved by EASA, are specified in the Airbus A310 and A300-600 (including A300-600ST) ALS Part 3 documents. These instructions have been identified as mandatory for continuing airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
EASA previously issued [EASA] AD 2013-0072 [which corresponds to FAA AD 2015-08-06, Amendment 39-18142 (80 FR 23230, April 27, 2015) (“AD 2015-08-06”)] to require the implementation of the maintenance requirements and associated airworthiness limitations as specified in Airbus A310 and A300-600 ALS Part 3 documents at original issue.
Since that [EASA] AD was issued, new or more restrictive maintenance requirements and airworthiness limitations were approved by EASA. Consequently, Airbus published Revision 01 of the A310 ALS Part 3 and A300-600 ALS Part 3, compiling all ALS Part 3 changes approved since original issue.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013-0072, which is superseded, and requires accomplishment of the actions specified in A310 ALS Part 3 Revision 01 and A300-600 ALS Part 3 Revision 01.
You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. FedEx Express indicated its support for the NPRM.
Airbus requested that we release this final rule at the same time as the following related ADs to provide clarity to operators. All four pending ADs are related to the removal of the same 15 nose landing gear parts from ALS Part 1, on different airplane models.
• Docket No. FAA-2018-0390, Product Identifier 2017-NM-130-AD (EASA AD 2017-0145, dated August 31, 2017).
• Docket No. FAA-2018-0364, Product Identifier 2017-NM-154-AD (EASA AD 2017-0204, dated October 12, 2017).
• Docket No. FAA-2018-0396, Product Identifier 2017-NM-156-AD (EASA AD 2017-0202, dated October 12, 2017).
We agree with the request. While we cannot ensure that all four final rules will be published on the same date, we will coordinate with the Office of the Federal Register (OFR) and attempt to issue all four final rules at the same time.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the 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.
Airbus SAS has issued A300-600 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017; and A310 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017. This service information describes mandatory maintenance tasks that operators must perform at specified intervals. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 127 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although this figure may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 23, 2018.
This AD affects AD 2015-08-06, Amendment 39-18142 (80 FR 23230, April 27, 2015) (“AD 2015-08-06”).
This AD applies to all Airbus SAS Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; Model A300 B4-605R and B4-622R airplanes; Model A300 F4-605R and F4-622R airplanes; Model A300 C4-605R Variant F airplanes; and Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent safety-significant latent failures that would, in combination with one or more other specific failures or events, result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus A300-600 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017; or Airbus A310 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017; as applicable. The initial compliance time for accomplishing the actions is at the applicable time specified in Airbus A300-600 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017; or Airbus A310 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017; as applicable; or within 90 days after the effective date of this AD; whichever occurs later.
After accomplishment of the revision required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2015-08-06.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0203, dated October 12, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus A300-600 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017.
(ii) Airbus A310 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Learjet, Inc. Models 28, 29, 31, 31A, 35, 35A, 36, 36A, 55, 55B, 55C, and 60 airplanes. This AD was prompted by fatigue cracks initiating in the flap support structure due to repetitive flap loads, which has caused flap nose roller support bracket failure. This AD requires replacement of the flap nose roller fitting, nose roller support bracket, and adjacent rib support structure with improved components. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 23, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 23, 2018.
For service information identified in this final rule, contact Learjet, Inc., One Learjet Way, Wichita, Kansas 67209; telephone: 316-946-2000; email:
You may examine the AD docket on the internet at
Tara Shawn, Aerospace Engineer, Wichita ACO Branch, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946-4141; fax: (316) 946-4107; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Learjet, Inc. Models 28, 29, 31, 31A, 35, 35A, 36, 36A, 55, 55B, 55C, and 60 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.
We have revised this action to clarify that operators are not required to obtain repair instructions from Learjet. Instead, operators must use a repair method approved by the Manager, Wichita ACO Branch, FAA.
We reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed except for the changes described previously and other minor editorial changes. We have determined that these 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 reviewed Bombardier Learjet 28/29 Service Bulletin SB 28/29-27-31 Recommended, dated September 11, 2017; Bombardier Learjet 31 SB 31-27-35 Recommended, dated September 11, 2017; Bombardier Learjet 35/36 SB 35/36-27-50 Recommended, dated September 11, 2017; Bombardier Learjet 55 SB 55-27-41 Recommended, dated September 11, 2017; and Bombardier Learjet 60 SB 60-27-39 Recommended, Revision 1, dated January 15, 2018. For the applicable models, the service information describes procedures for replacement of the flap nose roller fitting, nose roller support bracket, and adjacent rib support structure with improved components. The service information also contains instructions to ensure correct flap alignment. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 706 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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 23, 2018.
None.
(1) This AD applies to the Learjet, Inc. model airplanes that are certificated in any category, as listed in table 1 to paragraph (c) of this AD.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 2750, TE Flap Control System.
This AD was prompted by reports of fatigue cracks initiating in the flap support structure due to repetitive flap loads. We are issuing this AD to require replacement of the flap nose roller fitting, nose roller support bracket, and adjacent rib support structure with improved components. The unsafe condition, if not addressed, could cause failure of the flap nose roller support bracket and lead to loss of roll control on approach with consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1)
(i) Within 24 months after October 23, 2018 (the effective date of this AD) or within 400 landings after October 23, 2018 (the effective date of this AD), whichever occurs first, replace the nose roller fitting, nose roller support bracket, and adjacent rib support structure with replacement parts by following the Accomplishment Instructions in Bombardier Learjet 28/29 Service Bulletin SB 28/29-27-31 Recommended, dated September 11, 2017.
(ii) Although Paragraph 3.B.(1) of the applicable SB for these models that have modified flap roller assemblies requires the operator to contact Learjet Inc. for repair instructions, this AD requires that you do the repair using a method approved by the Manager, Wichita ACO Branch, FAA. For a repair method to be approved by the Manager, Wichita ACO Branch, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(2)
(3)
(4)
(5)
(6)
(7)
Although Bombardier Learjet 28/29 SB 28/29-27-31 Recommended, dated September 11, 2017; Bombardier Learjet 31 SB 31-27-35 Recommended, dated September 11, 2017; Bombardier Learjet 35/36 SB 35/36 -27-50 Recommended, dated September 11, 2017; Bombardier Learjet 55 SB 55-27-41 Recommended, dated September 11, 2017; and Bombardier Learjet 60 SB 60-27-39 Recommended, Revision 1, dated January 15, 2018, all specify to submit a compliance response form to the manufacturer per paragraph 3.E., this AD does not require that action.
(1) The Manager, Wichita ACO branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(1) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Tara Shawn, Aerospace Engineer, Wichita ACO Branch, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: (316) 946-4141; fax: (316) 946-4107; email:
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Bombardier Learjet 28/29 Service Bulletin (SB) 28/29-27-31 Recommended, dated September 11, 2017;
(ii) Bombardier Learjet 31 SB 31-27-35 Recommended, dated September 11, 2017;
(iii) Bombardier Learjet 35/36 SB 35/36 -27-50 Recommended, dated September 11, 2017;
(iv) Bombardier Learjet 55 SB 55-27-41 Recommended, dated September 11, 2017; and
(v) Bombardier Learjet 60 SB 60-27-39 Recommended, Revision 1, dated January 15, 2018.
(3) For service information identified in this AD, contact Learjet, Inc., One Learjet Way, Wichita, Kansas 67209; telephone: 316-946-2000; email:
(4) You may view this service information at the FAA, Policy and Innovation Division, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the internet at
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 series airplanes. This AD was prompted by a revision of an airworthiness limitation items (ALI) document. This AD requires revising the maintenance or inspection program, as applicable, to incorporate the specified maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 23, 2018.
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes. The NPRM published in the
We are issuing this AD to address the reduced structural integrity of the airplane and possible loss of controllability of the airplane.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0145, dated August 31, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes. The MCAI states:
Some airworthiness limitations previously defined in A300 ALS [Airworthiness Limitations Section] Part 1 have been removed from that document and should normally be included in an ALS Part 4. Airbus does not plan to issue an ALS Part 4 for A300 aeroplanes.
Nevertheless, failure to comply with these airworthiness limitations could result in an unsafe condition.
For the reason described above, it has been decided to require the application of these airworthiness limitations through a separate AD.
Previously, EASA issued AD 2013-0210 [which corresponds to FAA AD 2014-16-13, Amendment 39-17937 (79 FR 51083, August 27, 2014) (“AD 2014-16-13”)] to require implementation of airworthiness limitations applicable to main landing gear (MLG) barrel assembly, retraction actuator assembly, linkage assembly and flanged duct, which were previously defined in Revision 00 of A300 ALS Part 1 but removed from Revision 01 of A300 ALS Part 1, adding those limits as an Appendix to the AD.
Since EASA AD 2013-0210 was issued, improvement of safe life component selection resulted, among others, in removal of 15 nose landing gear (NLG) parts from Revision 02 of A300 ALS Part 1.
Consequently, this [EASA] AD retains the requirements of EASA AD 2013-0210, which is superseded, and requires, in addition to the implementation of airworthiness limitations already contained in EASA AD 2013-0210, the implementation of airworthiness limitations applicable to NLG barrel assembly and shock absorber assembly, previously contained in Revision 01 of A300 ALS Part 1, as specified in Appendix 1 of this AD.
You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. The following presents the comment received on the NPRM and the FAA's response to the comment.
Airbus questioned the need to keep AD 2014-16-13 and whether the proposed AD should instead supersede AD 2014-16-13. Airbus noted that the proposed AD lists all of the ALIs in EASA AD 2017-0145, dated August 31, 2017, not just the ALIs that have been updated since we issued AD 2014-16-13. We infer that Airbus wanted the proposed AD changed to a supersedure AD.
We disagree with the request to change this AD to a supersedure AD. To address the unsafe condition, we chose to match EASA AD 2017-0145, dated August 31, 2017, and include the same ALIs. Because accomplishment of the requirements of this AD terminates all requirements of AD 2014-16-13, a supersedure is not necessary. We have not changed this AD in this regard.
Airbus requested that we release this final rule at the same time as the following related ADs to provide clarity to operators. All four pending ADs are related to the same removal of 15 nose landing gear parts from ALS Part 1, on different airplane models.
• Docket No. FAA-2018-0364, Product Identifier 2017-NM-154-AD (EASA AD 2017-0204, dated October 12, 2017).
• Docket No. FAA-2018-0365, Product Identifier 2017-NM-155-AD (EASA AD 2017-0203, dated October 12, 2017).
• Docket No. FAA-2018-0396, Product Identifier 2017-NM-156-AD (EASA AD 2017-0202, dated October 12, 2017).
We agree with the request insofar as we can control the publication schedule. While we cannot ensure that all four will be published on the same date, we will coordinate with the Office of the Federal Register (OFR) and attempt to issue all four final rules at the same time.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We estimate that this AD affects 5 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 23, 2018.
This AD affects AD 2014-16-13, Amendment 39-17937 (79 FR 51083, August 27, 2014) (“AD 2014-16-13”).
This AD applies to Airbus SAS Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a revision of an airworthiness limitation items (ALI) document. We are issuing this AD to prevent reduced structural integrity of the airplane and possible loss of controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the safe life limits included in figure 1 to paragraph (g) of this AD. The initial compliance time for the replacements is prior to the applicable life limits specified in figure 1 to paragraph (g) of this AD, or within 90 days after the effective date of this AD, whichever occurs later. The term “FH” in figure 1 to paragraph (g) of this AD means total flight hours. The term “LDG” in figure 1 to paragraph (g) of this AD means total airplane landings.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates all requirements of AD 2014-16-13.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0145, dated August 31, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
None.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), and Model A310 series airplanes. This AD was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. This AD requires revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 23, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 23, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), and Model A310 series airplanes. The NPRM published in the
We are issuing this AD to address the risks associated with the effects of aging on airplane systems. Such effects could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0202, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), and Model A310 series airplanes. The MCAI states:
Maintenance requirements and airworthiness limitations for the Airbus A310, A300-600 and A300-600ST family aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A310 and A300-600 Airworthiness Limitations Section (ALS) documents. The System Equipment Maintenance Requirements (SEMR) for the Airbus A310 and A300-600, are specified in the Airbus A310 and Airbus A300-600 (including A300-600ST) ALS Part 4 documents. These instructions have been identified as mandatory for continuing airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
EASA previously issued AD 2013-0075 [which corresponds to FAA AD 2015-02-16, Amendment 39-18083 (80 FR 5028, January 30, 2015) (“AD 2015-02-16”)] to require the implementation of the maintenance requirements and associated airworthiness limitations as specified in Airbus A310 and A300-600 ALS Part 4 documents at Revision 02.
Since that [EASA] AD was issued, new or more restrictive maintenance requirements and airworthiness limitations were approved by EASA. Consequently, Airbus published Revision 03 of A310 and A300-600 ALS Part 4 documents, compiling all ALS Part 4 changes approved since previous Revision 02.
For the reasons described above, this new [EASA] AD retains the requirements of EASA AD 2013-0075, which is superseded, and requires the implementation of the actions specified in Airbus A310 ALS Part 4 Revision 03 and Airbus A300-600 ALS Part 4 Revision 03.
You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment. FedEx Express stated that they had no objections to the proposed AD.
Airbus requested in docket numbers, FAA-2018-0390 and FAA-2018-0365 that we release this final rule and the following related ADs at the same time to provide clarity to operators. All four pending ADs are related to the removal of the same 15 nose landing gear parts from ALS Part 1, on different airplane models.
• Docket No. FAA-2018-0390, Product Identifier 2017-NM-130-AD (EASA AD 2017-0145, dated August 31, 2017).
• Docket No. FAA-2018-0364, Product Identifier 2017-NM-154-AD (EASA AD 2017-0204, dated October 12, 2017).
• Docket No. FAA-2018-0365, Product Identifier 2017-NM-155-AD
We agree with the commenter's request insofar as we can control the publication schedule. While we cannot ensure that all four final rules will be published on the same date, we will coordinate with the Office of the Federal Register (OFR) regarding publication of all four final rules at the same time.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
Airbus SAS has issued A310 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017; and A300-600 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017. This service information describes new maintenance requirements and airworthiness limitations. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 127 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 23, 2018.
This AD affects AD 2015-02-16, Amendment 39-18083 (80 FR 5028, January 30, 2015) (“AD 2015-02-16”).
This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) through (c)(5) of this AD, certificated in any category, all manufacturer serial numbers.
(1) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.
(2) Model A300 B4-605R and B4-622R airplanes.
(3) Model A300 F4-605R and F4-622R airplanes.
(4) Model A300 C4-605R Variant F airplanes.
(5) Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to mitigate the risks associated with the effects of aging on airplane systems. Such effects could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus A310 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017; or A300-600 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017; as applicable. The initial compliance time for doing the revised actions is at the applicable time specified in Airbus A310 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017, or A300-600 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017; as applicable; or within 90 days after the effective date of this AD; whichever occurs later.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates all requirements of AD 2015-02-16.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0202, dated October 12, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus A300-600 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017.
(ii) Airbus A310 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 03, dated August 28, 2017.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A300 and A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This AD was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. This AD requires revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 23, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 23, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 and A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0204, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 and A310 series airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The MCAI states:
The airworthiness limitations for the Airbus A300, A310, A300-600 and A300-600ST family aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A300, A310 and A300-600 Airworthiness Limitations Section (ALS) documents. The Safe Life Airworthiness Limitation Items are specified in the A300, A310 and A300-600 (including the A300-600ST) ALS Part 1 documents. These instructions have been identified as mandatory for continuing airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
EASA previously issued AD 2013-0248 [which corresponds to FAA AD 2015-22-05, Amendment 39-18310 (80 FR 69846, November 12, 2015) (“AD 2015-22-05”)] to require the implementation of the instructions and airworthiness limitations as specified in Airbus A300, A310 and A300-600 ALS Part 1 documents at Revision 01.
Since that [EASA] AD was issued, improvement of safe life component selection and life extension campaigns resulted in life limitations changes, among others new or more restrictive life limitations, approved by EASA. Consequently, Airbus published Revision 02 of the A300, A310 and A300-600 ALS Part 1, compiling all ALS Part 1 changes approved since previous Revision 01.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2013-0248, which is superseded, and requires accomplishment of the actions specified in A300 ALS Part 1 Revision 02, A310 ALS Part 1 Revision 02 and A300-600 ALS Part 1 Revision 02.
This AD requires revising the maintenance or inspection program to incorporate certain maintenance requirements and airworthiness limitations. The unsafe condition is fatigue damage in principal structural elements, which could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.
Airbus asked that we remove the duplicated language in the Discussion section of the NPRM which repeats the phrase “compiling all ALS Part 1.”
We agree that the specified language in the Discussion section was duplicated, and have removed this duplication accordingly.
Airbus requested in docket numbers, FAA-2018-0390 and FAA-2018-0365 that we release this final rule and the following related ADs at the same time to provide clarity to operators. All four pending ADs are related to the same removal of 15 nose landing gear parts from ALS Part 1, on different airplane models.
• Docket No. FAA-2018-0390, Product Identifier 2017-NM-130-AD (EASA AD 2017-0145, dated August 31, 2017).
• Docket No. FAA-2018-0365, Product Identifier 2017-NM-155-AD (EASA AD 2017-0203, dated October 12, 2017).
• Docket No. FAA-2018-0396, Product Identifier 2017-NM-156-AD (EASA AD 2017-0202, dated October 12, 2017).
We agree with the request insofar as we can control the publication schedule. While we cannot ensure that all four will be published on the same date, we will coordinate with the Office of the Federal Register (OFR) and attempt to issue all four final rules at the same time.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Airbus SAS has issued the following service information, which describes procedures for revising the maintenance or inspection program to incorporate new or more restrictive maintenance requirements and airworthiness limitations. These documents are distinct since they apply to different airplane models.
• For Model A300 series airplanes: Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A300 Airworthiness Limitations Section (ALS).
• For Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes): Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A300-600 Airworthiness Limitations Section (ALS).
• For Model A310 series airplanes: Section 4, “Life Limits (LL)/
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 132 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 23, 2018.
This AD affects AD 2015-22-05, Amendment 39-18310 (80 FR 69846, November 12, 2015) (“AD 2015-22-05”).
This AD applies to Airbus SAS Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes; Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes; Model A300 B4-605R and B4-622R airplanes; Model A300 F4-605R and F4-622R airplanes; Model A300 C4-605R Variant F airplanes; and Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes; certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent fatigue damage in principal structural elements, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD: Revise the maintenance or inspection program, as applicable, to incorporate the applicable information specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, as applicable. The initial compliance times for accomplishing the tasks is at the applicable times specified in the applicable information specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, or within 90 days after the effective date of this AD, whichever occurs later.
(1) For Model A300 series airplanes: Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus A300 Airworthiness Limitations Section (ALS).
(2) For Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes): Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus A300-600 Airworthiness Limitations Section (ALS).
(3) For Model A310 series airplanes: Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus A310 Airworthiness Limitations Section (ALS).
After accomplishment of the revision required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2015-22-05.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0204, dated October 12, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A300 Airworthiness Limitations Section (ALS).
(ii) Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A300-600 Airworthiness Limitations Section (ALS).
(iii) Part 1, “Safe Life Airworthiness Limitation Items (SL—ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A310 Airworthiness Limitations Section (ALS).
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
This action amends the prohibition against certain flight operations in the Pyongyang Flight Information Region (FIR) (ZKKP) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier. The FAA is also providing an approval process and exemption information for this Special Federal Aviation Regulations (SFAR), consistent with the approval process and exemption information for more recently published flight prohibition SFARs. This final rule will remain in effect for 2 years.
This final rule is effective on September 18, 2018.
Michael Filippell, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-8166; email
This action amends the prohibition of flight operations in the Pyongyang FIR (ZKKP)
Further, this action moves SFAR No. 79 into subpart M, Special Federal Aviation Regulations, of part 91 and adds an expiration date, consistent with other flight prohibition SFARs. The FAA also is providing an approval process and exemption information for SFAR No. 79, 14 CFR 91.1615, consistent with the approval process and exemption information for more recently published flight prohibition SFARs.
SFAR No. 79, § 91.1615, will expire on September 18, 2020.
The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA Administrator's authority to issue rules on aviation safety is found in title 49, U.S. Code, Subtitle I, sections 106(f) and (g). Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise his authority consistently with the obligations of the U.S. Government under international agreements.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.
This regulation is within the scope of FAA's authority, because it prohibits the persons subject to paragraph (a) of SFAR No. 79, § 91.1615, (formerly paragraph (1)) from conducting flight operations in the entire Pyongyang FIR (ZKKP) due to the continued hazards to the safety of such persons' flight operations, as described in the Background section of this final rule.
Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule. In this instance, the FAA finds good cause to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. To the extent that the rule is based upon classified information, such information is not permitted to be shared with the general public. Also, threats to U.S. civil aviation and intelligence regarding these threats are fluid. As a result, the agency's original proposal could become unsuitable for minimizing the hazards to U.S. civil aviation in the affected airspace during or after the notice and comment process. The FAA further finds an immediate need to address the hazardous situation for U.S. civil aviation that exists in the Pyongyang FIR (ZKKP) due to North Korean military capabilities and activities, including unannounced North Korean missile launches and air defense weapons systems. These hazards are further described in the Background section of this rule.
For these reasons, the FAA finds good cause to forgo notice and comment and any delay in the effective date for this rule. The FAA also finds that this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA exercises its duties consistently with the obligations of the United States under international agreements.
On April 24, 1997, the FAA published a final rule, SFAR No. 79, which prohibited certain U.S. civil flight operations within the entire FIR of the Democratic People's Republic of Korea (DPRK or North Korea),
These factors included the potential for periods of heightened tension on the Korean peninsula, North Korea's high state of military readiness and emphasis on air defense of certain areas, and the fact that the North Korean air defense system included modern surface-to-air missile systems and interceptor aircraft capable of engaging aircraft at cruising altitudes. The FAA further stated that it had been unable to determine the level of coordination and cooperation between North Korean civil air traffic authorities and air defense commanders for civil aircraft overflights, including military rules of engagement if an aircraft were to stray from its assigned flight route. The FAA was concerned that any lack of coordination, combined with North Korea's air defense capabilities, including its rules of engagement and limited capability to distinguish between military and civil aircraft, could result in civil aircraft operating in the Pyongyang FIR (ZKKP) west of 132 degrees east longitude being misidentified and inadvertently engaged by North Korea. In the FAA's view, this potential threat justified a prohibition on U.S. civil aviation operations in the Pyongyang FIR (ZKKP) west of 132 degrees east longitude.
With respect to U.S. civil aviation operations in the Pyongyang FIR (ZKKP) east of 132 degrees east longitude, the FAA indicated that, since it had not yet reviewed all applicable safety information provided by North Korea and necessary for operators to meet international safety standards prescribed by the International Civil Aviation Organization (ICAO), it had not determined that the proper level of operational overflight safety could be assured. Remaining issues for review included, but were not limited to: Differences from ICAO standards, if any; search and rescue capabilities and procedures; and North Korean military pilot training in the proper civil aircraft intercept procedures. The FAA stated that, once this information was reviewed, the FAA was prepared to amend SFAR No. 79, as warranted, to permit U.S. civil flights in the Pyongyang FIR (ZKKP) east of 132 degrees east longitude. 62 FR 20077.
Subsequently, North Korea provided the FAA with a copy of its Aeronautical Information Publication (AIP). Following a review of North Korea's AIP, the FAA determined that the proper level of flight safety could be assured for overflights occurring in the international airspace of the Pyongyang FIR (ZKKP) east of 132 degrees east longitude. On February 17, 1998, the FAA published a final rule amending SFAR No. 79 to permit U.S. civil aviation to conduct flights in the Pyongyang FIR (ZKKP) east of 132 degrees east longitude. 63 FR 8016; corrected at 63 FR 19286, (Apr. 17, 1998).
In recent years, North Korea has conducted a number of provocative actions that posed flight safety hazards and necessitated the FAA's issuance of various advisory NOTAMs regarding the
In response to this situation, the FAA issued KICZ NOTAM A0023/17 on November 3, 2017, to prohibit flight operations in the entire Pyongyang FIR (ZKKP), including the area east of 132 degrees east longitude, by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier.
As a result of the significant continuing risk to U.S. civil aviation in the Pyongyang FIR (ZKKP), including the area east of 132 degrees east longitude, and given the uncertainty about when the above-described hazards will abate sufficiently to allow for safe U.S. civil aviation operations therein, this amendment to SFAR No. 79, § 91.1615, incorporates the flight prohibition contained in KICZ NOTAM A0023/17. To maintain consistency with other flight prohibition SFARs, the FAA moves SFAR No. 79 into subpart M of part 91, Special Federal Aviation Regulations. SFAR No. 79 will now be found at 14 CFR 91.1615. The FAA also adds an expiration date to SFAR No. 79 of September 18, 2010. Finally, the FAA is also publishing an approval process and exemption information for this SFAR, which is similar to those for more recently published flight prohibition SFARs.
The FAA will continue to actively monitor the situation and evaluate the extent to which U.S. civil operators and airmen may be able to operate safely in the Pyongyang FIR (ZKKP). Amendments to SFAR No. 79, § 91.1615, may be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind SFAR No. 79, § 91.1615, as necessary, prior to its expiration date.
In some instances, U.S. Government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in the Pyongyang FIR (ZKKP). If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person covered under SFAR No. 79, § 91.1615, including a U.S. air carrier or commercial operator, to conduct a charter to transport civilian or military passengers or cargo, or other operations, in the Pyongyang (ZKKP) FIR, that department, agency, or instrumentality may request the FAA to approve persons covered under SFAR No. 79, § 91.1615, to conduct such operations.
An approval request must be made directly by the requesting department, agency, or instrumentality of the U.S. Government to the FAA's Associate Administrator for Aviation Safety in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality. The senior official signing the letter requesting FAA approval on behalf of the requesting department, agency, or instrumentality must be sufficiently highly placed within his or her organization to demonstrate that the senior leadership of the requesting department, agency, or instrumentality supports the request for approval and is committed to taking all necessary steps to minimize operational risks to the proposed flights. The senior official must also be in a position to: (1) Attest to the accuracy of all representations made to the FAA in the request for approval and (2) ensure that any support from the requesting U.S. Government department, agency, or instrumentality described in the request for approval is in fact brought to bear and is maintained over time. The FAA will not accept or consider requests for approval by anyone other than the requesting department, agency, or instrumentality. Unless justified by exigent circumstances, requests for approval must be submitted to the FAA no less than 30 calendar days before the date on which the requesting department, agency, or instrumentality intends to commence the proposed operations.
The letter must be sent to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the approval request is granted. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267-8166, to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons covered under SFAR No. 79, § 91.1615, and/or for multiple flight operations. To the extent known, the letter must identify the person(s) expected to be covered under the SFAR on whose behalf the U.S. Government department, agency, or instrumentality is seeking FAA approval, and it must describe—
• The proposed operation(s), including the nature of the mission being supported;
• The service to be provided by the person(s) covered by the SFAR;
• To the extent known, the specific locations in the Pyongyang FIR (ZKKP) where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Pyongyang FIR (ZKKP) and the airports, airfields and/or landing zones at which the aircraft will take-off and land; and
• The method by which the department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of the proposed operations (
The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or its prime contractor has a subcontract(s)) for specific flight operations in the Pyongyang FIR (ZKKP). Additional operators may be identified to the FAA at any time after the FAA approval is issued. However, all additional operators must be identified to, and obtain an Operations Specification (OpSpec) or Letter of Authorization (LOA), as appropriate, from the FAA for operations in the Pyongyang FIR (ZKKP), before such operators commence such operations. The approval conditions discussed below apply to any such additional operators. Updated lists should be sent to the email address to be obtained from the Air Transportation Division by calling (202) 267-8166.
If an approval request includes classified information, requestors may contact Aviation Safety Inspector Michael Filippell for instructions on submitting it to the FAA. His contact information is listed in the
FAA approval of an operation under SFAR No. 79, § 91.1615, does not relieve persons subject to this SFAR of their responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must comply with the conditions of their certificate, OpSpecs, and LOAs, as applicable. Operators must also comply with all rules and regulations of other U.S. Government departments or agencies that may apply to the proposed operation(s), including, but not limited to, regulations issued by the Transportation Security Administration.
If the FAA approves the request, the FAA's Aviation Safety Organization (AVS) will send an approval letter to the requesting department, agency, or instrumentality informing it that the FAA's approval is subject to all of the following conditions:
(1) The approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.
(2) Before any approval takes effect, the operator must submit to the FAA:
(a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses; and
(b) The operator's written agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising from or related to the approved operations in the Pyongyang FIR (ZKKP).
(3) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs or LOAs, as applicable.
The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy issued by the FAA under chapter 443 of title 49, U.S. Code.
If the proposed operations are approved, the FAA will issue an OpSpec or an LOA, as applicable, to the operator(s) identified in the original request. The FAA-issued OpSpec or LOA, as applicable, authorizes the operator(s) to conduct the approved operations. The FAA will also notify the department, agency, or instrumentality that requested FAA approval of such operation(s) of any additional conditions beyond those contained in the approval letter.
Any operations not conducted under an approval issued by the FAA through the approval process set forth previously must be conducted under an exemption from SFAR No. 79, § 91.1615. A petition for an exemption must comply with 14 CFR part 11 and requires exceptional circumstances beyond those contemplated by the approval process described in the previous section. In addition to the information required by 14 CFR 11.81, at a minimum, the requestor must describe in its submission to the FAA—
• The proposed operation(s), including the nature of the operation;
• The service to be provided by the person(s) covered by the SFAR;
• The specific locations in the Pyongyang FIR (ZKKP) where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Pyongyang FIR (ZKKP) and the airports, airfields and/or landing zones at which the aircraft will take-off and land;
• The method by which the operator will obtain current threat information, and an explanation of how the operator will integrate this information into all phases of its proposed operations (
• The plans and procedures that the operator will use to minimize the risks, identified in the Background section of this rule, to the proposed operations, so that granting the exemption would not adversely affect safety or would provide a level of safety at least equal to that provided by this SFAR. The FAA has found comprehensive, organized plans and procedures of this nature to be helpful in facilitating the agency's safety evaluation of petitions for exemption from flight prohibition SFARs.
Additionally, the release and agreement to indemnify, as referred to previously, are required as a condition of any exemption issued under SFAR No. 79, § 91.1615.
The FAA recognizes that operations that may be affected by SFAR No. 79, § 91.1615, may be planned for the governments of other countries with the support of the U.S. Government. While these operations will not be permitted through the approval process, the FAA will consider exemption requests for such operations on an expedited basis and prior to any private exemption requests.
Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603
Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.
In conducting these analyses, the FAA has determined that this final rule has benefits that justify its costs. This rule is a significant regulatory action, as defined in section 3(f) of Executive Order 12866, as it raises novel policy issues contemplated under that Executive Order. As notice and comment under 5 U.S.C. 553 are not required for this final rule, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 regarding impacts on small entities are not required. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, by exceeding the threshold identified previously.
This rule prohibits U.S. civil flights in the entire Pyongyang FIR (ZKKP), including the area east of 132 degrees east longitude, due to the significant hazards to U.S. civil aviation described in the Background section of this preamble. By mid-summer 2017, most, if not all, U.S. scheduled operators had voluntarily ceased flying in the portion of the Pyongyang FIR (ZKKP) east of 132 degrees east longitude due to the hazards posed by unannounced North Korean missile launches and increased tensions in the region. Nevertheless, in the rare cases where U.S. operators might have opted to transit that area but for this final rule, alternative flight routes could result in additional fuel usage and other flight time-associated operator costs, as well as costs attributed to passenger time. The FAA believes there are very few, if any, U.S. operators who intend to operate in the Pyongyang FIR (ZKKP) at this time due to the hazards described in the Background section of this final rule. The FAA anticipates receiving very few, if any, requests to operate in the Pyongyang FIR (ZKKP) east of 132 degrees east longitude due to the previously discussed hazards.
Consequently, the FAA expects the costs of this rule to be minimal and these minimal costs to be exceeded by the benefits of avoided risks of deaths, injuries, and property damage that could result from a U.S. operator's aircraft being shot down (or otherwise damaged).
The Regulatory Flexibility Act, in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553, or any other law, to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after being required by that section or any other law to publish a general notice of proposed rulemaking. The FAA found good cause to forgo notice and comment and any delay in the effective date for this rule. As notice and comment under 5 U.S.C. 553 are not required in this situation, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 are not required.
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA has assessed the effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation from hazards to their operations in the Pyongyang FIR (ZKKP), a location outside the U.S. Therefore, the rule is in compliance with the Trade Agreements Act of 1979.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.
This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to this regulation.
While the FAA's flight prohibition does not apply to foreign air carriers, DOT codeshare authorizations prohibit foreign air carriers from carrying a U.S. codeshare partner's code on a flight segment that operates in airspace for which the FAA has issued a flight prohibition. In addition, foreign air carriers and other foreign operators may choose to avoid, or be advised/directed by their civil aviation authorities to avoid, airspace for which the FAA has issued a flight prohibition.
The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions (44 FR 1957, January 4, 1979), and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined that this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114, because it does not have the potential for a significant effect on the environment outside the United States.
In accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 8-6(c), FAA has prepared a memorandum for the record stating the reason(s) for this determination; this memorandum has been placed in the docket for this rulemaking.
The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
This rule is not subject to the requirements of Executive Order 13771 (82 FR 9339, Feb. 3, 2017) because it is issued with respect to a national security function of the United States.
An electronic copy of a rulemaking document may be obtained from the internet by—
• Searching the Federal Document Management System (FDMS) Portal (
• Visiting the FAA's Regulations and Policies web page at
• Accessing the Government Publishing Office's web page at
Copies may also be obtained by sending a request (identified by amendment or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the Federal Document Management System Portal referenced previously.
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the
Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Freight, North Korea.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, as follows:
49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
(a)
(1) All U.S. air carriers and U.S. commercial operators;
(2) All persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and
(3) All operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier.
(b)
(c)
(d)
(e)
Federal Aviation Administration (FAA), DOT.
Extension to order.
This action extends the Order Limiting Operations at New York LaGuardia Airport (LGA) published on December 27, 2006, as most recently extended May 25, 2016. The Order remains effective until October 24, 2020.
This action is effective on September 18, 2018.
Requests may be submitted by mail to the Slot Administration Office, System Operations Services, AJR-0, Room 300W, 800 Independence Avenue SW, Washington, DC 20591, or by email to:
For questions concerning this Order contact: Bonnie C. Dragotto, Regulations Division, FAA Office of the Chief Counsel, AGC-240, Room 916N, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-3808; email
You may obtain an electronic copy using the internet by:
(1) Searching the Federal eRulemaking Portal (
(2) Visiting the FAA's Regulations and Policies web page at
(3) Accessing the Government Printing Office's web page at
You also may obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
The FAA has historically limited the number of arrivals and departures at LGA during peak demand periods through the implementation of the High Density Rule (HDR), to address constraints based on LGA's limited runway capacity.
The FAA issued an Order on December 27, 2006, adopting temporary limits pending the completion of rulemaking to address long term limits and related policies.
Under the Order for LGA, as amended, the FAA (1) maintains the current hourly limits on scheduled and unscheduled operations at LGA during the peak period; (2) imposes an 80 percent minimum usage requirement for Operating Authorizations (OAs) with defined exceptions; (3) provides a mechanism for withdrawal of OAs for FAA operational reasons; (4) provides for a lottery to reallocate withdrawn, surrendered, or unallocated OAs; and (5) allows for trades and leases of OAs for consideration for the duration of the Order.
The reasons for issuing the Order have not changed appreciably since it was implemented. Runway capacity at LGA remains limited, while demand for access to LGA remains high. The average weekday hourly flights are generally scheduled to a level consistent with the limits under this Order. The FAA has reviewed the on-time and other performance metrics in the peak May to August 2017 and 2018 months and found continuing improvements relative to the same period in 2008.
The FAA has received specific proposals for policy changes that would necessitate amending the LGA and JFK Orders. For example, several carriers have requested a simplified process for the administrative management of temporary slot transfers, whereby the marketing and operating carriers would not be required to formally transfer slots for operation by carriers under common marketing control and whereby the slot holder could choose whether the holder or the operator would be responsible for reporting slot usage to the FAA. The FAA is considering proposing this and other potential changes in a future action on the LGA and JFK Orders.
However, the Orders expire at the end of the current summer scheduling season and carriers are planning winter schedules. There is insufficient time to publish for comment proposed policy changes, adjudicate comments, and issue a final Order before the Orders expire. The FAA has therefore determined to proceed with an extension of the Orders, without policy changes, to meet current needs and allow time to further develop any proposed changes to the Orders. Accordingly, the FAA is extending the expiration date of this Order until October 24, 2020. This expiration date coincides with the extended expiration date for the Order limiting scheduled
The FAA finds that notice and comment procedures under 5 U.S.C. 553(b) are impracticable, unnecessary, and contrary to the public interest, as carriers have begun planning schedules for the winter 2018/2019 season and no significant policy changes are included in this action. For these reasons, the FAA also finds that it is impracticable and contrary to the public interest to delay the effective date of this action under 5 U.S.C. 553(d).
The Order, as amended, is recited below in its entirety:
With respect to scheduled operations at LaGuardia:
1. The Order governs scheduled arrivals and departures at LaGuardia from 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday and from 12 noon through 9:59 p.m., Eastern Time, Sunday. Seventy-one (71) Operating Authorizations are available per hour and will be assigned by the FAA on a 30-minute basis. The FAA will permit additional, existing operations above this threshold; however, the FAA will retire Operating Authorizations that are surrendered to the FAA, withdrawn for non-use, or unassigned during each affected hour until the number of Operating Authorizations in that hour reaches seventy-one (71).
2. The Order takes effect on January 1, 2007, and will expire on October 24, 2020.
3. The FAA will assign operating authority to conduct an arrival or a departure at LaGuardia during the affected hours to the air carrier that holds equivalent slot or slot exemption authority under the High Density Rule of FAA slot exemption rules as of January 1, 2007; to the primary marketing air carrier in the case of AIR-21 small hub/non-hub airport slot exemptions; or to the air carrier operating the flights as of January 1, 2007, in the case of a slot held by a non carrier. The FAA will not assign operating authority under the Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority under 14 CFR part 121, 129 or 135. The Chief Counsel of the FAA will be the final decision maker regarding the initial assignment of Operating Authorizations.
4. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.
5. An air carrier may lease or trade an Operating Authorization to another carrier for any consideration, not to exceed the duration of the Order. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or email
6. Each air carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier along with a listing of the Operating Authorizations actually operated for each day of the two-month reporting period within 14 days after the last day of the two-month reporting period beginning January 1 and every two months thereafter. Any Operating Authorization not used at least 80 percent of the time over a two-month period will be withdrawn by the FAA except:
A. The FAA will treat as used any Operating Authorization held by an air carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.
B. The FAA will treat as used any Operating Authorization obtained by an air carrier through a lottery under paragraph 7 for the first 120 days after allocation in the lottery.
C. The Administrator of the FAA may waive the 80 percent usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the air carrier and which affects carrier operations for a period of five consecutive days or more.
7. In the event that Operating Authorizations are withdrawn for nonuse, surrendered to the FAA or are unassigned, the FAA will determine whether any of the available Operating Authorizations should be reallocated. If so, the FAA will conduct a lottery using the provisions specified under 14 CFR 93.225. The FAA may retime an Operating Authorization prior to reallocation in order to address operational needs.
8. If the FAA determines that a reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the air carrier from which it was taken, provided that the air carrier continues to operate scheduled service at LaGuardia.
With respect to unscheduled flight operations at LaGuardia, the FAA adopts the following:
1. The Order applies to all operators of unscheduled flights, except helicopter operations, at LaGuardia from 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday and from 12 noon through 9:59 p.m., Eastern Time, Sunday.
2. The Order takes effect on January 1, 2007, and will expire on October 24, 2020.
3. No person can operate an aircraft other than a helicopter to or from LaGuardia unless the operator has received, for that unscheduled operation, a reservation that is assigned by the David J. Hurley Air Traffic Control System Command Center's Airport Reservation Office (ARO), or for unscheduled visual flight rule operations, received clearance from ATC. Additional information on procedures for obtaining a reservation is available via the internet at
4. Three (3) reservations are available per hour for unscheduled operations at
5. The ARO receives and processes all reservation requests. Reservations are assigned on a “first-come, first-served” basis, determined as of the time that the ARO receives the request. A cancellation of any reservation that will not be used as assigned is required.
6. Filing a request for a reservation does not constitute the filing of an instrument flight rules (IFR) flight plan, as separately required by regulation. After the reservation is obtained, an IFR flight plan can be filed. The IFR flight plan must include the reservation number in the “remarks” section.
7. Air Traffic Control will accommodate declared emergencies without regard to reservations. Nonemergency flights in direct support of national security, law enforcement, military aircraft operations, or public aircraft operations will be accommodated above the reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate reservation for such flights are available via the internet at
8. Notwithstanding the limits in paragraph 4, if the Air Traffic Organization determines that air traffic control, weather, and capacity conditions are favorable and significant delay is not likely, the FAA can accommodate additional reservations over a specific period. Unused operating authorizations can also be temporarily made available for unscheduled operations. Reservations for additional operations are obtained through the ARO.
9. Reservations cannot be bought, sold, or leased.
The FAA may enforce the Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any carrier from violating the terms of the Order.
Food and Drug Administration, HHS.
Final rule; confirmation of effective date.
The Food and Drug Administration (FDA or we) is confirming the effective date of July 10, 2018, for the final rule that appeared in the
Effective date of final rule published in the
For access to the docket to read background documents or comments received, go to
Joseph M. Thomas, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 301-796-9465.
In the
We gave interested persons until July 9, 2018, to file objections or requests for a hearing. We received no objections or requests for a hearing on the final rule. Therefore, we find that the effective date of the final rule that published in the
Color additives, Cosmetics, Drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e) and under authority delegated to the Commissioner of Food and Drugs, we are giving notice that no objections or requests for a hearing were filed in response to the June 7, 2018, final rule. Accordingly, the amendments issued in the final rule became effective July 10, 2018.
Defense Logistics Agency, DoD.
Final rule.
This final rule removes DoD's regulation concerning the Defense Logistics Agency Freedom of Information Act (FOIA) program. On February 6, 2018, the DoD published a FOIA program final rule as a result of the FOIA Improvement Act of 2016. When the DoD FOIA program rule was revised, it included DoD component information and removed the requirement for component supplementary rules. The DoD now has one DoD-level rule for the FOIA program that contains all the codified information required for the Department. Therefore, this part can be removed from the CFR.
This rule is effective on September 18, 2018.
Lewis Oleinick at 571-767-6194.
It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures.
DLA internal guidance concerning the implementation of the FOIA within DLA will be published in DLA Instruction (DLAI) 5400.11.
This rule is one of 14 separate DoD FOIA rules. With the finalization of the DoD-level FOIA rule at 32 CFR part 286, the Department is eliminating the need for this separate FOIA rule and reducing costs to the public as explained in the preamble of the DoD-level FOIA rule published at 83 FR 5196-5197.
This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review”; therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.
Freedom of information.
Coast Guard, DHS.
Notice of enforcement of regulation; correction.
The Coast Guard published a document in the
Mr. Ron Houck, 410-576-2674.
In the
1. On page 39879, in the first column, correct the
The regulations in 33 CFR 100.501 will be enforced for the Baltimore Air Show regulated area listed in item b.23 in the table to § 100.501 from 2:45 p.m. through 4:30 p.m. on October 4, 2018, from 10:30 a.m. through 5 p.m. on October 5, 2018,
2. On page 39879, in the second column, correct lines 12 through 16 to read:
Regulated area from 2:45 p.m. through 4:30 p.m. on October 4, 2018, from 10:30 a.m. through 5 p.m. on October 5, 2018, from 11:30 a.m. through 5 p.m. on October 6, 2018, and from 11:30 a.m. through 5.
Office of Elementary and Secondary Education, Department of Education.
Final regulations; correcting amendments.
The Department of Education (Department) published final regulations in the
These regulations are effective September 18, 2018.
Kristen Walls, U.S. Department of Education, 400 Maryland Avenue SW, Room 3C103, Washington, DC 20202. Telephone: (202) 260-3858. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
On September 20, 2016, the Secretary published final regulations for this program in the
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking here as unnecessary.
Rulemaking is “unnecessary” in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”
These regulations merely restore the regulatory definitions as they appeared in the CFR prior to their unintended removal in connection with the 2016 Impact Aid final rule. Because the definitions were originally adopted through notice-and-comment rulemaking and their removal was in error, rulemaking to restore the definitions is unnecessary.
You may also access documents of the Department published in the
Administrative practice and procedure, Education of individuals with disabilities, Elementary and secondary education, Federally affected areas, Grant programs—education, Indians—education, Reporting and recordkeeping requirements, School construction.
Accordingly, part 222 of title 34 of the Code of Federal Regulations is corrected by making the following amendments:
20 U.S.C. 7701-7714, unless otherwise noted.
(c)
National Park Service, Interior.
Final rule.
The National Park Service allows individuals to carry or possess an unloaded bow or crossbow within the National Park System when accessing otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible.
This rule is effective on October 18, 2018.
The comments received on the proposed rule and an economic analysis are available on
Jay Calhoun, NPS Regulations Program, 1849 C Street NW, Washington, DC 20240. Phone: (202) 513-7112. Email:
National Park Service (NPS) regulations at 36 CFR 2.4(b)(3) allow bows and crossbows that are not ready for immediate use to be possessed by individuals in NPS-administered areas within a mechanical mode of conveyance. This provides regulatory relief for transient individuals passing through park areas in vehicles and other forms of mechanical transport. This rule extends this relief to individuals transporting unloaded bows and crossbows on foot or horseback when accessing otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Possessing bows and crossbows in this manner is subject to applicable state laws and is not allowed if the individual is otherwise prohibited by law from possessing a bow or crossbow.
This rule recognizes and addresses the difficulties faced by some individuals attempting to access private property or other lands and waters adjacent to NPS-administered areas. In some cases, the use of mechanical transport to access these adjacent lands and waters is impracticable. As a result, individuals must traverse NPS areas on foot or horseback to reach these lands and waters but under existing regulations cannot do so with bows and crossbows without first obtaining a permit from the park Superintendent. This rule removes the permit requirement in order to carry or possess bows or crossbows for this purpose. This rule does not change the regulations in 36 CFR part 2 governing the use of a bow or crossbow in park areas.
The NPS published the proposed rule on March 2, 2018 (83 FR 8959), with request for public comment through the Federal eRulemaking portal at
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.
This rule is an E.O. 13771 deregulatory action because it imposes less than zero costs by removing a regulatory permit requirement that imposes unnecessary costs upon individuals seeking to safely access remote lands and waters. The costs associated with the requirement to obtain a permit before transporting a bow or crossbow across NPS lands or waters outside of a mechanical conveyance are eliminated.
This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act is not required.
This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. The NPS has evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and has determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service amends 36 CFR part 2 as set forth below:
54 U.S.C. 100101, 100751, 320102.
The addition and revision read as follows:
(b) * * *
(3) * * *
(ii) An individual may carry or possess an unloaded bow or crossbow when accessing otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible if:
(A) The individual is not otherwise prohibited by law from possessing the bow or crossbow; and
(B) The possession of the bow or crossbow is in compliance with the law of the State in which the park area is located.
(e) The superintendent may issue a permit to carry or possess a weapon that is not otherwise authorized, a trap, or a net under the following circumstances:
Environmental Protection Agency (EPA).
Final rule.
The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. On October 20, 2015, the State of Oregon made a submission to the Environmental Protection Agency (EPA) to address these requirements. The EPA is approving the submission as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 annual fine particulate matter (PM
This final rule is effective October 18, 2018.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2018-0505. All documents in the docket are listed on the
Jeff Hunt at (206) 553-0256, or
Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
On July 19, 2018, the EPA proposed to approve Oregon as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 PM
We received one comment in support of the proposed rulemaking and several anonymous comments unrelated to Oregon's submission. After reviewing the anonymous comments, we have determined that the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. For more information, please see our memorandum included in the docket for this action.
The EPA is approving Oregon's October 20, 2015, submission certifying that the SIP is sufficient to meet the interstate transport requirements of Clean Air Act section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth in the proposed rulemaking for this action.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because actions such as 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 this action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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 19, 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, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(a) The EPA approves Oregon's SIP revision submitted on October 20, 2015, addressing the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2012 PM
(b) [Reserved]
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of
This regulation is effective September 18, 2018. Objections and requests for hearings must be received on or before November 19, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0608, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0608 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 19, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0608, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicological and exposure data on
The available data demonstrated that
Based upon its evaluation in the Safety Determination, EPA concludes that there is a reasonable certainty that
An analytical method is not required because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.
This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Residues of Beauveria bassiana strain PPRI 5339 are exempt from the requirement of a tolerance in or on all food commodities when this pesticide chemical is used in accordance with label directions and good agricultural practices.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
On July 16, 2018, the Environmental Protection Agency (EPA) published a Notice of Intent for Partial Deletion and a direct final Notice of Partial Deletion for the Research Center Property (RCP) of the Beloit Superfund Site (Beloit Site) from the National Priorities List (NPL). EPA is withdrawing the direct final Notice of Partial Deletion because EPA did not provide timely notice of the publication of this rulemaking through publication of an advertisement in a local newspaper as required by EPA policy.
This withdrawal of the direct final action 83 FR 32798 (July 16, 2018) is effective as of September 14, 2018.
Randolph Cano, NPL Deletion Coordinator, U.S. Environmental Protection Agency Region 5 (SR-6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 886-6036, or via email at
On July 16, 2018, the EPA published a Notice of Intent for Partial Deletion (83 FR 32825) and a direct final Notice of Partial Deletion (83 FR 32798) for the Research Center Property (RCP) of the Beloit Superfund Site (Beloit Site) from the National Priorities List (NPL). After consideration of the comments received, if appropriate, EPA will publish a Notice of Partial Deletion in the
U.S. Environmental Protection Agency, Region 5, Superfund Records Center, 77 West Jackson Boulevard, 7th Floor South, Chicago, IL 60604, Phone: (312) 886-0900, Hours: Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.
Talcott Free Library, 101 East Main Street, Rockton, IL 61072, Phone: (815) 624-7511, Hours: Monday, Tuesday and Thursday, 9 a.m. to 8 p.m., Wednesday and Friday 9 a.m. to 5:30 p.m., and Saturday 9 a.m. to 3 p.m.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Adrienne L. Sheldon, PE, CFM, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW, Washington, DC 20472, (202) 212-3966.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
In this document, the Commission revises its Schedule of Regulatory Fees to recover an amount of $322,035,000 that Congress has required the Commission to collect for fiscal year 2018. Section 9 of the Communications Act of 1934, as amended, provides for the annual assessment and collection of regulatory fees under sections 9(b)(2) and 9(b)(3), respectively, for annual “Mandatory Adjustments” and “Permitted Amendments” to the Schedule of Regulatory Fees.
Effective September 18, 2018, except for the amendment to § 1.1940, which is effective October 1, 2018. To avoid penalties and interest, regulatory fees should be paid by the due date of September 25, 2018.
Roland Helvajian, Office of Managing Director at (202) 418-0444.
This is a summary of the Commission's
1. As required by the Regulatory Flexibility Act of 1980 (RFA),
2. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
3. The Commission will send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
1. This Report and Order adopts a schedule of regulatory fees to assess and collect $322,035,000 in regulatory fees for fiscal year (FY) 2018, pursuant to section 9
2. Additionally, we amend our rules in accordance with the directives of the RAY BAUM'S Act regarding the collection of delinquent debts.
3. The Commission is required by Congress to assess regulatory fees each year in an amount that can reasonably be expected to equal the amount of its appropriation.
4. Congress sets the amount of regulatory fees the Commission must collect each year in the Commission's fiscal year appropriations. Section 9(a)(2) of the Communications Act requires the Commission to collect fees sufficient to offset the amount appropriated.
5. The Commission annually reviews the regulatory fee schedule, proposes changes to the schedule to reflect changes in the amount of its appropriation, and proposes increases or decreases to the schedule of regulatory fees.
6. In the
7. In this
8. Among other activities, the Media Bureau oversees the regulation of video distribution providers like multichannel video programming distributors (MVPDs),
9. For these activities in FY 2018, the Commission must collect $62,330,000 in regulatory fees from three categories of providers: Cable TV systems, IPTV providers, and direct broadcast satellite (DBS) operators. Although the Commission decided to assess cable TV systems and IPTV providers the same for regulatory fee purposes—assessing each provider based on its subscribership—the Commission took a different approach when it began to assess Media Bureau-based regulatory fees on DBS operators. Specifically, the Commission decided to phase in the new Media Bureau-based regulatory fee for DBS, starting at 12 cents per subscriber per year.
10. For FY 2018, the Commission proposed to continue the transition by increasing the DBS regulatory fee rate to 48 cents per subscriber per year, thereby leaving other MVPDs with a regulatory fee of 77 cents per subscriber per year.
11. AT&T and DISH—the two DBS operators—reiterate several arguments against any increase in DBS regulatory fees that they have raised, and the Commission has rejected, in previous years. For example, AT&T and DISH claim that the proposed fee increase will result in “rate shock,”
12. As discussed in the
13. Full service television station licensees are subject to regulatory fee payments based on the market served. Historically, broadcast full service television stations pay regulatory fees based on the schedule of regulatory fees established in section 9(g) of the Communications Act, which consolidated stations into market groupings 1-10, 11-25, 26-50, 51-100, and remaining markets.
14. In the
15. The adoption of these methodologies for assessing regulatory fees for broadcast television stations is a permitted amendment as defined in
16. The Commission's rules requires the assessment of administrative costs incurred for processing and handling delinquent debts.
17. We find good cause under section 553(b)(B) of the Administrative Procedure Act
18. On March 29, 2016, the Commission commenced the incentive auction to allow broadcast television stations to make their spectrum available for wireless broadband licensees. On April 13, 2017, the Commission released a Public Notice formally closing the auction
19. All regulatory fee payments must be made by online Automated Clearing House (ACH) payment, online credit card, or wire transfer. Any other form of payment (
20. Since June 1, 2015, in accordance with U.S. Treasury Announcement No. A-2014-04 (July 2014), the amount that can be charged on a credit card for transactions with federal agencies has is $24,999.99.
21. During the fee season for collecting FY 2018 regulatory fees, regulatees can pay their fees by credit card through
22. Under the Commission's de minimis rule for regulatory fee payments, a regulatee is exempt from paying regulatory fees if the sum total of all of its annual regulatory fee liabilities is $1,000 or less for the fiscal year. The de minimis threshold applies only to filers of annual regulatory fees, not regulatory fees paid through multi-year filings, and it is not a permanent exemption. Each regulatee will need to reevaluate the total annual fee liability each fiscal year to determine whether they meet the de minimis exemption.
23. The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:
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24. The Commission will compile data from the Numbering Resource Utilization Forecast (NRUF) report that is based on “assigned” telephone
25. A carrier wishing to revise its telephone number (subscriber) count can do so by accessing Fee Filer and follow the prompts to revise their telephone number counts. Any revisions to the telephone number counts should be accompanied by an explanation or supporting documentation.
26. Because some carriers do not file the NRUF report, they may not see their telephone number counts in Fee Filer. In these instances, the carriers should compute their fee payment using the standard methodology that is currently in place for CMRS Wireless services (
27. To be considered timely, regulatory fee payments must be made electronically by the payment due date for regulatory fees. Section 9(c) of the Act requires us to impose a late payment penalty of 25 percent of the unpaid amount to be assessed on the first day following the deadline for filing these fees.
28. In addition to financial penalties, section 9(c)(3) of the Act,
29. Pursuant to the “red light rule,” we will withhold action on any applications or other requests for benefits filed by anyone who is delinquent in any non-tax debts owed to the Commission (including regulatory fees) and will ultimately dismiss those applications or other requests if payment of the delinquent debt or other satisfactory arrangement for payment is not made.
30. Providing a 30-day period after
31. In our Order above, we amend § 1.1940 of our rules and find that there
Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted at the time the application is filed.
Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted at the time the application is filed.
In order to calculate individual service fees for FY 2018, we adjusted FY 2017 payment units for each service to more accurately reflect expected FY 2018 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireless Telecommunications Bureau's
We sought verification for these estimates from multiple sources and, in all cases, we compared FY 2018 estimates with actual FY 2017 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated with sufficient accuracy. These include an unknown number of waivers and/or exemptions that may occur in FY 2018 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2018 payment units are based on FY 2017 actual payment units, it does not necessarily mean that our FY 2018 projection is exactly the same number as in FY 2017. We have either rounded the FY 2018 number or adjusted it slightly to account for these variables.
Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted at the time the application is filed.
32. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
33. In this Report and Order we adopt our proposal in the Notice of Proposed Rulemaking on collecting $322,035,000 in regulatory fees for FY 2018, pursuant to section 9 of the Communications Act of 1934, as amended (Communications Act or Act).
34. None.
35. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
36. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks.
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47. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
48. In addition, the Commission has estimated the number of licensed noncommercial educational television stations to be 394.
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50. In assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
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57.
58. The U.S. Census Bureau defines Wired Telecommunications Carriers as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.
59. The U.S. Census Bureau defines Wireless Telecommunications Carriers (except satellite) as establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services.
60.
61. The U.S. Census defines Other Services Related to Advertising as comprising establishments primarily engaged in providing advertising services (except advertising agency services, public relations agency services, media buying agency services, media representative services, display advertising services, direct mail advertising services, advertising material distribution services, and marketing consulting services.
62. The U.S. Census defines Other Management Consulting Services as establishments primarily engaged in providing management consulting services (except administrative and general management consulting; human resources consulting; marketing consulting; or process, physical distribution, and logistics consulting). Establishments providing telecommunications or utilities management consulting services are included in this industry.
63. In addition to the data contained in the four (see above) U.S. Census NAICS code categories that provide definitions of what services and functions the Carrier and Non-Carrier RespOrgs provide, Somos, the trade association that monitors RespOrg activities, compiled data showing that as of July 1, 2016, there were 23 RespOrgs operational in Canada and 436 RespOrgs operational in the United States, for a total of 459 RespOrgs currently registered with Somos.
64. This Report and Order does not adopt any new reporting, recordkeeping, or other compliance requirements.
65. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
66. This
67. In keeping with the requirements of the Regulatory Flexibility Act, we have considered certain alternative means of mitigating the effects of fee increases to a particular industry segment. For example, the Commission has increased the de minimis threshold to $1,000, which will impact many small entities that pay regulatory fees. This increase in the de minimis threshold to $1,000 will relieve regulatees both financially and administratively. Regulatees may also seek waivers or other relief on the basis of financial hardship.
