| Page Range | 48905-49263 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 49153 - Conforming Amendment and Modification to Section 301 Action: China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation | |
| 83 FR 48957 - Minerals Management: Adjustment of Cost Recovery Fees | |
| 83 FR 48964 - Military Licensing and State Commercial Driver's License Reciprocity | |
| 83 FR 48905 - State of Wyoming: Discontinuance of Certain Commission Regulatory Authority Within the State; Notice of Agreement Between the NRC and the State of Wyoming | |
| 83 FR 49155 - Notice of Submission Deadline for Schedule Information for Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, and San Francisco International Airport for the Summer 2019 Scheduling Season | |
| 83 FR 49157 - Notice of Intent of Waiver With Respect to Land; Indianapolis International Airport, Indianapolis, Indiana | |
| 83 FR 49067 - International Work Sharing | |
| 83 FR 49070 - Submission for OMB Review; Comment Request; “Post Patent Public Submissions” | |
| 83 FR 49069 - Submission for OMB Review; Comment Request; “Fee Deficiency Submissions” | |
| 83 FR 49069 - Submission for OMB Review; Comment Request; “Patent Reexamination and Supplemental Examinations” | |
| 83 FR 49099 - John D. McCoy; Denial of Hearing; Final Debarment Order | |
| 83 FR 49095 - Richard M. Fleming; Denial of Hearing; Final Debarment Order | |
| 83 FR 49107 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approvals | |
| 83 FR 49158 - Petition for Exemption; Summary of Petition Received; Wing Aviation, LLC | |
| 83 FR 49159 - Notice of Industry Meeting | |
| 83 FR 49123 - Notice of Availability of Draft Environmental Impact Statement for the Proposed East Smoky Panel Mine Project at Smoky Canyon Mine, Caribou County, ID | |
| 83 FR 49026 - Safety Zone; Delaware River; Penn's Landing; Philadelphia, PA; Fireworks Display | |
| 83 FR 49024 - Special Local Regulation; Manasquan Inlet, Manasquan, NJ | |
| 83 FR 49130 - Heliophysics Advisory Committee; Meeting | |
| 83 FR 49103 - Use of the Names of Dairy Foods in the Labeling of Plant-Based Products | |
| 83 FR 49102 - GlaxoSmithKline, LLC, et al.; Withdrawal of Approval of 24 Abbreviated New Drug Applications | |
| 83 FR 48962 - Nonsubstantive, Editorial Revisions of Rules and Regulations To Correct Authority Citations | |
| 83 FR 49216 - Oil and Gas and Sulphur Operations on the Outer Continental Shelf-Oil and Gas Production Safety Systems | |
| 83 FR 49091 - Request for Nominations of Experts To Consider for ad hoc Participation on Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Scientific Advisory Panel (SAP) | |
| 83 FR 48985 - Fisheries of the Northeastern United States; Northeast Skate Complex; Framework Adjustment 5 and 2018-2019 Specifications | |
| 83 FR 49089 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 2511.02); Comment Request | |
| 83 FR 49146 - Determination Pursuant to Section 7041(A)(3)(B) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2017 | |
| 83 FR 49090 - National and Governmental Advisory Committees | |
| 83 FR 49145 - Certification Pursuant to Section 7041(a)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018 | |
| 83 FR 49028 - Safety Zone; Annual Fireworks Displays Within the Sector Columbia River Captain of the Port Zone | |
| 83 FR 49152 - San Pedro Valley Holdings, LLC-Acquisition Exemption-San Pedro and Southwestern Railroad Company in Cochise County, Ariz. | |
| 83 FR 49151 - Gregory B. Cundiff, Connie Cundiff, CGX, Inc. and Ironhorse Resources, Inc.-Continuance in Control Exemption-San Pedro Valley Holdings, LLC in Cochise County, Ariz.; Gregory B. Cundiff, Connie Cundiff, CGX, Inc. and Ironhorse Resources, Inc.-Continuance in Control Exemption-San Pedro Valley Railroad, LLC in Cochise County, Ariz. | |
| 83 FR 49070 - Procurement List; Deletions | |
| 83 FR 49071 - Procurement List; Proposed Deletions | |
| 83 FR 49148 - San Pedro Valley Railroad, LLC-Operation Exemption-San Pedro Valley Holdings, LLC in Cochise County, Ariz. | |
| 83 FR 49066 - Western Pacific Fishery Management Council; Public Meeting | |
| 83 FR 49065 - South Atlantic Fishery Management Council; Public Meetings | |
| 83 FR 49066 - Fisheries of the South Atlantic; South Atlantic Fishery Management Council; Public Meeting | |
| 83 FR 49113 - Center for Scientific Review; Notice of Closed Meetings | |
| 83 FR 49112 - National Human Genome Research Institute; Notice of Closed Meetings | |
| 83 FR 49114 - National Institute on Deafness and Other Communication Disorders; Notice of Closed Meetings | |
| 83 FR 49111 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 83 FR 49064 - South Atlantic Fishery Management Council; Public Meetings | |
| 83 FR 49094 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 83 FR 49146 - Notice of Public Meeting of the International Telecommunication Advisory Committee and Preparations for Upcoming International Telecommunications Meetings | |
| 83 FR 49112 - Notice of Listing of Members of the National Institutes of Health's Senior Executive Service 2018 Performance Review Board (PRB) | |
| 83 FR 49062 - Submission for OMB Review; Comment Request | |
| 83 FR 49063 - Proposed Information Collection; Comment Request; Procedures for Submitting Requests for Objections From the Section 232 National Security Adjustments of Imports of Steel and Aluminum | |
| 83 FR 49064 - Proposed Information Collection; Comment Request; Procedures for Submitting Request for Exclusions From the Section 232 National Security Adjustments of Imports of Steel and Aluminum | |
| 83 FR 49139 - Proposed Revisions to Standard Review Plan Section 2.5.3, Surface Deformation | |
| 83 FR 49065 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits | |
| 83 FR 49062 - Boundary Establishment for Black Butte National Wild and Scenic River, Including Portions of Cold Creek, Mendocino National Forest, Mendocino County, California | |
| 83 FR 49072 - Request for Information Regarding Bureau Data Collections | |
| 83 FR 49151 - New York State Department of Environmental Conservation-Adverse Abandonment-Saratoga and North Creek Railway in Town of Johnsburg, NY | |
| 83 FR 49121 - Agency Information Collection Activities; Federal Subsistence Regulations and Associated Forms | |
| 83 FR 49126 - FM Approvals LLC: Grant of Expansion of Recognition and Modification to the Nationally Recognized Testing Laboratory (NRTL) Program's List of Appropriate Test Standards | |
| 83 FR 49128 - Underwriters Laboratories, Inc.: Grant of Expansion of Recognition and Modification to the Nationally Recognized Testing Laboratory (NRTL) Program's List of Appropriate Test Standards | |
| 83 FR 49131 - Submission for OMB Review; Comment Request | |
| 83 FR 49077 - Notice of Availability of the Final Missouri River Recovery Management Plan and Environmental Impact Statement | |
| 83 FR 49075 - Intent To Prepare an Environmental Impact Statement for Chehalis River Basin Flood Damage Reduction Project Proposed by the Chehalis River Basin Flood Control Zone District, Lewis County, WA | |
| 83 FR 49060 - Chugach National Forest; Alaska; Notice of a Proposed Amendment to the Chugach National Forest Land and Resource Management Plan, Applying Only to the Sterling Highway Milepost 45-60 Project | |
| 83 FR 49074 - Intent To Grant an Exclusive License for U.S. Government-Owned Invention | |
| 83 FR 49067 - BroadbandUSA Webinar Series | |
| 83 FR 49108 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food Use | |
| 83 FR 48950 - New Animal Drugs; Withdrawal of Approval of New Animal Drug Applications | |
| 83 FR 48940 - New Animal Drugs; Approval of New Animal Drug Applications; Withdrawal of Approval of New Animal Drug Applications; Changes of Sponsorship; Change of a Sponsor's Name | |
| 83 FR 49022 - Label Requirement for Food That Has Been Refused Admission Into the United States | |
| 83 FR 49048 - Petition To Permit Waivers of Maximum Line Speeds for Young Chicken Establishments Operating Under the New Poultry Inspection System; Criteria for Consideration of Waiver Requests for Young Chicken Establishments To Operate at Line Speeds of Up to 175 Birds per Minute | |
| 83 FR 49146 - National Express LLC-Acquisition of Control-Wise Coaches, Inc. | |
| 83 FR 49097 - The Special 510(k) Program; Draft Guidance for Industry and Food and Drug Administration Staff; Availability | |
| 83 FR 49132 - Proposed Revisions to Standard Review Plan Section 2.4.6, Tsunami Hazards; Section 2.4.9, Channel Migration or Diversion; and Section 2.3.3, Onsite Meteorological Measurements Program | |
| 83 FR 49149 - 30-Day Notice of Intent To Seek Extension of Approval of Collections: Rail Carrier Financial Reports | |
| 83 FR 49101 - Vaccines and Related Biological Products Advisory Committee; Notice of Meeting | |
| 83 FR 49141 - Public Inquiry on Service Performance Measurement Systems | |
| 83 FR 48954 - Regulated Navigation Area; Upper Mississippi River, Sabula Railroad Drawbridge, Mile Marker 535, Sabula, IA | |
| 83 FR 49023 - Use of Materials Derived From Cattle in Medical Products Intended for Use in Humans and Drugs Intended for Use in Ruminants; Reporting Information Regarding Falsification of Data | |
| 83 FR 49124 - Steel Trailer Wheels From China | |
| 83 FR 49077 - Notice of Complaint; Owensboro Municipal Utilities v. Louisville Gas and Electric Company, Kentucky Utilities Company | |
| 83 FR 49077 - Combined Notice of Filings | |
| 83 FR 49078 - Combined Notice of Filings #1 | |
| 83 FR 49092 - Proposed Agency Information Collection Activities; Comment Request | |
| 83 FR 49132 - Notice of Permit Modification Received Under the Antarctic Conservation Act of 1978 | |
| 83 FR 49132 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978 | |
| 83 FR 49118 - Final Flood Hazard Determinations | |
| 83 FR 49115 - Changes in Flood Hazard Determinations | |
| 83 FR 48950 - Schedules of Controlled Substances: Placement in Schedule V of Certain FDA-Approved Drugs Containing Cannabidiol; Corresponding Change to Permit Requirements | |
| 83 FR 49138 - Meeting of the Advisory Committee on Reactor Safeguards (ACRS) Subcommittee on Structural Analysis | |
| 83 FR 49117 - Final Flood Hazard Determinations | |
| 83 FR 49145 - Interest Rates | |
| 83 FR 49118 - Minnesota; Major Disaster and Related Determinations | |
| 83 FR 49115 - Nebraska; Major Disaster and Related Determinations | |
| 83 FR 49046 - Advance Notice of Proposed Rulemaking; Request for Information | |
| 83 FR 48976 - Endangered and Threatened Wildlife and Plants; Final Rule To List the Chambered Nautilus as Threatened Under the Endangered Species Act | |
| 83 FR 49145 - Administrative Declaration Amendment of an Economic Injury Disaster for the State of Florida | |
| 83 FR 48908 - Ownership and Control of Service-Disabled Veteran-Owned Small Business Concerns | |
| 83 FR 49089 - Environmental Impact Statements; Notice of Availability | |
| 83 FR 49144 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating To Rename the “Extended Trading Hours” to “Global Trading Hours” in Its Rules and Fees Schedule | |
| 83 FR 49143 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Amend NYSE Rule 104 Governing Transactions by Designated Market Makers | |
| 83 FR 49142 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change Regarding Investments of the REX BKCM ETF | |
| 83 FR 49160 - Proposed Agency Information Collection Activities; Comment Request | |
| 83 FR 48918 - Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes | |
| 83 FR 49120 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Request for Fee Waiver; Exemptions | |
| 83 FR 49109 - Prospective Grant of an Exclusive Patent License: Development and Commercialization of Cell Therapies for Cancer | |
| 83 FR 49125 - Tapered Roller Bearings From China | |
| 83 FR 48953 - Special Local Regulations for Marine Events; San Francisco Bay Navy Fleet Week Parade of Ships and Blue Angels Demonstration, San Francisco, CA | |
| 83 FR 49113 - National Cancer Institute; Notice of Closed Meetings | |
| 83 FR 49111 - National Heart, Lung, and Blood Institute; Notice of Closed Meetings | |
| 83 FR 49040 - Wireline Competition Bureau Seeks Comment on Procedures To Identify and Resolve Location Discrepancies in Eligible Census Blocks Within Winning Bid Areas | |
| 83 FR 49112 - National Institute on Aging; Notice of Closed Meeting | |
| 83 FR 49031 - Proposed Priorities, Requirements, Definitions, and Performance Measures-Comprehensive Centers Program Catalog of Federal Domestic Assistance (CFDA) Number: 84.283B | |
| 83 FR 49119 - Intent To Request Extension From OMB of One Current Public Collection of Information: Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
| 83 FR 49181 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Indefinite Quantities-Fixed Charges” (DFARS Case 2018-D039) | |
| 83 FR 49180 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Award Fee” (DFARS Case 2018-D037) | |
| 83 FR 49179 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Indefinite Quantities-No Fixed Charges” (DFARS Case 2018-D034) | |
| 83 FR 49178 - Defense Federal Acquisition Regulation Supplement: Repeal of DFARS Clause “Additional Services” (DFARS Case 2018-D027) | |
| 83 FR 48920 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 48930 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 48935 - Airworthiness Directives; Embraer S.A. Airplanes | |
| 83 FR 48924 - Airworthiness Directives; Dassault Aviation Airplanes | |
| 83 FR 48938 - Airworthiness Directives; BAE Systems (Operations) Limited Airplanes | |
| 83 FR 48932 - Airworthiness Directives; Airbus SAS Airplanes | |
| 83 FR 49017 - Airworthiness Directives; The Boeing Company Airplanes | |
| 83 FR 49020 - Airworthiness Directives; Fokker Services B.V. Airplanes | |
| 83 FR 48927 - Airworthiness Directives; The Boeing Company Airplanes | |
| 83 FR 48915 - Airworthiness Directives; The Boeing Company Airplanes | |
| 83 FR 48990 - Regulatory Capital Treatment for High Volatility Commercial Real Estate (HVCRE) Exposures | |
| 83 FR 49001 - Express Loan Programs; Affiliation Standards | |
| 83 FR 49091 - Public Water System Supervision Program Revision for the State of Hawaii | |
| 83 FR 49074 - Submission for OMB Review; Comment Request | |
| 83 FR 49079 - Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or Superfund, Section 128(a); Notice of Grant Funding Guidance for State and Tribal Response Programs for FY2019 | |
| 83 FR 49184 - Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements | |
| 83 FR 49075 - Submission for OMB Review; Comment Request | |
| 83 FR 49125 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection: Records Modification Form (FD-1115) |
Food Safety and Inspection Service
Forest Service
Industry and Security Bureau
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Patent and Trademark Office
Army Department
Defense Acquisition Regulations System
Engineers Corps
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Transportation Security Administration
U.S. Citizenship and Immigration Services
Bureau of Safety and Environmental Enforcement
Fish and Wildlife Service
Land Management Bureau
Drug Enforcement Administration
Federal Bureau of Investigation
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Comptroller of the Currency
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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Nuclear Regulatory Commission.
Final State agreement.
This document is announcing that on September 25, 2018, Kristine L. Svinicki, Chairman of the U.S. Nuclear Regulatory Commission (NRC or Commission), and Governor Matthew H. Mead of the State of Wyoming, signed an Agreement as authorized by Section 274b. of the Atomic Energy Act of 1954, as amended (the Act). Under the Agreement the Commission discontinues its regulatory authority, and the State of Wyoming assumes regulatory authority over the management and disposal of byproduct material as defined in Section 11e.(2) of the Act and a subcategory of source material or ores involved in extraction or concentration of uranium or thorium milling in the State. As of the effective date of the Agreement, a person in Wyoming possessing these materials is exempt from certain Commission regulations. The exemptions have been previously published in the
The effective date of the Agreement is September 30, 2018.
Please refer to Docket ID NRC-2018-0104 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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•
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Stephen Poy, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7135; e-mail:
The NRC published the proposed Agreement in the
After considering the request for an Agreement by the Governor of Wyoming, the supporting documentation submitted with the request for an Agreement, and its interactions with the staff of the Wyoming Department of Environmental Quality, the NRC staff completed an assessment of the Wyoming program. The agency made a copy of the staff assessment available in the NRC's Public Document Room (PDR) and electronically on the NRC's Web site. Based on the staff's assessment, the Commission determined on September 10, 2018, that the Wyoming program for control of radiation hazards is adequate to protect public health and safety and compatible with the Commission's program. This Agreement is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
For the Nuclear Regulatory Commission.
WHEREAS, The United States Nuclear Regulatory Commission (hereinafter referred to as “the Commission”) is authorized under Section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011 et seq. (hereinafter referred to as “the Act”), to enter into agreements with the Governor of any State providing for discontinuance of the regulatory authority of the Commission within the State under Chapters 6, 7, and 8, and Section 161 of the Act with
WHEREAS, The Governor of the State of Wyoming is authorized under Wyoming Statute Section 35-11-2001 to enter into this Agreement with the Commission; and,
WHEREAS, The Governor of the State of Wyoming certified on November 14, 2017, that the State of Wyoming (hereinafter referred to as “the State”) has a program for the control of radiation hazards adequate to protect public health and safety with respect to the materials within the State covered by this Agreement and that the State desires to assume regulatory responsibility for such materials; and,
WHEREAS, The Commission found on September 10, 2018, that the program of the State for the regulation of the materials covered by this Agreement is compatible with the Commission's program for the regulation of such materials and is adequate to protect public health and safety; and,
WHEREAS, The State and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and Commission programs for protection against hazards of radiation will be coordinated and compatible; and,
WHEREAS, The Commission and the State recognize the desirability of the reciprocal recognition of licenses, and of the granting of limited exemptions from licensing of those materials subject to this Agreement; and,
WHEREAS, This Agreement is entered into pursuant to the Act;
NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of the State of Wyoming acting on behalf of the State as follows:
Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters, 7, and 8, and Section 161 of the Act with respect to the following materials:
The State and the Commission agree to keep each other informed of proposed changes in their respective rules and regulations and to provide each other the opportunity for early and substantive contribution to the proposed changes. The State and the Commission agree to keep each other informed of events, accidents, and licensee performance that may have generic implication or otherwise be of regulatory interest.
U.S. Small Business Administration.
Final rule.
The U.S. Small Business Administration (SBA or Agency) is amending its regulations to implement provisions of the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017). The NDAA 2017 placed the responsibility for issuing regulations relating to ownership and control for the Department of Veterans Affairs verification of Veteran-Owned (VO) and Service-Disabled Veteran-Owned (SDVO) Small Business Concerns (SBCs) with the SBA. Pursuant to NDAA 2017, SBA issues one definition of ownership and control for these concerns, which applies to the Department of Veterans Affairs in its verification and Vets First Contracting Program procurements, and all other government acquisitions which require self-certification. The legislation also provided that in certain circumstances a firm can qualify as VO or SDVO when there is a surviving spouse or an employee stock ownership plan (ESOP).
This rule is effective October 1, 2018.
Brenda Fernandez, Office of Policy, Planning and Liaison, 409 Third Street SW, Washington, DC 20416; (202) 205-7337;
The Vets First Contracting Program within the Department of Veterans Affairs (VA) was created under the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109-461), 38 U.S.C. 501, 513. This contracting program was created for Veteran-Owned Small Businesses and expanded the Service-Disabled Veteran-Owned contracting program for VA procurements. Approved firms are eligible to participate in Veteran-Owned Small Business (VOSB) and Service-Disabled Veteran-Owned Small Business (SDVOSB) set-asides issued by VA. More information regarding the Vets First Contracting Program can be found on the Department of Veterans Affairs website at
This rule complies with the directive in the National Defense Authorization Act of 2017 (Pub. L. 114-328), section 1832, to standardize definitions for VOSBs and SDVOSBs between VA and SBA. As required by section 1832, the Secretary of Veterans Affairs will use SBA's regulations to determine ownership and control of VOSBs and SDVOSBs. The Secretary would continue to determine whether individuals are veterans or service-disabled veterans and would be responsible for verification of applicant firms. Challenges to the status of a VOSB or SDVOSB based upon issues of ownership or control would be decided by the administrative judges at the SBA's Office of Hearings and Appeals (OHA).
The VA proposed its companion rule, VA Veteran-Owned Small Business (VOSB) Verification Guidelines (RIN 2900-AP97) on January 10, 2018 (83 FR 1203)(Docket Number: VA-2018-VACO-0004). Their proposed rule sought to remove all references related to ownership and control and to add and clarify certain terms and references that are currently part of the verification process. The NDAA also provides that in certain circumstances a firm can qualify as VOSB or Service-Disabled Veteran Owned Small Business (SDVOSB) when there is a surviving spouse or an employee stock ownership plan (ESOP). The final VA rule was issued on September 24, 2018 and is effective October 1, 2018. 83 FR 48221.
Similarly, SBA has finalized another related rule on March 30, 2018. SBA Final Rule: Rules of Practice for Protests and Appeals Regarding Eligibility for Inclusion in the U.S. Department of Veterans Affairs Center for Verification and Evaluation Database (83 FR 13626; RIN: 3245-AG87; Docket Number: SBA-2017-0007). This rule, also effective October 1, 2018, amends the rules of practice of SBA's Office of Hearings and Appeals (OHA) to implement procedures for protests of eligibility for inclusion in the Department of Veterans Affairs (VA) Center for Verification and Evaluation (CVE) database, and procedures for appeals of denials and cancellations of inclusion in the CVE database. OHA added two subparts to 13 CFR part 134: one for protests; the other for appeals. These amendments are issued in accordance with sections 1832 and 1833 of the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017).
SBA proposed this rule on January 29, 2018 (83 FR 4005; Docket Number: SBA-2018-0001). Sixty-eight comments were received, not all of which were germane to the rulemaking.
SBA received several comments related to this rulemaking as a whole. Two comments were supportive of the rule because the rule would align SBA's and VA's regulations, and would help to define elements previously addressed only outside the regulations through OHA decisions or case-by-case determinations. Six commenters opposed the proposed rule for addressing issues beyond just standardizing SBA's and VA's definitions. As explained in the section-by-section analysis, this rule codifies standards and practices that SBA has applied consistently through determinations and OHA decisions. SBA believes it benefits VOSB and SDVOSBs to have these standards and practices reflected in the regulations.
One commenter stated that SBA and VA should jointly issue regulations. SBA has consulted with VA in order to properly understand VA's positions and implement the statutory requirements in a way that is consistent with both SBA's and VA's interpretations. SBA and VA will each issue regulations effective on October 1, 2018, which will have the effect of creating a single ownership and control rule for both agencies.
In response to the NDAA 2017 changes, SBA proposed to amend the definitions in § 125.11 by incorporating language from VA's regulations and also from SBA's 8(a) Business Development (BD) program regulations. 13 CFR part 124, subpart A. SBA is defining a surviving spouse and the requirements for a surviving spouse-owned SDVO SBC to maintain program eligibility. Further, SBA is adding definitions for Daily Business Operations, Negative Control, Participant, and Unconditional Ownership. The added definitions are being adopted from SBA's 8(a) BD regulations found in part 124. SBA received two comments on the proposed definition of “Daily business operations.” One comment advised that “setting of the strategic direction of the firm” is better categorized as long-term operations. SBA agrees and has deleted the reference to “setting of the strategic direction of the firm” from the definition of “daily business operations.” A second comment objected to the inclusion of executive oversight, company policy, and strategic direction. SBA's deletion of strategic direction addresses this comment because, although the definition includes executive supervision and policy implementation, the definition does not address oversight or the creation of policy.
SBA received one comment on the “unconditional ownership” definition stating that it should be subject to the same conditions as extraordinary circumstances. SBA does not see a reason to conflate ownership and control requirements, and therefore is not changing the “unconditional ownership” definition.
SBA is adding a definition for Employee Stock Ownership Plan (ESOP). This definition is adopted from section 1832(a)(6). SBA is also replacing the definitions of permanent caregiver, service-disabled veteran, and surviving spouse. SBA is adding a new definition for service-disabled veteran with a permanent and severe disability. These definitions are being updated in consultation with VA in an effort to ensure consistency across programs at both Agencies. SBA is also adding a definition for small business concerns. Concerns will need to meet all the requirements of part 121, including § 121.105(a)(1), which requires that the firm be organized for profit, “with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.” This definition will address how to generally determine the size of a concern. VO and SDVO SBCs will still be required to meet size standards corresponding to the NAICS code assigned to each contract pursuant to §§ 125.14 and 125.15. SBA did not receive any comments on these definitions.
SBA proposed to add a definition for “extraordinary circumstances” under which a service disabled veteran owner would not have full control over a firm's decision-making process, but would not render the firm ineligible as a firm owned and controlled by one or more service disabled veterans. This definition will be used to identify discrete circumstances that SBA views as rare. The new definition will be used to allow minority equity holders to have negative control over these enumerated instances. SBA listed five limited circumstances in which a service-disabled veteran owner will not have full control over the decision making process. These five circumstances are exclusive, and SBA will not recognize any other facts or circumstances that would allow negative control by individuals that are not service-disabled. SBA received four comments on the definition for “extraordinary circumstances.” One comment was supportive, and three comments suggested that SBA either eliminate the list, or add more protection for non-service-disabled-veteran owners. One commenter cited two SBA Office and Hearing Appeals size decisions to argue that the new rule is more restrictive than SBA's affiliation regulations. Upon reviewing those two cases,
SBA proposed to amend § 125.12(b), which pertains to the requirement for ownership of a partnership. SBA's prior regulation required service-disabled veterans to own at least 51% of each type of partnership interest. Therefore, if a partnership had general partners and limited partners it was required that the service disabled veteran be both a general and limited partner. SBA is changing the requirement so that service-disabled veterans will need to own at least 51% of the aggregate voting interest in the partnership. SBA received one comment on this change that stated that the proposed rule was inconsistent with the treatment of corporations. SBA does not find that the treatment of partnership and corporations must be identical, and therefore SBA is adopting § 125.12(b) as proposed.
SBA proposed to add coverage to § 125.12(d) to address statutory language with regard to public companies and ownership. This language does not include any equity held by an ESOP when determining ownership for a publicly owned business. SBA did not receive any comments on this change.
SBA proposed to add a new § 125.12(g) to provide clarity with regard to requirements for dividends and distributions. In general, one's right to receive benefits, compensation, and the ultimate value of one's equity should be consistent with the purported amount of equity. For example, it is not consistent with SBA's regulations for a firm to state that a service-disabled veteran owns 60 percent of the equity but records show that he or she is entitled only to a smaller amount of the firm's profit, or that the residual value of that equity is less than 60 percent if the firm is sold. SBA received two comments on § 125.12(g). One commenter argued that this new rule would be inconsistent with SBA's regulations for joint ventures which require profit distribution based on workshare. SBA does not find that the SDVO SBC regulation needs to be consistent with the joint venture regulations, which address an entirely different situation. A joint venture is not itself an SDVO SBC and is therefore treated differently. SBA does not see a benefit of treating joint ventures and
Under the new § 125.12(h), ownership decisions will be decided without regard to community property laws. This provision is similar to SBA's ownership regulations for women owned businesses.
The new § 125.12(i) allows the transfer of ownership in a SDVO SBC from a service-disabled veteran to his or her spouse upon the death of the service-disabled veteran without adversely affecting the firm's status as a SDVO SBC. SBA received two comments requesting that SBA extend survivor benefits beyond 100% service-disabled veterans. This allowance is taken from statute and can be seen in the definition of
SBA proposed to add several new paragraphs to § 125.13 to incorporate provisions from SBA's 8(a) BD program and VA's former ownership and control regulations. SBA will continue to rely on the 8(a) program rules in part 124 for guidance in interpreting these control requirements.
SBA proposed to add language to describe how to determine if a service-disabled veteran controls the Board of Directors in § 125.13(e). This language is adopted from SBA's 8(a) BD regulations and is added to provide more clarity. In § 125.13(f), SBA added language that will require firms to provide notification of supermajority voting requirements. This regulation will simplify the procedures for reviewing eligibility criteria related to super majority requirements. SBA did not receive any comments on these changes.
SBA proposed that § 125.13(g), (h), (i), and (j) would adopt policies and language from SBA's 8(a) BD program and VA's regulations. These provisions provide guidance on when SBA may find that a non-service-disabled veteran controls the firm. These regulations add more clarity and detail to specific issues such as quorum requirements and loan arrangements with non-service-disabled veterans. SBA received several comments on § 125.13(i). One comment recommended that SBA present the requirement as a rebuttable presumption. SBA agrees that language about a rebuttable presumption adds clarity and consistency. As such, SBA has adopted the suggestion.
SBA received three comments on the provision in § 125.13(i)(1) that a non-service-disabled veteran owner or manager not be a former employer or principal of a former employer. Specifically, the commenters mentioned that as written the requirement is not easily understood. One commenter recommended that SBA add “current” employer to the requirement because being a current employer is even more likely to lead to issues than being a former employer. SBA agrees and is adding “current.” SBA also agrees that that the regulation could be clearer, and as such SBA has changed the language based on the suggestions in the comments. SBA does not believe that these changes affect the intent of the requirement.
SBA received three comments on the provision in § 125.13(i)(2) that a non-service-disabled veteran cannot receive higher compensation than the highest officer. One comment requested that SBA remove the requirement in its entirety. SBA believes this rule is necessary and has enough options for high payment of sought-after professionals to not hinder business progress. VA's regulations had a similar regulation, and SBA's 8(a) BD program currently includes this regulation. Two commenters requested changes to the language without challenging the intent of the regulation. One of these commenters requested that SBA adopt VA's position that a non-service-disabled veteran that is the highest-compensated employee should not be an officer or a manager. The proposed language mirrors language from SBA's 8(a) BD program. SBA believes that this language has a track record of providing clarity to participants about compensation expectations, while also allowing the flexibility for firms to make business decisions that benefit the concern without harming the service-disabled veteran.
SBA received two comments on § 125.13(i)(3), relating to when an SDVO SBC is co-located with another firm. One comment suggested a revision and another suggested deletion. SBA believes the co-location regulation is necessary to address a common situation where a service-disabled veteran is not in control of the concern because of reliance on the co-located firm. Like the other elements in the control regulation, this co-location element is a rebuttable presumption, so it is still possible to find control by the service-disabled veteran if the SDVO SBC presents sufficient evidence to rebut the presumption. SBA changed the last word in the proposed regulation to clarify that the regulation will apply when the co-located firm or individual has an equity interest in the concern seeking SDVO SBC status.
SBA proposed to add rebuttable presumptions to § 125.13(k) and (l). Paragraph (k) adds a rebuttable presumption that a person not working for a firm regularly during normal working hours does not control the firm. As a rebuttable presumption, this is not a full-time devotion requirement and can be rebutted by providing evidence of control. SBA received four comments on this proposed rule. All commenters stated that this regulation was a new hindrance placed on SDVO SBCs and should not be included. The rule, however, reflects a control element that SBA and VA are already applying to current SDVO SBCs. This has always been a factor that SBA will consider, but now it is clearly rebuttable by providing evidence of control. If a service-disabled veteran is not working during the firm's normal hours or has outside employment, SBA may presume that another individual is assuming the management role not being filled by the service-disabled veteran. This recognizes the reality of day-to-day control. SBA's regulations have always required that the day-to-day management and administration of SDVO SBC business operations must be conducted by one or more service-disabled veterans. The rebuttable presumption in paragraph (k) provides clarity on how SBA has always viewed the “day-to-day management” requirement and such is not a new requirement. Day-to-day management typically requires that an individual manage on a daily basis. In this case, if a firm does not require, and does not have an individual providing, management on a daily basis, the firm may provide that evidence to SBA to rebut the presumption.
Similarly, SBA proposed § 125.13(l) to add a rebuttable presumption
SBA is adopting § 125.13(m) and (n) as proposed. SBA did not receive comments on either subsection. The new § 125.13(m) is an exception to the control requirements in “extraordinary circumstances.” As noted above, SBA has defined extraordinary circumstances to include a limited and exhaustive list of five circumstances. The rule will allow an exception to the general requirement that SDVs control long term decision making. The new § 125.13(n) is an exception to the control requirements when an individual in the reserves is recalled to active duty. SBA and VA do not think a firm owned by a service-disabled veteran should lose its status due to the necessary military commitments of its owner when serving the nation.
SBA had proposed to make technical changes to §§ 125.22 and 125.23. These technical changes along with several others have already been implemented pursuant to other rulemaking. 83 FR 13849. As such, SBA has removed the proposed changes from this final rule.
The Administrative Procedure Act (APA) requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the APA provision delaying the effective date of a rule for 30 days after publication is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. For the reasons set forth below, SBA finds that good cause exists to make this final rule become effective on October 1, 2018, less than 30 days after it is published in the
As noted above, SBA and the VA have been working together to jointly implement the provisions of NDAA 2017. In doing so, SBA and the VA believe a single date on which all of the changes go into effect is the most effective path for implementation. SBA and the VA consider October 1, 2018 to be the best date for implementation of new unified rules for the programs. October 1, 2018 is the start of the new fiscal year, and is therefore the best date for separation of contract actions between different sets of regulations. Having contracts actions applying different regulations in the same fiscal year can often lead to confusion among contracting officials, and program participants. Procurements conducted in fiscal year 2018 will generally follow the old rules, while all new procurements in fiscal year 2019 will follow the new jointly developed regulations which SBA believes will lead to less confusion.