68. None.
69. Accordingly,
70.
71.
72.
73.
Administrative practice and procedure.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:
47 U.S.C. 151, 154(i), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455; Sec. 102(c), Div. P, Public Law 115-141, 132 Stat. 1084, unless otherwise noted.
(a)
(b)
(2) The fee amount on a per active Gbps basis will be determined for each fiscal year.
(c)
(c) The Commission shall assess administrative costs incurred for processing and handling delinquent debts, unless otherwise prohibited by statute. The calculation of administrative costs may be based on actual costs incurred or upon estimated costs as determined by the Commission. Commission administrative costs include the personnel and service costs (
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) is amending and updating 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
This rule is effective on October 18, 2018.
Mr. Rafael N. Taylor, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street, NW, Washington, DC 20001, (202) 382-2787. (This is not a toll-free number.)
On April 6, 2018, VA published a proposed rule in the
VA provided a 60-day comment period for the public to respond to the proposed rule. The comment period for the proposed rule ended on June 5, 2018 and VA received no comments. This document adopts as a final rule the proposed rule published in the
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 final rule will have no such effect on State, local, and tribal Governments or on the private sector.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
This final 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. The overall impact of this final 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 is merely adding existing and current regulatory requirements to the VAAR and removing any guidance that is applicable only to VA's internal operation processes or procedures. VA estimates no cost impact to individual businesses would result from these rule updates. This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the final rule would not have an 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 regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
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. This final rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
VA's impact analysis can be found as a supporting document at
Government procurement, Reporting and recordkeeping requirements.
Government procurement, Government property, Reporting and recordkeeping requirements.
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 24, 2018, for publication.
40 U.S.C. 121(c); 41 U.S.C. 1702 and 48 CFR 1.301-1.304.
(a)(14) Where other than lowest price is the basis for subcontractor selection, has the contractor adequately substantiated the selection as being fair, reasonable, and representing the best value to the Government?
(f) Policies and procedures pertaining to the use of VA-verified Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) and utilization in accordance with subpart 819.70 and the Veterans First Contracting Program;
(l) Documentation of commercial item determinations to ensure compliance with the definition of “commercial item” in FAR 2.101; and
(m) For acquisitions involving electronic parts, that the contractor has implemented a counterfeit electronic part detection and avoidance system to ensure that counterfeit electronic parts do not enter the supply chain.
(a)(3) Determine whether a particular subcontract item meets the definition of a commercial item. This requirement does not affect the contracting officer's responsibilities or determinations made under FAR 15.403-1(c)(3).
40 U.S.C. 121(c); 41 U.S.C. 1702 and 48 CFR 1.301-1.304.
(a) For other than firm-fixed-price contracts, contractor-acquired property items not anticipated at time of contract award, or not otherwise specified for delivery on an existing line item, shall, by means of a contract modification, be specified for delivery to the Government on an added contract line item. The value of such contractor-acquired property item shall be recorded at the original purchase cost. Unless otherwise noted by the contractor at the time of delivery to the Government, the placed-in-service date shall be the date of acquisition or completed manufacture, if fabricated.
(b) Following delivery and acceptance by the Government of contractor-acquired property items, if these items are to be retained by the contractor for continued use under a successor contract, these items become Government-furnished property (GFP). The items shall be added to the successor contract as GFP by contract modification.
(c) Individual contractor-acquired property items should be recorded in the contractor's property management system at the contractor's original purchase cost.
(d) All other contractor inventory that is excess to the needs of the contract shall be disposed of in accordance with FAR subpart 45.6.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of “other flatfish” in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary because the 2018 “other flatfish” initial total allowable catch (ITAC) in the BSAI has been reached.
Effective 1200 hrs, Alaska local time (A.l.t.), September 13, 2018, through 2400 hrs, A.l.t., December 31, 2018.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2018 “other flatfish” ITAC in the BSAI is 3,400 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018). In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2018 “other flatfish” ITAC in the Bering Sea subarea of the BSAI has been reached. Therefore, NMFS is requiring that “other flatfish” in the BSAI be treated as prohibited species in accordance with § 679.21(b).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of the Comptroller of the Currency (OCC), Treasury.
Notice of proposed rulemaking.
The OCC is inviting comment on a proposed rule to implement a new section of the Home Owners' Loan Act (HOLA). The Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA) amended HOLA to add a new section that allows a Federal savings association with total consolidated assets of $20 billion or less, as of December 31, 2017, to elect to operate as a covered savings association. A covered savings association has the same rights and privileges as a national bank and is subject to the same duties and restrictions as a national bank. A covered savings association retains its Federal savings association charter and existing governance framework. The new section of HOLA requires the OCC to issue rules that, among other things, establish streamlined standards and procedures for elections to operate as covered savings associations and clarify requirements for the treatment of covered savings associations.
Comments must be received on or before November 19, 2018.
You may submit comments to the OCC by any of the methods set forth below. Commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title “Covered Savings Associations” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:
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You may review comments and other related materials that pertain to this rulemaking action by any of the following methods:
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For additional information, contact Charlotte Bahin, Senior Advisor for Thrift Supervision, 202-649-6281, Lazaro Barreiro, Director for Governance and Operational Risk Policy, 202-649-6550, Alison MacDonald, Special Counsel, 202-649-5490, Priscilla Benner, Attorney, 202-649-5490, Marta Stewart-Bates, Attorney, 202-649-5490, Frances C. Augello, Special Counsel, 202-649-5500, Demetria C. Hannah, Special Counsel, 202-649-5500, or Kevin S. Kirby, Attorney, 202-649-5500, Chief Counsel's Office, for persons who are deaf or hearing impaired, TTY, 202-649-5597, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219.
Section 206 of the Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA), Public Law 115-174, 132 Stat. 1310, amended the Home Owners' Loan Act (HOLA) (12 U.S.C. 1461
A covered savings association has the same rights and privileges as a national bank that has its main office situated in the same location as the home office of the covered savings association. A covered savings association is subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations that would apply to such a national bank. However, a covered savings association retains its Federal savings association charter and continues to be treated as a Federal savings association for purposes of governance, including for purposes of procedures and
Section 5A of HOLA requires the OCC to issue rules to carry out that section. The OCC must issue rules that: (1) Establish streamlined standards and procedures that clearly identify required documentation and timelines for an election; (2) require a Federal savings association that makes an election to identify specific assets and subsidiaries held by the Federal savings association that do not conform to the requirements for national banks (“nonconforming assets and subsidiaries”); (3) establish a transition process for bringing the nonconforming assets and subsidiaries into conformance with the requirements for national banks and procedures for allowing a Federal savings association to submit an application to continue to hold nonconforming assets and subsidiaries after electing to operate as a covered savings association; (4) establish standards and procedures to allow a covered savings association to terminate an election after an appropriate period of time and to make a subsequent election after terminating an election; and (5) clarify requirements for the treatment of covered savings associations, including the provisions of law that apply to covered savings associations. Section 5A also gives the OCC the authority to issue rules as the Comptroller determines necessary in the interests of safety and soundness.
The OCC views section 5A of HOLA as a way to provide Federal savings associations with additional flexibility to adapt to new economic conditions and business environments without the cost and time involved in changing their charters.
For example, section 10(m) of HOLA requires a Federal savings association to maintain its status as a qualified thrift lender (QTL) by either holding a specified percentage of its assets in qualified thrift investments or qualifying as a domestic building and loan association as defined in the Internal Revenue Code.
As the supervisor of both national banks and Federal savings associations, the OCC is well-positioned to administer section 5A. OCC examination staff are familiar with the unique situations and business models of individual institutions and with national bank and Federal savings association laws.
This proposed rule would implement section 5A in a manner that minimizes regulatory burden on Federal savings associations seeking to be treated as covered savings associations while ensuring that these Federal savings associations can continue to operate safely and soundly. The election process set out in the proposed rule is intended to be simple and streamlined. The proposed rule takes a similarly streamlined approach for the procedures and standards applicable to terminations of elections and to reelections.
The OCC also is mindful of the need to permit all OCC-supervised institutions to engage in the same activities to the extent permitted by different statutory frameworks. The proposed rule does not confer rights or privileges on covered savings associations that would not be available to similarly located national banks, except as required by section 5A of HOLA or specifically set out in the proposed rule. Under the proposed rule, covered savings associations would be required to divest, conform, or discontinue nonconforming subsidiaries, assets, and activities, with appropriate lead-time, so that they do not operate, hold, or conduct subsidiaries, assets, or activities that would not be permissible for a national bank. Consistent with section 5A, the proposed rule would treat covered savings associations and national banks differently when necessary to allow a covered savings association to retain its Federal savings association charter and associated governance processes. To reduce unnecessary burden, the proposed rule also would allow covered savings associations to continue to use Federal savings association procedures rather than national bank procedures where the application of those procedures would not result in substantively different outcomes. For example, a covered savings association would be subject to the Federal savings association requirements for adjudicative proceedings under 12 CFR parts 108 and 109 rather than the national bank requirements under 12 CFR part 19.
Paragraph (b) of this section describes the purposes of the proposed rule. Those purposes are to establish standards and procedures for an election to operate as a covered savings association, to clarify the requirements that apply to covered savings associations, and to establish standards and procedures for terminations of elections and for reelections.
Paragraph (a)(1) of this section defines the term “appropriate OCC supervisory office.” As in 12 CFR 5.3(d), the appropriate OCC supervisory office is the OCC office responsible for supervision of a Federal savings association, as described in subpart A of 12 CFR part 4. The definition is intended to help Federal savings associations identify the office that can assist them with issues related to an election, a request to terminate, or a reelection.
Paragraph (a)(2) of this section defines the term “covered savings association.” This definition, consistent with the definition of the term in section 5A(a) of HOLA, refers to a Federal savings association that has made an election that is in effect in accordance with § 101.3(b) of the proposed rule.
Paragraph (a)(3) of this section defines the term “effective date of the election” as the date on which a Federal savings association's election to operate as a covered savings association takes effect pursuant to § 101.3(b) of the proposed rule.
Paragraph (a)(4) of this section defines the term “nonconforming subsidiary, asset, or activity.” When this term is applied to a covered savings association, it means a subsidiary, asset, or activity that is not permissible for a covered savings association or, if permissible, is being operated, held, or conducted in a manner that exceeds the limit applicable to a covered savings association. When applied to a covered savings association, this term includes an investment in a subsidiary or other entity if that investment is not permissible for a covered savings association. When this term is applied to a Federal savings association that has terminated an election to operate as a covered savings association, it means a subsidiary, asset, or activity that is not permissible for a Federal savings association, or if permissible, is being operated, held, or conducted in a manner that exceeds the limit applicable to a Federal savings association. When applied to a Federal savings association that has terminated an election to operate as a covered savings association, this term includes an investment in a subsidiary or other entity if that investment is not permissible for a Federal savings association.
Section 5A(f) of HOLA uses the term “assets and subsidiaries.” However, under section 5A(c)(2) of HOLA, a covered savings association would be subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations that apply to a similarly located national bank. As a result, a covered savings association's activities would be limited in ways that a Federal savings association's activities would not. For example, under 12 U.S.C. 1464(c)(4)(B) and 12 CFR 5.59, a Federal savings association can invest in a service corporation, but a national bank cannot. Some activities a Federal savings association may conduct in a service corporation (
Paragraph (a)(5) of this section defines “similarly located national bank” to mean, with respect to a covered savings association, a national bank that has its main office situated in the same location as the home office of the covered savings association. For purposes of the proposed rule, the location of a national bank's main office is the home state of the national bank. The location of a covered savings association's home office is the home state of the covered savings association.
Paragraph (b) of this section provides that, for purposes of the proposed rule, the OCC will compute time in the same manner as set forth in 12 CFR 5.12. That section provides that, in computing a period of days, the OCC does not include the day of the act (in this case, the date the OCC receives a notice of election or termination) from which the period begins to run. If the last day of the time period is a Saturday, Sunday, or Federal holiday, the time period runs until the end of the next day that is not a Saturday, Sunday, or Federal holiday.
Section 101.3(a)(1) of the proposed rule allows a Federal savings association that had total consolidated assets of $20 billion or less as of December 31, 2017, to make an election to operate as a covered savings association by submitting a notice to the appropriate OCC supervisory office. The OCC proposes to use the Consolidated Reports of Condition and Income (Call Report) submitted for the quarter ending December 31, 2017, to determine if the Federal savings association meets this threshold. Because section 5A of HOLA contemplates that “a Federal savings association” with a certain amount of assets “as of December 31, 2017,” may make an election, under the proposed rule, institutions that were not Federal savings associations as of December 31, 2017, are not eligible to operate as covered savings associations.
Under this approach, an institution that was a credit union, state savings association, or state bank on December 31, 2017, but that later converted to a Federal savings association charter, would not be eligible to make an election under the proposed rule. Similarly, a de novo Federal savings association chartered after December 31, 2017, would not be eligible to make an election to operate as a covered savings association. A Federal savings association in stock form would retain the option to convert directly to a national bank charter, but for institutions in mutual form, such as credit unions, state savings associations, or state savings banks, a national bank charter is not available without first
Paragraph (a)(1) of this section would require a Federal savings association to submit a notice to the appropriate OCC supervisory office. The appropriate OCC supervisory office has an established relationship with the Federal savings associations it supervises, and it is in regular quarterly contact with management of Federal savings associations. As a result, the supervisory office will be familiar with the condition and operations of a Federal savings association that submits a notice.
The OCC encourages management of Federal savings associations to contact the appropriate OCC supervisory office to determine whether it would be useful to meet before submitting a notice under this section. The OCC believes such meetings can be beneficial to the management of Federal savings associations considering operating as covered savings associations, particularly Federal savings associations that may operate, hold, or conduct nonconforming subsidiaries, assets, or activities or that are operating under outstanding enforcement actions or matters requiring attention. These informal conversations could help address potential issues before a Federal savings association submits a notice.
The proposed rule would require that a notice: Be signed by a duly authorized officer of the Federal savings association; identify each branch and agency that the Federal savings association will operate on the effective date of the election that has not been the subject of an application or notice under 12 CFR part 5; and identify and describe each nonconforming subsidiary, asset, or activity that the Federal savings association operates, holds, or conducts at the time it submits the notice, each of which must be divested, conformed, or discontinued pursuant to § 101.5.
The requirement for a signature of a duly authorized officer of the Federal savings association is intended to allow the Federal savings association to demonstrate that it has obtained any approval that may be required under its own internal procedures for making strategic decisions of this type.
The proposed rule would require that the notice identify branches and agencies that the Federal savings association will operate on the date an election takes effect, and that have not been the subject of an application or notice under 12 CFR part 5, in order to determine which branches and agencies are eligible to be grandfathered pursuant to section 5A(e) of HOLA and § 101.4(b) of the proposed rule. Federal savings associations are already required under 12 CFR part 5 to submit applications or notices to the OCC with respect to branches and agencies (for example, when establishing, acquiring, or relocating branches or establishing agencies). The proposed rule would only require a Federal savings association to identify branches or agencies for which the Federal savings association has not already submitted an application or notice. These are likely to be branches or agencies that are newly established at the time of an election under the proposed rule.
The proposed rule would require Federal savings associations to identify nonconforming subsidiaries, assets, and activities because these are the subsidiaries, assets, and activities the Federal savings association would need to divest, conform, or discontinue pursuant to section 5A(f)(3) of HOLA and § 101.5 of the proposed rule after an election takes effect. Consistent with section 5A(f)(2) of HOLA, the OCC would expect a Federal savings association to identify subsidiaries, assets, and activities operated, held, or conducted at the time it submits a notice of election. The OCC expects that the description of the subsidiaries, assets, and activities would specify whether an asset or activity is held or conducted by the Federal savings association itself or by a subsidiary. The description of these subsidiaries, assets, and activities should be sufficient to allow the OCC to understand the size of the subsidiaries or assets and the scope of the activities relative to the asset size or capital of the Federal savings association. However, given the possibility of fluctuations, the OCC understands that the value of a subsidiary, asset, or activity at any given point in time might not reflect its usual size or scope. The OCC invites comment on whether the proposed rule should specify metrics for determining the size or scope of a subsidiary, asset, or activity, and, if so, whether those metrics should reflect a specific point in time.
Under § 101.3(b) of the proposed rule, a Federal savings association's election to operate as a covered savings association would automatically take effect 60 days after the OCC receives a notice from the Federal savings association, unless the OCC notifies the Federal savings association that it is not eligible in accordance with paragraph (c). The OCC also could notify a Federal savings association that it is eligible to operate as a covered savings association before 60 days have elapsed. The proposed rule does not include a provision for written notification if an election takes effect by operation of law, but the OCC would expect to provide such notification as a matter of course. The OCC expects that such a notification would state that a Federal savings association is subject to the covered savings association laws, as described in § 101.4 of the proposed rule, once an election takes effect. Such a notification would have no impact on whether or when an election takes effect.
Section 101.3(c) of the proposed rule permits the OCC to notify a Federal savings association in writing that it is not eligible to make an election to operate as a covered savings association if the Federal savings association is not an “eligible savings association” as that term is defined in 12 CFR 5.3(g). Under the definition in 12 CFR 5.3(g), an eligible savings association is a Federal savings association that (1) is well capitalized as defined in 12 CFR 6.4; (2) has a composite rating of 1 or 2 under the Uniform Financial Institutions Rating System (CAMELS); (3) has a Community Reinvestment Act (CRA) rating of “outstanding” or “satisfactory,” if applicable; (4) has a consumer compliance rating of 1 or 2 under the Uniform Interagency Consumer Compliance Rating System; and (5) is not subject to a cease and desist order, consent order, formal written agreement, or Prompt Corrective Action directive or, if subject to any such order, agreement, or directive, is informed in writing by the OCC that the savings association may be treated as an “eligible savings association” for purposes of 12 CFR part 5. Because the purposes of 12 CFR part 5 and the purposes of the proposed rule are different, the proposed rule specifies that a Federal savings association that is subject to a cease and desist order, consent order, formal written agreement, or Prompt Corrective Act directive would not be eligible to elect to operate as a covered savings association unless the OCC informs it in writing that it is eligible for purposes of part 101 (that is, for purposes of the proposed rule).
The concept of an “eligible savings association” as described in 12 CFR 5.3(g) is well understood and relatively straightforward to apply. In the licensing context, an “eligible savings association” may receive expedited review of filings because it is generally the type of savings association that can operate safely and soundly. In the context of the proposed rule, a Federal
The OCC invites comment on whether there are standards other than those in the definition of “eligible savings association” in 12 CFR 5.3(g) that would allow the OCC to determine, without imposing undue burden, whether a Federal savings association is eligible to operate as covered savings association. The OCC also invites comment on whether there are situations in which, or Federal savings associations for which, it would not be appropriate to use the definition of “eligible savings association” to make determinations about the eligibility of a Federal savings association to operate as covered savings associations. Additionally, the OCC invites comment on whether the rule should identify other factors for consideration when determining a Federal savings association's eligibility to operate as a covered savings association.
The proposed rule would not require a Federal savings association to amend its charter or bylaws or to obtain the approval of shareholders or members before submitting a notice to the OCC. The model Federal savings association charter allows a Federal savings association to pursue any lawful objectives of a Federal savings association chartered under section 5 of HOLA. Section 5A of HOLA permits covered savings associations to engage in activities that would be permissible for a national bank. Covered savings associations will continue to be Federal savings associations chartered under section 5 of HOLA, as neither the proposed rule nor the statute requires a charter conversion.
Nevertheless, management of a Federal savings association that is interested in submitting a notice to elect to operate as a covered savings association should review the Federal savings association's charter and bylaws, as well as any other applicable law, to determine whether an election will require shareholder or member approval or whether it should amend its charter or bylaws because the documents contain terms that are inconsistent with the rights and duties of a covered savings association.
The proposed rule offers two alternatives to explain what it means for a covered savings association to have the rights and privileges of a similarly located national bank while being subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations as a similarly located national bank.
The first alternative would require a covered savings association to comply with the same provisions of law that would apply to a similarly located national bank and would not require it to comply with the provisions of law that apply to Federal savings associations, except in specific areas identified in § 101.4(a)(2) of the proposed rule, such as governance (including incorporation, bylaws, boards of directors, shareholders, and distribution of dividends), consolidation, merger, dissolution, conversion (including conversion to a stock bank or to another charter), conservatorship, and receivership. In these specific areas, the laws otherwise applicable to a Federal savings association will apply to a covered savings association.
The first alternative would provide a framework for a covered savings association to understand the provisions of law that apply to it: That is, national bank provisions will apply, except where specifically set out in the proposed rule, and Federal savings association laws will not apply, except where specifically set out in the proposed rule. However, there may be circumstances where it would not be appropriate to apply a provision of national bank law to a covered savings association. Under the first alternative, unless that provision of national bank law is included in one of the Federal savings association categories, the OCC may not have the flexibility to decline to apply it to a covered savings association without amending the rule. The OCC invites comment on whether there are situations in which the first alternative would inappropriately apply provisions of national bank law to a covered savings association. The OCC also invites comment on whether the first alternative, if adopted, should include a reservation of authority to allow the OCC to determine that a particular provision of national bank law should not apply to covered savings associations. Would the framework of this alternative give covered savings associations and other interested persons sufficient notice of the provisions of law that do and do not apply to covered savings associations? Would the latitude provided to the OCC under a reservation of authority make this first alternative more workable?
The second alternative focuses on the activities that would be permissible for a covered savings association. It is based on the requirements for operating subsidiaries of national banks set out in 12 CFR 5.34(e). This alternative would provide that a covered savings association may engage in any activity that is permissible for a national bank to engage in as part of, or incidental to, the business of banking, or explicitly authorized by statute for a national bank, subject to the same authorization, terms, and conditions that would apply to a similarly located national bank, as determined by the OCC for purposes of the proposed rule. Like the first alternative, this second alternative would be subject to an exception for
The second alternative provides general guidance about the types of activities in which a covered savings association would be permitted to engage. Covered savings associations would be able to refer to OCC publications such as “Activities Permissible for National Banks and Federal Savings Associations, Cumulative”
The second alternative is more narrowly tailored than the first alternative, and it preserves the OCC's authority to determine that a particular provision of national bank law does not apply to covered savings associations. However, it may be difficult for a covered savings association to determine whether a particular provision of law is considered an “authorization,” “term,” or “condition” that applies to a covered savings association if that provision is not otherwise discussed in an OCC publication.
The OCC invites comment on which of these alternatives would best clarify the requirements for the treatment of covered savings associations, including the provisions of law that apply to covered savings associations. Are there provisions of law that would not be clearly addressed by these alternatives? Are there situations in which these alternatives would not lead to an appropriate result?
Because section 5A(c) provides covered savings associations with the same rights and privileges as a similarly located national bank, subject to the same duties, restrictions, penalties, liabilities, conditions, and limitations that would apply to a similarly located national bank, both alternatives would allow a covered savings association to engage in activities to the same extent as a national bank. Except as provided in the proposed rule, a covered savings association would be permitted to engage in the same activities as a national bank, subject to the restrictions that would apply to a national bank rather than the restrictions that would apply to a Federal savings association.
Unlike national banks, Federal savings associations are required to comply with the QTL test,
A similar analysis applies to the limits on aggregate amounts of loans secured by liens on nonresidential real property,
In order to clarify the provisions of law that apply to covered savings associations, the OCC also must identify the purposes for which a covered savings association will be treated as a Federal savings association. Section 5A of HOLA sets out specific categories of activities where Federal savings association laws apply. Those categories are governance of the covered savings association (including incorporation, bylaws, boards of directors, shareholders, and distribution of dividends), consolidation, merger, dissolution, conversion (including conversion to a stock bank or to another charter), conservatorship, and receivership. The OCC can exercise its interpretive authority to determine which Federal savings association laws fall into each of those categories. The chart below shows examples of Federal savings association laws with which the OCC proposes to require covered savings associations to comply because these examples fall into the categories specifically created by section 5A. The OCC proposes that the statutory category for provisions relating to “shareholders” be construed to include provisions relating to the members of Federal mutual savings associations.
These are the types of provisions that the OCC would expect to identify in guidance as governance-related provisions but would not expect to include in the text of the rule. The OCC invites comment on whether the particular provisions identified earlier in this preamble should be considered provisions of law that relate to governance (including incorporation, bylaws, boards of directors, shareholders, and distribution of dividends), consolidation, merger, dissolution, conversion (including conversion to a stock bank or to another charter), conservatorship, and receivership and whether there are other provisions of law that the OCC should identify. The OCC also invites comment on whether these provisions should be specifically identified in the rule rather than in guidance.
Under section 5A(d)(3) of HOLA, the OCC also has the discretion to identify, by rule, additional areas where Federal savings association laws apply to covered savings associations. There are three categories of laws for which this treatment would be appropriate. The first category consists of laws that allow Federal mutual savings associations to conduct business as mutual institutions. For example, 12 CFR 163.74 sets out rules for mutual capital certificates. There is no comparable provision for national banks. Likewise, 12 CFR 163.76 prohibits a Federal savings association from selling equity securities in its offices, unless the sale involves stock sold to convert the savings association from the mutual to stock form. Sale of conversion stock in offices can promote a widespread distribution of conversion stock as required by the stock conversion regulations (
The second area consists of rules that set out procedural and operational requirements for Federal savings associations but that do not result in
The following chart sets out rules that set forth procedural and operational requirements:
Finally, the OCC proposes to apply Federal savings association provisions where there is a specific Federal savings association rule with no corresponding specific national bank rule, but the Federal savings association rule sets out requirements that are consistent with supervisory expectations for national banks or is substantially similar to an interagency rule. For example, 12 CFR part 162 implements a statutory requirement in HOLA that requires Federal savings associations to use generally accepted accounting principles. Pursuant to the Federal Deposit Insurance Act at 12 U.S.C. 1831m and its implementing regulation at 12 CFR 363, all insured depository institutions are required to use generally accepted accounting principles. Similarly, 12 CFR 163.170(c) sets out expectations for maintenance of records with which the OCC also would expect a national bank to comply as a matter of course. The proposed rule also would treat covered savings associations as Federal savings associations for purposes of 12 CFR part 128, which sets out nondiscrimination requirements, and 12 CFR 163.27, which prohibits inaccurate or misrepresentative advertising.
The OCC invites comment on whether any of the provisions of Federal savings association law proposed earlier in this preamble to be applicable to covered savings associations should not apply to covered savings associations. The OCC also invites comment on whether the OCC should exercise its discretion under section 5A(d)(3) of HOLA to identify in this rule additional areas in which Federal savings association laws, rather than national bank laws, should apply to covered savings associations.
The OCC recognizes that the areas described earlier in this preamble may not be the only areas where it would be appropriate to apply provisions of Federal savings association laws to covered savings associations. Novel and unforeseen situations may arise in which it would be appropriate to apply a provision of Federal savings association law not identified earlier in this preamble to a covered savings association. The OCC solicits comment on whether it would be helpful to include a mechanism in this rule that would allow the OCC, in the future, to identify additional provisions of Federal savings association law that apply to covered savings associations, without amending this rule. Such a mechanism might consist of publishing an interpretive letter or updating a particular OCC publication.
In areas not specifically described earlier in this preamble, the proposed rule contemplates that national bank laws would apply to a covered savings association. For example, a covered savings association seeking to establish a de novo branch or close an existing branch would be subject to the statutes and regulations that govern the establishment or closing of a national bank branch.
The proposed rule also would require a covered savings association to comply with national bank law with respect to subsidiaries. Section 5A(f)(2) of HOLA directs the OCC to issue rules that require Federal savings associations making an election to identify “specific assets and subsidiaries” that do not conform to the requirements for assets and subsidiaries of a national bank. Section 5A(f)(3) requires that the OCC's rules establish a transition process for bringing these assets and subsidiaries into conformance with the requirements for a national bank. This suggests that Congress may have intended to prohibit covered savings associations from retaining assets or subsidiaries, such as service corporations, in which a national bank would not be authorized to hold, operate, or invest. Consequently, the proposed rule would require a covered savings association to comply with national bank laws for purposes of forming new subsidiaries. Under § 101.4(a)(1) of the proposed rule, 12 CFR 5.34, 5.35, and 5.39, which respectively set out requirements for the formation of operating subsidiaries, bank service companies, and financial subsidiaries by national banks, would apply to covered savings associations. Similarly, 12 CFR 5.36, which addresses other equity investments by national banks, would apply to covered savings associations. Because 12 CFR 5.59, addressing Federal savings association service corporations, is not listed in § 101.4(a)(2) as a provision of Federal savings association law that continues to apply to covered savings associations, 12 CFR 5.59 would not apply.
Service corporations of Federal savings associations have been authorized to engage in a range of activities. Some of those activities are permissible for a national bank and some are not. Under the proposed rule, both subsidiaries and those activities conducted in a subsidiary that are impermissible for a national bank would be impermissible for a covered savings association. However, the OCC recognizes that a prohibition on operating a service corporation could have a significant effect on a covered savings association. The OCC invites comment on whether the rule should allow covered savings associations to continue to operate a service corporation, and under what conditions, if the service corporation is engaged
The proposed rule would not apply section 5(i)(4) of HOLA to covered savings associations. Section 5(i)(4) of HOLA provides that Federal savings banks chartered prior to October 15, 1982, may continue to make any investment or engage in any activity not otherwise authorized under section 5 to the degree they were permitted to do so as a Federal savings bank prior to October 15, 1982.
The proposed rule would require a covered savings association to comply with the national bank public welfare investment limits rather than the Federal savings association community development limits. National banks are subject to a public welfare investment limit of 15 percent of their capital and surplus, consistent with 12 U.S.C. 24 (Eleventh) and 12 CFR part 24. The community development investment limits for Federal savings associations are set out in 12 CFR 160.36 (less than or equal to the greater of 1 percent of the association's capital or $250,000); section 5(c)(3)(A) of HOLA (12 U.S.C. 1464(c)(3)(A)) and 12 CFR 160.30, as interpreted by the Office of Thrift Supervision's May 10, 1995, Letter Regarding Community Development investments (aggregate community development loans and equity investments may not exceed 5 percent of the association's total assets, and, within that limitation, the association's aggregate equity investments may not exceed 2 percent of its total assets); and 12 CFR 5.59 (allowing the association to invest up to 3 percent of its assets in service corporations but providing that any amount exceeding 2 percent must serve “primarily community, inner-city, or community development purposes”). If a Federal savings association uses all or a portion of the investment limits permitted under the three legal authorities, it is possible that its aggregate community development investments would exceed the investment limits for national banks. As a result, applying national bank limitations to covered savings associations for purposes of public welfare and community development investments could require a Federal savings association that elects to operate as a covered savings association to divest some of its community development investments.
Paragraph (b) of § 101.4 of the proposed rule provides that a covered savings association may continue to operate any branch or agency that the covered savings association operated on the effective date of the election. This provision implements section 5A(e) of HOLA.
Section 5A(g) of HOLA provides that a covered savings association can continue to operate as a covered savings association, even if its total consolidated assets grow to more than $20 billion. Although this principle is not explicitly set out in the proposed rule, the OCC would apply it when supervising covered savings associations.
Paragraph (a) of § 101.5 would require a covered savings association to divest, conform, or discontinue nonconforming subsidiaries, assets, and activities at the earliest time that prudent judgment dictates but not later than two years after the effective date of an election. This requirement is consistent with paragraphs (2) and (3) of section 5A(f) of HOLA, which set out an expectation that covered savings associations will bring assets and subsidiaries that do not conform to the requirements for national banks into conformance with the requirements for national banks.
In keeping with the goal of maintaining a level playing field among OCC-supervised institutions, the proposed rule would require a covered savings association to divest, conform, or discontinue nonconforming subsidiaries, assets, and activities at the earliest time prudent judgment dictates. Recognizing that circumstances may occasionally dictate that immediate divestment, conformance, or discontinuance is not prudent, the proposed rule would provide up to two years for such action. The two-year period for divesting, conforming, or discontinuing nonconforming subsidiaries, assets, and activities is the same period that the OCC would generally allow for a Federal savings association converting to a national bank. This period should, in most cases, provide a covered savings association with sufficient lead-time to minimize potential undue financial harm from divesting, conforming, or discontinuing nonconforming subsidiaries, assets, and activities. This period also is intended to be short enough to ensure that covered savings associations are not allowed to gain an advantage by holding or operating assets or subsidiaries or conducting activities that would not be permissible for a national bank. The OCC invites comment on whether a different period, such as the more general “reasonable time” standard set out in the conversion rules at 12 CFR 5.24, should apply.
Paragraph (a) of this section also provides that the OCC may require a covered savings association to submit a plan to divest, conform, or discontinue a nonconforming subsidiary, asset, or activity. Such a plan would assist OCC supervisory staff in assessing compliance with the proposed rule.
Paragraph (b) of this section would allow the OCC to grant a covered savings association extensions of not more than two years each up to a maximum of eight years if the OCC determines that: (1) The covered savings association has made a good faith effort to divest, conform, or discontinue the
The OCC invites comment on whether there are any situations in which it would be appropriate for a covered savings association to retain a nonconforming subsidiary or asset or continue a nonconforming activity for longer than 10 years. What characteristics do these subsidiaries, assets, or activities have that would make it appropriate for them to be treated differently than other nonconforming subsidiaries, assets, or activities (for example, would conforming result in particularly severe adverse consequences)? If the rule permits a subsidiary, asset, or activity to be retained or continued for longer than 10 years, should the OCC limit the ability of a covered savings association to expand the subsidiary, asset, or activity?
Paragraph (c) of this section of the proposed rule provides that Federal savings association law would continue to apply to nonconforming subsidiaries, assets, and activities during the period before the covered savings association divests, conforms, or discontinues the subsidiary, asset, or activity. This provision is intended to clarify the treatment of nonconforming subsidiaries, assets, and activities during the transition period.
Under § 101.6(a) of the proposed rule, a covered savings association may request to terminate an election after an appropriate period of time, as determined by the OCC. The OCC would generally view an appropriate period of time to be relatively soon after an election takes effect (for example, 60 or 90 days). However, the OCC might determine that a longer period of time is appropriate where there is evidence that a covered savings association is attempting to use a termination to evade the requirements or purposes of section 5A of HOLA, such as the requirement to divest, conform, or discontinue nonconforming subsidiaries, assets, and activities.
Paragraph (b) of this section establishes procedures for terminating an election that are intended to be the mirror image of the procedures for making an election, with some exceptions noted below. As with an election, a covered savings association that wishes to terminate an election would be required to notify the OCC of the termination in writing. The notice would need to be signed by a duly authorized officer. A covered savings association would also be required to provide the OCC with a list of nonconforming subsidiaries, assets, and activities—that is, subsidiaries, assets, and activities (
A savings association terminating an election would have the same period of time after submitting a notice of termination to divest, conform, or discontinue nonconforming subsidiaries, assets and activities. Generally, this period of time would not exceed two years, but a savings association could request extensions of this time in the manner described in § 101.5 of the proposed rule. A Federal savings association that has terminated its election would not be permitted to retain or continue any subsidiaries, assets, or activities that would be permissible for a national bank but not for a Federal savings association. This includes lending activities that would cause the savings association to violate the QTL test.
Unlike an election, a covered savings association wishing to terminate an election would not be required to identify branches or agencies in operation at the time of termination.
Paragraph (c) of this section specifies that, once a termination takes effect, a Federal savings association is subject to the same provisions of law that apply to other Federal savings associations that are not covered savings associations.
Under the proposed rule, a Federal savings association that wishes to make a subsequent election after terminating a previous election would be subject to the same requirements as a Federal savings association making an election for the first time.
However, a Federal savings association that previously made and terminated an election to operate as a covered savings association would be required to wait five years after the termination before making a subsequent election. The purpose of this cooling-off period is to prevent institutions from taking advantage of a potential overlap between transition periods for divesting nonconforming subsidiaries and assets and discontinuing nonconforming assets. Under the proposed rule, the OCC has the authority to waive the five-year period for good cause.
The OCC encourages comment on any aspect of this proposal and especially on those issues noted in this preamble.
The Regulatory Flexibility Act, 5 U.S.C. 601
Consistent with the UMRA, our review considers whether the mandates imposed by the proposed rule may result in an expenditure of $100 million or more by state, local, and tribal governments, or by the private sector, in any one year. The proposed rule does not impose new mandates. Therefore, we conclude that the proposed rule will not result in an expenditure of $100 million or more annually by state, local, and tribal governments, or by the private sector.
Under the Paperwork Reduction Act of 1995,
A Federal savings association seeking to operate as a covered savings association would be required under § 101.3(a) to submit a notice making an election to the appropriate OCC supervisory office that: (1) Is signed by a duly authorized officer of the Federal savings association; (2) identifies the branches and agencies that will be in operation on the effective date of the election that have not been the subject of an application or notice under 12 CFR part 5; and (3) identifies and describes any nonconforming subsidiaries, assets, or activities that the Federal savings association holds, operates, or conducts at the time its submits its notice.
Under § 101.5(a), the OCC may require a covered savings association to submit a plan to divest, conform, or discontinue a nonconforming subsidiary, asset, or activity.
A covered savings association may submit a notice to terminate its election to operate as a covered savings association under § 101.6 using similar procedures to those for an election. In addition, after a period of five years, a Federal savings association that has terminated its election to operate as a covered savings association may submit a notice under § 101.7 to reelect using the same procedures used for its original election.
In addition, the OCC will file a nonmaterial change at the final rule stage to amend its Licensing Manual Collection (OMB Control No. 1557-0014) to increase the respondent count to reflect additional filings from Federal savings associations.
Comments are invited on:
(a) Whether the collections of information are necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimates of the burden of the collections of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI Act),
Administrative practice and procedure, Assets, Reporting and recordkeeping requirements, Savings associations.
12 U.S.C. 93a, 1462a, 1463, 1464, 1464a, and 5412(b)(2)(B).
(a)
(b)
(a)
(1)
(2)
(3)
(4)
(i) With respect to a covered savings association:
(A) Means any subsidiary, asset, or activity that is not permissible for a covered savings association or, if permissible, is being operated, held, or conducted in a manner that exceeds the limit applicable to a covered savings association; and
(B) Includes an investment in a subsidiary or other entity that is not permissible for a covered savings association; and
(ii) With respect to a Federal savings association that has terminated an election to operate as a covered savings association:
(A) Means any subsidiary, asset, or activity that is not permissible for a Federal savings association or, if permissible, is being operated, held, or conducted in a manner that exceeds the limit applicable to a Federal savings association; and
(B) Includes an investment in a subsidiary or other entity that is not permissible for a Federal savings association.
(5)
(b)
(a)
(2)
(i) Be signed by a duly authorized officer of the Federal savings association;
(ii) Identify each branch or agency that the Federal savings association operates or will operate on the effective date of the election that has not been the subject of an application or notice under 12 CFR part 5; and
(iii) Identify and describe each nonconforming subsidiary, asset, or activity that the Federal savings association operates, holds, or conducts at the time it submits the notice, each of which must be divested, conformed, or discontinued pursuant to § 101.5.
(b)
(2)
(c)
(a)
[OPTION A: (1)
[OPTION B: (1)
(2)
(i) Governance (including incorporation, bylaws, boards of directors, shareholders, and distribution of dividends);
(ii) Consolidation, merger, dissolution, conversion (including conversion to a stock bank or to another charter), conservatorship, and receivership;
(iii) Provisions of law applicable only to Federal mutual savings associations;
(iv) Offers and sales of securities at an office of a Federal savings association;
(v) Inclusion of subordinated debt securities and mandatorily redeemable preferred stock as Federal savings association supplementary (tier 2) capital;
(vi) Increases in permanent capital of a Federal stock savings association;
(vii) Rules of practice and procedure in adjudicatory proceedings;
(viii) Rules for investigative proceedings and formal examination proceedings;
(ix) Removals, suspensions, and prohibitions where a crime is charged or proven;
(x) Security procedures;
(xi) Maintenance of records and recordkeeping and confirmation requirements for securities transactions;
(xii) Nondiscrimination; and
(xiii) Advertising.
(b)
(a)
(b)
(1) The covered savings association has made a good faith effort to divest, conform, or discontinue the nonconforming subsidiary, asset, or activity;
(2) Divestiture, conformance, or discontinuation would have a material adverse financial effect on the covered savings association; and
(3) Retention or continuation of the nonconforming subsidiary, asset, or activity is consistent with the safe and sound operation of the covered savings association.
(c)
(a)
(b)
(1) The provisions of §§ 101.3 and 101.5 shall be applied by substituting “covered savings association” for “Federal savings association” and “Federal savings association” for “covered savings association” each place those terms appear in those sections;
(2) Section 101.3(a)(1) and (2)(ii) shall not apply; and
(3) Sections 101.3 and 101.5 shall be applied by substituting “effective date of the termination” for “effective date of the election.”
(c)
(a)
(b)
The OCC may disapprove any notice submitted pursuant to this part if the OCC has reasonable cause to believe the notice is made for the purpose of evading § 101.5, including as that section applies to a covered savings association terminating an election.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. This proposed AD was prompted by reports of drainage holes on the belly fairing forward and middle access panels being obstructed with sealant. This proposed AD would require inspecting for and removing all sealant blocking the drainage holes on the belly fairing forward and middle access panels. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by November 2, 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 Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone: 514-855-5000; fax: 514-855-7401; email:
You may examine the AD docket on the internet at
Darren Gassetto, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; 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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2018-14, dated May 1, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:
Bombardier Aerospace (BA) has informed Transport Canada that the drainage holes on the belly fairing forward and middle access panels may be obstructed with sealant. The purpose of the drainage holes is to allow for drainage of a limited quantity of fluids due to any leaks, should they occur. This condition, if not corrected, may prevent the timely detection of fluid leakage that could lead to the accumulation of flammable fluids/vapors, beyond the design capacity of the belly fairing venting provisions [which could ignite if an ignition source (
This [Canadian] AD is issued to mandate the removal of all sealant blocking the drainage holes on the belly fairing forward and middle access panels.
You may examine the MCAI in the AD docket on the internet at
Bombardier, Inc., has issued the following service information for Bombardier Model BD-700-1A10 airplanes.
• Service Bulletin 700-53-051, dated May 17, 2017.
• Service Bulletin 700-53-6009, dated May 17, 2017.
Bombardier, Inc., has issued the following service information for Bombardier Model BD-700-1A11 airplanes.
• Service Bulletin 700-1A11-53-026, dated May 17, 2017.
• Service Bulletin 700-53-5010, dated May 17, 2017.
This service information describes procedures for inspecting for and removing sealant blocking the drainage holes on the belly fairing forward and middle access panels. These documents are distinct since they apply to different airplane models and configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
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.
We estimate that this proposed AD affects 376 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
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 November 2, 2018.
None.
This AD applies to Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes, certificated in any category, serial numbers 9001 through 9707 inclusive, 9709 through 9717 inclusive, 9719 through 9726 inclusive, 9728, 9730, 9732 through 9734 inclusive, 9736 through 9740 inclusive, 9742 through 9745 inclusive, 9749, 9751, 9757, and 9998.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of drainage holes on the belly fairing forward and middle access panels being obstructed with sealant. We are issuing this AD to address fluid leakage that could lead to the accumulation of flammable fluids/vapors, beyond the design capacity of the belly fairing venting provisions, which could ignite if an ignition source (
Comply with this AD within the compliance times specified, unless already done.
Within 375 flight hours or 12 months, whichever occurs first, after the effective date of this AD, do a general visual inspection for and remove all sealant blocking the drainage holes on the belly fairing forward and middle access panels, in accordance with the Accomplishment Instructions of the applicable service information listed in Figure 1 to paragraph (g) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2018-14, dated May 1, 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 Darren Gassetto, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516 228 7323; fax 516 794 5531; email
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone: 514-855-5000; fax: 514-855-7401; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Weatherly Aircraft Company (Weatherly) Models 201, 201A, 201B, 201C, 620, 620A, 620B, 620B-TG, and 620TP airplanes. This proposed AD was prompted by reports of fatigue cracking of the center wing and outer wing spar hinge brackets due to corrosion pitting. This proposed AD would require repetitive inspections of the wing hinge brackets, pins, and wing spar structure with repair or replacement of parts as necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by November 2, 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 Weatherly Aircraft Company, 2034 West Potomac Avenue, Chicago, Illinois 60622-3152; telephone: (424) 772-1812; email:
You may examine the AD docket on the internet at
Mike Lee, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, 3960 Paramount Blvd., Suite 100, Lakewood, California, 90712; phone: (562) 627-5325; fax: (562) 627-5210; 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
In 2015, we were notified of a fatal accident caused by the in-flight structural failure of a wing on a Weatherly Model 620B airplane. The accident investigation found multiple fatigue cracks in the center wing front spar lower hinge bracket. As a result of operator inspections, a cracked hinge bracket in the center wing to outer wing joint was also reported on a different airplane. The hinge bracket from the second report had completely failed, and the airplane was relying on the second failsafe hinge bracket to carry the wing loads. This condition, if not addressed, could result in failure of the wing front spar lower hinge brackets and lead to in-flight separation of the wing with consequent loss of control of the airplane.
To correct this unsafe condition, we issued AD 2016-07-11 (81 FR 18461, March 31, 2016) (“AD 2016-07-11”), which requires a one-time visual inspection of the center and outer wing front spar lower hinge brackets for cracks and corrosion and corrective action as necessary. AD 2016-07-11 also requires sending a report of the inspection results to the FAA.
Since we issued AD 2016-07-11, Weatherly has developed improved center wing hinge brackets manufactured from corrosion resistant material. Weatherly also issued new service information for repetitive visual and detailed inspections. Since the cause of the fatigue cracks were attributed to corrosion pits on the accident airplane, we propose to issue this new AD to require those repetitive visual and detailed inspection actions.
We reviewed Weatherly 201/620 Service Bulletin SB-201/620-18001, Revision C, dated May 21, 2018. The service information describes procedures for initial and repetitive inspections of the wing hinge brackets, pins, and wing spar structure for corrosion and/or cracks with repair or replacement as necessary. This service
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 repetitive visual and detailed inspections of the wing hinge brackets, pins, and wing spar structure for corrosion and/or cracks with replacement of parts as necessary.
We estimate that this proposed AD affects 94 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need these replacements.
The on-condition costs reflects the cost to replace the entire assembly. The scope of damage found in the required inspection and which specific parts need replaced could vary significantly from airplane to airplane. We have no way of determining how much damage may be found on each airplane or the cost to repair damaged parts on each airplane or the number of airplanes that may require repair.
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 small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the 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 November 2, 2018.
None.
This AD applies to Weatherly Aircraft Company (Weatherly) Models 201, 201A, 201B, 201C, 620, 620A, 620B, 620B-TG, and 620TP airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 5740, Wing Attach Hinge Fitting.
This AD was prompted by reports of cracks found on the center wing front spar lower hinge bracket. We are issuing this AD to detect and correct corrosion and cracks on the wing hinge brackets and pin assemblies. The unsafe condition, if not addressed, could result in failure of the wing front and rear spar lower hinge brackets and lead to in-flight separation of the wing with consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 3 months after the effective date of this AD and thereafter at intervals not to exceed 5 years, inspect each center and outer wing spar and spar cap, wing hinge bracket, and hardware for corrosion and cracks by following paragraphs 7 through 22 under the Detailed Inspection section in Weatherly 201/620 Service Bulletin SB-201/620-18001, Revision C, dated May 21, 2018 (Weatherly SB-201/620-18001, Revision C), except this AD does not require you to contact Weatherly.
(2) Serial numbers (S/N) 1155 and 1558 have already had the initial detailed inspection required by paragraph (g)(1) of this AD and only the 5-year repetitive detailed inspections are required for these airplanes.
(3) If any corrosion or cracking is found during any of the inspections required in paragraph (g)(1) of this AD, before further flight, repair or replace any parts with corrosion and cracking as specified in paragraphs 7 through 13 under the Detailed Inspection section in Weatherly SB-201/620-18001, Revision C.
Within 12 months after the initial detailed inspection required in paragraph (g) of this AD and thereafter at intervals not to exceed 12 months, visually inspect each forward and rear wing hinge bracket attachment pins, bolts, removed caps, spacers, and hardware for corrosion by following paragraphs 4 through 7 under the Visual Inspection section in Weatherly SB-201/620-18001, Revision C. If any corrosion is found during any of the inspections required by this paragraph, before further flight, inspect further, repair, and/or replace any parts with corrosion as specified in paragraphs 5 and 6 under the Visual Inspection section in Weatherly SB-201/620-18001, Revision C. You may perform a detailed inspection in accordance with paragraph (g) of this AD instead of any visual inspection required by paragraph (h) of this AD.
(1) The Manager, Los Angeles ACO 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.
(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 Mike Lee, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, 3960 Paramount Blvd., Suite 100, Lakewood, California, 90712; phone: (562) 627-5325; fax: (562) 627-5210; email:
(2) For service information identified in this AD, contact Weatherly Aircraft Company, 2034 West Potomac Avenue, Chicago, Illinois 60622-3152; telephone: (424) 772-1812; email:
Food and Drug Administration, HHS.
Notification of petition.
The Food and Drug Administration (FDA or we) is announcing that we have filed a petition, submitted by Oakshire Naturals LP, proposing that the food additive regulations be amended to provide for the safe use of vitamin D
The food additive petition was filed on July 16, 2018.
For access to the docket to read background documents or comments received, go to
Judith Kidwell, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1071.
Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5))), we are giving notice that we have filed a food additive petition (FAP 8A4821), submitted by Oakshire Naturals LP, 295 Thompson Road, P.O. Box 388, Kennett Square, PA 19348. The petition proposes to amend the food additive regulations in part 172 (21 CFR part 172)
The petitioner has claimed that this action is categorically excluded under 21 CFR 25.32(k) because the substance is intended to remain in food through ingestion by consumers and is not intended to replace macronutrients in food. In addition, the petitioner has stated that, to their knowledge, no extraordinary circumstances exist. If
Postal Regulatory Commission.
Notice of proposed rulemaking.
The Commission is proposing revisions to its rules governing market tests of experimental products. This document informs the public of the docket's initiation, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
Pursuant to 39 U.S.C. 503 and 3641, this order establishes a rulemaking docket that proposes amendments to the Commission's regulations governing market tests of experimental products appearing in existing 39 CFR part 3035. The proposed amendments would revise regulations concerning market test revenue limitations and requests to add a non-experimental product or price category based on an experimental product to the market dominant or competitive product list.
Section 3641 of title 39 of the United States Code authorizes the Postal Service to conduct market tests of experimental products. In accordance with its specific authority to regulate market tests under 39 U.S.C. 3641 and its general authority under 39 U.S.C. 503 to promulgate regulations and establish procedures, the Commission codified existing 39 CFR part 3035 to establish procedures for conducting market tests of experimental products.
The proposed amendments are discussed below. The first set of amendments intend to revise the method for calculating applicable revenue limitations for market tests appearing in existing §§ 3035.15 and 3035.16 to be consistent with the current level of precision used in calculating the annual limitation on the percentage change in rates for market dominant products (price cap). The second set of proposed amendments aim to clarify the process under existing § 3035.18 for adding a non-experimental product or price category based on an experimental product to the market dominant or competitive product list and to emphasize the necessity of receiving specific detailed information in those instances.
Unless the Commission grants an exemption, total revenues anticipated or in fact received by the Postal Service from an experimental product must not exceed $10 million in any year. 39 U.S.C. 3641(e)(1). Upon written application of the Postal Service, the Commission may exempt the market test from the $10 million revenue limitation if certain requirements are met. 39 U.S.C. 3641(e)(2). If the Commission grants an exemption, total revenues anticipated, or in fact received by, the Postal Service from a market test may not exceed $50 million in any year.
Existing § 3035.15(d) explains the method for calculating the $10 million revenue limitation on a fiscal year basis, as adjusted for the change in the CPI-U index ($10 Million Adjusted Limitation). Calculating the $10 Million Adjusted Limitation involves three steps. First, a simple average CPI-U index was calculated for Fiscal Year 2008 by summing the monthly CPI-U values from October 2007 through September 2008 and dividing the sum by 12. 39 CFR 3035.15(d);
Under existing §§ 3035.15 and 3035.16, the Base Average for both the $10 Million and $50 Million Adjusted Limitations is calculated using one decimal place (214.5). In Order No. 303, the Commission amended the price cap rules appearing in §§ 3010.21 and 3010.22 of this chapter to calculate the CPI-U price cap using three decimal places instead of one.
Consistent with the price cap rules, the proposed amendments would calculate the Base Average for the $10 Million Adjusted Limitation and $50 Million Adjusted Limitation using three decimal places (214.463). The proposed amendments would replace “214.5” with “214.463” in paragraphs (d) and (e) of existing § 3035.15 and in paragraphs (c) and (d) of existing § 3035.16. This change would slightly increase the current $10 Million and $50 Million Adjusted Limitations, which were calculated using one decimal place.
Generally, each product offered by the Postal Service must comply with 39 U.S.C. 3622 (governing market dominant products), 39 U.S.C. 3633 (governing competitive products), or 39 U.S.C. 3642 (governing changes to the lists of market dominant and competitive products), and applicable regulations. Experimental products, however, are not subject to 39 U.S.C. 3622, 3633 or 3642, or the associated regulations. 39 U.S.C. 3641(a)(2).
The Postal Service may decide to add a non-experimental product or price category to the product list based on its performance or other factors. Accordingly, existing § 3035.18 sets forth procedures for filing a request to add a current or former experimental product to the market dominant or competitive product list in non-experimental status, that is—subject to the applicable requirements of 39 U.S.C. 3622, 3633, or 3642, and the applicable regulations promulgated thereunder.
Under existing § 3035.18(b), requests must quantify the product specific costs associated with developing the market test, which are the costs incurred before the market test was implemented. Under existing § 3035.18(c), the Postal Service must also file a notice of the request in the market test proceeding's docket that includes the applicable docket number(s) for the proceeding evaluating the request.
Since the market test rules were implemented, the Postal Service has filed requests for the Customized Delivery and Metro Post experimental products.
The Customized Delivery and Metro Post Requests raised questions about the applicability of existing § 3035.18. The Postal Service filed both of these requests under regulations applicable to new competitive NSAs
These filings were problematic because the Postal Service did not
The Commission conditionally approved the Customized Delivery Request.
The 60-day notice requirement in existing § 3035.18(a) ensures that both the Commission and interested persons have adequate time to evaluate and respond to a request.
The Postal Service also failed to file notices of the Customized Delivery and Metro Post Requests in the applicable market test proceeding's docket as required by existing § 3035.18(c). These notices are important for providing transparency into the Commission's review of requests by helping mailers and the general public track a market test's progress from an experimental product to a non-experimental market dominant or competitive product.
To address these issues, the proposed amendments would clarify that existing § 3035.18 applies to any non-experimental product or price category based on a former or current experimental product that the Postal Service seeks to add to the market dominant or competitive product list, whether permanent or temporary. The proposed amendments would remove the word “permanent” from existing § 3035.18 and instead refer to a request to add a non-experimental product or price category based on an experimental product to the applicable product list. The proposed amendments would clarify that existing § 3035.18 applies to the addition of all non-experimental products or price categories that were based on an experimental product.
To ensure that the Postal Service files under the appropriate regulation, the proposed amendments would identify specific instances when the Postal Service must file a request under existing § 3035.18. Proposed § 3035.18(b) would require the Postal Service to file a request if the proposed non-experimental product or price category: offers the same (or similar) service as a former or current experimental product; has the same distinct cost or market characteristic as a former or current experimental product; or uses (or is based on) data or assumptions from a former or current market test proceeding.
The proposed rules would also require the Postal Service to provide advance notice of requests. If the Postal Service seeks a Commission decision by a certain date, the Postal Service must provide adequate notice to ensure the Commission and interested persons have sufficient time to obtain necessary information and evaluate the request. Proposed § 3035.18(d) would require the Postal Service to file a request at least 60 days before the requested decision date. For example, for the Customized Delivery and Metro Post Requests, the Postal Service asked the Commission to issue its decision before or when the market test ends to ensure continuity between the market test and proposed NSAs. In those cases, proposed § 3035.18(d) would require the Postal Service to file the request at least 60 days before the applicable market test ends.
The Commission retains the substance of existing § 3035.18(c), but the proposed amendments would move paragraph (c) to proposed § 3035.18(e). Proposed § 3035.18(e) would delete the phrase “to make an experimental product permanent.” This proposed rule works in conjunction with proposed § 3035.18(c)(1), discussed in more detail below, which would require a request to identify the market test and docket number that the proposed non-experimental product or price category is based on.D3>3. Contents of Request
Existing § 3035.18(a) requires the Postal Service to file a request under 39 U.S.C. 3642 and part 3020, subpart B of this chapter. Because of the unique nature of market tests and experimental products, existing § 3035.18(b) requires the Postal Service to include additional information to help facilitate the Commission's review of requests. As a result of the Commission's review of the Metro Post and Customized Delivery Requests, the Commission has identified additional information that should be provided with a request. The public versions of the Metro Post Requests did not reveal the connection between the proposed NSAs and the Metro Post experimental product. The proposed NSAs offered same-day delivery service just like the Metro Post experimental product. However, the Metro Post Requests redacted information stating that the proposed NSAs allow for same-day delivery of packages and were developed from Metro Post market test data.
To address this issue, proposed § 3035.18(c)(1) would require a request to identify the market test and docket number that the proposed non-experimental product or price category is based on. Proposed § 3035.18(c)(2) would require a request to explain how the proposed non-experimental product or price category relates to a market test or an experimental product. For example, the Customized Delivery Request clearly stated that the proposed NSA “is modeled off the Customized Delivery market test. . . .” Customized Delivery Request at 1. Proposed § 3035.18(c)(2) would require the Postal Service to provide a similar statement in future requests.
Another issue with the Metro Post and Customized Delivery Requests was that the requests did not include all of the information necessary for the Commission to evaluate them. During a market test, the Postal Service collects
To address this issue, proposed § 3035.18(c)(3) would require a request to identify any assumptions from the market test that the request uses or is based on. Proposed § 3035.18(c)(4) would require financial models supporting the request to include all data from data collection reports or separately identify and explain any differences between the data collection reports and the data provided in the requests.
Existing § 3035.18(b) requires the request to quantify the product specific costs associated with developing the market test, which refers to the costs incurred before the market test was implemented. The Commission retains the substance of this rule, but the proposed amendments would make clarifying edits and move it to proposed § 3035.18(c)(5).
The Regulatory Flexibility Act requires federal agencies, in promulgating rules, to consider the impact of those rules on small entities.
In the context of this rulemaking, the Commission's primary responsibility is in the regulatory oversight of the United States Postal Service. The rules that are the subject of this rulemaking have a regulatory impact on the Postal Service, but do not impose any regulatory obligation upon any other entity. Based on these findings, the Chairman of the Commission certifies that the rules that are the subject of this rulemaking will not have a significant economic impact on a substantial number of small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
Interested persons are invited to provide written comments concerning the proposed amendments to the market test regulations in 39 CFR part 3035. Comments are due no later than 30 days after the date of publication of this notice in the
Pursuant to 39 U.S.C. 505, Katharine L. Primosch is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.