In addition to the joint effort in implementing these provisions of NDAA 2017, SBA has in a parallel rule making process implemented Sections 1932 and 1833 of NDAA 2017. These sections dealt with the transition of certain protest and appeal functions from the VA to SBA's Office of Hearing and Appeals. The final rule implementing those sections also has an implementation date of October 1, 2018. 83 FR 13626.
SBA and VA believe that a uniform transition combining the programs ownership and control requirements is extremely important. As such, SBA believes that an earlier effective date that aligns with the new fiscal year for contracting, and with the other changes implementing NDAA 2017 is the best course of action.
OMB has determined that this rule does not constitute a “significant regulatory action” under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800. This rule amends the rules concerning ownership and control of VO and SDVO SBCs. As such, the rule has no effect on the amount or dollar value of any Federal contract requirements or of any financial assistance provided through SBA or VA. Therefore, the rule is not likely to have an annual economic effect of $100 million or more, result in a major increase in costs or prices, or have a significant adverse effect on competition or the United States economy. In addition, this rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, loan programs or the rights and obligations of such recipients, nor raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This rule is part of a joint effort by the VA and SBA to reduce the regulatory burden on the veteran business community. This rule consolidates ownership and control requirements in one regulation thus eliminating duplicate functions. Prior to the enactment of this regulation business owners had the burden of complying with both regulations. This regulation will eliminate that burden. The single rule helps streamline the verification and certification processes which will save business owners time and money. This will also lead to less confusion.
This action meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil
This rule does not have Federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.
This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.
The SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35. However, this rule does include an information collection for the VA and the OMB approval number for this collection is 2900-0675.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. Small entities include small businesses, small not-for-profit organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
This rule merges SBA and VA regulations concerning ownership and control of VO and SDVO SBCs as directed by Congress. The regulation is not attempting to create new regulation, but to streamline two already existing regulations into a single regulatory framework. In SBA's determination, this rule will not have a significant economic impact on any small business.
There are approximately 21,000 firms registered as SDVO SBCs in the System for Award Management (SAM) and approximately 13,000 firms that have been certified by the VA. To a large extent SBA's and the VA's ownership and control rules were substantially similar in terms of the regulatory language, and in many instances identical. Thus, the vast majority of these firms will not be impacted by this rule. For example, this rule will not impact firms that are 100% owned and control by a service-disabled veteran. To the extent there are differences in SBA's and the VA's ownership and control rules, this rule will reduce cost and positively impact all SDVO firms, because there will be one set of criteria to measure service-disabled-veteran ownership and control throughout the Federal government. Further, SBA's current rules do not ignore ESOPs when determining ownership, which means firms that are majority owned by ESOPs are not eligible for SDVO set-asides or sole source awards. We have no data on the number of firms that this rule will be impact, but the number is very small. After consulting with industry representatives, many firms owned by ESOPs are entirely owned by the ESOP, especially those that operate in industries with employee based size standards. Those firms will still not qualify if this rule is finalized because there is still a 51% service-disabled-veteran ownership requirement of the remaining ownership interest, not including ESOPs. However, some firms that intend to institute an ESOP may do so in way that allows the firm to qualify under this rule. With respect to surviving spouse, SBA's current rules do not recognize ownership or control by a surviving spouse. Although the VA does allow firms owned and controlled by surviving spouses to qualify under its certification program, the number of firms that qualify under the exception is extremely small. To the extent firms qualify under the surviving spouse exception the benefit will be positive, not negative. Firms that were previously not eligible to continue as SDVO firms will be able to continue for a period of time.
Therefore, the Administrator of SBA determines, under 5 U.S.C. 605(b), that this rule would not have a significant economic impact on a substantial number of small entities.
Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Technical assistance, Veterans.
Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR part 125 as follows:
15 U.S.C. 632(p), (q), 634(b)(6), 637, 644, 657(f), 657q, and 657s; 38 U.S.C. 501 and 8127.
(1) Adding a new equity stakeholder;
(2) Dissolution of the company;
(3) Sale of the company;
(4) The merger of the company; and
(5) Company declaring bankruptcy.
(1) A permanent caregiver may be appointed, in a number of ways, including:
(i) By a court of competent jurisdiction;
(ii) By the Department of Veterans Affairs, National Caregiver Support
(iii) By a legal designation.
(2) Any appointment of a permanent caregiver must in all cases be accompanied by a written determination from the Department of Veterans Affairs that the veteran has a permanent and total service-connected disability as set forth in 38 CFR 3.340 for purposes of receiving disability compensation or a disability pension. The appointment must also delineate why the permanent caregiver is given the appointment, must include the consent of the veteran to the appointment and how the appointment would contribute to managing the veteran's well-being.
(1) A small business concern—
(i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock (not including any stock owned by an ESOP) of which is owned by one or more service-disabled veterans; and
(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran;
(2) A small business concern—
(i) Not less than 51 percent of which is owned by one or more service-disabled veterans with a disability that is rated by the Secretary of Veterans Affairs as a permanent and total disability who are unable to manage the daily business operations of such concern; or
(ii) In the case of a publicly owned business, not less than 51 percent of the stock (not including any stock owned by an ESOP) of which is owned by one or more such veterans.
(1) Not less than 51 percent of which is owned by one or more veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
(2) The management and daily business operations of which are controlled by one or more veterans. All of the provisions of subpart B of this part apply for purposes of determining ownership and control.
The revisions and additions read as follows:
Generally, a concern must be at least 51% unconditionally and directly owned by one or more service-disabled veterans. More specifically:
(b) * * * In the case of a concern which is a partnership, at least 51% of aggregate voting interest must be unconditionally owned by one or more service-disabled veterans. * * *
(d) * * * In the case of a publicly owned business, not less than 51 percent of the stock (not including any stock owned by an ESOP) must be unconditionally owned by one or more veterans.
(g)
(1) At least 51 percent of the annual distribution of profits paid to the owners of a corporation, partnership, or limited liability company concern;
(2) 100 percent of the value of each share of stock owned by them in the event that the stock or member interest is sold; and
(3) At least 51 percent of the retained earnings of the concern and 100 percent of the unencumbered value of each share of stock or member interest owned in the event of dissolution of the corporation, partnership, or limited liability company.
(4) An eligible individual's ability to share in the profits of the concern must be commensurate with the extent of his/her ownership interest in that concern.
(h)
(i)
(i) The surviving spouse of the deceased veteran acquires such
(ii) Such veteran had a service-connected disability (as defined in 38 U.S.C. 101(16)) rated as 100 percent disabling under the laws administered by the Secretary of Veterans Affairs or such veteran died as a result of a service-connected disability; and
(iii) For a participant, immediately prior to the death of such veteran, and during the period described in paragraph (i)(2) of this section, the small business concern is included in the database described in 38 U.S.C. 8127(f).
(2) The time period described in paragraph (i)(1)(iii) of this section is the time period beginning on the date of the veteran's death and ending on the earlier of—
(i) The date on which the surviving spouse remarries;
(ii) The date on which the surviving spouse relinquishes an ownership interest in the small business concern; or
(iii) The date that is 10 years after the date of the death of the veteran.
(e)
(1) SBA will deem service-disabled veteran individuals to control the Board of Directors where:
(i) A single service-disabled veteran individual owns 100% of all voting stock of an applicant or concern;
(ii) A single service-disabled veteran individual owns at least 51% of all voting stock of an applicant or concern, the individual is on the Board of Directors and no super majority voting requirements exist for shareholders to approve corporation actions. Where super majority voting requirements are provided for in the concern's articles of incorporation, its by-laws, or by state law, the service-disabled veteran individual must own at least the percent of the voting stock needed to overcome any such super majority voting requirements; or
(iii) More than one service-disabled veteran shareholder seeks to qualify the concern (
(2) Where an applicant or concern does not meet the requirements set forth in paragraph (e)(1) of this section, the service-disabled veteran individual(s) upon whom eligibility is based must control the Board of Directors through actual numbers of voting directors or, where permitted by state law, through weighted voting (
(i) Provisions for the establishment of a quorum cannot permit non-service-disabled veteran Directors to control the Board of Directors, directly or indirectly; and
(ii) Any Executive Committee of Directors must be controlled by service-disabled veteran directors unless the Executive Committee can only make recommendations to and cannot independently exercise the authority of the Board of Directors.
(3) Non-voting, advisory, or honorary Directors may be appointed without affecting service-disabled veteran individuals' control of the Board of Directors.
(4) Arrangements regarding the structure and voting rights of the Board of Directors must comply with applicable state law.
(f)
(g)
(h)
(i)
(1) The non-service-disabled veteran individual or entity who is involved in the management or ownership of the firm is a current or former employer or a principal of a current or former employer of any service-disabled veteran individual upon whom the firm's eligibility is based. However, a firm may provide evidence to demonstrate that the relationship does not give the non-service-disabled veteran actual control over the concern and such relationship is in the best interests of the concern.
(2) One or more non-service-disabled veterans receive compensation from the firm in any form as directors, officers or employees, including dividends, that exceeds the compensation to be received by the highest-ranking officer (usually CEO or President). The highest ranking officer may elect to take a lower amount than the total compensation and distribution of profits that are received by a non-veteran only upon demonstrating that it helps the concern.
(3) In circumstances where the concern is co-located with another firm in the same or similar line of business, and that firm or an owner, director, officer, or manager, or a direct relative of an owner, director, officer, or manager of that firm owns an equity interest in the concern.
(4) In circumstances where the concern shares employees, resources, equipment, or any type of services, whether by oral or written agreement with another firm in the same or similar line of business, and that firm or an owner, director, officer, or manager, or a direct relative of an owner, director, officer, or manager of that firm owns an equity interest in the concern.
(5) A non-service-disabled veteran individual or entity, having an equity
(6) In circumstances where a critical license is held by a non-service-disabled individual, or other entity, the non-service-disabled individual or entity may be found to control the firm. A critical license is considered any license that would normally be required of firms operating in the same field or industry, regardless of whether a specific license is required on a specific contract.
(7) Business relationships exist with non-service-disabled veteran individuals or entities which cause such dependence that the applicant or concern cannot exercise independent business judgment without great economic risk.
(j)
(k)
(l)
(m)
(n)
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes. This AD was prompted by the results of a fleet survey, which revealed cracking in bulkhead frame webs at a certain body station. This AD requires repetitive inspections of the bulkhead frame web at a certain body station and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
George Garrido, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes. The NPRM published in the
We are issuing this AD to address cracking in the station 259.5 bulkhead frame web from the first stiffener above stringer S-10 to S-13. Such cracking may lead to subsequent failure of the skin and cockpit window surround structure, and could result in rapid decompression.
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.
Boeing concurred with the NPRM.
The commenter, Lynise Hogue, indicated that the reports mentioned in the Discussion section of the NPRM revealed cracking in the bulkhead frame of retired Boeing Model 737 airplanes but there was no evidence of cracking in the bulkhead frame of Boeing Model 727 airplanes, despite those airplanes having a similar frame installation. The commenter stated this posed concerns and asked how often would “. . . said repetitive inspections be conducted?”
We infer the commenter is asking about the repetitive inspections required by this AD and agree to clarify the inspection interval. As stated in paragraph (g) of this AD inspections are done at the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017, which is at intervals not to exceed 8,600 flight cycles. We have determined that these intervals and inspections are adequate to address the unsafe condition. This AD has not been changed in this regard.
The commenter, Lynise Hogue, inquired if the unsafe product was confined to a certain batch or if it is an overall poor product. The commenter further questioned that if it is indeed an overall poor product, what measures other than an annual inspection are being taken to prevent cracking in additional bulkhead frames.
We agree to clarify. Airplane maintenance and inspection programs include many types of inspections, which are designed to detect and address potential unsafe conditions. However, when those inspections are not adequate to prevent an unsafe condition, we issue an AD to address the identified unsafe condition, such as this one. We are currently not planning additional rulemaking on other bulkhead frames. However, as we obtain and analyze additional data, we might consider further rulemaking. This AD has not been changed in this regard.
The commenter, Lynise Hogue, requested that we change the applicability to all Boeing airplanes because the proposed AD addresses “an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.” The commenter provided no further justification for the request.
We do not agree with the commenter's request to change the applicability of this AD. The commenter has not provided any additional data, views, or arguments to support this request. Furthermore, such a change would expand the scope of this AD and therefore require additional public review and delay issuance of this final rule. This AD applies only to those airplanes affected by the identified unsafe condition. We are currently not planning additional rulemaking for other airplanes. However, as we obtain and analyze additional data, we might consider further rulemaking. We have not changed this AD in this regard.
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.
We reviewed Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017. The service information describes procedures for repetitive high frequency eddy current inspections and low frequency eddy current inspections for cracks of the station 259.5 bulkhead frame web from the first stiffener above S-10 to S-13, on the left and right sides of the airplane, and applicable on-condition actions. 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 106 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness
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 November 2, 2018.
None.
This AD applies to all The Boeing Company Model 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by the results of a fleet survey, which revealed cracking in bulkhead frame webs at a certain body station. We are issuing this AD to address cracking in the station 259.5 bulkhead frame web from the first stiffener above stringer S-10 to S-13. Such cracking may lead to subsequent failure of the skin and cockpit window surround structure, and could result in rapid decompression.
Comply with this AD within the compliance times specified, unless already done.
Except as required by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017.
Note 1 to paragraph (g) of this AD: Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 727-53A0235, dated October 12, 2017, which is referred to in Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017, uses the phrase “the original issue date of Requirements Bulletin 727-53A0235 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017, specifies contacting Boeing, this AD requires repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), may be issued to operate the airplane to a location where the requirements of this AD can be accomplished, but concurrence by the Manager, Los Angeles ACO Branch, FAA, is required before issuance of the special flight permit.
(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 (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact George Garrido, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(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; request for comments.
We are adopting a new airworthiness directive (AD) for all Gulfstream Aerospace Corporation (Gulfstream) Model GVI airplanes. This AD requires revising the Normal and Abnormal Procedures sections of the airplane flight manual (AFM). This AD was prompted by potential failure of the bi-directional data bus that sends and receives critical signals between the flight control computer (FCC) and the flight control surfaces. We are issuing this AD to address the unsafe condition on these products.
This AD is effective October 15, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 15, 2018.
We must receive comments on this AD by November 13, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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•
•
•
For service information identified in this final rule, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone: 800-810-4853; fax: 912-965-3520; email:
You may examine the AD docket on the internet at
Myles Jalalian, Aerospace Engineer, Systems and Equipment Section, AIR-7A3, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5572; fax: 404-474-5606; email:
On Gulfstream Model GVI airplanes, the FCC and the remote electronics unit (REU) communicate with each other by means of bi-directional data buses, referred to as BD429. Gulfstream notified us that loss of bi-directional (Transmit/Receive) BD429 communication, due to wire/connector failures, between the REU and the FCC would result in the display of a cyan “FCS MAINTENANCE REQUIRED” advisory message on the crew alerting system (CAS). Because this cyan advisory message does not directly indicate that BD429 communication has failed, the aircraft can be dispatched with this advisory message. The Model GVI system depends on the BD429 bus to assure signal transmission to address a linear variable differential transformer (LVDT) disconnect monitor and/or surface oscillatory monitor event.
During recent developmental testing, Gulfstream discovered that certain BD429 failures prevent the shutdown of a flight control surface that would normally occur during an oscillatory or LVDT disconnect event. The only indication of the failure is a cyan “FCS MAINTENANCE REQUIRED” advisory message on the CAS.
If the FCC cannot receive information from the REU that a particular flight control surface had an event, then the FCC cannot issue a command to place that particular flight control surface into standby/damped bypass mode. The REU will still receive flight control commands from the FCC via the secondary (receive only) bus; however, because the secondary bus is receive-only for certain REUs, the FCC will no longer receive REU data needed for the LVDT disconnect monitor and/or surface oscillatory monitor for the impacted flight control surface.
This condition (results in a cyan CAS message, but does not indicate the exact reason) can remain latent for up to one year. To date, there have been no known events or failures of the BD429 communications bus wiring or connectors in the field. However, the Gulfstream GVI fleet has experienced multiple in-flight flight control events requiring a standby command sent over the BD429 bus to keep the airplane safe. Since the GVI system uses these monitors to mitigate potentially unsafe failure modes, dispatch with their loss leaves the aircraft one failure away from a potential loss of control event.
This condition, if not addressed, could result in the FCC's inability to identify when a problematic flight control surface needs to be damped, which could result in loss of control of the airplane.
We reviewed Gulfstream Aerospace G650 AFM Supplement No. G650-2018-01, dated August 14, 2018; and Gulfstream Aerospace G650ER AFM Supplement No. G650ER-2018-01, dated August 14, 2018. For each applicable airplane configuration, the AFM supplement provides instructions and warnings to the Normal Procedures and Abnormal Procedures section of the AFM for the pilot to follow if a cyan “FCS MAINTENANCE REQUIRED” CAS message displays with the airplane on the ground or in flight. 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 are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires revising the Normal and Abnormal Procedures sections of the AFM by adding instructions and warnings for the pilot if a cyan “FCS MAINTENANCE REQUIRED” CAS message displays with the airplane on the ground or in flight.
We consider this AD interim action. Gulfstream is analyzing the failures and working to develop a terminating action that will address the unsafe condition identified in this AD. Once this action is developed, approved, and available, we might consider additional rulemaking.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the inability of the FCC to send a standby command when the BD429 bus is in a failed state could leave the airplane with only one level of protection from a catastrophic flight control failure. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 213 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 appliances to the Director of the Policy and Innovation Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 15, 2018.
None.
This AD applies to Gulfstream Aerospace Corporation Model GVI airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 27, Flight Controls.
This AD was prompted by the potential for an un-annunciated failure of the bi-directional data bus that sends critical signals from the flight control computer to the flight controls. This unsafe condition, if not addressed, could result in the flight control computer's inability to identify when a problematic flight control surface needs to be damped, which could result in loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after October 15, 2018 (the effective date of this AD), revise the Normal Procedures and Abnormal Procedures sections of the airplane flight manual by adding the information in Gulfstream Aerospace G650 Airplane Flight Manual Supplement No. G650-2018-01, dated August 14, 2018; or Gulfstream Aerospace G650ER Airplane Flight Manual Supplement No. G650ER-2018-01, dated August 14, 2018; as applicable to the model configuration of your airplane.
(1) The Manager, Atlanta 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 (i) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Myles Jalalian, Aerospace Engineer, Systems and Equipment Section, AIR-7A3, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5572; fax: 404-474-5606; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Gulfstream Aerospace G650 Airplane Flight Manual, Supplement No. G650-2018-01, dated August 14, 2018.
(ii) Gulfstream Aerospace G650ER Airplane Flight Manual, Supplement No. G650ER-2018-01, dated August 14, 2018.
(3) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone: 800-810-4853; fax: 912-965-3520; 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.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding Airworthiness Directive (AD) 98-18-24, which applied to certain Airbus SAS Model A320 series airplanes. AD 98-18-24 required repetitive inspections to detect cracking in the inner flange of a certain door frame, and corrective actions, if necessary. AD 98-18-24 also provided an optional terminating action for the repetitive inspections. This AD continues to require the repetitive inspections of the inner flange of a certain door frame, with reduced repetitive inspection intervals, and corrective action if necessary. This AD was prompted by a report of cracks on the inner flange of a certain door frame, and by the results of a full scale fatigue test that indicated the intervals for the repetitive inspections required by AD 98-18-24 must be reduced. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EIAS, 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
Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA; 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 98-18-24, Amendment 39-10740 (63 FR 49272, September 15, 1998) (“AD 98-18-24”). AD 98-18-24 applied to certain Airbus SAS Model A320 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 2017-0128, dated July 24, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A320-211 and A320-231 airplanes. The MCAI states:
During fatigue test on simulated flights, cracks developed on the inner flange of door frame 66 at stringer 18 and 20 positions. These cracks were located in the gusset plate attachment holes and were hidden by the plates.
This condition, if not detected and corrected, could affect the structural integrity of the fuselage.
To address this potential unsafe condition, Airbus issued Service Bulletin (SB) A320-53-1071, later revised, to provide instructions to inspect and repair the gusset plate attachment holes at frame 66, at stringers 18, 20 and 22 both left hand (LH) and right hand (RH) side of the fuselage (hereafter collectively referred to as “the attachment holes” in this [EASA] AD), and [Airbus] SB A320-53-1072, providing instructions for reworking of the attachment holes.
Consequently, DGAC France issued [French] AD 1996-234-087, later revised [which corresponds to FAA AD 98-18-24], requiring repetitive inspections and, depending on findings, repair of the attachment holes, and including reference to a reworking procedure, which constitutes optional terminating action for the repetitive inspections of the attachment holes.
Since that [French] AD was issued, based on results from a full scale fatigue test, it was determined that the inspection intervals must be reduced. Airbus issued SB A320-53-1071 Revision 03, modifying the inspection threshold and intervals, and not changing the inspection instructions.
For the reason described above, this [EASA] AD retains the requirement of DGAC France AD 1996-234-087 R1, which is superseded, and requires reduction of the repetitive inspection interval.
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 received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this 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 has issued Service Bulletin A320-53-1071, Revision 03, dated July 20, 2017. This service information describes procedures for detailed inspections of the gusset plate attachment holes at door frame 66 for cracking and corrective action.
Airbus also issued Service Bulletin A320-53-1072, Revision 02, dated May 5, 2016. This service information describes procedures for modification of the gusset frame attachment at door frame 66.
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 3 airplanes of U.S. registry.
The actions required by AD 98-18-24, and retained in this AD, take about 8 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 98-18-24 is $680 per product.
We estimate that it would take about 19 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,845, or $1,615 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
In addition, we estimate that the optional terminating action would take about 20 work-hours per product, at an average labor rate of $85 per work-hour. Required parts costs would be about $60. Based on these figures, the estimated cost of the optional terminating action would be $1,760 per product.
We also estimate that it would take about 1 work-hour per product to comply with the proposed reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of reporting the inspection results on U.S. operators to be $255, or $85 per product.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.
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
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 2, 2018.
This AD replaces AD 98-18-24, Amendment 39-10740 (63 FR 49272, September 15, 1998) (“AD 98-18-24”).
This AD applies to Airbus SAS Model A320-211 and Model A320-231 airplanes, certificated in any category, serial numbers 0029, 0045, 0046, 0049 through 0057 inclusive, 0059, 0064, and 0065.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report of cracks on the inner flange of door frame 66 at stringer positions 18 and 20, and by the results of a full scale fatigue test that indicated the intervals for the repetitive inspections required by AD 98-18-24 must be reduced. We are issuing this AD to address fatigue cracking in the inner flange of door frame 66, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (a) of AD 98-18-24, with no changes. For Model A320 series airplanes on which Airbus Modification 21778 (reference Airbus Service Bulletin A320-53-1072, dated November 7, 1995, as revised by Change Notice 0A, dated July 5, 1996) has not been accomplished: Prior to the accumulation of 20,000 total flight cycles, or within 1 year after October 20, 1998 (the effective date of AD 98-18-24), whichever occurs later: Perform a rotating probe eddy current inspection to detect cracking around the edges of the gusset plate attachment holes of the inner flange of door frame 66, left and right, at stringer positions P18, P20, and P22, in accordance with Airbus Service Bulletin A320-53-1071, dated November 7, 1995, as revised by Change Notice 0A, dated July 5, 1996. If any crack is detected, prior to further flight, repair in accordance with a method approved by the Manager, International Section, Transport Standards Branch, FAA. Repeat the inspection thereafter at intervals not to exceed 20,000 flight cycles.
This paragraph restates the optional terminating action of paragraph (b) of AD 98-18-24, with no changes. Modification of the gusset plate attachment holes of the inner flange of door frame 66, left and right (Airbus Modification 21778), in accordance with Airbus Service Bulletin A320-53-1072, dated November 7, 1995, as revised by Change Notice 0A, dated July 5, 1996, constitutes terminating action for the repetitive inspection requirements of paragraph (g) of this AD.
At the applicable compliance time specified in figure 1 to paragraph (i) of this AD, do a rotating probe eddy current inspection to detect cracking around the edges of the gusset plate attachment holes of the inner flange of door frame 66, left and right, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1071, Revision 03, dated July 20, 2017. Repeat the inspection thereafter at intervals not to exceed 10,900 flight cycles.
(1) If, during any inspection required by paragraph (i) of this AD, any crack is found on a gusset plate attachment hole: Before further flight, repair the affected attachment hole, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1071, Revision 03, dated July 20, 2017, except as required by paragraph (n) of this AD.
(2) If, during any inspection required by paragraph (i) of this AD, any crack is found on any other hole of the gusset plate: Before further flight, contact the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA); for approved repair instructions and accomplish those instructions accordingly. If approved by the DOA, the approval must include the DOA-authorized signature.
(1) Repair of a gusset plate attachment hole area as required by paragraph (j)(1) of this AD terminates the repetitive inspections required by paragraph (i) of this AD for that attachment hole area on that airplane only.
(2) Repair of any other hole of the gusset plate, as required by paragraph (j)(2) of this AD, does not terminate the repetitive inspections required by paragraph (i) of this AD for that airplane, unless specified otherwise in the repair instructions provided by the Manager, International Section, Transport Standards Branch, FAA; or the EASA; or Airbus's EASA DOA.
(3) Accomplishing the initial inspection required by paragraph (i) of this AD terminates the inspections required by paragraph (g) of this AD.
Modification of the gusset plate attachment holes of the inner flange of door frame 66, left and right, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1072, Revision 02, dated May 5, 2016, terminates the repetitive inspections required by paragraph (i) of this AD for that airplane.
Report the results of the inspection required by paragraph (i) of this AD that are done on or after the effective date of this AD to Airbus Service Bulletin Reporting Online Application on Airbus World (
Where Airbus Service Bulletin A320-53-1071, Revision 03, dated July 20, 2017, specifies to contact Airbus for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, accomplish corrective actions in accordance with the procedures specified in paragraph (q)(2) of this AD.
(1) This paragraph provides credit for actions required by paragraph (i) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-53-1071, Revision 01, dated July 4, 2002; or Airbus Service Bulletin A320-53-1071, Revision 02, dated May 5, 2016.
(2) This paragraph provides credit for actions identified in paragraph (l) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-53-1072, dated November 7, 1995, as revised by Change Notice 0A, dated July 5, 1996; or Airbus Service Bulletin A320-53-1072, Revision 01, dated July 4, 2002.
A federal agency may not conduct or sponsor, and a person is not required to
(i) 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.
(ii) AMOCs approved previously for AD 98-18-24 are approved as AMOCs for the corresponding provisions of this AD.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0128, dated July 24, 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 Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA; 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (s)(3) and (s)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A320-53-1071, Revision 03, dated July 20, 2017.
(ii) Airbus Service Bulletin A320-53-1072, Revision 02, dated May 5, 2016.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EIAS, 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 Dassault Aviation Model FALCON 2000 airplanes. This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This AD requires revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would
We are issuing this AD to prevent reduced 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 2017-0236, dated November 30, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000 airplanes. The MCAI states:
The airworthiness limitations for Dassault Falcon 2000 aeroplanes, which are approved by EASA, are currently defined and published in Aircraft Maintenance Manual (AMM) Airworthiness Limitations Section (ALS) Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition [
EASA previously issued [EASA] AD 2012-0156 [which corresponds to FAA AD 2014-03-12, Amendment 39-17749 (79 FR 11693, March 3, 2014) (“AD 2014-03-12”)], requiring the actions described in Dassault Falcon 2000 AMM Chapter 5-40 (DGT 113876) at Revision 17.
Since that [EASA] AD was issued, Dassault published Revision 18 of Dassault Falcon 2000 AMM Chapter 5-40 (DGT 113876), containing new and/or more restrictive maintenance tasks and introducing (among other changes) the Corrosion Prevention and Control Programme.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2012-0156, which is superseded, and requires accomplishment of the actions specified in Dassault Falcon 2000 AMM Chapter 5-40 (DGT 113876) at Revision 18 * * * .
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 received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this 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.
Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual. This service information describes instructions applicable to airworthiness and safe life limitations. 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 195 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 November 2, 2018.
This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (“AD 2010-26-05”); and AD 2014-03-12, Amendment 39-17749 (79 FR 11693, March 3, 2014) (“AD 2014-03-12”).
This AD applies to all Dassault Aviation Model FALCON 2000 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by manufacturer revisions to the airplane maintenance manual (AMM) that introduce new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to prevent reduced 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 information specified in Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual. The initial compliance times for doing the tasks are at the time specified in Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual, or within 90 days after the effective date of this AD, whichever occurs later; except as required by paragraphs (g)(1) through (g)(3) of this AD. The term “LDG” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual, means total airplane landings. The term “FH” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual, means total flight hours. The term “FC” in the “First Inspection” column of any table in Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual, means total flight cycles.
(1) For Task 30-11-09-350-801 identified in the service information specified in the introductory text of paragraph (g) of this AD, the initial compliance time is the later of the times specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD.
(i) At the earlier of the times specified in paragraphs (g)(1)(i)(A) and (g)(1)(i)(B) of this AD.
(A) Prior to the accumulation of 2,400 total flight hours or 2,000 total flight cycles, whichever occurs first.
(B) Within 2,400 flight hours or 2,000 flight cycles after April 7, 2014 (the effective date of AD 2014-03-12), whichever occurs first.
(ii) Within 30 days after April 7, 2014 (the effective date of AD 2014-03-12).
(2) For Task 52-20-00-610-801-01 identified in the service information specified in the introductory text of paragraph (g) of this AD, the initial compliance time is within 24 months after April 7, 2014 (the effective date of AD 2014-03-12).
(3) The limited service life of part number F2MA721512100 is 3,750 total flight cycles on the part or 6 years since the manufacturing date of the part, whichever occurs first.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) Accomplishing the actions required by this AD terminates all of the requirements of AD 2014-03-12.
(2) Accomplishing the actions required by paragraph (g) of this AD terminates the requirements of paragraph (g) of AD 2010-26-05 for all Dassault Aviation Model FALCON 2000 airplanes.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0236, dated November 30, 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 Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(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) Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual.
(ii) Reserved.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
(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 all The Boeing Company Model 707, 720, and 720B series airplanes. This AD was prompted by a report indicating that a fracture of the midspar fitting resulted in the separation of the inboard strut and engine from the airplane, and a determination that existing inspections are not sufficient for timely detection of cracking. This AD requires repetitive inspections of certain nacelle strut spar and overwing fittings, and diagonal braces and associated fittings; replacement of the diagonal brace assembly on certain airplanes; and applicable related investigative and corrective actions. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Jeffrey Chang, Aerospace Engineer, Propulsion Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5263; fax: 562-627-5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 707, 720, and 720B series airplanes. The NPRM published in the
We are issuing this AD to address cracks, which if not detected and corrected, could grow beyond a critical length, allowing the strut fitting to fail and reducing the structural integrity of the nacelle. This, in combination with damage to adjacent attachment structure, could result in the loss of an engine from the airplane.
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.
Boeing requested that we revise paragraph (k) of the proposed AD to specify outboard diagonal brace end fitting (forward or aft) attach holes that have been oversized as specified in Boeing 707 Alert Service Bulletin A3364, “Revision 3, dated May 29, 1981,” rather than “Revision 4, dated February 21, 2017.” Boeing noted that Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017, does not contain instructions for oversizing the attach holes, but instead refers to oversizing done as specified in Revision 3. Boeing added that, as written, the proposed AD would not require operators to replace a diagonal brace assembly with attach holes that were oversized as specified in Boeing 707 Alert Service Bulletin A3364, Revision 3, dated May 29, 1981, potentially allowing an unsafe condition to continue.
We agree with the commenter's request. We have revised paragraph (k) of this AD to specify “. . . outboard diagonal brace end fitting (forward or aft) attach holes have been oversized as specified in Boeing 707 Alert Service Bulletin A3364, Revision 3, dated May 29, 1981.”
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We reviewed the following service information.
• Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017. This service information describes procedures for repetitive detailed inspections of the diagonal brace tube for any crack; repetitive detailed inspections and high frequency eddy current (HFEC) inspections of the nacelle strut diagonal brace end fittings, forward mating fitting, and aft mating
• Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017. This service information describes procedures for repetitive detailed, HFEC, and ultrasonic inspections of the overwing support fittings for any crack at the bolt hole forward of the wing front spar and at the holes for the four fasteners attaching the fitting to the spar, and related investigative and corrective actions.
• Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016. This service information describes procedures for repetitive detailed and surface HFEC inspections of the front spar fittings at nacelle struts numbers 1, 2, 3, and 4 for cracks, and replacement of cracked front spar fittings.
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 65 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We estimate that any necessary replacement of affected fittings would take about 96 work-hours for a cost of $8,160 per fitting. We have received no definitive data on the parts costs of the affected fittings. We have no way of determining the number of aircraft that might need this replacement.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under 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 November 2, 2018.
This AD affects AD 82-24-03, Amendment 39-4496 (47 FR 51099, November 12, 1982) (“AD 82-24-03”) and AD 2005-08-15, Amendment 39-14067 (70 FR 21136, April 25, 2005) (“AD 2005-08-15”).
This AD applies to all The Boeing Company Model 707-100 Long Body, -200, -100B Long Body, and -100B Short Body series airplanes; Model 707-300, -300B, -300C, and -400 series airplanes; and Model 720 and 720B series airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
This AD was prompted by a report indicating that a fracture of the midspar fitting resulted in the separation of the
Comply with this AD within the compliance times specified, unless already done.
Prior to the accumulation of 3,500 total flight hours; within 700 flight hours after the most recent inspection specified in Boeing 707 Alert Service Bulletin A3514, dated July 29, 2004, was done; or within three months after the effective date of this AD; whichever occurs later: Do a detailed inspection for cracking of the front spar fittings at nacelle struts numbers 1, 2, 3, and 4, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016. If any cracking is found, before further flight, replace the affected fitting, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016. Repeat the inspections thereafter at intervals not to exceed 700 flight hours.