1. Docket No. RM2018-12 is established for the purpose of receiving comments on the proposed amendments to 39 CFR part 3035, as discussed in this order.
2. Interested persons may submit comments no later than 30 days from the date of publication of this notice in the
3. Pursuant to 39 U.S.C. 505, Katharine L. Primosch is appointed to serve as Public Representative in this proceeding.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Administrative practice and procedure, Postal Service.
For the reasons stated in the preamble, the Commission proposes to amend 39 CFR part 3035 as follows:
39 U.S.C. 503; 3641.
(d) The calculation of the $10 Million Adjusted Limitation involves the following steps. First, a simple average CPI-U index was calculated for fiscal year 2008 by summing the monthly CPI-U values from October 2007 through September 2008 and dividing the sum by 12 (Base Average). The resulting Base Average is 214.463. Then,
(e) The formula for calculating the $10 Million Adjusted Limitation is as follows: $10 Million Adjusted Limitation = $10,000,000 * (Recent Average/214.463).
(c) The calculation of the $50 Million Adjusted Limitation involves the following steps. First, a simple average CPI-U index was calculated for fiscal year 2008 by summing the monthly CPI-U values from October 2007 through September 2008 and dividing the sum by 12 (Base Average). The resulting Base Average is 214.463. Then, a second simple average CPI-U index is similarly calculated for each subsequent fiscal year by summing the 12 monthly CPI-U values for the previous fiscal year and dividing the sum by 12 (Recent Average). Finally, the annual limitation for the current fiscal year is calculated by multiplying $50,000,000 by the Recent Average divided by 214.463. The result is expressed as a number, rounded to the nearest dollar.
(d) The formula for calculating the $50 Million Adjusted Limitation is as follows: $50 Million Adjusted Limitation = $50,000,000 * (Recent Average/214.463).
(a) If the Postal Service seeks to add a non-experimental product or price category based on a former or current experimental product to the market dominant or competitive product list, the Postal Service shall file a request, pursuant to 39 U.S.C. 3642 and part 3020, subpart B of this chapter, to add a non-experimental product or price category to the applicable product list.
(b) The Postal Service shall comply with the requirements specified in paragraphs (c) through (e) of this section of this section if the proposed non-experimental product or price category:
(1) Offers the same (or similar) service as a former or current experimental product;
(2) Has the same distinct cost or market characteristic as a former or current experimental product; or
(3) Uses (or is based on) data or assumptions from a former or current market test proceeding.
(c) A request filed under this section shall:
(1) Identify the market test and docket number that the proposed non-experimental product or price category is based on;
(2) Explain the relationship between the proposed non-experimental product or price category and market test or experimental product;
(3) Identify any assumptions from the market test that the request uses or is based on;
(4) Include all data from data collection reports in the financial model, or separately identify and explain any differences between the data collection reports and the data used to support the financial model; and
(5) Quantify the product specific costs associated with the development of the market test; that is, costs incurred before the market test was implemented.
(d) If the Postal Service seeks a Commission decision by a certain date, the Postal Service shall file a request under this section at least 60 days before the requested decision date.
(e) The Postal Service shall also file a notice of its request under this section in the market test proceeding's docket. This notice shall include the applicable docket number(s) for the proceeding evaluating the request.
Notice is hereby given that the World Shipping Council (“Petitioner”) has petitioned the Commission pursuant to 46 CFR 502.92 “. . . for an exemption from the service contract filing and essential terms publication requirements set forth at 46 U.S.C. 40502(b) and (d), respectively . . .” Petitioner “. . . further petitions the Commission for the initiation of a rulemaking proceeding to amend its service contract regulations set forth at 46 CFR part 530 in a manner consistent with the requested exemption.” Petitioner alleges that “[t]he filing of service contracts and amendments, and the publication of essential terms, represent a substantial administrative and regulatory burden” to its “ocean common carrier members.”
In order for the Commission to make a thorough evaluation of the requested exemption and rulemaking presented in the Petition, pursuant to 46 CFR 502.92, interested parties are requested to submit views or arguments in reply to the Petition no later than November 19, 2018. Replies shall be sent to the Secretary by email to
Non-confidential filings may be submitted in hard copy to the Secretary at the above address or by email as a PDF attachment to
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC; New Executive Office Building, 725 17th Street NW, Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
Comments regarding these information collections are best assured of having their full effect if received by October 18, 2018. Copies of the submission(s) may be obtained by calling (202) 720-8681.
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.
Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture.
Notice of Availability of the Alabama Trustee Implementation Group Final Restoration Plan II and Environmental Assessment: Restoration of Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; Nutrient Reduction (Nonpoint Source); Sea Turtles; Marine Mammals; Birds; and Oysters and Finding of No Significant Impact.
In accordance with the Oil Pollution Act of 1990 (OPA) and the National Environmental Policy Act (NEPA), the
Monitoring and adaptive management activities to address information gaps necessary to inform future restoration are included in this Final RP II/EA. The purpose of this notice is to inform the public of the availability of the Final RP II/EA and FONSI.
• USDA—Ronald Howard,
• State of Alabama—Amy Hunter,
On April 20, 2010, the mobile offshore drilling unit Deepwater Horizon, which was being used to drill a well for British Petroleum (BP) Exploration and Production Inc. in the Macondo prospect (Mississippi Canyon 252-MC252), exploded, caught fire, and subsequently sank in the Gulf of Mexico, resulting in an unprecedented volume of oil and other discharges from the rig and from the wellhead on the seabed. The Deepwater Horizon oil spill is the largest oil spill in United States (U.S.) history, discharging millions of barrels of oil over a period of 87 days. In addition, well over one million gallons of dispersants were applied to the waters of the spill area in an attempt to disperse the spilled oil. Also, an undetermined amount of natural gas was released to the environment as a result of the spill.
The Deepwater Horizon State and Federal natural resource trustees (DWH Trustees) conducted an NRDA for the Deepwater Horizon oil spill under OPA (33 U.S.C. 2701
The DWH Trustees are:
• U.S. Department of the Interior, as represented by the National Park Service, U.S. Fish and Wildlife Service and Bureau of Land Management;
• National Oceanic and Atmospheric Administration, on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture;
• U.S. Environmental Protection Agency;
• State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• For the State of Texas, Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
Upon completion of NRDA, the DWH Trustees reached and finalized a settlement of their natural resource damage claims with BP in a Consent Decree
• U.S. Department of the Interior;
• National Oceanic and Atmospheric Administration, on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture;
• U.S. Environmental Protection Agency;
• State of Alabama Department of Conservation and Natural Resources; and
• Geological Survey of Alabama.
This restoration planning activity is proceeding in accordance with the Deepwater Horizon Oil Spill: Final Programmatic Damage Assessment and Restoration Plan and Final Programmatic Environmental Impact Statement (PDARP/PEIS). Restoration types evaluated in the Final RP II/EA include: Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; Nutrient Reduction (Nonpoint Source); Sea Turtles; Marine Mammals; Birds; and Oysters. Information on the restoration types evaluated in the Final RP II/EA, as well as the OPA criteria against which project ideas are being evaluated, can be viewed in the PDARP/PEIS (
In December 2016, as part of its restoration planning efforts, AL TIG asked the public for project ideas that could benefit Wetlands, Coastal, and Nearshore Habitats; Habitat Projects on Federally Managed Lands; Nutrient Reduction (Nonpoint Source); Sea Turtles; Marine Mammals; Birds; and/or Oysters in the Alabama Restoration Area. The project submissions received through this process, along with projects previously submitted during prior restoration planning processes, resulted in the alternatives evaluated in the Draft RP II/EA.
Notice of availability of the Draft RP II/EA was published in the
The Final RP II/EA is being released in accordance with the OPA, the NRDA regulations at 15 CFR part 990, and the NEPA (42 U.S.C. 4321
In the Final RP II/EA and FONSI, the AL TIG identified 20 preferred alternatives to be fully funded from restoration type funds, one preferred alternative to be partially funded from restoration type funds and partially funded from the AL TIG's Monitoring and Adaptive Management (MAM) allocation, and one activity to be fully funded using MAM funds. Specifically, the AL TIG selected the following projects as preferred alternatives:
Two activities are proposed for funding, in whole or in part, with AL TIG's Monitoring and Adaptive Management Allocation:
The Final RP II/EA also evaluates No Action Alternatives for each of the restoration types. AL TIG has determined that the restoration projects and monitoring and adaptive management activities proposed for funding are appropriate to partially compensate for the injuries for these restoration types described in PDARP/PEIS. In the Final RP II/EA, the Alabama TIG presents to the public its plan for providing partial compensation to the public for natural resources and ecological services injured or lost in Alabama as a result of the Deepwater Horizon Oil Spill. The projects described in the Final RP II/EA are most appropriate for addressing injuries to: Wetlands, Coastal and Nearshore Habitats; Habitat Projects on Federally Managed Lands; Nutrient Reduction (Nonpoint Source); Sea Turtles; Marine Mammals; Birds; and Oysters. The monitoring and adaptive management activities preferred for funding in the Final RP II/EA will also assist AL TIG in tracking project success and will inform and enhance future restoration planning. In accordance with NEPA, and as part of the Final RP II/EA, the Trustees issued a FONSI. The FONSI is available in Appendix J of the Final RP II/EA.
The DWH Trustees opened a publicly available Administrative Record for the NRDA for the Deepwater Horizon oil spill, including restoration planning activities, concurrently with publication of the 2011 Notice of Intent to Begin Restoration Scoping and Prepare a Gulf Spill Restoration Planning PEIS (pursuant to 15 CFR 990.45). The Administrative Record includes the relevant administrative records since its date of inception. This Administrative Record is actively maintained and available for public review. The documents included in the Administrative Record can be viewed electronically at the following location:
The authority of this action is the OPA (33 U.S.C. 2701
Rural Housing Service, USDA.
Notice; correction.
This document corrects four items in the initial Notice that published in the
This correction is effective September 18, 2018.
Dean Greenwalt,
In FR Doc. 2017-18753 of September 5, 2017 (82 FR 41914), make the following corrections:
(1) On page 41915 in the first column, second line, continues the paragraph from the previous page under item (2) of the Date section where the last sentence reads “September 28, 2018”, replace with “April 30, 2019” in its place.
(2) On page 41917 in the first column, sixth paragraph, delete last sentence “This tool is available only to project owners where all Agency mortgages on the property are maturing on or before December 31, 2023.”
(3) On page 41925 in the first, column second, paragraph replaced with the following:
“Complete project information must be submitted as soon as possible, but in no case later than April 30, 2019. MPR transfer applicants must submit a final transfer request as required by 7 CFR 3560.406 (c), no later than May 31, 2019.
(4) On page 41925 in the first column, the third paragraph, is replaced with the following:
“Any pre-applications that have not received an Agency's Conditional Commitment for MPR funding, other than MPR deferral only transfers, will be considered withdrawn on August 30, 2019. MPR deferral only transfers approved subject to the availability of MPR funding will continue to be processed subject to the respective transfer approval conditions.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Illinois Advisory Committee (Committee) will hold a meeting on Tuesday October 9, 2018, at 12:00 p.m. CDT for the purpose of discussing civil rights concerns in the state.
The meeting will be held on Tuesday October 9, 2018, at 12:00 p.m. CDT.
Melissa Wojnaroski, DFO, at
Members of the public may listen to the discussion. This meeting is available to the public through the call in information listed above. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement to the Committee as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 230 South Dearborn St., Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Minnesota Advisory Committee (Committee) to the Commission will be held at 12pm CDT Monday October 1, 2018 to discuss civil rights concerns in the State.
The meeting will be held on Monday October 1, 2018, at 12 p.m. CDT. For More Information Contact: Carolyn Allen at
This meeting is available to the public through the above toll-free call-in number. Any interested member of the
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the U.S. Commission on Civil Rights, Regional Programs Unit, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may be faxed to the Commission at (312) 353-8324, or emailed Carolyn Allen at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Bureau of the Census, Department of Commerce.
Notice of public meeting.
The Bureau of the Census (Census Bureau) gives notice of a meeting of the National Advisory Committee on Racial, Ethnic and Other Populations (NAC). The NAC addresses policy, research, and technical issues relating to all Census Bureau programs and activities. These activities include the production and dissemination of detailed demographic and economic statistics across all program areas, including the Decennial Census Program.
November 1-2, 2018. On Thursday, November 1, the meeting will begin at 8:30 a.m. and end at 5:00 p.m. On Friday, November 2, the meeting will begin at 8:30 a.m. and end at 2:00 p.m.
The meeting will be held at the U.S. Census Bureau Auditorium, 4600 Silver Hill Road, Suitland, Maryland 20746.
Tara Dunlop Jackson, Committee Liaison Officer, at
The NAC is scheduled to meet in a plenary session on November 1-2, 2018. Planned topics of discussion include the following:
The NAC was established in March 2012 and operates in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10). The NAC members are appointed by the Director of the Census Bureau and provide recommendations to the Director on statistical and data collection issues on topics such as hard-to-reach populations, race and ethnicity, language, aging populations, American Indian and Alaska Native tribal considerations, populations affected by natural disasters, new immigrant populations, highly mobile and migrant populations, complex households, rural populations, and population segments with limited access to technology. The Committee also advises on data privacy and confidentiality, among other issues.
All meetings are open to the public. A brief period will be set aside at the meeting for public comment on Friday, November 2. However, individuals with extensive questions or statements must submit them in writing to:
If you plan to attend the meeting, please register by Monday, October 23, 2018. You may access the online registration from the following link:
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should also be directed to the Committee Liaison Officer as soon as known, and preferably two weeks prior to the meeting.
Due to security protocols, for access to the meeting, please call 301-763-9906 upon arrival at the Census Bureau on the day of the meeting. A photo ID must be presented in order to receive your visitor's badge. Visitors are not allowed beyond the first floor.
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before November 19, 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 Kiesha Downs, Chief, Trade Regulations Branch, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233-6700, (301) 763-7079, by fax (301) 763-8835 or by email
The Automated Export System (AES) or successor system is the instrument used for collecting export trade information from parties exporting goods from the United States. The U.S. Census Bureau compiles data collected through the AES and these data are the basis for the official U.S. goods export trade statistics. These statistics are used to determine the balance of international trade and are also designated for use as a principal federal economic indicator. Title 13, United States Code (U.S.C.), Chapter 9, Section 301 authorizes the U.S. Census Bureau to collect, compile and publish export trade data. Title 15, Code of Federal Regulations, Part 30, contains the regulatory provisions for preparing and filing the AES record in accordance to the Foreign Trade Regulations (FTR). These data are used in the development of U.S. Government policies that affect the economy. These data also enable U.S. businesses to develop practical export marketing strategies as well as provide a means for the assessment of the impact of exports on the domestic economy. In addition to being used in the development of U.S. government economic and foreign trade policies, these data are also used for export control, to detect and prevent the export of certain items by unauthorized parties or to unauthorized destinations or end users.
The FTR was amended on April 19, 2017, through the issuance of a Final Rule, “Clarification on Filing Requirements,” to make changes related to the implementation of the International Trade Data System (ITDS), in accordance with the Executive Order 13659, Streamlining the Export/Import Process for American Businesses. The ITDS was established by the Security and Accountability for Every (SAFE) Port Act of 2006. The ITDS is an electronic information exchange capability, or “single window,” through which businesses transmit the data required by participating agencies for the importation or exportation of cargo. This rule added the original Internal Transaction Number (ITN) data element in the AES. The Original ITN field is an optional field that may be utilized if the filer has to create an additional AES record for a shipment that was previously filed. The Original ITN field assists the export trade community and enforcement agencies in identifying that a filer completed the mandatory filing requirements for the original shipment. In doing so, this may decrease the issuance of unnecessary penalties for these types of shipments. Overall, these changes did not impact the reporting burden of the export trade community.
The FTR was also amended on April 24, 2018, through the issuance of a Final Rule, “Clarification on the Collection and Confidentiality of Kimberley Process Certificates,” to clarify that the data collected from the Kimberley Process Certificates (KPCs) are collected in compliance with the Clean Diamond Trade Act. In addition, this Rule clarified the submission requirements and permissible uses of the KPCs. However, these changes did not impact the reporting burden of the export trade community.
Currently, the Census Bureau is drafting a Notice of Proposed Rulemaking (NPRM) to clarify the responsibilities of parties participating in routed and standard export transactions. This rule also proposes to revise and add several key terms used in the regulatory provision of these transactions, including authorized agent, forwarding agent, standard export transaction and written release. While revisions to the FTR are necessary to improve clarity to the filing requirements for the routed export transaction, it is critical for the Census Bureau to ensure that any revisions made to the FTR will allow for the continued collection and compilation of accurate trade statistics. Additionally, it is important that the responsibilities of the U.S. Principal Party in Interest (USPPI) and the U.S. authorized agent are clearly defined to ensure that the Electronic Export Information is filed by the appropriate party to prevent receiving duplicate filings or in some cases, no filings. The changes proposed in the NPRM will not have an impact on the reporting burden of the export trade community.
Except as noted in Title 15 CFR, Part 30, Section 30.2(a)(1)(iv), an electronic AES record is required for all export shipments valued more than $2,500 per Schedule B number from the United States, including Foreign Trade Zones located therein, Puerto Rico, and the U.S. Virgin Islands to foreign countries; for exports between the United States and Puerto Rico; and for exports to the U.S. Virgin Islands from the United States or Puerto Rico. Additionally, an AES record is required for the export of rough diamonds, used self-propelled vehicles and all exports requiring an export license from any other government agency or license exemption from the Department of State, regardless of value. An AES record is also required for exports with certain license exceptions from the Bureau of Industry and Security. The AES program is unique among Census Bureau statistical collections since it is not sent to respondents to solicit responses, as is the case with surveys. Filing export information via the AES is a mandatory process under Title 13 U.S.C., Chapter 9, Section 301. The export trade community can access the AES via a free internet-based system, AES
For exports to Canada, a Memorandum of Understanding (MOU) signed by CBP, Canada Border Services Agency, Statistics Canada, and the U.S. Census Bureau enables the United States to substitute Canadian import statistics for U.S. export statistics. Similarly, in accordance with the MOU, Canada substitutes U.S. import statistics for Canadian exports to the United States. This exchange of data eliminates the requirement for the export trade community to file the Electronic Export
In most instances, the USPPI or authorized agent must file EEI via the AES and annotate the commercial loading documents with the proof of filing citation prior to the export of a shipment. In instances where the AES filing is not required, the proper exemption or exclusion legend must be noted on the commercial loading documents per Section 30.7 of the FTR.
CBP is currently conducting pilots to test the functionality regarding the filing of export manifests for air, rail, and ocean cargo to the ACE. These pilots will further the ITDS initiatives set forth in the SAFE Port Act of 2006 and Executive Order 13659. It is CBP's intent to move export manifesting from the current paper-based system to an electronic system over the next several years. FTR Sections 30.7 and 30.45, require evidence of the proof of filing, post departure filing citation, AES downtime citation, exemption or exclusion legend on the bill of lading, air waybill, or other commercial loading documents. These annotations also appear in the electronic manifest submitted to CBP. Since filers use many variations to annotate commercial loading documents, the Census Bureau, CBP, and the trade community developed guidance to ensure that a standard format is reported in the electronic manifest. This information was published in FTR Letter #10 titled
The AES enables the U.S. government to significantly improve the quality, timeliness, and coverage of export statistics. Since July 1995, the Census Bureau and the CBP have utilized the AES to improve the reporting of export trade information, customer service, increase compliance with and enforcement of export laws, and to provide paperless reports of export information. The AES also enables the U.S. government to increase its ability to prevent the export of certain items by unauthorized parties to unauthorized destinations and end users through electronic filing.
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 Office of Management and Budget approval of this information collection; they also will become a matter of public record.
On May 11, 2018, Deere-Hitachi Construction Machinery Corp. submitted a notification of proposed production activity to the FTZ Board for its facility within FTZ 230—Sites 30 and 32 in Kernersville, North Carolina.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
On May 14, 2018, Lilly del Caribe submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 7K, in Carolina, Puerto Rico.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
The Port of Freeport, grantee of FTZ 149, submitted a notification of proposed production activity to the FTZ Board on behalf of DSM Nutritional Products, LLC (DSM) (formerly Hoffmann-La Roche Inc.), located in Freeport, Texas. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 11, 2018.
DSM already has authority to produce beta carotene crystalline, C-25 aldehyde and vinyl salt within Subzone 149B. The current request would add a finished product (vinylol-pure and crude) to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific finished product described in the submitted notification and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt DSM from customs duty payments on the foreign-status materials/components in the existing scope of authority used in export production of vinylol-pure and crude. On its domestic sales, for the foreign-status materials/components in the existing scope of authority (duty rates, 3.7% or 5.5%), DSM would be able to choose the duty rate during customs entry procedures that applies to vinylol-pure and crude (duty rate 5.5%). DSM 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.
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 29, 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 Diane Finver at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments and correction.
NMFS reviewed the Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports (SARs) in accordance with the Marine Mammal Protection Act. SARs for marine mammals in the Alaska, Atlantic, and Pacific regions were revised according to new information. NMFS solicits public comments on the draft 2018 SARs. NMFS also announces the availability of revised Atlantic Regional 2016 and 2017 SARs that include technical corrections.
Comments must be received by December 17, 2018.
The 2018 draft SARs are available in electronic form via the internet at
Copies of the Alaska Regional SARs may be requested from Marcia Muto, Alaska Fisheries Science Center, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-6349.
Copies of the Atlantic, Gulf of Mexico, and Caribbean Regional SARs may be requested from Elizabeth Josephson, Northeast Fisheries Science Center, 166 Water St., Woods Hole, MA 02543.
Copies of the Pacific Regional SARs may be requested from Jim Carretta, Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, La Jolla, CA 92037-1508.
You may submit comments, identified by NOAA-NMFS-2018-0086, by either of the following methods:
Lisa Lierheimer, Office of Protected Resources, 301-427-8402,
Section 117 of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361
The MMPA requires NMFS and FWS to review the SARs at least annually for
Prior to public review, the updated SARs under NMFS' jurisdiction are peer-reviewed within NMFS Fisheries Science Centers and by members of three regional independent Scientific Review Groups, which were established under the MMPA to independently advise NMFS on information and uncertainties related to the status of marine mammals.
The period covered by the 2018 draft SARs is 2012-2016. NMFS reviewed the status of marine mammal stocks as required and revised a total of 47 reports representing 76 stocks in the Alaska, Atlantic, and Pacific regions to incorporate new information. The 2018 revisions consist primarily of updated or revised M/SI estimates and updated abundance estimates. One stock (Alaska bearded seal) changed in status from non-strategic to strategic, and three stocks (Gulf of Maine humpback whale, and Western North Atlantic short-finned and long-finned pilot whales) changed in status from strategic to non-strategic. Substantive revisions to the SARs are discussed below. NMFS solicits public comments on the draft 2018 SARs.
In 2018, NMFS reviewed all 45 stocks in the Alaska region, and revised SARs under NMFS jurisdiction for 18 stocks (14 strategic and 4 non-strategic). The Alaska bearded seal stock changed from “non-strategic” to “strategic” status because the stock is now considered depleted under the MMPA (see below). A list of the 18 reports revised in 2018 for stocks in the Alaska region is presented in Table 1. Information on the remaining Alaska region stocks can be found in the final 2017 reports (Muto
Revisions to the Alaska SARs included updates of abundance and/or M/SI estimates, including revised abundance estimates for Western U.S. Steller sea lion; Eastern Pacific northern fur seal; and Cook Inlet beluga whale.
In 2012, NMFS listed the Beringia distinct population segment of bearded seal, and thus the Alaska stock of bearded seal, as threatened under the ESA (77 FR 76740, December 28, 2012). The primary concern for this population is the ongoing and projected loss of sea-ice cover stemming from climate change, which is expected to pose a significant threat to the persistence of these seals in the foreseeable future. In 2014, the U.S. District Court for the District of Alaska issued a decision vacating NMFS' listing in a lawsuit that challenged listing bearded seals under the ESA (
In 2018, NMFS reviewed all 117 stocks in the Atlantic region (including the Atlantic Ocean, Gulf of Mexico, and U.S. territories in the Caribbean) under NMFS jurisdiction. This year, NMFS revised 16 reports and created 2 new common bottlenose dolphin reports (West Bay and Terrebonne Bay/Timbalier Bay). These updated reports represent 42 stocks (26 strategic and 16 non-strategic). The Gulf of Maine humpback whale stock and Western North Atlantic (WNA) long-finned and short-finned pilot whale stocks changed from “strategic” to “non-strategic” status because the mean annual human-caused M/SI is below PBR (see below). A list of the 42 stocks in the Atlantic region (contained in 18 reports), is presented in Table 2. Information on the remaining Atlantic region stocks can be found in the final 2017 reports (Hayes
Revisions to the Atlantic SARs included updates of abundance and/or M/SI estimates. New abundance estimates are available for the North Atlantic right whale, Gulf of Maine humpback whale, WNA short-finned pilot whale, WNA rough-toothed dolphin, and the West Bay and Terrebonne Bay/Timbalier Bay common bottlenose dolphin stocks.
Although PBR analyses in this 2018 SAR reflect data collected through 2016, it should be noted that an additional 17 North Atlantic right whale mortalities were observed in 2017 (Daoust et al. 2017). This number exceeds the largest estimated mortality rate during the past 25 years. Further, despite the usual extensive survey effort, only 5 and 0 new calves were detected in 2017 and 2018, respectively. Therefore, the decline in the right whale population is expected to continue for at least an additional 2 years. The minimum population size for the Western Atlantic stock of the North Atlantic right whale is 445 and PBR is 0.9.
The updated abundance estimate for the Gulf of Maine humpback whale stock is 896, based on a recent count of the minimum number alive (MNA). The 2015 humpback whale MNA was produced by counting the number of unique individuals seen in 2015 in the Gulf of Maine stock area as well as seen both before and after 2015. The 2015 humpback whale MNA includes not only cataloged whales but some calves born in 2015 but not yet identifiable. MNA is a rigorous accounting of individuals and has no associated coefficient of variation (CV). It is both more recent and larger than the previous 2011 line transect estimate of 335 and has zero probability of overestimating abundance. Although the abundance appears to increase from 2017 to 2018, these estimates should not be compared as they were derived using different methodologies and data sets. As a result of the higher abundance estimate, the PBR for the Gulf of Maine humpback whale stock increased from 3.7 to 14.6 whales. Based on a recovery factor of 0.5, the estimate of human-caused M/SI is now below PBR; thus, the stock has changed from “strategic” to “non-strategic.”
The PBR for the western North Atlantic long-finned pilot whale is 35 and the estimate of total annual observed average fishery-related of human-caused M/SI is 27. In bottom trawls and mid-water trawls and in the gillnet fisheries, mortalities were more generally observed north of 40° N latitude and in areas expected to have only long-finned pilot whales. Takes in these fisheries were therefore attributed to the long-finned pilot whales. Takes in the pelagic longline fishery were partitioned according to a logistic regression model (Garrison and Rosel 2017). Because the M/SI does not exceed PBR, the stock has changed from “strategic” to “non-strategic.”
The best available abundance estimate for short-finned pilot whales, based on shipboard surveys conducted during the summer of 2016 in the western North Atlantic, is 28,924. These most recent surveys covered the full range of short-finned pilot whales in U.S. Atlantic waters. Because long-finned and short-finned pilot whales are difficult to distinguish at sea, sightings data are reported as Globicephala sp. These survey data have been combined with an analysis of the spatial distribution of the two pilot whale species based on genetic analyses of biopsy samples to derive separate abundance estimates for each species. Due to changes in survey methodology, previous abundance
NMFS is in the process of writing individual stock assessment reports for each of the 31 bay, sound, and estuary stocks of common bottlenose dolphins in the northern Gulf of Mexico. Two new individual reports, for the West Bay and Terrebonne-Timbalier Bay Estuarine System stocks, were completed for the draft 2018 SARs. Therefore, the reader will not see tracked changes in the draft 2018 reports for these stocks. To date, six bottlenose dolphin stocks have individual reports completed (West Bay, Terrebonne-Timbalier Bay Estuarine System, Barataria Bay Estuarine System, Mississippi Sound/Lake Borgne/Bay Boudreau, Choctawhatchee Bay, and St. Joseph Bay), and the remaining 25 stocks are included in the Northern Gulf of Mexico Bay, Sound, and Estuary Stocks report.
In 2018, NMFS reviewed all 87 stocks in the Pacific region (waters along the west coast of the United States, within waters surrounding the main and Northwestern Hawaiian Islands, and within waters surrounding U.S. territories in the Western Pacific), and revised SARs for 16 stocks (7 strategic and 9 non-strategic). A list of the reports revised in 2018, representing 16 stocks in the Pacific region, is presented in Table 3. Information on the remaining Pacific region stocks can be found in the final 2017 reports (Carretta et al., 2018).
New abundance estimates are available for 8 stocks: California sea lions, Hawaiian monk seals, Eastern North Pacific Offshore killer whales, Southern Resident killer whales, Eastern North Pacific gray whales, Western North Pacific gray whales, California/Oregon/Washington humpback whales, and Hawaii Island spinner dolphins.
New information on serious injury and mortality resulting from estimated vessel strikes based on an analysis by Rockwood
Unidentified whales represent approximately 15 percent of entanglement cases along the U.S. West Coast. In previous stock assessments, unidentified entanglements were not assigned to stock. For large whale stocks, including gray, humpback, blue, and fin whales, a new methodology based on an assignment model generated from historic known-species entanglements in the region was used to assign previous cases of unidentified whale entanglements to species (Carretta 2018). This has eliminated a negative bias in assessments that occurs when unidentified whale entanglements are not assigned to any species/stock. In the case of CA/OR/WA humpback whales, observed levels of entanglements and vessel strikes combined exceed PBR.
The 2018 SAR for California sea lions uses a different methodology for estimating Nmin. The updated minimum population size of the U.S. stock is 233,515 (153,337 in 2014 SAR). This resulted in an increase in PBR from 9,200 (in 2014) to 14,011. The updated best abundance estimate available for California sea lions, based on a 1975-2014 time series of pup counts, combined with mark-recapture estimates of survival rates, is 257,606 sea lions (Laake
The previous approach to calculate Nmin used two times the annual pup
Subsequent to announcing the availability of the final 2016 (82 FR 29039, June 27, 2017) and 2017 (83 FR 32093, July 11, 2018) SARs, we were made aware that the SARs contained some technical errors. In the 2016 North Atlantic right whale SAR, the PBR was listed incorrectly as 1. The correct PBR value for 2016 is 0.9. Similarly, in the 2017 North Atlantic right whale SAR, PBR was listed as 1.4, but the correct value is 0.9. In addition, the 2017 SAR for the WNA Central Florida Coastal Stock of common bottlenose dolphins contained a technical error. In the “Population Size” section, the name of the stock was incorrectly listed as the “Northern” Florida Coastal Stock instead of the “Central” Florida Coastal Stock. We have corrected the errors and posted revised versions of the 2016 and 2017 North Atlantic right whale SARs and 2017 WNA Central Florida Coastal Stock common bottlenose dolphin SAR on the NMFS website (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of Letter of Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that a Letter of Authorization (LOA) has been issued to the NMFS Northwest Fisheries Science Center (NWFSC) for the take of marine mammals incidental to fisheries research conducted in the Pacific Ocean, including Puget Sound and the Columbia River.
The authorization is effective from August 27, 2018, through August 28, 2023.
The LOA and supporting documentation is available online:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371(a)(5)(A) and (D)) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i)
On August 10, 2015, we received an adequate and complete request from NWFSC for authorization to take marine mammals incidental to fisheries research activities. On June 13, 2016 (81 FR 38516), we published a notice of proposed rulemaking in the
NWFSC conducts fisheries research using trawl gear used at various levels in the water column, longlines with multiple hooks, seine nets, and other gear. If a marine mammal interacts with gear deployed by NWFSC, the outcome could potentially be Level A harassment, serious injury (
We have issued an LOA to NWFSC authorizing the take of marine mammals incidental to fishery research activities, as described above. Take of marine mammals will be minimized through implementation of the following mitigation measures: (1) Implementation of a “move-on” rule in certain circumstances that is expected to reduce the potential for physical interaction with marine mammals; (2) use of a marine mammal excluder device in certain trawl nets; and (3) use of acoustic deterrent devices on certain trawl nets. Additionally, the rule includes an adaptive management component that allows for timely modification of mitigation or monitoring measures based on new information, when appropriate. The NWFSC will submit reports as required.
Based on these findings and the information discussed in the preamble to the final rule, the activities described under these LOAs will have a negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses.
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.
Amendment 82 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) established a framework for the management of the Aleutian Islands subarea (AI) directed pollock fishery. An AI pollock fishery was allocated to the Aleut Corporation, Adak, Alaska, for the purpose of economic development in Adak, Alaska. The Aleut Corporation is identified in Public Law 108-199 as a business incorporated pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601
Each year at least 14 days before harvesting pollock or processing pollock in the AI directed pollock fishery, the Aleut Corporation selects harvesting vessels and processors for participation in this fishery. The Aleut Corporation submits its selected participants to the National Marine Fisheries Service (NMFS) for approval. On approval, NMFS mails the Aleut Corporation a letter that includes a list of the approved participants. A copy of this letter must be retained on board each participating vessel and on site each shoreside processor at all times.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before November 19, 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 should be directed to Patmarie Nedelka, (301) 713-3155 ext. 127 or
This request is for extension of a currently approved information collection. NOAA has, or is given, authority under the Coastal Zone Management Act (CZMA), annual appropriations or other authorities, to issue funds to coastal states, localities or other recipients for planning, conservation, acquisition, protection, restoration, or construction projects. The required information enables NOAA to implement the CELCP, under its current or future authorization, and facilitate the review of similar projects under different, but related, authorities.
This includes projects funded through:
• The Coastal and Estuarine Land Conservation Program (CZMA Section 307A) to protect important coastal and estuarine areas that have significant conservation, recreation, ecological, historical, or aesthetic values, or that are threatened by conversion, and procedures for eligible applicants who choose to participate in the program to use when developing state conservation plans, proposing or soliciting projects under this program, applying for funds, and carrying out projects under this program in a manner that is consistent with the purposes of the program pursuant to program guidelines which can be found on NOAA's website at:
• The National Estuarine Research Reserve System (CZMA Section 315) Land Acquisition and Construction program.
• The Coastal Zone Management Program's low-cost acquisition and construction program (CZMA Section 306A), or the
• Fish and Wildlife Coordination Act.
Electronic formats are the preferred method for submitting CELCP plans, project applications, performance reports and other required materials. However, respondents may submit materials in electronic or paper formats. Project applications are normally submitted electronically via
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.
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).
The Marine Mammal Protection Act requires any commercial fisherman operating in Category I and II fisheries to register for a certificate of authorization that will allow the fisherman to take marine mammals incidental to commercial fishing operations. Category I and II fisheries are those identified by NOAA as having either frequent or occasional takings of marine mammals. All states have integrated the National Marine Fisheries Service (NMFS) registration process into the existing state fishery registration process and vessel owners do not need to file a separate federal registration. If applicable, vessel owners will be notified of this simplified registration process when they apply for their state or Federal permit or license.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before November 19, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Walter Ikehara, NMFS Pacific Islands Regional Office, (808) 725-5175, or
This request is for extension of a current information collection.
The Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP) contains a process under the authority of the Magnuson-Stevens Fishery Conservation and Management Act to specify catch and/or fishing effort limits for management unit species caught by pelagic fisheries in the U.S. participating territories. The process allows NMFS to authorize the government of each U.S. participating territory to allocate a portion of its catch or fishing effort limit to a U.S. fishing vessel permitted under the FEP through specified fishing agreements. These agreements support fisheries development in the U.S. participating territories (see 50 CFR 665.819).
A specified fishing agreement provides access to an identified portion of a catch or fishing effort limit and may not exceed the amount specified for the territory and made available for allocation. The identified portion of a catch or fishing effort limit in an agreement must account for recent and anticipated harvest on the stock or stock complex or fishing effort, and any other valid agreements with the territory during the same year not to exceed the territory's catch or fishing effort limit or allocation limit. Each participating territory may submit a complete specified fishing agreement for review and approval by the Western Pacific Fishery Management Council and NMFS. The agreement must (a) identify the vessels and document that each fishing vessel has a valid permit issued under 50 CFR 665.801, (b) identify the limit on catch of western Pacific pelagic management unit species, if applicable, (c) identify the limit on fishing effort, if applicable, (d) be signed by an authorized official of the participating territory or designated representative, and (e) be signed by each vessel owner or designated representative.
There is no form for an agreement. Agreements may be submitted by mail or fax.
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.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled AmeriCorps Child Care Benefit Forms for review and approval in accordance with the Paperwork Reduction Act.
Comments may be submitted, identified by the title of the information collection activity, by October 18, 2018.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Courtney Russell, at 202-606-6723 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Council of the Inspectors General on Integrity and Efficiency.
Notice.
This notice sets forth the names and titles of the current membership of the Council of the Inspectors General on Integrity and Efficiency (CIGIE) Performance Review Board as of October 1, 2018.
This list is current as of October 1, 2018.
Individual Offices of Inspectors General at the telephone numbers listed below.
The Inspector General Act of 1978, as amended, created the Offices of Inspectors General as independent and objective units to conduct and supervise audits and investigations relating to Federal programs and operations. The Inspector General Reform Act of 2008, established the Council of the Inspectors General on Integrity and Efficiency (CIGIE) to address integrity, economy, and effectiveness issues that transcend individual Government agencies; and increase the professionalism and effectiveness of personnel by developing policies, standards, and approaches to aid in the establishment of a well-trained and highly skilled workforce in the Offices of Inspectors General. The CIGIE is an interagency council whose executive chair is the Deputy Director for Management, Office of Management and Budget, and is comprised principally of the 73 Inspectors General (IGs).
Under 5 U.S.C. 4314(c)(1)-(5), and in accordance with regulations prescribed by the Office of Personnel Management, each agency is required to establish one or more Senior Executive Service (SES) performance review boards. The purpose of these boards is to review and evaluate the initial appraisal of a senior executive's performance by the supervisor, along with any recommendations to the appointing authority relative to the performance of the senior executive. The current members of the Council of the Inspectors General on Integrity and Efficiency Performance Review Board, as of October 1, 2018, are as follows:
Daniel Altman—Assistant Inspector General for Investigations.
Thomas Yatsco—Assistant Inspector General for Audit.
Jason Carroll—Assistant Inspector General for Management.
Nicole Angarella—General Counsel to the Inspector General.
Alvin A. Brown—Deputy Assistant Inspector General for Audit.
Christy A. Slamowitz—Counsel to the Inspector General.
Gilroy Harden—Assistant Inspector General for Audit.
Steven H. Rickrode, Jr.—Deputy Assistant Inspector General for Audit.
Yarisis Rivera Rojas—Deputy Assistant Inspector General for Audit.
Ann M. Coffey—Assistant Inspector General for Investigations.
Peter P. Paradis, Sr.—Deputy Assistant Inspector General for Investigations.
Virginia E. B. Rone—Assistant Inspector General for Data Sciences.
Robert J. Huttenlocker—Assistant Inspector General for Management.
Allen Crawley—Deputy Inspector General.
E. Wade Green—Counsel to the Inspector General.
Richard Bachman—Assistant Inspector General for Audits.
Carol Rice—Assistant Inspector General for Audits.
Mark Zabarsky—Principal Assistant Inspector General.
Daniel R. Blair—Deputy Chief of Staff.
Michael S. Child, Sr.—Deputy Inspector General for Overseas Contingency Operations.
Carol N. Gorman—Assistant Inspector General for Readiness and Cyber Operations.
Carolyn R. Hantz—Assistant Inspector General for Audit Policy and Oversight.
Glenn A. Fine—Principal Deputy Inspector General.
Janice M. Flores—Assistant Inspector General for Investigations, Internal Operations.
Marguerite C. Garrison—Deputy Inspector General for Administrative Investigations.
Theresa S. Hull—Assistant Inspector General for Acquisition and Sustainment Management.
Kelly P. Mayo—Assistant Inspector General for Investigations.
Troy M. Meyer—Principal Assistant Inspector General for Audit.
Kenneth P. Moorefield—Deputy Inspector General for Special Plans and Operations.
Dermot F. O'Reilly—Deputy Inspector General for Investigations.
Michael J. Roark—Assistant Inspector General for Contract Management and Payment.
Steven A. Stebbins—Chief of Staff.
Randolph R. Stone—Deputy Inspector General for Policy and Oversight.
Lorin T. Venable—Assistant Inspector General for Financial Management and Reporting.
Jacqueline L. Wicecarver—Deputy Inspector General for Audit.
David Morris—Assistant Inspector General for Management Services.
Bryon Gordon—Assistant Inspector General for Audit.
Aaron Jordan—Assistant Inspector General for Investigations.
Mark Smith—Deputy Assistant Inspector General for Investigations.
April Stephenson—Principal Deputy Inspector General.
Virginia Grebasch—Counsel to the Inspector General.
Michelle Anderson—Deputy Inspector General for Audits and Inspections.
John Dupuy—Deputy Inspector General for Investigations.
Dustin Wright—Assistant Inspector General for Investigations.
Sarah Nelson—Assistant Inspector General for Audits and Administration.
Jennifer Quinones—Assistant Inspector General for Audits and Inspections—Eastern.
Bruce Miller—Assistant Inspector General for Audits and Inspections—Western.
Jack Rouch—Deputy Assistant Inspector General for Audits.
Debra Solmonson—Deputy Assistant Inspector General for Audits and Inspections.
John McCoy II—Deputy Assistant Inspector General for Audits.
Charles Sheehan—Deputy Inspector General.
Alan Larsen—Counsel to the Inspector General and Assistant Inspector General for Congressional and Public Affairs.
Kevin Christensen—Assistant Inspector General for Audits and Evaluation.
Edward Shields—Assistant Inspector General for Management.
Dana Rooney—Inspector General.
Jon Hatfield—Inspector General.
Andrew Katsaros—Acting Inspector General.
Robert C. Erickson—Deputy Inspector General.
Larry L. Gregg—Associate Inspector General.
Edward Martin—Counsel to the Inspector General.
R. Nicholas Goco—Assistant Inspector General for Audits.
Barbara Bouldin—Deputy Assistant Inspector General for Acquisition Program Audits.
Brian Gibson—Deputy Assistant Inspector General for Real Property Audits.
James E. Adams—Assistant Inspector General for Investigations.
Patricia D. Sheehan—Assistant Inspector General for Inspections.
Joanne Chiedi—Principal Deputy Inspector General.
Christi Grimm—Chief of Staff.
Robert Owens, Jr.—Deputy Inspector General for Management and Policy.
Caryl Brzymialkiewicz—Assistant Inspector General/Chief Data Officer.
Chris Chilbert—Assistant Inspector General/Chief Information Officer.
Gary Cantrell—Deputy Inspector General for Investigations.
Les Hollie—Assistant Inspector General for Investigations.
Thomas O'Donnell—Assistant Inspector General for Investigations.
Suzanne Murrin—Deputy Inspector General for Evaluation and Inspections.
Erin Bliss—Assistant Inspector General for Evaluation and Inspections.
Ann Maxwell—Assistant Inspector General for Evaluation and Inspections.
Gregory Demske—Chief Counsel to the Inspector General.
Robert DeConti—Assistant Inspector General for Legal Affairs.
Lisa Re—Assistant Inspector General for Legal Affairs.
Gloria Jarmon—Deputy Inspector General for Audit Services.
Amy Frontz—Assistant Inspector General for Audit Services.
Carrie Hug—Assistant Inspector General for Audit Services.
Brian Ritchie—Assistant Inspector General for Audit Services.
John Kelly—Acting Inspector General/Deputy Inspector General.
Jennifer Costello—Chief Operating Officer/Acting Assistant Inspector General for Inspections and Evaluations.
Diana Shaw—Assistant Inspector General for Legal Affairs.
Donald Bumgardner—Deputy Assistant Inspector General for Audits.
Maureen Duddy—Deputy Assistant Inspector General for Audits.
Erica Paulson—Assistant Inspector General for External Affairs.
Sondra McCauley—Assistant Inspector General for Information Technology Audits/Acting Assistant Inspector General for Audits.
Michele Kennedy—Assistant Inspector General for Investigations.
Dennis McGunagle—Deputy Assistant Inspector General for Investigations.
Thomas Salmon—Assistant Inspector General for Integrity and Quality Oversight.
Louise M. McGlathery—Assistant Inspector General for Management.
Nicholas Padilla—Assistant Inspector General for Investigation.
Robert Kwalwasser—Deputy Assistant Inspector General for Investigation.
Frank Rokosz—Deputy Assistant Inspector General for Audit.
John Buck—Deputy Assistant Inspector General for Audit.
Kimberly Randall—Deputy Assistant Inspector General for Audit.
Laura Farrior—Deputy Assistant Inspector General for Management.
Christopher Webber—Deputy Assistant Inspector General for Information Technology.
Jeremy Kirkland—Counsel to the Inspector General.
Brian Pattison—Assistant Inspector General for Evaluation.
Mary Kendall—Deputy Inspector General (Acting).
Steve Hardgrove—Chief of Staff.
Kimberly McGovern—Assistant Inspector General for Audits, Inspections and Evaluations.
Matthew Elliott—Assistant Inspector General for Investigations.
Bruce Delaplaine—General Counsel.
Roderick Anderson—Assistant Inspector General for Management.
William M. Blier—Deputy Inspector General.
Michael Sean O'Neill—Assistant Inspector General for Oversight and Review.
Jason R. Malmstrom—Assistant Inspector General for Audit.
Mark L. Hayes—Deputy Assistant Inspector General for Audit.
Eric A. Johnson—Assistant Inspector General for Investigations.
Margaret Elise Chawaga—Deputy Assistant Inspector General for Investigations.
Nina S. Pelletier—Assistant Inspector General for Evaluation and Inspections.
Gregory T. Peters—Assistant Inspector General for Management and Planning.
Cynthia Lowell—Deputy Assistant Inspector for Management and Planning.
Larry D. Turner—Deputy Inspector General.
Dee Thompson—Counsel to the Inspector General.
Elliot P. Lewis—Assistant Inspector General for Audit.
Debra D. Pettitt—Deputy Assistant Inspector General for Audit.
Laura B. Nicolosi—Deputy Assistant Inspector General for Audit.
Cheryl Garcia—Assistant Inspector General for Investigations—Labor Racketeering and Fraud.
Leia Burks—Deputy Assistant Inspector General for Investigations—Labor Racketeering and Fraud.
Thomas D. Williams—Assistant Inspector General for Management and Policy.
Charles Sabatos—Deputy Assistant Inspector General for Management and Policy.
Luiz A. Santos—Assistant Inspector General for Congressional and Public Relations.
Jessica Southwell—Chief Performance and Risk Management Officer.
George A. Scott—Deputy Inspector General.
Frank LaRocca—Counsel to the Inspector General.
James R. Ives—Assistant Inspector General for Investigations.
James L. Morrison—Assistant Inspector General for Audits.
Ross W. Weiland—Assistant Inspector General for Management Planning.
Jewel Butler—Assistant Inspector General for Audit.
Jason Metrick—Assistant Inspector General for Investigations.
David P. Berry—Inspector General.
Megan Wallace—Assistant Inspector General for Investigations.
Mark Bell—Assistant Inspector General for Audits.
Alan Boehm—Assistant Inspector General for Management.
Ken Chason—Counsel to the Inspector General.
David C. Lee—Deputy Inspector General.
Rocco J. Pierri—Assistant Inspector General for Investigations.
Brett M. Baker—Assistant Inspector General for Audits.
Norbert E. Vint—Deputy Inspector General/Acting Inspector General.
Michael R. Esser—Assistant Inspector General for Audits.
Melissa D. Brown—Deputy Assistant Inspector General for Audits.
Lewis F. Parker, Jr.—Deputy Assistant Inspector General for Audits.
Drew M. Grimm—Assistant Inspector General for Investigations.
Thomas W. South—Deputy Assistant Inspector General for Investigations.
James L. Ropelewski—Assistant Inspector General for Management.
Nicholas E. Hoyle—Deputy Assistant Inspector General for Management.
Gopala Seelamneni—Chief Information Technology Officer.
Kathy Buller—Inspector General (Foreign Service).
Joaquin Ferrao—Deputy Inspector General and Legal Counsel (Foreign Service).
Elizabeth Martin—General Counsel.
Gladis Griffith—Deputy General Counsel.
Mark Duda—Assistant Inspector General for Audits.
Patricia A. Marshall—Counsel to the Inspector General.
Heather Dunahoo—Assistant Inspector General for Audit.
Louis Rossignuolo—Assistant Inspector General for Investigations.
Mark P. Hines—Assistant Inspector General for Investigations.
Andrea Deadwyler—Assistant Inspector General for Audits.
Gale Stallworth Stone—Deputy Inspector General/Acting Inspector General.
Steven L. Schaeffer—Chief of Staff.
Rona Lawson—Assistant Inspector General for Audit.
Kimberly Byrd—Deputy Assistant Inspector General for Audit.
Joseph Gangloff—Chief Counsel to the Inspector General.
Michael Robinson—Senior Advisor to the Inspector General for Law Enforcement.
Jennifer Walker—Deputy Assistant Inspector General for Investigations/Acting Assistant Inspector General for Investigations.
Joscelyn Funnié—Deputy Assistant Inspector General for Communications and Resource Management/Acting Assistant Inspector General for Communications and Resource Management.
Christopher Bosland—Deputy Chief of Staff.
Emilia DiSanto—Deputy Inspector General.
Michael H. Mobbs—General Counsel.
Norman P. Brown—Assistant Inspector General for Audits.
Sandra J. Lewis—Assistant Inspector General for Inspections.
Michael T. Ryan—Assistant Inspector General for Investigations.
Cathy D. Alix—Assistant Inspector General for Management.
Karen J. Ouzts—Assistant Inspector General for Enterprise Risk Management.
Kevin S. Donohue—Deputy General Counsel.
Gayle L. Voshell—Deputy Assistant Inspector General for Audits.
Tinh T. Nguyen—Deputy Assistant Inspector General for Audits, Middle East Region Operations.
Lisa R. Rodely—Deputy Assistant Inspector General for Inspections.
Jeffrey D. Johnson—Deputy Assistant Inspector General for Inspections.
Brian Grossman—Deputy Assistant Inspector General for Investigations.
Donna J. Butler— Deputy Assistant Inspector General for Management.
Mitchell L. Behm—Deputy Inspector General.
Brian A. Dettelbach—Assistant Inspector General for Legal, Legislative, and External Affairs.
Dr. Eileen Ennis—Assistant Inspector General for Administration and Management.
Michelle T. McVicker—Principal Assistant Inspector General for Investigations.
Max Smith—Deputy Assistant Inspector General for Investigations.
Joseph W. Comé—Principal Assistant Inspector General for Auditing and Evaluation.
Charles A. Ward—Assistant Inspector General for Audit Operations and Special Reviews.
Matthew E. Hampton—Assistant Inspector General for Aviation Audits.
Barry DeWeese—Assistant Inspector General for Surface Transportation Audits.
Louis C. King—Assistant Inspector General for Financial and Information Technology Audits.
Mary Kay Langan-Feirson—Assistant Inspector General for Acquisition and Procurement Audits.
David Pouliott—Deputy Assistant Inspector General for Surface Transportation Audits.
Anthony Zakel—Deputy Assistant Inspector General for Aviation Audits.
Richard K. Delmar—Counsel to the Inspector General.
Tricia L. Hollis—Assistant Inspector General for Management.
John L. Phillips—Assistant Inspector General for Investigations.
Jerry S. Marshall—Deputy Assistant Inspector General for Investigations.
Deborah L. Harker—Assistant Inspector General for Audit.
Pauletta Battle—Deputy Assistant Inspector General for Financial Management and Transparency Audits.
Lisa A. Carter—Deputy Assistant Inspector General for Financial Sector Audits.
Donna F. Joseph—Deputy Assistant Inspector General for Cyber and Financial Assistance Audits.
Thomas Carter—Deputy Chief Counsel.
Gladys Hernandez—Chief Counsel.
James Jackson—Deputy Inspector General for Investigations.
Gregory Kutz—Acting Deputy Inspector General for Inspections and Evaluations/Assistant Inspector General for Audit (Management Services & Exempt Organizations).
Nancy LaManna—Assistant Inspector General for Audit (Management, Planning & Workforce Development).
Russell Martin—Assistant Inspector General for Audit (Returns Processing & Account Services).
Michael McKenney—Deputy Inspector General for Audit.
Randy Silvis—Assistant Inspector General for Investigations (Field Divisions).
George Jakabcin—Chief Information Officer.
Danny Verneuille—Assistant Inspector General for Audit (Security and Information Technology Services).
Matthew Weir—Assistant Inspector General for Audit (Compliance and Enforcement Operations).
Roy Fredrikson—Deputy Counselor to the Inspector General.
Brent Arronte—Deputy Assistant Inspector General for Audits and Evaluations.
John D. Daigh—Assistant Inspector General for Healthcare Inspections.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a new information collection.
Interested persons are invited to submit comments on or before November 19, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela, 202-245-7377 or email
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before October 18, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Energy, Office of Fossil Energy.
Notice of open meetings.
This notice announces a virtual meeting of the National Coal Council (NCC) via WebEx. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Monday, October 1, 2018 11:30 a.m.-1 p.m. (EST)
This will be virtual meeting conducted through WebEx. If you wish to join the meeting you must register by close of business (5:00 p.m. EST) on Wednesday, September 26th by using the form available at the following URL:
Joseph Giove, U.S. Department of Energy, E-136/Germantown Building, 19901 Germantown Road, Germantown, MD 20874-1290; Telephone 301-903-4130.
• Call to order by Joseph Giove, NCC Deputy Designated Federal Officer, Director Coal Business Operations, Office Fossil Energy, U.S. Department of Energy.
• NCC Report Presentation on “Advancing U.S. Coal Exports: An Assessment of Opportunities to Enhance Exports of U.S. Coal” by report co-chairs Justin Burk, Commercial Director, Peabody and David Lawson, Vice President Coal, Norfolk Southern Corporation.
• NCC Report Presentation on “Power Reset: Optimizing the Existing Coal Fleet to Ensure a Reliable & Resilient Power Grid” by Janet Gellici, CEO, National Coal Council Inc.
• Public Comment Period & Closing Remarks.
• Adjourn.
All attendees are requested to register in advance for the meeting at:
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, October 10, 2018 6:00 p.m.
Department of Energy Information Center, Office of Science and Technical Information, 1
Melyssa P. Noe, Alternate Deputy Designated Federal Officer, U.S. Department of Energy, Oak Ridge Office of Environmental Management (OREM), P.O. Box 2001, EM-942, Oak Ridge, TN 37831. Phone (865) 241-3315; Fax (865) 241-6932; Email:
Purpose of the Board: The purpose of the Board is to make recommendations to DOE-EM and site management in the areas of environmental restoration, waste management, and related activities.
Bonneville Power Administration, Department of Energy.
Notice of information collection; request for comments.
The Department of Energy (DOE), Bonneville Power Administration (BPA), invites public comment on a collection of information that BPA is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995.
Comments regarding this proposed information collection must be received on or before November 19, 2018.
Written comments may be sent to Bonneville Power Administration, Attn: Laura McCarthy, Privacy Program, CGC-7, P.O. Box 3621, Portland, OR 97208-3621, or by fax Attn: Laura McCarthy, Privacy Program, CGC-7, at (503) 230-4619, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Attn: Laura McCarthy, Privacy Program, CGC-7, P.O. Box 3621, Portland, OR 97208-3621, or by fax Attn: Laura McCarthy, Privacy Program, CGC-7 at (503) 230-4619, or by email at
Comments are invited on: (a) Whether the proposed
This information collection request contains:
(1)
E.O. 13488 (January 16, 2009); E.O. 13764, (January 17, 2017); Federal Information Processing Standard Publication 201-2 (FIPS 201-2) and Homeland Security Presidential Directive 12 (HSPD 12).
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern Time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
EPA has authorized its contractor, General Dynamics Information Technology of Fairfax, VA, to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI).
Access to the confidential data will occur no sooner than September 25, 2018.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2003-0004, is available at
Under EPA contract number HHSN316201200013W, order number EP-G16H-01256, contractor General Dynamics Information Technology of 3211 Jermantown Rd., Fairfax, VA will assist the Office of Research and Development (ORD) and the Office of Pollution Prevention and Toxics (OPPT) in support of Toxics Release Inventory updates; risk assessments for both new and existing industrial chemicals; identifying chemicals of interest in Screening Information Data Set (SIDSs); and support of assessment/prioritization efforts for existing chemicals under the Lautenberg Act and the Chemical Assessment and Management Plan (CHAMP).
In accordance with 40 CFR 2.306(j), EPA has determined that under EPA contract number HHSN316201200013W, order number EP-G16H-01256, General Dynamics Information Technology will require
EPA is issuing this notice to inform all submitters of information under all sections of TSCA that EPA may provide General Dynamics Information Technology access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this contract will take place at EPA Headquarters and ORD's site located in Duluth, MN, in accordance with EPA's
Access to TSCA data, including CBI, will continue until January 31, 2023. If the contract is extended, this access will also continue for the duration of the extended contract without further notice.
General Dynamics Information Technology personnel will be required to sign nondisclosure agreements and will be briefed on appropriate security procedures before they are permitted access to TSCA CBI.
15 U.S.C. 2601
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 19, 2018. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
On July 13, 2018, the Federal Communications Commission (“Commission”) released an Order titled, “In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band; Expanding Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz; Petition for Rulemaking to Amend and Modernize Parts 25 and 101 of the Commission's Rules to Authorize and Facilitate the Deployment of Licensed Point-to-Multipoint Fixed Wireless Broadband Service in the 3.7-4.2 GHz Band; Fixed Wireless Communications Coalition, Inc., Request for Modified Coordination Procedures in Band Shared Between the Fixed Service and the Fixed Satellite Service,” GN Docket No. 18-122, GN Docket No. 17-183, RM-11791, RM-11778 (FCC 18-91). The Order has been published in the
In this proceeding, the Commission seeks to identify potential opportunities for additional terrestrial use for wireless broadband services of 500 megahertz of mid-band spectrum between 3.7-4.2 GHz. In response to concerns that the Commission's information regarding current use of the band is inaccurate and/or incomplete, the Commission adopted an Order requesting additional information from operators in the fixed-satellite service (FSS). Specifically, for FSS operators in the 3.7-4.2 GHz band, the Order (1) requests additional information on the operations of temporary-fixed earth station licensees, and (2) requests additional information on the operations of space stations. This information collection will provide the Commission and the public with additional information about existing FSS operators that will be used to consider potential new terrestrial
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 19, 2018. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before November 19, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 19, 2018. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 19, 2018. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before November 19, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 3, 2018.