Within 1,500 flight cycles or 48 months after the most recent detailed inspection required by paragraph (g) of this AD was done, whichever occurs first, do a surface HFEC inspection for cracking of the aft lugs on the front spar fittings at nacelle struts numbers 1, 2, 3, and 4, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016, except as required by paragraph (l)(4) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection thereafter at intervals not to exceed 1,500 flight cycles or 48 months, whichever occurs first.
At the times specified in paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017, except as required by paragraph (l)(1) of this AD: Do the inspections specified in paragraphs (i)(1) through (i)(3) of this AD and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017, except as required by paragraph (l)(3) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017.
(1) Do a detailed inspection for any crack at all five holes in the overwing support fitting, and at the flange radii.
(2) Do the inspection specified in paragraph (i)(2)(i) or (i)(2)(ii) of this AD.
(i) Do a surface HFEC inspection for any crack in the overwing support fitting around the hole immediately forward of the spar chord, with the bolt in place, and at the flange radii.
(ii) Do an open hole HFEC inspection for any crack in the overwing support fitting at the hole immediately forward of the spar chord.
(3) Do the inspection specified in paragraph (i)(3)(i) or (i)(3)(ii) of this AD.
(i) Do an ultrasonic inspection for any crack in the overwing support fitting around the four holes common to the fitting and the spar chord, with the bolts in place.
(ii) Do a surface HFEC inspection for any crack in the overwing support fitting around the four holes common to the fitting and the spar chord, with the bolts in place.
For airplanes with nacelle strut diagonal braces and associated fittings which have accumulated 7,500 flight cycles or more: At the applicable times specified in paragraph 1.E., “Compliance” of Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017, except as required by paragraph (l)(2) of this AD, do the inspections specified in paragraphs (j)(1) through (j)(3) of this AD. Repeat the inspections thereafter at the applicable intervals specified in tables 1, 2, 3, and 4 of paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017. If any crack is found during any inspection required by this paragraph, before further flight, do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017, except as required by paragraph (l)(3) of this AD.
(1) Do a detailed inspection of the nacelle strut diagonal brace end fittings, diagonal brace tube, forward mating fitting, and aft mating fitting for any crack.
(2) Do HFEC inspections of the nacelle strut diagonal brace end fittings, forward mating fitting, and aft mating fitting for any crack. As an alternative for the aft mating fitting, do a dye penetrant inspection of vertical webs on aft mating fitting for any crack.
(3) Do an HFEC inspection of the diagonal brace tube for any crack.
For Group 3, 4, and 6 airplanes as identified in Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017, on which the outboard diagonal brace end fitting (forward or aft) attach holes have been oversized as specified in Boeing 707 Alert Service Bulletin A3364, Revision 3, dated May 29, 1981: Within 1,000 flight cycles after the effective date of this AD, replace the diagonal brace assembly, in accordance with Figure 3 of Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017, uses the phrase “the Revision 3 date of this service bulletin,” this AD requires using “the effective date of this AD.”
(2) For purposes of determining compliance with the requirements of this AD: Where Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017, uses the phrase “the Revision 4 date of this service bulletin,” this AD requires using “the effective date of this AD.”
(3) Where Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017; and Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017; specify contacting Boeing: This AD requires repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD.
(4) Where Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016, specifies contacting Boeing for replacement instructions: This AD requires replacement using a method approved in accordance with the procedures specified in paragraph (o) of this AD.
(1) Accomplishing the initial inspections required by paragraph (j) of this AD terminates all requirements of AD 82-24-03.
(2) Accomplishing the initial inspections required by paragraph (g) of this AD, terminates all requirements of AD 2005-08-15.
As of the effective date of this AD, no person may install, on any airplane, a front spar fitting having a part number other than the part numbers specified in paragraph 2.C.2. of Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016.
(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(s) identified in paragraph (p)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, replacement, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, replacement deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Jeffrey Chang, Aerospace Engineer, Propulsion Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5263; fax: 562-627-5210; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (q)(3) and (q)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017.
(ii) Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017.
(iii) Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(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 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 November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; phone: +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; phone 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 A310 series airplanes. The NPRM published in the
We are issuing this AD to address prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity 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 2017-0206, 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 Model A310 series airplanes. The MCAI states:
The airworthiness limitations for the Airbus A310 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A310 Airworthiness Limitations Section (ALS) documents. The Damage Tolerant Airworthiness Limitation Items are specified in the A310 ALS Part 2. 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 2016-0217 [which corresponds to FAA AD 2017-21-08, Amendment 39-19079 (82 FR 48904, October 23, 2017) (“AD 2017-21-08”)] to require compliance with the maintenance requirements and associated airworthiness limitations defined in Airbus A310 ALS Part 2 Revision 01, Variation 1.1 and Variation 1.2.
Since that [EASA] AD was issued, new or more restrictive maintenance requirements and associated airworthiness limitations
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0217, which is superseded, and requires accomplishment of the actions specified in Airbus A310 ALS Part 2 Revision 02.
The unsafe condition is fatigue cracking, damage, or corrosion 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. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this 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 A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT-ALIs. 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 6 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 November 2, 2018.
This AD affects AD 2017-21-08, Amendment 39-19079 (82 FR 48904, October 23, 2017) (“AD 2017-21-08”).
This AD applies to Airbus SAS 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 cracking, damage, or corrosion 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 information specified in Airbus A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness
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 2017-21-08.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0206, 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; phone 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 A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; phone: +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 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 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 November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 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
We are issuing this AD to prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity 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 EASA AD 2017-0205, 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). The MCAI states:
The airworthiness limitations for the Airbus A300-600 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A300-600 Airworthiness Limitations Section (ALS) documents. The Damage Tolerant Airworthiness Limitation Items are specified in the A300-600 ALS Part 2. 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 2016-0218 [which corresponds to FAA AD 2018-01-07, Amendment 39-19148 (83 FR 2042, January 16, 2018) (“AD 2018-01-07”)] to require compliance with the maintenance requirements and associated airworthiness limitations defined in Airbus A300-600 ALS Part 2 Revision 01, Variation 1.1 and Variation 1.2.
Since that [EASA] AD was issued, new or more restrictive maintenance requirements and airworthiness limitations were approved by the EASA. Consequently, Airbus published Revision 02 of the A300-600 ALS Part 2, compiling all ALS Part 2 changes approved since previous Revision 01.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0218, which is superseded, and requires accomplishment of the actions specified in Airbus A300-600 ALS Part 2 Revision 02.
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.
United Parcel Service (UPS) requested that we provide approval for alternative methods of compliance (AMOCs) that were previously approved for AD 2013-13-13, Amendment 39-17501 (79 FR 48957, August 19, 2014) (“AD 2013-13-13”); and AD 2018-01-07, Amendment 39-19148 (83 FR 2042, January 16, 2018) (“AD 2018-01-07”).
We agree that AMOCs previously approved for AD 2018-01-07 and AD 2013-13-13 should be approved for this AD. The FAA has reviewed the related AMOCs, and it is acceptable to give credit for previous AMOCs approved for AD 2018-01-07, which will be terminated by this AD. AD 2018-01-07 approved the use of AMOCs for AD 2013-13-13, and those AMOCs remain in force. As a result, we have revised paragraph (j)(1) of this AD accordingly.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule with the change described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
Airbus SAS has issued A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT-ALIs. 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 issuing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This AD requires revisions to certain operator maintenance documents to include new actions (
The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus SAS maintenance documentation. However, this AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this AD.
We estimate that this AD affects 125 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
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 November 2, 2018.
This AD affects AD 2018-01-07, Amendment 39-19148 (83 FR 2042, January 16, 2018) (“AD 2018-01-07”).
This AD applies to Airbus SAS Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R Variant F 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 more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to address fatigue cracking, damage, and corrosion 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 information specified in Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. The initial compliance times for doing the tasks are at the applicable times specified in Airbus A300-600 ALS, Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017, 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 2018-01-07.
The following provisions also apply to this AD:
(1)
(i) 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.
(ii) AMOCs approved previously for AD 2018-01-07 are approved as AMOCs for the corresponding provisions of this AD.
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0205, 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 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. This AD was prompted by reports of bushing migration and loss of nut torque on the engine pylon lower inboard and outboard link fittings. This AD requires modification of the attaching parts of the left-hand (LH) and right-hand (RH) pylon lower link fittings, inboard and outboard positions. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brazil; phone: +55 12 3927-5852 or +55 12 3309-0732; fax: +55 12 3927-7546; email:
You may examine the AD docket on the internet at
Krista Greer, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3221.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. The NPRM published in the
We are issuing this AD to address loss of integrity of the engine pylon lower link fittings, possibly resulting in separation of the engine from the wing.
Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian AD 2017-04-01, effective April 25, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. The MCAI states:
This [Brazilian] AD was prompted by reports of bushing migration and loss of nut torque on the engine pylon lower inboard and outboard link fittings. We are issuing this [Brazilian] AD to prevent loss of integrity of the engine pylon lower link fittings, which could result in separation of the engine from the wing.
This [Brazilian] AD requires modifications of the attaching parts of the left handle (LH) and right handle (RH) pylon lower link fittings, inboard and outboard positions.
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. The Air Line Pilots Association, International (ALPA) stated that it supported the intent of the NPRM.
We reviewed the relevant data, considered the comment 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.
Embraer S.A. has issued Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017; and Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018. The service information describes procedures for modification of the attaching parts of the LH and RH pylon lower link fittings, inboard and outboard positions. 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 85 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD 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 November 2, 2018.
This AD affects AD 2014-16-16, Amendment 39-17940 (79 FR 48018, August 15, 2014) (“AD 2014-16-16”).
This AD applies to the Embraer S.A. airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Model ERJ 190-100 STD, -100 LR, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes; as identified in Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017.
(2) Model ERJ 190-100 ECJ airplanes as identified in Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018.
Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
This AD was prompted by reports of bushing migration and loss of nut torque on the engine pylon lower inboard and outboard link fittings. We are issuing this AD to prevent loss of integrity of the engine pylon lower link fittings, possibly resulting in separation of the engine from the wing.
Comply with this AD within the compliance times specified, unless already done.
(1) Group 1 airplanes are defined as: Serial numbers 19000002, 19000004, 19000006 through 19000108 inclusive, 19000110 through 19000139 inclusive, 19000141 through 19000158 inclusive, 19000160 through 19000176 inclusive, 19000178 through 19000202 inclusive, 19000204 through 19000224 inclusive, 19000226 through 19000235 inclusive, 19000237 through 19000242 inclusive, 19000244 through 19000260 inclusive, 19000262 through 19000277 inclusive, 19000279 through 19000295 inclusive, 19000297 through 19000306 inclusive, 19000308 through 19000316 inclusive, 19000318 through 19000361 inclusive, 19000363 through 19000437 inclusive, 19000439 through 19000452 inclusive, 19000454 through 19000466 inclusive, 19000468 through 19000525 inclusive, 19000527 through 19000533 inclusive, 19000535 through 19000558 inclusive, 19000560 through 19000570 inclusive, 19000572 through 19000610 inclusive, 19000612 through 19000631 inclusive, and 19000633 through 19000636 inclusive.
(2) Group 2 airplanes are defined as: Serial numbers 19000637 through 19000640 inclusive, 19000642 through 19000655 inclusive, 19000657 through 19000682 inclusive, 19000684 through 19000686 inclusive, 19000688, 19000689, and 19000692 through 19000694 inclusive.
(1) For Group 1 airplanes as identified in paragraph (g)(1) of this AD: Within 15,000 flight hours or 48 months after the effective date of this AD, whichever occurs later, replace the plain bushings of the lower inboard and outboard link fittings, install the lock washers with the L-profile on the fuse pin's head side, and replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART I” of the Accomplishment Instructions of Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017.
(2) For Group 2 airplanes as identified in paragraph (g)(2) of this AD: Within 15,000 flight hours or 48 months after the effective date of this AD, whichever occurs later, replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART I” of the Accomplishment Instructions of Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017.
(3) For airplanes identified as Group 1 in Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018: Within 48 months after the effective date of this AD, replace the plain bushings of the lower inboard and outboard link fittings, install the lock washers with the L-profile on the fuse pin's head side, and replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART I” of the Accomplishment Instructions of Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018.
(4) For airplanes identified as Group 2 in Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018: Within 48 months after the effective date of this AD, replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART I” of the Accomplishment Instructions of Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018.
(1) For Group 1 airplanes as identified in paragraph (g)(1) of this AD: Within 15,000 flight hours or 48 months after the effective date of this AD, whichever occurs later, replace the plain bushings of the lower inboard and outboard link fittings, install the lock washers with the L-profile on the fuse pin's head side, and replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART II” of the Accomplishment Instructions of Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017.
(2) For Group 2 airplanes as identified in paragraph (g)(2) of this AD: Within 15,000 flight hours or 48 months after the effective date of this AD, whichever occurs later, replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART II” of the Accomplishment Instructions of Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017.
(3) For airplanes identified as Group 1 in Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018: Within 48 months after the effective date of this AD, replace the plain bushings of the lower inboard and outboard link fittings, install the lock washers with the L-profile on the fuse pin's head side, and replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART II” of the Accomplishment Instructions of Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018.
(4) For airplanes identified as Group 2 in Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018: Within 48 months after the effective date of this AD, replace the internal shear pin of the fuse pins with new ones having larger head diameter, in accordance with “PART II” of the Accomplishment Instructions of Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018.
(1) Accomplishing the actions required by paragraph (h)(1) or (h)(2) of this AD, as applicable, terminates the requirements of paragraphs (g)(1), (h)(1), and (i)(1) of AD 2014-16-16 for that LH pylon lower link fitting.
(2) Accomplishing the actions required by paragraph (h)(3) or (h)(4) of this AD, as applicable, terminates the requirements of paragraphs (g)(2), (h)(2), and (i)(2) of AD 2014-16-16 for that LH pylon lower link fitting.
(3) Accomplishing the actions required by paragraph (i)(1) or (i)(2) of this AD, as applicable, terminates the requirements of paragraphs (g)(1), (h)(1), and (i)(1) of AD 2014-16-16 for that RH pylon lower link fitting.
(4) Accomplishing the actions required by paragraph (i)(3) or (i)(4) of this AD, as applicable, terminates the requirements of paragraphs (g)(2), (h)(2), and (i)(2) of AD 2014-16-16 for that RH pylon lower link fitting.
(1) This paragraph provides credit for actions required by paragraphs (h)(1), (h)(2), (i)(1), and (i)(2) of this AD, if those actions were performed before the effective date of this AD using Embraer Service Bulletin 190-54-0016, dated September 22, 2015; Embraer Service Bulletin 190-54-0016, Revision 01, dated January 18, 2016; Embraer Service Bulletin 190-54-0016, Revision 02, dated September 12, 2016; or Embraer Service Bulletin 190-54-0016, Revision 03, dated May 18, 2017.
(2) This paragraph provides credit for actions required by paragraphs (h)(3), (h)(4), (i)(3), and (i)(4) of this AD, if those actions were performed before the effective date of this AD using Embraer Service Bulletin 190LIN-54-0008, dated October 2, 2015; or Embraer Service Bulletin 190LIN-54-0008, Revision 01, dated April 13, 2017.
The following provisions also apply to this AD:
(1)
(2)
(3)
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Brazilian AD 2017-04-01, effective April 25, 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 Krista Greer, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3221.
(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) Embraer Service Bulletin 190-54-0016, Revision 04, dated December 7, 2017.
(ii) Embraer Service Bulletin 190LIN-54-0008, Revision 02, dated May 9, 2018.
(3) For service information identified in this AD, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brazil; phone: +55 12 3927-5852 or +55 12 3309-0732; fax: +55 12 3927-7546; 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 BAE Systems (Operations) Limited Model 4101 airplanes. This AD was prompted by a report of an improperly installed spacer around the electrical pins in the cartridge connector for the fire bottle extinguisher cartridge. This AD requires repetitive inspections for excessive or missing spacers, and applicable corrective actions. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 2, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 2, 2018.
For service information identified in this final rule, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email
You may examine the AD docket on the internet at
Todd Thompson, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3228.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all BAE Systems (Operations) Limited Model 4101 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 2017-0212, dated October 25, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all BAE Systems (Operations) Limited Model 4101 airplanes. The MCAI states:
During scheduled maintenance (fire bottle extinguisher cartridge resistance check) it was noted that on the extinguisher cartridge, the blue spacer around the electrical pins appeared to be located too far forward. It was discovered that, inadvertently, an additional spacer (possibly from a previous extinguisher cartridge) was located in the extinguisher cartridge connector. This effectively shortens the electrical pins in the cartridge connector, which could result in insufficient engagement with the associated sockets on the aeroplane connector. A missing spacer would not affect the electrical connection between the extinguisher cartridge and the aeroplane wiring, but could allow moisture ingress over time.
Both conditions, if not detected and corrected, could prevent the fire extinguisher bottle from discharging when required, possibly resulting in damage to the aeroplane and injury to occupants.
To address this potential unsafe condition, BAE Systems (Operations) Ltd issued Service Bulletin (SB) J41-26-009, providing
For the reason described above, this [EASA] AD requires a one-time [general visual] inspection [and inspection after a maintenance task that involves disconnection or re-connection of the electrical connector] of the extinguisher cartridge electrical connector and the aeroplane's electrical connector and, depending on findings, removal of excessive spacers or replacement of the fire extinguisher bottle.
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 received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this 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.
BAE Systems (Operations) Limited has issued Service Bulletin J41-26-009, dated November 23, 2016. This service information describes procedures for a general visual inspection of the cartridge electrical connector and the aircraft electrical connector for missing or excessive spacers, and corrective actions including removing excessive spacers or replacing the fire bottle extinguisher cartridge. 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 4 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need these on-condition actions:
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 November 2, 2018.
None.
This AD applies to BAE Systems (Operations) Limited Model 4101 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 26, Fire protection.
This AD was prompted by a report of an improperly installed spacer around the electrical pins in the cartridge connector for the fire bottle extinguisher cartridge. We are issuing this AD to detect and correct excessive or missing spacers, which could result in the fire extinguisher bottle not discharging when required, possibly resulting in damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD, do a general visual inspection of the inside of the cartridge electrical connector and the inside of the airplane electrical connector in accordance with the Accomplishment Instructions of the BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.
As of the effective date of this AD, before further flight after each accomplishment of a maintenance task involving disconnection or (re-)connection of an electrical connector of a fire bottle extinguisher cartridge, do a general visual inspection of the inside of the cartridge electrical connector and the inside of the airplane electrical connector in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.
(1) If, during any inspection as required by paragraph (g) or (h) of this AD, as applicable, more than one spacer is found inside the cartridge electrical connector: Before further flight, remove the excessive spacer(s) from the inside of the cartridge electrical connector in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.
(2) If, during any inspection as required by paragraph (g) or (h) of this AD, as applicable, one or more spacers are found inside the airplane electrical connector: Before further flight, remove all spacers from the inside of the airplane electrical connector in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.
(3) If, during any inspection as required by paragraph (g) or (h) of this AD, as applicable, no blue spacer is found inside the cartridge electrical connector body: Before further flight, replace the cartridge in accordance with the Accomplishment Instructions of the BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0212, dated October 25, 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 Todd Thompson, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3228.
(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) BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.
(ii) Reserved.
(3) For service information identified in this AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; 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:
Food and Drug Administration, HHS.
Final rule; technical amendments.
The Food and Drug Administration (FDA or we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during January, February, and March 2018. FDA is informing the public of the availability
This rule is effective September 28, 2018, except for amendatory instructions 7 to 21 CFR 520.580, 18 to 21 CFR 520.905d, 20 to 21 CFR 520.1182, 29 to 21 CFR 520.1840, 33 to 21 CFR 520.2380a, 37 to 21 CFR 522.1182, 51 to 21 CFR 524.900, 62 to 21 CFR 558.185, 68 to 21 CFR 558.365, and 70 to 21 CFR 558.485, which are effective October 9, 2018.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-5689,
FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during January, February, and March 2018, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the office of the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the internet may obtain these documents at the CVM FOIA Electronic Reading Room:
Agri Laboratories Ltd., P.O. Box 3103, St. Joseph, MO 64503 has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Huvepharma EOOD, 5th Floor, 3A Nikolay Haytov Str., 1113 Sofia, Bulgaria:
Following this withdrawal of approval, Agri Laboratories Ltd. is no longer the sponsor of an approved application. Accordingly, it will be removed from the list of sponsors of approved applications in § 510.600(c) (21 CFR 510.600(c)).
Strategic Veterinary Pharmaceuticals, Inc., 100 NW Airport Rd., St. Joseph, MO 64503 has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Cronus Pharma LLC, 2 Tower Center Blvd., Suite 1101, East Brunswick, NJ 08816:
The animal drug regulations are being amended to reflect these changes of sponsorship.
Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137 has requested that FDA withdraw approval of the NADAs listed in the following table because the products are no longer manufactured or marketed:
Elsewhere in this issue of the
JBS United Animal Health II LLC, 322 S Main St., Sheridan, IN 46069 has informed FDA that it has changed its name to United-AH II LLC. Accordingly, we are amending § 510.600(c) to reflect this change.
We are also making technical amendments to update the scientific name of a pathogenic bacterium and to accurately list the concentrations of new animal drug ingredients in combination drug medicated feeds. These actions are being taken to improve the accuracy of the regulations.
This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360b(i)), which requires
Although denominated a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866, which defines a rule as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
Animal drugs, Foods.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 510, 520, 522, 524, 529, 556, and 558 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
(a)
(2) Each milligram of powder contains 2.27 milligrams (mg) dichlorvos.
(b)
(c)
(d)
(ii)
(iii)
(2)
(ii)
(iii)
(a)
(b)
(c)
(2)
(ii)
(3)
(a)
(b)
(c)
(2)
(3)
(a)
(b)
(c)
(2)
(3)
(a)
(b)
(a)
(b)
(c)
(2)
(3)
21 U.S.C. 360b.
21 U.S.C. 360b.
(b)
(a)
(b)
(c)
(2)
(3)
21 U.S.C. 360b.
21 U.S.C. 342, 360b, 371.
(b) * * *
(3) * * *
(ii)
21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.
The revision reads as follows:
(b)
The revision and addtion read as follows:
(a)
(b)
(e) * * *
(5) Lasalocid may also be used in combination with:
(i) Chlortetracycline as in § 558.128.
(ii) Melengestrol as in § 558.342.
(iii) Oxytetracycline as in § 558.450.
(iv) Tylosin alone or in combination with melengestrol acetate as in § 558.625.
(v) Virginiamycin as in § 558.635.
(e) * * *
(1) * * *
The revisions and additions read as follows:
(e) * * *
(1) * * *
(2) * * *
(i) Oxytetracycline as in § 558.450.
(a)
(b)
(1) No. 066104: 48 and 80 grams per pound for use as in paragraph (e)(1) of this section.
(2) Nos. 017135 and 054771: 48 grams per pound for use as in paragraph (e)(2) of this section.
(c)
(d)
(2) Do not mix in Type B or Type C medicated feeds containing bentonite.
(e)
(2)
(3) Pyrantel may also be used in combination with:
(i) Carbadox as in § 558.115.
(ii) Lincomycin as in § 558.325.
(iii) Tylosin as in § 558.625.
(e) * * *
(2) * * *
Food and Drug Administration, HHS.
Notification of withdrawal.
The Food and Drug Administration (FDA) is withdrawing approval of 12 new animal drug applications (NADAs) at the sponsor's request because these products are no longer manufactured or marketed.
Withdrawal of approval is effective October 9, 2018.
Sujaya Dessai, Center for Veterinary Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5761,
Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137, has requested that FDA withdraw approval of the NADAs listed in the following table because the products are no longer manufactured or marketed:
Therefore, under authority delegated to the Commissioner of Food and Drugs, and in accordance with § 514.116
Elsewhere in this issue of the
Drug Enforcement Administration, Department of Justice.
Final order.
With the issuance of this final order, the Acting Administrator of the Drug Enforcement Administration places certain drug products that have been approved by the Food and Drug Administration (FDA) and which contain cannabidiol (CBD) in schedule V of the Controlled Substances Act (CSA). Specifically, this order places FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols in schedule V. This action is required to satisfy the responsibility of the Acting Administrator under the CSA to place a drug in the schedule he deems most appropriate to carry out United States obligations under the Single Convention on Narcotic Drugs, 1961. Also consistent therewith, DEA is adding such drugs to the list of substances that may only be imported or exported pursuant to a permit.
Effective September 28, 2018.
Kathy L. Federico, Regulatory Drafting and Policy Support Section (DPW), Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
The United States is a party to the Single Convention on Narcotic Drugs, 1961 (Single Convention), and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. 21 U.S.C. 801(7). The Single Convention entered into force for the United States on June 24, 1967, after the Senate gave its advice and consent to the United States' accession.
As stated in subsection 811(d)(1), if control of a substance is required “by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by [subsections 811(a) or 812(b)] and without regard to the procedures prescribed by [subsections 811(a) and (b)].” This provision is consistent with the Supremacy Clause of the U.S. Constitution (art. VI, sec. 2), which provides that all treaties made under the authority of the United States “shall be the supreme Law of the Land.” In accordance with this constitutional
Section 811(d)(1) is relevant here because, on June 25, 2018, the Food and Drug Administration (FDA) announced that it approved a drug that is subject to control under the Single Convention. Specifically, the FDA announced that it approved the drug Epidiolex for the treatment of seizures associated with two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome, in patients two years of age and older.
In making this scheduling determination, as section 811(d)(1) indicates, it is necessary to assess the relevant requirements of the Single Convention. Under the treaty, cannabis, cannabis resin, and extracts and tinctures of cannabis are listed in Schedule I.
It should also be noted that the schedules of the Single Convention operate somewhat differently than the schedules of the CSA. Unlike the CSA, the Single Convention imposes additional restrictions on drugs listed in Schedule IV that go beyond those applicable to drugs listed in Schedule I. All drugs in Schedule IV of the Single Convention are also in Schedule I of the Convention. Cannabis and cannabis resin are among the drugs listed in Schedule IV of the Single Convention.
Parties to the Single Convention are required to impose a number of control measures with regard to drugs listed in Schedule I of the Convention. These include, but are not limited to, the following:
• Limiting exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of such drugs. Article 4.
• Furnishing to the International Narcotics Control Board (INCB) annual estimates of, among other things, quantities of such drugs to be consumed for medical and scientific purposes, utilized for the manufacture of other drugs, and held in stock. Article 19.
• Furnishing to the INCB statistical returns on the actual production, utilization, consumption, imports and exports, seizures, and stocks of such drugs during the prior year. Article 20.
• Requiring that licensed manufacturers of such drugs obtain quotas specifying the amounts of such drugs they may manufacture to prevent excessive production and accumulation beyond that necessary to satisfy legitimate needs. Article 29.
• Requiring manufacturers and distributors of such drugs to be licensed. Articles 29 & 30.
• Requiring medical prescriptions for the dispensing of such drugs to patients. Article 30.
• Requiring importers and exporters of such drugs to be licensed and requiring each individual importation or exportation to be predicated on the issuance of a permit. Article 31.
• Prohibiting the possession of such drugs except under legal authority. Article 33.
• Requiring those in the legitimate distribution chain (manufacturers, distributors, scientists, and those who lawfully dispense such drugs) to keep records that show the quantities of such drugs manufactured, distributed, dispensed, acquired, or otherwise disposed of during the prior two years. Article 34.
Because the CSA was enacted in large part to satisfy United States obligations under the Single Convention, many of the CSA's provisions directly implement the foregoing treaty requirements. None of the foregoing obligations of the United States could be satisfied for a given drug if that drug were removed entirely from the CSA schedules. At least one of the foregoing requirements (quotas) can only be satisfied if the drug that is listed in Schedule I of the Single Convention is also listed in schedule I or II of the CSA because, as 21 U.S.C. 826 indicates, the quota requirements generally apply only to schedule I and II controlled substances.
The permit requirement warrants additional explanation. As indicated above, the Single Convention obligates parties to require a permit for the importation and exportation of drugs listed in Schedule I of the Convention. This permit requirement applies to a drug product containing CBD extracted from the cannabis plant because, as further indicated above, such a product is a Schedule I drug under the Single Convention. However, under the CSA
(i) Control the drug in schedule II, which will automatically require an
(ii) control the drug in schedule III, IV, or V, and simultaneously amend the regulations to require a permit to import or export Epidiolex.
It bears emphasis that where, as here, control of a drug is required by the Single Convention, the DEA Administrator “shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations,
Under subsection [811(d)], where control of a drug or other substance by the United States is required by reason of its obligations under [the Single Convention], the bill does not require that the Attorney General seek an evaluation and recommendation by the Secretary of Health, Education, and Welfare, or pursue the procedures for control prescribed by the bill but he may include the drug or other substance under any of the five schedules of the bill which he considers most appropriate to carry out the obligations of the United States under the international instrument, and he may do so without making the specific findings otherwise required for inclusion of a drug or other substance in that schedule.
As noted, this order placing the Epidiolex formulation in schedule V will only comport with section 811(d)(1) if all importations and exportations of the drug remain subject to the permit requirement. Until now, since the Epidiolex formulation had been a schedule I controlled substance, the importation of the drug from its foreign production facility has always been subject to the permit requirement. To ensure this requirement remains in place (and thus to prevent any lapse in compliance with the requirements of the Single Convention), this order will amend the DEA regulations (21 CFR 1312.30) to add the Epidiolex formulation to the list of nonnarcotic schedule III through V controlled substances that are subject to the import and export permit requirement.
Finally, a brief explanation is warranted regarding the quota requirement in connection with the Single Convention. As indicated above, for drugs listed in Schedule I of the Convention, parties are obligated to require that licensed manufacturers of such drugs obtain quotas specifying the amounts of such drugs they may manufacture. The purpose of this treaty requirement is to prevent excessive production and accumulation beyond that necessary to satisfy legitimate needs. Under this scheduling order, the United States will continue to meet this obligation because the bulk cannabis material used to make the Epidiolex formulation (as opposed to the FDA-approved drug product in finished dosage form) will remain in schedule I of the CSA and thus be subject to all applicable quota provisions under 21 U.S.C. 826.
As noted, until now, Epidiolex has been a schedule I controlled substance. By virtue of this order, Epidiolex (and any generic versions of the same formulation that might be approved by the FDA in the future) will be a schedule V controlled substance. Thus, all persons in the distribution chain who handle Epidiolex in the United States (importers, manufacturers, distributors, and practitioners) must comply with the requirements of the CSA and DEA regulations relating to schedule V controlled substances. As further indicated, any material, compound, mixture, or preparation
[W]e remain concerned about the proliferation and illegal marketing of unapproved CBD-containing products with unproven medical claims. . . . The FDA has taken recent actions against companies distributing unapproved CBD products. These products have been marketed in a variety of formulations, such as oil drops, capsules, syrups, teas, and topical lotions and creams. These companies have claimed that various CBD products could be used to treat or cure serious diseases such as cancer with no scientific evidence to support such claims.
The CSA provides for an expedited scheduling action where control of a drug is required by the United States' obligations under the Single Convention. 21 U.S.C. 811(d)(1). Under such circumstances, the Attorney General must “issue an
Although the text of section 811(d)(1) thus overrides the normal APA considerations, it is notable that the APA itself contains a provision that would have a similar effect. As set forth in 21 U.S.C. 553(a)(1), the section of the APA governing rulemaking does not apply to a “foreign affairs function of the United States.” An order issued under section 811(d)(1) may be considered a foreign affairs function of the United States because it is for the express purpose of ensuring that the
This action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and the principles reaffirmed in Executive Order 13563 (Improving Regulation and Regulatory Review), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).
This order is not an Executive Order 13771 regulatory action.
This action meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
This action does not have federalism implications warranting the application of Executive Order 13132. This action does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications warranting the application of Executive Order 13175. The action does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) applies to rules that are subject to notice and comment under section 553(b) of the APA or any other law. As explained above, the CSA exempts this order from the APA notice-and-comment rulemaking provisions. Consequently, the RFA does not apply to this action.
This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521. 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.
As noted above, this action is an order, not a rulemaking. Accordingly, the Congressional Review Act (CRA) is inapplicable, as it applies only to rules. However, the DEA has submitted a copy of this final order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (CRA), 5 U.S.C. 801-808.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
Administrative practice and procedure, Drug traffic control, Exports, Imports, Reporting requirements.
For the reasons set out above, DEA amends 21 CFR parts 1308 and 1312 as follows:
21 U.S.C. 811, 812, 871(b), 956(b) unless otherwise noted.
(2) [Reserved]
21 U.S.C. 821, 871(b), 952, 953, 954, 957, 958.
The following Schedule III, IV, and V non-narcotic controlled substances have been specifically designated by the Administrator of the Drug Enforcement Administration as requiring import and export permits pursuant to sections 201(d)(1), 1002(b)(2), and 1003(e)(3) of the Act (21 U.S.C. 811(d)(1), 952(b)(2), and 953(e)(3)):
(b) A drug product in finished dosage formulation that has been approved by the U.S. Food and Drug Administration that contains cannabidiol (2-[1R-3-methyl-6R-(1-methylethenyl)-2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol) derived from cannabis and no more than 0.1 percent (w/w) residual tetrahydrocannabinols.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the special local regulations in the navigable waters of the San Francisco Bay for the San Francisco Bay Navy Fleet Week Parade of Ships and Blue Angels Demonstration from October 4 through October 7, 2018. This action is necessary to ensure the safety of event participants and spectators. During the enforcement period, unauthorized
The regulations in 33 CFR 100.1105 will be enforced from 10:30 a.m. until 12:30 p.m. on October 5, 2018; from 12:50 p.m. until 5 p.m. on October 4, 2018; from 12:50 p.m. until 4 p.m. on October 5, 2018; and from 12:35 p.m. until 4 p.m. on October 6 through 7, 2018 as identified in the
If you have questions on this notice of enforcement, call or email Lieutenant Emily Rowan, U.S. Coast Guard Sector San Francisco; telephone (415) 399-7443 or email at
The Coast Guard will enforce the special local regulation for the annual San Francisco Bay Navy Fleet Week Parade of Ships and Blue Angels Demonstration in 33 CFR 100.1105.