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 15, 2018.
1.
Rhinebeck Bank proposes to reorganize into a two-tier mutual holding company structure. Rhinebeck MHC will own 55 percent of Rhinebeck Bancorp, which will own 100 percent of the bank.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 12, 2018.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Julia Solomon Ensor (202-326-2377) or Crystal Ostrum (202-326-3405), Bureau of Consumer Protection, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 12, 2018), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 12, 2018. Write “Sandpiper of California and PiperGear USA; File No. 1823095” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission website, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you prefer to file your comment on paper, write “Sandpiper of California and PiperGear USA; File No. 1823095” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Sandpiper of California, Inc. and PiperGear USA, Inc. (“Respondents”).
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
This matter involves Respondents' marketing, sale, and distribution of bags and wallets with claims that the products are made in the United States.
According to the FTC's complaint, Respondents represented that all of their products are all or virtually all made in the United States. In fact, more than 95% of Respondent Sandpiper's products are imported as finished goods, and approximately 80% of Respondent PiperGear's products are either imported as finished goods or contain significant imported components. Based on the foregoing, the complaint alleges that Respondents engaged in deceptive acts or practices in violation of Section 5(a) of the FTC Act.
The proposed consent order contains provisions designed to prevent Respondents from engaging in similar acts and practices in the future. Consistent with the FTC's Enforcement
Part II prohibits Respondents from making any country-of-origin claim about a product or service unless the claim is true, not misleading, and Respondents have a reasonable basis substantiating the representation.
Parts III through VI are reporting and compliance provisions. Part III requires Respondents to acknowledge receipt of the order, to provide a copy of the order to certain current and future principals, officers, directors, and employees, and to obtain an acknowledgement from each such person that they have received a copy of the order. Part IV requires each Respondent to file a compliance report within one year after the order becomes final and to notify the Commission within 14 days of certain changes that would affect compliance with the order. Part V requires Respondents to maintain certain records, including records necessary to demonstrate compliance with the order. Part VI requires Respondents to submit additional compliance reports when requested by the Commission and to permit the Commission or its representatives to interview respondent's personnel.
Finally, Part VII is a “sunset” provision, terminating the order after twenty (20) years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission, Commissioner Chopra dissenting.
When companies falsely claim that their products are made in the U.S.A., they take advantage of consumers who choose to spend their dollars supporting domestic products
Each of the administrative consent orders prohibits the respondents from making these types of claims in the future
In this area, administrative consent orders securing permanent injunctive relief buttressed by the threat of significant civil penalties have been largely successful in keeping former violators on the straight and narrow and have no doubt served as a warning to others that false claims will be identified and pursued. Therefore, we are voting in support of the relief set forth in the final and proposed administrative orders announced today.
We write separately to highlight the possibility that the FTC can further maximize its enforcement reach, in all areas, through strategic use of additional remedies. For example, in the U.S.-origin claim context, there may be cases in which consumers paid a clear premium for a product marketed as “Made in the U.S.A.” or made their purchasing decision in part based on perceived quality, safety, health or environmental benefits tied to a U.S.-origin claim.
The Commission has already begun a broad review of whether we are using every available remedy as effectively as possible to fairly and efficiently pursue vigorous enforcement of our consumer protection and competition laws. If we find that there are new or infrequently applied remedies that we should be seeking more often, the Commission will act accordingly—and, where appropriate, signal to the public how we intend to approach enforcement. In our view, a thoughtful review and forward-looking plan is a more effective and efficient use of Commission resources than re-opening and re-litigating the cases before us today.
Are no-money, no-fault settlements adequate to remedy serious violations of the FTC's “Made in USA” standard?
• Sellers gain a competitive advantage when they falsely market a product as Made in USA, especially when this claim is closely tied to the development of the product's brand.
• Third-party analysis suggests that Americans are often willing to pay significantly more for American-made goods compared to those made in China. Several of the matters under consideration by the Commission involve Made-in-USA fraud relating to products made in China.
• The Commission should modify its approach to resolving serious Made-in-USA fraud by seeking more tailored remedies that could include restitution, disgorgement, notice, and admissions of wrongdoing, based on the facts and circumstances of each matter.
While brand identity has historically been a major focus in markets for luxury goods, today it plays a key role in all segments of our economy. As advanced manufacturing and global supply chains challenge firms to find new ways to lower operating costs, consumer goods industries (including everything from apparel to packaged goods) have focused intensely on building and cultivating their brands as a way to drive up margins through price and volume enhancements.
Branding is distinct from marketing and advertising. A successful brand is one that creates a clear identity that goes beyond specific product attributes. A brand identity connects with a consumer's values, aspirations, and sense of self.
A Made-in-USA claim can serve as a key element of a product's brand that communicates quality, durability, authenticity, and safety, among other attributes. Not only can it be a signal about specific product attributes but it can also contribute to the development of a brand identity that connotes a set of values, such as fair labor practices, to consumers.
Made-in-USA branding can also be used to fraudulently conceal countries of origin that may cause concerns for consumers. For example, in recent years, regulators have investigated serious health and safety problems with pet food
In many cases, Americans are actually willing to pay a premium for goods that are made in our country, especially compared to those made in China. A 2012 survey by the Boston Consulting Group shows that more than 80% of Americans express a willingness to pay more for made-in-USA products,
Importantly, however, price premium does not always accurately capture the harm caused by Made-in-USA fraud. Especially in markets for commodity goods where consumers may be particularly price-sensitive, firms may make false claims to distinguish their brand or conceal unpopular countries of origin.
Whatever its purpose, cheating distorts markets in fundamental ways. It rips off Americans who prefer buying domestic goods. It also punishes firms that may bear higher costs to produce goods here, yet must compete on price or branding with firms that cheat. Finally, widespread deception sows doubt
Today, the Commission is voting on three cases involving Made-in-USA fraud.
In the Sandpiper and Patriot Puck matters, the evidence suggests that the Made-in-USA claim was a critical component of the companies' brand identities. In the Nectar Sleep matter, the false Made-in-USA claim may have
In reality, Sandpiper imported the vast majority
Patriot Puck positioned its brand as the all-American alternative to imported pucks. The company literally wrapped its pucks in the flag, embossing each one with an image of an American flag. To drive home the point, the firm claimed its pucks were “Proudly Made in the USA,” “MADE IN AMERICA,” “100% Made in the USA!,” and “100% American Made!” The firm even claimed it made “The Only American Made Hockey Puck!”
In reality, Patriot Puck imported all of its pucks from China.
That Patriot Puck priced its pucks similarly to other firms illustrates why sticker price premium alone is a poor proxy for the harm caused by Made-in-USA fraud, especially in markets for commodity goods. Hockey is closely associated with international competition, and Patriot Puck's claim to offer the “only” puck made in America was a clear effort to create a brand identity that would distinguish its pucks from the competition. Moreover, by pricing its pucks similarly to its competitors, Patriot Puck led consumers to believe they were getting a great deal on American-made hockey pucks, when in fact they were overpaying for pucks made in China.
Nectar mattresses are made in China, which may be a negative attribute for consumers who have health or safety concerns about Chinese-made mattresses.
Nectar's conduct had clear consequences. Competitors who actually made mattresses domestically were undercut, and consumers looking for U.S.-made mattresses—possibly for health or safety reasons—got ripped off. Further, Nectar may continue to profit from the lingering misperception that its mattresses are made in the U.S.
Most FTC resolutions of Made-in-USA violations have resulted in voluntary compliance measures
Going forward, in cases involving egregious and undisputed Made-in-USA fraud, I believe there should be a strong presumption against simple cease-and-desist orders. Instead, the Commission should consider remedies tailored to the individual circumstances of the fraud, including redress and notice for consumers, disgorgement of ill-gotten gains, opt-in return programs, or admissions of wrongdoing.
Some general principles can inform our approach to tailoring remedies. For firms that built their core brand identity on a lie, full redress or the opportunity for opt-in refunds may be appropriate, given the centrality of the false claim and its widespread dissemination.
Admissions may have particular value in cases involving Made-in-USA fraud. In these cases, clear and undisputed facts may give the agency a strong basis to demand an admission from a firm. And if that firm lacks funds or records for consumer redress or disgorgement, admissions can be a powerful tool to give consumers, competitors, and counterparties tools to remedy harm, even when we cannot.
I hope that the Commission will reexamine its approach to tackling Made-in-USA fraud. I believe we should seek more tailored remedies that vindicate the important goals of the program and send the message that Made-in-USA fraud will not be tolerated.
Nectar Sleep, Sandpiper, and Patriot Puck clearly violated the law, allowing them to enrich themselves and harm their customers and competitors. Especially given widespread interest in buying American products, we should do more to protect the authenticity of Made-in-USA claims. I am concerned that no-money, no-fault settlements send an ambiguous message about our commitment to protecting consumers and domestic manufacturers from Made-in-USA fraud.
Going forward, I hope the Commission can better protect against harms to competition and consumers by seeking monetary relief, notice, admissions, and other tailored remedies. Every firm needs to understand that products labeled “Made in USA” should be made in the USA, and that fake branding will come with real consequences.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Theresa Kingsberry, Program Support Specialist, Federal Trade Commission Premerger Notification Office, Bureau of Competition, Room CC-5301, Washington, DC 20024, (202) 326-3100.
By direction of the Commission.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 12, 2018.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Julia Solomon Ensor (202-326-2377) or Crystal Ostrum (202-326-3405), Bureau of Consumer Protection, 600 Pennsylvania Avenue NW, Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 12, 2018. Write “Patriot Puck; File No. 1823113” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission website, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you prefer to file your comment on paper, write “Patriot Puck; File No. 1823113” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Underground Sports Inc., d/b/a Patriot Puck; Hockey Underground Inc., d/b/a Patriot Puck; Ipuck Inc., d/b/a Patriot Puck; IPuck Hockey Inc., d/b/a Patriot Puck; and George Statler III (“Respondents”).
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
This matter involves Respondents' marketing, sale, and distribution of hockey pucks with claims that the pucks are made in the United States.
According to the FTC's complaint, Respondents represented that all of their hockey pucks are all or virtually all made in the United States. In fact, Respondents' hockey pucks are wholly imported from China. Specifically, since January of 2016, Respondents have imported 74,411 kilograms of hockey pucks, which is the equivalent of more than 400,000 standard-weight pucks. Based on the foregoing, the complaint alleges that Respondents engaged in deceptive acts or practices in violation of Section 5(a) of the FTC Act.
The proposed consent order contains provisions designed to prevent Respondents from engaging in similar acts and practices in the future. Consistent with the FTC's Enforcement Policy Statement on U.S. Origin Claims, Part I prohibits Respondents from making U.S.-origin claims for their products unless either: (1) The final assembly or processing of the product occurs in the United States, all significant processing that goes into the product occurs in the United States, and all or virtually all ingredients or components of the product are made and sourced in the United States; (2) a clear and conspicuous qualification appears immediately adjacent to the representation that accurately conveys the extent to which the product contains foreign parts, ingredients or components, and/or processing; or (3) for a claim that a product is assembled in the United States, the product is last substantially transformed in the United States, the product's principal assembly takes place in the United States, and United States assembly operations are substantial.
Part II prohibits Respondents from making any country-of-origin claim about a product or service unless the claim is true, not misleading, and
Parts III through VI are reporting and compliance provisions. Part III requires Respondents to acknowledge receipt of the order, to provide a copy of the order to certain current and future principals, officers, directors, and employees, and to obtain an acknowledgement from each such person that they have received a copy of the order. Part IV requires each Respondent to file a compliance report within one year after the order becomes final and to notify the Commission within 14 days of certain changes that would affect compliance with the order. Part V requires Respondents to maintain certain records, including records necessary to demonstrate compliance with the order. Part VI requires Respondents to submit additional compliance reports when requested by the Commission and to permit the Commission or its representatives to interview respondent's personnel.
Finally, Part VII is a “sunset” provision, terminating the order after twenty (20) years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
By direction of the Commission, Commissioner Chopra dissenting.
When companies falsely claim that their products are made in the U.S.A., they take advantage of consumers who choose to spend their dollars supporting domestic products
Each of the administrative consent orders prohibits the respondents from making these types of claims in the future
In this area, administrative consent orders securing permanent injunctive relief buttressed by the threat of significant civil penalties have been largely successful in keeping former violators on the straight and narrow and have no doubt served as a warning to others that false claims will be identified and pursued. Therefore, we are voting in support of the relief set forth in the final and proposed administrative orders announced today.
We write separately to highlight the possibility that the FTC can further maximize its enforcement reach, in all areas, through strategic use of additional remedies. For example, in the U.S.-origin claim context, there may be cases in which consumers paid a clear premium for a product marketed as “Made in the U.S.A.” or made their purchasing decision in part based on perceived quality, safety, health or environmental benefits tied to a U.S.-origin claim.
The Commission has already begun a broad review of whether we are using every available remedy as effectively as possible to fairly and efficiently pursue vigorous enforcement of our consumer protection and competition laws. If we find that there are new or infrequently applied remedies that we should be seeking more often, the Commission will act accordingly—and, where appropriate, signal to the public how we intend to approach enforcement. In our view, a thoughtful review and forward-looking plan is a more effective and efficient use of Commission resources than re-opening and re-litigating the cases before us today.
Are no-money, no-fault settlements adequate to remedy serious violations of the FTC's “Made in USA” standard?
• Sellers gain a competitive advantage when they falsely market a product as Made in USA, especially when this claim is closely tied to the development of the product's brand.
• Third-party analysis suggests that Americans are often willing to pay significantly more for American-made goods compared to those made in China. Several of the matters under consideration by the Commission involve Made-in-USA fraud relating to products made in China.
• The Commission should modify its approach to resolving serious Made-in-USA fraud by seeking more tailored remedies that could include restitution, disgorgement, notice, and admissions of wrongdoing, based on the facts and circumstances of each matter.
While brand identity has historically been a major focus in markets for luxury goods, today it plays a key role in all segments of our economy. As advanced manufacturing and global supply chains challenge firms to find new ways to lower operating costs, consumer goods industries (including everything from apparel to packaged goods) have focused intensely on building and cultivating their brands as a way to drive up margins through price and volume enhancements.
Branding is distinct from marketing and advertising. A successful brand is one that creates a clear identity that goes beyond specific product attributes. A brand identity connects with a consumer's values, aspirations, and sense of self.
A Made-in-USA claim can serve as a key element of a product's brand that communicates quality, durability, authenticity, and safety, among other attributes. Not only can it be a signal about specific product attributes but it can also contribute to the development of a brand identity that connotes a set of values, such as fair labor practices, to consumers.
Made-in-USA branding can also be used to fraudulently conceal countries of origin that may cause concerns for consumers. For example, in recent years, regulators have investigated serious health and safety problems with pet food
In many cases, Americans are actually willing to pay a premium for goods that are made in our country, especially compared to those made in China. A 2012 survey by the Boston Consulting Group shows that more than 80% of Americans express a willingness to pay more for made-in-USA products,
Importantly, however, price premium does not always accurately capture the harm caused by Made-in-USA fraud. Especially in markets for commodity goods where consumers may be particularly price-sensitive, firms may make false claims to distinguish their brand or conceal unpopular countries of origin.
Whatever its purpose, cheating distorts markets in fundamental ways. It rips off Americans who prefer buying domestic goods. It also punishes firms that may bear higher costs to produce goods here, yet must compete on price or branding with firms that cheat. Finally, widespread deception sows doubt
Today, the Commission is voting on three cases involving Made-in-USA fraud.
In the Sandpiper and Patriot Puck matters, the evidence suggests that the Made-in-USA claim was a critical component of the companies' brand identities. In the Nectar Sleep matter, the false Made-in-USA claim may have been asserted to convey health or safety benefits.
In reality, Sandpiper imported the vast majority
Patriot Puck positioned its brand as the all-American alternative to imported pucks. The company literally wrapped its pucks in the flag, embossing each one with an image of an American flag. To drive home the point, the firm claimed its pucks were “Proudly Made in the USA,” “MADE IN AMERICA,” “100% Made in the USA!,” and “100% American Made!” The firm even claimed it made “The Only American Made Hockey Puck!”
In reality, Patriot Puck imported all of its pucks from China.
That Patriot Puck priced its pucks similarly to other firms illustrates why sticker price premium alone is a poor proxy for the harm caused by Made-in-USA fraud, especially in markets for commodity goods. Hockey is closely associated with international competition, and Patriot Puck's claim to offer the “only” puck made in America was a clear effort to create a brand identity that would distinguish its pucks from the competition. Moreover, by pricing its pucks similarly to its competitors, Patriot Puck led consumers to believe they were getting a great deal on American-made hockey pucks, when in fact they were overpaying for pucks made in China.
Nectar mattresses are made in China, which may be a negative attribute for consumers who have health or safety concerns about Chinese-made mattresses.
Nectar's conduct had clear consequences. Competitors who actually made mattresses domestically were undercut, and consumers looking for U.S.-made mattresses—possibly for health or safety reasons—got ripped off. Further, Nectar may continue to profit from the lingering misperception that its mattresses are made in the U.S.
Most FTC resolutions of Made-in-USA violations have resulted in voluntary compliance measures
Going forward, in cases involving egregious and undisputed Made-in-USA fraud, I believe there should be a strong presumption against simple cease-and-desist orders. Instead, the Commission should consider remedies tailored to the individual circumstances of the fraud, including redress and notice for consumers, disgorgement of ill-gotten gains, opt-in return programs, or admissions of wrongdoing.
Some general principles can inform our approach to tailoring remedies. For firms that built their core brand identity on a lie, full redress or the opportunity for opt-in refunds may be appropriate, given the centrality of the false claim and its widespread dissemination.
Admissions may have particular value in cases involving Made-in-USA fraud. In these cases, clear and undisputed facts may give the agency a strong basis to demand an admission from a firm. And if that firm lacks funds or records for consumer redress or disgorgement, admissions can be a powerful tool to give consumers, competitors, and counterparties tools to remedy harm, even when we cannot.
I hope that the Commission will reexamine its approach to tackling Made-in-USA fraud. I believe we should seek more tailored remedies that vindicate the important goals of the program and send the message that Made-in-USA fraud will not be tolerated.
Nectar Sleep, Sandpiper, and Patriot Puck clearly violated the law, allowing them to enrich themselves and harm their customers and competitors. Especially given widespread interest in buying American products, we should do more to protect the authenticity of Made-in-USA claims. I am concerned that no-money, no-fault settlements send an ambiguous message about our commitment to protecting consumers and domestic manufacturers from Made-in-USA fraud.
Going forward, I hope the Commission can better protect against harms to competition and consumers by seeking monetary relief, notice, admissions, and other tailored remedies. Every firm needs to understand that products labeled “Made in USA” should be made in the USA, and that
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Theresa Kingsberry, Program Support Specialist, Federal Trade Commission Premerger Notification Office, Bureau of Competition, Room CC-5301, Washington, DC 20024, (202) 326-3100.
By direction of the Commission.
Federal Trade Commission.
Notice.
Notice is hereby given of the appointment of members to the FTC Performance Review Board.
Vicki Barber, Chief Human Capital Officer, 600 Pennsylvania Avenue NW, Washington, DC 20580, (202) 326-2700.
Publication of the Performance Review Board (PRB) membership is required by 5 U.S.C. 4314(c)(4). The PRB reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and makes recommendations regarding performance ratings, performance awards, and pay-for-performance pay adjustments to the Chairman.
The following individuals have been designated to serve on the Commission's Performance Review Board:
By direction of the Commission.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “National HIV Prevention Program Monitoring and Evaluation (NHM&E)” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection
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
National HIV Prevention Program Monitoring and Evaluation (NHM&E) (OMB 0920-0696, Expiration 02/28/2019)—Revision—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
CDC is requesting a three-year approval for revision to the previously approved project. The purpose of this revision is to continue collecting standardized HIV prevention program evaluation data from health departments and community-based organizations (CBOs) who receive federal funds for HIV prevention activities. Health department grantees have the option of key-entering or uploading data to a CDC-provided web-based software application (EvaluationWeb®). CBO grantees may only key-enter data to the CDC-provided web-based software application. This revision includes changes to the data variables to adjust to the different monitoring and evaluation needs of new funding announcements without a substantial change in burden.
The evaluation and reporting process is necessary to ensure that CDC receives standardized, accurate, thorough evaluation data from both health department and CBO grantees. For these reasons, CDC developed standardized NHM&E variables through extensive consultation with representatives from health departments, CBOs, and national partners (
CDC requires CBOs and health departments who receive federal funds for HIV prevention to report non-identifying, client-level and aggregate level, standardized evaluation data to: (1) Accurately determine the extent to which HIV prevention efforts are carried out, what types of agencies are providing services, what resources are allocated to those services, to whom services are being provided, and how these efforts have contributed to a reduction in HIV transmission; (2) improve ease of reporting to better meet these data needs; and (3) be accountable to stakeholders by informing them of HIV prevention activities and use of funds in HIV prevention nationwide.
CDC HIV prevention program grantees will collect, enter or upload, and report agency-identifying information, budget data, intervention information, and client demographics and behavioral risk characteristics with an estimate of 204,498 burden hours; a decrease from the previously approved, 206,226 burden hours. Data collection will include searching existing data sources, gathering and maintaining data, document compilation, review of data, and data entry or upload into the web based system. There are no additional costs to respondents other than their time. The total annual burden hours are 204,498.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled
CDC must receive written comments on or before November 19, 2018.
You may submit comments, identified by Docket No. CDC-2018-0083 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.
Using Social Media for Recruitment in Cancer Prevention and Control Survey-Based Research (SMFR) project—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
This project involves formative research to assess the feasibility of using social media to conduct survey-based cancer prevention and control research for study recruitment. To achieve this goal, the project will field four online surveys for three distinct populations using Facebook, Twitter, and Google ads as tools for recruitment. Sampling bias and ability to use weights, among other statistical methods, to correct for potential bias will be assessed at the conclusion of the study.
This project has two aims:
The first survey will target the general population, focusing on cancer screening and access to care. The second survey will target cancer survivors and focus on general health and well-being post-treatment. The third and fourth surveys will target those at high risk for cancer focusing on communication of genetic risk among family members and the tools and resources needed for risk communication.
Individuals will be recruited to participate in the web survey through ads posted on social media sites including Facebook, Twitter, and Google Analytics. Self-reported data provided on users' profile pages may be applied for targeting to maximize the value of each ad.
• Ads for the general population survey will be targeted toward users whose profiles indicate they are 40 or older. Individuals will be screened for eligibility until the target of up to 1,000 completes is met. It is expected that to reach 1,000 eligible respondents for the general population survey, 1,500 individuals will need to be screened.
• Ads for the survivorship survey will be targeted toward users who `like', search, and/or visit web pages geared toward survivors, such as the National Cancer Survivors Day Facebook page. Individuals will be screened for eligibility until the target of up to 1,000 completes is met. It is expected that to reach 1,000 eligible respondents for the survivorship survey, 3,000 individuals will need to be screened.
• Ads for the high-risk survey will be targeted toward users who `like', visit, or search for terms related to cancer and genetic testing. Individuals will be screened for eligibility until the target of up to 1,000 completes is met. It is expected that to reach 1,000 eligible respondents for the high-risk survey, 2,000 individuals will need to be screened.
• Eligible high-risk participants will be invited via email to participate in the follow-up high-risk survey. Additional social media ads may also be placed, using the targeting methods described above. In order to survey 1,000 high-risk adults, it is expected that an additional 4,000 individuals will be screened.
Participation in this project is completely voluntary and there are no costs to the respondents other than their time.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended, and the Determination of the Chief Operating Officer, CDC, pursuant to Public Law 92-463. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Jaya Raman Ph.D., Scientific Review Officer, CDC, 4770 Buford Highway, Mailstop, F80, Atlanta, Georgia 30341, Telephone: (770) 488-6511,
The Chief Operating Officer, Centers for Disease Control and Prevention, 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 Behavioral Risk Factor Surveillance System (BRFSS), an annual state-based health survey that produces state-level information on health risk behaviors, health conditions, and preventive health practices that are associated with chronic diseases, infectious diseases, and injury.
CDC must receive written comments on or before November 19, 2018.
You may submit comments, identified by Docket No. CDC-2018-0087 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.
Behavioral Risk Factor Surveillance System (BRFSS)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
CDC is requesting OMB approval to revise information collection for the Behavioral Risk Factor Surveillance System (BRFSS) for the period of 2019-2022. The BRFSS is a nationwide system of cross-sectional telephone health surveys administered by health departments in states, territories, and the District of Columbia (collectively referred to here as states) in collaboration with CDC. The BRFSS produces state-level information primarily on health risk behaviors, health conditions, and preventive health practices that are associated with chronic diseases, infectious diseases, and injury. Designed to meet the data needs of individual states and territories, the CDC sponsors the BRFSS information collection project under a cooperative agreement with states and territories. Under this partnership, BRFSS state coordinators determine questionnaire content with technical and methodological assistance provided by CDC. For most states and territories, the BRFSS provides the only sources of data amenable to state and local level health and health risk indicator uses. Over time, it has also developed into an important data collection system that federal agencies rely on for state and local health information and to track national health objectives such as Healthy People.
CDC bases the BRFSS questionnaire on modular design principles to accommodate a variety of state-specific needs within a common framework. All participating states are required to administer a standardized core questionnaire, which provides a set of shared health indicators for all BRFSS partners. The BRFSS core questionnaire consists of fixed core, rotating core, and emerging core questions. Fixed core questions are asked every year. Rotating core questions cycle on and off the core questionnaire during even or odd years, depending on the question. Emerging core questions are included in the core questionnaire as needed to collect data on urgent or emerging health topics such as influenza. In addition, the BRFSS includes a series of optional modules on a variety of topics. In off years, when the rotating questions are not included in the core questionnaire, they are offered to states as optional modules. This framework allows each state to produce a customized BRFSS survey by appending selected optional modules to the core survey. States may select which, if any, optional modules to administer. As needed, CDC provides technical and methodological assistance to state BRFSS coordinators in the construction of their state-specific surveys. Each state administers its BRFSS questionnaire throughout the calendar year.
CDC periodically updates the BRFSS core survey and optional modules. The purpose of this Revision request is to add the following topics to the questionnaires: Myalgic encephalomyelitis/chronic fatigue syndrome; hepatitis treatment; adverse childhood experiences; food stamps; and opioid use and misuse. In addition, this request seeks approval for reinstating topics which have been included in BRFSS in the past, dependent upon state interest and funding.
Participation is voluntary and there is no cost to participate. The average time burden per response will be 22 minutes. The total annual time burden across all respondents will be approximately 241,519 hours.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Formative Research and Tool Development” 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 April 23, 2018 to obtain comments from the public and affected agencies. CDC received 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
Formative Research and Tool Development (OMB Control No. 0920-0840, Expiration 1/31/2019)—Extension—National Center for HIV/AIDS, Viral Hepatitis, STD, TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention, National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP) requests approval for an extension and a three year approval for the previously approved Generic Clearance, “Formative Research and Tool Development”. This information collection request is designed to allow NCHHSTP to conduct formative research information collection activities used to inform many aspects of surveillance, communications, health promotion, and research project development for NCHHSTP's four priority diseases (HIV/AIDS, sexually transmitted diseases/infections (STD/STI), viral hepatitis, tuberculosis elimination and the Division of School and Adolescent Heath (DASH). Formative research is the basis for developing effective strategies including communication channels, for influencing behavior change. It helps researchers identify and understand the characteristics/interests, behaviors and needs of target populations that influence their decisions and actions.
Formative research is integral in developing programs, as well as improving existing and ongoing programs. Formative research also looks at the community in which a public health intervention is being or will be implemented, and helps the project staff understand the interests, attributes and needs of different populations and persons in that community. Formative research is research that occurs before a program is designed and implemented, or while a program is being conducted. NCHHSTP formative research is necessary for developing new programs or adapting programs that deal with the complexity of behaviors, social context, cultural identities, and health care that underlie the epidemiology of HIV/AIDS, viral hepatitis, STDs, and TB in the U.S, as well as for school and adolescent health. CDC conducts formative research to develop public-sensitive communication messages and user friendly tools prior to developing or recommending interventions, or care. Sometimes these studies are entirely behavioral but most often they are cycles of interviews and focus groups designed to inform the development of a product.
Products from these formative research studies will be used for prevention of HIV/AIDS, Sexually Transmitted Infections (STI), viral Hepatitis, and Tuberculosis. Findings from these studies may also be presented as evidence to disease-specific National Advisory Committees, to support revisions to recommended prevention and intervention methods, as well as new recommendations.
Much of CDC's health communication takes place within campaigns that have fairly lengthy planning periods— timeframes that accommodate the standard Federal process for approving data collections. Short term qualitative interviewing and cognitive research techniques have previously proven invaluable in the development of scientifically valid and population-appropriate methods, interventions, and instruments.
This request includes studies investigating the utility and acceptability of proposed sampling and recruitment methods, intervention contents and delivery, questionnaire domains, individual questions, and interactions with project staff or electronic data collection equipment. These activities will also provide information about how respondents answer questions and ways in which question response bias and error can be reduced. This request also includes collection of information from public health programs to assess needs related to initiation of a new program activity, or expansion or changes in scope, or implementation of existing program activities to adapt them to current needs. The information collected will be used to advise programs and provide capacity-building assistance tailored to identified needs.
Overall, these development activities are intended to provide information that will increase the success of the surveillance or research projects through increasing response rates and decreasing response error, thereby decreasing future data collection burden to the public. The studies that will be covered under this request will include one or more of the following investigational modalities: (1) Structured and qualitative interviewing for surveillance, research, interventions and material development, (2) cognitive interviewing for development of specific data collection instruments, (3) methodological research, (4) usability testing of technology-based instruments and materials, (5) field testing of new methodologies and materials, (6) investigation of mental models for health decision-making, to inform health communication messages, and (7) organizational needs assessments to support development of capacity.
Respondents who will participate in individual and group interviews (qualitative, cognitive, and computer assisted development activities) are selected purposively from those who respond to recruitment advertisements. In addition to utilizing advertisements for recruitment, respondents who will participate in research on survey methods may be selected purposively or systematically from within an ongoing surveillance or research project. The total burden hours for this collection is 46,516. Participation of respondents is voluntary. There is no cost to participants other than their time.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of draft document available for public comment and online public meeting.
The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC) announces the availability of the following draft document for public comment titled
The public online meeting will be held on October 30, 2018, 1 p.m.-4:30 p.m., Eastern Time, or until the last public commenter has spoken, whichever occurs first. The public online meeting will be a web-based event available only by remote access. Members of the public who wish to provide public comments should plan to login to the meeting at the start time listed. Members of the public who register with the NIOSH Docket Office,
Written comments submitted to the docket must be received by November 30, 2018. Written comments may be submitted by either of the following methods:
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Charles Geraci, NIOSH/EID/NTRC, Robert A. Taft Laboratories, 1090
This revised draft document provides an updated scientific literature review of information pertaining to occupational exposure to silver nanomaterials. This literature review includes studies on the toxicological effects of exposure to silver nanomaterials in experimental animal and cellular systems, the effect of particle size and other properties on the toxicological effects of silver, and NIOSH recommendations on the measurement and control of occupational exposures to silver and silver nanomaterials. NIOSH assessed the potential health risks of occupational exposure to silver nanomaterials by evaluating the scientific literature. Studies in animals have shown adverse lung and liver effects associated with exposure to silver nanoparticles. Based on an assessment of these data, NIOSH developed a recommended exposure limit (REL) for silver nanomaterials. This new draft REL applies to processes that produce or use silver nanomaterials. In addition, NIOSH continues to recommend its existing REL for total silver (metal dust and soluble compounds, as Ag) [
NIOSH further recommends the use of workplace exposure assessments, engineering controls, safe work procedures, training and education, and established medical surveillance approaches to prevent potential adverse health effects from exposure to silver nanomaterials. NIOSH proposes research needs to fill remaining data gaps on the potential adverse health effects of occupational exposure to silver nanomaterials.
The purpose of the public review of the draft document is to obtain comments on whether the proposed NIOSH draft document (1) adequately and clearly describes the scientific literature on the potential adverse health effects of silver nanomaterials, and (2) demonstrates that the NIOSH recommendations on occupational exposure to silver nanomaterials are consistent with current scientific knowledge.
To discuss and obtain comments on the revised August 2018 draft NIOSH document,
(1) Does the draft document accurately identify and characterize the health hazards of exposures to silver and silver nanomaterials based on the available scientific literature?
(2) Are the risk assessment and dosimetry modeling methods presented in the draft document consistent with current scientific knowledge and practice?
(3) Is the relationship between exposure to silver nanomaterials and biological activity (toxicity) accurately portrayed in the draft document?
(4) Is the available scientific evidence fully described regarding the human health relevance of the adverse health endpoints observed in rats associated with exposure to silver nanomaterials?
(5) Is the proposed recommended exposure limit (REL) well-supported by the scientific data presented in the document?
(6) Are the sampling and analytical methods proposed for silver nanomaterials adequate to measure worker exposure?
(7) Are the recommended strategies for controlling exposure to silver and silver nanomaterials (
(8) Are the important data gaps and future research needs complete and clearly described?
The meeting is open to the public, limited only by the number of logins available. The Adobe Connect license accommodates approximately 500 people. In addition, there will be an audio conference for those who cannot login through a computer. There is no registration fee to attend this public online meeting. However, those wishing to attend are encouraged to register via email to NIOSH Docket Office
Priority for attendance will be given to those providing oral comments. Other requests to attend the meeting will then be accommodated on a first-come basis. Unreserved attendees will be admitted as login space allows.
Unaccompanied Alien Children's (UAC) Program, Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S Department of Health and Human Services (HHS).
Notice of intent to issue an OPDIV-Initiated Supplement.
Administration for Children and Families, Office of Refugee Resettlement, announces the intent to issue an OPDIV-Initiated Supplement in multiple installments to BCFS Health and Human Services, San Antonio, TX. The aggregate total of the multiple installments will not exceed $367,860,381. The first two installments will be issued prior to September 30, 2018. The remaining installments will be issued after September 30, 2018 on to be determined dates. ORR has been identifying additional capacity to provide shelter for potential increases in apprehensions of Unaccompanied Children at the U.S. Southern Border. Planning for increased shelter capacity is a prudent step to ensure that ORR is able to meet its responsibility, by law, to provide shelter for Unaccompanied Alien Children referred to its care by the Department of Homeland Security (DHS). To ensure sufficient capacity to provide shelter to unaccompanied children referred to HHS, BCFS proposed to provide ORR with 3,800 beds in an expedited manner.
Supplemental award funds will support activities through December 31, 2018.
Jallyn Sualog, Director, Division of Children's Services, Office of Refugee Resettlement, 330 C Street SW, Washington, DC 20447. Phone: 202-401-4997. Email:
ORR is continuously monitoring its capacity to shelter the unaccompanied children referred to HHS, as well as the information received from interagency partners, to inform any future decisions or actions.
ORR has specific requirements for the provision of services. Award recipients must have the infrastructure, licensing, experience, and appropriate level of trained staff to meet those requirements. The expansion of the existing program and its services through this supplemental award is a key strategy for ORR to be prepared to meet its responsibility to provide shelter for Unaccompanied Children referred to its care by DHS and so that the U.S. Border Patrol can continue its vital national security mission to prevent illegal migration, trafficking, and protect the borders of the United States.
(A) Section 462 of the Homeland Security Act of 2002, which in March 2003, transferred responsibility for the care and custody of Unaccompanied Alien Children from the Commissioner of the former Immigration and Naturalization Service (INS) to the Director of ORR of the Department of Health and Human Services (HHS).
(B) The Flores Settlement Agreement, Case No. CV85-4544RJK (C.D. Cal. 1996), as well as the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Pub. L. 110-457), which authorizes post release services under certain conditions to eligible children. All programs must comply with the Flores Settlement Agreement, Case No. CV85-4544-RJK (C.D. Cal. 1996), pertinent regulations and ORR policies and procedures.
Office of Planning, Research, and Evaluation; ACF; HHS.
Request for public comment.
The Administration for Children and Families (ACF) is proposing an additional data collection activity as part of the Evaluation of Employment Coaching for TANF and Related Populations. The Office of Management and Budget (OMB) Office of Information and Regulatory Affairs approved this information collection in March 2018 (0970-0506). ACF is proposing a second follow-up survey conducted as part of the evaluation.
This study will provide an opportunity to learn more about the potential of coaching to help clients achieve self-sufficiency and other desired employment-related outcomes. It will take place over five years in the following employment programs: MyGoals for Employment Success in Baltimore, MyGoals for Employment Success in Houston, Family Development and Self-Sufficiency program in Iowa, LIFT in New York City, Chicago, and Los Angeles; Work Success in Utah; and Goal4 It! in Jefferson County, Colorado. Together, these programs will include Temporary Assistance for Needy Families (TANF) agencies and other public or private employment programs that serve low-income individuals. Each site will have a robust coaching component and the capacity to conduct a rigorous impact evaluation. This study will provide information on whether coaching helps people obtain and retain jobs, advance in their careers, move toward self-sufficiency, and improve their overall well-being. To meet these objectives, this study includes an impact and implementation study, as approved by OMB.
This submission builds on the existing impact study, which randomly assigned participants to either a “program group,” who were paired with a coach, or to a “control group,” who were not paired with a coach. The effectiveness of the coaching will be determined by differences between members of the program and control groups in outcomes such as obtaining and retaining employment, earnings, measures of self-sufficiency, and measures of self-regulation.
The proposed information collection activity is a second follow-up survey, which will be available to participants approximately 21 months after random assignment. The second follow-up survey will provide rigorous evidence on whether the coaching interventions are effective, for whom, and under what circumstances.
Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research, and Evaluation, 330 C Street SW, Washington, DC 20201, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Section 413 of the Social Security Act, as amended by the FY 2017 Consolidated Appropriations Act, 2017 (Pub. L. 115-31).
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) has established a public docket to collect comments related to the post-marketing, pediatric-focused safety reviews of products posted between April 2, 2018, and September 14, 2018, on FDA's website but not presented at the September 20, 2018, Pediatric Advisory Committee (PAC) meeting. These reviews are intended to be available for review and comment by members of the PAC, interested parties (such as academic researchers, regulated industries, consortia, and patient groups), and the general public.
Submit either electronic or written comments by September 28, 2018.
FDA has established a docket for public comment on this document. The docket number is FDA-2017-N-7022. The docket will close on September 28, 2018. Submit either electronic or written comments by that date. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before September 28, 2018. The
You may submit comments 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 make available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA 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
Kenneth Quinto, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5145, Silver Spring, MD 20993, 240-402-2221,
FDA is responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our Nation's food supply, cosmetics, and products that emit radiation. FDA also has responsibility for regulating the manufacturing, marketing, and distribution of tobacco products to protect the public health and to reduce tobacco use by minors.
FDA has established a public docket, Docket No. FDA-2017-N-7022, to receive input on post-marketing pediatric-focused safety reviews of products posted between April 2, 2018, and September 14, 2018, available on FDA's website at
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Endocrinologic and Metabolic Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on October 24 and 25, 2018, from 8 a.m. to 5 p.m.
The meeting will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-3159. The docket will close on October 23, 2018. Submit either electronic or written comments on this public meeting by October 23, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before October 23, 2018. The
Comments received on or before October 10, 2018, will be provided to the committee. Comments received after that date will be taken into consideration by FDA.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA 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
LaToya Bonner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave. Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact LaToya Bonner (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC)/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment (CHACHSPT) has scheduled a public meeting. Information about the CHACHSPT can be found here:
November 7, 2018, 8:30 a.m.-5:00 p.m. ET and November 8, 2018, 8:30 a.m.-3:30 p.m. ET.
This meeting will be held in-person and by webinar and teleconference. The address for the meeting is DoubleTree by Hilton, Bethesda, 8120 Wisconsin Avenue, Bethesda, Maryland 20814.
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Theresa Jumento, Chief, Policy Development Branch, HRSA, HIV/AIDS Bureau (HAB), Division of Policy and Data, 5600 Fishers Lane, Room 9N156, or by email at
The CHACHSPT was established under Section 222 of the Public Health Service (PHS) Act, [42 U.S.C. Section 217a], as amended.
The purpose of the CHACHSPT is to advise the Secretary of HHS, the Director of the CDC, and the Administrator of HRSA on the objectives, strategies, policies, and priorities for HIV, viral hepatitis, and other STD prevention and treatment efforts. This includes, but is not limited to, surveillance of HIV infection, viral hepatitis, and other STDs; responses to related emerging health needs; and epidemiologic, behavioral, health services, and laboratory research on HIV/AIDS, viral hepatitis, and other STDs. The CHACHSPT also provides advice regarding policy issues related to HIV/viral hepatitis/STD professional education, patient healthcare delivery, research and training, and prevention services.
During the November 7-8, 2018, meeting, the CHACHSPT will discuss the following topics:
• CHACHSPT workgroup reports and findings;
• updates from CDC, HRSA, and HRSA HAB;
• strategies for serving women, infants, children, and youth;
• agencies' responses to the opioid crisis; and
• telemedicine initiatives.
Members of the public will have the opportunity to provide comments. Public participants may submit written statements in advance of the scheduled meeting. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to submit a written statement or make oral comments to CHACHSPT should be sent by email to
Individuals who plan to attend and need special assistance or another reasonable accommodation should notify Theresa Jumento at the address listed above at least 10 business days prior to the meeting.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Meeting notice.
The Secretary's National Advisory Council on Migrant Health (NACMH) has scheduled a public meeting. Information about NACMH and the agenda for this meeting can be found on the NACMH website at:
November 14, 2018, 8:30 a.m.-5:00 p.m. ET and November 15, 2018, 9:00 a.m.-5:00 p.m. ET.
This meeting will be held in person only at the Bethesda Marriott Suites. The address for the meeting is 6711 Democracy Boulevard, Bethesda, Maryland 20817. Phone: 301-897-5600.
Esther Paul, Designated Federal Officer (DFO) NACMH, HRSA, Office of Policy and Program Development, Bureau of Primary Health Care, HRSA, 5600 Fishers Lane, 16N38B, Rockville, Maryland 20857; 301-594-4300; or
NACMH provides advice and recommendations to the Secretary of HHS on policy, program development, and other matters of significance concerning the activities under Section 330(g) of the Public Health Service (PHS) Act (42 U.S.C. 254b). Pursuant to 42 U.S.C. 218, NACMH advises, consults with, and makes recommendations to the Secretary of HHS regarding the organization, operation, selection, and funding of migrant health centers and other entities funded under Section 330(g) of the PHS Act (42 U.S.C. 254b).
During the November 14 through 15, 2018, meeting, NACMH will discuss its general business activities. The Council will also hear presentations from federal officials and experts on issues facing agricultural workers, including the status of agricultural worker health at the local and national levels. Topics addressed at this meeting include:
Agenda items are subject to change as priorities dictate. Refer to the NACMH website for any updated information concerning the meeting.
Members of the public will have the opportunity to provide comments. Public participants may submit written statements in advance of the scheduled meeting. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to submit a written statement or make oral comments to NACMH should be sent to Esther Paul, DFO, using the contact information above at least 3 business days prior to the meeting.
Individuals who plan to attend and need special assistance or another reasonable accommodation should notify Esther Paul at the address and phone number listed above at least 10 business days prior to the meeting.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, NIDDK.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Diabetes and Digestive and Kidney Diseases, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, NIDCD.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the NATIONAL INSTITUTE ON DEAFNESS AND OTHER COMMUNICATION DISORDERS, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Coast Guard, Department of Homeland Security.
Notice of Federal Advisory Committee meeting.
The National Boating Safety Advisory Council and its Subcommittees will meet to discuss issues relating to recreational boating safety. These meetings will be open to the public.
All meetings will be held at the U.S. Coast Guard Training Center Cape May, 1 Munro Avenue, Cape May, NJ 08204 in Building 252, Classroom 12. Access to Training Center Cape May is restricted. Individuals interested in attending the meeting need to pre-register using the following information:
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individual listed in the
If you encounter technical difficulties with comments submission, contact the individual listed in the
Mr. Jeff Ludwig, Alternate Designated Federal Officer of the National Boating Safety Advisory Council, telephone (202) 372-1061, or at
Notice of this meeting is given pursuant to the
The agenda for the National Boating Safety Advisory Council meeting is as follows:
(1) Opening remarks.
(2) Presentation of Awards to Outgoing National Boating Safety Advisory Council Members.
(3) Receipt and discussion of the following reports:
(a) Chief, Office of Auxiliary and Boating Safety, update on the U.S. Coast Guard's implementation of National Boating Safety Advisory Council Recommendations and Recreational Boating Safety Program Report.
(b) Alternate Designated Federal Officer's report concerning Council administrative and logistical matters.
(c) Update on the implementation of the National Recreational Boating Survey.
(d) Update on the National Recreational Boating Grant Program.
(4) Presentation on voluntary life jacket wear efforts.
(5) Presentation(s) on Boating under the Influence (BUI) reduction efforts.
(6) Public comment period.
(7) Meeting Recess.
The day will be dedicated to Subcommittee sessions:
(1)
Issues to be discussed include alternatives to pyrotechnic visual distress signals; grant projects related to boats and associated equipment; and updates to 33 CFR 181 “Manufacturer Requirements” and 33 CFR 183 “Boats and Associated Equipment.”
(2)
Issues to be discussed include paddlesports participation, overview of State boating Safety programs, and licensing requirements for on-water boating safety instruction providers.
(3)
Issues to be discussed include progress on implementation of the 2017-2021 Strategic Plan.
The full Council will resume meeting.
(1) Receipt and Discussion of the Boats and Associated Equipment, Prevention through People and Recreational Boating Safety Strategic Planning Subcommittee reports.
(2) Discussion of any recommendations to be made to the U.S. Coast Guard.
(3) Public comment period.
(4) Voting on any recommendations to be made to the U.S. Coast Guard.
(5) Closing remarks.
(6) Adjournment of meeting.
There will be a comment period for the National Boating Safety Advisory Council members and a comment period for the public after each report presentation, but before each is voted on by the Council. The Council members will review the information presented on each issue, deliberate on any recommendations presented in the Subcommittees' reports, and formulate recommendations for the Department's consideration.
The meeting agenda and all meeting documentation can be found at:
Public comments or questions will be taken throughout the meeting as the Council discusses the issues and prior to deliberations and voting. There will also be a public comment period at the end of the meeting. Speakers are requested to limit their comments to 3 minutes. Please note that the public comment period may end before the period allotted, following the call for comments. Contact the individual listed in the
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Iowa (FEMA-4386-DR), dated August 20, 2018, and related determinations.
The declaration was issued August 20, 2018.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated August 20, 2018, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Iowa resulting from severe storms, tornadoes, straight-line winds, and flooding during the period of June 6 to July 2, 2018, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Timothy J. Scranton, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Iowa have been designated as adversely affected by this major disaster:
Adair, Buchanan, Buena Vista, Cerro Gordo, Cherokee, Chickasaw, Clay, Dallas, Delaware, Dickinson, Emmet, Floyd, Hamilton, Hancock, Howard, Humboldt, Kossuth, Lyon, O'Brien, Osceola, Palo Alto, Pocahontas, Polk, Sioux, Story, Warren, Webster, Winnebago, Winneshiek, and Wright Counties for Public Assistance.
All areas within the State of Iowa are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance
Bureau of Indian Affairs, Interior.
Notice.
The State of Oklahoma entered into compact amendments with the Comanche Nation governing certain forms of class III gaming; this notice announces the approval of the State of Oklahoma Gaming Compact Non-house-Banked Table Games Supplement between the State of Oklahoma and the Comanche Nation.
The compact amendments take effect on September 18, 2018.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under section 11 of the Indian Gaming Regulatory Act (IGRA) Public Law 100-497, 25 U.S.C. 2701
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 ASML Netherlands B.V.; ASML US, L.P.; and ASML US, LLC on September 12, 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 semiconductor lithography systems and components thereof. The complaint names as respondents: Nikon Corporation of Japan; Nikon Precision Inc. of Belmont, CA; and Nikon Research Corporation of America of Belmont, CA. The complainant requests that the Commission issue a limited exclusion order and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
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. 3341”) 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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review-in-part the presiding administrative law judge's final initial determination, finding a violation of section 337 of the Tariff Act of 1930, as amended with respect to U.S. Patent Nos. 8,600,553 and 9,038,233 and no violation with respect to U.S. Patent Nos. 6,809,490 and 8,474,090. The Commission has also determined to extend the target date for completion of the above-captioned investigation until November 20, 2018. The Commission requests certain briefing from the parties on the issues under review, as indicated in this notice. The Commission also requests briefing from the parties and interested persons on the issues of remedy, the public interest, and bonding.
Lucy Grace D. Noyola, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202-205-3438. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
The Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on May 23, 2017, based on a complaint filed by iRobot Corporation of Bedford, Massachusetts (“iRobot”). 82 FR 23592 (May 23, 2017). The complaint alleges a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 6,809,490 (“the '490 patent”); 7,155,308 (“the '308 patent”); 8,474,090 (“the '090 patent”); 8,600,553 (“the '553 patent”); 9,038,233 (“the '233 patent”); and 9,486,924 (“the '924 patent”). The complaint names as respondents Bissell Homecare, Inc. of Grand Rapids, Michigan (“Bissell”); Hoover, Inc. of Glenwillow, Ohio and Royal Appliance Manufacturing Co., Inc. d/b/a TTI Floor Care North America, Inc. of Glenwillow, Ohio (collectively, “Hoover”); bObsweep, Inc. of Toronto, Canada and bObsweep USA of Henderson, Nevada (collectively, “bObsweep”); The Black & Decker Corporation of Towson, Maryland and Black & Decker (U.S.) Inc. of Towson, Maryland (collectively, “Black & Decker”); Shenzhen ZhiYi Technology Co., Ltd., d/b/a iLife of Shenzhen, China (“iLife”); Matsutek Enterprises Co., Ltd. of Taipei City, Taiwan (“Matsutek”); Suzhou Real Power Electric Appliance Co., Ltd. of Suzhou, China (“Suzhou”); and Shenzhen Silver Star Intelligent Technology Co., Ltd. of Shenzhen, China (“SSSIT”). The Office of Unfair Import Investigations is not a party in this investigation.
The investigation has been terminated with respect to respondents Suzhou, Black & Decker, Bissell, and Matsutek. Notice (Oct. 18, 2017) (determining not to review Order No. 23 (Sept. 26, 2017)); Notice (Jan. 31, 2018) (determining not to review Order No. 31 (Jan. 9, 2018)); Notice (Feb. 16, 2018) (determining not to review Order No. 34 (Jan. 25, 2018)). The '924 and the '308 patents are also no longer part of the investigation. Notice (Jan. 16, 2018) (determining not to review Order No. 29 (Dec. 14, 2017)); Notice (Mar. 15, 2018) (determining not to review Order No. 40 (Feb. 21, 2018)).
On July 16, 2018, the Commission determined that iRobot satisfied the economic prong of the domestic industry requirement under 19 U.S.C. 1337(a)(3)(B). Notice (July 16, 2018) (determining to affirm with
On June 25, 2018, the presiding administrative law judge (“ALJ”) issued a final initial determination (“ID”), finding a violation of section 337 with respect to the '553 and '233 patents and no violation with respect to the '490 and '090 patents. Specifically, with respect to the '553 patent, the ALJ found that: (1) iLife directly infringes claim 42, but not claims 1, 12, 13, and 22; (2) iLife has not induced or contributed to infringement of the patent; (3) iRobot has satisfied the technical prong of the domestic industry requirement; (4) claim 1, but not claims 11 and 12, is invalid for anticipation; and (5) claims 4, 12, 13, and 22 are not invalid for obviousness. With respect to the '490 patent, the ALJ found that: (1) iLife and bObsweep directly infringe claim 42, but not claims 1 and 12, and Hoover directly infringes claim 42; (2) iLife, Hoover, bObsweep, and SSSIT have not induced or contributed to infringement of the patent; (3) iRobot has satisfied the technical prong of the domestic industry requirement; (4) claim 1, but not claim 12, is invalid for anticipation; (5) claims 12 and 42 are invalid for obviousness; and (6) claims 1 and 42 are not invalid for indefiniteness. With respect to the '090 patent, the ALJ found that: (1) iLife, Hoover, SSSIT and bObsweep directly infringe claims 1, 2, 3, 5, 7, 10, and 17; (2) iLife, Hoover, bObsweep, and SSSIT have not induced or contributed to infringement of the patent; (3) iRobot has satisfied the technical prong of the domestic industry requirement; (4) claims 1, 5, 7, 10, and 17 are not invalid for anticipation; and (5) claims 1, 2, 3, 4, 5, 7, 10, and 17 are invalid for obviousness in view of certain prior art combinations, but not others. With respect to the '233 patent, the ALJ found that: (1) iLife and bObsweep directly infringe claims 1, 10, 11, 14, 15, and 16 and Hoover directly infringes the same claims with respect to the Hoover Quest 1000 products, but not the Hoover Rogue/Y1 and Hoover Y2 products; (2) iLife, Hoover, bObsweep, and SSSIT have not induced or contributed to infringement of the patent; (3) iRobot has satisfied the technical prong of the domestic industry requirement; and (4) claims 1, 10, 11, 14, 15, and 16 of the '233 patent are not invalid for anticipation, obviousness, nor lack of written description.
The ALJ also issued a Recommended Determination on Remedy and Bond (“RD”), recommending, if the Commission finds a section 337 violation, the issuance of (1) a limited exclusion order against certain robotic vacuum cleaning devices and components thereof that are imported, sold for importation, and/or sold after importation by Hoover, bObsweep, SSSIT, and iLife, (2) cease and desist orders against Hoover and iLife, and (3) imposition of a bond of 18.89 percent for iLife products, 48.65 percent for bObsweep products, and 41.35 percent for Hoover products that are imported during the period of Presidential review.
On July 25, 2018, iRobot filed post-RD statements on the public interest under Commission Rule 210.50(a)(4). The Commission did not receive any post-RD public interest comments from Respondents pursuant to Commission Rule 210.50(a)(4). The Commission did not receive comments from the public in response to the Commission notice issued on July 10, 2018. 83 FR 31977 (July 10, 2018).
On July 9, 2018, iRobot and Respondents each filed a petition for review challenging various findings in the final ID. On July 17, 2018, iRobot and Respondents each filed responses to the other party's petition for review.
Having examined the record of this investigation, including the final ID, the Commission has determined to review in part the ALJ's determination of a section 337 violation. Specifically, the Commission has determined to review the ALJ's findings on: (1) Induced and contributory infringement with respect to the '553, '490, '090, and '233 patents; (2) anticipation with respect to the asserted claims of the '553 patent; (3) obviousness with respect to the asserted claims of the '553 patent; (4) direct infringement of the '090 patent by Respondents; (5) anticipation with respect to the asserted claims of the '090 patent; (6) obviousness with respect to the asserted claims of the '090 patent; (7) anticipation with respect to the asserted claims of the '233 patent; and (8) consideration of U.S. Patent No. 6,594,844 as prior art under 35 U.S.C. 102(a) and concerning obviousness under 35 U.S.C. 103.
The Commission has determined not to review the remaining issues decided in the final ID.
The Commission has also determined to extend the target date for completion of the investigation until November 20, 2018.
In connection with its review, the Commission requests responses to the following questions. The parties are requested to brief their positions with reference to the applicable law and the existing evidentiary record.
1. Before the ALJ, did Respondents assert invalidity of claims 1 and 12 of the '553 patent under 35 U.S.C. 102(b) based on a theory that the invention was “described in a printed publication” or that the invention was “in public use”?
2. What is the theory under section 102(b) (
3. Assuming Respondents argued before the ALJ invalidity of claim 12 of the '553 patent based on “public use” under section 102(b):
a. Does there need to be a showing that the Suckmaster robot was used in public to practice the steps of claim 12 to find anticipation of that claim based on a public use theory?
b. Does the record evidence show that the Suckmaster robot performed the steps of claim 12 during the Atlanta Hobby Robot Club Vacuum Contest?
4. Describe the principle of operation of U.S. Patent No. 5,995,884 (“Allen”) and discuss whether modifying Allen with a “control module” as required by the asserted claims of the '090 patent would change that principle of operation.
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue a cease and desist order that could result in the respondents Hoover and iLife being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist order would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
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.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA is soliciting public comments concerning the proposal to extend OMB approval of the information collection requirements contained in the Temporary Labor Camps Standard.
Comments must be submitted (postmarked, sent, or received) by November 19, 2018.
Tom Mockler or Christie Garner, Directorate
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
OSHA is requesting approval from the Office of Management and Budget (OMB) for certain information collection requirements contained in the Temporary Labor Camps Standard (29 CFR 1910.142). The main purpose of these provisions is to eliminate the incidence of communicable disease among temporary labor camp residents. The Standard requires camp superintendents to report immediately to the local health officer the name and address of any individual in the camp known to have, or suspected of having, a communicable disease (29 CFR 1910.142)(l)(1). Whenever there is a case of suspected food poisoning or an unusual prevalence of any illness in which fever, diarrhea, sore throat, vomiting or jaundice is a prominent symptom, the standard requires the camp superintendent to report said illness immediately to the health authority (29 CFR 1910.142)(l)(2). In addition, the Standard requires separate toilet rooms to be provided for each sex where the toilet rooms are shared. These rooms must be marked “for men” and “for women” by signs printed in English and in the native language of the persons occupying the camp, or marked with easily understood pictures or symbols (29 CFR 1910.142(d)(4)).
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions, including whether the information is useful;
• the accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• the quality, utility, and clarity of the information collected; and
• ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements contained in the Temporary Labor Camps Standard (29 CFR 1910.142). The Agency is requesting an adjustment in the number of burden hours from 155 hours to 258 hours. There was an increase in the number of “incidents of notifiable diseases” from 1,933 cases to 2,349.
The agency will summarize any comments submitted in response to this notice and will include this summary in its request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
Information on using the
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
To help facilitate your entry into the NSF building, please contact Victoria Fung (
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a request submitted by Xcel Energy on October 18, 2017, from meeting Technical Specification (TS) 1.2.5 of Attachment A of Certificate of Compliance (CoC) No. 1004, Amendment No. 10, which requires that all dry shielded canister (DSC) closure welds, except those subjected to full volumetric inspection, be dye penetrant tested in accordance with the requirements of American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel (B&PV) Code Section III, Division 1, Article NB-5000. This exemption applies to five loaded Standardized NUHOMS® 61BTH, Dry Shielded Canisters (DSCs) 11 through 15, at the Monticello Nuclear Generating Plant (MNGP) Independent Spent Fuel Storage Installation (ISFSI).
Please refer to Docket ID NRC-2018-0207 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Christian Jacobs, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6825; email:
Northern States Power Company-Minnesota, doing business as Xcel Energy (Xcel Energy, or the applicant) is the holder of Renewed Facility Operating License No. DPR-22, which authorizes operation of the MNGP, Unit No. 1, in Wright County, Minnesota, pursuant to part 50 of title 10 of the
Consistent with 10 CFR part 72, subpart K, “General License for Storage of Spent Fuel at Power Reactor Sites,” a general license is issued for the storage of spent fuel in an ISFSI at power reactor sites to persons authorized to possess or operate nuclear power reactors under 10 CFR part 50. The applicant is authorized to operate a nuclear power reactor under 10 CFR part 50, and holds a 10 CFR part 72 general license for storage of spent fuel at the MNGP ISFSI. Under the terms of the general license, the applicant stores spent fuel at its ISFSI using the TN Americas LLC Standardized NUHOMS® dry cask storage system in accordance with CoC No. 1004, Amendments No. 9 and No. 10. As part of the dry storage system, the DSC (of which the closure welds are an integral part) ensures that the dry storage system can meet the functions of criticality safety, confinement boundary, shielding, structural support, and heat transfer.
The applicant has requested an exemption from the requirements of 10 CFR 72.212(a)(2), 10 CFR 72.212(b)(3), 10 CFR 72.212(b)(5)(i), 10 CFR 72.212(b)(11), and 10 CFR 72.214 that require compliance with the terms, conditions, and specifications of CoC No. 1004, Amendment No. 10, for the Standardized NUHOMS® Horizontal Modular Storage System, to allow continued storage of DSCs 11-15 in their respective Horizontal Storage Modules (HSMs). This would permit the continued storage of those five DSCs for the service life of the canisters. Specifically, the exemption would relieve the applicant from meeting TS 1.2.5 of Attachment A of CoC No. 1004 (ADAMS Accession No. ML17338A114),
Xcel Energy loaded spent nuclear fuel into six 61BTH DSCs starting in September 2013. Subsequent to the loading, it was discovered that certain elements of the PT examinations, which were performed on the DSCs to verify the acceptability of the closure welds, do not comply with the requirements of TS 1.2.5. All six DSCs were affected. Five of the six DSCs (numbers 11-15) had already been loaded in the HSMs when the discrepancies were discovered. DSC 16 remained on the reactor building refueling floor in a transfer cask (TC). On June 8, 2016, NRC granted an exemption (ADAMS Accession No. ML16159A227) from 10 CFR 72.212(a)(2), 10 CFR 72.212(b)(3), 10 CFR 72.212(b)(5)(i), 10 CFR 72.212(b)(11), and 10 CFR 72.214 for DSC 16 only with regard to meeting TS 1.2.5 of Attachment A of CoC No.1004, Amendment No. 10. The exemption granted on June 8, 2016, restored DSC 16 to compliance with 10 CFR part 72 and allowed Northern States Power Company-Minnesota to transfer DSC 16 into an HSM for continued storage at MNGP ISFSI for the service life of the canister.
In a letter dated October 18, 2017 (ADAMS Accession No. ML17296A205) (Exemption Request), as supplemented in responses to NRC requests for additional information dated April 5, 2018 (ADAMS Accession No. ML18100A173) (RAI Response 1) and May 31, 2018 (ADAMS Accession No. ML18151A870) (RAI Response 2), the applicant requested an exemption from the following requirements to allow continued storage of the remaining DSCs 11-15 in their respective HSMs at the MNGP ISFSI:
• 10 CFR 72.212(a)(2), which states that this general license is limited to storage of spent fuel in casks approved under the provisions of part 72;
• 10 CFR 72.212(b)(3), which states that the general licensee must ensure that each cask used by the general licensee conforms to the terms, conditions, and specifications of a CoC or an amended CoC listed in 10 CFR 72.214;
• 10 CFR 72.212(b)(5)(i), which requires that the general licensee perform written evaluations, before use and before applying the changes authorized by an amended CoC to a cask loaded under the initial CoC or an earlier amended CoC, which establish that the cask, once loaded with spent fuel or once the changes authorized by an amended CoC have been applied, will conform to the terms, conditions, and specifications of a CoC or an amended CoC listed in 10 CFR 72.214;
• 10 CFR 72.212(b)(11), which states, in part, that the licensee shall comply with the terms, conditions, and specifications of the CoC and, for those casks to which the licensee has applied the changes of an amended CoC, the terms, conditions, and specifications of the amended CoC; and
• 10 CFR 72.214, which lists the approved spent fuel storage casks.
Pursuant to 10 CFR 72.7, the Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations of 10 CFR part 72 as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.
This exemption would permit the continued storage of DSCs 11-15 at the MNGP ISFSI for the service life of the canisters by relieving the applicant of the requirement to meet the PT requirements of TS 1.2.5 of Attachment A of CoC No. 1004. The provisions in 10 CFR part 72 from which the applicant is requesting exemption require the licensee to comply with the terms, conditions, and specifications of the CoC for the approved cask model it uses. Section 72.7 allows the NRC to grant exemptions from the requirements of 10 CFR part 72. As explained below, the proposed exemption will not endanger life or property, or the common defense and security, and is otherwise in the public interest. Issuance of this exemption is consistent with the Atomic Energy Act of 1954, as amended, and not otherwise inconsistent with NRC's regulations or other applicable laws. Therefore, the exemption is authorized by law.
This exemption would relieve the applicant from meeting TS 1.2.5 of Attachment A of CoC No. 1004, which requires PT examinations to be performed on the DSCs to verify the acceptability of the closure welds, and would permit the continued storage of DSCs 11-15 in their respective HSMs at the MNGP ISFSI for the service life of the canisters. As detailed below, NRC staff reviewed the exemption request to determine whether granting of the exemption would cause potential for danger to life, property, or common defense and security.
The NUHOMS® system provides horizontal dry storage of canisterized spent fuel assemblies in an HSM. The cask storage system components for NUHOMS® consist of a reinforced concrete HSM and a DSC vessel with an internal basket assembly that holds the spent fuel assemblies. The HSM is a low-profile, reinforced concrete structure designed to withstand all normal condition loads, as well as abnormal condition loads created by natural phenomena such as earthquakes and tornadoes. It is also designed to withstand design basis accident conditions. The Standardized NUHOMS® Horizontal Modular Storage System has been approved for storage of spent fuel under the conditions of CoC No. 1004. The DSCs under consideration for exemption were loaded under CoC No. 1004, Amendment No. 10.
The NRC has previously approved the Standardized NUHOMS® Horizontal Modular Storage System. The requested exemption does not change the fundamental design, components, contents, or safety features of the storage system. The NRC staff has evaluated the applicable potential safety impacts of granting the exemption to assess the potential for danger to life or property or the common defense and security; the evaluation and resulting conclusions are presented below. The potential impacts identified for this exemption request were in the areas of materials, structural integrity, thermal, shielding, criticality, and confinement capability.
• Reasonable assurance of weld integrity;
• Low dose consequences for a DSC in storage; and
• Low risk to the public.
The applicant further stated that there is reasonable assurance of weld integrity based on the existing Quality Assurance (QA) documentation, engineering analysis, and expert evaluations, which demonstrate that the subject DSC welds
• Fuel cladding integrity is maintained, as no damaged fuel was loaded and no unexpected dose readings were observed during drying operations.
• The weld design assures that there are no pinhole leaks and there is no credible process for service-induced flaws.
• The material, including the DSC shell, lids and weld filler, met quality requirements and quality welds were ensured by welding process qualification, welder qualification and the use of an automated welding process specifically designed for the application.
• In-process visual inspections of welds performed by the welders, Quality Control (QC) visual examination (VT) inspections of fit-ups and welds, and the vacuum hold, helium pressure and helium leak test all ensured confinement and quality of the welds.
• Strain margins for the DSC welds were demonstrated by structural analysis assuming flaw distributions conservatively derived from the Phased Array Ultrasonic Testing (PAUT) examination of DSC 16.
• Based on the DSCs 11-15 site-specific heat load conditions, additional margin exists to account for any remaining flaw uncertainty.
The NRC materials review for the requested exemption focused on the applicant's assertion of reasonable assurance of weld integrity and each of the supporting assertions of: (1) Fuel cladding integrity; (2) weld design; (3) material and welding process; (4) tests performed; (5) adequate strain margins to accommodate flaws; and (6) additional strain margins in welds. A specific review of each of the supporting statements is provided in the following sections.
The NRC staff reviewed the information provided by the applicant on the characteristics of the spent fuel loaded in DSCs 11-15. The NRC staff also reviewed the loading records for the loading campaign and confirmed that (1) no damaged fuel assemblies were loaded in the DSCs; (2) only one fuel assembly had burnup that marginally exceeded the 45 GWD/MTU criterion for high burnup fuel however, the cladding of the fuel assembly was shown to be intact through cask loading reports and supporting radiochemistry reports; and (3) no unexpected dose readings were observed in the loading campaign. Based on the review of the information from the loading campaign, the NRC staff confirmed that the characteristics of the fuel loaded in the DSCs included in the exemption request were accurately described.
The applicant stated that, once in storage, there is no credible failure mechanism of the DSC top cover plate closure welds that would adversely affect DSC confinement because (1) the top cover plate and weld material are stainless steel and the only welds subject to the outside environment are the outer layer of the outer top cover plate (OTCP) weld and the test port plug (TPP) weld; (2) a reduction in cross section from plastic strain is not applicable to the top cover plate welds because the differential pressure across the top cover plates conditions is minimal (less than one atmosphere); and (3) the mechanism of cyclic loading is not applicable to the top cover plate and closure welds because the extent of fatigue cycling experienced by the canister is below the threshold which the ASME B&PV Code Section III has established.
The NRC staff have previously reviewed the design of the NUHOMS® 61BTH DSC included in the UFSAR. The NRC staff verified that the top cover plate and weld material are stainless steel and the only welds subject to the outside environment are the outer layer of the OTCP weld and the TPP weld. The NRC staff verified that the differential pressure across the top cover plates is minimal and consequently the reduction in cross section from plastic strain is not credible. The NRC staff have reviewed the assessment of fatigue and determined that the DSCs are not subjected to cyclic loading that requires a fatigue analysis. Based on the NRC staff's previous analysis of the DSC weld design, the NRC staff determined that the applicant's assessment of the weld design is accurate and there is no credible mechanism for the propagation of an existing weld flaw to result in a through weld thickness penetration that would result in a leak.
The applicant stated that the weld closures of DSCs 11-15 were performed under a 10 CFR part 50 Appendix B QA program, such that the canister integrity is assured. The applicant stated that welding materials were procured to quality requirements, welding processes were developed and qualified for the given configuration, and welders were appropriately qualified to the ASME B&PV Code requirements. Finally, the applicant stated that welding parameters were specified in associated procedures and monitored as required.
In addition to the original weld head video review conducted in conjunction with the DSC 16 exemption request, the applicant included another examination of the weld head video and the general area videos taken during the 2013 cask loading campaign. Based on the examination of the videos, the applicant made a correlation between weld techniques and typical weld flaw characteristics such as those identified in the PAUT of the inner top cover plate (ITCP) and OTCP welds from DSC 16. The applicant provided an assessment conducted by Structural Integrity
As stated above, the NRC staff have previously reviewed the design of the NUHOMS® 61BTH DSC included in the UFSAR. The NRC staff reviewed the materials used in the construction of DSCs 11-15 and the NRC staff confirmed that the materials used met the specifications called out in the NUHOMS® 61BTH DSC design. The NRC staff reviewed the CMTRs and confirmed that the materials met specified compositional and mechanical property requirements.
The NRC staff reviewed, “TRIVIS Inc. Welding Procedure Specification (WPS) SS-8-M-TN, Revision 10,” (Enclosure 2 to RAI Response 1) which was used for the machine welding of the ITCP and the OTCP as well as, “TRIVIS Inc. WPS SS-8-A-TN, Revision 8,” (RAI Response 1 Enclosure 3) used for manual welding of the ITCP and the OTCP. The NRC staff compared WPS SS-8-M-TN, Revision 10 and WPS SS-8-A-TN, Revision 8 to the essential variables required for the gas tungsten arc welding (GTAW) in ASME Section IX Part QW Welding, Article II Welding Procedure Qualifications, Table QW-256 and Article IV Welding Data, Subsection QW-400 Variables. The NRC staff determined that the WPS SS-8-M-TN, Revision 10 and WPS SS-8-A-TN, Revision 8 are acceptable because all of the essential variables identified in ASME Section IX for GTAW WPSs were included and the range of permissible values were specified.
The NRC staff reviewed, “TRIVIS, Inc. Procedure Qualification Record (PQR) PQR-1, Revision 2” (Enclosure 4 to RAI Response 1). The NRC staff compared the testing documented in PQR-1, Revision 2 against ASME Section IX Part QW Welding, Article I Welding General Requirements. The NRC staff determined that PQR-1 Revision 2 was acceptable because all the testing necessary to qualify WPS SS-8-M-TN, Revision 10 and WPS SS-8-A-TN, Revision 8 were performed with satisfactory results and documented in PQR-1, Revision 2.
As documented in NUREG-1536, Revision 1, Section 8.9.1 (ADAMS Accession No. ML101040620) the NRC previously determined that for a multipass lid-to-shell weld of an austenitic stainless steel canister designed and fabricated in accordance with the ASME B&PV Code Section III Subsection NB (Class 1 components), no flaws of significant size will exist such that the flaws could impair the structural strength or confinement capability of the weld. For a spent nuclear fuel canister, such a flaw would be the result of improper fabrication or welding technique, as service-induced flaws under normal and off-normal conditions of storage are not credible.
The NRC staff notes that per the guidance in NUREG-1536, Revision 1, Section 8.4.7.4, the large structural lid-to-shell weld designs fabricated from austenitic materials may be tested using non-destructive examination methods such as a volumetric ultrasonic test (UT) or a multi-pass PT. If a multiple-pass PT examination is utilized in lieu of UT inspection, a stress reduction factor of 0.8 for weld strength is imposed. In the absence of valid PT examinations of the closure welds for DSCs 11-15, the applicant asserted that the helium leak rate tests performed on all DSCs and the PAUT results for DSC 16, which show that weld defects are limited to the height of one weld bead, support the claim that DSCs 11-15 do not have flaws that would impair the structural strength or confinement capability.
The NRC staff reviewed the information provided by the applicant including the DSC lid-to-shell closure weld design for the ITCP and the OTCP, the manual and machine GTAW WPSs, the helium leak testing results for DSCs 11-15 and the PAUT results for DSC 16. The NRC staff concluded that the design of the DSC closure weld and the GTAW WPSs used to weld the ITCP and the OTCP are unlikely to result in weld flaws that could impair the structural strength or confinement capability of the weld. The NRC staff concluded that the helium leak testing results for DSCs 11-15 confirmed that there were no flaws that impaired the confinement capability of the DSC 11-15 ITCP welds. The NRC staff concluded that the PAUT results for DSC 16 is sufficient to show that the GTAW of the ITCP and OTCP welds do not result in defects that would impair structural strength or confinement capability of the DSC closure welds.
• In-process visual examination and QC visual examinations to demonstrate that weld processes were followed and a weld meeting visual examination criteria was developed; and
• Helium leakage tests to verify the confinement integrity function and, to some extent, the structural integrity function of the DSC welds.
The applicant provided an extent of condition assessment as Appendix D of Enclosure 1 of the Exemption Request. The applicant stated that the extent of condition assessment was focused on:
• Compliance with welding administrative requirements;
• Technical specification required testing of welds; and
• Weld depth measurements for outer top cover plate welds.
The NRC staff reviewed the information provided in the application and confirmed that the applicant provided documentation that the welding administrative requirements were met, as follows: (1) Welding procedures were available at the job site for welding operators to follow; (2) weld surface preparations were completed such that the weld surface was dry and free of oil, grease, weld spatter, rust, slag, sand, discontinuities, or other extraneous material; (3) weld crown height for the ITCP and vent/siphon port were verified; and (4) welds for the ITCP, OTCP and the vent and siphon ports were all verified.
The NRC staff reviewed the information provided in the application and confirmed that the applicant provided documentation for the TS required tests performed on DSCs 11-15. The NRC staff verified that the application included documentation showing that (1) hydrogen monitoring was properly performed while welding in accordance with TS 1.1.11; (2) pressure testing of the DSC shell to ITCP weld was conducted in accordance with TS 1.1.12.4; (3) two cycles of vacuum drying and verification were conducted at a vacuum less than 2.8 torr and were maintained for times longer than 30 minutes in accordance with TS 1.2.2; (4) the DSCs were backfilled with helium and to a pressure of 17.2 ± 1.0 psi for a time of at least 30 minutes in accordance with TS 1.2.3a; and (5) helium backfilling, pressure verification and leak testing were conducted in accordance with American National Standards Institute (ANSI) N14.5-1997 and leak rates less than 1.0 × 10
The NRC staff confirmed that the weld depth measurements for the OTCP were conducted at four locations around the weld circumference. The NRC staff confirmed that the weld depth (dimension of the weld throat)
Based on the review of the information provided by the applicant, the NRC staff determined that the required tests were performed on the ITCP and OTCP welds including in-process visual inspections of welds performed by the welders, VT of fit-ups and welds and the vacuum hold, as well as helium pressure and helium leak testing. The NRC staff determined that the applicant completed an adequate extent of condition assessment which showed that the welding of the ITCP and OTCP were conducted in accordance with welding administrative requirements, the required testing of welds were in compliance with technical specifications, and weld depth measurements for the OTCP met design requirements for the 61BTH DSC. Adequate Strain Margins to Accommodate Flaws (Exemption Request Enclosures 2 through 5): The applicant stated that strain margins for DSCs 11-15 were demonstrated by structural analysis using theoretically-bounding full-circumferential flaws and a structural analysis assuming flaw distributions conservatively derived from the PAUT examination of DSC 16. The applicant supported the analysis using:
• A review of weld head video for all available DSCs, general area video for all available DSCs, and welding records;
• the allowable flaw size evaluation in the ITCP closure weld for DSC 16; and
• the ITCP and OTCP closure weld flaw evaluation for a 61BTH DSC based on the DSC 16 PAUT results.
Based on the review of the videos, welding records and the PAUT examination of DSC 16, the applicant determined that the indications found on DSC 16 are representative of those that may be found on DSCs 11-15. Consequently, the applicant determined that the same bounding analyses performed for DSC 16 should provide for similar conservative results for the closure welds for DSCs 11-15. The applicant stated that for the OTCP, the original design basis calculations determined critical flaw sizes. The applicant stated that these design basis analyses determined for a 360° circumferential flaw, an allowable flaw depth of 0.19 inch and 0.29 inch could exist for surface connected and sub-surface flaws respectively. Finally, the applicant stated that the flaw sizes determined by these calculations bound any of the indications found on DSC 16 by PAUT of the OTCP weld.
For the ITCP weld of DSC 16, the applicant provided a calculation, AREVA Calculation 11042-0204, Revision 3, “Allowable Flaw Size Evaluation in the Inner Top Cover Plate Closure Weld for DSC #16” (Exemption Request Enclosure 4) that documents the critical flaw size based on the maximum radial stresses in the welds due to design loads. The applicant's analysis calculated the critical flaw size for a weld size of 0.25 inch per the PAUT results for DSC 16, which showed that the distance between the weld root and crown at the canister wall for the DSC 16 ITCP lid weld ranged from 0.25 inch to 0.4 inch. The applicant determined that the critical flaw depth was 0.15 inch, which would exceed the typical weld layer thickness. The applicant noted that the measured weld size for the ITCP weld on DSC 16 was significantly larger than the design thickness of 3/16 inch (
The applicant stated that, as part of the original extent of condition review, weld head videos were reviewed by SIA in 2014. For DSCs 13 and 16, the review included video recordings of the ITCP root and cover weld layers and the OTCP tack, root, intermediate and cover weld layers. For DSCs 12, 14 and 15, the review included video recordings of the OTCP tack, root, intermediate and cover weld layers. The applicant stated that no weld head video was available for DSC 11. The DSC 16 outer closure weld was concluded to be the most vulnerable to potential defects because a greater frequency of irregular surface conditions was generated during welding.
The applicant stated that SIA performed further reviews of available weld head videos along with general area videos, welding records, and PAUT results for DSC 16 to identify any correlations between the welding processes used during the 2013 loading campaign and the flaws identified by the PAUT. The applicant stated that, by correlating indications to the particular welding methods used on all six canisters (including DSCs 11-15), a reasonable case was made that the types of indications found on DSC 16 are representative of those that may be found on DSCs 11-15.
For the OTCP, the applicant stated SIA concluded that the defects located within the weld deposit of DSC 16 are believed to be inter-bead lack of fusion formed at the interface between adjacent weld bead surfaces. The applicant stated that when the defects are present in the DSC OTCP closure weld, they would be found at the interfaces between weld beads. The applicant included a schematic showing the DSC OTCP weld bead placement and the position of the lack-of-fusion flaws, which were characterized as parallel and offset. The applicant stated that the possible locations where lack of fusion between the sides of adjacent weld beads could form in the DSC OTCP closure weld would result in defects that are not aligned and which would not extend beyond the thickness of one weld pass layer.
For the ITCP, the applicant stated SIA concluded that the locations of the flaws in DSC 16 indicate that they were related to sidewall lack of fusion. SIA also noted that the weld joint geometry, welding system, and welding setup for the ITCP of DSCs 11-15 had potential for forming defects on the sidewall like those identified in DSC 16. The applicant stated that, from the review, SIA concluded the other five canister ITCP closure welds were welded in a similar manner, using similar welding procedures, equipment, welding process, filler material, and welding operators and thus, it is reasonable to assume the other canister ITCP welds will have similar intermittent defects. In addition, the applicant stated that the vertical weld wall of the weld groove is inherent to a single bevel design, and because there is limited room to tilt the tungsten electrode towards the side wall (DSC shell), any lack-of-fusion defects that might form would likely be located on the vertical sidewall. The applicant concluded that the assumptions made for the ITCP closure weld bounding analysis in DSC 16 were considered reasonable for all ITCP canister closure welds.
The NRC staff reviewed the applicant's summary of the weld head video and general area videos. The NRC staff also reviewed the applicant's supporting analyses including:
• AREVA Calculation 11042-0204, Revision 3, “Allowable Flaw Size Evaluation in the Inner Top Cover Plate Closure Weld for DSC #16” (Exemption Request Enclosure 4);
• AREVA Calculation 11042-0205, Revision 3, “61BTH ITCP and OTCP Closure Weld Flaw Evaluation” (Exemption Request Enclosure 5);
• Structural Integrity Associates, Inc. Report 700388.401, Revision 1, “Evaluation of the Welds on DSC 11-15” (Exemption Request Enclosure 3);
• Structural Integrity Associates Inc. Report 1301415.403, Revision 2, “Assessment of Monticello Spent Fuel Canister Closure Plate Welds Based on Welding Video Records” dated May 22, 2014 (RAI Response 1 Enclosure 8);
• Structural Integrity Associates Inc. Report 1301415.402, Revision 0, “Review of TRIVIS Inc. Welding Procedures used for Field Welds on The Transnuclear NUHOMS® 61BTH Type 1 & 2 Transportable Canister for BWR Fuel” (RAI Response 1 Enclosure 9); and
• RAI Response 2.
The NRC staff determined that, because the same welding process, welding equipment, and welding procedures were used by the personnel that conducted the ITCP and OTCP welds in DSCs 11-16, it is reasonable to conclude, based on engineering judgement that the types of defects in DSC 16 are representative of those that may be in DSCs 11-15. The NRC staff determined that, because the DSCs 11-16 are the same design, were fabricated to the same specifications, and were subjected to the same tests, the analysis conducted for DSC 16 is also applicable to DSCs 11-15.
The NRC staff reviewed the applicant's analysis for the OTCP welds and the description of the OTCP welding based on weld head video described in Exemption Request Enclosure 3, Structural Integrity Associates, Inc. Report 700388.401, Revision 1, “Evaluation of the Welds on DSC 11-15,” Appendix B, “Outer Top Cover Plate Closure Weld Bead Sequence (Based on VID Observations)” and Appendix C, “Tabulated Review of Available VIDS for Monticello DSC-12 thru DSC-16.” The NRC staff also reviewed the information included from the review of the general area video records included in Appendix D of Exemption Request Enclosure 3, “Monticello DSC Video Inspection.” The NRC staff determined that due to the OTCP weld joint design and welding process used in the OTCP closure weld, the likely significant welding defects in the OTCP weld would be lack of fusion between the weld beads or at the interface of the OTCP weld and the OTCP or the interface of the OTCP weld and the DSC shell. Given the geometry of the weld joint, the number of welding passes required to fill the weld joint, the position of each welding pass, and the requirement for in-process visual inspection of the weld after each pass, the NRC staff determined that it is unlikely that a connected lack-of-fusion defect greater than the thickness of one pass would be present. The NRC staff determined that any lack-of-fusion defects in the OTCP would not be aligned because of the weld joint geometry and the positioning of the weld passes required to fill the OTCP weld joint.
With respect to the ITCP welds, the NRC staff reviewed the applicant's analysis for the ITCP welds and the description of the ITCP welding based on weld head video described in Exemption Request Enclosure 3, Structural Integrity Associates, Inc. Report 700388.401, Revision 1, “Evaluation of the Welds on DSC 11-15.” The NRC staff also reviewed the following appendices to Exemption Request Enclosure 3: Appendix A, “Inner Top Cover Plate Closure Weld Bead Sequence (Based on VID Observations)”; Appendix C, “Tabulated Review of Available VIDS for Monticello DSC-12 through DSC-16”; and Appendix D “Monticello DSC Video Inspection.”
The NRC staff notes that it is unclear whether some of the observations in Exemption Request Enclosure 3, Appendix C were in conformance with Procedure 12751-MNGP-OPS-01, Revision 0, “Spent Fuel Cask Welding: 61BT/BTH NUHOMS® Canisters” (RAI Response 1 Enclosure 6). In particular, the NRC staff note that Exemption Request Enclosure 3, Appendix C indicated there were two instances of blow through of the root pass on the OTCP weld of DSC-12. Procedure 12751-MNGP-OPS-01, Revision 0 states such an event would be treated as a major repair with additional NDE and documentation. However, in RAI Response 2, the applicant indicated that these events were weld craters and were not weld root blow through events. While NRC staff was not able to resolve whether these actions taken by the welder were in conformance with the applicable procedure, it was apparent from Exemption Request Enclosure 3, Appendix C that corrective actions were taken to address the weld defects. In addition, the NRC staff determined that either a blow through of the root pass or a weld crater is a localized defect that would, in the worst case, compromise a small length of the root pass. As such, the NRC staff determined that the reported observation of a possible root blow through in two locations is bound by the assumed size of the OTCP welds defects in the flaw evaluation.
The NRC staff determined that for the ITCP weld joint design the likely significant welding defects would be lack of fusion at the interface of the ITCP weld and the ITCP or the interface of the ITCP weld and the DSC shell. Given the geometry of the weld joint, the number of welding passes required to fill the weld joint, the position of each welding pass, and the requirement for in-process visual inspection of the weld after each pass, the NRC staff determined that lack of fusion between the ITCP weld and the DSC shell is likely to be the most significant type of weld defect in this joint. The NRC staff determined that the positioning of the welding electrode necessary to weld the root pass would minimize the chances of a lack-of-fusion defect located at the interface of the ITCP weld and the ITCP. The NRC staff determined that the positioning of the welding electrode necessary to weld the second fill pass would minimize the chances of a lack-of-fusion defect at the interface of the ITCP weld and the DSC shell.
Based on the review of the information provided by the applicant including the review of weld head video for all available DSCs, general area video for all available DSCs, and welding records; the allowable flaw size evaluation in the ITCP closure weld for DSC 16; and the ITCP and OTCP closure weld flaw evaluation for a 61BTH DSC based on the DSC 16 PAUT results, the NRC staff concludes that the applicant has adequately considered the sizes and location of potential weld flaws to evaluate the stress margins in the ITCP and OTCP welds of DSCs 11-15. The NRC staff structural review for the requested exemption follows the materials review.
Additional Strain Margins in Welds (Exemption Request Enclosures 6 through 9): The applicant stated that additional analysis was performed to maximize the size of flaws present in locations consistent with the results of the DSC 16 PAUT to demonstrate substantial margin to account for potential flaw uncertainties. In addition, the applicant stated that DSCs 11-15 site-specific heat load conditions were applied to demonstrate additional weld margin exists and is available to account for any remaining flaw uncertainty. The applicant stated that the analysis used design basis loads with flaws present in locations consistent with the DSC 16 PAUT results and maximized in size such that the weld flaws approach acceptable design limits.
The applicant stated that the two maximum modeled weld flaws for OTCP to DSC shell weld are 0.43 inch and 0.42 inch in height, which represents about 85% through-wall of the 0.5-inch minimum weld throat. The applicant stated that the maximum modeled full-circumferential weld flaws
The NRC staff reviewed the applicant's analysis for the ITCP and OTCP weld flaws along with the applicant's summary of the welding video recordings and the PAUT examination results for DSC 16. For the ITCP weld, the NRC staff assessed the geometry of the weld joint, the positioning of the welding electrode in both the root and the final fill pass along with the requirement for in-process visual inspection of the weld after each pass. For the OTCP weld, the NRC staff assessed the geometry of the weld joint, the number of welding passes required to fill the weld joint, the position of each welding pass, along with the requirement for in-process visual inspection of the weld after each pass. The NRC staff determined that any lack-of-fusion defects in the ITCP and OTCP would not be aligned and would not result in a defect greater than the thickness of one pass given the weld joint geometry and the positioning of the weld passes required to fill the ITCP and OTCP weld joints. Thus, the NRC staff determined that the flaws assessed in Exemption Request Enclosure 6 are both unlikely to occur in any of the DSCs loaded in the 2013 campaign and the flaws assessed in Exemption Request Enclosure 6 conservatively bound any possible welding defects that are likely to exist in the DSC 11-15 OTCP welds.
Based on the review of the information provided by the applicant including the analysis of flaws analyzed from the PAUT examination of the ITCP and OTCP welds of DSC 16 and the assumed maximized flaws that exceed the weld bead deposit thickness, the NRC staff concludes that the applicant's analysis of stress margins in the ITCP and OTCP welds of DSCs 11-15 conservatively assumed weld flaws that are much larger than would be reasonably expected. This is due to the combination of the materials of construction, weld joint designs, and the welding process used for the ITCP and OTCP welds.
For the DSC 11-15 closure weld structural functions assessment, which was done by analysis, the applicant noted that the previous evaluations to demonstrate adequate strain margins of safety of the DSC 16 closure welds also support the current exemption request. These evaluations were provided in the following reports:
• SIA Report 1301415.301, Revision 0, “Development of an Analysis Based Stress Allowable Reduction Factor (SARF)—Dry Shielded Canister (DSC) Top Closure Weldments” (Exemption Request Enclosure 2);
• AREVA Calculation 11042-0204, Revision 3, “Allowable Flaw Size Evaluation in the Inner Top Cover Plate Closure Weld for DSC #16” (Exemption Request Enclosure 4); and
• AREVA Calculation 11042-0205, Revision 3, “61BTH ITCP and OTCP Closure Weld Flaw Evaluation” (Exemption Request Enclosure 5).
The evaluations performed on the DSC 16 closure welds included: (1) A structural analysis using an analysis-based stress allowance reduction factor and theoretically-bounding full-circumferential flaws to demonstrate that finite element analysis (FEA) simulation is suitable for analyzing the structural performance of the weld as a continuum with multiple embedded flaws; (2) a calculation that documents the allowable critical flaw size in the ITCP closure weld based on the maximum design basis radial stresses in the welds; and (3) a structural analysis demonstrating large weld strain margins of safety with conservative assumptions of flaw distribution and size derived from the DSC 16 PAUT examination results.
However, to demonstrate adequate strain margin and to accommodate flaws in the DSCs 11-15 closure welds, the applicant provides a FEA simulation evaluation in SIA Report, 700388.401, Revision 1, “Evaluation of the Welds on DSCs 11-15,” (Exemption Request Enclosure 3) to support that the flaw distribution and size based on the PAUT examination results for the DSC 16 closure weld performance can be used to conservatively represent the closure weld flaws for DSCs 11-15. As noted in the
Specifically, in Calculation 11042-0207, the applicant asserts that there are adequate strain margins in the welds to accommodate flaws for DSCs 11-15. The DSCs are subject to the design basis temperature, pressure, and side-drop loading conditions and are analyzed per the ASME Code Section III criteria, using the limit load and elastic-plastic analyses. In Calculation 11042-0208, the applicant asserts additional strain margin in the DSCs 11-15 closure welds. The maximum flaws, the analysis methodology and the evaluation criteria are the same as those of Calculation 11042-0207. However, in lieu of the design basis loading, the analysis used the as-loaded DSC cavity pressure, which is site-specific and temperature dependent. The at-temperature material yield strengths are used, which are higher than those associated with the design basis loading.
It is noted that the exemption request also included Calculation 11042-0209 (Exemption Request Enclosure 8) to demonstrate additional weld strain margin for DSCs 11-15 subject to the site-specific side-drop loading condition. The NRC staff neither approves, nor rejects, and is not expressing any view related to the material in the calculation, as it did not enter into the NRC evaluation.
The NRC staff reviewed the above two calculation reports on the structural performance of the DSC 11-15 closure welds. In Calculation 11042-0207, the applicant followed the same analysis method used in Calculation 11042-0205 for DSC 16 to demonstrate adequate strain margin in DSCs 11-15 closure welds. The applicant noted that the finite element model details and structural performance acceptance criteria are the same except that the maximized flaw configuration is postulated to result in much larger flaws than those associated with DSC 16 to provide additional insights into the weld structural performance.
To arrive at the maximized configuration, the flaws modeled in
Using the maximized flaws, the applicant performed limit load analyses in Calculation 11042-0207 for two DSC design basis internal pressures of 32 psi and 65 psi for the ASME Code Service Level A/B and Service Level D evaluations, respectively. The analyses resulted in the calculated collapse pressures of 86.3 psi for Service Level A/B and 122.2 psi for Service Level D. The collapse pressures are acceptable because they are greater than the respective ASME Code limit-load analysis acceptance criteria of 60 psi and 90.2 psi. Similarly, for the design basis DSC side-drop of 75 g, the applicant used the 3D half-symmetric model to perform a Service Level D limit load analysis. The applicant determined the side-drop collapse load to be approximately 179.5 g, which includes an off-normal DSC design basis internal pressure of 20 psi as a boundary condition. This determination is acceptable because the collapse load is greater than the required side-drop load of 104 g to satisfy the ASME Code limit-load analysis acceptance criteria.
To address the potential material rupture associated with high plastic strain concentrations at the weld flaws, the applicant performed elastic-plastic analyses in Calculation 11042-0207 to quantify strain margins of safety for the DSCs 11-15 with maximized flaws. This concern was addressed by considering a Ramberg-Osgood idealization of the stress-strain curve for SA-240 Type 301 stainless steel, which recognizes strain hardening effects for the FEA modeling. The elastic-plastic analyses resulted in the peak equivalent plastic strains of 7.4 percent and 11.1 percent for the Service Level D design basis pressure of 65 psi and side-drop of 75 g, respectively. For the strain margin evaluation, the applicant continued to use the same DSC 16 weld strain acceptance criterion of not exceeding the 28 percent elongation limit, which is a reduction from the ASME B&PV Code specified weld elongation limit of 35 percent by a factor of 0.8 (0.35 × 0.8 = 0.28). Considering the 28 percent elongation limit, the strain margins of safety corresponding to the calculated peak equivalent plastic strains are 2.78 {(0.28/0.074)−1 = 2.78} and 1.52 {(0.28/0.111)−1 = 1.52}, respectively. Because the margins of safety are all positive (
Additionally, similar to the analysis used to supplement qualification of the DSC 16 closure welds, the applicant considered a 150 percent of the design basis loading to evaluate the DSCs 11-15 welds. The analysis used a DSC internal pressure of 100 psi (65 × 1.5 = 97.5 <100 psi) and a side-drop of 112.5 g (75 × 1.5 = 112.5 g), which are beyond the ASME B&PV Code, Section III, Paragraph NB-3228.3 Plastic Analysis provisions. The calculated peak equivalent plastic strains are 13.6 percent and 23.0 percent for the respective pressure and side-drop loading cases. For the weld strain margin evaluation, the applicant continued to use the same 28 percent weld elongation limit which resulted in the weld strain margins of safety of 1.06 {(0.28/0.0136)−1 = 1.06} and 0.22 {(0.28/0.23)−1 = 0.22}, respectively. Because all margins of safety are positive, even in loading conditions that are 50 percent beyond those required for evaluating localized strains by the elastic-plastic analysis, the NRC staff concludes that there are adequate strain margins on the welds to accommodate flaws for DSCs 11-15.
The applicant noted that there are additional strain margins in the closure welds of DSCs 11-15 owing to the site-specific as-loaded temperature and DSC internal pressure conditions at MNGP, which are less severe than those associated with the design basis conditions. In Calculation 11042-0208 (Exemption Request Enclosure 7), the applicant performed evaluations using the temperature and pressure conditions specific to DSCs 11-15. The evaluation follows the same Calculation 11042-0207 analysis method and acceptance criteria, including the same maximized flaws. The applicant indicated that the evaluations were intended to address any remaining uncertainties related to potential flaws that may be present in DSCs 11-15 by demonstrating existence of additional strain margins in the closure welds.
Using the site-specific 370 °F at-temperature material yield strength of 21.2 ksi for the SA-240 Type 304 stainless steel, the applicant determined the Service Level D limit load collapse pressure is 144.1 psi. This pressure is significantly higher than the DSC at-temperature internal pressure of 45.9 psi and the ASME Code limit-load collapse pressure acceptance criteria of 90.2 psi. Correspondingly, using the site-specific 237 °F at-temperature material yield strength of 24.0 ksi, together with the off-normal at-temperature internal pressure of 10.9 psi as a boundary condition, the applicant determined the collapse side-drop g-load to be 204 g. This site-specific collapse side-drop is also much greater than the ASME Code limit-load collapse side-drop g-load acceptance criteria of 104 g associated with the design basis 500 °F at-temperature material yield strength of 19.4 ksi.
To determine the strain margins of safety for the site-specific temperature and pressure, the applicant performed elastic-plastic analyses for DSCs 11-15 with the maximized flaws in the OTCP- and ITOP-to-shell welds. Using the analysis approach in Calculation 11042-0207, the applicant calculated the peak equivalent plastic strains of 4.4 percent and 9.8 percent for the Service Level D internal pressure of 45.9 psi and the design basis side-drop of 75 g, respectively. For the same weld elongation limit of 28 percent, the corresponding strain margins of safety are calculated to be 5.36 {(0.28/
On the basis of the review above, the NRC staff concludes that the limit load and elastic-plastic analysis results showed that the welds would undergo localized plastic deformation. The applicant's evaluation indicated that no weld material rupture or breach of the DSCs 11-15 confinement boundary at the closure welds is expected because of the adequate margins of safety against the weld elongation limits. For this reason, the NRC staff has reasonable assurance to conclude that the ITCP and OTCP welds of DSCs 11-15 have adequate structural margins of safety for the ASME Code Service Level D design criteria, which bound the normal, off-normal, and accident (including natural phenomenon) conditions for the subject weld structural integrity evaluation. The NRC staff also finds that the retrievability of DSCs 11-15 is ensured based on the demonstration of adequate weld strain margins of safety discussed above.
The NRC staff reviewed the applicant's exemption request and also evaluated its effect on DSCs 11-15 thermal performance. The NRC staff concludes that the cask thermal performance is not affected by the exemption request because the applicant has shown that a satisfactory helium leak test was conducted on DSCs 11-15, which is integral to ensuring integrity of the primary confinement boundary. Integrity of the primary confinement boundary assures the spent fuel is stored in a safe inert environment with unaffected heat transfer characteristics that assure peak cladding temperatures remain below allowable limits. The NRC staff also concludes that the applicant demonstrated the lack of a through-weld flaw in the ITCP and siphon/vent block weld sufficient to cause a loss of cavity helium. This satisfies 10 CFR 72.236(f) which requires that the cask be designed to have adequate heat removal capacity without active cooling systems and 10 CFR 72.122(h) which states that the fuel cladding during storage must be protected against degradation and gross rupture. Therefore, based on the NRC staff's review of the applicant's evaluation and technical justification, the NRC staff finds the exemption request acceptable by virtue of the demonstrable structural integrity of the ITCP and siphon/vent plate welds.
The NRC staff finds that the thermal function of DSCs 11-15, loaded under CoC No. 1004, Amendment No. 10, addressed in the exemption request remains in compliance with 10 CFR part 72.
The NRC staff finds that the criticality safety and shielding function of DSCs 11-15, loaded under CoC No. 1004, Amendment No. 10, addressed in the exemption request remains in compliance with 10 CFR part 72.
As described in the applicant's “Exemption Request for Nonconforming Dry Shielded Canister Dye Penetrant Examinations” (Exemption Request Enclosure 1), certain elements of the DSCs 11-15 closure weld PT examinations did not comply with examination procedures associated with TS 1.2.5. To support the exemption request, the applicant noted that a helium leakage rate test of the closure's confinement boundary, including ITCP weld, siphon cover plate weld, and vent port cover plate weld, were conducted per TS 1.2.4a and demonstrated that the primary confinement barrier field welds met the TS acceptance criterion of leaktight as defined by ANSI N14.5-1997. The applicant noted that the confinement integrity is not affected by the non-compliant PT examination procedures. The NRC staff concludes that not performing the PT examination procedures relevant to this exemption request would not change the results of the helium leakage test, which is integral to ensuring closure confinement
It is noted that a dose-related analysis was included as Enclosure 10 of the Exemption Request. NRC staff neither approves, nor rejects, and is not expressing any view related to the material in that enclosure, as it did not enter into the evaluation.
NUREG-1864, “A Pilot Probabilistic Risk Assessment of a Dry Cask Storage System at a Nuclear Power Plant” (ADAMS Accession No. ML071340012) provides guidance for assessing the risk to the public and for identifying the dominant contributors to risk for performing probabilistic risk assessments (PRAs) of a dry cask storage system located at a nuclear power plant site. NUREG-1864 documents a pilot PRA conducted for a dry cask storage system (Holtec International HI-STORM 100) at a Boiling Water Reactor (BWR) Mark 1 plant. The risk assessment estimated the annual off-site risk for one cask in terms of individual probability of a prompt fatality and a latent cancer fatality. It does not consider risk to workers or future off-site transportation of DSCs.
The applicant applied the methodology and results in NUREG-1864 to perform the risk assessment. The risk assessment compared the NUHOMS® and HI-STORM-100 dry spent fuel storage systems and determined the designs are similar with a few basic differences. Both storage systems include canisters for confining dry spent fuel. The canisters have similar design and dimensions and are made of stainless steel of similar thickness and are required to meet the same ASME class (ASME B&PV, Section III, and Subsection NB). The HI-STORM 100 system consists of a multipurpose canister (MPC) that confines spent fuel assemblies, a transfer overpack that provides shielding during canister preparation, and a vertical, cylindrical storage overpack that provides shielding during long-term storage.
Both MNGP and Hatch (the plant selected for the Pilot PRA) are BWR, Mark 1 plants; therefore, the storage systems are exposed to similar handling hazards. The potential drop heights for loaded TCs moving across the refueling floor, or lowering from the height of refueling floor to the ground floor of the equipment hatch are very similar. The potential impact surfaces are also similar.
The NUHOMS® system is comprised of a DSC, a TC, and an HSM. A transfer trailer is used to move the loaded TC. Two key differences exist between the NUHOMS® and the HI-STORM dry spent fuel storage operations. First, the NUHOMS® TC is placed horizontally on the transfer trailer and is not subject to accidental drops when moving between the ISFSI and fuel building. Second, transferring NUHOMS® DSC between the TC and the HSM is done horizontally; thus, the NUHOMS® DSC is not subject to any potential vertical drop. During storage on an ISFSI pad, the horizontal-storage design of the HSM eliminates the risk of tip over caused by seismic activities or wind-driven missiles. Aircraft impact on the HSM is limited to only large aircrafts and the methodology considered the distance to local airfields and planes that operate in the area. The NUREG-1864 frequency estimate for meteorite strikes per unit area is used in this assessment, and the analysis is adjusted for the larger horizontal surface area of the HSM.
In the risk assessment, the potential radiological consequences are based on a comparison of the spent fuel in the MNGP DSC and the spent fuel modeled in NUREG-1864. In NUREG-1864, the HI-STORM 100 MPC contained 68 BWR fuel assemblies with 10-year-old high-burnup (50 GWD/MTU) fuel. The MNGP NUHOMS® DSC contains 61 BWR fuel assemblies with 15.5-year-old fuel of 41 GWD/MTU (not high burnup) fuel. The plume heat content for a cask release is estimated to be that of the spent fuel. NUREG-1864 estimates the maximum decay heat load to be 264 watts per assembly. The estimated maximum decay heat load for MNGP DSC is approximately 220 watts per assembly. The risk assessment analysis assumes that the source term from NUREG-1864 adequately represents or bounds those of the MNGP configuration. The NRC staff agrees that this is reasonable based on the applicant's assessment which shows NUREG-1864 radionuclide inventory is 7.0 times higher than that of MNGP DSC.
The NUREG-1864 evaluation of misload concluded MPC integrity would not be affected unless a gross series of errors occurred. The errors would have to result in nearly every fuel assembly loaded into the MPC being incorrect and insufficiently cooled. NUREG-1864 concluded this gross misload scenario was not credible. Therefore, the risk assessment did not explore risk from misloading of spent fuel.
The applicant's risk assessment assumes the annual risk for a DSC while stored on the ISFSI would be the same for both alternatives. The risk assessment identified three types of mechanical failure that could cause significant radiological releases to the environment: drop accidents, meteorite strikes, and overflight aircraft accidents. The primary difference in risk between the two alternatives, continued storage at the ISFSI versus moving a DSC back to the spent fuel pool area for PAUT, are potential drop accidents during lifting and lowering of a DSC between the ground floor and the height of the refueling floor.
The applicant's risk assessment accounted for possible added risk from a potential flaw around the canister lid by assuming the probability of lid failure would be same as for the DSC shell in drop accidents. This assumption doubles the estimated probability for a release from drop accidents. Strain analysis in NUREG-1864 reports the most highly stressed regions of the MPC for a drop accident are in areas near the base of the cylindrical shell and in the weld joining the shell to the baseplate. Since the top side of a canister is not expected to experience significant strain, the NRC staff agrees that the assumption is conservative and bounds the probability of a release occurring following a drop accident.
The NRC staff reviewed the applicant's risk assessment and agrees
The assessment of difference in risk between the proposed alternatives was performed based on evaluation data from NUREG-1864. The MNGP off-site consequence is based on individual risk and not absolute population difference. Based on the considerations taken into account for the difference between the NUREG-1864 MPC and the MNGP DSCs in this assessment, the NRC staff finds the risk assessment calculation to be reasonable because the applicant used accepted methods and the site-specific considerations were addressed in an appropriately conservative manner.
The purpose of this assessment is to compare the risk associated with leaving these DSCs as-is at the ISFSI versus transferring the five DSCs back to the refueling floor for PAUT, and then returning them to the ISFSI for storage. The process of returning the five DSCs to the refueling floor for PAUT incurs additional crane operation. The inadvertent drop frequency for heavy loads (NUREG-1774, “A Survey of Crane Operating Experience at U.S. Nuclear Power Plants from 1968 through 2002”, ADAMS Accession No. ML032060160) is 5.6×10
In considering whether granting the exemption is in the public interest, the NRC staff considered the alternative of not granting the exemption. If the exemption were not granted, in order to comply with the CoC, either (1) DSCs 11-15 would have to be removed from their respective HSMs, opened and unloaded, and the contents loaded in new DSCs, with each of those new DSCs welded and tested, or (2) removed from the HSMs to allow access to the OTCP to be machined off, and the ITCP weld machined down to the root weld; and each DSC, ITCP and OTCP inspected to determine if there was any damage as a result of the machining (which would then necessitate the actions detailed in option 1); or (3) conduct PAUT by opening the HSMs to conduct in-situ testing (which is limited to less than 360° of the weld circumference) or transferring to a TC for testing on the ISFSI pad or in the reactor building (essentially Alternative 2 in the
The proposed exemption to permit continued storage of DSCs 11-15 in their respective HSMs for the service life of the canisters at the MNGP ISFSI is consistent with NRC's mission to protect public health and safety. Approving the requested exemption reduces the opportunity for a release of radioactive material compared to the alternatives to the proposed action, because there will be no operations involving the opening of the DSCs, which confine the spent nuclear fuel, and there will be no operations involving the opening of the HSMs potentially exposing radioactive waste to the environment. Therefore, the exemption is in the public interest.
The NRC staff also considered in the review of this exemption request whether there would be any significant environmental impacts associated with the exemption. The NRC staff determined that this proposed action fits a category of actions that do not require an environmental assessment or environmental impact statement. Specifically, the exemption meets the categorical exclusion in 10 CFR 51.22(c)(25).
Granting this exemption from 10 CFR 72.212(a)(2), 72.212(b)(3), 72.212(b)(5)(i), 72.214, and 72.212(b)(11) only relieves the applicant from the inspection or surveillance requirements associated with performing PT examinations with regard to meeting TS 1.2.5 of Attachment A of CoC No. 1004. A categorical exclusion for inspection or surveillance requirements is provided under 10 CFR 51.22(c)(25)(vi)(C) if the criteria in 10
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
Based on the foregoing considerations, the NRC staff has determined that, pursuant to 10 CFR 72.7, the exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the NRC grants the applicant an exemption from the requirements of 10 CFR 72.212(a)(2), 72.212(b)(3), 72.212(b)(5)(i), 72.212(b)(11), and 72.214 only with regard to meeting TS 1.2.5 of Attachment A of CoC No. 1004 for DSCs 11-15.
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Facility Operating License No. NPF-87, issued to Vistra Operations Company LLC (the licensee), for operation of the Comanche Peak Nuclear Power Plant (CPNPP), Unit No. 1. The proposed exigent amendment would revise CPNPP Technical Specification (TS) 3.8.4, “DC [Direct Current] Sources—Operating,” to allow the licensee additional time to replace two affected battery cells in the safety-related batteries for CPNPP, Unit No. 1. Specifically, the proposed one-time change would add a Required Action to TS 3.8.4, Condition B, to extend the completion time from 2 hours to 18 hours to repair each affected battery cell.
Submit comments by October 2, 2018. Requests for a hearing or petition for leave to intervene must be filed by November 19, 2018.
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
Margaret O'Banion, Office of Nuclear Reactor Regulation,
Please refer to Docket ID NRC-2018-0205 or Docket No. 50-445 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-2018-0205 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is considering issuance of an amendment to Facility Operating License No. NPF-87 issued to Vistra Operations Company LLC (the licensee), for operation of the CPNPP, Unit No. 1, located in Somervell County, Texas.
The proposed exigent amendment would revise CPNPP TS 3.8.4, “DC Sources—Operating,” to allow the licensee additional time to replace two affected battery cells in the Train B safety-related batteries for CPNPP, Unit No. 1. Specifically, the proposed one-time change would add a new Required Action to TS 3.8.4, Condition B, to extend the completion time from 2 hours to 18 hours to repair each affected battery cell. On November 8, 2017, the licensee experienced cell jar cracking on cell 41 in battery BT1ED4. On July 2, 2018, the licensee experienced cell jar cracking on cell 27 in battery BT1ED2. Both affected battery cells have been jumpered out to restore operability of Unit No. 1, Train B batteries BT1ED4 and BT1ED2. The licensee stated that by replacing the affected battery cells, the licensee would regain margin on its safety-related batteries.
In accordance with the requirements of paragraph 50.91(a)(6) of title 10 of the
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
Pursuant to 10 CFR 50.91(a)(6), for amendments to be granted under exigent circumstances, the NRC has made a proposed determination that the license amendment request involves no significant hazards consideration. Under the NRC's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes add provisions to increase the COMPLETION TIME (CT) from two hours to eighteen hours, on a one-time basis for Comanche Peak Nuclear Power Plant Class 1E Batteries BT1ED2 and BT1ED4. This one-time increase will only be used once per battery during Unit 1 Cycle 20 (not at the same time). An additional REQUIRED ACTION, new Note, and associated COMPLETION TIME is specified when batteries BT1ED2 and BT1ED4, associated with the plant Class 1 E Direct Current (DC) electrical power subsystem, are declared inoperable to replace a jumpered cell. The proposed changes do not physically alter any plant structures, systems, or components, and are not accident initiators: therefore, there is no effect on the probability of accidents previously evaluated. As part of the single failure design feature, loss of any one DC electrical power subsystem does not prevent the minimum safety function from being performed. Also, the proposed changes do not affect the type or amounts of radionuclides release following an accident, or affect the initiation and duration of their release. Therefore, the consequences of accidents previously evaluated, which rely on the safety related Class 1E battery to mitigate, are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not involve a change in design, configuration, or method of operation of the plant. The proposed changes will not alter the manner in which equipment is operated, nor will the functional demands on credited equipment be changed. The proposed changes do not impact the interaction of any systems whose failure or malfunction can initiate an accident. There are no identified redundant components affected by these changes and thus there are no new common cause failures
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed changes are based upon a deterministic evaluation. This evaluation is supplemented by risk information.
The deterministic evaluation concluded with one inoperable battery associated with the Class 1E DC electrical power subsystem, the redundant OPERABLE Class 1E DC electrical power subsystems will be able to perform the safety function as described in the accident analysis.
Supplemental risk information supporting this license amendment request concluded that the additional REQUIRED ACTION, new Note, and associated COMPLETION TIME have a negligible impact on overall plant risk and is consistent with the NRC Safety Goal Policy statement and the thresholds in Regulatory Guide (RG) 1.174, “An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis,” and RG 1.177, “An Approach for Plant-Specific, Risk-Informed Decisionmaking: Technical Specifications.”
The deterministic evaluation and the supplemental risk information provide assurance that the plant Class 1E DC electrical power subsystem will be able to perform its design function with a longer COMPLETION TIME for inoperable batteries BT1ED2 and BT1ED4 during Unit 1 Cycle 20, and risk is not significantly impacted by the change.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves a no significant hazards consideration.
The NRC is seeking public comments on this proposed determination that the license amendment request involves no significant hazards consideration. Any comments received within 14 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 14-day notice period. However, if circumstances change during the notice period, such that failure to act in a timely way would result, for example, in shutdown of the facility, the Commission may issue the license amendment before the expiration of the 14-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received. If the Commission takes this action, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated September 5, 2018.
For the Nuclear Regulatory Commission.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 14(c) of the Securities Exchange Act of 1934 (the “Exchange Act”) operates to require issuers that do not solicit proxies or consents from any or all of the holders of record of a class of securities registered under Section 12 of the Exchange Act and in accordance with the rules and regulations prescribed under Section 14(a) in connection with a meeting of security holders (including action by consent) to distribute to any holders that were not solicited an information statement substantially equivalent to the information that would be required to be transmitted if a proxy or consent solicitation were made. Regulation 14C (Exchange Act Rules 14c-1 through 14c-7 and Schedule 14C) (17 CFR 240.14c-1 through 240.14c-7 and 240.14c-101) sets forth the requirements for the dissemination, content and filing of the information statement. We estimate that Schedule 14C takes approximately 130.9197 hours per response and will be filed by approximately 569 issuers annually. In addition, we estimate that 75% of the 130.9197 hours per response (98.1898 hours) is prepared by the issuer for an annual reporting burden of 55,870 hours (98.1898 hours per response × 569 responses).
Written comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
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 control number.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Candace Kenner, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Rule 404A, Select Provisions of Options Listing Procedures Plan, Rule 406, Long-Term Option Contracts, and Rule 1809, Terms of Index Options Contracts.
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 proposes to amend MIAX Options Rule 404A, Select Provisions of Options Listing Procedures Plan, Rule 406, Long-Term Option Contracts, and Rule 1809, Terms of Index Options Contracts, to conform its rules to the recently approved changes to the Options Listing Procedures Plan (“OLPP”), as well as to the rules of other exchanges.
First, the OLPP has been amended to change the earliest date on which new January LEAPS on equity options, options on Exchange Traded Funds (“ETF”), or options on Trust Issued Receipts (“TIR”) may be added to a single date (from three separate months). As noted in the OLPP Notice, in the past, there were operational concerns related to adding new January LEAPs series for all options classes on which LEAPs were listed on a single trading day.
Second, the OLPP has been amended to allow equity, ETF, and TIR option series to be added based on trading after regular trading hours (
The Exchange proposes to modify Rule 406(b) to delete now obsolete operational language, which dates back to when LEAPs were first adopted. The language in question provides that:
After a new long-term option contract series is listed, such series will be opened for trading either when there is buying or selling interest, or forty (40) minutes prior to the close, whichever occurs first. No quotations will be posted for such options series until they are opened for trading.
The Exchange proposes to delete this language because when this language was adopted LEAPs were not opened for trading until late in the trading day unless there was buying or selling interest. Today, however, technological improvements allow the Exchange to open all LEAP series at the same time as all other series in an option class.
For the same reasons as described above, the Exchange also proposes to modify Rule 1809(b)(1)(ii) to delete similar obsolete operational language, which relates to long-term index options series, and provides that:
When a new long-term index options series is listed, such series will be opened for trading either when there is buying or selling interest, or forty (40) minutes prior to the close, whichever occurs first. No quotations will be posted for such options series until they are opened for trading.
The Exchange proposes to make certain changes to conform its rules to the rules of other exchanges and to codify a certain provision in the OLPP that is not currently included in its rules. First, the Exchange proposes to add additional clarifying language to Rule 406(b). Specifically, the Exchange proposes to add a paragraph to note that, pursuant to the OLPP, “exchanges that list and trade the same equity option class, ETF option class, or TIR option class are authorized to jointly determine and coordinate with the Options Clearing Corporation on the date of introduction of new LEAP series for that option class consistent with this paragraph (b).” This clarifying language is identical to language contained in other exchanges' rules.
Second, Amendment 2 to the OLPP
The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act
In particular, the proposed rule change, which conforms to the recently adopted provisions of the OLPP, as amended, allows the Exchange to continue to list extended far term option series that have been viewed as beneficial to traders, investors and public customers. Accordingly, the Exchange believes that the proposal is consistent with the Act because it will allow the Exchange to list all January 2021 expiration series on the Monday prior to the September 2018 expiration. Moreover, this change would simplify the process for adding new January LEAP options series and reduce potential for investor confusion because all new January LEAP options would be made available beginning at the same time, consistent with the amended OLPP. The Exchange notes that this proposal does not propose any new provisions that have not already been approved by the Commission in the amended OLPP, but instead maintains series listing rules that conform to the amended OLPP.