Regulations for the Navy Parade of Ships will be enforced from 10:30 a.m. until 12:30 p.m. on October 5, 2018; the U.S. Navy Blue Angels Activities will be enforced from 12:50 p.m. until 5 p.m. on October 4, 2018, and from 12:50 p.m. until 4 p.m. on October 5, 2018, and from 12:35 p.m. until 4 p.m. on October 6 through 7, 2018. Under the provisions of 33 CFR 100.1105, except for persons or vessels authorized by the PATCOM, in regulated area “Alpha” no person or vessel may enter or remain within 500 yards ahead of any Navy parade vessel. No person or vessel shall anchor, block, loiter in, or impede the through transit of ship parade participants or official patrol vessels in regulated area “Alpha.”
Except for persons or vessels authorized by the PATCOM, no person or vessel may enter or remain within regulated area “Bravo.”
When hailed and/or signaled by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, a person or vessel shall come to an immediate stop. Persons or vessels shall comply with all directions given; failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco, California. The PATCOM is empowered to forbid and control the movement of all vessels in the regulated area.
This notice of enforcement is issued under authority of 33 U.S.C. 1233. In addition to this notification in the
Coast Guard, DHS.
Temporary final rule; request for comments.
The Coast Guard is establishing a temporary regulated navigation area (RNA) for certain navigable waters of the Upper Mississippi River under one of the navigable spans of the Sabula Railroad Drawbridge at mile marker (MM) 535. The RNA is necessary to protect persons, vessels, and the marine environment from potential hazards associated with emergency repair work to the Sabula Railroad Bridge following a vessel's allision with the bridge. This regulation applies only to southbound vessel transits through the RNA, and depending on the water flow as measured from Lock and Dam 12, this regulation either prohibits transit or establishes operating requirements unless a deviation is authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative. We invite your comments on this rulemaking.
This rule is effective without actual notice from September 28, 2018 through November 30, 2018. For the purposes of enforcement, actual notice will be used from September 24, 2018 through September 28, 2018. Comments and related material must be received by the Coast Guard on or before October 15, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Kody Stitz, Sector Upper Mississippi River Prevention Department U.S. Coast Guard; telephone 314-269-2568, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. On September 16, 2018, a vessel allided with the Sabula Railroad Drawbridge and immediate action is needed to respond to the potential hazards associated with emergency bridge repairs. It is impracticable to publish an NPRM because we must establish this regulated navigation area as soon as possible. The NPRM process would delay establishment of the regulated navigation area until after the emergency repairs are necessary and compromise public safety. However, the Coast Guard is providing an opportunity to comment while the rule is in effect and may amend the rule after it becomes effective, if necessary.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Eighth District Commander has determined that potential hazards associated with emergency bridge repairs following an allision will be a safety concern for vessels transiting southbound through the right descending span, also known as Iowa span, of the Sabula Railroad Drawbridge. This rule is necessary to protect persons, vessels, and the marine environment on the navigable waters of the Upper Mississippi River while the bridge is being repaired. The duration of this rule is intended to cover the period of emergency repairs.
This rule establishes a temporary regulated navigation area from September 21, 2018 through November 30, 2018, or until the emergency bridge repairs are completed, whichever occurs first. The regulated area covers all navigable waters of the Upper Mississippi River under the right descending bank span, also known as the Iowa span, of the Sabula Railroad Drawbridge at mile marker (MM) 535. This rule applies only to southbound vessel transits through the RNA, and depending on the water flow as measured from Lock and Dam 12, this regulation either prohibits transit or establishes operating requirements unless a deviation is authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.
When the water flow rate as measured from Lock and Dam 12 is 100kcfs or greater, vessels are prohibited from transiting southbound through the RNA unless authorized by the Captain of the Port Sector Upper Mississippi River (COTP) or a designated representative. When the water flow rate as measured from Lock and Dam 12 is less than 100kcfs, vessels may transit southbound through the RNA only if navigating at their slowest safe speed and avoiding contact with any part of the Sabula Railroad Drawbridge and the unprotected rest pier located on the right descending side of the Sabula Railroad Drawbridge.
When the water flow rate as measured from Lock and Dam 12 is less than 100kcfs, vessels engaged in towing may transit southbound through the RNA only if the size of the tow does not exceed 15 barges, the towing vessels possess a minimum of 250 horsepower per loaded barge in the tow, and the towing vessel uses an assist vessel of at least 1,000 horsepower when pushing three or more barges. If an assist vessel is required by this rule, the assist vessel and the towing vessel must discuss a plan to transit through the RNA before doing so and both the assist vessel and the towing vessel must be capable of continuous two-way voice communication during the transit.
The COTP or a designated representative may review, on a case-by-case basis, alternatives to the minimum operating or towing requirements set forth in this rule and may approve a deviation from these requirements should they provide an equivalent level of safety. The COTP or a designated representative may determine, on a case-by-case basis, that although the conditions triggering the RNA may be met, the current potential hazards do not require that each requirement of the RNA be enforced and that only certain of the above-prescribed restrictions are necessary under the circumstances. The COTP or a designated representative may consider environmental factors, the water flow rate at Lock and Dam 12, mitigating safety factors, and the completion progress of the bridge repairs among other factors. The COTP or a designated representative will broadcast notice of such determination and any subsequent changes. Notice that these vessel operational conditions are anticipated to be put into effect, or are in effect, will be given by Broadcast Notice to Mariners, Local Notices to Mariners, Marine Safety Information Broadcasts, and/or actual notice, as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the limited applicability of rule, the availability of an alternate route, and the ability of the COTP to issue a deviation from the requirements of this rule or suspend enforcement of this rule on a case-by-case basis. This rule only affects southbound vessel transits through the RNA; northbound vessels may transit the RNA at any time without restrictions. In addition, the regulated area only covers the navigable waters under the span of the Sabula Railroad Drawbridge that was damaged in the allision, the right descending span, or Iowa span, of the bridge. Vessels may transit north or southbound through the left descending span, or Illinois span, at any time without restriction. Finally, this rule allows vessels to seek permission to transit through the RNA and/or deviate from the operating requirements, and also allows the COTP to suspend enforcement of particular provisions of the RNA under appropriate circumstances.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulated navigation area lasting approximately two months that prohibits entry or establishes vessel operating requirements for southbound transits through the right descending span of the Sabula Railroad Drawbridge on the Upper Mississippi River while emergency repairs are made to the bridge. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be made available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. The Coast Guard may amend this temporary final rule if we receive comments from the public that indicate that a change is warranted. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this temporary final rule as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) When the water flow rate as measured from Lock and Dam 12 is less than 100kcfs, vessels may transit southbound through the RNA only under the following conditions:
(i) Vessels operate at their slowest safe speed; and
(ii) Vessels avoid contacting any part of the Sabula Railroad Drawbridge and the unprotected rest pier located on the right descending side of the Sabula Railroad Drawbridge.
(3) When the water flow rate as measured from Lock and Dam 12 is less than 100kcfs, vessels engaged in towing may transit southbound through the RNA only under the following conditions:
(i) The size of the tow does not exceed 15 barges; and
(ii) The towing vessel possesses a minimum of 250 horsepower per loaded barge in the tow; and
(iii) When pushing three or more barges, an assist vessel of at least 1,000 horsepower is utilized.
(4) If an assist vessel is required under this section, before entering the RNA:
(i) The assist vessel and the tow vessel shall discuss a plan to transit through the bridge, and
(ii) Both the assist vessel and the towing vessel shall be capable of continuous two-way voice communication while transiting through the bridge.
(5) The COTP or a designated representative may review, on a case-by-case basis, alternatives to the minimum operating or towing requirements and conditions set forth in subparagraphs (d)(2)-(d)(4) of this section and may approve a deviation to these requirements and conditions should they provide an equivalent level of safety.
(6) The COTP or a designated representative may determine, on a case-by-case basis, that although the conditions triggering the RNA may be met, the current potential hazards do not require that each requirement of the RNA be enforced and that only certain of the above-prescribed restrictions are necessary under the circumstances. The COTP or a designated representative may consider environmental factors, the water flow rate at Lock and Dam 12, mitigating safety factors, and the completion progress of bridge the repairs among other factors. The COTP or a designated representative shall broadcast such notice of such determination and any changes under the provisions of paragraph (e).
(e)
Bureau of Land Management, Interior.
Final rule.
This final rule updates the fees set forth in the Bureau of Land Management (BLM) mineral resources regulations for the processing of certain minerals program-related actions. It also adjusts certain filing fees for minerals-related documents. These updated fees include those for actions such as lease renewals and mineral patent adjudications.
This final rule is effective October 1, 2018.
You may send inquiries or suggestions to Director (630), Bureau of Land Management, 2134LM, 1849 C Street NW, Washington, DC 20240; Attention: RIN 1004-AE57.
Steve Wells, Chief, Division of Fluid Minerals, 202-912-7143; Mitch Leverette, Chief, Division of Solid Minerals, 202-912-7114; or Mark Purdy, Regulatory Affairs, 202-912-7635. Persons who use a telecommunications device for the deaf (TDD) may leave a message for these individuals with the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, 7 days a week.
The BLM has specific authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) establishing or revising fees and service charges for processing documents related to its minerals programs (2005 Cost Recovery Rule). In addition, the 2005 Cost Recovery Rule also established the method the BLM would use to adjust those fees and service charges on an annual basis.
At 43 CFR 3000.12(a), the regulations provide that the BLM will annually adjust fees established in subchapter C (43 CFR parts 3000 through 3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule updates those fees and service charges consistent with that direction. The fee adjustments in this rule are based on the mathematical formula set forth in the 2005 Cost Recovery Rule. The public had an opportunity to comment on that adjustment procedure as part of the 2005 rulemaking. Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the fee adjustments in this rule may be effective less than 30 days after publication. See 43 CFR 3000.10(c).
As set forth in the 2005 Cost Recovery Rule, the fee updates are based on the change in the IPD-GDP. The BLM's minerals program publishes the updated cost recovery fees, which become effective on October 1, the start of the fiscal year (FY).
Since the BLM did not publish a fee update for FY 2018, this rule updates the cost recovery fees from FY 2017 for FY 2019. The update is based on the change in the IPD-GDP from the 4th Quarter of 2015 to the 4th Quarter of 2017 and reflects the rate of inflation over a two-year time period (or eight calendar quarters).
Under this rule, 17 fees will remain the same and 31 fees will increase. Of the 31 fees that are being increased by this rule, 18 of the increases are equal to $5 each. The largest increase, $105, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, which will increase from $3,110 to $3,215. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $50, from $1,555 to $1,605.
The calculations that resulted in the new fees are included in the table below:
The BLM took the base values (or “existing values”) upon which it derived the FY 2017 cost recovery fees (or “existing fees”) and multiplied it by the percent change in the IDP-GDP (3.4 percent for this update) to generate the “IDP-GDP increases” (in dollars). The BLM then added the “IDP-GDP increases” to the “existing values” to generate the “new values.” The BLM then calculated the “new fees” by rounding the “new values” to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1. The “new fees” are the updated cost recovery fees for FY 2019.
This document is not a significant rule, and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.
The BLM has determined that the rule will not have an annual effect on the economy of $100 million or more. It will not 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. The changes in this rule are much smaller than those in the 2005 final rule, which did not approach the threshold in Executive Order 12866. For instructions on how to view a copy of the analysis prepared in conjunction with the 2005 final rule, please contact one of the persons listed in the
This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that will not change with this rule.
In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflationary adjustment factor to existing user fees for processing certain actions associated with the onshore minerals programs.
Finally, this rule will not raise novel legal or policy issues. As explained above, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 Cost Recovery Rule.
This action is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.
This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The SBA would consider many, if not most, of the operators with whom the BLM works in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”
The final rule may affect a large number of small entities because 31 fees for activities on public lands will be increased. The adjustments result in no increase in the fees for processing 17 actions relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving more than 10 mining claims; that fee will increase by $105. Accordingly, the BLM has concluded that the economic effect of the rule's changes will not be significant, even for small entities.
For the 2005 Cost Recovery Rule, the BLM completed a Regulatory Flexibility Act threshold analysis, which is available for public review in the administrative record for that rule. For instructions on how to view a copy of that analysis, please contact one of the persons listed in the
This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will 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. Accordingly, a Small Entity Compliance Guide is not required.
This final rule 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. In accordance with Executive Order 13132, the BLM therefore finds that the final rule does not have federalism implications, and a federalism assessment is not required.
This rule does not contain information collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:
As required by Executive Order 12630, the BLM has determined that this rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.
In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Therefore, neither an environmental assessment nor an environmental impact statement is required in connection with the rule (40 CFR 1508.4).
The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian tribes. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive Order.
In developing this rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.
The principal author of this rule is Mark Purdy of the Division of Regulatory Affairs, Bureau of Land Management.
Public lands—mineral resources, Reporting and recordkeeping requirements.
For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:
16 U.S.C. 3101
(a) The table in this section shows the fixed fees that must be paid to the BLM for the services listed for Fiscal Year (FY) 2019. These fees are nonrefundable and must be included with documents filed under this chapter. Fees will be adjusted annually according to the change in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP) by way of publication of a final rule in the
Table 1 to paragraph (a)—
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission makes non-substantive revisions to authority citations in its regulations. These authority citations are required by the rules of the Administrative Committee of the Federal Register, and their format is prescribed by the Document Drafting Handbook of the Office of the Federal Register. Certain of the authority citations currently in the Commission's rules may not conform to those specifications.
This rule is effective September 28, 2018.
Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.
Douglas A. Klein, Office of General Counsel, at (202) 418-1720.
This is a summary of the Order adopted by the Commission's Managing Director, DA 18-976, adopted on September 21, 2018, and released on September 21, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554, or at
1. In this
2. The changes effected by this Order are intended only to bring the authority citations into conformance with the ACFR regulations and Document Drafting Handbook of the Office of the Federal Register. None of these changes should be construed to change the substantive requirements of the affected rules or the sources of Commission authority for those requirements.
3.
4.
5.
6. Petitions for reconsideration pursuant to 47 CFR 1.429 or applications for review pursuant to 47 CFR 1.115 of this Order may be filed within thirty days of publication of a summary of this Order in the
7. Accordingly,
8.
Classified information, Freedom of information, Government publications, Infants and children, Organization and functions (Government agencies), Postal Service, Privacy, Reporting and recordkeeping requirements, Sunshine Act.
Administrative practice and procedure, Civil rights, Claims, Communications common carriers, Cuba, Drug abuse, Environmental impact statements, Equal access to justice, Equal employment opportunity, Federal buildings and facilities, Government employees, Income taxes, Indemnity payments, Individuals with disabilities, Investigations, Lawyers, Metric system, Penalties, Radio, Reporting and recordkeeping requirements, Telecommunications, Television, Wages.
Radio, Reporting and recordkeeping requirements.
Communications equipment, Security measures.
Radio
Aviation safety, Communications equipment, Reporting and recordkeeping requirements.
Communications common carriers, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone.
Communications common carriers, Radio, Reporting and recordkeeping requirements, Telephone.
Communications common carriers, Telecommunications, Telephone.
Accounting, Communications common carriers, Reporting and recordkeeping requirements, Telephone.
Communications common carriers, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone.
Claims, Communications common carriers, Computer technology, Credit, Foreign relations, Individuals with disabilities, Political candidates, Radio, Reporting and recordkeeping requirements, Telecommunications, Telegraph, Telephone.
Civil defense, Communications equipment, Defense communications, Education, Equal employment opportunity, Foreign relations, Mexico, Political candidates, Radio, Reporting and recordkeeping requirements, Television.
Cable television, Communications equipment, Radio, Reporting and recordkeeping requirements, Television.
Alaska, Communications equipment, Great Lakes, Marine safety, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone, Vessels.
Administrative practice and procedure, Business and industry, Civil defense, Common carriers, Communications equipment, Emergency medical services, Individuals with disabilities, Radio, Reporting and recordkeeping requirements.
Aliens, Civil defense, Communications equipment, Radio, Reporting and recordkeeping requirements, Satellites, Volunteers.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR chapter I as follows:
47 U.S.C. 155, 225, unless otherwise noted.
47 U.S.C. chs. 2, 5, 9, 13; Sec. 102(c), Div. P, Public Law 115-141, 132 Stat. 1084; 28 U.S.C. 2461, unless otherwise noted.
47 U.S.C. 151, 154(i)-(j) & (o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, 615c, 1302, unless otherwise noted.
47 U.S.C. 154, 301, 302, 303, 307, 336.
47 U.S.C. 151, 154(i), 154(j), 154(o), 155(c), 201(b), 214(d), 218, 219, 251(e)(3), 301, 303(b), 303(g), 303(j), 303(r), 307, 309(a), 316, 332, 403, 405, 615a-1, 615c, 621(b)(3), 621(d), unless otherwise noted.
47 U.S.C. 154, 303.
47 U.S.C. 154, 301, 303, 309.
47 U.S.C. 154(i), 219, 220.
47 U.S.C. 35-39, 154, 211, 219, 220; sec. 402(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 129.
47 U.S.C. 151, 152, 153, 154, 155, 201-205, 207-209, 218, 225-227, 251-252, 271, 332, unless otherwise noted.
47 U.S.C. 151-155, 157, 201-205, 218, 251, 253, 271-275, unless otherwise noted.
47 U.S.C. 151, 154(i), 154(j), 201-205, 403, unless otherwise noted.
47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, 571, unless otherwise noted.
47 U.S.C. 154, 201, 202, 217, 218, 220, 222, 225, 226, 227, 228, 251(a), 251(e), 254(k), 262, 403(b)(2)(B), (c), 616, 620, 1401-1473, unless otherwise noted.
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.
47 U.S.C. 151-155, 301-609; 3 U.S.T. 3450, 3 U.S.T. 4726, 12 U.S.T. 2377.
47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7), 1401-1473
47 U.S.C. 151-155, 301-609, unless otherwise noted.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
This rule allows, but does not require, State Driver Licensing Agencies (SDLAs) to waive requirements for the commercial learner's permit (CLP) knowledge test for certain individuals who are, or were, regularly employed within the last year in a military position that requires, or required, the operation of a commercial motor vehicle (CMV). This rule includes the option for an SDLA to waive the tests required for a passenger carrier (P) endorsement, tank vehicle (N) endorsement, or hazardous material (H) endorsement, with proof of training and experience.
This final rule is effective November 27, 2018.
Petitions for Reconsideration of this final rule must be submitted to the FMCSA Administrator no later than October 29, 2018.
Mr. Selden Fritschner, CDL Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, by email at
This final rule is organized as follows:
For access to docket FMCSA-2017-0047 to read background documents and comments received, go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments without edit including any personal information the commenter provides, to
This rule allows, but does not require, SDLAs to waive the knowledge test requirements and tests required for some endorsements with proof of experience for certain individuals who are regularly employed, or were regularly employed within the last year, in a military position requiring the operation of a vehicle that would be classified as a CMV pursuant to 49 CFR 383.5, if operated in a civilian context. This rulemaking implements part of section 5401 of the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94).
In combination with a recent rulemaking—Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Military Commercial Driver's License Act of 2012 (2012 Act), published on October 13, 2016 (81 FR 70634), hereafter referred to as the Military CDL I Rule—this rule gives States the option to waive both the CDL knowledge and driving skills tests for certain current and former military service members who received training to operate CMVs during active-duty, National Guard or reserve service in military vehicles that are comparable to CMVs. The combined effect of the Military CDL I Rule and this rule will allow certain current or former military drivers, domiciled in participating States, to transition to a civilian CDL more quickly due to their armed forces training and experience.
FMCSA evaluated potential costs and benefits associated with this rulemaking. The Agency concluded that the final rule would result in a 10-year cost savings of $16.66 million undiscounted, $14.21 million discounted at 3 percent, $11.70 million discounted at 7 percent, and $1.67 million on an annualized basis at both 7 percent and 3 percent discount rates. FMCSA has determined that this final rule is a deregulatory action under Executive Order (E.O.) 13771.
This final rule rests on the authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as amended, codified at 49 U.S.C. chapter 313 and 49 CFR parts 382, 383, and 384. The rule also responds to section 5401(a) of the FAST Act [Pub. L. 114-94, 129 Stat. 1312, 1546, December 4, 2015]. This section requires FMCSA to modify the minimum testing standards of its CDL regulations to credit the training and knowledge received by certain current or former military drivers in the armed forces, including the reserve components and National Guard, to drive military vehicles similar to civilian CMVs [49 U.S.C. 31305(d)(1)(C)].
The CMVSA provides broadly that “[t]he Secretary of Transportation shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle” [49 U.S.C. 31305(a)]. In general, those regulations must include the following: (1) Minimum standards for knowledge and driving (skills) tests; (2) use of a representative vehicle to take the driving test; (3) minimum testing standards; and (4) working knowledge of CMV regulations and vehicle safety systems [49 U.S.C. 31305(a)(1)-(4)].
Section 5401(a) of the FAST Act, as amended by section (3)(1) of the Jobs for Our Heroes Act (Pub. L. 115-105, 131 Stat. 2263, January 8, 2018) added 49 U.S.C. 31305(d): “Standards for Training and Testing of Operators Who Are Members of the Armed Forces, Reservists, or Veterans.” Section 31305(d)(1)(A) requires the Agency to modify its CDL regulations to “exempt a covered individual from all or a portion of a driving test if the covered individual had experience in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle.” Section 31305(d)(1)(B), as also amended by the Jobs for Our Heroes Act, requires FMCSA to “ensure that a covered individual may apply for an exemption under subparagraph (A)—(i) while serving in the armed forces or reserve components; and (ii) during, at least, the 1-year period beginning on the date on which such individual separates from services in the armed forces or reserve components.” The term “reserve components” includes the Army and Air National Guard, as well as the normal reserve units of all branches of the military service. Section 5401(c) of the FAST Act also directed the Agency to adopt regulations allowing certain military personnel an exemption from the normal CDL domicile requirement, as authorized by the 2012 Act and codified at 49 U.S.C. 31311(a)(12)(C). These three provisions were implemented by the Military CDL I Rule.
The last element of section 5401(a), which was not addressed in the Military CDL I Rule, directed the Agency to “credit the training and knowledge a covered individual received in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle for purposes of satisfying minimum standards for training and knowledge” [49 U.S.C. 31305(d)(1)(C)]. That requirement is the subject of this final rule. It should be noted that section 31305(d)(2)(B) originally defined a “covered individual” as someone over 21 years of age who is “(i) a former member of the armed forces; or (ii) a former member of the reserve components.” However, section 3(3) of the Jobs for Our Heroes Act amended section 31305(d)(2)(B) to define a “covered individual” as someone over 21 years of age who is “(i) a current or former member of the armed forces; or (ii) a current or former member of one of the reserve components.” Using the broad authority of 49 U.S.C. 31315(b), the Agency implicitly took the same position in granting all SDLAs the temporary option (for a 2-year period) of waiving the CLP knowledge test for current or former members of the military services, including the reserves and National Guard, who had completed certain formal military driver training (81 FR 74861, Oct. 27, 2016). [See “Knowledge Test Exemption Request” discussion below.]
Federal training standards for CDL drivers were adopted only recently. Section 32304 of MAP-21 [Pub. L. 112-141, July 6, 2012, 126 Stat. 405, 791] required entry-level driver training (ELDT) of CDL applicants [49 U.S.C. 31305(c)]. That requirement was promulgated on December 8, 2016 [81 FR 88732]. However, the ELDT rule provides that “[v]eterans with military CMV experience who meet all the requirements and conditions of § 383.77” are not required to complete the new entry-level training program [49 CFR 380.603(a)(3)]. Because § 383.77 authorizes the States to exempt CDL applicants with military CMV experience from the driving skills test, those drivers are also exempt from ELDT.
Under 49 CFR 383.77, as amended by the Military CDL I Rule, the Agency now provides credit for military drivers' training and knowledge by allowing States to exempt from the CDL driving skills test those employees who are or were regularly employed within the last year in a military position requiring the operation of a military vehicle that is comparable to a CMV.
This rule implements 49 U.S.C. 31305(d)(1)(C) by giving States limited discretion, to exempt CDL applicants with military CMV experience from the knowledge test required for a CLP. This final rule completes the requirement of section 31305(d)(1)(C) to “credit the training and knowledge a covered individual received in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle for purposes of satisfying minimum standards for training and knowledge.”
As specified in 49 CFR 383.71(a)(2)(ii), any individual applying for a CDL is first required to take and pass a general knowledge test, which
Any individual applying for a CDL is required to take and pass a general skills test, but only after passing the knowledge test and obtaining a CLP. A final rule published on May 9, 2011 [“Commercial Driver's License Testing and Commercial Learner's Permit Standards” (76 FR 26854)] added a new 49 CFR 383.77, which allows the States to substitute CDL applicants' eligible military CMV experience for the skills test.
The Military CDL I Rule addressed the requirements of 49 U.S.C. 31305(d)(1)(A) and (B) (81 FR 70634, Oct. 13, 2016) and allows States to extend the period to apply for a skills test waiver after leaving the military from 90 days to 1 year for an individual who is regularly employed or was regularly employed in a military position requiring operation of a CMV.
Additionally, the Military CDL I Rule allows the SDLA in the State where military personnel are stationed (State of duty station) to coordinate with the State of domicile to expedite the processing of applications and administer the knowledge and skills tests for a CLP or CDL. The SDLA in the State of domicile could then issue the CLP or CDL based on tests performed by the SDLA in the State of duty station.
The Missouri Department of Revenue (DOR) submitted a request for an exemption from the FMCSA regulation that requires any driver to pass the general knowledge test before being issued a CLP or CDL. The exemption request is available in docket FMCSA-2016-0130, at:
On June 12, 2017, FMCSA published an NPRM (82 FR 26894) that proposed allowing SDLAs to waive the requirements for the CLP knowledge tests for certain individuals who are, or were, regularly employed within the last year in a military position that requires, or required, the operation of a CMV.
FMCSA received 17 comments on the NPRM. Of these, 15 supported the proposal, though some requested alterations. The rule was supported by the American Trucking Associations (ATA), the Owner-Operator Independent Drivers Association (OOIDA), the American Bus Association (ABA), the International Foodservice Distributors Association (IFDA), the Propane Gas Association of New England (PGANE), the National Propane Gas Association (NPGA), the Commercial Vehicle Training Association (CVTA), the Oregon Driver and Motor Vehicle Service (Oregon), the Virginia Department of Motor Vehicles (Virginia DMV), the National School Transportation Association (NSTA), a motor carrier, and several individuals. Commenters in favor of the NPRM argued that it would: Build on the success of past waiver programs and recent complementary regulations; reduce the burden to enter the industry for qualified military and veterans; remove duplicative requirements and reduce the time to get licensed; reduce problems in recruiting qualified employees; establish a standard of safety equivalent to that of the CLP knowledge test requirement of the CDL exam; and codify already existing practices by individual SDLAs. Several commenters lauded the Agency, saying the provisions of the proposed rule ensured that individuals receiving a waiver would be well-qualified.
One commenter, the Bureau of Driver and Vehicle Programs for the Michigan Department of State (Michigan), agreed with the need to help veterans, but not with a waiver of the knowledge test.
One commenter opposed the NPRM, claiming that there is no way to know if someone meets the knowledge test requirements unless that individual takes the test.
Several individuals commented on the licensing process, medical standards, and other issues outside the scope of the NPRM.
The NPRM did not address the question of waiving the knowledge tests for endorsements, nor did it discuss license classes or license restrictions for current service personnel or veterans.
The ABA requested clarification on whether the proposed testing waiver would apply to endorsements as well, and stated that it did not support exemptions from the knowledge tests for endorsements.
Citing an inconsistency between §§ 383.79(c)(1) and 383.111, Oregon asked whether the Agency intended to allow waivers for all knowledge tests or just the general CDL knowledge test. Oregon pointed out that allowing a waiver only of the general knowledge test would limit the type of license that could be issued and acknowledged the concern about waiving other knowledge tests.
The NPGA and PGANE asked that the proposal be amended to allow SDLAs to waive the knowledge test for the H endorsement for veterans and military service members with applicable experience. They argued that this change would not reduce safety and would increase opportunities for service men and women. One commenter pointed out that military training and experience would likely exceed civilian training and experience, due to military concerns over the transportation of hazardous materials. CVTA stated that many military drivers haul materials that would be considered hazardous in a non-military setting, and that they should have access to the H endorsement via a testing waiver, though only for a Class A license.
The NSTA asked that the passenger and school bus endorsements be waived only for drivers with applicable experience. CVTA stated that FMCSA should consider a restricted license for a military driver who operated only an automatic, not a manual, transmission.
In response to these comments, this final rule explicitly allows SDLAs to
As the D.C. Circuit said in
No waivers of endorsements are allowed beyond the three discussed above because the various military services provide training equivalent to that required to pass the written endorsement tests
There is no need to require restricted licenses based upon the type of transmission installed on military vehicles, because FMCSA recognizes that many military vehicles are fitted with automatic transmissions. However, all service branches have vehicles with manual transmissions in their fleet inventory. Each service branch has documentation of drivers' training, experience, and certification in vehicles with manual transmissions that can be provided to the SDLA when the driver applies for a CDL. The same proof of experience with different braking systems exists, including air brakes and air over hydraulics. As this rule is voluntary, SDLAs are still allowed to test these drivers' brake and manual transmission abilities, if they wish, and to impose a license restriction.
The NPRM provided examples of training and certification for four MOS: Army—88M—Motor Transport, Operator; Air Force—2T1—Vehicle Operations; Marine Corps—3531—Motor Vehicle Operator; and Navy—EO—Equipment Operator. The NPRM proposed allowing SDLAs to waive the knowledge test for current service members or veterans who are or were regularly employed in a military position requiring operation of a CMV, and are or were operating a vehicle representative of the CMV the driver applicant expects to operate after receiving a CDL, or who operated such a vehicle immediately preceding separation from the military, regardless of MOS.
The ABA requested that a list of MOS be put into regulatory language or the driver's SDLA record, and suggested that it would be appropriate to add such a list to an appendix to the final rule, a website, or a new ELDT rule. The ABA stated that a driver's use of the waiver and potentially his or her MOS should be included in the driver's record for prospective employers to review and evaluate during pre-employment screening.
Oregon asked for a list of specific MOS to which the knowledge test waivers would apply and provided a list it said should be used. Oregon stated that the list could be expanded in the future, but was necessary for SDLAs' use.
Virginia DMV asked if the Agency's intent was to allow test waivers only for the MOS listed in the NPRM; if so the regulatory language should be amended to refer to “a military position occupation specialty requiring completion of a military driver training program that has been approved by FMCSA and operation of a CMV.”
The list of MOS in this final rule has been expanded to include the following:
• 88M (Army), motor transport operator.
• 14T (Army), PATRIOT launching station operator.
• 92F (Army), fueler.
• 2T1 (Air Force), vehicle operator.
• 2F0 (Air Force), fueler.
• 3E2 (Air Force), pavement and construction equipment operator.
• 3531 (Marine Corps), motor vehicle operator.
• EO (Navy), equipment operator.
The Agency has concluded that these programs enable drivers likely to achieve a level of safety equivalent to, or greater than, the level that would be achieved by requiring them to pass the CLP knowledge test. The Army, Air Force, Marine Corps, and Navy provide specific training dedicated to operating heavy-duty vehicles.
There are three basic military job training classifications, with additional training for other types of heavy-duty specialty vehicles (
The four core training programs for heavy vehicle operations, based on the occupational specialty code of the service member, are:
• Army—88M—Motor Transport Operator.
• Air Force—2T1—Vehicle Operations.
• Marine Corps—3531—Motor Vehicle Operator.
• Navy—EO—Equipment Operator.
The 88M Instructor Training Manual is 142 pages long. The student manual—
• Lecture—32 classroom hours.
• Practical application—road driving—189 hours.
Motor Transport Operators are responsible primarily for operating wheeled vehicles to transport personnel
A fueler for the Army, a driver with an Army classification of 92F, has completed the Army 88M course and additional training specific to the job of a fueler.
A PATRIOT Launching Station Operator, a driver with an Army classification of 14T, has completed the Army 88M course and additional training specific to the both the vehicle and systems the vehicle transports. Total training for this MOS exceeds 264 hours.
The Air Force
• 22 hours of classroom.
• 62 hours of hands-on activity, both alone on a training pad and on the road with an instructor.
The core curriculum is based on the material in the
Topics covered in the Air Force Vehicle Operations course include: Overview of training and Federal requirements; Federal motor vehicle safety standards; tractor/trailer design; hazards and human factors relative to the environment where used; safety clothing and equipment; driving safely; pre- and post-trip vehicle inspection; basic vehicle control; shifting gears; managing space and speed; driving in mountains, fog, winter, very hot weather, and at night; railroad crossings; defensive awareness to avoid hazards and emergencies; skid control and recovery; what to do in case of a crash; fires; staying alert and fit to drive; hazardous materials—rules for all commercial drivers; preparing, inspecting, and transporting cargo safely; inspecting and driving with air brakes; driving combination vehicles safely; and coupling and uncoupling.
Air Force fuelers holding 2F0, and Air Force pavement and construction equipment operators holding 3E2, must first complete training for 2T1, before completing additional training specific to the roles of 2F0 and 3E2.
The core curriculum of the Marine Corps 3531 course—TM 11240-15/3G contains three training areas:
• Lecture—24 classroom hours.
• Demonstration—classroom/training pad—35 hours.
• Practical application—road driving—198 hours.
Instructional breakout includes:
• Demonstration: 35 hours.
• Guided discussion: 1.5 hours.
• Lecture: 24 hours.
• Performance examination: 62 hours.
• Practical application (individual): 198 hours.
• Knowledge examination: 7 hours.
Classroom instruction includes lectures, demonstration, and practice time for the specific tasks identified. Each classroom session includes knowledge and performance evaluations to ensure students have mastered all learning objectives for the specialty proficiency. Training includes simulators and actual vehicle operation. Practical training includes on-the-road and skills operations, ground guide procedures, and operating a vehicle with a towed load. Students practice their driving and backing, with and without a trailer. Instructors ride with the students as they operate on approved road routes. Specific training areas (pads) are provided for the students to practice their backing skills and ground guide procedures safely.
The Marine Corps training curriculum includes emergency procedures and cargo loading.
The core curriculum of the USN Heavy Vehicle Operator (Truck Driver) (EO) course (53-3032.00) is designed to train Navy personnel to operate passenger and cargo vehicles to rated capacity. They palletize, containerize, load and safely transport various types of cargo and demonstrate knowledge and skills to qualify as a driver journeyman. The complete program covers topics including:
• Hazardous materials transportation.
• Line haul planning.
• Manual tractor-truck operations.
• Vehicle Recovery Operations.
The course is taught over 160 hours including 30 hours of classroom and 130 hours of lab (behind the wheel). Upon completion of this course, the Navy driver will be able to:
• Perform the duties of normal, non-combat conditions driving in accordance with the local State driver licensing agency's CDL driver handbook;
• Manage hazardous petroleum, oils and lubricants (POL) material required during line haul and worksite activities, to support normal, non-combat operations;
• Perform preventive maintenance on a non- or up-armored manual truck tractor with drop-neck trailer, consisting of pre-start, during-operations, and after-operations equipment checks, to support normal, non-combat operations, in accordance with local State Driver License Agency CDL handbooks;
• Operate vehicle controls of a non- or up-armored manual truck-tractor, to support normal, non-combat operations; and
• Be proficient with the components and controls of a drop-neck trailer relative to a detached/attached gooseneck and a coupled/uncoupled trailer.
Other topics covered within the Navy EO training program include:
• Development and maintenance of operational records.
• Operation of high mobility multi-purpose wheeled vehicles.
• Weight distribution and load securement.
• Loading bulk and container cargo.
• Preventive maintenance.
• Pre- and post-trip vehicle safety inspections.
The military training programs described above are thorough and comprehensive, incorporating most of the elements recommended by the Professional Truck Driver Institute, which has been the principal standard-setting organization for private-sector motor carrier training for decades. They are entirely compatible with the requirements of FMCSA's ELDT rule. Although geared to heavy-duty military vehicles, military training is readily transferrable to a civilian context, as the operational characteristics of large military and civilian vehicles are very similar and, in some cases, identical. The Agency believes that exempting these drivers from the CLP knowledge test, in addition to the skills test, will have no adverse effect on highway safety.
This final rule also provides for waivers involving H, N, and P endorsements of drivers who hold an
FMCSA recognizes that military vehicles can carry a variety of hazardous materials. Military personnel who carry fuel and other types of hazardous materials, including powder, weapons, and ammunition, are trained and certified to transport these materials. FMCSA clarifies that service members applying for waivers from the H endorsement knowledge test must still undergo the Hazardous Materials Endorsement Threat Assessment Program through the Transportation Security Administration (TSA) (49 CFR part 1572). SDLAs may not issue the H endorsement until TSA has completed its background check and approved the driver.
The Agency's ELDT final rule has a compliance date of February 7, 2020. Under 49 CFR 383.603(a)(3) of that rule, “[v]eterans with military CMV experience who meet all the requirements and conditions of § 383.77” are exempt from the rule's training requirements [81 FR 88732, 88790, December 8, 2016]. Section 383.77 allows States to waive the skills test for certain drivers with military CMV experience. This final rule allows a comparable waiver of the knowledge test. However, this rule does not affect 49 CFR 391.31, under which motor carriers must require their drivers to complete a road test before operating a CMV, unless the carrier chooses to accept a valid CDL in lieu of the road test (though it may not waive the road test if the driver has an N endorsement) [49 CFR 391.33]. In short, employers may still require drivers with military CMV experience who obtain a CDL without completing either the skills test or the knowledge test to complete a road test.
FMCSA proposed to allow States to exempt from the knowledge test for a CLP or CDL certain current or former military service members who were regularly employed in a military position requiring the operation of a CMV during a 1-year period immediately prior to the application. There would be no time limit for military personnel while on active duty or serving actively within a reserve component or the National Guard to apply for the waiver.
The NPGA and the PGANE asked that the proposal's 1-year waiver period be extended to 5 years. These commenters argued that the nature of CMV driving does not change so rapidly that a 5-year period would make training obsolete, even if the applicant had not driven in the past year.
Oregon thought that the time limits for the knowledge and skills test waivers should be identical. Oregon stated that, as proposed, the NPRM did not match the length of the skills test waiver.
One commenter requested that the proposal be extended to non-military personnel. Another stated that veterans should have licenses granted automatically, as they are driving on behalf of the U.S. Military.
Federal regulations already exempt active duty military personnel from the need to hold a CDL when driving while on duty in a military vehicle on official military orders (49 CFR 383.3(c)). This final rule, in combination with the Military CDL I final rule, will allow States to make the licensing of current or former military personnel as close to automatic as possible. Other Federal requirements for licensure, like a medical examiner's certification, must be met and cannot be waived. However, qualified current and separated service members will now have significantly reduced obstacles to earning non-military licenses.
The Agency's June 12, 2017, NPRM proposed that SDLAs may waive the knowledge test; it would be entirely voluntary.
The CVTA asked FMCSA to consider setting guidelines for the process to increase consistency between SDLAs. ABA asked how the driver's SDLA record will reflect whether certain tests were waived.
Several commenters, including the two propane gas organizations, supported a voluntary waiver program and stated that a 3-year compliance date for States was appropriate.
ATA suggested that FMCSA work with AAMVA to develop a required form to verify that a driver has been trained in the ELDT elements to a level at least equivalent to that reflected by passage of the knowledge exam. Oregon asked several questions regarding coordination between the State of duty station and the State of domicile. Oregon asked if it was the Agency's intention to allow a State to administer all knowledge tests for certain military service members not domiciled there, but to limit that provision to just the general knowledge test for all other non-domiciled applicants.
The Virginia DMV stated that the process outlined in the proposed rule regarding testing for and obtaining a civilian CDL seems unnecessary and burdensome to the applicant because the 2012 Act already allows a State to issue a CDL to military personnel stationed but not domiciled there. The commenter called attention to the CDL rule prohibiting a driver from holding
Another concern of the Virginia DMV was the requirement of 49 CFR 383.71(b)(9) for applicants to provide a proof of citizenship or lawful residency in a State of domicile in cases where they do not have such identification. Moreover, the commenter believed that FMCSA should provide an exception for applicants who do not have an active residential or mailing address in the State of domicile and allow such applicants' CDL or CLP to show an address located in the State of duty station.
The Virginia DMV was concerned with the provision that permits the State of duty station to accept an application for a CLP or CDL, including an application for waiver of the knowledge test or skills test, only if the State of duty station obtains prior approval from the State of domicile. The commenter wrote that “this creates an excessive burden on States to go state by State in obtaining prior approval agreements with other States. DMV is also concerned that if a duty station State does not obtain prior approval from a State of domicile before proceeding or the duty station State misunderstands what is approved[,] this will result in an undue hardship on military service members who must rely on the duty station State to follow regulations. Therefore, the Virginia DMV recommends that it should be the applicant's responsibility to obtain written approval from the State of domicile prior to beginning any exams in the duty station State since some applicants may be ineligible for domicile accommodation, due to outstanding administrative requirements in the State of domicile (
Lastly, Virginia DMV noted that the cost associated with complying with the proposed rule is neither minimal, given the need for changes to State law, nor would the required re-programming of information technology systems would be minor, as the NPRM indicated. FMCSA needs to address these administrative and other costs. Moreover, Virginia DMV said that, if it participates in the waiver program, it would not do so until AAMVA had developed a secure system to transmit knowledge test results and other documentation.
Responding to the ATA's request that FMCSA specify a form demonstrating the equivalence of military training with the standards required for ELDT, the Agency has concluded, after consultation with AAMVA and close examination of the military training and testing manuals and procedures, that training to the prescribed MOS standards meets or exceeds that required by the ELDT rule. The form requested by ATA is therefore unnecessary.
This final rule makes no changes to the existing domicile requirements or any other provision of part 383. While the 2012 Act does allow States to issue CDLs to military personnel stationed there, no States have done so. The NPRM and this final rule avoid the possibility that CDL applicants could inadvertently lose their “home” State of domicile by accepting a CDL from the State of duty station.
The requirement and documents needed to provide proof of citizenship or lawful permanent residency in § 383.71(b)(9) are the same, whether the application is being made in the State of domicile or some other State. Without that proof, a CLP or CDL may not be issued. As for Virginia DMV's concern about the possible inability of an applicant to show an active mailing address in his or her “home” State to prove domicile, § 383.71(b)(10) allows the use of a “government issued tax form” to serve as proof. Without such a tax record, there is no good reason to believe an applicant's assertion of domicile in a State.
The NPRM described the various military training programs and explained that they are thorough and comprehensive. These programs incorporate most of the elements recommended by the Professional Truck Driver Institute. Military training is entirely compatible with the requirements of FMCSA's ELDT rule (81 FR 88732, December 8, 2016, also available in docket FMCSA-2007-27748).
ATA stated that FMCSA should verify that all military training programs thoroughly cover all elements required by the ELDT rule, and, if they do not, should work with the military branches to secure comparable training.
CVTA stated that the training manuals from the Army, Navy, Air Force, and Marines all covered, in “considerable detail,” the skills needed under the ELDT rule.
NSTA stated that individuals seeking a waiver should “certify and provide evidence” of their training and experience, specifically for passenger carrier and school bus endorsements. ATA asked the Agency for “explicit acknowledgement” that a driver using the waiver has the knowledge necessary to pass the test. ATA also said that employers may view the waiver as a lesser standard, and that FMCSA should provide the same process for checking the driver's record, experience, restrictions, equipment, etc., as States allow for other drivers. ATA expressed concern that veterans utilizing this program might be perceived as holding a lesser license.
ABA requested guidance on how an employer could confirm a driver's service and MOS. Oregon asked how to confirm that a driver attempting to use this waiver had proper training and experience. Oregon also asked if certain MOS should be considered proof of appropriate training, and requested a formal definition of “approved training.”
ATA asked if FMCSA planned to require the usual 14-day waiting period between issuing these two licenses (49 CFR 383.25(e)).
FMCSA revised 49 CFR 383.77,
Virginia DMV submitted multiple comments and questions about parts of the FMCSRs that were not substantively modified by this rulemaking, reflecting misunderstandings about the NPRM. Modifications to the final rule in response to other comments have resolved and clarified the issues raised by Virginia DMV.
The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries in which they operate unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences among nations.
The reference to “written” tests in paragraph (a)(1) is changed to “knowledge” tests and the term “commercial motor vehicle” is abbreviated as “CMV” to match the terminology used elsewhere in 49 CFR part 383. The word “skills” is added after “driving” to clarify the type of test. No changes are made to other paragraphs in this section.
This section is retitled as
FMCSA adds new paragraph (a), titled
New paragraph (b) is titled
New paragraph (c) is titled
The title of this section and paragraph (a) are modified to include the term “driving” before the terms “skills.” Other editorial changes are made to paragraph (a). Existing paragraph (b),
New paragraph (l) is added to provide a compliance date for this rule.
FMCSA performed an analysis of the impacts of the final rule and determined it is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563, Improving Regulation and Regulatory Review. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that Order. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034 (Feb. 26, 1979)).
This rule will allow, but not require, States to waive the requirements for the CDL knowledge tests for certain current or former military service members who can certify and provide evidence that they were regularly employed within the last year in a military position that requires/required the operation of a CMV. This rule will provide an expedited path for certain military service members to enter the labor market by eliminating the usual 14-day waiting period after passing the knowledge test for the CLP and either
FMCSA evaluated potential costs and benefits that could result from this rulemaking. The Agency estimates that an annual average of 2,460 military service members will be affected by the rule, with each experiencing a reduction in costs related to elimination of the CDL knowledge test and the 14-day waiting period. As presented in Table 1, the final rule will result in a 10-year cost savings of $16.66 million undiscounted, $14.21 million discounted at 3 percent, $11.70 million discounted at 7 percent, and $1.67 million on an annualized basis at 7 percent or 3 percent discount rates.
The Agency does not know how many military service members will receive CDL knowledge test waivers and uses the number of CDL skills test waivers issued as a proxy for the number of military service members who will be most likely to use the relief provided in this rule. In the Military CDL I final rule, FMCSA estimated that an annual average of 2,460 military service members were granted skills test waivers, and thus estimates that the same number will be granted knowledge test waivers as a result of this final rule. For purposes of this analysis, FMCSA assumed that number would remain constant in future years.
The Agency evaluated changes in the opportunity cost of time for military service members, or drivers, using the driver wage rate to represent the value of the drivers' time. In the absence of the rule, that time would have been spent taking the CDL knowledge tests and waiting to procure employment as CMV drivers, time that will now be available to drivers for other uses, such as productive employment. The source for driver wages is the median hourly wage data (May 2016) from the U.S. Department of Labor (DOL), Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES).
FMCSA assumes that military service members are employed while they are waiting to obtain a CDL and uses the light truck or delivery service driver wage rate (industry code 53-3033) as a proxy for the employment opportunities available to non-CDL drivers. Per the BLS definition, drivers in the light truck or delivery service industry drive a truck or van with a capacity of less than 26,000 pounds gross vehicle weight and, as such, do not require a Class A or a Class B CDL. FMCSA uses a driver wage rate of 23 to account for non-CDL driving opportunities available to military service members, which is the base median hourly wage of $14.70 adjusted to account for fringe benefits ($23 = $14.70 × 1.56).
FMCSA uses the heavy tractor-trailer wage rate (industry code 53-3032) of $31 to represent the employment opportunities available to military service members after they obtain their CDL. This value is the base median wage of $19.87, adjusted to account for fringe benefits ($31 = $19.87 × 1.56).
This rule will reduce driver opportunity cost by creating an expedited path for certain military service members to obtain their CDL and begin working for a motor carrier. First, the affected military service members will receive a waiver for the CDL knowledge tests and will experience a reduction in opportunity cost equal to the length of time they would have spent taking the CDL knowledge tests. FMCSA estimates that each of the 2,460 affected military service members will save approximately 60 minutes, or one hour, and values this time at the wage the driver will be earning in the absence of the CDL knowledge test requirement, $31. As displayed in Table 1, FMCSA estimates that the annual undiscounted cost savings of allowing a CDL knowledge test waiver are approximately $76,000 ($76,000 = 2,460 drivers × 1 hour × $31), and the total 10-year undiscounted cost savings are approximately $760,000.
Second, because of the waiver, certain military service members will no longer be required to wait 14 days before obtaining their CDL and beginning employment for a motor carrier. Eliminating the waiting period could result in up to 80 hours of increased wages (two 40-hour work weeks). Because the military service members are estimated to be working and earning a wage during the waiting period, the impact of removing the waiting period is the difference between what they are earning under the baseline (estimated at $23), and what they will earn under the rule (estimated at 31). Thus, FMCSA quantified the impact of removing the waiting period at 8 per hour ($8 = $31 − $23). The analysis similarly estimated that this will impact 2,460 service members. As presented in Table 1, FMCSA estimates that the annual undiscounted cost savings are $1.59 million ($8 × 80 × $2,460), and the 10-year total undiscounted cost savings are $15.90 million.
As presented in Table 1, the total cost savings of the final rule are $16.66 million undiscounted, $14.21 million discounted at 3 percent, $11.70 million discounted at 7 percent, and $1.67 million annualized at both a 3 percent and 7 percent discount rate.
In considering the potential impacts on safety from this rule, the Agency notes that affected military service members have previous training or experience operating a CMV, which serves as an adequate substitute for taking the knowledge test and holding a CLP for a minimum of 14 days. Therefore, the Agency anticipates that there will be no change in potential safety benefits associated with this rule.
This final rule is expected to be an E.O. 13771 deregulatory action.
The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601
When an agency issues a rulemaking proposal, the RFA requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify, in lieu of preparing an analysis, that the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
FMCSA provided a factual basis and certified in the proposal that the rule would not have a significant impact on a substantial number of small entities. FMCSA did not receive comments on the factual basis or the proposal, and has not changed the determination in this final rule.
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, Selden Fritschner, listed in the
Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions
This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Section 1(a) of E.O. 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
FMCSA has determined that this rule would not have substantial direct costs on or for the States, nor will it limit the policymaking discretion of the States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.
This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.
FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
The Consolidated Appropriations Act, 2005, (5 U.S.C. 552a note) requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. Because this final rule does not require the collection of personally identifiable information (PII), the Agency is not required to conduct a PIA.
Section 208 of the E-Government Act of 2002 (44 U.S.C. 3501 note) requires Federal agencies to conduct a PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a PIA.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that the rule is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
E.O. 13783 directs executive departments and agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources, and to appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources. In accordance with E.O. 13783, DOT prepared and submitted a report to the Director of OMB that provides specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency action that burden domestic energy production. This final rule has not been identified by DOT under E.O. 13783 as potentially alleviating unnecessary burdens on domestic energy production.
This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (
FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
In consideration of the foregoing, FMCSA amends 49 CFR chapter III, parts 383 and 384, to read as follows:
49 U.S.C. 521, 31136, 31301
(a) * * *
(1) No person shall operate a CMV unless such person has taken and passed knowledge and driving skills tests for a CLP or CDL that meet the Federal standards contained in subparts F, G, and H of this part for the CMV that person operates or expects to operate.
(a)
(2)
(i) Is or was regularly employed and designated as a:
(A) Motor Transport Operator—88M (Army);
(B) PATRIOT Launching Station Operator—14T (Army);
(C) Fueler—92F (Army);
(D) Vehicle Operator—2T1 (Air Force);
(E) Fueler—2F0 (Air Force);
(F) Pavement and Construction Equipment Operator—3E2 (Air Force);
(G) Motor Vehicle Operator—3531 (Marine Corps); or
(H) Equipment Operator—E.O. (Navy).
(ii) Is operating a vehicle representative of the CMV type the driver applicant expects to operate upon separation from the military, or operated such a vehicle type immediately preceding separation from the military;
(iii) Has not simultaneously held more than one civilian license (in addition to a military license);
(iv) Has not had any license suspended, revoked, or cancelled;
(v) Has not had any convictions for any type of motor vehicle for the disqualifying offenses contained in § 383.51(b);
(vi) Has not had more than one conviction for any type of motor vehicle for serious traffic violations contained in § 383.51(c); and
(vii) Has not had any conviction for a violation of military, State, or local law relating to motor vehicle traffic control (other than a parking violation) arising in connection with any traffic accident, and has no record of an accident in which he/she was at fault.
(b)
(2)
(i) An applicant must provide evidence and certify that he/she:
(A) Is regularly employed or was regularly employed within the last year in a military position requiring operation of a CMV;
(B) Was exempted from the CDL requirements in § 383.3(c); and
(C) Was operating a vehicle representative of the CMV type the driver applicant operates or expects to operate, for at least the 2 years immediately preceding separation from the military.
(ii) An applicant must certify that, during the 2-year period immediately prior to applying for a CDL, he/she:
(A) Has not simultaneously held more than one civilian license (in addition to a military license);
(B) Has not had any license suspended, revoked, or cancelled;
(C) Has not had any convictions for any type of motor vehicle for the disqualifying offenses contained in § 383.51(b);
(D) Has not had more than one conviction for any type of motor vehicle for serious traffic violations contained in § 383.51(c); and
(E) Has not had any conviction for a violation of military, State or local law relating to motor vehicle traffic control (other than a parking violation) arising in connection with any traffic crash, and has no record of a crash in which he/she was at fault.
(c)
(2)
(3)
(4)
(i) Is or was regularly employed in a military position requiring operation of a passenger CMV, if the applicant is requesting a waiver of the knowledge and driving skills test for a passenger endorsement; operation of a tank vehicle, if the applicant is requesting a waiver of the knowledge test for a tank vehicle endorsement; or transportation of hazardous materials, if the applicant is requesting a waiver of the knowledge test for a hazardous materials endorsement;
(ii) Has not simultaneously held more than one civilian license (in addition to a military license);
(iii) Has not had any license suspended, revoked, or cancelled;
(iv) Has not had any convictions for any type of motor vehicle for the disqualifying offenses contained in § 383.51(b);
(v) Has not had more than one conviction for any type of motor vehicle for serious traffic violations contained in § 383.51(c); and
(vi) Has not had any conviction for a violation of military, State or local law relating to motor vehicle traffic control (other than a parking violation) arising in connection with any traffic crash, and has no record of a crash in which he/she was at fault.
(a)
(2)
(b)
(1)
(A) Is regularly employed or was regularly employed within the last year in a military position requiring operation of a CMV;
(B) Has a valid driver's license from his or her State of domicile;
(C) Has a valid active-duty military identification card; and
(D) Has a current copy of either the service member's military leave and earnings statement, or his or her orders.
(ii) A State where active-duty military service members are stationed, but not domiciled, may:
(A) Administer the knowledge and driving skills tests to the military service member, as appropriate, in accordance with subparts F, G, and H of this part, if the State of domicile requires those tests; or
(B) Waive the knowledge and driving skills tests in accordance with § 383.77, if the State of domicile has exercised the option to waive those tests; and
(C) Destroy the military service member's civilian driver's license on behalf of the State of domicile, unless the latter requires the driver's license to be surrendered to its own driver licensing agency.
(iii) The State of duty station must transmit to the State of domicile by a direct, secure, and efficient electronic system the completed application, any supporting documents, and—if the State of domicile has not exercised its waiver option—the results of any knowledge and driving skills administered.
(2)
(i) Accept the completed application, any supporting documents, and the results of the knowledge and driving skills tests administered by the State of duty station (unless waived at the discretion of the State of domicile); and
(ii) Issue the applicant a CLP or CDL.
49 U.S.C. 31136, 31301
(l) A State must come into substantial compliance with the requirements of subpart B of this part and part 383 of this chapter in effect as of November 27, 2018 as soon as practicable, but, unless otherwise specifically provided in this part, not later than November 27, 2021.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, NMFS, announce a final rule to list the chambered nautilus (
This final rule is effective October 29, 2018.
Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910. Copies of the petition, status review report, and
Maggie Miller, NMFS, Office of Protected Resources, (301) 427-8403.
On May 31, 2016, we received a petition from the Center for Biological Diversity to list the chambered nautilus (
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines “species” to include any subspecies of fish or wildlife or plants and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). Because the chambered nautilus is an invertebrate, the ESA does not permit us to consider listing populations as DPSs.
Section 3 of the ESA defines an “endangered species” as a species which is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. 1532(6); (20). Thus, in the context of the ESA, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species” is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species is or is likely to become in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).
As we explained in the proposed rule and summarize here, when we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The appropriate timescales for analyzing various threats will vary with the data available about each threat. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the ability to reliably forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.
The statute also requires us to determine whether any species is endangered or threatened throughout all or a significant portion of its range as a result of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms to address identified threats; or other natural or manmade factors affecting its continued existence (ESA section 4(a)(1)(A)-(E); 16 U.S.C. 1533(a)(1)(A)-(E).
To make a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we assess the extinction risk of the species. In assessing the extinction risk of a species, in conjunction with the section 4(a)(1) factors, we consider demographic risk factors, such as those developed by McElhany
Where a species is found not to warrant listing throughout its range, we must go on to evaluate whether the species may be endangered or threatened in a “significant portion of its range.” Conversely, where a species is found to warrant listing as an endangered species or a threatened species based on a review of its status throughout its range, it is not necessary to proceed to an evaluation of potentially significant portions of the range. As explained more fully in the proposed rule, we interpret the Act to require that, where the best available information allows us to determine a status for the species rangewide, that status determination should be given conclusive weight. Our interpretation is also consistent with the 2014 Final Policy on Interpretation of the Phrase “Significant Portion of its Range” (79 FR 37578, July 1, 2014).
Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account any efforts being made by any State or foreign nation or political subdivision thereof to protect the species. 16 U.S.C. 1533(b)(1)(A). Therefore, prior to making a listing determination, we also assess such protective efforts to determine if they ameliorate the existing threats to a degree that would affect the listing status of the species under the Act. Any relevant foreign efforts are directly evaluated under standards deducible from section 4(b)(1)(A) and the statute's structure.
A summary of basic biological and life history information of the chambered nautilus can be found in the proposed rule and the status review report. In reaching our proposed listing determination, we used the best available scientific and commercial data on the chambered nautilus, which are summarized in the status review report and incorporated herein.
Scientific conclusions about the overall risk of extinction faced by the chambered nautilus under present conditions and in the foreseeable future are based on our evaluation of the species' demographic risks and ESA section 4(a)(1) threat factors. Our assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative impact of all demographic risks and threats on the chambered nautilus. After considering conservation efforts by foreign nations to protect the species, as required under section 4(b)(1)(A), we proposed to list the species as a “threatened species.”
For the assessment of extinction risk for the chambered nautilus, the “foreseeable future” was considered to extend out several decades (> 40 years). Given the species' life history traits, with longevity estimated to be at least 20 years, maturity ranges from 10 to 17 years, with very low fecundity (potentially 10-20 eggs per year with a 1-year incubation period), it would likely take more than a few decades (
To make our final listing determination, we reviewed all comments and information provided during the public comment period on the proposed rule. In general, this additional information merely supplemented, and did not differ significantly from, the information presented in the proposed rule. Where new information was received, we have reviewed it and present our evaluation of the information in this final rule. The new information received was not so significant that we are relying on it for our final determination.
With this rule, we finalize our listing determination for the chambered nautilus as a “threatened species.”
In response to our request for public comments on the proposed rule, we received comments and/or relevant information from 16 parties. The large majority of commenters supported the proposed listing determination but provided no new or substantive data or information relevant to the listing of the chambered nautilus. We also solicited comments from the countries where the chambered nautilus occurs via their ambassadors and received a response from the Philippines Bureau of Fisheries and Aquatic Resources and the Government of India. Summaries of the substantive public comments received and our responses are provided below and organized by topic.
In terms of effective population size, the commenter noted that the estimates provided in Combosch
While the results from Combosch
With respect to the new effective population size estimates in Combosch
The Government of India also commented that India, along with Fiji and the United States, proposed the listing of Nautilidae on Appendix II of CITES during the 17th meeting of the Conference of the Parties to CITES. Considering this, the Government states that India has no objections to the listing of the species as threatened under the ESA.
Regarding the request to use a precautionary approach when making a listing decision, it would be inappropriate apply a presumption in favor of a particular listing status under the Act. Under the framework of the ESA, the threshold determination of whether or not to list a species is required to be a scientific conclusion based solely on the best available scientific and commercial information. In carrying out other provisions under the ESA that come into play after the time of listing, such as conducting consultations under section 7, it may be appropriate to apply a “precautionary approach” or give the benefit of the doubt to the species. But such considerations do not apply at the step of making a listing determination under Section 4.
While the commenter stated that CITES protection for the species would not be sufficient to prevent the chambered nautilus from becoming endangered in the foreseeable future, the commenter pointed to no information regarding current implementation efforts and enforcement of CITES requirements, or overall effectiveness of the CITES Appendix II listing in ensuring the sustainable trade of the chambered nautilus to support their assertion. If sustainable trade in this species is achieved as a result of the CITES Appendix II listing, the need for additional protective measures would be unnecessary; however, at this time, we are still evaluating the effectiveness of the CITES Appendix II listing of the chambered nautilus. Also, in response to the commenter's concerns regarding interstate commerce, as mentioned in the proposed rule and status review report, we found no evidence of local utilization or commercial harvest of chambered nautiluses in American Samoa. Therefore, any sale of non-imported chambered nautilus shells in interstate commerce would likely involve collected drift shells from American Samoa (
We did not receive, nor did we find, data or references that presented substantial new information that would cause us to change our proposed listing determination. We did, however, make several revisions to the final status review report (Miller 2018) to incorporate, as appropriate, relevant information received in response to our request for public comments.
Specifically, we updated the status review to include new information regarding the sale of nautilus shells in the Philippines (K. Schroeder, pers. comm. 2017), the taxonomy of the species (Combosch
As noted previously, nautilus taxonomy is controversial and still not fully resolved. However, the current scientific consensus is that
As stated previously and as discussed in the proposed rule (82 FR 48948, October 23, 2017), we conducted a demographic risk analysis for the chambered nautilus. This analysis evaluated the population viability characteristics and trends data available for the species to determine the potential risks these demographic factors pose to the species. Based on the available data, we found that the species exists as small and isolated populations throughout its range, with low rates of dispersal and little gene flow among populations, particularly those that are separated by large geographic distances and deep ocean expanses. Genetic variability within the species has likely been reduced due to bottleneck events and genetic drift in the small and isolated
The comments that we received on the proposed rule provided information that was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule. Therefore, our consideration of the information received has not altered our analysis of the demographic risks to the species.
As stated previously and as discussed in the proposed rule (82 FR 48948, October 23, 2017), we considered whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA are contributing to the extinction risk of the chambered nautilus and result in the species meeting the definition of “endangered species” or “threatened species.” The primary threat to the chambered nautilus is overutilization through commercial harvest to meet the demand for the international nautilus shell trade. Out of the 10 nations where
The comments that we received on the proposed rule provided information that was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule. Therefore, our consideration of the information received has not led us to change our conclusions regarding any of the section 4(a)(1) factors or their interactions. All of the information, discussion, and conclusions regarding the factors affecting the chambered nautilus contained in the final status review report (Miller 2018) and the proposed rule is reaffirmed in this final action.
As discussed previously, the status review report evaluated the demographic risks to the chambered nautilus according to four categories—abundance and trends, population growth/productivity, spatial structure/connectivity, and genetic diversity. As a concluding step, after considering all of the available information regarding demographic and other threats to the species, we rated the species' extinction risk according to a qualitative scale (high, moderate, and low risk). We found that
The information received from public comments on the proposed rule was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule. Therefore, our consideration of the information received has not altered our view of the extinction risk of the chambered nautilus. Our conclusion regarding the extinction risk for the chambered nautilus remains the same. Therefore, all of the information, discussion, and conclusions on the extinction risk of the chambered nautilus contained in the final status review report and the proposed rule is reaffirmed in this final action.
In addition to regulatory mechanisms (considered under ESA section 4(a)(1)(D)), we considered other efforts being made to protect the chambered nautilus (pursuant to ESA section 4(b)(1)(A)). The efforts we evaluated included a non-profit campaign devoted to raising the awareness of threats to the chambered nautilus and the potential for aquaculture or artificial propagation programs to satisfy the trade industry demand for shells and restore wild populations. We considered whether such protective efforts sufficiently ameliorated the identified threats to the point that they would alter the conclusions of the extinction risk analysis for the species so as to possibly avoid the need to list. None of the information we received on the proposed rule affected our conclusions regarding conservation efforts to protect the chambered nautilus. Thus, all of the information, discussion, and conclusions on the protective efforts for the chambered nautilus contained in the final status review report and proposed rule are reaffirmed in this final action.
We have reviewed the best available scientific and commercial information, including the petition, the information in the final status review report (Miller 2018), the comments of peer reviewers, and public comments. None of the information received since publication of the proposed rule (82 FR 48948, October 23, 2017) altered our analyses or conclusions that led to our determination for the chambered nautilus. Therefore, the determination in the proposed rule is reaffirmed in this final rule and stated below.
Based on the best available scientific and commercial information, and after considering efforts being made to protect
Conservation measures provided for species listed as endangered or threatened under the ESA include designation of critical habitat, to the maximum extent prudent and determinable (16 U.S.C. 1533(a)(3)(A)); development of recovery plans (16 U.S.C. 1533(f)); Federal agency consultations with NMFS under section 7 of the ESA to ensure their actions are not likely to jeopardize the species or result in adverse modification or destruction of critical habitat, should it be designated (16 U.S.C. 1536); and, for endangered species, prohibitions on taking and certain other activities (16 U.S.C. 1538). Prohibitions on taking, or other protections, may also be extended through regulation to threatened species. (16 U.S.C. 1533(d)). In addition, recognition of the species' imperiled status through listing can indirectly inform voluntary conservation actions by Federal and State agencies, foreign entities, private groups, and individuals.
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations (50 CFR part 402) require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Our section 7 regulations require the responsible Federal agency to initiate formal consultation if a Federal action may affect a listed species or its critical habitat (50 CFR 402.14(a)). Examples of Federal actions that may affect the chambered nautilus include: Fishery harvest and management practices, energy projects, discharge of pollution from point sources, non-point source pollution, dredging, mining, pile-driving, military activities, toxic waste and other pollutant disposal, and shoreline development. This list is not exhaustive, and the extent to which consultation is required will depend on the particular facts of any particular proposed Federal action.
In the case of threatened species, ESA section 4(d) gives the Secretary discretion to issue such regulations as he or she deems necessary and advisable for the conservation of the species. 16 U.S.C. 1533(d). The Secretary may also decide to extend some or all the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) to the species.