The proposal to permit series to be added based on after-market trading is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system, by allowing the Exchange to make series available for trading with reduced operational difficulties. The Exchange notes that this proposed change, which is consistent with the amended OLPP should provide market participants with earlier notice regarding what options series will be available for trading the following day, and should help to enhance investors' ability to plan their options trading. The Exchange also believes that the proposed technical changes, including deleting obsolete language and reorganizing and consolidating the rule, promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in facilitating transactions in securities, and remove impediments to and perfect the mechanism of a free and open market and a national market system. Furthermore, the Exchange believes that the proposed conforming changes, adding language to Rule 406, promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in facilitating transactions in securities, and remove impediments to and perfect the mechanism of a free and open market and a national market system by providing clarity and consistency to the rules, and creating uniformity amongst exchanges with respect to rules related to the OLPP.
MIAX Options does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that by conforming Exchange rules to the amended OLPP, the Exchange would promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection. The Exchange believes that adopting rules, which it anticipates will likewise be adopted by Participant Exchanges, would allow for continued competition between Exchange market participants trading similar products as their counterparts on other exchanges, while at the same time allowing the Exchange to continue to compete for order flow with other exchanges in option issues.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to list and trade under BZX Rule 14.11(c)(4) the shares of the iShares iBonds Dec 2025 Term Muni Bond ETF (the “Fund”) of iShares Trust (the “Trust”).
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the Fund under BZX Rule 14.11(c)(4),
Rule 14.11(c)(4)(B)(i)(b) requires that component fixed income securities that, in the aggregate, account for at least 75% of the weight of the index or portfolio shall have a minimum principal amount outstanding of $100 million or more. The Exchange submits this proposal because the Underlying Index does not meet this requirement. The Underlying Index does, however, meet all of the other requirements of Rule 14.11(c)(4).
BlackRock Fund Advisors (“BFA”) is the investment adviser to the Fund.
According to the Registration Statement, the Fund will seek to track the investment results, before fees and expenses, of the S&P AMT-Free Municipal Series Dec 2025 Index (the “Underlying Index”), which measures the performance of investment-grade (as determined by Index Provider), non-callable U.S. municipal bonds maturing in 2025. The Underlying Index includes municipal bonds from issuers that are state or local governments or agencies such that the interest on each such bond is exempt from U.S. federal income taxes and the federal alternative minimum tax (“AMT”) (“Municipal Securities”).
As of July 13, 2018, the Underlying Index included 4,823 component fixed income municipal bond securities from issuers in 51 different states or U.S. territories.
Each bond in the Underlying Index must be denominated in U.S. dollars, must have a minimum par amount of $2 million. To remain in the Underlying Index, bonds must maintain a minimum par amount greater than or equal to $2 million as of the next rebalancing date. The Underlying Index includes Municipal Securities from issuers that are state or local governments or agencies such that the interest on each such bond is exempt from U.S. federal income taxes and the AMT. Each bond in the Underlying Index must be investment-grade (
The Fund's holdings may include only the following types of Municipal Securities: General obligation bonds,
Under normal market conditions,
In the last months of operation, as the bonds held by the Fund mature, the proceeds will not be reinvested in bonds but instead will be held in cash and cash equivalents, including, without limitation, shares of money market funds advised by BFA or its affiliates (“BlackRock Cash Funds”), AMT-free tax-exempt municipal notes, variable rate demand notes and obligations, tender option bonds and municipal commercial paper. These cash equivalents may not be included in the Fund's benchmark index.
Based on the characteristics of the Underlying Index and the representations made in the Requirements for Index Constituents section above, the Exchange believes it is appropriate to allow the listing and trading of the Shares. The Underlying Index and Fund satisfy all of the generic listing requirements for Index Fund Shares based on a fixed income index, except for the minimum principal amount outstanding requirement of 14.11(c)(4)(B)(i)(b). The Exchange notes that the representations in the Requirements for Index Constituents for the Underlying Index are identical to the representations made regarding the S&P AMT-Free Municipal Series Dec 2023 Index and the S&P AMT-Free Municipal Series Dec 2024 Index (the “Comparable Indexes”), each underlying a series of Index Fund Shares that were previously approved for listing and trading by the Commission.
The Approval Order included the representation that a bond must be investment-grade and must have an outstanding par value of at least $2 million in order to be included in the Comparable Indexes. To remain in the Underlying Index, bonds must be investment-grade and maintain a minimum par amount greater than or equal to $2 million and, further, BFA has represented that the Underlying Index will have at least 500 constituents on a continuous basis. As such, the Exchange believes that the proposal is consistent with the Act because the representations regarding the quality and size of the issuances included in the Underlying Index provide a strong degree of protection against index manipulation that is consistent with other proposals that have been approved for listing and trading by the Commission, which is only furthered by the additional representation that the Underlying Index will have at least 500 constituents on a continuous basis, which ensures diversification among constituent securities.
In addition, the Exchange represents that: (1) Except for Rule 14.11(c)(4)(B)(i)(b), the Underlying Index currently satisfies all of the generic listing standards under Rule 14.11(c)(4); (2) the continued listing standards under Rule 14.11(c), as applicable to Index Fund Shares based on fixed income securities, will apply to the Shares; and (3) the issuer of the Fund is required to comply with Rule 10A-3
The current value of the Underlying Index will be widely disseminated by one or more major market data vendors at least once per day, as required by Rule 14.11(c)(4)(C)(ii). The portfolio of securities held by the Fund will be disclosed daily on the Fund's website at
The Exchange's existing rules require that the issuer of the Fund notify the Exchange of any material change to the methodology used to determine the composition of the Underlying Index and, therefore, if the methodology of the Underlying Index was changed in a manner that would materially alter its existing composition, the Exchange would have advance notice and would evaluate the modifications to determine
The Fund's website, which will be publicly available prior to the public offering of Shares, will include a form of the prospectus for the Fund that may be downloaded. The website will include additional quantitative information updated on a daily basis, including, for the Fund: (1) The prior business day's reported NAV, daily trading volume, and a calculation of the premium and discount of the Bid/Ask Price against the NAV; and (2) data in chart format displaying the frequency distribution of discounts and premiums of the daily Bid/Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters. Daily trading volume information for the Shares will also be available in the financial section of newspapers, through subscription services such as Bloomberg, Thomson Reuters, and International Data Corporation, which can be accessed by authorized participants and other investors, as well as through other electronic services, including major public websites. On each business day, the Fund will disclose on its website the identities and quantities of the portfolio of securities and other assets in the daily disclosed portfolio held by the Fund that formed the basis for the Fund's calculation of NAV at the end of the previous business day. The daily disclosed portfolio will include, as applicable: The ticker symbol; CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts, or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The website and information will be publicly available at no charge. The value, components, and percentage weightings of the Underlying Index will be calculated and disseminated at least once daily and will be available from major market data vendors. Rules governing the Underlying Index are available on S&P's website and in the Fund's prospectus.
In addition, an estimated value, defined in BZX Rule 14.11(c)(6)(A) as the “Intraday Indicative Value,” that reflects an estimated intraday value of the Fund's portfolio, will be disseminated. Moreover, the Intraday Indicative Value will be based upon the current value for the components of the daily disclosed portfolio and will be updated and widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Regular Trading Hours.
The dissemination of the Intraday Indicative Value, together with the daily disclosed portfolio, will allow investors to determine the value of the underlying portfolio of the Fund on a daily basis and provide a close estimate of that value throughout the trading day.
Quotation and last sale information for the Shares will be available via the CTA high speed line. Price information regarding Municipal Securities and other non-exchange traded assets including certain derivatives, money market funds and other instruments, and repurchase agreements is available from third party pricing services and major market data vendors. For exchange-traded assets, including futures, and certain options, such intraday information is available directly from the applicable listing exchange. In addition, price information for U.S. exchange-traded options will be available from the Options Price Reporting Authority.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, or by regulatory staff of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by a Fund reported to FINRA's Trade Reporting and Compliance Engine (“TRACE”). FINRA also can access data obtained from the Municipal Securities Rulemaking Board's Electronic Municipal Market Access (“EMMA”) system relating to municipal bond trading activity for surveillance purposes in connection with trading in the Shares.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria for Index Fund Shares based on a fixed income index in Rule 14.11(c)(4), except for the minimum principal amount outstanding requirement of 14.11(c)(4)(B)(i)(b). The
As discussed above, the Exchange believes that the Underlying Index is sufficiently broad-based to deter potential manipulation. The Underlying Index currently includes 4,823 component securities. Whereas the Rule 14.11(c)(4)(B)(i)(e) requires that an index contain securities from a minimum of 13 non-affiliated issuers, the Underlying Index includes securities issued by municipal entities in more than 51 states or U.S. territories. Further, whereas the generic listing rules permit a single component security to represent up to 30% of the weight of an index and the top five component securities to, in aggregate, represent up to 65% of the weight of an index, the largest component security in the Underlying Index only constitutes 1.10% of the weight of the Underlying Index and the largest five component securities represent 2.98% of the weight of the Underlying Index.
The Exchange believes that this significant diversification and the lack of concentration among constituent securities provide a strong degree of protection against index manipulation. The Underlying Index and Fund satisfy all of the generic listing requirements for Index Fund Shares based on a fixed income index, except for the minimum principal amount outstanding requirement of 14.11(c)(4)(B)(i)(b). With this in mind, the Exchange notes that the representations in the Requirements for Index Constituents for the Underlying Index are identical to the representations made regarding the Comparable Indexes, each of which are underlying a series of Index Fund Shares that were previously approved for listing and trading by the Commission
The Approval Order included the representation that a bond must be investment-grade and must have an outstanding par value of at least $2 million in order to be included in the Comparable Indexes. To remain in the Underlying Index, bonds must be investment-grade and maintain a minimum par amount greater than or equal to $2 million and, further, BFA has represented that the Underlying Index will have at least 500 constituents on a continuous basis. As such, the Exchange believes that the proposal is consistent with the Act because the representations regarding the quality and size of the issuances included in the Underlying Index provide a strong degree of protection against index manipulation that is consistent with other proposals that have been approved for listing and trading by the Commission, which is only furthered by the additional representation that the Underlying Index will have at least 500 constituents on a continuous basis, which ensures diversification among constituent securities.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that a large amount of information is publicly available regarding the Fund, thereby promoting market transparency. The Fund's portfolio holdings will be disclosed on the Fund's website daily after the close of trading on the Exchange. Moreover, the IIV for Shares will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Regular Trading Hours. The current value of the Index will be disseminated by one or more major market data vendors at least once per day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information will be available via the CTA high-speed line. The website for the Fund will include the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information.
If the Exchange becomes aware that the Fund's NAV is not being disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants. With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the shares the Fund inadvisable. If the IIV and index value are not being disseminated for the Fund as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IIV or index value occurs. If the interruption to the dissemination of an IIV or index value persists past the trading day in which it occurred, the Exchange will halt trading. The Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. The Exchange will halt trading in the Shares under the conditions specified in BZX Rule 11.18. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities and/or the financial instruments composing the daily disclosed portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares also will be subject to Rule 14.11(c)(1)(B)(iv), which sets forth circumstances under which Shares of a Fund may be halted. In addition, investors will have ready access to information regarding the applicable IIV, and quotation and last sale information for the Shares. Trade price and other information relating to Municipal Securities is available through the EMMA system.
All statements and representations made in this filing regarding the Index composition, the description of the portfolio or reference assets, limitations on portfolio holdings or reference assets, dissemination and availability of Index, reference asset, and intraday indicative values (as applicable), or the applicability of Exchange listing rules shall constitute continued listing requirements for listing the Shares on the Exchange. The issuer is required to
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an exchange-traded product that principally holds Municipal Securities and that will enhance competition among market participants, to the benefit of investors and the marketplace. The Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, investors will have ready access to information regarding the IIV and quotation and last sale information for the Shares.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace.
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) 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 necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
2:00 p.m. on Thursday, September 20, 2018.
Closed Commission Hearing, Room 10800.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
Commissioner Stein, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matters of the closed meeting will be:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Fees and Charges (“Fee Schedule”) to introduce a new pricing tier, Step Up Tier 3. The Exchange proposes to implement the fee change effective September 4, 2018. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule to introduce a new pricing tier, Step Up Tier 3. The Exchange proposes to implement the fee change effective September 4, 2018.
The Exchange currently has a Step Up Tier pursuant to which qualifying ETP Holders and Market Makers receive a credit of $0.0030 per share for orders that provide displayed liquidity to the Book in Tape A Securities, $0.0023 per share for orders that provide displayed liquidity to the Book in Tape B Securities, and $0.0031 per share for orders that provide displayed liquidity to the Book in Tape C Securities if such ETP Holders and Market Makers directly execute providing average daily volume (“ADV”) per month of 0.50% or more but less than 0.70% of the US CADV, and directly execute providing ADV that is an increase of no less than 0.10% of US CADV for that month over the ETP Holder's or Market Maker's providing ADV in Q1 2018.
The Exchange also has a Step Up Tier 2 pricing tier pursuant to which ETP Holders and Market Makers receive a credit of $0.0028 per share for orders that provide displayed liquidity to the Book in Tape A and Tape C Securities, and $0.0022 per share for orders that provide displayed liquidity to the Book in Tape B Securities if such ETP Holders and Market Makers directly execute providing ADV per month of 0.22% or more but less than 0.30% of the US CADV, and directly execute providing ADV that is an increase of no less than 0.06% of US CADV for that month over the ETP Holder's or Market Maker's providing ADV in May 2018.
The Exchange proposes a new pricing tier—Step Up Tier 3—for securities with a per share price of $1.00 or above. As proposed, ETP Holders and Market Makers would qualify for the new Step Up Tier 3 if they directly execute providing ADV per month of 0.15% or more but less than 0.20% of the US CADV and directly execute providing ADV that is an increase of no less than 0.075% of US CADV for that month over the ETP Holder's or Market Maker's providing ADV in May 2018. ETP Holders and Market Makers that qualify for Step Up Tier 3 would receive a credit of $0.0025 per share for orders that provide displayed liquidity to the Book in Tape A and Tape C Securities and $0.0022 per share for orders that provide displayed liquidity to the Book in Tape B Securities. For all other fees and credits, tiered or basic rates apply based on a firm's qualifying levels.
The goal of the proposed Step Up Tier 3 pricing tier is to further incentivize ETP Holders and Market Makers to increase the orders sent directly to the Exchange and therefore provide liquidity that supports the quality of price discovery and promotes market transparency. The proposed pricing tier, which adopts a lower threshold than the Step Up Tier and Step Up Tier 2 is intended to allow ETP Holders and Market Makers to achieve rebates that weren't previously available. The Exchange believes that the proposed new pricing tier will provide an incentive for ETP Holders and Market Makers that do not meet current tier requirements to direct more of their order flow to the Exchange.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the Step Up Tier 3 pricing tier will serve as an incentivize [sic] to market participants to increase the orders sent directly to NYSE Arca and therefore provide
The Exchange believes that the proposed fee change is equitable and not unfairly discriminatory because providing incentives for orders in exchange-listed securities that are executed on a registered national securities exchange (rather than relying on certain available off-exchange execution methods) would contribute to investors' confidence in the fairness of their transactions and would benefit all investors by deepening the Exchange's liquidity pool, supporting the quality of price discovery, promoting market transparency and improving investor protection.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees and rebates to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed changes will impair the ability of ETP Holders or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Investment Company Act of 1940 (“Investment Company Act”) (15 U.S.C. 80a-1
Based on recent filings of notifications of registration on Form N-8A, we estimate that about 96 investment companies file such notifications each year. An investment company must only file a notification of registration on Form N-8A once. The currently approved average hour burden per investment company of preparing and filing a notification of registration on Form N-8A is one hour. Based on the Commission staff's experience with the requirements of Form N-8A and with disclosure documents generally—and considering that investment companies that are filing notifications of registration on Form N-8A simultaneously with the registration statement under the Investment Company Act are only required by Form N-8A to file a signed cover page—we continue to believe that this estimate is appropriate. Therefore, we estimate that the total annual hour burden to prepare and file notifications of registration on Form N-8A is 96 hours. The currently approved cost burden of Form N-8A is $449. We continue to believe that this estimate is appropriate. Therefore, we estimate that the total annual cost burden to associated with preparing and filing notifications of registration on Form N-8A is about $43,104.
Estimates of average burden hours and costs are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. Compliance with the collection of information requirements of Form N-8A is mandatory. Responses to the collection of information will not be kept confidential. 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.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, C/O Candace Kenner, 100 F Street NE, Washington, DC 20549; or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995
Regulation SCI requires certain key market participants to, among other things: (1) Have comprehensive policies and procedures in place to help ensure the robustness and resiliency of their technological systems, and also that their technological systems operate in compliance with the federal securities laws and with their own rules; and (2) provide certain notices and reports to the Commission to improve Commission oversight of securities market infrastructure.
Regulation SCI advances the goals of the national market system by enhancing the capacity, integrity, resiliency, availability, and security of the automated systems of entities important to the functioning of the U.S. securities markets, as well as reinforcing the requirement that such systems operate in compliance with the Exchange Act and rules and regulations thereunder, thus strengthening the infrastructure of the U.S. securities markets and improving its resilience when technological issues arise. In this respect, Regulation SCI establishes an updated and formalized regulatory framework, thereby helping to ensure more effective Commission oversight of such systems.
Respondents consist of national securities exchanges and associations, registered clearing agencies, exempt clearing agencies, plan processors, and alternative trading systems. There are currently 42 respondents, and the Commission staff estimates that, on average, 2 new respondents may become SCI entities each year, 1 of which would be a self-regulatory organization. Accordingly, Commission staff estimates that over the next three years there will be an average of 44 respondents per year.
Rule 1001(a) requires each SCI entity to establish, maintain, and enforce written policies and procedures reasonably designed to ensure that its SCI systems and, for purposes of security standards, indirect SCI systems, have levels of capacity, integrity, resiliency, availability, and security, adequate to maintain the SCI entity's operational capability and promote the maintenance of fair and orderly markets. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 1,388 hours (694 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents will be, on average, 10,208 hours (232 hours per respondent × 44 respondents). The Commission staff estimates that the 2 new respondents would incur, on average, an annual initial internal cost of compliance of $465,656 ($232,828 per respondent × 2 respondents), as well as outside legal or consulting costs of $94,000 ($47,000 per respondent × 2 respondents). In addition, all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $3,426,632 ($77,878 per respondent × 44 respondents).
Rule 1001(b) requires each SCI entity to establish, maintain, and enforce written policies and procedures reasonably designed to ensure that its SCI systems operate in a manner that complies with the Exchange Act and the rules and regulations thereunder and the entity's rules and governing documents, as applicable. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 540 hours (270 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents will be, on average, 6,820 hours (175 hours per SRO respondent × 33 respondents + 95 hours per non-SRO respondent × 11 non-SRO respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $203,160 ($101,580 per respondent × 2 respondents), as well as outside legal or consulting costs of $54,000 ($27,000 per respondent × 2 respondents). In addition, all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $2,155,780 ($86,230 per respondent × 44 respondents).
Rule 1001(c) requires each SCI entity to establish, maintain, and enforce reasonably designed written policies and procedures that include the criteria for identifying responsible SCI personnel, the designation and documentation of responsible SCI personnel, and escalation procedures to quickly inform responsible SCI personnel of potential SCI events. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 228 hours (114 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents will be, on average, 1,716 hours (39 hours per respondent × 44 respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $85,056 ($42,528 per respondent × 2 respondents), and all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $684,112 ($15,548 per respondent × 44 respondents).
Rule 1004 requires each SCI entity to establish standards for the designation of certain members or participants for BC/DR plan testing, to designate members or participants in accordance with these standards, to require participation by designated members or participants in such testing at least annually, and to coordinate such testing on an industry- or sector-wide basis with other SCI entities. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 720 hours (360 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents that are not plan processors will be, on average, 5,670 hours (135 hours per respondent × 42 respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $214,596 ($107,298 per respondent × 2 respondents). In addition, all respondents that are not plan processors will incur, on average, an estimated ongoing annual internal cost of compliance of $1,508,850 ($35,925 per respondent × 42 respondents). In addition, the Commission staff estimates that the 2 plan processor respondents will incur an estimated ongoing annual cost of $108,000 for outside legal services ($54,000 per plan processor respondent × 2 respondents).
Rule 1002(b)(1) requires each SCI entity, upon any responsible SCI personnel having a reasonable basis to conclude that an SCI event has occurred, to notify the Commission immediately. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 352 hours (8 hours per respondent × 44 respondents). The Commission staff estimates that respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $108,394 ($2,463.25 per respondent × 44 respondents).
Rule 1002(b)(2) requires each SCI entity, within 24 hours of any responsible SCI personnel having a reasonable basis to conclude that the SCI event has occurred, to submit a written notification to the Commission pertaining to the SCI event on a good
Rule 1002(b)(3) requires each SCI entity to provide updates to the Commission pertaining to an SCI event on a regular basis, or at such frequency as reasonably requested by a representative of the Commission, until the SCI event is resolved and the SCI entity's investigation of the SCI event is closed. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 462 hours (10.5 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $144,309 ($3,279.75 per respondent × 44 respondents).
Rule 1002(b)(4) requires each SCI entity to submit written interim reports, as necessary, and a written final report regarding an SCI event to the Commission. These reports are required to be submitted on Form SCI. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 7,700 hours (175 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $2,686,860 ($61,065 per respondent × 44 respondents).
Rule 1002(b)(5) requires each SCI entity to submit to the Commission quarterly reports containing a summary description of any systems disruption or systems intrusion that has had, or the SCI entity reasonably estimates would have, no or a de minimis impact on the SCI entity's operations or on market participants. These reports are required to be submitted on Form SCI. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 7,040 hours (160 hours per respondent × 44 respondents). The Commission staff estimates that respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $2,378,728 ($54,062 per respondent × 44 respondents).
In addition, the Commission staff estimates that respondents will incur, on average, annual costs of $255,200 ($5,800 × 44 respondents) for outside legal advice in preparation of certain notifications required by Rule 1002(b).
Rule 1002(c)(1)(i) requires each SCI entity, promptly after any responsible SCI personnel has a reasonable basis to conclude that an SCI event (other than a systems intrusion) has occurred, to disseminate certain information to its members or participants. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 924 hours (21 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $604,230 ($13,732.50 per respondent × 44 respondents).
Rule 1002(c)(1)(ii) requires each SCI entity, when known, to promptly disseminate additional information about an SCI event (other than a systems intrusion) to its members or participants. Rule 1002(c)(1)(iii) requires each SCI entity to provide to its members or participants regular updates of any information required to be disseminated under Rules 1002(c)(1)(i) and (ii) until the SCI event is resolved. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 5,148 hours (117 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $2,033,856 ($46,224 per respondent × 44 respondents).
Rule 1002(c)(2) requires each SCI entity to disseminate certain information regarding a systems intrusion to its members or participants, and provides an exception when the SCI entity determines that dissemination of such information would likely compromise the security of its SCI systems or indirect SCI systems, or an investigation of the systems intrusion, and documents the reasons for such determination. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 440 hours (10 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $173,415 ($3,941.25 per respondent × 44 respondents).
In addition, the Commission staff estimates that all respondents will incur, on average, annual costs of $146,080 ($3,320 × 44 respondents) for outside legal advice in preparation of certain notifications required by Rule 1002(c).
Rule 1003(a)(1) requires each SCI entity to submit to the Commission quarterly reports describing completed, ongoing, and planned material changes to its SCI systems and security of indirect SCI systems during the prior, current, and subsequent calendar quarters. These reports are required to be submitted on Form SCI. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 22,000 hours (500 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $6,570,520 ($149,330 per respondent × 44 respondents).
Rule 1003(a)(2) requires each SCI entity to promptly submit a supplemental report notifying the Commission of a material error in or material omission from a report previously submitted under Rule 1003(a)(1). These reports are required to be submitted on Form SCI. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 660 hours (15 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $209,176 ($4,754 per respondent × 44 respondents).
Rule 1003(b)(1) requires each SCI entity to conduct an SCI review of its compliance with Regulation SCI not less than once each calendar year, with an exception for penetration test reviews, which are required to be conducted not less than once every three years. Rule 1003(b)(1) also provides an exception for assessments of SCI systems directly supporting market regulation or market surveillance, which are required to be conducted at a frequency based on the risk assessment conducted as part of the SCI review, but in no case less than once every three years. Rule 1003(b)(2) requires each SCI entity to submit a report of the SCI review to senior management no more than 30 calendar days after completion of the review. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 30,360 hours (690 hours per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $9,724,660 ($221,015 per respondent × 44 respondents).
Rule 1003(b)(3) requires each SCI entity to submit the report of the SCI review to the Commission and to its board of directors or the equivalent of such board, together with any response by senior management, within 60 calendar days after its submission to senior management. These reports are required to be submitted on Form SCI. The Commission staff estimates that the total annual ongoing burden for all respondents will be, on average, 44 hours (1 hour per respondent × 44 respondents). The Commission staff estimates that all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $18,128 ($412 per respondent × 44 respondents).
In addition, the Commission staff estimates that all respondents will incur, on average, annual costs of $2,200,000 ($50,000 × 44 respondents) for outside legal advice in preparation of certain notifications required by Rule 1003(b).
Rule 1006 requires each SCI entity, with a few exceptions, to file any notification, review, description, analysis, or report to the Commission required under Regulation SCI electronically on Form SCI through the EFFS. An SCI entity will submit to the Commission an EAUF to register each individual at the SCI entity who will access the EFFS system on behalf of the SCI entity. The Commission staff estimates that the total annual initial burden for 2 new respondents will be 0.6 hours (0.3 hours per respondent × 2 respondents), and the annual ongoing burden for all respondents will be, on average, 6.6 hours (0.15 hours per respondent × 44 respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $248 ($124 per respondent × 2 respondents), as well as outside costs to obtain a digital ID of $100 ($50 per respondent × 2 respondents). In addition, all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $2,728 ($62 per respondent × 44 respondents), as well as outside costs to obtain a digital ID of $2,200 ($50 per respondent × 44 respondents).
Rule 1002(a) requires each SCI entity, upon any responsible SCI personnel having a reasonable basis to conclude that an SCI event has occurred, to begin to take appropriate corrective action. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 228 hours (114 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents will be, on average, 1,716 hours (39 hours per respondent × 44 respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $85,056 ($42,528 per respondent × 2 respondents). In addition, all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $677,468 ($15,397 per respondent × 44 respondents).
Rule 1003(a)(1) requires each SCI entity to establish reasonable written criteria for identifying a change to its SCI systems and the security of indirect SCI systems as material. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 228 hours (114 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents will be, on average, 1,188 hours (27 hours per respondent × 44 respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $85,056 ($42,528 per respondent × 2 respondents). In addition, all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $507,584 ($11,536 per respondent × 44 respondents).
Regulation SCI also requires SCI entities to identify certain types of events and systems. The Commission staff estimates that the total annual initial recordkeeping burden for 2 new respondents will be 396 hours (198 hours per respondent × 2 respondents), and the annual ongoing recordkeeping burden for all respondents will be, on average, 1,716 hours (39 hours per respondent × 44 respondents). The Commission staff estimates that the 2 new respondents would incur an initial internal cost of compliance of $139,412 ($69,706 per respondent × 2 respondents). In addition, all respondents will incur, on average, an estimated ongoing annual internal cost of compliance of $677,468 ($15,397 per respondent × 44 respondents).
Rules 1005 and 1007 establish recordkeeping requirements for SCI entities other than SROs. The Commission staff estimates that for a new respondent that is not an SRO the average annual initial burden would be 170 hours (170 hours × 1 respondent), and the annual ongoing burden for all respondents will be, on average, 275 hours (25 hours × 11 respondents). The Commission staff estimates that a new respondent would incur an estimated internal initial internal cost of compliance of $11,370, as well as a one-time cost of $900 to modify existing recordkeeping systems. In addition, all respondents will incur, on average, an estimated ongoing internal cost of compliance of $18,975 ($1,725 × 11 respondents).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its options rules to make certain non-substantive changes and to harmonize certain rules with those of its affiliate, NYSE American LLC (“NYSE American”), to reduce unnecessary complexity and promote standardization. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its options rules to make certain non-substantive changes and to harmonize certain rules with those of its affiliate, NYSE American. The proposed amendments are designed to reduce unnecessary complexity within the Exchange's rules and to promote standardization and clarity amongst similar rules of the Exchange and its affiliate, NYSE American. Specifically, the Exchange proposes to:
• Make a ministerial, non-substantive change to Exchange Rule 6.17-O, Commentary .01.
• harmonize Exchange Rule 6.37-O, Obligations of Market Makers, with NYSE American Rule 925NY, Obligations of Market Makers, and make related changes to Exchange Rules 6.37A-O, 6.37B-O, and 6.37B-O;
• delete the text of Exchange Rule 6.41-O, Market Maker Marketing Reports;
• harmonize Exchange Rule 6.43-O, Options Floor Broker Defined, with NYSE American Rule 930NY by replacing the term “Professional Customer” with “Qualified Customer”;
• amend Exchange Rule 6.47-O, Crossing Orders, to update the references to the current Order Protection Rule and harmonize it with NYSE American Rule 934NY;
• harmonize Exchange Rule 6.67-O(d)(2)(A) with NYSE American Rule 955NY(d)(2)(A) by replacing an outdated reference to a required timestamp synchronized to the “NIST Clock” with a reference to the current operative Consolidated Audit Trail (“CAT”) clock synchronization rule;
• harmonize Exchange Rule 6.69-O(b)(iii) with NYSE American Rule 957NY(b)(iii) by conforming the Exchange's rule governing the priority of complex orders in open outcry to its rule governing electronic complex orders;
• harmonize Exchange Rule 6.75-O, Priority and Order Allocation Procedures—Open Outcry, with NYSE American Rules 963NY(d).
Each of these proposed changes are explained in detail below.
The Exchange proposes to make ministerial, non-substantive changes to Exchange Rule 6.17-O, Commentary .01 to remove superfluous language. In particular, the Exchange proposes to amend the third paragraph of Commentary .01 of Exchange Rule 6.17-O to remove the duplicative phrase “or accessible via telephone or email”. The proposed deletion of this phrase does not alter the meaning or application of Rule 6.17-O.
The Exchange proposes to harmonize the Market Maker quoting obligations set forth under Exchange Rule 6.37-O, Obligations of Market Makers, with NYSE American Rule 925NY, Obligations of Market Makers, and make related changes to Exchange Rules 6.37A-O, 6.37B-O, and 6.37C-O. Exchange Rule 6.37-O sets forth the continuous quoting obligations of Market Makers for options contracts to which they are appointed pursuant to Exchange Rule 6.35-O. The Exchange proposes to delete the text of Rule 6.37-O, except for paragraph (a), and replace it with the relevant text from NYSE American Rule 925NY.
The Exchange notes that current Exchange Rule 6.37-O sets forth Market Maker obligations when quoting on the Trading Floor and Exchange Rule 6.37A-O sets forth Market Maker obligations when quoting on the NYSE Arca OX electronic trading system. Like NYSE American 925NY, the obligations under amended Exchange Rule 6.37-O would apply equally to Maker Makers on the Trading Floor and those quoting on the Exchange's electronic trading system. The Exchange also notes that the current text of Exchange Rule 6.37A-O is substantially similar to the text of NYSE American Rule 925NY, which the Exchange propose to adopt herein. Nonetheless, the proposed text would be more detailed than current Rule 6.37A-O by including detailed bid-ask differentials under paragraph (b)(4) as well as provisions governing leaves of absence under proposed Commentary .01. Therefore, the Exchange proposes to delete the text of Exchange Rule 6.37A-O and renumber Exchange Rules 6.37B-O as 6.37A-O and 6.37C-O as 6.37B-O. The Exchange also proposes to update various cross-references to these rules in Exchange Rules 6.33-O(a), 6.64-O(b)(D) and (E), 6.82-O(c)(4), 10.12(h) and (k), and 10.16(e)(2) to reflect the updated rule numbers.
Proposed paragraphs (1) through (3) of Exchange Rule 6.37-O(b) would require Market Makers to: (1) Compete with other Market Makers to improve the market in all series of options classes to which the Market Maker is appointed; (2) make markets that will be honored for the number of contracts entered into the System in all series of options classes within the Market Maker's appointment; and (3) update market quotations in response to changed market conditions in all series of options classes within the Market Maker's appointment. Each of these provisions mirror NYSE American Rule 925NY(b)(1) through (3).
Current paragraphs (b)(1)(A) through (E) of Rule 6.37-O require that Market Maker bids and/or offers create differences of no more than: (A) .25 between the bid and the offer for each option contract for which the bid is less than $2, (B) .40 where the bid is $2 or more but does not exceed $5, (C) .50 where the bid is more than $5 but does not exceed $10, (D) .80 where the bid is more than $10 but does not exceed $20, and (E) $1 when the last bid is $20.01 or more, provided that two Trading Officials may establish differences other than the above for one or more series or classes of options. These provisions would be set forth under new paragraph (b)(4)(A) through (E) of Exchange Rule 6.37-O with one proposed change from the current Exchange rule. Current paragraph (b)(1)(E) of Rule 6.37-O requires that Market Maker bids and/or offers create differences of no more than $1 when the last bid is $20.01 or more, provided that two Trading Officials may establish differences other than the above for one or more series or classes of options. Proposed paragraph (b)(4)(E) of Exchange Rule 6.37-O would allow for one Trading Official, rather than two, to establish differences for one or more series or classes of options. The Exchange believes that requiring two Trading Officials to act in this scenario is unnecessary and allowing a single Trading Official to act would allow for a more efficient process, especially in cases where a decision must be made quickly in light of fast moving market events. The Exchange also notes that NYSE American Rule 925NY(b)(1)(E), the rule it seeks to harmonize Exchange Rule 6.37-O, allows for a single Trading Official to establish differences for one or more series or classes of options. Each of these provisions would mirror NYSE American Rule 925NY(b)(1)(A) through (E).
Current paragraph (b)(1)(F) of Rule 6.37-O states that a Trading Official may, with respect to options trading with a bid price less than $2, establish bid-ask differentials that are no more than $0.50 wide (“double-width”) when the primary market for the underlying security: (a) Reports a trade outside of its disseminated quote (including any Liquidity Quote); or (b) disseminates an inverted quote. The imposition of double-width relief must automatically terminate when the condition that necessitated the double-width relief (
Current paragraph (b)(1)(G) of Rule 6.37-O states that quotes given in open outcry may not be quoted with $5 widths and instead must comply with the legal width requirements specified in paragraph (b)(1)(A)-(F) of Rule 6.37-O. This requirement would be moved to paragraph (b)(5) of Rule 6.37-O and be rephrased to be harmonized with NYSE American Rule 925NY(b)(5) and would require that electronically submitted quotes to the System during Core Trading Hours may not have a difference exceeding $5 between the bid and offer regardless of the price of the bid. Paragraph (b)(5) of Rule 6.37-O would also provide that two Trading Officials may establish quote width differences other than as provided in paragraph (b)(5) of Rule 6.37-O for one or more option series. This is consistent with NYSE American Rule 925NY(b)(5).
The Exchange proposes to adopt the text of NYSE American Rule 925NY(b)(6) under proposed paragraph (b)(6) of Exchange Rule 6.37-O and require that, in response to a call for a market from a Floor Broker, a Market Maker may bid no more than $1 lower and/or offer no more than $1 higher than the last preceding transaction price for the particular option contract. However, this standard would not ordinarily apply if the price per share (or other unit of trading) of the underlying security or Exchange-Traded Fund Share has changed since the last preceding transaction for the particular option contract, in which event a Market Maker may then bid no lower than or offer no more than $1 plus the aggregate change in the price per share (or other unit of trading) of the underlying security or Exchange-Traded Fund Share since the time of the last preceding transaction for the particular option contract. This provision would apply from one day's close to the next day's opening and from one transaction to the next in intra-day transactions. With respect to inter-day transactions, this provision applies if the closing transaction occurred within one hour of the close and the opening transaction occurred within one hour after the opening. With respect to intra-day transactions, this provision applies to transactions occurring within one hour of one another. A Trading Official may waive the provisions of this paragraph in an index option when the primary underlying securities market for that index is not trading. Nothing in paragraph (b)(6) of Exchange Rule 6.37-O would alter the maximum bid/ask differentials established by paragraph (b)(4)-(5) of Rule 6.37-O discussed above.
Paragraph (c)(1) of Exchange Rule 6.37-O would further require that a Trading Official who declared the unusual market conditions to file a report with Exchange Operations setting forth the relief granted, the time and duration of such relief and the reasons behind declaring an unusual market condition. This provision would mirror NYSE American Rule 925NY(c)(1).
Current paragraphs (c)(2) and (3) also prohibit Market Makers from individually or as a group, intentionally or unintentionally, dominating the market in option contracts of a particular class and effecting purchases or sales on the floor of the Exchange except in a reasonable and orderly manner. These provisions would be renumbered as paragraphs (d)(1) and (2) under Exchange Rule 6.37-O and would mirror NYSE American Rule 925NY(d). The only difference from the current text is that paragraph (d)(2) of Exchange Rule 6.37-O would not specifically reference the floor of the Exchange as the rule would apply equally to all Market Makers, regardless of whether they are located on the floor of the Exchange or engage in market making electronically from a location off the Exchange floor.
Current paragraphs (c)(1) and (c)(4) of Exchange Rule 6.37-O would not be carried over as part of the new rule. The Exchange notes that these provision are outdated and are not included in the current NYSE American Rule 925NY to which the Exchange seeks to harmonize its Market Maker obligations. Paragraph (c)(1) of Exchange Rule 6.37-O currently prohibits Market Makers from congregating in a particular class of option contract. The purpose of this rule was to prevent Market Makers from dominating the market for an option when options were listed and traded verbally on a single exchange. Today, options are traded on numerous exchanges electronically significantly reducing the ability of a group of Market Makers on a single exchange from engaging in manipulative activity. Further, other Exchange rules address the manipulation concern that current paragraph (c)(1) of Rule 6.37-O was intended to address. For example, Exchange Rule 11.5 prohibits market manipulation on the Exchange generally. Exchange Rule 11.20(a)(1) also prohibits members, including Market Makers, from knowingly managing or financing a manipulative operation, which would include congregating in a particular class of securities to manipulate or dominate the market.
Paragraph (c)(4) of Exchange Rule 6.37-O states that whenever a Floor Broker enters a trading crowd and calls for a market in a particular option series, each Market Maker present at the trading post will be obligated to vocalize a two-sided, legal-width market (pursuant to former Exchange Rule 6.37-O(b)(1)) for a minimum of 10 contracts. Market Makers would continue to be required to make legal-wide markets in compliance with proposed Exchange Rule 6.37-O(b). However, Market Makers would no longer be required to quote for a least 10 contracts. The 10 contract requirement is antiquated and not necessary in a market environment where options are traded electronically on multiple exchanges. Furthermore, the 10 contract requirement is not included in the rules of NYSE American Rule 925NY or other options exchanges.
Paragraph (c)(4) of Exchange Rule 6.37-O states that its obligation to provide a legal-width market only applies to: (A) Market Makers who have executed a transaction in the issue, but not those who have been assigned contracts by the Trading Official pursuant to Commentary .05, on the day of the Floor Broker's call for a market or on the previous business day; (B) option issues that are ranked in the 120 most actively traded equity options based on the total number of contracts traded nationally as reported by the Options Clearing Corporation (for each current month, the Exchange's determination of whether an equity option ranks in the top 120 most active issues is based on volume statistics for the one month of trading activity that occurred two months prior to the current month); (C) non-broker-dealer orders; and (D) series not designated as LEAPS (pursuant to Exchange Rule 6.4). With respect to (A) and (B) above, the provision to provide a legal-width market under proposed Exchange Rule 6.37-O(b) would apply to all options to which a Market Maker is appointed and would not be limited. With respect to (C) above regarding providing a quote to non-broker-dealer orders, paragraph (e) of Exchange Rule 6.37B-O (proposed to be renumbered as Exchange Rule 6.37A-O) would continue to state that “[a] Market Maker shall be compelled to buy/sell a specified quantity of option contracts at the disseminated bid/offer pursuant to his obligations under Rule 6.86-O.” This rule would preclude a Market Maker from not honoring its quotation against non-broker-dealer orders. Therefore, current paragraph (c)(4)(C) is not necessary to be included in proposed Rule 6.37-O(c). Lastly, current paragraph (D) states that the paragraph (c)(4) would not apply to series designated as LEAPS. The Exchange notes that current paragraph (b) and (c) of Exchange Rule 6.37B-O (proposed to
The Exchange does not proposes to include the text of current paragraph (d) to Exchange Rule 6.37-O as this requirement conflicts with Exchange Rule 6.35-O(i), which sets forth a higher standard and applies to Market Maker activity both on the floor and conducted electronically. Specifically, paragraph (i) of Exchange Rule 6.35-O requires that at least 75% of the trading activity of a Market Maker (measured in terms of contract volume per quarter) must be in classes within the Market Maker's appointment. Paragraph (j) of Exchange Rule 6.35-O set forth how the Exchange would calculate whether the Market Maker satisfied the requirements of paragraph (i) and sets forth the penalties for non-compliance.
Although the language proposed in Exchange Rule 6.37-O would differ from that currently set forth in Rule 6.37-O(f), the application and meaning of the rule would be the same. Like as set forth under current paragraph (f)(1) of Rule 6.37-O, Market Makers in a trading crowd would continue to be able to discuss a request for a market that is greater than the disseminated size for that option class, for the purpose of making a single bid (offer) based upon the aggregate of individual bids (offers) by members in the trading crowd, but only when the member representing the order asks for a single bid (offer). Also, like as required in current paragraph (f)(1) of Rule 6.37-O, proposed paragraph (f) to Rule 6.37-O would continue to require that such bids or offers are firm quotes and each member of the trading crowd participating in the bid (offer) shall be obligated to fulfill his portion of the single bid (offer) at the single price. Such bids and offers would, therefore, continue to be required to comply with Exchange Rule 6.86-O, Firm Quotes, and Rule 602 of Regulation NMS, even though those rules are not specifically mentioned by number. Market Maker quotations must comply with their firm quote obligations set forth in Exchange Rule 6.86-O and Rule 602 of Regulations NMS regardless of whether those rules are specifically mentioned in proposed Exchange Rule 6.37-O(f). Furthermore, paragraph (e) of Exchange Rule 6.37B-O (proposed to be renumbered as Exchange Rule 6.37A-O) would continue to state that “[a] Market Maker shall be compelled to buy/sell a specified quantity of option contracts at the disseminated bid/offer pursuant to his obligations under Rule 6.86-O.” The text of proposed paragraph (f) of Rule 6.37-O would also mirror the text of NYSE American Rule 925NY(f).
Proposed paragraph (f) of Rule 6.37-O would state that the obligation of Market Makers to make competitive markets does not preclude Market Makers in a trading crowd from discussing a request for a market that is greater than the disseminated size for that option class, for the purpose of making a single bid (offer) based upon the aggregate of individual bids (offers) by members in the trading crowd, but only when the member representing the order asks for a single bid (offer). Whenever a single bid (offer) pursuant to this paragraph is made, such bid (offer) shall be a firm quote and each member of the trading crowd participating in the bid (offer) shall be obligated to fulfill his portion of the single bid (offer) at the single price.
Furthermore, the Exchange does not propose to retain the remaining provisions, Commentary .01 through .06 and .08 through .09 of the Commentary to Exchange Rule 6.37-O. These provisions are outdated for the reasons discussed below, and not included in the current NYSE American Rule 925NY to which the Exchange seeks to harmonize its Market Maker obligations.
Current Commentary .01 states that the limitations of Rule 6.37-O(b)(2) should not be carried over from one day to the next, and therefore are not applicable to the Exchange's opening. The Exchange notes that current paragraph (b)(2) to Rule 6.37-O simply states “Reserved” and, therefore, includes no limitations that the rule would need to specify would not be carried over to the next trading day or apply to the Exchange's opening process. Not retaining this provision in the amended rule would remove potentially confusing text referencing an outdated provision in the Exchange's rules, thereby ensuring the Exchange's rules are clear and easily understood. Further, this provisions is not included in the current NYSE American Rule 925NY to which the Exchange seeks to harmonize its Market Maker obligations.
Current Commentary .02 states that the bid-ask differentials as stated in paragraph (b)(1) of Rule 6.37-O shall apply to all option series open for trading in each option class. This provision is not necessary as the rule, by its terms, applies to all Market Makers appointed in an options class on the Exchange.
Current Commentary .03 states that when a Market Maker displays a market on the screen that is the best market in that crowd, the Market Maker is obligated to ensure that its market is removed from the screen when the Market Maker leaves the crowd. Current Commentary .03 is applicable only to Market Maker activity in a floor-based market. In addition, Market Makers who post a quotation, whether in the crowd or not, are required to comply with their firm quote obligations under Exchange Rule 6.86-O and Rule 602(b) of Regulation NMS. If the Market Maker leaves the crowd, it is up to them to remove their quote or to honor any executions that occur while their quote remains posted. Further, this provision is not included in the current NYSE American Rule 925NY.
Current Commentary .04 states that the obligations of a Market Maker with respect to those classes of option contracts to which he holds an appointment, pursuant to Rule 6.35-O, shall take precedence over his other Market Maker obligations. This provision is not included in the current NYSE American Rule 925NY. This provision is also not necessary as proposed Rule 6.37-O(b) would include all of a Market Makers obligations for options classes for which they are appointed, and a Market Maker would be required to satisfy those obligations regardless of whether that Market Maker is engaged in other market making activities. Furthermore, proposed paragraph (d) to Exchange Rule 6.37-O states that “[w]ith respect to classes of option contracts outside of their appointment, Market Makers should not engage in transactions for an account in which they have an interest that are disproportionate in relation to, or in derogation of, the performance of their obligations as specified in this Rule with respect to the classes in their appointment.”
Current Commentary .05 states that whenever a Floor Broker enters a trading crowd and calls for a market in any class and series at that post, each Market Maker present at the post where the option is traded is obligated, at a minimum, to make a market for one contract except as provided for in Rule 6.37-O(b)(5) and Rule 6.37-O(c)(4), at the established price. In addition, the Exchange may determine that Market Makers in trading crowds shall increase the depth of their markets as set forth in Options Floor Procedure Advice B-12. In the event a Floor Broker is unable to satisfy his order from bids and offers given in the crowd, the Trading Official may assign one contract to every Market Maker present within the primary zone to assist the Floor Broker in satisfying his order. If a Market Maker at the post either bids lower or offers higher than the established market, such Market Maker shall be obligated to trade one contract at the price quoted by the Market Maker. This provision is not necessary and is not included in the current NYSE American Rule 925NY. As amended, proposed Rule 6.37-O(b)(2) would require a Market Maker to make markets that will be honored for the number of contracts entered into the System in all series of options classes within the Market Maker's appointment.
Current Commentary .06 states that the maintenance of a fair and orderly market has been determined to be impaired in instances where a Market Maker refuses to honor a market quotation that has just been given, in response to a request for a market. This provision is not necessary as the proposed rule requires Market Makers to enter two-sided quotations in the options classes that they are appointed and to honor those quotations.
Current Commentary .08 states that a Market Maker may be compelled to buy/sell a specified quantity of option contracts at the disseminated bid/offer pursuant to his obligations under Rule 6.86-O. The Exchange does not proposes to retain this provision as a similar provision is not included in the current NYSE American Rule 925NY. In addition, the obligation set forth in Commentary .08 are redundant with Market Maker's obligation to not only comply with the Exchange's firm quote obligations set forth under Exchange Rule 6.86-O, but also their obligations to comply with Rule 602 of Regulation NMS. Moreover, a Market Maker's firm quote obligations are also discussed in proposed paragraph (b)(2) to Exchange Rule 6.37-O which requires Market Makers to make markets that will be honored for the number of contracts entered into the System.
Current Commentary .09 states that the Exchange or its authorized agent may calculate bids and asks for various indices for the sole purpose of
The Exchange proposes to delete the text of Exchange Rule 6.41-O, entitled Market Maker Marketing Reports. Exchange Rule 6.41-O states that the Exchange will provide its Market Makers with statistical reports designed to measure trading volume and participation in trading activity in each option issue traded on the Exchange. The reports are to provide monthly trading information that identifies, by order flow provider, the issue and number of contracts traded, the Lead Market Maker post where the issue is traded, the contra and executing broker symbols, and whether the trade was executed through the Exchange's OX electronic trading system or manually in the trading crowd. Under its rules, the Exchange currently provides other reports, including reports related to compared trades.
The Exchange proposes to amend 6.43-O(b)(1) and (2) to replace the definition of “Professional Customer” with the single-use term “Qualified Customer” in connection with the limited public business that qualified Floor Brokers and their Floor Clerks may conduct. Rule 6.43-O(b) defines both the permissible conduct of a limited public business and defines the term “Professional Customer”, for purposes of Rule 6.43-O(b).
The Exchange proposes to amend Rule 6.47-O, its crossing rule, by replacing outdated references to the requirement that execution prices “be equal to or better than the NBBO” with updated cross-references to the Rule 6.94-O, the current plenary Order Protection Rule. In addition, in connection with non-facilitation (regular way) crosses, facilitation procedures, crossing of solicited orders, and customer-to-customer crosses, the Exchange proposes to delete from Rules 6.47-O(a)(3), (b)(5), (c)(3), and (e)(3) the sentences that provide that “[t]he orders will be cancelled or posted in the Book if an execution would take place at a price that is inferior to the NBBO”. Exchange Rule 6.94-O governs such situations, and the orders will not be cancelled or posted but would trade through in accord with the exemptions in Exchange Rule 6.94-O. This proposed change would also harmonize NYSE Arca Rule 6.47-O with NYSE American Rules 934NY.
The Exchange proposes to amend Rule 6.67-O(d)(2)(A) to replace an outdated reference to require timestamps be synchronized to the “NIST Clock” with a reference to Rule 11.6820, the current Consolidated Audit Trail (“CAT”) clock synchronization rule. Specifically, in connection with Rule 6.67-O(d)(2)(A), which governs contingency reporting procedures when an exception to the Electronic Order Capture System (“EOC”) applies, the Exchange proposes to delete an outdated reference to “(a timestamp synchronized with the National Institute of Standards and Technology Atomic Clock in Boulder Colorado `NIST Clock' will be available at all OTP Holder and OTP Firm booths and trading posts” and replace it with a requirement that all order events must conform to the requirements of Rule 11.6820. For further clarity, the Exchange also proposes to delete “immediately” from the text of the rule because Rule 11.6820 sets the operative standard. This proposed change would also harmonize NYSE Arca Rule 6.67-O(d)(2)(A) with NYSE American Rules 955NY(d)(2)(A).
The Exchange proposes to amend Exchange Rule 6.69-O(b)(iii) to harmonize it with NYSE American Rule
The Exchange proposes to conform Rule 6.75-O governing the priority of Complex Orders
The proposed rule changes are consistent with Section 6(b)
Specifically, the Exchange believes that conforming and harmonizing its rules to the rules of an affiliated exchange governing the same subject matter, updating its rules by harmonizing its Market Maker obligation with its affiliate, NYSE American, deleting outdated and updating rule cross-references, eliminating extraneous or redundant text, and therefore potentially confusing or ambiguous language, would remove impediments to and perfect a national market system by simplifying and reducing the complexity of its rules and regulatory requirements. The Exchange notes that it and its affiliate, NYSE American, operate in a similar manner and consistent rules across the Exchange and NYSE American would reduce the likelihood of potential investor confusion. Furthermore, the proposed rule change would provide for standardized rules and a consistent set of obligations for common members as well as those members that are engaged in market making activities on both the Exchange and NYSE American. The Exchange also believes that these proposed amendments would be consistent with the public interest and the protection of investors because investors would benefit from the proposal to harmonize, simplify, update and clarify the rules discussed herein. Further, the Exchange believes that the proposed rule change would benefit investors by improving the transparency and clarity of the Exchange's rules.
In particular, the Exchange believes that by updating and conforming its rules governing Market Maker obligations to the rules of NYSE American, its affiliated exchange, removes impediments to and perfects the mechanism of a free and open market and a national market system by providing consistent, standardized rules governing Market Makers across both the Exchange and its affiliate. It should also aid those firms that engage in market making activity on both the Exchange and NYSE American with identical obligations, thereby aiding those firms in complying with the Exchange's rules by providing a harmonized set of regulatory obligations.
Furthermore, by removing extraneous language from Exchange Rule 6.17-O, Commentary .01, deleting outdated text under Exchange Rule 6.41-O regarding a report no longer produced to Market Makers by the Exchange, replacing the definition of “Professional Customer” with the single-use term “Qualified Customer” under Exchange Rule 6.43-O in connection with the limited public business that qualified Floor Brokers and their Floor Clerks may conduct, by harmonizing Exchange Rule 6.47-O, its crossing rule, with NYSE American Rule 934NY by replacing outdated and potentially ambiguous references to the NBBO with cross-references to the current plenary Order Protection Rule, by updating and clarifying Exchange Rule 6.67-O governing its order format and system entry requirements by replacing an outdated reference with a reference to the current operative CAT time synchronization rule, and by conforming Exchange Rule 6.75-O governing the priority of complex orders in open outcry to its rule governing Electronic Complex Orders, would also promote just and equitable principles of trade, would remove impediments to and perfects the mechanism of a free and open market and a national market system, and, in general, would help to protect investors and the public interest by providing transparency as to which rules are operable, and by reducing potential confusion that may result from having outdated or redundant rules or cross-references in the Exchange's rulebook. Lastly, the Exchange notes that the proposed changes to Exchange Rules 6.37-O, 6.43-O(b), 6.47-O, 6.67-O(d)(2)(A), 6.69-O(b)(iii), and 6.75-O(g) are based on the rules of its affiliate, NYSE American.
The Exchange does not believe that the proposed rule changes will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed changes are not designed to address any competitive issue or attract additional order flow to the Exchange. Rather, these changes would update, remove, and clarify outdated cross-references and definitions, and redundant language, and also conform the Exchange's rules and definitions to the rules of an affiliated exchange, thereby reducing potential confusion and making the Exchange's rules easier to understand and navigate. The Exchange notes that it and its affiliate, NYSE American, operate in a similar manner and consistent rules across the Exchange and NYSE American would reduce the likelihood of potential investor confusion. Therefore, the proposed rule change is not intended to impose a burden on competition but rather provide for standardized rules and a consistent set of obligations for common members as well as those members that are engaged in market making activities on both the Exchange and NYSE American.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) operates to make it unlawful for a company with a class of securities registered pursuant to Section 12 of the Exchange Act to solicit proxies in contravention of such rules and regulations as the Commission has prescribed as necessary or appropriate in the public interest or for the protection of investors. The Commission
Written comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information 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. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
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 control number.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Candace Kenner, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List to amend the threshold levels and rebate amounts payable under the Liquidity Provider Incentive Program, and amend the rebate amount payable under the Agency Order Incentive Program. The Exchange proposes to implement the fee changes effective September 1, 2018. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Price List to amend the threshold levels and rebate amounts payable under the Liquidity Provider Incentive Program, and amend the rebate amount payable under the Agency Order Incentive Program. The Exchange proposes to implement the fee changes effective September 1, 2018.
Pursuant to the Liquidity Provider Incentive Program,
Currently, the daily rebate amount is tiered based on the number of qualifying CUSIPs that meet quoting requirements, as follows:
The Exchange now proposes to amend the current tiers by: (1) Adjusting the third tier (800 or more CUSIPs) so that it becomes 800-999 CUSIPs; and (2) adopting a new tier for 1000 or more CUSIPs with a corresponding daily rebate of $2,000. With the proposed changes to the tiers, the Exchange is attempting to strike the right balance between the number of qualifying CUSIPs and its corresponding rebate to ensure that the incentive program achieves its intended purpose of attracting liquidity in a greater number of CUSIPs to NYSE Bonds.
With the proposed amended tiers, the CUSIP threshold and corresponding rebate would be as follows:
The Exchange is not proposing any change to the Liquidity Provider Incentive Program other than to add an additional tier and a corresponding rebate for the new tier.
Pursuant to the Agency Order Incentive Program,
The Exchange is not proposing any change to the Agency Order Incentive Program other than to change the amount of the rebate for a period of four months, from September 2018 to December 2018.
The proposed rule change is intended to provide Users with a greater incentive to transact on NYSE Bonds.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposed rebates pursuant to a tiered pricing structure is reasonable, equitable and non-discriminatory. The Exchange's proposal to add a new tier is reasonable as it is designed to encourage participants to provide liquidity in a greater number of CUSIPs on NYSE Bonds in order to benefit by receiving a larger daily rebate that was previously not available. The Exchange believes that with the proposed amended tiers, which provides for additional volume thresholds, Users that meet prescribed quoting requirements in a varying number of CUSIPs would qualify for rebates. The purpose of the Liquidity Provider Incentive Program is to incentivize Users to provide liquidity to the Exchange. In order to achieve that objective, the Exchange believes it is reasonable to amend the tiers and rebates payable under each tier to allow Users of varying levels of participation to qualify for the rebates payable under the incentive program. Volume-based rebates such as those maintained by the Exchange for NYSE Bonds are equitable because they are open to all Users on an equal basis and provide additional benefits that are reasonably related to the value of an exchange's market quality. The proposed modification to the tiers and the proposed addition of a new tier is each intended to incentivize Users to provide liquidity in a greater number of CUSIPs on NYSE Bonds in an effort to qualify for the enhanced rebate made available by the tiers.
The Exchange believes that by providing Users with the ability to earn increased rebates, the Exchange is rewarding aggressive liquidity providers in the market, and by doing so, the Exchange will encourage the additional utilization of, and interaction with, the NYSE Bonds platform and provide customers with the premier venue for price discovery, liquidity, and competitive quotes.
The Exchange further believes that the rebate currently in place is reasonable because it is designed to give Users who meet quoting requirements in a minimum of 400 CUSIPs a benefit by way of a daily rebate. The Exchange also believes that the Liquidity Provider Incentive Program is equitable and not unfairly discriminatory because it would uniformly apply to all Users that trade bonds on NYSE Bonds.