As mentioned in the status review report and proposed rule, all nautilus species were included on Appendix II of CITES in October 2016, with the listing going into effect in January 2017. Export of nautilus products, such as shells, requires CITES permits that ensure the products were legally acquired and that the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species (after taking into account factors such as its population status and trends, distribution, harvest, and other biological and ecological elements). In the proposed rule, this CITES protection was determined not to have ameliorated the threats to the threatened chambered nautilus because the CITES listing had only recently gone into effect and, therefore, we lacked information that would allow us to fully evaluate its adequacy in decreasing the threat of overutilization. We are still in the process of collecting information in order to evaluate the effectiveness of this CITES Appendix II listing of the chambered nautilus as a tool to ensure the sustainable trade in this species. If we determine that additional measures may be necessary to safeguard the species against future depletion of populations or potential extinction of the chambered nautilus, then we may issue protective regulations under section 4(d) or extend some or all of the prohibitions of section 9(a)(1) of the ESA that automatically apply with respect to endangered species. However, at this time, we are not proposing to apply such prohibitions to the chambered nautilus. We may consider potential protective regulations pursuant to section 4(d) for chambered nautilus in a future rulemaking.
Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (
At this time, we find that critical habitat for the chambered nautilus is not determinable because data sufficient to perform the required analyses are lacking. As stated in the status review report and proposed rule, while it is known that chambered nautiluses are extreme habitat specialists, found in association with steep-sloped forereefs with sandy, silty, or muddy-bottomed substrates, and in depths from around 100 meters to 500 meters, the presence of these features does not necessarily indicate the likelihood of chambered nautilus occurrence. Chambered nautiluses have a patchy distribution and, given the difficulty associated with accessing their habitat and observing the species for research purposes, very little is known regarding important aspects of the species' life history, such as reproduction and growth in the wild. As such, we find that sufficient information is not currently available to: (1) Identify the physical and biological features essential to conservation of the species at an appropriate level of specificity, particularly given the uncertainty regarding habitat features necessary to support important life history needs and the irregularity and unpredictability of chambered nautiluses within areas they are known to occur, (2) determine the specific geographical areas that contain the physical and biological features essential to conservation of the species, and (3) assess the impacts of the designation. Therefore, public input on features and areas under U.S. jurisdiction that may meet the definition of critical habitat for the chambered nautilus is invited. Additional details about specific types of information sought are provided in the
Because critical habitat is not currently determinable for the chambered nautilus, we are not proposing to designate critical habitat in this rulemaking. We request interested persons to submit relevant information regarding the identification of critical habitat of the chambered nautilus, including specific areas within the geographical area occupied by the species that include the physical or biological features essential to the conservation of the species and that may require special management considerations or protection. Areas outside the occupied geographical area should also be identified if such areas themselves are essential for the conservation of the species. ESA implementing regulations at 50 CFR 424.12(g) specify that critical habitat shall not be designated within foreign countries or in other areas outside of U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within U.S. jurisdiction.
Section 4(b)(2) of the ESA requires the Secretary to consider the economic impact, impact on national security, and any other relevant impact of designating a particular area as critical habitat. Section 4(b)(2) also gives the Secretary discretion to consider excluding from a critical habitat designation any particular area where the Secretary finds that the benefits of exclusion outweigh the benefits of including the area in the designation, unless excluding that area will result in extinction of the species.
To inform our consideration of potential critical habitat, we also request information describing the following with respect to the relevant features or areas: (1) Activities that may affect the essential features or threats to the essential features, or to an area of potential critical habitat itself; (2) activities that could be affected by designating specific areas as critical habitat; and (3) the positive and negative economic, national security and other relevant impacts, including benefits to the recovery of the species, likely to result if specific areas are designated as critical habitat. We seek information regarding the conservation benefits of designating areas under U.S. jurisdiction as critical habitat. In keeping with the guidance provided by the Office of Management and Budget (2000; 2003), we seek information that would allow the monetization of these effects to the extent possible, as well as information on qualitative impacts.
Information submitted may include, but need not be limited to: (1) Scientific or commercial publications; (2) administrative reports, maps or other graphic materials; and (3) information received from experts. Information and data are particularly sought concerning: (1) Maps and specific information describing the amount, distribution, and use type (
A list of all references cited in this final rule is available at
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
This rule is not an E.O. 13771 regulatory action because this rule is exempt from review under E.O. 12866.
E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations where a regulation will preempt state law or impose substantial direct ccompliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this final rule; therefore this action does not have federalism implications as that term is defined in E.O. 13132. In accordance with E.O. 13132, we determined that this final rule does not have significant federalism effects and that a federalism assessment is not required.
Endangered and threatened species.
For the reasons set out in the preamble, 50 CFR part 223 is amended as follows:
16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361
(e) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS approves regulations to implement Northeast Skate Complex Fishery Management Plan Framework Adjustment 5 management measures and 2018-2019 specifications for the skate fishery. The action is necessary to establish skate specifications to be consistent with the most recent scientific information and improve management of the skate fisheries. This action is intended to establish appropriate catch limits for the skate fishery and to provide additional operational flexibility to fishery participants.
Effective on September 28, 2018.
New England Fishery Management Council staff prepared an environmental assessment (EA) for Northeast Skate Complex Framework Adjustment 5 and 2018-2019 Specifications that describes the proposed action and other considered alternatives. The EA provides an analysis of the biological, economic, and social impacts of the proposed measures and other considered alternatives, a Regulatory Impact Review, and economic analysis. Copies of the Framework 5 and 2018-2019 Specifications EA are available on request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. This document is also available from the following internet addresses:
Debra Lambert, Fishery Policy Analyst, (301) 427-8560.
The Northeast Skate Complex Fishery Management Plan (FMP), developed by the New England Fishery Management Council and implemented in 2003, manages a complex of seven skate species (barndoor, clearnose, little, rosette, smooth, thorny, and winter skate) off the New England and mid-Atlantic coasts. Skates are harvested and managed in two different fisheries: One for food (the wing fishery) and one for lobster and crab bait (the bait fishery). Additional information on the skate fisheries can be found online at
On July 5, 2018, we proposed management modifications to implement Framework Adjustment 5 to the Northeast Skate Complex FMP and specifications for fishing years 2018-2019 (83 FR 31354). After reviewing public comments in response to the proposed rule, we are approving Framework 5 and 2018-2019 specifications as detailed in our proposed rule.
Specifications including the acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), total allowable landings (TAL) for the skate wing and bait fisheries, and possession limits may be specified for up to 2 years. We are approving the Council's recommended specifications for 2018-2019. As recommended, the 2018-2019 skate complex ABC and ACL is 31,327 mt. The ACT is set at 23,495 mt (75 percent of the ACL) to account for management uncertainty. After deducting projected dead discards and state landings, the overall TAL is 13,157 mt. Tables 1 and 2 (below) detail TALs and possession limits for the skate wing and skate bait fisheries. The skate wing and whole skate possession limits are status quo and the possession limits for barndoor skate are described further below.
Possession and landing of barndoor skate has been prohibited since 2003, when the Northeast Skate Complex FMP was first implemented, as part of efforts to rebuild the stock. NMFS declared the stock rebuilt in 2016, and Framework 5 allows for limited retention of barndoor skate in the directed wing fishery. This action specifies a proportional possession limit per trip that corresponds to the barndoor skate contribution (25 percent) to the overall skate catch based on observer data. Specifically, vessels fishing under a Northeast multispecies, scallop, or monkfish DAS, may possess and land up to 650 lb (295 kg) of wings per trip in Season 1 and 1,025 lb (465 kg) of wings per trip in Season 2. The possession limits for barndoor skate wings are included within the overall wing possession limit per trip (
The regulations for the skate wing fishery include in-season adjustments to possession limits once certain trigger points are met (see 50 CFR 600.322(b)(3)). This action specifies that when an in-season adjustment of the skate wing possession limit for the directed wing fishery is needed and the wing possession limit is reduced to 500 lb (227 kg) per trip, the possession limit for barndoor skate wings will be reduced to 125 lb (57 kg) per trip.
This action prohibits the discarding of any skate wings when a vessel is in possession of barndoor skate. This measure is intended to prevent high-grading and thereby minimize bycatch. Further, this action requires that barndoor skate wings and carcasses on board a vessel must be separated from other species of fish (including other skates) and stored so as to be readily available for inspection. This provision was not part of the Council's recommended measures under Framework 5, but we determined it is necessary to aid in the enforcement of barndoor possession trip limits by segregating barndoor skates to facilitate identification and compliance with the trip limit. We are establishing the measure under the authority of section 305(d) of the Magnuson-Stevens Act.
As described in the proposed rule, Framework 5 did not propose, discuss, or analyze options for allowing barndoor possession for vessels operating under other possession limits for skates, including: Vessels fishing for bait skate under a bait letter of authorization (§ 648.322(c)); vessels fishing under a Northeast multispecies Category B DAS (§ 648.322(b)); vessels fishing under the incidental skate possession limit for vessels not under a DAS (§ 648.322(b)); or when fishing in a Northeast multispecies DAS exemption program area that allows possession and landing of skate or skate parts in an amount not to exceed 10 percent by weight of all other species on board (as specified in § 648.80(b)(3)(ii)) without a Northeast multispecies or monkfish DAS. Therefore, this action does not allow vessels operating under the above mentioned scenarios to possess barndoor skates.
Framework 5 exempts vessels from domestic skate regulations when fishing exclusively within the NAFO Regulatory Area, except for the prohibition on possessing, retaining, or landing prohibited species. U.S. vessels fishing in the NAFO Regulatory Area are currently exempt from domestic Northeast multispecies and monkfish permit, mesh size, effort-control, and possession limit restrictions (see § 648.17). U.S. vessels in the NAFO area are largely targeting yellowtail flounder and Atlantic halibut, and exempting these vessels from domestic skate regulations would provide them additional flexibility to retain and land skates in the United States. NAFO specifies an annual quota and possession limits for skates, and the quota is not allocated to particular countries; access to skates is on a first come, first served basis.
This action specifies that vessels fishing under a High Seas Permit exclusively within the NAFO Regulatory Area are exempt from domestic skate regulations (
We received five public comments on the proposed rule, two of which were not responsive to the action.
NMFS has not made any changes to the regulatory text that was specified in the proposed rule.
The Administrator, Greater Atlantic Region, NMFS, determined that Framework 5 to the FMP and the 2018-2019 specifications is necessary for the conservation and management of the northeast skate complex and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law.
The Assistant Administrator for Fisheries, NOAA, finds that because this rule relieves restrictions and grants an exemption, it is excepted from the 30-day delay in effectiveness under 5 U.S.C. 533(d)(1). This rule relieves restrictions by increasing the ACL and allowing possession of barndoor skate (previously a prohibited species) in the directed skate wing fishery, and exempts vessels from some specific
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(v) * * *
(2)
(i) Retain, possess, or land thorny skates taken in or from the EEZ portion of the skate management unit specified at § 648.2.
(ii) Retain, possess, or land barndoor skates taken in or from the EEZ portion of the skate management unit when fishing under a bait letter of authorization as described in § 648.322(c); when fishing under a NE multispecies Category B DAS as described under § 648.322(b); when fishing under the incidental skate possession limit for vessels not under a DAS as described in § 648.322(b)(4); or when fishing in a NE multispecies DAS exemption program that allows the possession of skate or skate parts in an amount not to exceed 10 percent by weight of all other species on board, as specified in § 648.80(b)(3)(ii), without a NE multispecies or monkfish DAS.
(iii) Discard any skate wings when in possession of barndoor skate wings.
(iv) Retain, possess, or land smooth skates taken in or from the GOM RMA described at § 648.80(a)(1)(i).
(4)
(a) * * *
(3)
(b) * * *
(3) * * *
(ii)
(b)
(ii) When fishing under the possession limits specified in paragraph (b)(1)(i) of this section, a vessel is allowed to possess and land up to 650 lb (295 kg) of barndoor skate wings (1,476 lb (670 kg) whole weight) per trip in Season 1, and 1,025 lb (465 kg) of barndoor skate wings (2,327 lb (1,056 kg) whole weight) per trip in Season 2. The possession limits for barndoor skate wings are included within the overall possession limit (
(2)
(3)
(i) When 85 percent of the Season 1 skate wing quota is projected to be landed between May 1 and August 17, the Regional Administrator shall reduce the skate wing possession limit to the incidental level described in paragraph (b)(3) of this section.
(ii) When 85 percent of the Season 1 skate wing quota is projected to be landed between August 18 and August 31, the Regional Administrator may reduce the skate wing possession limit to the incidental level described in paragraph (b)(3) of this section.
(iii) When 85 percent of the annual skate wing fishery TAL is projected to be landed in Season 2, the Regional Administrator may reduce the skate wing possession limit to the incidental level described in paragraph (b)(3) of this section, unless such a reduction would be expected to prevent attainment of the annual TAL.
(4)
(5)
(g)
(1) Retain, possess, or land thorny skates taken in or from the EEZ portion of the Skate Management Unit.
(2) Retain, possess, or land barndoor skates taken in or from the EEZ portion of the skate management unit when fishing under a bait letter of authorization as described in paragraph (c) of this section; when fishing under
(3) Discard any skate wings when in possession of barndoor skate wings.
(4) Retain, possess, or land smooth skates taken in or from the GOM RMA described at § 648.80(a)(1)(i).
Office of the Comptroller of the Currency, Treasury; the Board of Governors of the Federal Reserve System; and the Federal Deposit Insurance Corporation.
Notice of proposed rulemaking.
The Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation (collectively, the agencies) are proposing to amend the regulatory capital rule to revise the definition of “high volatility commercial real estate (HVCRE) exposure” to conform to the statutory definition of “high volatility commercial real estate acquisition, development, orconstruction (HVCRE ADC) loan,” in accordance with section 214 of the Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA). Additionally, to facilitate the consistent application of the revised HVCRE exposure definition, the agencies propose to interpret certain terms in the revised HVCRE exposure definition generally consistent with their usage in other relevant regulations or the instructions to the Consolidated Reports of Condition and Income (Call Report), where applicable, and request comment on whether any other terms in the revised definition would also require interpretation.
Comments must be received by November 27, 2018.
Comments should be directed to: OCC: Commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title “Regulatory Capital Treatment for High Volatility Commercial (HVCRE) Exposures 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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In 2013, the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the agencies) adopted a revised regulatory capital rule (capital rule) that, among other things, addressed weaknesses in the regulatory framework that became apparent in the financial crisis of 2007-08.
On May 24, 2018, EGRRCPA became law. Section 214 of EGRRCPA
HVCRE ADC Loan is defined for the purposes of section 51 and with respect to a depository institution, as a credit facility secured by land or improved real property that, prior to being reclassified by the depository institution as a non-HVCRE ADC loan pursuant to subsection (d)—(A) primarily finances, has financed, or refinances the acquisition, development, or construction of real property; (B) has the purpose of providing financing
It does not include a credit facility financing—(A) the acquisition, development, or construction of properties that are—(i) one- to four-family residential properties; (ii) real property that would qualify as an investment in community development; (iii) agricultural land; (B) the acquisition or refinance of existing income-producing real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the institution's applicable loan underwriting criteria for permanent financings; (C) improvements to existing income-producing improved real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the institution's applicable loan underwriting criteria for permanent financings; or (D) commercial real property projects in which—(i) the loan-to-value ratio is less than or equal to the applicable maximum supervisory loan-to-value ratio as determined by the appropriate Federal banking agency; (ii) the borrower has contributed capital of at least 15 percent of the real property's appraised, `as completed' value to the project in the form of—(I) cash; (II) unencumbered readily marketable assets; (III) paid development expenses out-of-pocket; or (IV) contributed real property or improvements; and (iii) the borrower contributed the minimum amount of capital described under clause (ii) before the depository institution advances funds (other than the advance of a nominal sum made in order to secure the depository institution's lien against the real property) under the credit facility, and such minimum amount of capital contributed by the borrower is contractually required to remain in the project until the credit facility has been reclassified by the depository institution as a non-HVCRE ADC loan under subsection (d); Further, it does not include any loan made prior to January 1, 2015; and does not include a credit facility reclassified as a non-HVCRE ADC loan under subsection (d).
Value of Contributed Real Property. The value of any real property contributed by a borrower as a capital contribution shall be the appraised value of the property as determined under standards prescribed pursuant to section 1110 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. 3339), in connection with the extension of the credit facility or loan to such borrower.
The agencies issued an interagency statement on July 6, 2018 (interagency statement) that provided information on rules and associated reporting requirements that the agencies jointly administer and that EGRRCPA immediately affected.
In accordance with section 214 of EGRRCPA, the agencies are proposing to revise the HVCRE exposure definition in section 2 of the capital rule to conform to the statutory definition of an HVCRE ADC loan.
Section 214 excludes from the statutory definition of HVCRE ADC loan any loan made prior to January 1, 2015.
By its terms, the statutory definition of an HVCRE ADC loan applies to depository institutions. The Board has considered the statutory definition of HVCRE ADC loan and the appropriateness of applying the definition to holding companies in addition to depository institutions. The application of separate definitions for HVCRE ADC loans at the depository institution and for HVCRE exposures at
The agencies are revising the definition of an HVCRE exposure in the capital rule to conform to the statutory definition of an HVCRE ADC loan. Additionally, to facilitate the consistent application of the revised HVCRE exposure definition, the agencies propose to interpret terms not defined in the statutory definition of an HVCRE ADC loan. The agencies would generally look to substantially similar or the same terms in the agencies' regulations or the Call Report instructions.
Section 214 of EGRRCPA defines an HVCRE ADC loan as “a credit facility secured by land or improved real property.”
Section 214 of EGRRCPA provides that a credit facility that is secured by land or improved real property is required to meet three criteria before being classified as an HVCRE ADC loan. First, the credit facility must primarily finance or refinance the acquisition, development, or construction of real property. Second, the purpose of the credit facility must be to provide financing to acquire, develop, or improve such real property into income-producing real property. Finally, the repayment of the credit facility must depend upon future income or sales proceeds from, or refinancing of, such real property. The proposal will incorporate these criteria into the revised definition of an HVCRE exposure. Under the proposal, the determination of whether or not a loan is considered an HVCRE exposure under the revised definition would be made once, at the loan's origination.
In addition, the agencies' propose to interpret that other land loans (generally loans secured by vacant land except land known to be used for agricultural purposes) would be included in the scope of the revised HVCRE exposure definition. This approach would be consistent with the Call Report's inclusion of other land loans with construction and development loans.
A loan secured by land or improved real property that meets the three criteria for the revised HVCRE exposure categorization may be excluded from a heightened risk weight if it meets one or more of the following statutory exclusions:
Consistent with section 214, the revised definition of an HVCRE exposure would exclude credit facilities financing the acquisition, development, or construction of properties that are one- to four-family residential properties. The agencies are generally aligning the scope of exposures that finance acquisition, development, or construction of one- to four-family residential properties under the capital rule with the definition of a one- to four-family residential property provided in the codified interagency real estate lending standards.
Consistent with section 214, the revised HVCRE exposure definition will exclude loans financing the acquisition, development, or construction of real property that would qualify as an investment in community development. For purposes of this exclusion, the proposal refers to the agencies' Community Reinvestment Act (CRA) regulations and the definition of community development investment in these regulations.
Consistent with section 214, the revised HVCRE exposure definition will exclude credit facilities financing the acquisition, development, or construction of agricultural land. The Call Report instructions include a definition for “farmland,” which excludes loans for farm property construction and land development purposes. As used in the Call Report, the term “farmland” includes all land known to be used or usable for agricultural purposes. To ensure consistent reporting, the agencies propose that “agricultural land” for the purpose of the revised HVCRE exposure definition would have the same meaning as “farmland,” as used in the Call Report instructions.
In addition to the exclusions described above, the revised HVCRE exposure definition will exclude additional categories of exposures. Consistent with the statutory definition of an HVCRE ADC loan in section 214, the revised HVCRE exposure definition will exclude credit facilities for the acquisition or refinance of existing income-producing real property secured by a mortgage on such property, so long as the cash flow generated by the real property covers the debt service and expenses of the property in accordance with a depository institution's underwriting criteria for permanent loans. The revised HVCRE exposure definition similarly excludes credit facilities financing improvements to existing income-producing real property secured by a mortgage on such property. The agencies may review the reasonableness of a depository institution's underwriting criteria for permanent loans through the regular supervisory process.
Consistent with section 214, the revised definition of an HVCRE exposure will exclude certain commercial real property projects that have been underwritten in accordance with supervisory underwriting standards, and when the borrower has contributed a specified amount of capital to the project. In order to qualify for this exclusion from the revised HVCRE exposure definition, a credit facility that finances a commercial real property project will be required to meet four distinct criteria. First, the loan-to-value ratio is less than or equal to the applicable supervisory maximum. Under the interagency real estate lending standards, maximum loan-to-value ratios vary from 65 to 85 percent, depending on the applicable loan category.
Under section 214, cash, unencumbered readily marketable assets, paid development expenses out-of-pocket, and contributed real property or improvements count as forms of capital for purposes of the capital contribution criteria. The proposal will incorporate these forms of capital into the revised definition of an HVCRE exposure. The agencies consider costs incurred by the project and paid by the borrower prior to the advance of funds by the banking organization as paid development expenses out-of-pocket.
The statute provides that the value of contributed real property means the appraised value of real property contributed by the borrower as determined under the standards prescribed by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. 3339). The proposal will incorporate this criterion into the revised definition of an HVCRE exposure. The agencies would reduce the value of the real property that counts towards the 15 percent contributed capital requirement by the aggregate amount of any liens on the real property securing the HVCRE exposure.
Under the revised HVCRE exposure definition, the 15 percent capital contribution will be required to be calculated using the real property's appraised “as completed” value. However, an “as completed” value appraisal may not always be available, such as in the case of purchasing raw land without plans for development in the near term, which would typically have an “as is” value appraisal. Therefore, the agencies would permit the use of an “as is” appraisal, where applicable, for purposes of the 15 percent capital contribution. In addition, the agencies' regulations permit the use of an evaluation in place of an “as completed” value appraisal for a commercial real estate transaction under $500,000 that is not secured by a single one-to-four family residential property.
Under the revised HVCRE exposure definition, when considering whether a credit facility is excluded as a “certain commercial real property project” as described above, the 15 percent capital contribution calculation and the “as completed” value appraisal are measured in relation to a “project.” The agencies recognize that some credit facilities for the acquisition, development, or construction of real property may have multiple phases as part of a larger construction or development project. The agencies are proposing that in the case of a project with multiple phases or stages, in order for a loan financing a phase or stage to be eligible for the contributed capital exclusion, the phase or stage must have its own appraised “as completed” value or an appropriate evaluation in order for it to be deemed a separate “project” for purposes of the 15 percent capital contribution calculation.
Consistent with section 214, under the proposal, a banking organization may reclassify an HVCRE exposure as a non-HVCRE exposure when the substantial completion of the development or construction on the real property has occurred and the cash flow generated by the property covers the debt service and expenses on that property in accordance with the banking organization's loan underwriting standards for permanent financings.
Certain provisions of the proposed rule contain “collection of information” requirements within the meaning of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521). In accordance with the requirements of the PRA, the agencies 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 OMB control number for the OCC is 1557-0318, Board is 7100-0313, and FDIC is 3064-0153. These information collections will be extended for three years, with revision. The information collection requirements contained in this proposed rulemaking have been submitted by the OCC and FDIC to OMB for review and approval under section 3507(d) of the PRA (44 U.S.C. 3507(d)) and section 1320.11 of the OMB's implementing regulations (5 CFR 1320). The Board reviewed the proposed rule under the authority delegated to the Board by OMB.
Comments are invited on:
a. Whether the collections of information are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
b. The accuracy or the estimate 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 the information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
All comments will become a matter of public record. Comments on aspects of this notice that may affect reporting, recordkeeping, or disclosure requirements and burden estimates should be sent to the addresses listed in
Recordkeeping (Ongoing)—16.
Recordkeeping (Initial setup)—122.
Recordkeeping (Ongoing)—20.
Disclosure (Initial setup)—226.25.
Disclosure (Ongoing quarterly)—131.25.
Recordkeeping (Initial setup)—460.
Recordkeeping (Ongoing)—540.77.
Recordkeeping (Ongoing quarterly)—20.
Disclosure (Initial setup)—280.
Disclosure (Ongoing)—5.78.
Disclosure (Ongoing quarterly)—35.
Recordkeeping (Ongoing)—16.
Recordkeeping (Initial setup)—122.
Recordkeeping (Ongoing)—20.
Disclosure (Initial setup)—226.25.
Disclosure (Ongoing quarterly)—131.25.
Recordkeeping (Initial setup)—460.
Recordkeeping (Ongoing)—540.77.
Recordkeeping (Ongoing quarterly)—20.
Disclosure (Initial setup)—280.
Disclosure (Ongoing)—5.78.
Disclosure (Ongoing quarterly)—35.
Disclosure (Table 13 quarterly)—5.
Recordkeeping (Ongoing)—0.5.
Recordkeeping (Ongoing)—16.
Recordkeeping (Initial setup)—122.
Recordkeeping (Ongoing)—20.
Disclosure (Initial setup)—226.25.
Disclosure (Ongoing quarterly)—131.25.
Recordkeeping (Initial setup)—460.
Recordkeeping (Ongoing)—540.77.
Recordkeeping (Ongoing quarterly)—20.
Disclosure (Initial setup)—280.
Disclosure (Ongoing)—5.78.
Disclosure (Ongoing quarterly)—35.
The proposed rule will also require changes to the Call Reports (FFIEC 031, FFIEC 041, and FFIEC 051; OMB Nos. 1557-0081 (OCC), 7100-0036 (Board), and 3064-0052 (FDIC)) and Risk-Based Capital Reporting for Institutions Subject to the Advanced Capital Adequacy Framework (FFIEC 101; OMB Nos. 1557-0239 (OCC), 7100-0319 (Board), and 3064-0159 (FDIC)), and Consolidated Financial Statements for Holding Companies (FR Y-9C; OMB No. 7100-0128), which will be addressed in separate
As of June 30, 2018, the OCC supervises 886 small entities.
Currently, 211 small OCC-supervised institutions hold HVCRE loans and thus will be directly impacted by the proposed rule. Therefore, the proposed rule potentially affects a substantial number of small entities. However, the OCC does not find that the impact of this proposal would be economically significant.
Therefore, the OCC certifies that the proposed rule would not have a significant economic impact on a
The Board has considered the potential impact of the proposed rule on small entities in accordance with the RFA. Based on the Board's analysis, and for the reasons stated below, the Board believes that this proposed rule will not have a significant economic impact on a substantial of number of small entities. Nevertheless, the Board is providing an initial regulatory flexibility analysis with respect to this proposed rule. A final regulatory flexibility analysis will be conducted after comments received during the public comment period have been considered. The Board welcomes comment on all aspects of its analysis. In particular, the Board requests that commenters describe the nature of any impact on small entities and provide empirical data to illustrate and support the extent of the impact.
As discussed in the Supplemental Information, the proposal would revise the definition of HVCRE exposure to conform to the statutory definition of “high volatility commercial real estate acquisition, development, or construction (HVCRE ADC) loan,” in accordance with section 214 of EGRRCPA. To facilitate the consistent application of the revised HVCRE exposure definition, the proposal also provides that the Board would generally look to substantially similar terms in relevant regulations or the Call Report instructions for interpretation of undefined terms used in section 214, where applicable.
For purposes of the standardized approach, loans that meet the revised definition of an HVCRE exposure would receive a 150 percent risk weight under the capital rule's standardized approach. A banking organization that calculates its risk-weighted assets under the advanced approaches of the capital rule would refer to the definition of an HVCRE exposure in section 2 of the capital rule for purposes of identifying wholesale exposure categories and wholesale exposure subcategories. Based upon data reported on the FR Y-9C and on Call Report information, as of June 30, 2018, about 14 percent of state member banks, bank holding companies, and savings and loan holding companies report holdings of HVCRE exposures.
The proposal would apply to all state member banks, as well as all bank holding companies and savings and loan holding companies that are subject to the Board's capital rule. Certain bank holding companies, and savings and loan holding companies are excluded from the application of the Board's capital rule. In general, the Board's capital rule only applies to bank holding companies and savings and loan holding companies that are not subject to the Board's Small Bank Holding Company and Small Savings and Loan Holding Company Policy Statement, which applies to bank holding companies and savings and loan holding companies with less than $3 billion in total assets that also meet certain additional criteria.
The agencies anticipate updating the relevant reporting forms at a later date to the extent necessary to align with the capital rule. Given that the proposed rule does not impact the recordkeeping and reporting requirements that affected small banking organizations are currently subject to, there would be no change to the information that small banking organizations must track and report.
The Board does not believe that the proposed rule duplicates, overlaps, or conflicts with any other Federal rules. In addition, there are no significant alternatives to the proposed rule. In light of the foregoing, the Board does not believe that the proposed rule, if adopted in final form, would have a significant economic impact on a substantial number of small entities.
The FDIC supervises 3,604 depository institutions,
This proposal would remove certain loans from the definition of an HVCRE exposure and therefore, would reduce the risk weight from 150 percent to 100 percent on some of the HVCRE loans held in portfolio by small FDIC-supervised institutions, resulting in a modest reduction in their risk-based capital requirements. Assuming all HVCRE loans reported by small, FDIC-supervised institutions were weighted at 100 percent and that covered institutions would maintain the same ratio of risk-based capital to risk-weighted assets after the proposal goes into effect, the maximum potential effect of the proposed rule would result in an estimated decline of $183 million (0.8 percent) in required risk-based capital for small, FDIC-insured institutions, or $237,000 per institution.
The proposed rule could pose some administrative costs for covered institutions. It is likely that covered institutions who hold some volume of HVCRE loans will incur some costs to evaluate their portfolios to determine if they are excluded from the proposed definition of HVCRE. It is difficult to accurately estimate the costs associated with evaluating each institution's portfolio of HVCRE because it depends on the characteristics of each institution's portfolio, the resources each institution has to manage these assets, and the labor decisions of senior management at each institution. However, the FDIC assumes that each institution will require 40 hours of labor on average to complete the review. Assuming an hourly cost of $75.82,
The proposed rule is likely to reduce capital requirements for some loans currently classified as an HVCRE exposure, which could increase the volume of lending by small, FDIC-supervised institutions. The FDIC believes that this effect will likely be small given that the proposed amendments only affect a subset of HVCRE loans, which represent a small portion of total assets for small FDIC-supervised institutions. Finally, reductions in required capital could make institutions more vulnerable in the event of an economically stressful scenario. Since the changes affect only a narrowly defined segment of institutions' loan portfolios, the FDIC believes any increase in risk resulting from the changes is unlikely to be material.
Based on this supporting information, the FDIC does not believe that the rule will have a significant economic impact on a substantial number of small entities.
The FDIC invites comments on all aspects of the supporting information provided in this RFA section. In particular, how long would it take for small institutions to review their HVCRE portfolios to identify loans that qualify for a lower risk weight? Also, would this rule have any significant effects on small entities that the FDIC has not identified?
Section 722 of the Gramm-Leach-Bliley Act
• Have the agencies organized the material to suit your needs? If not, how could they present the proposed rule more clearly?
• Are the requirements in the proposed rule clearly stated? If not, how could the proposed rule be more clearly stated?
• Do the regulations contain technical language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would achieve that?
• Would more, but shorter, sections be better? If so, which sections should be changed?
• What other changes can the agencies incorporate to make the regulation easier to understand?
The OCC analyzed the proposed rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under this analysis, the OCC considered whether the proposed rule includes a Federal mandate 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 in any one year (adjusted for inflation). The OCC has determined that this proposed rule would not result in expenditures by State, local, and Tribal governments, or the private sector, of $100 million or more in any one year. Accordingly, the OCC has not prepared a written statement to accompany this proposal.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),
The agencies note that comment on these matters has been solicited in other sections of this
Administrative practice and procedure, Banks, Banking, Capital adequacy, Capital requirements, Asset risk—weighting methodologies, Reporting and recordkeeping requirements, National banks, Federal savings associations, Risk.
Administrative practice and procedure, Banks, Banking, Capital adequacy, Capital requirements, Asset risk—weighting methodologies, Reporting and recordkeeping requirements, Holding companies, State member banks, Risk.
Administrative practice and procedure, Banks, Banking, Capital adequacy, Capital requirements, Asset risk—weighting methodologies,
For the reasons set out in the joint preamble, the OCC proposes to amend 12 CFR part 3 as follows.
12 U.S.C. 93a, 161, 1462, 1462a, 1463, 1464, 1818, 1828(n), 1828 note, 1831n note, 1835, 3907, 3909, and 5412(b)(2)(B).
(1) A credit facility secured by land or improved real property that, prior to being reclassified by the depository institution as a non-HVCRE exposure pursuant to paragraph (6) of this definition—
(i) Primarily finances, has financed, or refinances the acquisition, development, or construction of real property;
(ii) Has the purpose of providing financing to acquire, develop, or improve such real property into income-producing real property; and
(iii) Is dependent upon future income or sales proceeds from, or refinancing of, such real property for the repayment of such credit facility;
(2) Does not include a credit facility financing—
(i) The acquisition, development, or construction of properties that are—
(A) One- to four-family residential properties;
(B) Real property that would qualify as an investment in community development; or
(C) Agricultural land;
(ii) The acquisition or refinance of existing income-producing real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the national bank's or Federal savings association's applicable loan underwriting criteria for permanent financings;
(iii) Improvements to existing income-producing improved real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the national bank's or Federal savings association's applicable loan underwriting criteria for permanent financings; or
(iv) Commercial real property projects in which—
(A) The loan-to-value ratio is less than or equal to the applicable maximum supervisory loan-to-value ratio as determined by the OCC;
(B) The borrower has contributed capital of at least 15 percent of the real property's appraised, `as completed' value to the project in the form of—
(
(
(
(
(C) The borrower contributed the minimum amount of capital described under paragraph (2)(iv)(B) of this definition before the national bank or Federal savings association advances funds (other than the advance of a nominal sum made in order to secure the national bank's or Federal savings association's lien against the real property) under the credit facility, and such minimum amount of capital contributed by the borrower is contractually required to remain in the project until the HVCRE exposure has been reclassified by the national bank or Federal savings association as a non-HVCRE exposure under paragraph (6) of this definition;
(3) Does not include any loan made prior to January 1, 2015; and
(4) Does not include a credit facility reclassified as a non-HVCRE exposure under paragraph (6) of this definition.
(5)
(6)
(i) The substantial completion of the development or construction of the real property being financed by the credit facility; and
(ii) Cash flow being generated by the real property being sufficient to support the debt service and expenses of the real property, in accordance with the national bank's or Federal savings association's applicable loan underwriting criteria for permanent financings.
For the reasons set out in the joint preamble, part 217 of chapter II of title 12 of the Code of Federal Regulations is proposed to be amended as follows:
12 U.S.C. 248(a), 321-338a, 481-486, 1462a, 1467a, 1818, 1828, 1831n, 1831o, 1831p-l, 1831w, 1835, 1844(b), 1851, 3904, 3906-3909,4808, 5365, 5368, 5371.
(1) A credit facility secured by land or improved real property that, prior to being reclassified by the Board-regulated institution as a non-HVCRE exposure pursuant to paragraph (6) of this definition—
(i) Primarily finances, has financed, or refinances the acquisition, development, or construction of real property;
(ii) Has the purpose of providing financing to acquire, develop, or improve such real property into income-producing real property; and
(iii) Is dependent upon future income or sales proceeds from, or refinancing of, such real property for the repayment of such credit facility; provided that:
(2) An HVCRE exposure does not include a credit facility financing—
(i) The acquisition, development, or construction of properties that are—
(A) One- to four-family residential properties;
(B) Real property that would qualify as an investment in community development; or
(C) Agricultural land;
(ii) The acquisition or refinance of existing income-producing real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the Board-regulated institution's applicable loan underwriting criteria for permanent financings;
(iii) Improvements to existing income-producing improved real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the Board-regulated institution's applicable loan underwriting criteria for permanent financings; or
(iv) Commercial real property projects in which—
(A) The loan-to-value ratio is less than or equal to the applicable maximum supervisory loan-to-value ratio as determined by the Board;
(B) The borrower has contributed capital of at least 15 percent of the real property's appraised, `as completed' value to the project in the form of—
(
(
(
(
(C) The borrower contributed the minimum amount of capital described under paragraph (2)(iv)(B) of this definition before the Board-regulated institution advances funds (other than the advance of a nominal sum made in order to secure the Board-regulated institution's lien against the real property) under the credit facility, and such minimum amount of capital contributed by the borrower is contractually required to remain in the project until the HVCRE exposure has been reclassified by the Board-regulated institution as a non-HVCRE exposure under paragraph (6) of this definition;
(3) An HVCRE exposure does not include any loan made prior to January 1, 2015;
(4) An HVCRE exposure does not include a credit facility reclassified as a non-HVCRE exposure under paragraph (6).
(5)
(6)
(i) The substantial completion of the development or construction of the real property being financed by the credit facility; and
(ii) Cash flow being generated by the real property being sufficient to support the debt service and expenses of the real property, in accordance with the Board-regulated institution's applicable loan underwriting criteria for permanent financings.
For the reasons set out in the joint preamble, the FDIC proposes to amend 12 CFR part 324 as follows.
12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; 5371; 5412; Pub. L. 102-233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102-242, 105 Stat. 2236, 2355, as amended by Pub. L. 103-325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102-242, 105 Stat. 2236, 2386, as amended by Pub. L. 102-550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note); Pub. L. 111-203, 124 Stat. 1376, 1887 (15 U.S.C. 78o-7 note).
(1) A credit facility secured by land or improved real property that, prior to being reclassified by the FDIC-supervised institution as a non-HVCRE exposure pursuant to paragraph (6) of this definition —
(i) Primarily finances, has financed, or refinances the acquisition, development, or construction of real property;
(ii) Has the purpose of providing financing to acquire, develop, or improve such real property into income-producing real property; and
(iii) Is dependent upon future income or sales proceeds from, or refinancing of, such real property for the repayment of such credit facility; provided that:
(2) An HVCRE exposure does not include a credit facility financing—
(i) The acquisition, development, or construction of properties that are—
(A) One- to four-family residential properties;
(B) Real property that would qualify as an investment in community development; or
(C) Agricultural land;
(ii) The acquisition or refinance of existing income-producing real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the FDIC-supervised institution's applicable loan underwriting criteria for permanent financings;
(iii) Improvements to existing income-producing improved real property secured by a mortgage on such property, if the cash flow being generated by the real property is sufficient to support the debt service and expenses of the real property, in accordance with the FDIC-supervised institution's applicable loan underwriting criteria for permanent financings; or
(iv) Commercial real property projects in which—
(A) The loan-to-value ratio is less than or equal to the applicable maximum supervisory loan-to-value ratio as determined by the FDIC;
(B) The borrower has contributed capital of at least 15 percent of the real property's appraised, `as completed' value to the project in the form of—
(
(
(
(
(C) The borrower contributed the minimum amount of capital described under paragraph (2)(iv)(B) of this definition before the FDIC-supervised institution advances funds (other than the advance of a nominal sum made in order to secure the FDIC-supervised institution's lien against the real property) under the credit facility, and such minimum amount of capital contributed by the borrower is
(3) An HVCRE exposure does not include any loan made prior to January 1, 2015;
(4) An HVCRE exposure does not include a credit facility reclassified as a non-HVCRE exposure under paragraph (6).
(5) Value Of contributed real property.—For the purposes of this definition of HVCRE exposure, the value of any real property contributed by a borrower as a capital contribution is the appraised value of the property as determined under standards prescribed pursuant to section 1110 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. 3339), in connection with the extension of the credit facility or loan to such borrower.
(6) Reclassification as a non-HVCRE exposure.—For purposes of this definition of HVCRE exposure and with respect to a credit facility and an FDIC-supervised institution, an FDIC-supervised institution may reclassify an HVCRE exposure as a non-HVCRE exposure upon—
(i) The substantial completion of the development or construction of the real property being financed by the credit facility; and
(ii) Cash flow being generated by the real property being sufficient to support the debt service and expenses of the real property, in accordance with the FDIC-supervised institution's applicable loan underwriting criteria for permanent financings.
By order of the Board of Directors.
U.S. Small Business Administration.
Proposed rule.
The U.S. Small Business Administration (SBA or Agency) is proposing to amend various regulations governing its business loan programs, including the SBA Express and Export Express Loan Programs and the Microloan and Development Company (504) loan programs.
SBA must receive comments to the proposed rule on or before November 27, 2018.
You may submit comments, identified by RIN: 3245-AG74, by any of the following methods:
•
•
•
SBA will post all comments on
Robert Carpenter, Acting Chief, 7(a) Program and Policy Branch, Office of Financial Assistance, Office of Capital Access, Small Business Administration, 409 Third Street SW, Washington, DC 20416; telephone: (202) 205-7654;
The SBA Express Loan Program (SBA Express) is established in section 7(a)(31) of the Small Business Act (the Act) (15 U.S.C. 636(a)(31)). Under SBA Express, designated Lenders (SBA Express Lenders) are permitted to use, to the maximum extent practicable, their own analyses, procedures, and documentation in making, closing, servicing, and liquidating SBA Express loans. They also have reduced requirements for submitting documentation to SBA and obtaining the Agency's prior approval. These loan analyses, procedures, and documentation must meet prudent lending standards; be consistent with those the Lenders use for their similarly-sized, non-SBA guaranteed commercial loans; and conform to all requirements imposed upon Lenders generally and SBA Express Lenders in particular by Loan Program Requirements (as defined in 13 CFR 120.10), as such requirements are issued and revised by SBA from time to time, unless specifically identified by SBA as inapplicable to SBA Express loans. In exchange for the increased authority and autonomy provided under the SBA Express Program, SBA Express Lenders agree to accept a maximum guaranty of 50 percent.
The Export Express Loan Program (Export Express) is established in section 7(a)(34) of the Act (15 U.S.C. 636(a)(34)). This program is designed to help SBA meet the export financing needs of small businesses. Although it is a separate program, Export Express is generally subject to the same loan processing, making, closing, servicing, and liquidation requirements as well as the same interest rates and applicable fees as SBA Express. However, Export Express loans have a higher maximum loan amount than is available under SBA Express, and a maximum guaranty percentage of 75 or 90 percent, depending on the amount of the Export Express loan.
This proposed rule would:
1. Incorporate into the regulations governing the 7(a) Loan Program the requirements specifically applicable to the SBA Express and Export Express Loan Programs in order to provide additional clarity for SBA Express and Export Express Lenders;
2. Add a new regulation to require certain owners of the small business Applicant to inject excess liquid assets into the business to reduce the amount of SBA-guaranteed funds that otherwise would be needed;
3. Revise the regulations concerning allowable fees for the 7(a) Loan Program to limit the fees payable by the small business Applicant and to clarify what SBA considers reasonable with respect to such fees;
4. Amend the regulation that explains the Agency's policy governing SBA-guaranteed loans to qualified employee trusts to require that all such applications be processed under non-delegated procedures;
5. Incorporate a change to implement SBA's long-standing policy regarding the responsibility of a Lender for the contingent liabilities (including repairs and denials) for Lenders purchasing 7(a) loans from the Federal Deposit Insurance Corporation (FDIC) (as receiver, conservator, or other liquidator of a failed insured depository institution), whether such loans are acquired through a loan sale where SBA has not already purchased the guaranty or through a whole bank transfer;
6. Revise the regulations governing the use of microloan grant funds by Microloan Intermediaries and extend the maximum maturity of a microloan;
7. Modify the affiliation principles applicable to SBA's financial assistance programs to include additional circumstances when a small business Applicant will be deemed to be affiliated with another entity for purposes of determining the small business Applicant's size;
8. Amend the regulation identifying when the size status of an Applicant for financial assistance is determined with respect to applications under the SBA Express and Export Express Loan Programs; and
9. Make technical corrections to the regulation identifying prohibited fees in the 7(a) Loan Program and the regulation discussing the application for the Accredited Lenders Program (ALP) in the 504 Loan Program, as well as conforming amendments to two existing regulations for consistency with the proposed regulations governing SBA Express and Export Express, and a conforming amendment to one existing regulation for consistency with the proposed changes to the allowable fees that may be charged in connection with a 7(a) loan.
The SBA programs affected by this proposed rule are:
1. The 7(a) Loan Program authorized pursuant to Section 7(a) of the Act (15 U.S.C. 636(a));
2. The Business Disaster Loan Programs (collectively, the Economic Injury Disaster Loans, Military Reservist Economic Injury Disaster Loans, and Physical Disaster Business Loans) authorized pursuant to Section 7(b) of the Act;
3. The Microloan Program authorized pursuant to Section 7(m) of the Act (15 U.S.C. 636(m));
4. The Intermediary Lending Pilot (ILP) Program authorized pursuant to Section 7(l) of the Act (15 U.S.C. 636(l));
5. The Surety Bond Guarantee Program authorized pursuant to Part B of Title IV of the Small Business Investment Act of 1958 (15 U.S.C. 694b
6. The Development Company Program (the 504 Loan Program) authorized pursuant to Title V of the Small Business Investment Act of 1958 (15 U.S.C. 695
The Agency requests comments on all aspects of the regulatory revisions in this proposed rule and on any related issues affecting the Business Loan, Surety Bond Guarantee, and Business Disaster Loan Programs.
SBA proposes adding a new undesignated center heading entitled “SBA Express and Export Express Loan Programs” and several new regulations that describe the two loan programs and the specific requirements applicable to them, as described more fully below. These proposed regulations are drafted based on the current statutory limits applicable to the SBA Express and Export Express Loan Programs. In the event that the SBA Express or Export Express statutory loan limits are increased by Congress, SBA will revise the regulations, including making necessary changes to mitigate any additional risk associated with an increase in loan size.
As set forth in § 120.440, the decision to grant SBA Express or Export Express authority will be made by the appropriate SBA official in accordance with Delegations of Authority, and is final. If SBA Express or Export Express authority is approved, SBA will provide the Lender with the appropriate supplemental guarantee agreement, which the Lender must execute and return to SBA before the Lender's SBA Express or Export Express authority will become effective.
In renewing a Lender's SBA Express or Export Express authority and determining the term of the renewal, SBA will consider the criteria and follow the process set forth in § 120.440. Currently, in renewing a Lender's Export Express authority, SBA also will consider whether the Export Express Lender can effectively process, make, close, service, and liquidate Export Express loans; has received a major substantive objection regarding renewal from the Field Office(s) covering the territory where the Lender generates significant numbers of Export Express loans; and has received acceptable review results on the Export Express portion of any SBA-administered Lender reviews. In this rule, SBA proposes to incorporate the additional considerations identified above for Export Express authority, but modify them to apply to both SBA Express and Export Express authority. Thus, in addition to the criteria set out in § 120.440, SBA also would consider whether the Lender can effectively process, make, close, service, and liquidate SBA Express or Export Express
SBA may approve a Lender's initial application for authority to participate in SBA Express or Export Express for a maximum term of two years. SBA may approve a lesser term or limit a Lender's maximum SBA Express or Export Express loan volume if, in SBA's sole discretion, a Lender's qualifications, performance, experience with SBA lending, or other factors so warrant (
SBA is proposing to include in the regulations that the Agency may renew a Lender's authority to participate in SBA Express for a maximum term of three years if, in SBA's sole discretion, a Lender's qualifications, performance, SBA experience, or other factors so warrant. Although renewals of other types of delegated authority (
SBA may renew a Lender's authority to participate in Export Express for a maximum term of two years. SBA may approve a shorter renewal term or limit a Lender's maximum SBA Express or Export Express loan volume if, in SBA's sole discretion, a Lender's qualifications, performance, experience with SBA lending, or other factors so warrant.
SBA is proposing a conforming amendment to the delegated authority criteria regulation at § 120.440(c) to clarify that a Lender's authority to participate in SBA Express may be renewed for a maximum term of three years. In addition, SBA is proposing some technical corrections to § 120.440(c).
Certain types of loans and loan programs are not eligible for processing under a Lender's delegated authority (including under a Lender's SBA Express or Export Express authority), as described in SBA's Standard Operating Procedure (SOP) 50 10 (Lender and Development Company Loan Programs). These loans currently include, but are not limited to: Special purpose loans (
For all other loans, SBA has authorized SBA Express and Export Express Lenders to make the credit decision without prior SBA review (
All SBA Express and Export Express Lenders must validate (and document) with appropriate statistical methodologies that their credit analysis procedures are predictive of loan performance, and they must provide that documentation to SBA upon request. SOP 50 10 includes the requirement that SBLCs provide credit scoring model validation to SBA for review and approval on an annual basis.
The credit decision, including for example, how much to factor in a past bankruptcy and whether to require an equity injection (outside of any injection of excess personal resources under the proposed new § 120.102, as discussed below), is left to the business judgment of the SBA Express or Export Express Lender. Also, if the SBA Express or Export Express Lender requires an equity injection and, as part of its standard processes for its similarly-sized, non-SBA guaranteed loans verifies the equity injection, it must do so for its SBA Express or Export Express loans. SBLCs must follow the written policies and procedures that have been reviewed by SBA. While the credit decision is left to the business judgment of the SBA Express or Export Express Lender, early loan defaults will be reviewed by SBA pursuant to SOP 50 57 (7(a) Loan Servicing and Liquidation).
SBA Express and Export Express Lenders are responsible for all loan decisions, including eligibility for 7(a) loans (including size), creditworthiness and compliance with all Loan Program Requirements (as defined in § 120.10). SBA Express and Export Express Lenders also are responsible for confirming that all loan closing decisions are correct and that they have complied with all requirements of law and Loan Program Requirements.
SBA Express and Export Express Lenders must ensure all required forms are obtained and are complete and properly executed. Appropriate documentation must be maintained in the Lender's loan file, including
Notwithstanding 13 CFR 120.130(c), revolving lines of credit are eligible for SBA Express, subject to certain conditions related to maturities and disbursement as set forth in SOP 50 10. Currently, SBA Express revolving loans have a maximum maturity of 10 years and must be structured with a term-out period that is not less than the draw period, with no draws permitted during the term-out period. For example, an SBA Express loan can have an eight year maturity with a two year draw period and a term-out period of six years. Conversely, a loan with an eight year maturity cannot have a draw period of six years and term-out period of two years. Further, as set forth in 13 CFR part 120, subpart F, revolving loans cannot be sold on the secondary market. (SBA is proposing a conforming amendment to § 120.130(c) (“Restrictions on uses of proceeds”) to include a reference to this new § 120.444 to clarify that revolving lines of credit are an eligible use of 7(a) loan proceeds under SBA Express and Export Express.)
SBA Express and Export Express Lenders may refinance certain outstanding debts with SBA Express or Export Express loans, under the conditions set forth in SOP 50 10. An SBA Express Lender may refinance an existing non-SBA guaranteed loan held by another lender with an SBA Express loan if the Lender determines that the existing debt no longer meets the needs of the Applicant and, for certain types of debt, the new loan will provide a 10 percent improvement in the debt service coverage ratio. An SBA Express Lender may refinance its own non-SBA guaranteed debt, provided that: (1) The Lender determines that the existing debt no longer meets the needs of the Applicant; (2) the new loan will provide a 10 percent improvement in the debt service coverage ratio (for certain types of loans as explained in SOP 50 10); (3) the debt to be refinanced is, and has been, current for the past 36 months (“current” means no required payment has been more than 29 days past due); and (4) the Lender's credit exposure to the Applicant will not be reduced. Existing SBA-guaranteed loans may not be refinanced under SBA Express, unless: (1) The transaction is the purchase of an existing business that has an existing SBA loan that is not with the requesting SBA Express Lender; or (2) the Applicant needs additional financing and the existing Lender is unable or unwilling to increase the existing SBA loan or make a second loan, and (3) the new loan will provide a 10 percent improvement in debt service coverage. An SBA Express Lender may not refinance its own existing SBA-guaranteed debt under SBA Express.
Export Express loans must be used for an export development activity, which is defined in section 7(a)(34)(A)(i) of the Act and includes the following:
(1) Obtaining a Standby Letter of Credit when required as a bid bond, performance bond, or advance payment guarantee;
(2) Participation in a trade show that takes place outside the United States;
(3) Translation of product brochures or catalogues for use in markets outside the United States;
(4) Obtaining a general line of credit for export purposes;
(5) Performing a service contract for buyers located outside the United States;
(6) Obtaining transaction-specific financing associated with completing export orders;
(7) Purchasing real estate or equipment to be used in the production of goods or services for export;
(8) Providing term loans and other financing to enable a small business concern, including an export trading company and an export management company, to develop a market outside the United States; and
(9) Acquiring, constructing, renovating, modernizing, improving or expanding a production facility or equipment to be used in the United States in the production of goods or services for export.
As noted above, Export Express loans may be used to refinance certain outstanding debts, under the conditions set forth in SOP 50 10. Specifically, Export Express loans may be used to refinance existing non-SBA guaranteed debt, whether held by another lender or by the Export Express Lender, if the Export Express Lender follows the guidance for refinancing under SBA Express and verifies and documents that the new loan will be used to finance an export development activity. Export Express loans may be used to refinance an existing Export Express loan held by another Export Express Lender only if the original Export Express Lender is unable or unwilling to increase or make a second Export Express loan, which must be documented in the loan file. An Export Express Lender may not refinance one of its own Export Express loans with a new Export Express loan.
Export Express loans may not be used to finance overseas operations, except for the marketing and/or distribution of products/services exported from the United States.
Export Express Lenders are responsible for ensuring that U.S. companies are authorized to conduct business with the Persons and countries to which the Borrower will be exporting. Specific guidance as to how Export Express Lenders will be expected to do so will be included in SOP 50 10.
Specific documentation requirements related to the use of proceeds for Export Express loans are described more fully in SOP 50 10.
With respect to collateral, currently, for loans of $25,000 or less, SBA Express and Export Express Lenders are not required to take collateral to secure the loan. For loans over $25,000, SBA Express and Export Express Lenders must, to the maximum extent practicable, follow the written collateral policies and procedures that they have established and implemented for their similarly-sized, non-SBA guaranteed commercial loans, except for Export Express lines of credit over $25,000 used to support the issuance of a
SBA proposes to incorporate these collateral requirements into new § 120.445(e), with the exception of the dollar thresholds. Rather than include the current thresholds in the proposed rule, SBA is proposing to include language in the regulation giving the Agency the ability to establish a threshold below which SBA Express and Export Express Lenders will not be required to take collateral to secure an SBA Express or Export Express loan. The threshold would be described more fully in SOP 50 10. This will provide the Agency with the flexibility to adjust the threshold if necessary.
Additionally, this proposed regulation provides that SBA Express and Export Express Lenders may sell the guaranteed portions of SBA Express and Export Express term loans on the secondary market in accordance with 13 CFR subpart F, but may not sell the guaranteed portions of SBA Express or Export Express revolving lines of credit on the secondary market.
SBA Express and Export Express Lenders must pay the same fees to SBA that all 7(a) Lenders pay, which are identified in § 120.220. The fees and expenses that 7(a) Lenders may collect from an Applicant or Borrower are set forth in the regulation at § 120.221. Currently, with the exception of renewal fees, SBA Express and Export Express Lenders may charge an Applicant or Borrower on an SBA Express or Export Express loan the same types of fees they charge on their similarly-sized, non-SBA guaranteed commercial loans, provided that the fees are directly related to the service provided and are reasonable and customary for the services performed. The fees charged on SBA Express or Export Express loans may not be higher than those charged on the Lender's similarly-sized, non-SBA guaranteed commercial loans. In this rule, SBA proposes to require SBA Express and Export Express Lenders to comply with the same rules that apply to all other 7(a) Lenders with respect to the fees that may be collected from an Applicant or Borrower on SBA Express and Export Express loans. As noted above, the regulation at § 120.221 sets forth the fees and expenses that 7(a) Lenders may collect from an Applicant or Borrower. In addition, 13 CFR part 103 of the regulations governs Agents, including their fees and provision of services. As discussed more fully in Section 3 below, SBA is proposing changes to §§ 120.221, 103.4(g), and 103.5 with respect to the fees that may be collected from an Applicant or Borrower by a 7(a) Lender or Agent. These changes will be applicable to all 7(a) loans, including SBA Express and Export Express loans.
Consistent with SBA Loan Program Requirements, if an SBA Express or Export Express Lender requests that SBA honor its guaranty, the Agency will not purchase any portion of the loan balance that consists of fees charged to the borrower, with the exception of the SBA guaranty fee. Also, as set forth in § 120.222, SBA Express and Export Express Lenders and their Associates are prohibited from sharing any premium received from the sale of an SBA guaranteed loan in the secondary market with a Service Provider, packager, or other loan-referral source. Lenders may be subject to enforcement or other appropriate action, including suspension or revocation of their privilege to sell loans in the secondary market, in the event of a violation of this prohibition.
Because SBA will require SBA Express and Export Express Lenders to comply with the same rules that apply to all other 7(a) Lenders with respect to the fees and expenses that may be collected from an Applicant or Borrower in connection with an SBA-guaranteed loan (including SBA Express and Export Express loans), SBA is not including language regarding fees in proposed § 120.445.
The proposed regulation also describes the circumstances under which SBA will honor the guaranty on SBA Express and Export Express Loans. As is true for 7(a) loans generally, SBA will purchase the guaranteed portion of an SBA Express or Export Express loan in accordance with § 120.520 and other Loan Program Requirements, in particular SOP 50 57. In accordance with § 120.520(a)(1), for loans approved on or after May 14, 2007, unless the Borrower filed for bankruptcy, the SBA Express or Export Express Lender may request that SBA honor the guaranty on the loan if there is an uncured payment default of more than 60 days and the Lender has liquidated the business personal property collateral securing the defaulted loan. In accordance with § 120.520(a)(2) and SOP 50 57, for loans approved before May 14, 2007, an SBA Express Lender must liquidate all collateral for the loan and pursue all cost-effective means of recovery to collect the debt before the Lender can request that SBA honor its guaranty. For Export Express loans, however, the Lender does not have to liquidate all of the collateral and pursue all cost-effective means of recovery prior to requesting that SBA honor its guaranty if the outstanding principal balance is $50,000 or less or there is protracted litigation or other circumstances that will extend the liquidation process. It is important to note that, while non-financial default provisions are allowed under SBA Express and Export Express under certain conditions set forth in SOP 50 10, an SBA Express or Export Express Lender may not request purchase of the guaranty based solely on a violation of a non-financial default provision.
SBA will be released of its liability on an SBA Express or Export Express loan guaranty in accordance with § 120.524.
SBA proposes to add a regulation that would require SBA Lenders (
(1) Is $350,000 or less, each 20 percent owner of the Applicant must inject any liquid assets that are in excess of one and three-quarter times the total financing package, or $200,000, whichever is greater;
(2) Is between $350,001 and $1,000,000, each 20 percent owner of the Applicant must inject any liquid assets that are in excess of one and one-half times the total financing package, or $1,000,000, whichever is greater;
(3) Exceeds $1,000,000, each 20 percent owner of the Applicant must inject any liquid assets that are in excess of one times the total financing package, or $2,500,000, whichever is greater.
SBA, in its sole discretion, may permit exceptions to the required injection of an owner's excess liquid assets only in extraordinary circumstances, such as when the excess funds are needed for medical expenses of a family member or education/college expenses for children.
The regulations governing permissible fees a Lender may collect from a loan Applicant or Borrower in connection with an SBA-guaranteed loan are set forth in § 120.221. In addition, the regulations governing Agents, including their fees and provision of services, are set forth in 13 CFR part 103. Based on feedback obtained when conducting lender oversight activities and the numerous questions SBA receives concerning permissible fees, it is apparent that there is a significant amount of confusion surrounding who may charge an Applicant fees in connection with an SBA-guaranteed loan, what fees may be charged to the Applicant, what fees may be charged to the Lender, and what is a “reasonable fee.” In addition, in many cases, Applicants are being charged multiple fees by multiple providers (
The regulations governing Agents, including their fees and provision of services to either an Applicant or a Lender are set forth in Part 103, not in Part 120 of the regulations. The regulations in Part 103 provide key definitions, including but not limited to Agents, Lender Service Providers, Packagers and Referral Agents. (See § 103.1.) The definition of a Referral Agent in § 103.1(f) states that a Referral Agent may be compensated by either an Applicant or a Lender. Thus, Agents are permitted to charge an Applicant a referral fee, while Lenders are not. In addition, while SBA permits Lenders to engage with Lender Service Providers (LSPs) (as defined in § 103.1(d)) to assist the Lender with lender functions in connection with SBA-guaranteed loans, the cost of the LSP services may not be charged to the Applicant or Borrower. (
In order to simplify who may charge fees to the Applicant and/or the Lender, and to limit the total amount of fees that an Applicant may be charged in order to obtain an SBA-guaranteed loan, SBA proposes to revise certain portions of the regulations at §§ 120.221, 103.4, and 103.5.
SBA proposes to amend § 120.221(a) to limit the total fees an Applicant can be charged by a Lender for assistance in obtaining an SBA-guaranteed loan. Regardless of what the fee is called (
SBA considers these fees to be reasonable for the services provided by a Lender to an Applicant for assistance with obtaining an SBA-guaranteed loan. SBA will monitor these fees and, if adjustments are necessary, SBA may revise these amounts from time to time.
If the Lender charges the Applicant a fee for assistance with obtaining an SBA-guaranteed loan, the Lender must disclose the fee to the Applicant and SBA by completing the Compensation Agreement (SBA Form 159) in accordance with the regulation at § 103.5 and the procedures set forth in SOP 50 10.
SBA also proposes to amend § 120.221(b) to permit extraordinary servicing fees in excess of 2 percent for Export Working Capital Program (EWCP) loans and Working Capital CAPLines that are disbursed based on a Borrowing Base Certificate. In these programs, the fees charged must be reasonable and prudent based on the level of extraordinary effort required, and cannot be higher than the fees charged on the Lender's similarly-sized, non-SBA guaranteed commercial loans. In addition, the fees charged cannot exceed the actual cost of the extra service provided. (SBA is proposing a conforming amendment to § 120.344(b) to ensure extraordinary servicing fees charged on EWCP loans are reasonable and prudent.)
The remaining sections of § 120.221 (sections (c) through (e)) remain unchanged. Thus, in appropriate circumstances as set forth in current §§ 120.221(c) through (e) and further clarified in SOP 50 10, a Lender may charge an Applicant or Borrower out of pocket expenses, a late payment fee, and for legal services charged on an hourly basis.
SBA proposes the following limitations on the fees that an Agent may charge an Applicant:
(1) For loans up to and including $350,000: A maximum of up to 2.5% of the loan amount, or $7,000, whichever is less;
(2) For loans $350,001-$1,000,000: A maximum of up to 2% of the loan amount, or $15,000, whichever is less; and
(3) For loans over $1,000,000: A maximum of up to 1.5% of the loan amount, or $30,000, whichever is less.
If an Agent provides more than one service (
SBA considers these fees to be reasonable for the services provided by an Agent or Agents to an Applicant in connection with obtaining an SBA-guaranteed loan. SBA will monitor these fees and, if adjustments are necessary, SBA may revise these amounts from time to time by publishing a notice with request for comments in the
If an Agent or Agents charge an Applicant fees in connection with obtaining an SBA-guaranteed loan, the Agent or Agents must disclose the fees to SBA by completing a Compensation Agreement (SBA Form 159) in accordance with the regulation at § 103.5 and must provide supporting documentation as set forth in SOP 50 10.
Additionally, SBA proposes to remove the word “directly” from the last sentence of § 103.5(c) to clarify that compensation paid by the Lender to a Lender Service Provider may not be charged to Applicants, either directly or indirectly.
The regulations governing SBA-guaranteed loans to qualified employee trusts or “ESOPs” are set forth in §§ 120.350 through 120.354. Currently, the regulation at § 120.350 describes the Agency's policy concerning such loans and states that SBA is authorized under section 7(a)(15) of the Act to provide guaranteed loans to ESOPs to help finance the growth of the employer small business or to purchase ownership or voting control of the employer. Because of the complex nature of these transactions, SBA is proposing to amend the regulation at § 120.350 to require such applications to
Generally, when the FDIC takes over a failed insured depository institution, it sells the 7(a) loan assets of the institution to either an Assuming Institution (through a purchase and assumption transaction) or to an investor in one or more FDIC loan sales. SBA has a long-standing policy of holding Assuming Institutions and investors responsible for the contingent liabilities (including repairs and denials) associated with 7(a) loans originated by failed insured depository institutions, whether the 7(a) loans are purchased by a Lender through an FDIC loan sale where SBA has not already purchased the guaranty or to an Assuming Institution through a whole bank transfer.
Under § 120.432(a), for 7(a) loan sales that do not involve the FDIC (
Currently, the regulation at § 121.301(f)(4) defines affiliation based on “identity of interest” for the Business Loan, Business Disaster Loan, and Surety Bond Guarantee Programs as arising only when there are “close relatives” with identical or substantially identical business or economic interests (such as where the close relatives operate concerns in the same or similar industry in the same geographic area). Prior to 2016, this regulation also defined affiliation to include identity of interest based on other grounds, including common investments or economic dependence among other parties (not just close relatives). The current regulation also differs from the principles of affiliation SBA uses for all its other programs, all of which include common investments and economic dependence as grounds for affiliation. By limiting the regulation to close relatives only, SBA has allowed businesses that are economically dependent on one another to be treated as independent businesses (
Under the proposed rule, SBA would find affiliation based on common investments under the identity of interest rule when multiple entities are owned by the same individuals or firms, and the entities owned by such investors conduct business with each other or share resources. In order to find an identity of interest between investors, the common investments would need to be substantial, either in number of investments or total value. As an example, in the
As a hypothetical example, ABC Company is owned by four unrelated individuals: Ann owns 60% of the business; Barbara owns 15%; Charlie owns 15%; and David owns 10%. ABC Company applies for a 504 loan to acquire land and build a hotel. XYZ Company is owned by the same four unrelated individuals, but in different ownership percentages: Ann owns 10% of the business; Barbara owns 60%; Charlie owns 15%; and David owns 15%. XYZ Company, a management company, applies for a 7(a) loan for working capital. DEF Company also is owned by the same four unrelated individuals in different ownership percentages, but with a new member as well: Ann owns 5% of the business; Barbara owns 10%; Charlie owns 55%; David owns 15%; and Ella owns 15%. DEF Company applies for a 504 loan to acquire land and build a hotel. XYZ Company has agreements with ABC Company and DEF Company to manage both of the hotels. Under the proposed rule, SBA will consider Ann, Barbara, Charlie and David to have an identity of interest because of their substantial common investments in the three companies, and the fact that XYZ Company manages the hotels owned by ABC Company and DEF Company. Any firm in which Ann, Barbara, Charlie, or David individually or collectively own more than 50% also will be considered affiliated with ABC Company, XYZ Company, and DEF Company, if the business owned by Ann, Barbara, Charlie, or David conducts business or shares resources with, or provides financial or managerial support to, any of the co-owned firms. Any other businesses in which Ella may have an ownership interest, however, will not be considered affiliated because Ella only has a small ownership percentage in DEF Company.