The Exchange believes it is reasonable and equitable to adopt an increased rebate payable to Users under the Agency Order Incentive Program in order to incentivize Users to submit Agency Orders to the Exchange. This in turn would provide NYSE Bonds with potential new order flow and liquidity providers as it continues to grow its marketplace. The Exchange believes it is reasonable and equitable to adopt an increased rebate for a limited period of time as an incentive for Users to submit an increased number of Agency Orders to qualify for the increased rebate, and at the same time to encourage Users that do not participate in the Agency Order Incentive Program to begin to do so during the period of time during which the Exchange would pay the additional $6,000 per month. The Agency Order Incentive Program targets a particular segment in which the Exchange seeks to attract greater order flow and the Exchange believes the proposed increase to the monthly rebate for the remainder of this year should incentivize Users sufficiently to try to qualify for the rebate.
The Exchange believes the proposed rule change would provide an incentive for Users to provide additional liquidity to the market and add competition to the existing group of liquidity providers. The Exchange does not expect the revenues it forgoes as a result of the proposal to negatively affect its ability to conduct its regulatory program.
Finally, the Exchange believes that the proposed rule change is not unfairly discriminatory in that it would apply uniformly to all Users accessing NYSE Bonds. All similarly situated Users would be subject to the increased rebate, and each User would have the ability to determine the extent to which the Exchange's proposed rebate will provide it with an economic incentive to use NYSE Bonds, and model its business accordingly.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues that are not transparent. In such an environment, the Exchange must continually review, and consider adjusting its fees and rebates to remain competitive with other exchanges as well as with alternative trading systems and other venues that are not required to comply with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed change will impair the ability of member organizations or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the NYSE Arca Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective September 1, 2018. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to modify the Fee Schedule, effective September 1, 2018, to modify the existing Floor Broker rebate for executed Qualified Contingent Cross (“QCC”) orders,
Currently, the Exchange offers a Floor Brokers Rebate of $0.035 per contract side for QCC trades executed on behalf of non-Customers.
The Exchange proposes to replace the existing Floor Broker Rebate with a two-tiered credit. As proposed, the first tier would provide a $0.07 per contract credit for “Floor Brokers executing 300,000 or fewer contracts in a month,” which tier would effectively replace the current $0.035 “Floor Broker Rebate for Executed Orders—Per Contract Side.”
The Exchange notes that the proposed credit for Floor Brokers is consistent with such credits offered for QCC volumes across the industry. Specifically, the Nasdaq OMX PHLX (“PHLX”) and Nasdaq ISE (“ISE”) pay volume-based rebates for QCC volume that range from $0.00 to $0.11 per contract.
The Exchange also proposes to adopt an incremental service fee of $0.01 per contract for Firm or Broker Dealer Manual transactions once an OTP Holder or OTP Firm has reached the applicable Fee Cap. The incremental service fee would not apply to the execution of a QCC order. The Exchange notes that this proposed fee is competitive as it is consistent with the incremental service fee that NYSE American imposes once firms have reached a similar monthly fee cap on that exchange.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, in general, and furthers the objectives of Sections 6(b)(4) and (5) of the Act, in particular, because it provides for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers and other persons using its facilities and does not unfairly discriminate between customers, issuers, brokers or dealers.
The Exchange believes that the proposed tiered Floor Broker credits for QCC volume rebates are reasonable, equitable and not unfairly discriminatory because the credits are designed to attract more QCC volume to the Exchange. To the extent that the credits attract additional order flow to the Exchange, all market participants should benefit. Market participants may engage Floor Brokers to entrust them with their QCC orders and, given the credit that a Floor Broker may receive, such market participants may negotiate the appropriate fee for such order flow.
The Exchange also believes that the proposed credits are equitable and not unfairly discriminatory because they would apply to all Floor Brokers that execute QCC orders on the Exchange on an equal and non-discriminatory basis. Moreover, the Exchange notes that the proposed credits are consistent with credits offered by other options exchanges. Specifically, PHLX and ISE pay volume-based rebates for QCC volume that range from $0.00 to $0.11 per contract.
The Exchange believes that the proposed textual changes to the Floor Broker credit (
The Exchange believes that adopting the proposed incremental service fee once a firm reaches the Fee Cap is
In accordance with Section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that the proposed change would allow Floor Brokers to better compete for QCC volumes as the credits are consistent with those paid to participants on other exchanges.
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
By virtue of the authority vested in the Secretary of State by the laws of the United States, including 22 U.S.C. 265l(a) and 22 U.S.C. 2708(e), I hereby delegate to the Assistant Secretary for Diplomatic Security, to the extent authorized by law, authority to approve the payment of rewards of $100,000 or less as recommended by the relevant Interagency Rewards Committee.
Approval of such rewards will be in accordance with 22 U.S.C. 2708 and Volume 12 of the Foreign Affairs Manual Subchapter 228.
Any authorities covered by this delegation may also be exercised by the Secretary, the Deputy Secretary, and the Under Secretary for Management. Nothing in this delegation of authority shall be deemed to supersede any existing delegation of authority, which shall remain in full force and effect during and after this delegation.
This memorandum shall be published in the
The Office of the
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Victorian Radicals: From the Pre-Raphaelites to the Arts & Crafts Movement,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at the Oklahoma City Museum of Art, Oklahoma City, Oklahoma, from on or about October 11, 2018, until on or about January 6, 2019; at the Vero Beach Museum of Art, Vero Beach, Florida, from on or about February 9, 2019, until on or about May 5, 2019; at the Seattle Art Museum, Seattle, Washington, from on or about June 13, 2019, until on or about September 8, 2019; at the San Antonio Museum of Art, San Antonio, Texas, from on or about October 10, 2019, until on or about January 5, 2020; at the Yale Center for British Art, New Haven, Connecticut, from on or about February 13, 2020, until on or about May 10, 2020; at the Nevada Museum of Art, Reno, Nevada, from on or about June 20, 2020, until on or about September 13, 2020; at The Frick Pittsburgh, in Pittsburgh, Pennsylvania, from on or about October 29, 2020, until on or about January 24, 2021; and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to November 19, 2018.
You may submit comments by any of the following methods:
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You must include the subject (PRA 60 Day Comment), information collection title (Request to Change End User, End Use, and/or Destination Hardware), and OMB control number (1405-0173 in any correspondence.
Direct requests for additional information regarding this collection to Andrea Battista, who may be reached at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Request to Change End-User, End-Use and/or Destination of Hardware information collection is used to request DDTC approval prior to any sale, transfer, transshipment, or disposal, whether permanent or temporary, of classified or unclassified defense articles to any end-user, end-use or destination other than as stated on a license or other approval.
Currently, there is no option of electronic submission of this information. Submissions are made via hardcopy documentation. Applicants are referred to ITAR § 123.9 for guidance on information to submit regarding the request to change end-user, end-use and/or destination of hardware. Upon implementation of DDTC's new case management system, The Defense Export Control and Compliance System (DECCS), a DS-6004 may be submitted electronically.
Office of the United States Trade Representative.
Notice and request for comments.
In a notice published on August 16, 2018 (83 FR 40823), the U.S. Trade Representative (Trade Representative) determined to take an additional action in the Section 301 investigation of China's acts, policies, and practices related to technology transfer, intellectual property, and innovation. The August 16 notice also announced that the Trade Representative would establish a process by which U.S. stakeholders may request that particular products classified within a tariff subheading covered by the additional action be excluded from the additional duties. This notice sets out the specific procedures and criteria related to requests for product exclusions, and opens up a docket for the receipt of exclusion requests.
USTR must receive all requests to exclude a particular product by December 18, 2018. Responses to a request for exclusion of a particular product are due 14 days after the request is posted in docket number USTR-2018-0032 on
USTR strongly prefers electronic submissions made through the Federal eRulemaking Portal:
For questions about the product exclusion process, contact Assistant General Counsels Megan Grimball or Philip Butler, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For questions on customs classification or implementation of additional duties, contact
On August 18, 2017, the Office of the U.S. Trade Representative (USTR) initiated an investigation into certain acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation (82 FR 40213).
In a notice published on April 6, 2018 (83 FR 14906), the Trade Representative announced a determination that the acts, policies, and practices of the Government of China covered in the investigation are unreasonable or discriminatory and burden or restrict U.S. commerce. The April 6 notice also invited public comment on a proposed action in the investigation, in the form of an additional 25 percent
After review, the Trade Representative determined to take an initial action in the investigation, and to consider an additional proposed action.
After review, the Trade Representative determined to impose additional duties on 279 tariff subheadings, with an annual trade value of approximately $16 billion.
During the notice and comment process, a number of interested persons asserted that specific products within a particular tariff subheading only were available from China, that the imposition of additional duties on the specific products would cause severe economic harm to a U.S. interest, and that the specific products were not strategically important or related to the “Made in China 2025” program. In light of such concerns, the Trade Representative determined to establish a process by which U.S. stakeholders may request that particular products classified within a covered HTSUS subheading be excluded from the additional action. That process is set out in the remainder of this notice.
USTR invites interested persons, including trade associations, to submit requests for exclusion from the additional duties of a particular product classified within an HTSUS subheading set out in Annex A of the notice published at 83 FR 40823 (August 16, 2018). As explained in more detail below, each request specifically must identify a particular product, and provide supporting data and the rationale for the requested exclusion. USTR will evaluate each request on a case-by-case basis, taking into account whether the exclusion would undermine the objective of the Section 301 investigation. Any exclusion will be effective starting from the August 23, 2018 effective date of the additional duties, and extending for one year after the publication of the exclusion determination in the
With regard to product identification, any request for exclusion must include the following information:
• Identification of the particular product in terms of the physical characteristics (
• The 10-digit subheading of the HTSUS applicable to the particular product requested for exclusion.
• Requesters also may submit information on the ability of U.S. Customs and Border Protection to administer the exclusion.
Requesters must provide the annual quantity and value of the Chinese-origin product that the requester purchased in each of the last three years. For trade association requesters, please provide such information based on your members' data. If precise annual quantity and value information are not available, please provide an estimate and explain the basis for the estimation.
For imports sold as final products, requesters must provide the percentage of their total gross sales in 2017 that sales of the Chinese-origin product accounted for.
For imports used in the production of final products, requesters must provide the percentage of the total cost of producing the final product(s) the Chinese-origin input accounts for and the percentage of their total gross sales in 2017 that sales of the final product(s) accounted for.
With regard to the rationale for the requested exclusion, each request for exclusion should address the following factors:
• Whether the particular product is available only from China. In addressing this factor, requesters should address specifically whether the particular product and/or a comparable product is available from sources in the United States and/or in third countries.
• Whether the imposition of additional duties on the particular product would cause severe economic harm to the requester or other U.S. interests.
• Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.
In addressing each factor, the requester should provide support for their assertions. Requesters also may provide any other information or data that they consider relevant to an evaluation of the request.
Any request that contains business confidential information must be accompanied by a public version. The public version will be posted on
After a request for exclusion of a particular product is posted on docket number USTR 2018-0032, interested persons will have
After a response is posted on docket number USTR 2018-0032, interested persons will have the opportunity to reply to the response. Any reply must be posted within the later of
As noted above, interested persons must submit requests for exclusions by December 18, 2018. Any responses to those requests must be submitted within 14 days after the requests are posted. Any reply to a response must be submitted within the later of 7 days after the close of the 14 day response period, or 7 days after the posting of a response. Interested persons seeking to exclude two or more products must submit a separate request for each product,
All submissions must include a statement that the submitter certifies that the information provided is complete and correct to the best of his or her knowledge.
To assist in review of requests for exclusion, USTR has prepared a request form that will be posted on the USTR website under `Enforcement/Section 301 investigations' and on the
To submit requests via
File names for requests for exclusions must include the 10-digit subheading of the HTSUS applicable to the particular product and the name of the person or entity submitting the request (
To respond to a request for exclusion, please find the request in the `primary documents' section of the docket and click on the link titled `comment now!' associated with that specific request. Responses made on requests for exclusion will appear in the `comments' section of the docket.
File names for responses to requests should include the document ID of the request and the name of the person or entity submitting the response (
To reply to a response made to an exclusion request, please find the exclusion request that is the subject of the response in the `primary documents' section of the docket and click on the link titled `comment now!'. Replies will appear in the `comments' section of the docket.
File names for replies should include the document ID of the response and the name of the person or entity submitting the reply (
For further information on using the
Submit requests for product exclusions in an attached document. Type `see attached' in the `comment' field. USTR prefers submissions made using the request form that will be posted on the USTR website under `Enforcement/Section 301 investigations' and on the
Please do not attach separate cover letters to electronic submissions; rather, include any information that might appear in a cover letter in the comments themselves. Similarly, to the extent possible, please include any exhibits, annexes, or other attachments in the same file as the comment itself, rather than submitting them as separate files.
For any documents submitted electronically containing business confidential information, the file name of the business confidential version must end with the characters `BC'. Any page containing business confidential information must be clearly marked `BUSINESS CONFIDENTIAL' on the top of that page and the submission should clearly indicate, via brackets, highlighting, or other means, the specific information that is business confidential. If you request business confidential treatment, you must certify in writing that disclosure of the information would endanger trade secrets or profitability, and that the information would not customarily be released to the public. Filers of submissions containing business confidential information also must submit a public version of their submissions. The file name of the public version must end with the character `P'. The `BC' and `P' should follow the rest of the file name. If these procedures are not sufficient to protect business confidential information or otherwise protect business interests, please contact the USTR Section 301 line at (202) 395-5725 to discuss whether alternative arrangements are possible.
USTR will post submissions in the docket for public inspection, except business confidential information. You can view submissions on the
Under part 211 of Title 49 Code of Federal Regulations (CFR), this provides the public notice that on June 7, 2018, the Western Maryland Scenic Railroad (WMSR) petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR parts 215 and 224. FRA assigned the petition Docket Number FRA-2018-0026.
Specifically, WMSR requests relief from 49 CFR 215.303,
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by November 2, 2018 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of emergency waiver order.
The Pipeline and Hazardous Materials Safety Administration is issuing an emergency waiver order to persons conducting operations under the direction of Environmental Protection Agency (EPA) Regions 3 or 4 or United States Coast Guard (USCG) Fifth or Seventh Districts within the Hurricane Florence emergency areas of South Carolina, North Carolina, and Virginia. The Waiver is granted to support the EPA and USCG in taking appropriate actions to prepare for, respond to, and recover from a threat to public health, welfare, or the environment caused by actual or potential oil and hazardous materials incidents resulting from Hurricane Florence. This Waiver Order is effective immediately and shall remain in effect for 30 days from the date of issuance.
Adam Horsley, Deputy Assistant Chief Counsel for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, telephone: (202) 366-4400.
In accordance with the provisions of 49 U.S.C. 5103(c), the Administrator for the Pipeline and Hazardous Materials Safety Administration (PHMSA), hereby declares that an emergency exists that warrants issuance of a Waiver of the Hazardous Materials Regulations (HMR, 49 CFR parts 171-180) to persons conducting operations under the direction of Environmental Protection Agency (EPA) Regions 3 or 4 or United States Coast Guard (USCG) Fifth or Seventh Districts within the Hurricane Florence emergency areas of South Carolina, North Carolina, and Virginia. The Waiver is granted to support the EPA and USCG in taking appropriate actions to prepare for, respond to, and recover from a threat to public health, welfare, or the environment caused by actual or potential oil and hazardous materials incidents resulting from Hurricane Florence.
On September 10, 2018, the President issued an Emergency Declaration for Hurricane Florence for all 46 South Carolina counties and the Catawba Indian Nation (EM 3400). On September 10, 2018, the President also issued an Emergency Declaration for Hurricane Florence for all 100 North Carolina counties and the Eastern Band of Cherokee Indians (EM 3401). On September 11, 2018, the President issued an Emergency Declaration for Hurricane Florence for the entire Commonwealth of Virginia (EM 3403).
This Waiver Order covers all areas identified in the three declarations, as amended. Pursuant to 49 U.S.C. 5103(c), PHMSA has authority delegated by the Secretary (49 CFR 1.97(b)(3)) to waive compliance with any part of the HMR provided that the grant of the waiver is: (1) In the public interest; (2) not inconsistent with the safety of transporting hazardous materials; and (3) necessary to facilitate the safe movement of hazardous materials into, from, and within an area of a major disaster or emergency that has been declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
Given the continuing impacts caused by Hurricane Florence, PHMSA's Administrator has determined that regulatory relief is in the public interest and necessary to ensure the safe transportation in commerce of hazardous materials while the EPA and USCG execute their recovery and cleanup efforts in South Carolina, North Carolina, and Virginia. Specifically, PHMSA's Administrator finds that issuing this Waiver Order will allow the EPA and USCG to conduct their Emergency Support Function #10 response activities under the National Response Framework to safely remove, transport, and dispose of hazardous materials. By execution of this Waiver Order, persons conducting operations under the direction of EPA Regions 3 or 4 or USCG Fifth or Seventh Districts within the Hurricane Florence emergency areas of South Carolina, North Carolina, and Virginia are authorized to offer and transport non-radioactive hazardous materials under alternative safety requirements imposed by EPA Regions 3 or 4 or USCG Fifth or Seventh Districts when compliance with the HMR is not practicable. Under this Waiver Order, non-radioactive hazardous materials may be transported to staging areas within 50 miles of the point of origin. Further transportation of the hazardous materials from staging areas must be in full compliance with the HMR.
This Waiver Order is effective immediately and shall remain in effect for 30 days from the date of issuance.
Office of the Comptroller of the Currency, Treasury (OCC).
Notice and request for comment.
The OCC, 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 a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning renewal of its information collection titled, “Guidance on Stress Testing for Banking Organizations with more than $10 Billion in Total Consolidated Assets.” The OCC also is giving notice that it has sent the collection to OMB for review.
Comments must be submitted on or before October 18, 2018.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0312, U.S. Office of Management and Budget, 725 17th Street NW, #10235, Washington, DC 20503 or by email to
You may review comments and other related materials that pertain to this information collection
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OCC Clearance Officer, (202) 649-5490 or, for persons who are deaf or hearing impaired, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E-218, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information that they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. The OCC asks that OMB extend its approval of the following information collection.
The guidance provides an overview of how a banking organization should structure its stress testing activities to ensure those activities fit into the banking organization's overall risk management. The purpose of the guidance is to outline broad principles for a satisfactory stress testing framework and describe the manner in which stress testing should be used. While the guidance is not intended to provide detailed instructions for conducting stress testing for any particular risk or business area, it does describe several types of stress testing activities and how they may be most appropriately used by banking organizations. In addition, although the guidance does not at present explicitly address the stress testing requirements imposed upon certain companies by section 165(i) of the Dodd-Frank Wall Street Reform and Consumer Protection Act,
The OCC issued a notice for 60 days of comment regarding this collection, April 2, 2018, 83 FR 14103. No comments were received. Comments continue to be invited on:
(a) Whether the collections of information are necessary for the proper performance of the OCC's functions, including whether the information has practical utility;
(b) The accuracy of the OCC's estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Foreign Account Tax Compliance Act (FATCA) registration.
Written comments should be received on or before November 19, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The information from Form 8966, FATCA Report, is to be used by a responsible officer of a foreign institution to apply for a foreign account tax compliance Act individual identification number as defined in IRC 1471(b)(2). Form 8966-C is used to authenticate the Form 8966, U.S. Income Tax Return for Estates and Trusts, and to ensure the ability to identify discrepancies between the number of forms received versus those claimed to have been sent by the filer. Taxpayers use Form 8508-I to request a waiver from filing Form 8966 electronically. Form 8809-I is used to request an initial or additional extension of time for file 8966 for the current year.
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the
Written comments should be received on or before November 19, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224. Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
Requests for additional information or copies of the collection tools should be directed to Alissa Berry, at (901) 707-4988, at Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
Currently, the IRS is seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the Veterans' Family, Caregiver, and Survivor Advisory Committee will meet on October 3-4, 2018. The meeting will be held at the American Red Cross, 430 17th Street NW, Washington, DC 20006. Both sessions will begin at 9:00 a.m. (EST) each day. The session on October 3 will adjourn at approximately 5:00 p.m. The session on the October 4 will adjourn at approximately 4:30 p.m. The meetings are open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on matters related to: Veterans' families, caregivers, and survivors across all generations, relationships, and Veterans status; the use of VA care and benefits services by Veterans' families, caregivers, and survivors, and possible expansion of such care and benefits services; Veterans' family, caregiver, and survivor experiences; VA policies, regulations, and administrative requirements related to the transition of Servicemembers from the Department of Defense (DoD) to enrollment in VA that impact Veterans' families, caregivers, and survivors; and factors that influence access to, quality of, and accountability for services and benefits for Veterans' families, caregivers, and survivors.
On October 3 and October 4, the agenda will include information briefings from the subcommittee and offices within Veterans Health Administration (that include Caregiver Support Program, Center of Excellence, Choose Home, Suicide Prevention-Impact on Veterans' Family, Caregivers, and Survivors, and Opioid Crisis—Impact on Veterans' Family, Caregivers, and Survivors, and the Office of Survivors Assistance), as well as opening remarks from VA senior leaders including the Chief Veterans Experience Officer and the Committee Chair. Committee members will also discuss the committee work plan and future activities. Public comments will be received at 4:45-5:30 p.m. on October 3, 2018.
Individuals wishing to speak should contact Dr. Betty Moseley Brown at
If you are interested in attending, please submit your name to Betty Moseley Brown by September 28, 2018 to help expedite arrival process. Any member of the public seeking additional information should contact Dr. Betty Moseley Brown at
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the
Comments must be submitted on or before October 18, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Health Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before October 18, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Office of Quality, Privacy and Risk (OQPR), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-5870 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) amends its regulations governing veterans' eligibility for VA pensions and other needs-based benefit programs. The amended regulations establish new requirements for evaluating net worth and asset transfers for pensions and identify which medical expenses may be deducted from countable income for VA's needs-based benefit programs. The amendments help to ensure the integrity of VA's needs-based benefit programs and the consistent adjudication of pension and parents' dependency and indemnity compensation claims. Lastly, the amendments effectuate: Statutory changes for pension beneficiaries who receive Medicaid-covered nursing home care; a statutory income exclusion for disabled veterans; and longstanding statutory income exclusions for all VA needs-based benefits.
Timothy Bailey, Acting Assistant Director, Pension and Fiduciary Service, Veterans Benefits Administration, Department of Veterans Affairs, 21P1, 810 Vermont Ave. NW, Washington, DC 20420, (202) 632-8863. (This is not a toll-free number.)
In a notice of proposed rulemaking published in the
The 60-day public comment period ended on March 24, 2015. VA received over 850 comments from an array of constituencies, including advocates, advisors, law firms, members of Congress, State government agencies, professional associations, veterans service organizations, and other interested members of the public. We read, analyzed, and considered each comment and are grateful to all who invested their time to comment. Some commenters stated that our explanation for certain provisions is unclear. We believe that we provided adequate justification in the proposed rule for this rulemaking but nonetheless provide further justification for this rulemaking in this final rule document. Many made valuable contributions, and we made changes in the final rule as a result. We grouped the comments by topic and discuss them by topic group later in this document.
The majority of the comments focused on several specific provisions, and we summarize those here. First, we proposed changes to the pension benefit program with respect to the amount of net worth a claimant could have to qualify for pension (for purposes of this supplementary information, references to a claimant include a beneficiary). We proposed a bright-line net worth limit and proposed as the limit the dollar amount of the maximum community spouse resource allowance (CSRA) for Medicaid purposes, at the time of publication of the final rule. We proposed to define net worth for VA purposes as the sum of a claimant's assets and annual income.
Second, we proposed to set forth the manner in which VA calculates a claimant's assets. We proposed to clarify VA's treatment of a claimant's residence for asset calculation purposes. We proposed a definition of “residential lot area” to mean the lot on which a residence sits that is similar in size to other residential lots in the vicinity, but not to exceed 2 acres (87,120 square feet), unless the additional acreage is not marketable.
Third, we proposed to establish a 36-month “look-back” period and a penalty period not to exceed 10 years for those who transfer assets during this look-back period to qualify for pension. We proposed that a transfer for less than fair market value would include an asset transfer to, or purchase of, any financial instrument or investment that reduces net worth and would not be in the claimant's financial interest were it not for the claimant's attempt to qualify for pension. We proposed that examples of such instruments or investments would include trusts and annuities. We further proposed to create a presumption that, in the absence of clear and convincing evidence showing otherwise, an asset transfer made during the look-back period was for the purpose of decreasing net worth to establish pension entitlement. We proposed that the presumption could be rebutted by clear and convincing evidence that the claimant transferred the asset as the result of fraud, misrepresentation, or unfair business practice related to the sale or marketing of financial products or services for purposes of establishing entitlement to pension. The proposed rule provided that VA would not consider as a transfer for less than fair market value a trust established on behalf of a child whom VA has rated incapable of self-support. The proposed rule provided that VA would not recalculate a penalty period unless the original calculation was shown to be erroneous or VA received evidence, within 60 days after VA notified the claimant of the decision, that all covered assets were returned to the claimant before the date of claim or within 30 days after the date of claim.
Finally, we proposed to define and identify medical expenses that VA may deduct from countable income for its needs-based benefits that utilize such deductions. We proposed definitions of “activities of daily living” (ADLs); “instrumental activities of daily living” (IADLs); “custodial care”; and “assisted living, adult day care, or similar facility.” We proposed to define “custodial care” as regular assistance with two or more ADLs or supervision because an individual with a mental disorder is unsafe if left alone due to the mental disorder. The proposed rule provided that, generally, medical expenses do not include either assistance with IADLs or meals and lodging in an independent living facility. The proposed rule provided that an in-home care attendant's “hourly rate may not exceed the average hourly rate for home health aides published annually” in the Market Survey of Long-Term Care Costs published by the MetLife Mature Market Institute.
For the reasons set forth in the proposed rule and in the discussion below, we are adopting the proposed rule as final, with changes as explained below to proposed 38 CFR 3.261, 3.262, 3.263, 3.270, 3.272, 3.274, 3.275, 3.276, 3.278, and 3.279.
Multiple commenters did not understand various VA benefits and one commenter expressed confusion by our use of the term “needs-based.” As used in this supplementary information, “needs-based” refers to a VA benefit in which the claimant's income is an entitlement factor or both a claimant's
At least one commenter expressed the belief that our proposed rule was proposing to turn benefits that are not needs-based into new needs-based benefits. It is not. This final rule does not apply to VA benefits that are not needs-based. This final rule pertains only to the VA needs-based benefits identified above. The new and revised net worth and asset-transfer rules apply only to current-law pension for veterans and survivors. This benefit is simply called “pension” or “VA pension,” unless it is necessary to distinguish between current-law pension and previous VA pension programs. Also, if it is necessary to distinguish between veterans and survivors, we may refer to the pension programs as “veterans pension” or “survivors pension.”
We note that a number of commenters referred to pension as “Aid and Attendance.” This is a misnomer and can be confusing because a higher “aid and attendance rate” may be payable under all of the following VA benefit programs: Pension, parents' DIC, disability compensation, DIC (for surviving spouses), and death compensation. In addition, a veteran who receives disability compensation may receive additional compensation when the veteran has a spouse and the spousal allowance is higher if the spouse meets aid and attendance criteria. The additional “spousal aid and attendance rate” is available only to certain compensation beneficiaries and is not available to pension claimants. A “housebound rate” that is a lesser amount than the aid and attendance rate may be paid to qualifying individuals who do not qualify at the aid and attendance level. This housebound rate is available to: Veterans and surviving spouses who receive pension; veterans who receive disability compensation; and surviving spouses who receive DIC. The aid and attendance and housebound rates are sometimes collectively called “special monthly compensation (SMC)” when the benefit is disability compensation, “special monthly DIC” when the benefit is DIC, and “special monthly pension (SMP)” when the benefit is pension. We emphasize that this final rule does not apply to disability compensation for veterans or to DIC for surviving spouses or children. It also does not apply to Family Caregiver benefits and General Caregiver benefits authorized by 38 U.S.C. 1720G; those benefits are available to veterans with certain injuries that were incurred in or aggravated in active military, naval, or air service. This final rule only applies to needs-based benefits.
Multiple commenters expressed the belief that, like most pensions, the VA pension benefit is a benefit into which veterans previously paid so it would be available later in life. Others expressed the opinion that VA pension should not be means-tested or that it is or should be available to all veterans. We make no changes based on such comments. Although veterans certainly “pay into” VA pension in terms of serving their country during a period of war, VA pension is not a benefit into which veterans previously directly contributed financially. The statutes governing VA pension are found in 38 U.S.C. chapter 15. Under the current pension statutes, pension is a benefit in which the annual amount of the benefit is reduced dollar-for-dollar by annual income received. See 38 U.S.C. 1521, 1541, and 1542. VA calculates annual income by deducting or excluding (not counting) amounts noted in 38 U.S.C. 1503 and other applicable statutes, such as a portion of unreimbursed medical expenses and educational expenses.
Multiple commenters pointed out that VA no longer considers a veteran's net worth when deciding if the veteran is eligible to receive VA hospital, nursing home, or domiciliary care. For this reason, these commenters state or indicate that net worth should not be a factor for pension entitlement. Moreover, several commenters stated that the proposed provisions would cause fewer veterans to qualify for VA hospital care at Priority Groups 4 and 5. We disagree. The VA statutes governing net worth for pension entitlement (38 U.S.C. 1522 and 1543) are different than those governing net worth for hospital care eligibility (38 U.S.C. 1722). Under 38 CFR 17.36(b)(4), Priority Group 4 includes veterans who receive increased pension based on their need for regular aid and attendance or by reason of being permanently housebound. It also includes veterans determined catastrophically disabled by the VA facility where they are examined. Priority Group 5 includes veterans whom the Veterans Health Administration (VHA) determines are unable to defray the expenses of necessary care under 38 U.S.C. 1722(a). 38 CFR 17.36(b)(5). Although VHA assumes that veterans who receive pension meet Priority Group 5 criteria, veterans are not required to receive pension to qualify for Priority Group 5. To the extent that some veterans might not be entitled to pension under this final rule, this does not mean these veterans would not be entitled to VA hospital care at the same priority. VA must consider net worth as an entitlement factor for pension (38 U.S.C. 1522 and 1543); it does not have discretion in this regard as it does for hospital care eligibility. Therefore, we make no changes based on such comments.
Numerous commenters questioned VA's authority to promulgate regulations governing the requirements for net worth, asset transfers, and income exclusions in order to qualify for VA's pension program. VA disagrees with these commenters and, therefore, does not make any changes to this rulemaking based on these comments. As discussed in the proposed rule, under 38 U.S.C. 1522 and 1543, VA may not pay pension to a veteran or to a veteran's surviving spouse when the corpus of the individual's estate (and a veteran's spouse's estate, if applicable) is such that, under all the circumstances, including consideration of the individual's income and that of the individual's spouse and dependent children, it is reasonable that the individual consume some part of the estate for his or her maintenance prior to receiving pension.
VA's authority here is derived from 38 U.S.C. 501(a), which permits VA to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by VA and are consistent with those laws. VA may administer the Congressionally-created pension program by formulating policy and enacting rules to fill any gap left, implicitly or explicitly, by Congress.
As previously stated, sections 1522 and 1543 require VA to deny or discontinue pension when it is reasonable to require the individual to consume some portion of his or her net worth for personal maintenance. We interpret the statutory requirement that a pension claimant must reasonably consume excessive net worth prior to receiving needs-based pension as precluding pension entitlement to an individual who has sufficient net worth for his or her maintenance (over $123,600, for 2018), transfers assets to get below that threshold, and then applies for VA pension leaving the Government to fund his or her maintenance. The text of the statute makes clear that Congress did not intend for claimants who have sufficient assets for self-support to use the pension program as an estate planning tool, under which they may preserve or gift assets to their heirs and shift responsibility for their support to the Government, at the expense of taxpayers.
Many commenters also pointed out that, in recent years, Congress has failed to implement legislation that would have implemented many of the changes that VA seeks to make in this rulemaking. Such failure does not negate VA's authority to provide reasonable rules in furtherance of Congress's directive for a net worth limitation. 38 U.S.C. 501(a), 1522, 1543. Moreover, VA notes that “unsuccessful attempts at legislation are not the best of guides to legislative intent.”
Multiple commenters took issue with our proposal to use a bright-line net worth limit for pension entitlement. Several commenters argued that a bright-line net worth provision is arbitrary and does not take into account age, disability, life expectancy, rate of depletion of assets, liquidity of assets, normal living expenses for healthy dependents, nursing home status, or medical expenses in relation to income. Some commenters proposed alternative net worth calculation and decision methodologies that included these factors. A number of commenters argued that our proposed changes to net worth provisions will make it more difficult for claimants to qualify for pension, and stated their belief that not as many will qualify, causing individuals more stress during a difficult time. Some stated that claimants would essentially have to deplete their net worth to qualify. Some suggested that VA could make exceptions for veterans who are over age 75.
We make no changes based on these comments. As stated in the preamble of the proposed rule, the way that net worth decisions are made now is often inconsistent and arbitrary.
While net worth determinations will no longer take into account life expectancy, rate of depletion of assets, and other factors, it is that multitude of factors that have resulted in inconsistent, and sometimes unfair, decisions. For example, we have reviewed cases in which elderly claimants with short life expectancies have been denied pension with as little as $10,000 of net worth. We have seen claims processors deny pension if assets are projected to last the claimant's lifetime or longer, and others require complete or almost complete spend-down of net worth before granting pension. Accordingly, we decline to create an exception for claimants over 75; in fact, we believe that more pension claims will be granted under these regulations than under the previous regime.
Instead, we believe the best approach moving forward, for both pension claimants and the efficiency of the system, is employing, as the net worth limit, the standard maximum CSRA prescribed by Congress. We have considered the possibility of finding a solution within the current standard, as well as other solutions commenters set forth, but many of them, such as establishing upper and lower limits, would be less favorable to claimants than a net worth limit at the maximum CSRA. We believe that setting the net worth limit at the maximum CSRA—which in 2018 is $123,600—allows more claimants to qualify for the benefit than before. Our impact analysis concurrent with the proposed rule indicated that 1,149 pension denials would have been grants (and only 40 grants would have been denials) if the maximum CSRA had been the net worth limit in fiscal year 2014.
We understand, as many pointed out, that the CSRA was prescribed by Congress for Medicaid, which is a fundamentally different program than VA pension. But it is a number that was adopted by Congress to prevent the impoverishment of the non-institutionalized spouse of a Medicaid-covered individual. Similarly, we do not desire any net worth limitation that could subject wartime veterans and
Multiple commenters stated that VA's proposal to establish the bright-line net worth limit by using the CSRA prescribed by Congress for Medicaid was out of context,
To be clear, these programs are governed by different statutes and serve different purposes. VA pension is a monetary benefit paid to wartime veterans and survivors to supplement their income, based on need. On the other hand, Medicaid is a health insurance program for individuals and families with low income and limited resources. As such, incorporating all of Medicaid's net worth rules into the VA pension program is neither legally required nor sensible. But, because Congress has established a level of net worth sufficient to avoid “impoverishment” in administering Medicaid, we find it sensible to employ that Congressional determination for VA pension. Similarly, as further discussed in the proposed rule and later in this supplementary information, we find it sensible to take aspects of the look-back period implemented in Medicaid (per GAO's recommendation) to form a look-back period.
Thus, though we reviewed these comments on Medicaid and made changes in this final rule in response to some of them, we disagree with the comments above that highlighted favorable Medicaid policies, as they overlooked particular rules of VA pension that are also favorable to claimants. For instance, although VA does not pay for medical expenses as Medicaid does, VA does deduct unreimbursed medical expenses that exceed 5 percent of the maximum annual pension rate (MAPR) allowed by Congress, to reduce income for VA purposes. Overall, we did not intend in our proposed rule to equate all aspects of VA pension to Medicaid, or to mimic other aspects of Medicaid provisions, and there is no legal requirement that any particular Medicaid policies or procedures be incorporated into VA pension.
Several commenters stated that the proposed regulations fail to provide for a maintenance income and an asset allowance, as well as an exception for a divestment of gifts and conversion of assets for a community spouse such as those provided by Medicaid rules, and these omissions are likely to result in the impoverishment of community spouses. Several commenters also stated that, under 38 U.S.C. 1522, VA is required to take into account “all the circumstances” of a veteran and a veteran's family in evaluating annual income and other real and personal property. Commenters stated or implied that the failure of current regulations, as well as the proposed regulations, to provide for the maintenance needs of a community spouse arguably violates VA's duty to consider “all the circumstances” in determining whether it is “reasonable” that some part of an institutionalized veteran's estate should be consumed for the veteran's maintenance.
VA makes no changes based on these comments. By selecting the maximum CSRA as the net worth limit and deducting payments for institutionalized care from net worth, we strongly disagree that these regulations do not take into account the needs of community spouses. Indeed, in this final rule, as discussed below, VA has expanded its net worth deductions for payments to care facilities other than nursing homes to ensure that “all the circumstances” are considered for situations where the veteran can no longer live at home. Succinctly stated, while the regulations adopted herein might depart from specific Medicaid rules—as a program with a different purpose is permitted to do—they do not leave community spouses unprotected from impoverishment.
One commenter also mentioned that VHA's net worth provisions at 38 CFR 17.111 do not take into account the amount of the maximum CSRA when determining whether a veteran is required to pay a co-payment for VA-provided extended care services. We make no change based on this comment. Noted above in the information pertaining to terminology clarifications, the VA statutes governing net worth for pension entitlement are different from those governing VA hospital care eligibility. Although VA no longer considers net worth when determining a veteran's eligibility for VA hospital care, VA is required to consider net worth when determining pension entitlement. 38 U.S.C. 1522, 1543.
Some commenters said that the bright-line net worth limit does not take into account future increases in costs of care or inflation. To the contrary, proposed and final § 3.274(a) provide for cost-of-living increases in the net worth limit to account for inflation.
Another commenter stated that, if a claimant's deductible medical expenses exceed the claimant's income, the net worth limit does not take this into account. As further discussed below, however, medical expenses affect net worth in two ways: First, a claimant's predictable medical expenses are subtracted from countable income; second, the actual payment of the medical expenses will (other things held constant) reduce assets. Thus, medical expenses exceeding income do affect net worth.
Other commenters noted that the bright-line net worth limit does not take locality differences into account. We first note that the statutory MAPRs under 38 U.S.C. 1521, 1541, and 1542 are fixed and not adjusted by locality. Second, we believe that, in choosing as our net worth limit the maximum CSRA ($123,600 in 2018) rather than the minimum CSRA ($24,720 in 2018) or any amounts within this range, we have adequately accounted for different
Several commenters asserted that our proposed rule regarding the bright-line net worth limit contained faulty reasoning in stating that “current rules require development of additional information not solicited in the initial [pension] application.” 80 FR 3842. These commenters pointed out that having insufficient forms is a reason to change forms, not rules. Some of these commenters proposed alternative net worth decision methodologies and form modifications. While their point that rules need not be changed for a problem with forms is certainly valid, our desire to establish a bright-line limit has less to do with forms and more to do with consistency, uniformity, and clarity, as discussed above. Moreover, although some commenters stated that neither pension application nor development forms request information regarding living expenses, a claimant's completion of VA Form 21-8049, Request for Details of Expenses, has been an administrative requirement in order for claims processors to make net worth determinations. Among other things, this form includes monthly living expenses such as housing, food, utilities, clothing, and education. The information requested on this form will no longer be necessary for net worth determinations under this final rule. We further note that VA is amending application forms in conjunction with this final rule to incorporate information previously received on the VA Form 21-8049, as well as other information.
One change that we are making is to the example in proposed § 3.274(b)(4). The final rule uses a more current number (the maximum CSRA for 2018) for the net worth limit and eliminates superfluous language.
One commenter noted that proposed § 3.274(f)(1) is overly restrictive in providing that assets could only decrease by spending them on “[b]asic living expenses” or educational or vocational rehabilitation. As proposed, the rule could be read to preclude expenditures for items such as vacations, televisions, and sprinkler systems. We agree, and, therefore, we are withdrawing proposed § 3.274(f)(1)(i) and (ii) and revising § 3.274(f)(1) to provide that a claimant may decrease assets by spending them on items or services for which fair market value is received. A claimant could not, of course, spend down assets by purchasing an item whose value VA would still include as an asset—such as a $50,000 painting or gold coins—and this final rule so states. Although a claimant can certainly purchase a $50,000 painting or gold coins, the value of the painting or coins would still be included as an asset. Final paragraph (f)(1) is significantly more liberal than proposed paragraph (f)(1). We note here that, in general, VA does not require receipts or other proofs of purchase to show decreased assets, although it is permitted to request them under 38 U.S.C. 1506(1).
Due to this change and based on our further administrative review, final § 3.274(f) does not include proposed paragraph (f)(3). Proposed paragraph (f)(3) was a provision that erroneously stated that VA would “deduct” certain expenses from assets. VA does not deduct the value of future expenses from current assets when determining asset values; rather, VA deducts projected unreimbursed medical expenses from income when the medical expenses are reasonably predictable. Therefore, for example, if a claimant's net worth exceeds the net worth limit in a given year even though projected medical expenses have reduced income to zero, the actual payment of these medical expenses the next year may cause assets to decrease and the claimant to then qualify for pension.
We renumbered proposed paragraphs (f)(4) and (5) as final paragraphs (f)(3) and (4), respectively. We also amended the text of final paragraphs (f)(3) and (4) to reflect the clarification discussed above.
Multiple commenters criticized proposed § 3.275(a)(3), claiming that the definition of “residential lot area” is too restrictive by limiting the lot area to 2 acres (87,120 sq. ft.). Many commenters stated that claimants living in rural areas would be unfairly penalized because of zoning and other restrictions which would prevent them from being able to sell the excess land. VA disagrees because the definition of “residential lot area” includes the provision that the lot cannot exceed 2 acres unless the additional acreage is not marketable. The additional property might not be marketable if, for example, the property is only slightly more than 2 acres, the additional property is not accessible, or there are zoning limitations that prevent selling the additional property. Therefore, lot sizes that exceed 2 acres may still be excluded from the claimant's asset calculation if the additional property is deemed unmarketable. However, VA recognizes that the proposed provision that lots must be “similar in size to other residential lots in the vicinity of the residence” may be unnecessarily restrictive for claimants with less than 2 acres, but more acreage than their neighbors. Therefore, the final rule does not include the “similar in size to other residential lots in the vicinity” requirement.
Several commenters interpreted the proposed rule to mean that VA would require claimants to sell their residences and/or their land if the residential lot area was greater than 2 acres. We note that when a claimant's residential lot is greater than 2 acres, VA will still exclude the value of the residence and 2 acres worth of property from the claimant's assets. VA is not requiring claimants to sell either their residence or land. VA will only include the value of the additional property in the asset calculation.
One commenter stated that the 2-acre limit would cause claimants to sell their land, which would lead to more development, thus endangering wildlife and harming the environment. As noted above, VA is not requiring any claimant to sell his or her land, nor can we speculate on whether a claimant might do so or for what purpose the land might be used. The concern has been taken into consideration, but we make no change to the final rule based on the comment.
One commenter stated that the rule does not address treatment of property listed for sale. VA excludes the value of the primary residence from net worth (and includes the value of other residences) regardless of whether or not the property is listed for sale. We make no change based on this comment.
Several commenters noted that it is already VA policy to exclude from net worth a claimant's residence and a reasonable lot area and did not agree with VA's decision to place a limit on the lot area VA considers reasonable. As stated in the proposed rule, the limit supports our policy choice to exclude a claimant's primary residence from assets, while at the same time placing a reasonable limit on excluded property to preserve the pension program for veterans and survivors who have an actual need. We make no changes based on such comments.
Many commenters questioned why the residential lot exclusion is based on acreage rather than value. VA clarifies that the purpose of using acreage instead of value is so that claimants who live on small, but valuable land (regardless of what that value is derived from) are not penalized. For example, a claimant could live in a small, meager
One commenter asked if VA claims adjudicators would require claimants to provide property deeds or other evidence to determine lot size. Under 38 CFR 3.277(a), claims adjudicators always have a right to request that a claimant submit evidence to support entitlement to a benefit. We make no change based on this comment.
Many commenters questioned why proposed § 3.275(b) included the provision that “[i]f the residence is sold, any proceeds from the sale is an asset except to the extent the proceeds are used to purchase another residence within the same calendar year as the year in which the sale occurred.” These commenters stated that it is unreasonable to expect claimants to sell a residence and buy a new one in the same year, especially if the sale occurs toward the end of the year. Although we understand their point, 38 U.S.C. 5112(b)(4) requires that changes in net worth be recognized at the close of the calendar year in which the change occurred, and we make no change based on these comments. We note that this provision only applies to home sales after pension entitlement is established. The final rule makes this clear by providing that it only applies “[i]f the residence is sold after pension entitlement is established.” If the residence is sold at any time before the date of claim,
For residential sales after pension entitlement is established, the rule provides that the residences need to be sold and purchased within the same calendar year because 38 U.S.C. 5112(b)(4) provides that the effective date of reduction or discontinuance of pension due to a change in net worth is the end of the year in which net worth changes. Therefore, for example, if an individual is receiving pension and in July 2017 receives proceeds from the sale of a residence which make net worth excessive, the statutory effective date of discontinuance is December 31, 2017, and VA would discontinue pension as of January 1, 2018. However, if the claimant spends down the funds or purchases another residence before the effective date, VA would not discontinue pension. We understand and recognize the disparity between a person who sells his or her residence in January, for example, versus a person who sells his or her residence in December. However, we are bound by the effective date statute. We note that if an individual sells his or her residence in December 2017, and spends down the net worth or purchases a new residence in February 2018, VA would discontinue pension as of January 1, 2018, and resume pension as of March 1, 2018, assuming entitlement factors continue to be met and the claimant informs VA of the spend-down or purchase before VA's decision regarding the discontinuance becomes final. Of course, these examples assume that the sale of the residence makes net worth excessive; not all residential sales would result in discontinuance.
One commenter stated that the rule is unfair to those who choose to rent—rather than purchase another home—after selling their residence. Others commented more generally that rent (to a care facility or otherwise) should be deducted from net worth. To the extent there is a concern about the effect of selling a residence in order to move into a nursing home or other care facility, we believe that our changes to the deductible medical expense provisions, described below, will alleviate much of this concern. Under final § 3.278(d), amounts paid to a care facility for lodging will often be considered a medical expense, deducted from income pursuant to 38 U.S.C. 1503(a)(8). However, as to the request to deduct other rent payments from net worth, we are unaware of any statutory authority for doing so. While we are continuing our longstanding policy of excluding the value of primary residences from
One commenter asked that a definition of “proceeds from the sale” be included. To alleviate any confusion, the final rule refers to “net proceeds from the sale.” We believe this change adequately addresses the commenter's concern. The definition is readily available from many sources. The term net proceeds refers to the amount of money a seller receives from the sale. It is the sales price of the residence minus selling costs. Net proceeds do not include payoff of existing mortgages or fees such as brokerage commissions and closing costs.
One commenter believed that VA's asset calculation methodology was not explained in detail in the proposed regulation. We disagree; proposed and final §§ 3.274 and 3.275 address the types of assets included and excluded in an asset calculation, VA generally accepts the statements of its claimants regarding assets unless there is reason to question them, and VA does not plan to change this practice.
One commenter seemed to have misunderstood proposed § 3.275(b)(1)(i), which provides that VA will not subtract from a claimant's assets the amount of mortgages or other encumbrances on a claimant's primary residence. We clarify here that VA excludes a claimant's primary residence from assets, regardless of the value of the residence. Section 3.275(b)(1)(i) simply means that VA does not subtract mortgages and encumbrances on a primary residence from other assets. For example, assume a claimant owns a primary residence worth $100,000, still owes $20,000 on the residence, and the claimant's only other asset is a $50,000 bank account. Assets for VA purposes would total $50,000 because we exclude the primary residence and do not subtract the mortgage on a primary residence from other assets. Under § 3.275(a), mortgages and encumbrances specific to the mortgaged or encumbered property (that is not the primary residence) are deducted from the value of the property. One commenter relatedly questioned the treatment of liens on a property. Liens qualify as encumbrances. We make no change based on these comments.
Some commenters questioned why the income and assets of any child living in the primary residence must be considered as included in an applicant's net worth. Others stated that VA should not bar a veteran's pension because of a child's net worth, to include an inheritance or job income. We make no change based on these comments because we believe statute governs this issue. Under 38 U.S.C. 1521(h)(1) and 1541(g), a veteran's or surviving spouse's income generally includes a
One commenter believed that a veteran's assets should not include the assets of his or her spouse if the spouse and the veteran do not reside together. Again, this issue is addressed by statute and we make no change based on this comment.
Another commenter stated that a surviving child's assets should not include the assets of his or her guardian. We make no changes based on this comment because, by statute, the assets of an individual are included when the child is residing with the individual and the individual is legally responsible for the child's support.
One commenter believed that assets should not include personal property. We make no changes based on this comment because most general definitions of assets include personal property. We note that, under proposed and final § 3.275(b)(2), VA does not include as an asset the value of personal effects suitable to and consistent with a reasonable mode of life, such as appliances and family transportation vehicles. We further note that this provision is not a change from past practice.
Another commenter stated there should be a clear and defined difference between net worth and liquid net worth. The commenter seemed to believe that VA bases its pension entitlement decisions on liquid assets alone. Normally, we think of a liquid asset as a cash asset or an asset that can easily be converted to cash. Real estate and other types of personal property are considered to be non-liquid assets. Save certain exceptions discussed in this preamble and noted in the final rule, VA does not distinguish between liquid and non-liquid assets when making pension entitlement determinations. A claimant who has $50,000 in a bank account and a claimant who owns property worth $50,000 (that is not his or her primary residence) are both considered to have $50,000 in assets. VA generally accepts as true a claimant's statement regarding the value of his or her assets in the absence of conflicting information. We make no changes based on the comment.
Multiple commenters complained that VA is counting income twice: Once for its net worth determinations and again in the calculation of the pension entitlement rate. Although we are sympathetic with this concern, we are again bound by the pension statutes, and thus make no changes. Sections 1522 and 1543 of 38 U.S.C. require VA to consider the amount of claimants' and certain dependents' income when making net worth determinations. Sections 1521, 1541, and 1542 of 38 U.S.C. then require VA to reduce the MAPRs by the annual income of the claimant and certain dependents. One commenter asked us to provide additional justification; however, we decline to do so because we believe the statute is sufficient. We re-emphasize that a claimant's reasonably predictable projected unreimbursed medical expenses can be deducted from income when calculating a claimant's net worth. Therefore, for many claimants who are paying in-home care or facility expenses for themselves or a dependent, the income component of net worth will be zero, and this issue will not be a concern.
Some commenters appeared to believe that total net worth would have to be spent on the applicant's needs in order to obtain pension, leaving nothing for the needs of the surviving spouse (and child) in the future. As clarified above, a child is not required to consume his or her assets for a parent to qualify for pension. 38 U.S.C. 1522(a) and 1543(a). And, again, we have chosen a net worth limit for pension that enables a claimant to retain a reasonable portion of assets to respond to unforeseen events.
One commenter suggested that the proposed rule makes no provision for small business owners or farmers who own property and have to liquidate assets to provide income for themselves and employees. The commenter questions how small business assets will be calculated if they are sold to pay employees. We believe that our definition of “fair market value” covers such a situation and make no change based on the comment. Although an individual might sell an asset for less than its appraised value, depending on the circumstances and in the absence of information showing otherwise, VA could consider such a sale to be a transfer for fair market value and would consider the net proceeds from the sale to be an asset. Distribution of the net proceeds to employees would then decrease that individual's assets.
A commenter asked: If VA determines the need to re-evaluate net worth based on a matching program with the Internal Revenue Service (IRS), how will VA know what unreimbursed medical expenses exist for the many elderly individuals who do not file income taxes? In response to this commenter, at the time a veteran or survivor applies for VA pension, VA uses a claimant's projected unreimbursed medical expenses to calculate the claimant's pension entitlement rate as long as the claimant reports the expenses and the expenses are reasonably predictable. It is the claimant's responsibility to keep VA informed at all times of any changes that affect continued entitlement.
A commenter noted that this rulemaking does not address how VA would treat real property held as a life estate. The commenter asked how VA would treat a life tenant's primary residence if the residence is sold and suggested that VA adopt the IRS's valuation of life estates. Because the proposed rule did not address the treatment of life estates, we are concerned that addressing this issue in the final rule would deprive interested parties the opportunity to meaningfully comment on any related proposal. VA will consider whether to address this issue in a future rulemaking. However, VA is unable to make any changes to this rulemaking based on these comments.
In the preamble of our proposed rule, we included an explanatory derivation table to summarize the rather complex effective dates pertaining to net worth.
Multiple commenters expressed that certain types of trusts and annuities should not be included in the definition of “transfer for less than fair market value.” We agree that certain annuities and trusts should not be included as a transfer for less than fair market value. Thus, based on a number of comments discussed below, we are revising § 3.276(a)(5)(ii) to provide that a transfer for less than fair market value means a voluntary asset transfer to, or purchase of, any financial instrument or investment that reduces net worth by transferring the asset to, or purchasing, the instrument or investment unless the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant's own benefit. We also provide that, if the claimant establishes that the asset can be liquidated, the asset is included as net worth.
First, some commenters misunderstood proposed § 3.276(a)(5)(ii), believing that a transfer to any revocable or irrevocable trust would be considered a transfer for less than fair market value. We want to be clear that transfers to annuities or trusts over which a claimant retains control and the ability to liquidate are transfers for fair market value under this final rule and are not subject to a penalty period. Annuities and trusts that can be liquidated for the benefit of the claimant will instead be considered as an asset in net worth calculations. Of course, we would not require claimants to liquidate their assets; we simply would not consider funds over which a claimant still has complete control to have been transferred for less than fair market value. Such funds are assets.
Second, several commenters noted that some transfers to annuities are mandated upon retirement. The conversion of deferred accounts to an immediate annuity is required under some retirement plans. We concur with these comments and final § 3.276(a)(5)(ii) excludes mandatory conversions. This means that we will not count, as a covered asset, the amount transferred to such an annuity, although distributions from the annuity will continue to count as income.
Third, a commenter asked us to explain why annuities and trusts are included in proposed § 3.276(a)(5)(ii) as “any financial instrument or investment that reduces net worth and would not be in the claimant's financial interest.” The commenter asked us to explain why annuities and trusts are not in the financial interest of the claimant. We agree that this language is confusing and would be difficult to apply, and it has been removed.
Fourth, one commenter requested we explicitly exclude implied trusts from the definition of a trust by replacing the word “arrangement” in § 3.276(a)(5)(ii)(B) with the word “instrument.” We agree with this comment, and the final rule uses the word “instrument” as suggested.
Several commenters asked why VA seemed to be singling out annuities and further pointed out that bank accounts and stocks are sometimes unwise investments for seniors. As noted in the proposed rule, annuities and trusts are simply two examples of instruments that could possibly be used to restructure a claimant's assets to make it appear that the claimant's net worth is less than it is. This rulemaking is not an attempt to eradicate all unwise investments undertaken by seniors; it is an effort to discourage those who are financially secure from transferring assets to qualify for VA pension. Asset transfers to stocks, bonds, or bank accounts do not reduce net worth at the time of transfer.
One commenter questioned why establishing a trust or annuity was considered a “less than fair market value” transfer. That commenter also stated that veterans should not be penalized for establishing trusts or annuities for purposes not related to VA pension. Our response is two-fold. First, these instruments are considered transfers of less than fair market value because they are the primary tools of the over 200 organizations identified by the GAO as manipulating assets to reduce a claimant's net worth.
Many commenters thought that establishing a trust and/or annuity under the proposed regulation would always result in a penalty period. As
Several commenters expressed confusion regarding how VA would value an annuity. We believe the changes above clarify the issue. If an annuity cannot be liquidated, then the annuity is not considered an asset; however, distributions from the annuity count as income (as further discussed below) and the purchase could warrant a penalty period. If the annuity can be liquidated for the claimant's benefit, the annuity purchase is included as an asset.
One commenter stated that the purchase of an immediate annuity meets the definition of an installment sale. VA's current procedure manual defines an installment sale for pension purposes as any sale in which the seller receives more than the sales price over the course of the transaction. However, there are different types of annuity plans, and the seller (annuitant) might not receive more than the sales price over the course of the transaction, for example, if the plan terminates payments upon the seller's death. Although the commenter draws this comparison to an installment sale in furtherance of his argument that annuity payments should not be treated as income, Congress has spoken explicitly on the question of whether annuity payments are income, as further discussed below.
Some commenters noted that § 3.276 does not provide a specific exemption for purchase of burial policies or planning for funeral and final expenses. VA would regard the purchase of a burial policy as a fair market value purchase. In addition, VA deducts from income certain family members' final or burial expenses. 38 U.S.C. 1503(a)(3)-(4); 38 CFR 3.272(h). We make no change based on these comments.
Many commenters expressed concerns with the presumption and the “clear and convincing” standard of evidence VA proposed in § 3.276(c).
Multiple commenters requested that we expand the trust exception to children disabled after age 18, as well as children of the surviving spouse (and not the veteran). We decline to do so. Statute defines “child” for VA purposes to include children of the veteran who became permanently incapable of self-support before their 18th birthday, not after.
One commenter expressed the belief that the exception should apply where distributions from the trust to a veteran or spouse are used for care rendered to the incapable child, shelter, and other expenses. We have considered the suggestion, but ultimately believe that the language of proposed § 3.276(d)(2) more precisely executes the goal of this limited exception. Therefore, no change is warranted.
Some commenters stated that VA should overturn a VA precedential General Counsel opinion, VAOPGCPREC 33-97, to conform to special needs trust laws at 42 U.S.C. 1396p(d)(4)(A) and (C). VA declines to make any changes based on this comment. The statute cited by the commenters pertains to the treatment of certain special needs trusts under SSI law. The statute does not apply to VA. Another commenter asked that VA “exempt” transfers to any trusts allowed under SSI law. As explained above and in the supplementary information to the proposed rule, SSI employs a significantly lower net worth limit than VA will be using and VA need not implement the exact same limits and exceptions as other needs-based programs governed by separate statutes.
Multiple commenters requested that we provide a general hardship exclusion. One commenter noted that there are times when individuals sell assets under market value because they have to find liquidity and a means of meeting their obligations. We interpret this comment to mean that if, for example, an individual had property appraised at $10,000, the individual might be required to sell the property for $6,000 because no buyer could be found to purchase the property at the appraised value. We believe that our definition of “fair market value” would adequately cover this situation, and VA would consider such a sale to be a transfer for fair market value. More generally, VA does not agree that a
Multiple commenters pointed out an error in our proposed penalty period calculation that resulted in significantly longer penalty periods for surviving spouses and surviving children as compared to veterans, as well as longer penalty periods for single veterans as compared to married veterans. Many commenters stated that the proposed penalty period was discriminatory and violated the Constitution. We proposed to use a claimant-specific MAPR as a divisor when calculating a claimant's penalty period. We agree that our proposal would have produced unfair and undesirable results and are grateful to all of those who identified this error. We have amended proposed § 3.276(e); final § 3.276(e)(1) uses a single divisor for all claimants, which will result in equal penalty periods for equal amounts of precluded asset transfers regardless of the type of claimant. The single divisor is the MAPR in effect on the date of the pension claim at the aid and attendance level for a veteran with one dependent. As stated in the proposed rule, we divide that amount by 12 and drop the cents. We chose this rate because most of VA's pension claimants qualify at the aid and attendance level and because a higher divisor results in a shorter penalty period. The penalty period calculation example at final § 3.276(e)(4) reflects the single divisor. One commenter asked the purpose of using the benefit amount to calculate the penalty period. Although the commenter was possibly referring to our mistake in using the claimant-specific MAPR for penalty period calculations, we note that the purpose of the penalty period calculation is to approximate the number of months that a claimant could have used the assets for his or her own needs rather than disposing of them.
Many commenters wrote that a penalty period of up to 10 years is excessive, essentially resulting in a “permanent” denial for most claimants due to their age and life expectancy at the time of application. Some commenters suggested that VA set a maximum of 36 months as the penalty period. Based on the comments we received, we decided to shorten the maximum penalty period to 5 years. Under proposed and final § 3.276(e)(2), a penalty period begins on the first day of the month that follows the last asset transfer. Therefore, having a maximum 36 month penalty period would result in no penalty if the asset transfer occurred 3 years before the date of the pension claim. Instead, we think a 5 year maximum provides the appropriate balance of protecting the integrity of the pension program, while avoiding the “permanent” denials that could have resulted with a 10-year maximum penalty, given the age of many pension claimants. We further emphasize that, under proposed and final § 3.276(e), only that portion of assets that would have made net worth exceed the bright-line limit is subject to penalty. We appreciate the public comments on this issue.
Numerous commenters requested that the time limit for curing asset transfers be amended and that VA allow partial cures. We agree that our proposal did not allow adequate time to cure asset transfers and did not allow enough time for claimants to notify VA of the cure. We also agree that partial cures are acceptable and should constitute a basis for recalculation. We have amended proposed § 3.276(e)(5) to allow claimants 60 days following a penalty period decision notice to cure or partially cure a transfer and allow 90 days following a penalty period decision notice to notify VA of the cure. We are grateful to all of those who suggested these changes.
Several commenters asked why we are making changes regarding asset transfers when the impact analysis for the proposed rule stated that only 1 percent of claimants transfer assets. VA is making these changes to protect the integrity of the pension program and to counteract the hundreds of organizations targeting elderly veterans and spouses with financial schemes that wrest away these individuals' own assets for the promise of qualifying for VA pension.
Multiple commenters expressed concern that the asset transfer provisions would be applied retroactively. In order to ease this concern, paragraphs (a)(7) and (b) of final § 3.276 explicitly state that VA will not “look back” to a time before the effective date of the final rule. VA will disregard asset transfers made before that date.
One commenter stated that claims are already being denied under these asset-transfer provisions. We are unaware of such cases; however, we note that VA's previous asset-transfer provision at 38 CFR 3.276(b) did state that VA would not regard certain asset transfers as a reduction of net worth. For example, VAOPGCPREC 33-97, mentioned above, states that VA should include trust assets in net worth calculations if the trust assets are available for use for the claimant's support. This applied to pre-claim transfers as well, although 38 CFR 3.276(b) did not so state. This would also be true under this final rule and we make no change based on the comment.
Many commenters were concerned that any transfer of assets such as a gift to family members or charitable donations would cause VA to impose a penalty period. Not all gifts and charitable donations are prohibited or will result in a penalty period. Only when assets are transferred or gifted during the 3-year look back period, and the asset would have caused or partially caused net worth to be excessive, will a penalty period, not to exceed 5 years, be calculated based on the portion of the transferred assets that would have made net worth excessive. For example, a veteran gives $90,000 to charity one year before she claims VA pension, and she has $10,000 remaining in a checking account. Because the $90,000 amount transferred would not have made net worth excessive, no penalty period is assessed. Again, we expect the asset transfer changes will affect a very small portion of pension claimants, while bolstering the integrity of the program.
Multiple commenters expressed concern that a look-back period would delay claims processing and would create undue stress and hardship if claimants have to provide VA with 3 years' worth of bank statements and other documentation. VA generally will not require 3 years' worth of documentation from claimants, but will only require additional documentation
One commenter asked how VA would determine the uncompensated value of an asset under § 3.276, and who within VA will make these determinations. The commenter also wanted to know if VA will conduct application review conferences like Medicaid, and if so, who will conduct the conferences. VA has no plans to conduct application review conferences under this final rule. Rather, VA adjudicators will render determinations on value based on the best available information, though they will generally accept, as true, statements that claimants make on their application forms, unless there is reason to question the statements. We make no change based on the comment.
One commenter stated that VA does not have educated staff members who are able to estimate property values and that the rulemaking gives VA claims processors the ability to approve or disapprove pension claims based on the claims processor's personal assumption of value. We disagree. Final § 3.276(a)(4) defines “fair market value” as the price at which an asset would change hands between a willing buyer and willing seller who are under no compulsion to buy or sell and who have reasonable knowledge of relevant facts, and further states that VA will use the best available information to determine fair market value, such as inspections, appraisals, public records, and the market value of similar property, if applicable. We believe the final rule makes it clear that VA does not rely on the personal assumptions of a claims processor to value assets and, as previously mentioned, claims processors have the authority, under 38 U.S.C. 1506 and 38 CFR 3.277(a), to request additional information when a claimant's estimate of property values is suspect. VA declines to make any changes based on the comment.
One commenter took issue with our proposal to use the best available information to determine fair market value, such as inspections, appraisals, public records, and market value of similar property, if applicable. The commenter apparently interpreted this to mean that VA would be hiring third parties to provide such information. This interpretation is not accurate, and VA has no intention of hiring non-governmental employees to research property values. As indicated above, the use of independent sources to assist VA in determining asset values, when necessary, is longstanding VA policy authorized by statute and regulation, and no change is warranted based on the comment.
One commenter stated that applicants for DIC should not have to disclose asset transfers on VA Form 21P-534, Application for Dependency and Indemnity Compensation, Survivors Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable). The commenter also expressed belief that DIC and survivors pension applications should be separate forms. As stated above, in the information regarding needs-based benefits, this final rule applies only to needs-based benefits; and DIC for surviving spouses and children is not a needs-based benefit. We also understand the commenter's view that DIC and survivors pension should be separate applications; however, 38 U.S.C. 5101(b)(1) provides that, for surviving spouses and children, a claim for DIC must also be considered a claim for survivors pension, and a claim for survivors pension must also be considered a claim for DIC. (Either claim must also be considered a claim for accrued benefits.) Accordingly, we make no changes based on this comment.
One commenter noted our mistake in the preamble of the proposed rule, with respect to the beginning date of the penalty period. In the preamble, we said, “[u]nder proposed § 3.276(e)(2), the penalty period would begin on the date that would have been the payment date of an original or new pension award if the claimant had not transferred a covered asset and the claimant's net worth had been within the limit.” 80 FR 3849. This was an error because proposed § 3.276(e)(2) actually provided that the penalty period would begin on the first day of the month that follows the date of the last transfer. 80 FR 3861. No changes are necessary in this regard because the proposed regulatory text correctly stated the rule and is more advantageous to claimants than the erroneous preamble statement.
We received almost 300 comments that pertained to our proposed medical expense provisions. Many predicted dire consequences if the proposed regulations were to be implemented, including forcing claimants into nursing homes and onto Medicaid, thus increasing costs to taxpayers, creating unfunded mandates to States, affecting small businesses (such as care facilities), and forcing seniors to avoid seeking care or taking prescribed medications due to lack of affordability. Based on some of these comments as well as our own internal administrative review, this final rule reflects a number of changes from the proposed rule that we believe will allay most, if not all, of the commenters' concerns.
Statute permits VA to deduct amounts paid by a veteran, veteran's spouse, or surviving spouse or by or on behalf of a veteran's child for unreimbursed medical expenses, to the extent that such amounts exceed 5 percent of the maximum annual rate of pension (including any amount of increased pension payable on account of dependents, but not including any amount of pension payable because a person is in need of regular aid and attendance or because a person is permanently housebound) payable to such veteran, surviving spouse, or child.
Neither statute defines “medical expenses.” As we mentioned in the preamble of the proposed rule, there is currently no regulation that adequately defines “medical expenses” for VA purposes—
We received many comments pertaining to our definitions of various terms, including custodial care, health care provider, ADLs, and IADLs. We first defined a health care provider to mean an individual licensed by a State or country to provide health care in the State or country in which the individual provides the health care, as well as a
Numerous commenters urged us to expand our definition of ADLs. Some commenters suggested that we use the definition of ADLs from the Medicare Benefit Policy Manual which is referenced in Fast Letter 12-23. The Medicare Benefit Policy Manual, which provides that custodial care is not covered under Medicare, describes activities of daily living as including, for example, “assistance in walking, getting in and out of bed, bathing, dressing, feeding, and using the toilet, preparation of special diets, and supervision of medication that usually can be self-administered.” Medicare Benefit Policy Manual, Chapter 16—General Exclusions from Coverage,
Several commenters asked us in particular to define “handling medications” as an ADL instead of an IADL. Although we decline to do this, we note here that there is a difference between “medication administration” and other sorts of assistance with taking medications such as medication reminders. Medication administration, if performed by a health care provider, would be a health care expense under § 3.278(c)(1). A medication reminder from a provider who is not a health care provider would not be a medical expense unless the individual requires custodial care and the provisions of final § 3.278(d) apply.
Many commenters also urged us to include IADLs in the definition of ADLs or, similarly, to include IADLs alone as medical expenses. We note that the final rule liberalizes the circumstances in which payment for assistance with IADLs constitutes a medical expense, as discussed below. We believe this obviates the commenters' concerns without the need for changing definitions in this regard. We have, however, made one change to our list of IADLs based on our further administrative review. In the proposed rule, we proposed to exclude as an IADL, and as a medical expense under proposed paragraph (e)(5), fees paid to a VA-appointed fiduciary.
We received a number of comments regarding our definition of “custodial care” and we have made changes. The commenters believed that the proposed rule unfairly excluded, as a medical expense, payments for the care of individuals with dementia. Many of these commenters said that such individuals would no longer qualify, because they may not require assistance with two ADLs. Other comments stated that physical disorders should be included. We agree. Final § 3.278(b)(4)(ii) includes physical, developmental, and cognitive disorders along with mental disorders.
Further, we received several comments from individuals who were concerned that the language used in proposed § 3.278(b)(4)(ii) (requiring “regular . . . [s]upervision because an individual . . . is unsafe if left alone”) was too limiting. These commenters seemed to read the proposed rule to say that the disabled individual could never be left alone under any circumstances. To avoid such misunderstandings, final § 3.278(b)(4)(ii) now includes supervision “to protect the individual from hazards or dangers incident to his or her daily environment,” the same phrase used in 38 CFR 3.352(a).
On that point, several commenters appeared to confuse the purpose of proposed § 3.278 with the purpose of 38 CFR 3.351 and 3.352(a). One commenter stated that proposed § 3.278 conflicts with and “amends” § 3.352. To be clear, §§ 3.351 and 3.352(a) provide the criteria for determining whether an individual is housebound, or requires aid and attendance, as well as the compensation or pension rate to apply; those regulations apply to both needs-based and non-needs-based benefits, and do not address income calculations or deductions. The purpose of § 3.278 is quite different because it describes medical expenses that can be deducted from income for pension, parents' DIC, and section 306 pension. (These are the only VA needs-based benefits for which deductible medical expenses may be used to reduce income.) Because the purpose of § 3.278 differs from that of §§ 3.351 and 3.352(a), it is not essential for § 3.278 to precisely mirror §§ 3.351 and 3.352(a). Nevertheless, there is some value in consistent terminology across part 3, and the changes in this final rule to proposed § 3.278(b)(4)(ii) provide that.
One commenter believed that needing regular assistance with only one ADL could constitute custodial care. We make no change based on this comment. We continue to believe that two ADLs is appropriate, particularly given the fact that we have expanded the definition of ADLs to include an additional ADL and have added additional types of disorders to the definition of custodial care. The final definition of custodial care, § 3.272(b)(4), is regular (i) assistance
Multiple commenters discussed the wide variation among States with respect to “assisted living facility,” “independent living facility,” and other facility types, both in terms of the type of care provided and licensure requirements. We agree with the commenters who emphasized that the medical expense deduction should be contingent on the sort of care the disabled individual is receiving in the facility and the necessity for the individual to be there—not the name of the facility. For this reason, we have revised the term and definition used for these facilities. The term proposed at § 3.278(b)(8), “Assisted living, adult day care, or similar facility,” is now “[c]are facility other than a nursing home” and defined in final § 3.278(b)(7) to mean “a facility in which a disabled individual receives health care or custodial care under the provisions of paragraph (d) of this section.” Such a facility must be licensed if facilities of that type are required to be licensed in the State or country in which the facility is located. The regulation also provides that a facility that is residential must be staffed 24 hours per day with care providers and that the providers do not have to be licensed health care providers.
Our proposed definition at § 3.278(b)(8) required residential facilities to be staffed 24 hours per day with “custodial care providers.” Several commenters urged us to clarify whether such providers were required to be licensed health care providers. The final rule, in § 3.278(b)(7), does not use the term “custodial care provider” and, as noted above, clarifies that these providers do not have to be licensed health care providers.
We made two additional changes to the definitions section; these are discussed in the information pertaining to institutional forms of care.
As mentioned above, in October 2012, VA issued Fast Letter 12-23 to its field stations in order to clarify and address inconsistencies that had arisen in VA's procedures manual, particularly with respect to when room and board in a facility could be considered a deductible medical expense. Numerous commenters wrote that Fast Letter 12-23 was more liberal in many respects than the proposed rule and urged us to incorporate these aspects of the fast letter in this final rule. We agree and have significantly revised § 3.278(d)(3) in the following ways:
The title of the paragraph is now “Care facilities other than nursing homes” instead of “Assisted living, adult day care, and similar facilities,” consistent with final § 3.278(b)(7). By not mentioning any particular facility type in the title, we hope to avoid the impression that we are not allowing payments made to certain facilities based on the name of the facility. As mentioned above, we are focusing on the care that the individual receives within the facility and the need for the individual to be in the facility rather than the facility name.
Final paragraph (d)(3) provides clearly that care “in a facility” may be provided by the facility, contracted by the facility, obtained from a third-party provider, or provided by family or friends. Many commenters urged us to make this clarification. This provision is consistent with Fast Letter 12-23, although the fast letter did not address family or friends. Fast Letter 12-23 spoke only to contracts that a claimant made with third-party providers. However, we heard from a number of commenters telling us that their loved one needed to live in a facility to receive care provided by a third party or by family or friends and we agree that this is reasonable.
One commenter expressed extreme dismay that we would permit third-party contractors to provide the care, believing this would lead to “warehousing” veterans in non-government facilities. We disagree. We believe that it is appropriate to allow veterans and their survivors to receive care in a facility or from a provider of their choice. We make no changes based on the comment.
The “general rule,” now found at paragraph (d)(3)(ii), simply provides that payments for health care provided by a health care provider are medical expenses. We stress that this rule applies to all individuals in a care facility, including those who do not need A&A, are not housebound, do not require custodial care, and do not need to be in a protected environment. We moved assistance with ADLs to final § 3.278(d)(3)(iii), which now incorporates IADLs and is discussed below. We note that this general rule is, in fact, no different from § 3.278(c)(1), which simply states that payments to a health care provider for services performed within the scope of the provider's professional capacity are medical expenses.
Final paragraph (d)(3)(iii) incorporates the intent of Fast Letter 12-23 by stating that the provider does not need to be a health care provider, and that payments for assistance with ADLs and IADLs are medical expenses, if the disabled individual is receiving health care or custodial care in the facility and either: (A) Needs A&A or is housebound; or (B) a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual has a need to be in a protected environment. This is a liberalization from proposed paragraph (d)(3), which would have required a veteran or a surviving spouse (or parent for parents' DIC purposes) to be in need of A&A or to be housebound in order for VA to consider certain medical expenses as deductible; the physician's or physician assistant's statement option was only for dependents and other relatives. Fast Letter 12-23, however, permits the “physician's statement” option for veterans and surviving spouses as well. We determined that the “physician's statement” option should be permitted for veterans and surviving spouses because not doing so could mean that veterans and surviving spouses might be subject to a higher level of disability requirement than their dependents and relatives for their ADL and IADL assistance payments to be authorized as medical expenses. Also regarding the “physician's statement” option, which previously only included physicians and physician assistants, this final rule expands this option to include certified nurse practitioners and clinical nurse specialists as well. We recognize that a claimant's primary medical provider may not be a physician or physician assistant.
On this issue, one commenter stated that the rule should be modified to eliminate the need for a statement from a physician or physician assistant that “due to physical or mental disability, the qualified relative requires the health care services or custodial care that the in-home attendant provides.” The commenter opined this is burdensome
We have amended proposed paragraph (d)(3)(i)(B) to now provide, in final paragraph (d)(3)(iv), that payments for meals and lodging, as well as payments for other facility expenses not directly related to health or custodial care, are medical expenses when either of the following are true: (A) The facility provides or contracts for health care or custodial care for the disabled individual; or (B) a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that the individual must reside in the facility (or a similar facility) to separately contract with a third-party provider to receive health care or custodial care or to receive (paid or unpaid) health care or custodial care from family or friends. This change is consistent with Fast Letter 12-23; however, as noted above, we are including family and friends.
Final paragraphs (d)(3)(iii) and (iv) also differ from proposed paragraph (d)(3)(i)(B) by eliminating the proposed “primary reason” requirement. The proposed rule stated that medical expenses included all payments to the facility when the “primary reason” for the individual to be in the facility was to receive health care or custodial care. We agree with the many commenters who said the proposed provision was too restrictive. We believe these liberalizing changes satisfy the commenters' concerns.
Consistent with our revisions to paragraph (d)(3) described above as well as to our revisions to paragraph (d)(2) described below, we have made two additional changes to the definitions section. First, we have removed proposed § 3.278(b)(5), the definition for “qualified relative,” and renumbered § 3.278(b) accordingly. Under this final rule, it is no longer necessary to define a qualified relative. We previously proposed, at 80 FR 3850, to define a qualified relative because we were distinguishing between (A) veterans, surviving spouses, and parents' DIC claimants, versus (B) other individuals, when it came to the “physician's statement” option. We no longer need the definition because under this final rule, as noted above, we have liberalized the requirements to allow any disabled individual to utilize the type of physician's statement that had been proposed solely for qualified relatives. We emphasize that the deletion of the definition of “qualified relative” in no way limits the scope of the individuals whose medical expenses VA may deduct.
Second, we added a definition of “needs A&A or is housebound” as final § 3.278(b)(8), to simplify the rest of the regulation and to account for another type of individual whom VA may determine to need aid and attendance. As briefly mentioned above, in the section titled “Terminology Clarifications Regarding VA Pension and Other VA Needs-Based Benefits,” VA pays a higher disability compensation (
Consistent with these changes, this final rule does not include proposed § 3.278(e)(3), which previously stated that VA does not consider payments for meals and lodging to facilities that do not provide health care services or custodial care to be medical expenses. Instead, final § 3.278(d)(3)(iv)(B) allows for those payments to be medical expenses if specified individuals attest that the individual must reside in the facility to separately contract with a third-party provider to receive health care or custodial care or to receive such care from family and friends.
Numerous commenters expressed their opinion that our proposal, at § 3.278(d)(2), to limit the deductible hourly rate for in-home attendants was a bad idea for many reasons: (1) It is patently unfair to set a national average as a limit, so there must be a geographical component; (2) using an average does not take into consideration overtime or holiday time; (3) there was no cap proposed on facility costs; (4) the proposed limit was far too low and based on an outdated source (the MetLife Mature Market Institute no longer produces its Market Survey of Long-Term Care Costs); and (5) the authorizing statute (38 U.S.C. 1503(a)(8)) does not permit VA to set a limit on the medical expense amount.
While we disagree with this comment regarding our authority, we agree with many of the other commenters, and the final rule does not include a limit to the hourly rate of in-home care. We have also removed the last sentence of proposed § 3.278(d)(2), which referred to the website where VA would publish the hourly rate limit. Several commenters suggested alternative in-home care limits such as the Genworth Cost of Care Survey or using 150 percent of the limit we proposed. We make no changes based on these suggestions because we have removed the in-home care hourly rate limit at this time, and we will consider whether we should revisit the issue in a future rulemaking.
One commenter urged us to “consider adding language to the final rule that would ensure greater protection for veterans to ensure they are not open to potential liability through the employment of a registry model of home care.” They urged us to require that all home care providers employ their home care workforce and thus train, bond, and withhold taxes for their employees. They went on to point out that some home care providers are simply staffing agencies that link a senior or disabled individual with an independent contractor who comes into the home without the training or insurance needed to provide real protections for the claimant. They believe VA should require the home care provider to employ their workforce rather than using independent contractors in an effort to eliminate the burden of potential liability. We decline to
The final rule, regarding in-home attendants, is much simpler than the proposed rule, consistent with the changes we made to the care facility provisions, and for many of the same reasons:
(1) The final rule at § 3.278(d)(2) provides that payments for assistance with ADLs and IADLs by an in-home attendant are medical expenses, as long as the attendant provides the disabled individual with health care or custodial care. The proposed rule would not have considered payments for IADLs to be a medical expense for a veteran or surviving spouse (or parent for parents' DIC) unless the claimant needed A&A or was housebound and providing health care or custodial care was the “primary responsibility” of the attendant.
(2) The final rule at § 3.278(d)(2)(i) and (ii) provides that the attendant must be a health care provider, unless the disabled individual needs A&A or is housebound, or a physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that due to a physical, mental, developmental, or cognitive disorder, the individual requires the health care or custodial care that the in-home attendant provides. The proposed rule did not permit a “doctor's statement” option for veterans, surviving spouses, or parents' DIC claimants.
Numerous commenters urged us to provide a “grandfathering provision” for our proposed changes to institutional care and in-home care provisions. Although we do not believe that the final rule necessitates such a provision, we are providing one because we have no desire or intent to harm or displace any person. We do not want to take a chance that previous guidance might have been interpreted more liberally than this final rule, in any individual case. Some commenters, who were residing in independent living facilities, expressed hesitation to submit a medical expense deduction claim for eyeglasses, for example, for fear that VA would re-consider and disallow their existing care facility expenses. We want to allay any concern or fear in this regard. Therefore, the final rule provides, in an introductory paragraph of final § 3.278(d), that paragraph (d), which pertains to institutional forms of care and in-home care, applies with respect to unreimbursed medical expense claims for institutional forms of care or in-home care received on or after October 18, 2018 that VA has not previously granted. Previous medical expense grants pertaining to institutional or in-home care made before that date would continue unless the claimant moves to a different facility or employs a different in-home attendant or in-home care agency.
In paragraph (c) of proposed § 3.278, we provided that “[g]enerally, medical expenses for VA needs-based benefit purposes are payments for items or services that are medically necessary or that improve a disabled individual's functioning.” One commenter pointed out that such a provision effectively restricts payments for medical expenses when no improvement is anticipated, such as hospice care. To clarify this provision, final § 3.278(c) provides that medical expenses for VA needs-based benefit purposes are payments for items or services “that are medically necessary; that improve a disabled individual's functioning; or that prevent, slow, or ease an individual's functional decline.”
The same commenter noted that we had not included payments for Medicare Part A in § 3.278(c)(5). Most individuals in the U.S. qualify for free Part A benefits; however, a small number purchase this benefit. Although § 3.278(c)(5) would not have prohibited deducting Part A payments as a medical expense, we agree that for the sake of clarity and completeness Part A payments should be included, and we have added it in the final rule.
One commenter requested that we include, as a medical expense, any expense made necessary due to a claimant's medical condition or disability, such as a heated blanket to regulate body temperature for a veteran with quadriplegia; cranberry juice to prevent urinary tract infections for a veteran with a spinal cord injury; or home modifications to allow disabled individuals to live safely in the community. We make no changes based on this comment. Although we are sympathetic and understand the impetus behind this suggestion, it is longstanding VA policy not to consider such expenses to be deductible medical expenses. VA's procedures manual provides, “Mechanical and electronic devices that compensate for disabilities are deductible medical expenses to the extent that they represent expenses that would not normally be incurred by nondisabled persons. Do not allow a medical expense deduction for equipment that would normally be used by a nondisabled person, such as an air conditioner or automatic transmission.” M21-1MR, V.iii.1.G.43.k (May 20, 2011). We believe this policy is consistent with common understanding of medical expenses and have decided to continue that policy.
One commenter found it unjust that proposed paragraph (c)(4) does not take into consideration higher mileage rates in certain geographical areas when calculating mileage for medical purposes. As previously stated in this document, statutory MAPRs are also not adjusted by locality. For its mileage rates, VA uses the privately owned vehicle mileage reimbursement rates provided by the U.S. General Services Administration, which we believe is a reasonable and fair standard. We make no changes based on the comment.
We now address comments we received regarding exclusions from income or income and assets (or “corpus of the estate” for parents as dependents and section 306 pension). In 38 CFR part 3, there are currently three regulations that address exclusions from income, §§ 3.261, 3.262, and 3.272, and this rulemaking adds a fourth, § 3.279. There are also currently three regulations that address exclusions from assets, §§ 3.261, 3.263, and 3.275, and this rulemaking adds a fourth, § 3.279. The reason for so many regulations is that sometimes a statutory exclusion is written in such a way that the exclusion applies to all VA needs-based benefits; however, sometimes a statutory exclusion is written in such a way that the exclusion applies only to some VA needs-based benefits. Sections 3.261 and 3.262 apply only to: (1) Parents as dependents for compensation purposes; (2) parents' DIC; and (3) section 306 pension and old-law pension, which are VA's previous and largely obsolete pension programs. Section 3.263, also largely obsolete, applies only to parents as dependents for compensation purposes and to section 306 pension. Sections 3.272 and 3.275 apply only to current-law pension. Section 3.279 will apply to all VA needs-based benefits (parents as dependents, parents' DIC, section 306 pension, old-law pension, and pension under the current law). This part of the preamble applies to all comments we received on exclusions regardless of where the exclusion is listed.
One commenter noted that our proposed rules did not contain a general statutory exclusion,
Two commenters noted that we failed to list in § 3.279 that Federal income tax refunds are excluded income. They are also excluded from resources (
This final rule does not include proposed § 3.272(k), under which only the interest component of annuity payments would have counted as income in certain situations.
On further review, proposed § 3.272(k) was in conflict with several VA precedential General Counsel opinions, which provide that distributions from individual retirement accounts (IRAs) and annuities are income for purposes of VA's needs-based benefits.
Final § 3.279 includes some corrections and a clarification, in addition to the “catch all” statutory exclusion of paragraph (a), and the income tax return exclusion of paragraph (e)(1). We have changed the title of paragraph (a) from “Scope of section” to “Statutory exclusions not countable” because we believe the new title is more descriptive. Final paragraphs (c)(1), (2), and (3) use the term “assets” in the first column rather than the term “net worth” as proposed. Using the previous term was an oversight. The actual statutory language at 25 U.S.C. 1407 and 1408 is “income or resources”; however, VA terminology for resources is now assets.
Several commenters noted that our proposed rule did not include a statutory exclusion found at 38 U.S.C. 1503(a)(5). The statute excludes reimbursements for loss; Public Law 112-154 added it to 38 U.S.C. 1503 in August 2012. We thank the commenters for pointing this out and have added this exclusion as final § 3.272(s). We note that we informed our field stations of the exclusion soon after the law change.
Several commenters referred to a statement we made in the preamble of the proposed rule that VA counts distributions from IRAs as income.
One commenter noted that our proposed rule did not amend § 3.272(e) to incorporate the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) in
One commenter took issue with the income exclusions located at proposed § 3.279(c)(1), (2), (3), and (6). These exclude from income payments to American Indians of up to $2,000 per year received from Tribal Judgment Fund distributions, interests in trust or restricted lands, or per capita distributions, as well as cash payments to Alaska Natives of up to $2,000 per year received from the Alaska Native Claims Settlement Act. The commenter disagreed with the $2,000 cap on such payments. We make no change based on this comment because the $2,000 cap is statutory.
One commenter stated that there should not be a cap on the exclusion at proposed § 3.272(r), which incorporates a statutory income exclusion found at 38 U.S.C. 1503(a)(11). The exclusion, now incorporated in this final rule at § 3.272(k), provides that VA will exclude up to $5,000 per year that a State or municipality pays to a veteran as a veterans' benefit due to injury or disease. Because the statute specifically provides for the $5,000 cap, no change is warranted based on the comment.
One commenter opined that our proposed exclusion at § 3.279(b)(1) is erroneous because it “is inconsistent with 25 U.S.C. 1408” and because “relocation payments under 25 U.S.C. 1408 are treated as assets.” We make no change because the statute cited, section 1408, pertains to interests of American Indians in trusts or restricted lands and is listed in § 3.279(c)(2), where we note such payments are excluded from income (up to $2,000 per year) and assets.
However, the commenter goes on to quote from 42 U.S.C. 4636, which is the
One commenter opined that payments received under the Workforce Investment Act of 1998 (29 U.S.C. chapter 30) should not be considered an asset. This payment type is listed as an income exclusion at proposed and final § 3.279(d)(1). Although the authority for this exclusion, 29 U.S.C. 2931(a)(2), has been moved to 29 U.S.C. 3241(a)(2), the statutory text still only excludes these payments from income, not assets. Therefore, the only change we make here is to update the statutory citation.
Similarly, the same commenter stated that payments to AmeriCorps participants, listed as an exclusion from income at § 3.279(d)(2), should not be considered an asset for the annualization period in which the payment is received. Since the statutory authority for this exclusion, 42 U.S.C. 12637(d), does not authorize the exclusion of these payments from assets, we make no changes based on this comment.
The same commenter expressed the opinion that, if a payment type is excluded from income, then it should be excluded as an asset during the annualization period in which it is received. We understand the commenter's point of view; however, absent statutory authority, there is no reason to suppose that excluding a payment from income necessarily equates to excluding that payment from assets during the annualization period in which the payment is received. Indeed, if that was Congress' intent, Congress would have made its intent known. In 26 U.S.C. 6409, for example, Congress plainly stated that the refund payment is not to be considered income and is not to be considered a resource for the annualization period of receipt. No such statement is present for the statutes pertaining to AmeriCorps or Workforce Investment payments. Without an instruction from Congress, we decline to subtract certain types of payments, once received, from assets. To the extent this commenter believes this practice constitutes double-counting, we disagree. Double counting would be including a payment as income and assets in the year of receipt; these payments are being excluded from income, but included as assets. The income exclusion still benefits the claimant inasmuch as it affects his or her pension rate. 38 U.S.C. 1521.
One commenter stated that, due to the fact that payments from the Retired Serviceman's Family Protection Plan are excluded from income, Survivor Benefit Plan payments should likewise be excluded from income. The Retired Serviceman's Family Protection Plan was the Department of Defense (DoD) survivor program that was in effect before September 21, 1972, which was replaced by the Survivor Benefit Plan. Payments under the Retired Serviceman's Family Protection Plan are specifically excluded under 10 U.S.C. 1441. There is no similar statutory exclusion for the Survivor Benefit Plan in 10 U.S.C. chapter 73 or in any other statute.
The same commenter stated that life insurance payouts provided under the Servicemembers' Group Life Insurance (SGLI) and Veterans' Group Life Insurance (VGLI) should be excluded. Under 38 U.S.C. 1503(a)(12), the lump-sum proceeds of any life insurance policy on a veteran are excluded—but only for survivors pension purposes. This exclusion is currently located at § 3.272(x) and, as proposed, will be relocated to § 3.272(q) by this final rule. Given the statute, we make no change based on this comment.
This commenter also stated that death transitional payments such as death gratuities or “transitioning child allowances” should be excluded. The death gratuity is a payment that DoD pays when a service member dies on active duty. Congress has provided for the exclusion of the death gratuity for parents' DIC purposes at 38 U.S.C. 1315(f)(1)(A). It was previously called the “six months' death gratuity” and is listed as an exclusion in § 3.261(a)(12). However, there is no statutory authority to exclude death gratuity payments from current-law survivors pension, so we make no change based on this comment. We note that it would be extremely rare for a survivor to receive a death gratuity payment and also receive VA survivors pension. When a service member dies on active duty, his or her survivor is generally entitled to receive DIC from VA, which is a greater benefit than survivors pension. As previously discussed, DIC for surviving spouses and children is not a needs-based benefit and is not part of this final rule.
Likewise, we believe the “transitioning child allowance” that the commenter mentions is the additional DIC amount paid to a surviving spouse under 38 U.S.C. 1311(f) when the surviving spouse has a child or children under the age of 18. A surviving spouse receiving DIC and the “transitioning child allowance” would not receive VA pension, see 38 U.S.C. 5304(a), and therefore there would be no need for the suggested exclusion for the “transitioning child allowance.” We make no changes based on this comment.
The same commenter noted that proposed § 3.279(e)(7) would exclude from income and assets the amount of student financial assistance received under Title IV of the Higher Education Act of 1965. The commenter stated that this exclusion should cover VA education benefits. We note that under 38 U.S.C. 1503(a)(9), educational and vocational rehabilitation expenses for books, fees, tuition, and materials are deductible from income for pension purposes, as are transportation fees in certain situations. Therefore, if a veteran uses his or her education benefit to pay for school and supplies (or allowable transportation fees), then the amounts paid would be deducted. Similarly, when a VA educational benefit is payable directly to the school, VA considers it received by the veteran and then paid to the school, so VA does not count it as income. However, if the educational benefit includes a stipend to pay for living expenses or dormitory fees, then such payments are countable income for pension. Thus, while there is no statute that excludes all VA education benefits, portions of educational expenses will not count as income. VA regulations note this exclusion at § 3.272(i).
The same commenter also noted that payments “under the Atomic Commission appear to be missing from the list of exclusions.” We believe the commenter is referring to payments under the Radiation Exposure Compensation Act of 1990, which are excluded from income for current-law pension, parents' DIC, and parents as dependents for compensation purposes. Such payments are not excluded from income for section 306 or old-law pension purposes; therefore, the exclusion is not listed in § 3.279. Rather, this exclusion is listed in the portions of §§ 3.261 and 3.262 that apply to
The same commenter questioned our proposal to remove the statutory exclusion of payments received under the Medicare transitional assistance program and any savings associated with the Medicare prescription drug discount card, saying our explanation was confusing. These programs no longer exist.
One commenter expressed the belief that child support payments should not be countable income for VA pension purposes. We decline to make any change based on this comment. Section 1503 of 38 U.S.C. provides that all payments of any kind or from any source count unless excluded, and there is no statute that excludes these payments.
As an aid to readers of this supplementary information, we are providing the following distribution and derivation tables. Table 2 is a derivation table for the “chart” portion of new § 3.279. It lists the provisions in previous § 3.272 that were the basis for new § 3.279. Provisions that are new to part 3 are listed as new. The derivation table providing this information in the proposed rule had one error that has been corrected here.
Tables 3 and 4 are distribution and derivation tables for previous and revised § 3.272. We note here that “previous § 3.272” is current until the effective date of this final rule.
One commenter stated that the supplementary information in our proposal pertaining to Medicaid-covered nursing home care for veterans, surviving spouses, and surviving children was so “vague and convoluted as to be unintelligible.”
One commenter took issue with our proposal to amend 38 CFR 3.277(c)(2) to replace the word “shall” with the permissive word “may” with respect to annual Eligibility Verification Reports (EVRs).
One commenter expressed concern regarding that discretion, stating that an adjudicator may withhold payment if there is an appearance of fraud. Although there remains some discretion when it comes to individual adjudicators discerning fraud, we believe this rulemaking generally provides clearer guidance for pension entitlement decisions than existed previously, which will promote consistent benefit decisions, streamline processes, and constitute an important
One commenter suggested this final rule will increase annual reporting forms and reviewing documents from the past, which would lead to higher administrative costs. As stated, VA has no plans to require annual EVRs or increase the number of documents to be submitted and reviewed; thus, VA makes no changes based on this comment.
One commenter stated that VA has wasted significant amounts of time on requests for information on income matches, and elderly claimants must spend money on accountants to review records for years in which EVRs were filed. As stated, VA is not requiring annual EVRs, so we anticipate no reporting burden on all pension recipients. VA conducts income matches with the IRS and the Social Security Administration before awarding pension benefits, which reduces VA reliance on self-reported and unverified information from claimants. VA is moving toward a more streamlined claims process, which will benefit pension claimants and VA alike.
One commenter questioned if VA has considered the costs associated with this rulemaking, as well as the other requirements discussed by Executive Orders 12866 and 13563. As we stated in the proposed rule, VA's impact analysis, which includes the costs associated with this rulemaking, is published on
A few commenters mentioned a November 2013 Congressional Budget Office (CBO) cost estimate for a Senate bill introduced in the 113th Congress, S. 944, which, among other things, would have enacted a 3-year look-back period for VA pension. Commenters noted that the CBO estimate showed a cost and questioned why our impact analysis for the proposed rule showed a savings. Although we are not obligated to compare the two estimates, we first note that the CBO cost estimate was based on its assumption that VA would have to hire 70 additional claims processors. VA does not believe that additional claims processors will be required; in fact, we believe that somewhat fewer claims processors will be needed, given the bright-line net worth limit implemented here that was not present in S. 944. Those personnel will be re-directed to other mission-critical activities. Second, to the extent the CBO and our impact analysis have different estimates regarding the savings to be gained through a look-back period, we reiterate here that the impetus for the look back is preserving the integrity of the pension program—consistent with Congress' directive that pension be reserved for those with financial need—not a specific desire to “save money” in the pension program.
One commenter noted that GAO reported that VA's asset transfer provisions would cost taxpayers more money and increase the need for additional claims processors. We make no change based on the comment; we found no evidence of GAO making such a statement and, as stated above, we do not believe more claims processors will be required under this final rule.
One commenter suggested that VA should commission an independent study to weigh administrative expense against savings. VA has completed a cost benefit analysis that analyzed the costs and savings of this rule, is not required to complete an independent study, and declines to do so.
One commenter requested that VA consult with additional professionals before implementing this rule, specifically the National Governors Association (NGA), with regard to the effect of this rule on State Medicaid budgets. We thank the commenter for the suggestion and appreciate the input; however, VA declines to consult with the NGA at this time. VA has considered the recommendations of GAO with regard to ensuring the integrity of the pension program, has heard from a variety of interested parties through the notice and comment process coincident with this rulemaking and believes that no further consultation is necessary for implementation. Another commenter recommended that we consult with additional professionals, because this rule would cause significant internal cost to VA, to include adding claims processors. We make no change based on the comment. Again, we disagree that more claims processors will be necessary, we have completed a cost benefit analysis, and we do not believe further consultation is necessary for implementation.
Several commenters stated that VA is cutting benefits to save money, instead of helping claimants receive pension benefits. However, VA is not cutting benefits; as stated, we believe that more claimants will qualify for pension under this final rule. One commenter stated that, instead of taking away veterans' benefits, legislators should assess financial penalties for those who defer military service, which the commenter argued should cover the cost of VA and our veterans' needs as well as pay the national war debt. As stated, VA is not taking away any veterans' benefits. We make no changes based on these comments.
Several commenters expressed concern that this rulemaking would discourage claimants from applying for VA pension benefits, that the rulemaking would result in unnecessary delays, and that more appeals would result. VA disagrees with these comments. VA is streamlining its claims process to increase efficiency and decrease claims processing times. VA believes that this rule provides clearer pension entitlement criteria that will encourage claimants to apply for pension and decrease appeals. Therefore, VA does not make any changes to this rulemaking based on these comments.
Several commenters referred to a purported VA estimate of an extra 30 minutes per applicant to process claims. These commenters stated that it will take more time to review 36 months of financial documents. VA does not anticipate adding an additional 30 minutes to the processing time for each application and will generally not request 36 months of financial documents. We believe the processing time for pension claims will decrease with a bright-line net worth limit and other aspects of this final rule. The Paperwork Reduction Act section of the proposed rule did state that the “[e]stimated respondent burden” for VA Form 21P-8416 would be 30 minutes per form (consistent with past versions of VA Form 21P-8416), but it never stated that this rulemaking would require VA claims processors to spend 30 additional minutes on each claim. We make no change based on these comments.
A commenter asked how VA would treat applicants who have a claim pending on the effective date of this final rule. As explained above in the information pertaining to asset transfers, VA will not review asset transfers that occurred before the effective date of this final rule. Moreover, as explained above in the information pertaining to medical expense definitions, the new provisions pertaining to institutional forms of care or in-home care will only apply to claimants who move to a different institution or change in-home providers. In addition, if a claimant is receiving pension on the effective date of this final rule, although his or her net worth exceeds the net worth limit under final § 3.274(a), the claimant will continue to receive pension, unless he or she loses
One commenter suggested that veterans of World War II or the Korean Conflict, as well as their surviving spouses, should be grandfathered in as a class of potential claimants, and all pension recipients should be exempt. We make no change based on this comment. It is unclear why those two groups in particular—or even all current recipients—should be exempt from the new rules, especially when the new rules will benefit many elderly claimants. Another commenter expressed concern that this rulemaking would permit VA to audit every claim and deny those already receiving benefits. This is not the case; VA has no intention of systematically denying benefits to claimants who are currently receiving pension benefits. Therefore, we make no change based on such comments.
Numerous commenters asked VA to extend the comment period. Consistent with existing Executive Orders, VA provided a comment period of 60 days.
Several commenters stated that these rules should not be effective until one year or longer after date of publication. These commenters, however, failed to identify a compelling reason for such an extension, and we do not believe that the final rules are so onerous as to require such a delayed effective date.
One commenter stated that the proposed rule contained an incorrect telephone number. The phone numbers listed in the proposed rule are the correct numbers to VA's Office of Regulation Policy and Management and Pension and Fiduciary Service. Therefore, no change to this rulemaking is warranted based on this comment.
One commenter noted that this rulemaking does not appear on the Office of Management and Budget's (OMB's) website and asked why VA has not submitted this rulemaking for review as required by Executive Orders 12866 and 13563. VA did submit this rulemaking for OMB review, and this rulemaking appears on OMB's
One commenter stated that VA failed to provide notice of the proposed rule on social media. Another commenter believed that VA should mail out notice of the proposed rule to all veterans. One commenter requested a Senate hearing on this rulemaking. In issuing this rulemaking, VA complied with the procedural requirements of the Administrative Procedure Act. 5 U.S.C. 551-559. Section 553(b) requires that a proposed rule be published in the
One commenter suggested further outreach and collaboration, and another commenter wondered how VA would make the public aware of the new eligibility requirements. Again, VA published the proposed rule in the
Several commenters mentioned that VA should focus on outreach programs to make veterans more aware of VA pension instead of focusing on “taking it away.” As noted above, VA disagrees that this rule focuses on taking away veteran's benefits. Moreover, VA publishes benefit information at
Several commenters seemed to believe that VA is amending its pension program through an Executive Order. VA is amending its regulations through the rulemaking process that is governed by the Administrative Procedure Act.
One commenter wanted to know what is being done to make sure claims are granted properly now and in the future. VA is continuously working with regional office personnel to make sure claims are processed properly. We make no change based on this comment.
A few commenters seemed to think that this rulemaking would eliminate the involvement of attorneys and financial advisors from assisting VA claimants in applying for VA benefits. A few commenters stated that VA should regulate how financial advisors and organizations are allowed to assist veterans with their claims for VA benefits. While these comments pertain more to VA's accreditation program than its pension program, it is important to note that VA does regulate those who assist on veterans' claims through its rules pertaining to accreditation. 38 CFR
Several commenters suggested that VA should focus on ensuring that VA accredited representatives are competent and preventing unaccredited individuals from assisting VA claimants and charging for their services. One commenter noted that States have the authority to investigate those individuals who sell unsuitable financial products to consumers. Others expressed similar sentiment that VA should focus on pension poaching organizations, rather than “penalizing” claimants. VA takes the accreditation of representatives very seriously and, as noted above, has implemented regulatory provisions governing the accreditation program (outside of this rulemaking).
If individuals fail to cease an unlawful practice, VA will report to Federal, State, or local agencies or offices that enforce unauthorized practice, unfair business practice, or consumer or senior fraud laws. Over the past year, VA has enhanced its coordination with the U.S. Department of Justice, the Federal Trade Commission, and State Attorney General offices to combat “pension poaching” and other scams targeting veterans and their family members. VA coordination with enforcement agencies is the best response to unauthorized or unlawful practices in this realm. This rulemaking does not in any way detract from these efforts; therefore, VA is not making any changes to this rulemaking based on these comments.
Several commenters stated that this rulemaking would make applying for pension benefits more difficult. The commenters believed the more difficult application process would drive claimants to seek out advice from consultants and estate planning attorneys, which would increase abuse. To prevent such abuse, one commenter recommended allowing VA accredited agents and attorneys to charge fees for assisting with a claimant's initial application. VA disagrees that this rulemaking makes applying for pension benefits more difficult. With this rulemaking, VA is providing additional guidance on the qualifying criteria and allowable medical expenses beyond what is currently available. Claimants have the option to seek assistance from VA accredited representatives, and we see no reason why VA claimants will have a more difficult time finding representation. Moreover, VA is bound by the statutory prohibition of representatives charging fees at the time of initial application. 38 U.S.C. 5904(c). Therefore, VA does not make any changes to this rulemaking based on these comments.
Several commenters made statements regarding their own claim for benefits. These comments are outside the scope of this rulemaking, and, therefore, VA makes no changes based on these comments. One commenter spoke in support of equitable relief for claimants who encounter unique situations, citing an example of a claimant who inherited money from a child and lost pension entitlement even though the claimant used the money to pay the child's burial expenses and distributed the remainder to siblings. While we do note that equitable relief is available for certain cases under 38 U.S.C. 503, this comment is outside the scope of this rulemaking; therefore, VA makes no change to the final rule based on it.
One commenter asked that VA consider providing in its pension award letters a break-down of VA pension benefits between the portion considered to be basic pension and the portion considered to be the additional A&A allowance for purposes of reporting income to State and local agencies. This comment is outside the scope of this rulemaking, which does not pertain to decision award letters; therefore, VA makes no change to the final rule based on it.
We are making a technical correction to § 3.262(t) to include the authority citation, which was inadvertently omitted from the proposed rule.
We are making a technical correction to § 3.270. The proposed revisions to § 3.270 were stated incorrectly in the proposed rule.
We are making a technical correction to §§ 3.274(a) and 3.278(c)(4) to insert the VA website address where VA will publish the net worth limit and the privately owned vehicle mileage reimbursement rate. The proposed rule simply used a placeholder for a to-be-determined VA website address. Moreover, we inadvertently omitted headers in proposed §§ 3.274(b)(1), 3.275(b)(1) and (b)(2); this final rule corrects those omissions.
We are making a technical correction to proposed § 3.274(e), which as proposed included a heading at § 3.274(e)(3). On review, the information contained in proposed § 3.274(e)(3) was more appropriate as a note to paragraph (e), and we have re-designated it accordingly. Therefore, final § 3.274(e) does not include the introductory language, “[e]xcept as provided in paragraph (e)(3) of this section,” because final § 3.274 does not contain a paragraph (e)(3). Moreover, final § 3.274(f)(3) and (4) have been slightly altered, in a non-substantive way, for readability.
Final § 3.275(b)(1)(ii)(B) and (C) are slightly different than proposed in order to conform to final § 3.278. Final § 3.275(b)(1)(ii)(B) refers to “[a] care facility other than a nursing home” instead of “[a]n assisted living or similar residential facility that provides custodial care,” to accord with the new title of § 3.278(d)(3). Final § 3.275(b)(1)(ii)(C) refers to “[t]he home of a family member for health care or custodial care” instead of “[t]he home of a family member for custodial care” to accord with the new language of § 3.278(d)(2).
Proposed § 3.276(b) mistakenly referenced § 3.277(b) as VA's authority to obtain additional documentation necessary to determine the annual income and the value of the corpus of the estate. That authority is actually in § 3.277(a), and final § 3.276(b) corrects this mistake. We also updated the examples in paragraphs (a)(3) and (4) of proposed (now final) § 3.276.
We are making a technical correction to § 3.278(b)(1) by changing the proposed conjunction between (i) and (ii). We are spelling out the acronym “aka” used in proposed § 3.279(a), and making a technical correction to § 3.279(e)(9) to correctly refer to subchapter I instead of subchapter 1 as the authority for excluding as income annuities received under the Retired Serviceman's Family Protection Plan.
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.
In the proposed rule, we stated that proposed 38 CFR 3.276 and 3.278 constitutes a collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). We also noted in the proposed rule that VA submitted a copy of the proposed rule to OMB for its review of the collection of information, and requested public comments on the collection of information provisions contained in 38 CFR 3.276 and 38 CFR 3.278.
VA received a comment stating that neither the pension application nor development forms request information regarding living expenses. A claimant's completion of VA Form 21-8049, Request for Details of Expenses (OMB Control number 2900-0161), has been an administrative requirement for claims processors to make net worth determinations. VA agrees with the comment that some of the information requested on this form will no longer be necessary for net worth determinations. Therefore, VA determined the information collection from VA Form 21P-8049, Request for Details of Expenses (OMB control number 2900-0107), is no longer necessary and VA will discontinue use of the form. The discontinuance of this form will be pursued through a separate administrative action. Considering the last PRA approval usage and the discontinuation of the form, there will be an estimated decrease in burden hours by 5,700 and an annual incremental information burden cost savings of $136,002.00.
Under 38 CFR 3.276, the collections of information are currently approved by OMB under the assigned OMB control numbers 2900-0001, 2900-0002 and 2900-0004. Specifically, under 38 CFR 3.276, claimants would be required to report to VA whether they have transferred assets within the 3 years prior to claiming pension or anytime thereafter and if so, information about those assets.
Prior to the creation of the Fully Developed Claims (FDC) program, all initial applications for Veterans Compensation and/or Pension claims had to be filed using VA Form 21-526 (OMB Control Number 2900-0001). In the administration of the FDC program, VA created two new, streamlined forms: VA Form 21-526EZ for Veterans Compensation claims (now under OMB Control Number 2900-0747) and VA Form 21P-527EZ for Veterans Pension claims (now under OMB Control Number 2900-0002). The creation and use of those two forms has resulted in the obsolescence of VA Form 21-526. Therefore, VA is pursuing discontinuance of VA Form 21-526.
For VA Form 21P-527EZ (OMB control number 2900-0002), VA estimates 839 new claimants/respondents in 2018, which represents the Veteran portion of the total caseload impacted by provisions under 38 CFR 3.276. The estimated completion time remains 30 minutes. VA therefore estimates the total incremental information collection burden costs to claimants/respondents to be $14,409.28 (592 burden hour × $24.34 per hour).
For VA Form 21P-534EZ (OMB control number 2900-0004), VA estimates 1,617 new claimants/respondents in 2018, which represents the survivor portion of the total caseload impacted by the provisions under 38 CFR 3.276. The completion time for VA Form 21P-534EZ remains 30 minutes. VA therefore estimates the total incremental information collection burden costs to claimants/respondents to be $16,648.56 (684 burden hour × $24.34 per hour).
Under 38 CFR 3.278, the collections of information are currently approved by OMB under the assigned OMB control numbers 2900-0161. Specifically, under proposed 38 CFR 3.278, claimants would be required to submit information pertaining to their medical expenses. Certain claimants would also be required to submit evidence that they need custodial care or assistance with activities of daily living.
We are adding a parenthetical statement after the authority citations in the amendatory language of this final rule to all of the sections containing information collections, so that the control numbers are displayed for each information collection.
The Secretary hereby certifies that this final 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 final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the final regulatory flexibility analysis requirements of section 604.
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review)
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined to be a significant regulatory action under Executive Order 12866 because it is likely to result in a rule that may 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's revised impact analysis can be found as a supporting document at
This rule is considered an Executive Order 13771 deregulatory action. The estimated cost savings of the rule, expressed in 2016 dollars and discounted back to the 2016 equivalent, is $0.0937 million.
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 final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this final rule are 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the
Administrative practice and procedure, Claims, Disability benefits, Pensions, Veterans.
For the reasons set forth in the preamble, VA amends 38 CFR part 3 as follows:
38 U.S.C. 501(a), unless otherwise noted.
The revision and additions read as follows:
(a) * * *
The additions and revision read as follows:
(l) * * * For the definition of what constitutes a medical expense, see § 3.278, Deductible medical expenses.
(t)
(u)
(v)
The addition reads as follows:
(e) VA will exclude from the corpus of estate or net worth any amount designated by statute as not countable as a resource. See § 3.279.
(i)
The additions and revision read as follows:
(g) * * * For the definition of what constitutes a medical expense, see § 3.278, Deductible medical expenses.
(k)
(q) * * *
(r)
(s)
(t)
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(2)
(3)
(ii) If a surviving child has a custodian other than an institution, the child's assets include the assets of the child as well as the assets of the custodian. If the child is in the joint custody of his or her natural or adoptive parent and a stepparent, the child's assets also include the assets of the stepparent.
(d)
(1)
(i) “Dependent child” refers to a child for whom a veteran or a surviving spouse is entitled to an increased maximum annual pension rate.
(ii) “Potential dependent child” refers to a child who is excluded from a veteran's or surviving spouse's pension award solely or partly because of this paragraph (d). References in this section to “dependent child” include a potential dependent child.
(2)
(3)
(4)
(e)
(1) VA has received—
(i) An original pension claim;
(ii) A new pension claim after a period of non-entitlement;
(iii) A request to establish a new dependent; or
(iv) Information that a veteran's, surviving spouse's, or child's net worth has increased or decreased; and
(2) The claimant or beneficiary meets the other factors necessary for pension entitlement as provided in § 3.3(a)(3) and (b)(4).
If the evidence shows that net worth exceeds the net worth limit, VA may decide the pension claim before determining if the claimant meets other entitlement factors. VA will notify the claimant of the entitlement factors that have not been established.
(f)
(1)
(2)
(3)
(4)
(g)
(i) Discontinued pension or denied pension entitlement for a veteran, surviving spouse, or surviving child based on the veteran's, surviving spouse's, or surviving child's excessive net worth; or
(ii) Reduced pension or denied increased pension entitlement for a veteran or surviving spouse based on a dependent child's excessive net worth.
(2)
(h)
(2)
(i)
(2)
(ii) When a dependent child's excessive net worth results in increased pension entitlement for the veteran or surviving spouse, the effective date of the increased pension entitlement rate (
(a)
(2)
(ii) For the purpose of paragraph (b)(1) of this section,
(3)
(b)
(1)
(i)
(ii)
(A) A nursing home or medical foster home;
(B) A care facility other than a nursing home; or
(C) The home of a family member for health care or custodial care.
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(1)
(2)
(i) Was part of a claimant's net worth;
(ii) Was transferred for less than fair market value; and
(iii) If not transferred, would have caused or partially caused the claimant's net worth to exceed the net worth limit under § 3.274(a).
(3)
(i)
(ii)
(4)
(5)
(i) Selling, conveying, gifting, or exchanging an asset for an amount less than the fair market value of the asset; or
(ii) A voluntary asset transfer to, or purchase of, any financial instrument or investment that reduces net worth by transferring the asset to, or purchasing, the instrument or investment unless the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant's own benefit. If the claimant establishes that the asset can be liquidated, the asset is included as net worth. Examples of such instruments or investments include—
(A)
(B)
(6)
(7)
(8)
(b)
(c)
(d)
(1) VA rates or has rated the child incapable of self-support under § 3.356; and
(2) There is no circumstance under which distributions from the trust can be used to benefit the veteran, the veteran's spouse, or the veteran's surviving spouse.
(e)
(1)
(2)
(3)
(4)
(5)
(i) The original calculation is shown to be erroneous; or
(ii) VA receives evidence showing that some or all covered assets were returned to the claimant before the date of claim or within 60 days after the date of VA's notice to the claimant of VA's decision concerning the penalty period. If covered assets are returned to the claimant, VA will recalculate or eliminate the penalty period. For this exception to apply, VA must receive the evidence not later than 90 days after the date of VA's notice to the claimant of VA's decision concerning the penalty period. Once covered assets are returned, a claimant may reduce net worth at the time of transfer under the provisions of § 3.274(f).
(a)
(b)
(1)
(i) An individual licensed by a State or country to provide health care in the State or country in which the individual provides the health care. The term includes, but is not limited to, a physician, physician assistant, psychologist, chiropractor, registered nurse, licensed vocational nurse, licensed practical nurse, and physical or occupational therapist; or
(ii) A nursing assistant or home health aide who is supervised by a licensed health care provider as defined in paragraph (b)(1)(i) of this section.
(2)
(3)
(4)
(i) Assistance with two or more ADLs; or
(ii) Supervision because an individual with a physical, mental, developmental, or cognitive disorder requires care or assistance on a regular basis to protect the individual from hazards or dangers incident to his or her daily environment.
(5)
(6)
(7)
(8)
(i) Veteran;
(ii) Surviving spouse;
(iii) Parent (for parents' DIC purposes); or
(iv) Spouse of a living veteran with a service-connected disability rated at least 30 percent disabling, who is receiving pension.
(c)
(1)
(2)
(3)
(4)
(i)
(ii) [Reserved]
(5)
(6)
(7)
(d)
(1)
(2)
(i) The disabled individual needs A&A or is housebound; or
(ii) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual requires the health care or custodial care that the in-home attendant provides.
(3)
(ii) Payments for health care provided by a health care provider are medical expenses.
(iii) The provider does not need to be a health care provider, and payments for assistance with ADLs and IADLs are medical expenses, if the disabled individual is receiving health care or custodial care in the facility and—
(A) The disabled individual needs A&A or is housebound; or
(B) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual needs to be in a protected environment.
(iv) Payments for meals and lodging (and other facility expenses not directly related to health care or custodial care) are medical expenses if:
(A) The facility provides or contracts for health care or custodial care for the disabled individual; or
(B) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that the individual must reside in the facility (or a similar facility) to separately contract with a third-party provider to receive health care or custodial care or to receive (paid or unpaid) health care or custodial care from family or friends.
(e)
(1)
(2)
(3)
(4)
This section sets forth payments that Federal statutes exclude from income for the purpose of determining entitlement to any VA-administered benefit that is based on financial need. Some of the exclusions also apply to assets (pension), also known as net worth or the corpus of the estate (section 306 pension and parents as dependents for compensation). VA will exclude from income or assets any amount designated by statute as not countable as income or resources, regardless of whether or not it is listed in this section.
(c)
(2) If the child or the child's custodian willfully conceals information necessary to make the reduction, the last day of the month in which that willful concealment occurred.
(i)
| 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 |