Also under the proposed identity of interest rule, if a small business Applicant derived more than 85% of its revenue from another business over the previous three fiscal years, SBA would find that the small business Applicant is economically dependent on the other business and, therefore, that the two businesses are affiliated. For example, Company A manufactures tires and has a contract with Company B to supply the vast majority of Company B's tires. The sales to Company B accounted for 86%-88% of Company A's revenues over the previous three fiscal years. Under the proposed rule, Company A would be economically dependent on Company B and the two businesses would be deemed affiliated. The proposed rule departs from SBA's other programs in using a higher threshold of 85% of the Applicant's revenues to establish economic dependence, rather than 70%. SBA believes the higher threshold is more appropriate to establish affiliation in the programs discussed in this Section II.B. As in SBA's other programs, this basis of affiliation would include an exception for a business that is new or a start-up. New or start-up businesses may only have a few customers or obtained a few contracts, and do not have as many partners and clients as established businesses. In order to be eligible for the exception for new or start-up businesses, these businesses would need to have a plan to diversify and become less dependent on one entity. For example, in the matter of
SBA recognizes that, if the proposed identity of interest rule is adopted as final, SBA Lenders may need assistance in applying the rule to certain agricultural business relationships or agreements. In particular, the agreement between a poultry farmer and a large poultry producer (integrator) may be critical to the determination of whether the farmer is an independent small business but, due to the complexity of the typical integrator agreement, SBA Lenders may be uncertain as to the correct outcome of the affiliation analysis for such a business relationship. SBA is considering reviewing these agreements and making the affiliation determination itself so that SBA Lenders will not be reluctant to make loans to small poultry farmers operating under such agreements. SBA will provide further information on this in the final rule, if necessary.
Additionally, SBA proposes to add the newly organized concern rule to § 121.301(f), which will create uniformity among SBA's various affiliation rules. The newly organized concern rule applied to the Business Loan Programs prior to the 2016 rule change, but was removed at SBA's own initiative. Under the proposed newly organized concern rule, a newly organized spin-off company may be found affiliated with the original company where all of the following conditions are met: (1) Former or current officers, directors, principal stockholders, managing members, general partners, or key employees of one concern organize a new concern; (2) the new concern is in the same or related industry or field of operation; (3) the individuals who organized the new concern serve as the new concern's officers, directors, principal stockholders, managing members, general partners, or key employees; and (4) the original concern is furnishing or will furnish the new concern with contracts, financial or technical assistance, indemnification on bid or performance bonds, and/or other facilities, whether for a fee or otherwise. The proposed rule would define a key employee to be an employee who, because of his or her position in the concern, has a critical influence in or substantive control over the operations or management of the concern. The proposed rule further defines a “newly organized” concern to be one that has been actively operating continuously for two years or less. The proposed newly organized concern basis of affiliation would be a rebuttable presumption that may be rebutted if there is a clear line of fracture between the new concern and the other firm.
Finally, SBA proposes to amend § 121.301(f) by adding a new paragraph 6 to explain that, when making affiliation determinations, SBA will consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation. The totality of the circumstances criterion for determining affiliation was removed in 2016 in response to comments received on the proposed revisions to the affiliation rules. Commenters requested that SBA either eliminate the criterion
Examples of affiliation between small businesses based on the totality of the circumstances include:
(1) SBA found a newly established firm to be affiliated with the firm owned by its 40% owner where both firms were construction companies; they had similar names (Specialized Services, Inc. and Specialized Veterans, LLC); the 40% owner provided a $300,000 initial capital contribution compared to the 60% owner's $1,000 contribution; the majority owner was previously the Chief Operating Officer of the affiliate; the majority owner had no construction experience; and the affiliate provided indemnification to the firm's surety. (
(2) SBA found a newly established firm to be affiliated with its minority owner, an entity in the same line of business, where the other owners were previously key employees of the affiliate; the affiliate provided guarantees for the firm's financing and required the firm to seek the affiliate's approval before undertaking long-term commitments; the affiliate supplied the firm with machines and equipment for free; the affiliate promised the firm a large amount of business; and the sales the firm made to the affiliate accounted for the vast majority, 86%-88%, of its revenues. (
SBA notes that a business found affiliated under the totality of the circumstances test (or any other ground of affiliation) in the Business Loan Programs may challenge the determination by requesting a formal size determination from SBA's Office of Government Contracting in accordance with 13 CFR 121.1001(b)(1)(i). A business can appeal a formal size determination to SBA's Office of Hearings and Appeals in accordance with 13 CFR 121.1101.
Finally, SBA proposes to revise § 121.301(f)(5) to clarify that the term “franchise” has the meaning given by the Federal Trade Commission (FTC) in its definition of “franchise” as set forth in 16 CFR 436. SBA proposes to cross reference the FTC definition of “franchise” in the regulation to clarify that the regulation applies to all agreements or relationships, whatever they may be called, that meet the FTC definition of a franchise. All such agreements will be referred to in the regulation as “franchise agreements” and the parties to such agreements will be referred to as “franchisor” and “franchisee.” Further, SBA proposes to add to this regulation a statement that SBA will maintain a centralized list of franchise and other similar agreements that are eligible for SBA financial assistance. SBA will make this centralized list available to SBA Lenders and the public. The proposed changes discussed in this paragraph are consistent with SBA's current policy and procedure.
Although not included in the regulations, SBA is providing below a description of the franchise procedures currently in effect for lending to franchisees in the Business Loan Programs. As of January 1, 2018, SBA created the SBA Franchise Directory (the “Directory”) of all franchise and other brands reviewed by SBA that are eligible for SBA financial assistance. The Directory only includes business models that SBA determines are eligible under SBA's affiliation rules and other eligibility criteria. If the Applicant's brand meets the FTC definition of a franchise, it must be on the Directory in order to obtain SBA financing. (To help minimize confusion over brands that may appear to be franchises but that do not meet the FTC definition, SBA includes such brands on the Directory at their request if they are eligible in all other respects.) SBA Lenders are able to rely on the Directory and no longer need to review franchise or other brand documentation for affiliation or eligibility.
The Directory will continue to be maintained on SBA's website at
(1) Whether the brand meets the FTC definition of a franchise;
(2) The SBA Franchise Identifier Code, if applicable (a code will only be issued if the agreement meets the FTC definition of a franchise);
(3) Whether an addendum is needed in order to resolve any affiliation issues as a result of provisions in the franchise agreement and, if so, whether the franchisor will use the SBA Addendum to Franchise Agreement (SBA Form 2462) or an SBA Negotiated Addendum (with respect to an SBA Negotiated Addendum, the Directory will reference the addendum most recently negotiated with SBA, which will not be earlier than 2015); and
(4) Whether there are additional issues the Lender must consider with respect to the brand (
For applications involving a franchise or similar relationship that meets the FTC definition of a franchise, before submitting the application to SBA for non-delegated processing or approving the loan under the SBA Lender's delegated authority, the SBA Lender must check the Directory to determine if it includes the Applicant's brand. If the Applicant's brand is on the Directory, the SBA Lender may proceed with submitting the application to SBA for non-delegated processing, or approving the loan under its delegated authority. If the Applicant's brand is not on the Directory, the SBA Lender cannot submit the application to SBA for non-delegated processing, or approve the loan under its delegated authority. (See, SOP 50 10 for a full discussion of the procedures for processing franchise loans.)
The Office of Management and Budget (OMB) has determined that this proposed rule is not a “significant” regulatory action for the purposes of Executive Order 12866. However, SBA has drafted a Regulatory Impact Analysis in the next section. This is not a major rule under the Congressional Review Act, 5 U.S.C. 800.
The Agency believes it is necessary to provide regulatory guidance for SBA Express and Export Express loans, which are authorized by statute. Current
The Small Business 7(a) Lending Oversight Reform Act of 2018 was signed into law on June 21, 2018. As part of this legislation, Congress has authorized the Agency to direct the methods by which Lenders determine whether a borrower is able to obtain credit elsewhere. SBA will be implementing that legislation in a separate rulemaking, but in this rule SBA proposes to reinstate a personal resources test in an effort to provide clear direction to SBA Lenders when analyzing whether a borrower has credit available elsewhere on reasonable terms from non-Federal or alternative sources.
The statutory changes in the Consolidated Appropriations Act of 2018 (Pub. L. 115-141) regarding the Microloan Program require amendments to existing regulations for the percentage of grant funds that may be used by the Microloan Intermediary for marketing, managerial, and technical assistance to prospective Microloan borrowers. Existing regulations must be revised as proposed to reflect the statutory changes.
Further, the Agency believes it needs to streamline and reduce regulatory burdens to facilitate robust participation in the business loan programs that assist small and underserved U.S. businesses. For that reason, SBA is proposing the changes to the regulatory provisions related to allowable fees that a Lender or Agent may collect from an Applicant for financial assistance. The proposed changes are needed to simplify the regulations regarding fees that may be collected from an Applicant. The proposal would establish clear limits on the amount of fees that may be charged by a Lender and/or an Agent. In addition, the proposed changes to the affiliation principles applicable to the Business Loan, Disaster Loan, and Surety Bond Guarantee Programs are needed in order to simplify and clarify the determination of eligibility of a business as a small concern.
SBA does not anticipate any additional costs or impact on the subsidy to operate the business loan programs under these proposed regulations. SBA anticipates that providing clear regulatory guidance for the SBA Express and Export Express Loan Programs will result in an increase in the number of participating lenders and loans in both programs, which would mean increased access to capital for small businesses. SBA does not anticipate any additional cost from the addition of the SBA Express and Export Express regulations because both programs have been in use and performing for over 5 years. Additionally, portfolio performance of both programs, including prepayment, default and recovery behaviors is already being captured in the 7(a) program's annual subsidy calculation.
In return for the additional autonomy and authority granted under SBA Express, Lenders who participate in the SBA Express program agree to receive a maximum guaranty of 50% on loans of $350,000 or less. The ability for SBA Express Lenders to use the same forms, procedures and policies that they already follow for their similarly-sized, non-SBA guaranteed commercial loans removes an additional layer of documents and permits a lender to move more quickly to a decision and funding of small dollar small business loans. This reduces the time and costs, as well as the paperwork involved in making these smaller loans (up to $350,000 for SBA Express and up to $500,000 for Export Express).
The Export Express Loan Program provides lenders with a maximum guaranty of 90% for loans of $350,000 or less and 75% for loans over $350,000 up to $500,000, as well as the authority to use their own forms, procedures and policies to the maximum extent possible. As with SBA Express, the increased autonomy and authority reduces redundancy in documentation, time and costs associated with underwriting smaller export loans.
Cost to deliver is an important consideration for lenders when assessing the benefits of participating with SBA programs. Streamlined rules result in increased lender participation, particularly for community banks, credit unions and other mission-based lenders who generally serve more rural communities and underserved populations with smaller dollar loans. While SBA does not have specific statistics, cost savings to the lender generally trickle down to the small business Applicant. Further, providing plain language regulatory guidance for the SBA Express and Export Express Loan Programs will reduce improper payment risk for lenders and SBA by ensuring that lenders are fully informed and understand the program requirements.
SBA has provided guidance on the SBA Express and Export Express Loan Programs in SOP 50 10, Lender and Development Company Programs, SOP 50 57, 7(a) Loan Servicing and Liquidation, SOP 50 53, Lender Supervision and Enforcement, and 51 00, On-Site Reviews and Examinations, and official Agency notices. The Agency recognizes, however, that regulations are important for the proper implementation of the two programs.
This executive order supplements and reaffirms the principles and requirements in E.O. 12866, including the requirement to provide the public with an opportunity to participate in the regulatory process. In compliance with the executive order, a description of the need for this regulatory action and benefits and costs associated with this action, including possible distributional impacts are included above in the Regulatory Impact Analysis. The Agency has participated in public forums and meetings, which have included outreach to many of its program participants to seek valuable insight, guidance, and suggestions for program reform. Some of the proposed changes in this rule are a direct result of the feedback SBA has received from program participants.
This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
SBA has determined that this proposed rule would not have substantial, direct effects on the States,
SBA has determined that this proposed rule would impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act (PRA). Applicants for SBA Express and Export Express loans, as well as SBA Express and Export Express Lenders, use the same forms as all other 7(a) loans in order to apply for an SBA guaranteed loan. These forms include: SBA Form 1919, Borrower Information Form; SBA Form 1920, Lender's Application for Guaranty; SBA Form 1971, Religious Eligibility Worksheet (for those businesses that may have a religious aspect); and SBA Form 2237 (to request modifications to an approved loan). These forms are all OMB-approved forms under OMB Control number 3245-0348. SBA Form 1920 would need to be revised due to the proposed new regulation at § 120.102, which would require Lenders to analyze the personal resources of certain owners of the Applicant business to determine if they have liquid assets that can provide some or all of the desired financing. The change would have a
The rule also proposes changes that would require revisions to SBA Form 159, Fee Disclosure and Compensation Agreement (OMB Control number 3245-0201), which is used to collect information from Lenders and Agents on the fees that they charge to Applicants for assistance with obtaining an SBA-guaranteed loan. SBA Form 159 is also used to collect information from Lenders on referral fees that it pays to Referral Agents in connection with an SBA-guaranteed loan. The specific proposed revisions to SBA Form 159 would implement the proposed changes to §§ 120.221, 103.4(g), and 103.5 that limit the amount and types of fees that may be charged to an Applicant. The proposed revisions to SBA Form 159 would reduce the hour burden for Lenders because they will no longer have to itemize the fees charged to Applicants in excess of $2,500, but merely disclose the amount charged. The revisions would have no material effect on the reporting burden for Agents. They will continue to report on all fees imposed on Applicants as they do now. The proposed changes to SBA Forms 1920 and 159 will be submitted to OMB as part of a broader, comprehensive revision of the forms that is not affected by this proposed rule, but is part of the Agency's efforts to streamline and simplify the information collected from Applicants and Lenders. SBA will make it clear in the final rule that the specific revisions affected by this proposed rule will not take effect until the rule is finalized. SBA invites comments on the proposed changes to the underlying regulations that would impact these forms by the deadline for comments noted in the
Finally, this proposed rule proposes to put into the regulations the existing requirement for SBLCs to submit to SBA for review and approval on an annual basis the validation of any credit scoring model they are using in connection with SBA Express and Export Express loans. This reporting requirement will be included in OMB-approved collection, SBA Lender Reporting Requirements (OMB Approval Number 3245-0365). This information collection expires September 30, 2018 and will be submitted to OMB for renewal prior to that date. The proposed regulatory change does not impact that requirement; it merely codifies the requirement in the regulation instead of the SOP.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires the agency to “prepare and make available for public comment an initial regulatory analysis” which will “describe the impact of the proposed rule on small entities.” Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Although the rulemaking will impact all of the approximately 4,500 7(a) Lenders, all of the approximately 214 CDCs, all of the approximately 146 Microloan Intermediaries, all of the approximately 33 ILP Intermediaries, and all of the approximately 32 Sureties that participate in the SBG Program, SBA does not believe the impact will be significant because this proposal modifies existing regulations and procedures to provide bright-line guidance.
SBA has determined that by proposing a limit to fees that a Lender or an Agent may charge to a small business Applicant or Borrower for SBA 7(a) loans, small business borrowers will be protected from incurring excessive expense to obtain a loan. SBA issued guaranties on 288,398 7(a) loans from fiscal year 2013 through fiscal year 2017. Fees charged to the Borrower or Applicant for packaging or other services were disclosed on 21% of the total 7(a) loans approved in that period. Applicants or Borrowers were charged fees that exceed the limits proposed in this rulemaking on 3.8% of total 7(a) loans approved.
Based on the analysis above, SBA has determined that the proposed fee limits will not cause undue financial burden to the Lenders or Agents. Having this bright-line test, Lenders, Borrowers, and Agents will, in fact, save time and costs in analyzing and documenting that fees charged to the Applicant are reasonable.
SBA's proposal to reinstate a personal resources test will have no impact, either directly or indirectly, to Applicants for 7(a) or 504 loans. Currently, the regulation (13 CFR 120.101) and program guidance require SBA Lenders to analyze the ability of the business to obtain credit from non-federal sources, including the personal resources of individuals and entities that own 20 percent or more of the Applicant business. The proposed change reinstates a bright-line test for SBA Lenders to appropriately consider the personal resources of the principals.
SBA's proposal to presume affiliation between a small business Applicant and another business from which the Applicant has derived more than 85% of its revenue over the previous three fiscal years includes an exception for new or start-up businesses. The exception will require the new or start-up Applicant to prepare a diversification plan demonstrating how it plans to become less dependent on any single source of income. This requirement to create a diversification plan may create an additional regulatory burden on those Applicants eligible for the exception. However, SBA considers this impact to be
SBA believes that this proposed rule encompasses best practice guidance that aligns with the Agency's mission to increase access to capital for small businesses and facilitate American job preservation and creation with the
Administrative practice and procedure.
Community development, Environmental protection, Equal employment opportunity, Exports, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA proposes to amend 13 CFR parts 103, 120 and 121 as follows:
15 U.S.C. 634, 642.
(g) Acting as an Agent (including a Lender Service Provider) for an SBA Lender and an Applicant on the same SBA business loan and receiving compensation from both the Applicant and SBA Lender.
(b) Total compensation charged by an Agent or Agents to an Applicant for services rendered in connection with obtaining an SBA-guaranteed loan must be reasonable. In cases where the compensation exceeds the amount SBA deems reasonable, the Agent(s) must reduce the charge and refund to the Applicant any sum in excess of the amount SBA deems reasonable. SBA considers the following amounts to be reasonable for the total compensation that an Applicant can be charged by an Agent or Agents:
(1) For loans up to and including $350,000: A maximum of up to 2.5% of the loan amount, or $7,000, whichever is less;
(2) For loans $350,001-$1,000,000: A maximum of up to 2% of the loan amount, or $15,000, whichever is less; and
(3) For loans over $1,000,000: A maximum of up to 1.5% of the loan amount, or $30,000, whichever is less.
(c) * * * However, such compensation may not be charged to an Applicant or Borrower.
15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h), and note, 636(a), (h) and (m), 650, 687(f), 696(3), and 697(a) and (e); Pub. L. 111-5, 123 Stat. 115; Pub. L. 111-240, 124 Stat. 2504.
(a) An Applicant for a business loan must show that the desired funds are not available from the resources of any individual or entity owning 20 percent or more of the Applicant. SBA will require the use of liquid assets from any such owner as an injection to reduce the SBA loan amount when that owner's liquid assets exceed the amounts specified in paragraphs (a)(1) through (3) of this section. When the total financing package (
(1) Is $350,000 or less, each 20 percent owner of the Applicant must inject any liquid assets that are in excess of one and three-quarter times the total financing package, or $200,000, whichever is greater;
(2) Is between $350,001 and $1,000,000, each 20 percent owner of the Applicant must inject any liquid assets that are in excess of one and one-half times the total financing package, or $1,000,000, whichever is greater;
(3) Exceeds $1,000,000, each 20 percent owner of the Applicant must inject any liquid assets that are in excess of one times the total financing package, or $2,500,000, whichever is greater.
(b) Any liquid assets in excess of the applicable amount set forth in paragraph (a) of this section must be used to reduce the SBA loan amount. These funds must be injected prior to the disbursement of the proceeds of any SBA financing. In extraordinary circumstances, SBA may, in its sole discretion, permit exceptions to the required injection of an owner's excess liquid assets.
(c) For purposes of this section, “liquid assets” means cash or cash equivalents, including savings accounts, CDs, stocks, bonds, or other similar assets. Equity in real estate holdings and other fixed assets are not to be considered liquid assets. In addition, the liquid assets of any 20 percent owner who is an individual include the liquid assets of the owner's spouse and any minor children.
(d) SBA Lenders must document their analysis and determination in the loan file.
(c) Floor plan financing or other revolving line of credit, except under § 120.340, § 120.390, or § 120.444;
(a)
(b)
(a) Section 7(a)(15) of the Act authorizes SBA to guarantee a loan to a qualified employee trust (“ESOP”) to:
(1) Help finance the growth of the employer small business; or
(2) Purchase ownership or voting control of the employer.
(b) Applications for SBA-guaranteed loans to a qualified employee trust may not be processed under a Lender's delegated authority.
(a) * * * This paragraph applies to all 7(a) loans purchased from the FDIC (as receiver, conservator, or other liquidator of a failed insured depository institution), whether through a loan sale where SBA has not already purchased the guarantee or through a whole bank transfer.
(c) If delegated authority is approved or renewed, Lender must execute a supplemental guarantee agreement, which will specify a term not to exceed two years. As provided in § 120.442(c)(2)(i), when SBA renews a Lender's authority to participate in SBA Express, SBA may grant a longer term, but not to exceed three years. For approval or renewal of any delegated authority, SBA may grant shortened approvals or renewals based on risk or any of the other delegated authority criteria. Lenders with less than three years of SBA lending experience will be limited to an initial term of one year or less.
“SBA EXPRESS AND EXPORT EXPRESS LOAN PROGRAMS”.
(a)
(b)
The decision to grant or renew SBA Express or Export Express authority will be made by the appropriate SBA official in accordance with Delegations of Authority, and is final. If SBA Express or Export Express authority is approved or renewed, the Lender must execute a supplemental guarantee agreement before the Lender's SBA Express or Export Express authority will become effective.
(a)
(1)
(2)
(i) Has acceptable experience with small commercial loans, including an acceptable number of performing small commercial loans outstanding at its most recent fiscal year end; and
(ii) Has received appropriate training on SBA's policies and procedures.
(b)
(1) Can effectively process, make, close, service, and liquidate SBA Express or Export Express loans, as applicable;
(2) Has received a major substantive objection regarding renewal from the Field Office(s) covering the territory where the Lender generates significant numbers of SBA Express or Export Express loans, as applicable; and
(3) Has received acceptable review results on the SBA Express or Export Express portion, as applicable, of any SBA-administered Lender reviews.
(c)
(2)
(ii)
(iii) SBA may renew a Lender's authority to participate in SBA Express or Export Express for a shorter term or limit a Lender's maximum SBA Express or Export Express loan volume if, in SBA's sole discretion, a Lender's qualifications, performance, experience with SBA lending, or other factors so warrant.
(a) SBA Express and Export Express loans are subject to all of the requirements set forth in Subparts A and B of this part, unless such requirements are specifically identified by SBA as inapplicable.
(b) Certain types of loans and loan programs are not eligible for SBA Express or Export Express, as detailed in official SBA policy and procedures, including but not limited to:
(1) A loan that would reduce the Lender's existing credit exposure to a single Borrower, including its affiliates as defined in § 121.301(f) of this chapter;
(2) A loan to a business that has an outstanding 7(a) loan where the Applicant is unable to certify that the loan is current at the time of approval of the SBA Express or Export Express loan;
(3) A loan that would have as its primary collateral real estate or personal property that do not meet SBA's environmental requirements; and
(4) Complex loan structures or eligibility situations.
(c) SBA has authorized SBA Express and Export Express Lenders to make the credit decision without prior SBA review. Lenders must not make an SBA guaranteed loan that would be available on reasonable terms from either the Lender itself or another source without an SBA guaranty. The credit analysis must demonstrate that there is reasonable assurance of repayment. SBA Express and Export Express Lenders must use appropriate and prudent credit analysis processes and procedures that are generally accepted in the commercial lending industry and are consistent with those used for their similarly-sized, non-SBA guaranteed commercial loans. As part of their prudent credit analysis, SBA Express and Export Express Lenders may use a business credit scoring model (such a model cannot rely solely on consumer credit scores) to assess the credit history of the Applicant and/or repayment ability if they do so for their similarly-sized, non-SBA guaranteed commercial loans. SBA Express and Export Express Lenders must validate (and document) with appropriate statistical methodologies that their credit analysis procedures are predictive of loan performance, and they must provide that documentation to SBA upon request. SBLCs must provide such credit scoring model validation and documentation to SBA for review and approval on an annual basis.
(d) SBA Express and Export Express Lenders are responsible for all loan decisions, including eligibility for 7(a) loans (including size), creditworthiness and compliance with Loan Program Requirements. SBA Express and Export Express Lenders also are responsible for confirming that all loan closing decisions are correct and that they have complied with all requirements of law and Loan Program Requirements.
(e) SBA Express and Export Express Lenders must ensure all required forms are obtained and are complete and properly executed. Appropriate documentation must be maintained in the Lender's loan file, including adequate information to support the eligibility of the Applicant and the loan.
(a)
(2) Revolving lines of credit are eligible for SBA Express, provided they comply with official SBA policy and procedures.
(b)
(i) Obtaining a Standby Letter of Credit when required as a bid bond, performance bond, or advance payment guarantee;
(ii) Participation in a trade show that takes place outside the United States;
(iii) Translation of product brochures or catalogues for use in markets outside the United States;
(iv) Obtaining a general line of credit for export purposes;
(v) Performing a service contract for buyers located outside the United States;
(vi) Obtaining transaction-specific financing associated with completing export orders;
(vii) Purchasing real estate or equipment to be used in the production of goods or services for export;
(viii) Providing term loans and other financing to enable a small business concern, including an export trading company and an export management company, to develop a market outside the United States; and
(ix) Acquiring, constructing, renovating, modernizing, improving or expanding a production facility or equipment to be used in the United States in the production of goods or services for export.
(2) Revolving lines of credit for export purposes are eligible for Export Express, provided they comply with official SBA policy and procedures.
(3) Export Express loans may not be used to finance overseas operations, except for the marketing and/or distribution of products/services exported from the U.S.
(4) Export Express Lenders are responsible for ensuring that U.S. companies are authorized to conduct business with the Persons and countries to which the Borrower will be exporting.
(c) An SBA Express or Export Express Lender may use loan proceeds to refinance certain outstanding debts, subject to official SBA policy and procedures. However, an SBA Express or Export Express Lender may not refinance its own existing SBA-guaranteed debt under SBA Express or Export Express.
SBA Express and Export Express loans are subject to the same terms and conditions as other 7(a) loans except as set forth in this section:
(a)
(1)
(2)
(b)
(2)
(c)
(2)
(d)
(2) For variable interest rate loans, SBA Express and Export Express Lenders are not required to use the base rate identified in § 120.214(c). SBA Express and Export Express Lenders may use the same base rate of interest they use on their similarly-sized, non-SBA guaranteed commercial loans, as well as their established change intervals, payment accruals, and other interest rate terms. However, the interest rate must never exceed the maximum allowable interest rate stated in paragraph (d)(1) of this section. Additionally, the loan may be sold on the Secondary Market only if the base rate is one of the base rates allowed in § 120.214(c).
(3) The amount of interest SBA will pay to a Lender following default of an SBA Express or Export Express loan is capped at the maximum interest rates for the standard 7(a) loan program set forth in §§ 120.213 through 120.215.
(e)
(2) SBA may establish a threshold below which SBA Express and Export Express Lenders will not be required to take collateral to secure an SBA Express or Export Express loan. Such a threshold will be described more fully in official SBA policy and procedures.
(3) Export Express lines of credit over $25,000 used to support the issuance of a standby letter of credit must have collateral (cash, cash equivalent or project) that will provide coverage for at least 25% of the issued standby letter of credit amount.
(f)
(g)
(h)
(a)
(b)
(c)
(2)
(ii)
(3)
SBA Express and Export Express Lenders are subject to the same risk-based lender oversight as 7(a) Lenders, including the supervision and enforcement provisions, in accordance with Subpart I of this Part.
The revision and addition read as follows:
(b) * * *
(1) Up to 50 percent of the grant funds may be used to provide information and technical assistance to prospective Microloan borrowers; provided, however, that no more than 5 percent of the grant funds may be used to market or advertise the products and services of the Microloan Intermediary directly related to the Microloan Program; and
15 U.S.C. 632, 634(b)(6), 662, and 649a(9).
The revisions and additions read as follows:
(f) * * *
(4)
(ii) Affiliation arises when there is an identity of interest between close relatives, as defined in § 120.10 of this chapter, with identical or substantially identical business or economic interests (such as where the close relatives operate concerns in the same or similar industry in the same geographic area).
(iii) Affiliation arises through common investments where the same individuals or firms together own a substantial portion of multiple concerns, and concerns owned by such investors conduct business with each other (such as subcontracts or joint ventures), or share resources, equipment, locations or employees with one another, or provide loan guaranties or other financial or managerial support to each other.
(iv) SBA will find affiliation based upon economic dependence if the concern in question derived more than 85% of its receipts from another concern over the previous three fiscal years, unless the concern has been in business for a short amount of time and has a plan to lessen its dependence on the other concern.
(5)
(6)
(7)
(ii) For purposes of this section, “franchise” means any continuing commercial relationship or arrangement, whatever it may be called, that meets the Federal Trade Commission definition of “franchise” in 16 CFR 436.
(a) The size status of an applicant for SBA financial assistance is determined as of the date the application for financial assistance is accepted for processing by SBA, except for applications under the Preferred Lenders Program (PLP), the SBA Express Loan Program (SBA Express), the Export Express Loan Program (Export Express), the Disaster Loan Program, the SBIC Program, and the New Markets Venture Capital (NMVC) Program.
(b) For PLP, SBA Express, and Export Express, size is determined as of the date of approval of the loan by the Lender.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 727 airplanes. This proposed AD was prompted by a report of cracking in the inboard lower flange and adjacent web near the forward attachment of the outboard flap track at a certain position on a Model 737-300 airplane. The flap tracks of Model 737-300 airplanes are similar to the flap tracks of Model 727 airplanes. This proposed AD would require repetitive detailed inspections and surface high frequency eddy current (HFEC) inspections of each outboard flap track at certain positions for any crack and discrepancy, and applicable on-condition actions. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by November 13, 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 Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Muoi Vuong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5205; 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
We have received a report indicating cracking in the inboard lower flange and adjacent web near the forward attachment of the outboard flap track at position 8, which was found during a tear down of a Model 737-300 airplane. The flap tracks of Model 737-300 airplanes are similar to the flap tracks of Model 727 airplanes. This condition, if not addressed, could result in the inability of a principal structural element to sustain required flight load, which could result in loss of the outboard trailing edge flap and reduced controllability of the airplane.
We have issued AD 2018-18-13, Amendment 39-19392 (83 FR 46380, September 13, 2018) (“AD 2018-18-13”), for The Boeing Company Model 737-100, -200, -200C, -300, -400, -500 series airplanes. AD 2018-18-13 requires an inspection to determine the part number of the wing outboard flap track assembly; repetitive inspections of each affected wing outboard flap track for discrepancies, and applicable on-condition actions; and repetitive overhaul of each wing outboard flap track. AD 2018-18-13 addresses cracking of the rear spar attachment, and cracking of the wing outboard flap tracks. Cracking in the area between the forward and rear spar attachments of the wing outboard flap tracks could lead to the inability of a principal structural element to sustain required flight load, and result in loss of the outboard trailing edge flap and consequent reduced controllability of the airplane.
We reviewed Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018. The service information describes procedures for repetitive detailed inspections for discrepancies and surface HFEC inspections for cracks of each outboard flap track at positions 1, 2, 7, and 8, and applicable on-condition actions. On-condition actions include repairs and installation of a new or serviceable flap track. 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 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 accomplishment of the actions identified in Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
For information on the procedures and compliance times, see this service information at
The FAA worked in conjunction with industry, under the Airworthiness Directives Implementation Aviation Rulemaking Committee (AD ARC), to enhance the AD system. One enhancement is a process for annotating which steps in the service information are “required for compliance” (RC) with
In an effort to further improve the quality of ADs and AD-related Boeing service information, a joint process improvement initiative was worked between the FAA and Boeing. The initiative resulted in the development of a new process in which the service information more clearly identifies the actions needed to address the unsafe condition in the “Accomplishment Instructions.” The new process results in a Boeing Requirements Bulletin, which contains only the actions needed to address the unsafe condition (
We estimate that this proposed AD affects 16 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances 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 13, 2018.
None.
This AD applies to all The Boeing Company Model 727, 727-100, 727-100C, 727-200, 727-200F, and 727C series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a report of cracking in the inboard lower flange and adjacent web near the forward attachment of the outboard flap track at position 8 on a Model 737-300 airplane. The flap tracks of Model 737-300 airplanes are similar to the flap tracks of Model 727 airplanes. We are issuing this AD to address the inability of a principal structural element to sustain required flight load, which could result in loss of the outboard trailing edge flap and reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as required by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018.
Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 727-57A0188, dated May 31, 2018, which is referred to in Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018, uses the phrase “the original issue date of Requirements Bulletin 727-57A0188 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Requirements Bulletin 727-57A0188 RB, dated May 31, 2018, specifies contacting Boeing for repair instructions, this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
As of the effective date of this AD, no person may install, on any airplane, a wing outboard flap track having a part number listed in paragraph 1.B. of Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018, unless the inspections and applicable on-condition actions specified in the Accomplishment Instructions of Boeing Alert Requirements Bulletin 727-57A0188 RB, dated May 31, 2018, are accomplished concurrently with the installation of the part on the airplane.
(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 (k)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Muoi Vuong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5205; fax: 562-627-5210; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. This proposed AD was prompted by reports of electrical arcing between the auxiliary power unit (APU) starter motor positive terminal and the APU fuel drain line. This proposed AD would require the removal of certain clamps and replacement of the flexible APU fuel drain line. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by November 13, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0008, dated January 16, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The MCAI states:
Reports were received of electrical arcing between the auxiliary power unit (APU) starter motor positive terminal and the APU
This condition, if not corrected, could lead to a fire during APU start, possibly resulting in damage to the aeroplane.
In response to these findings, Fokker issued Service Bulletin (SB) SBF100-49-023, later amended by SB Change Notification (SBCN), with instructions to install two additional clamps on the APU fuel supply line and the flexible APU fuel drain line. Consequently, CAA-NL [Civil Aviation Authority—the Netherlands] issued the Netherlands AD 92-139 [which corresponds to FAA AD 95-21-20, Amendment 39-9407 (60 FR 53857, October 18, 1995) (“AD 95-21-20”)] to require the actions described in Fokker SBF100-49-023.
Since that [the Netherlands] AD was issued, following reports of arcing and chafing damage to the APU fuel drain line, the investigation revealed that the two additional clamps and the instructions in SBF100-49-023 would not meet the intent of ensuring sufficient clearance between the APU fuel drain line and the positive terminal of the APU starter motor.
To address this potential unsafe condition, Fokker Services [B.V.] published SBF100-49-037 to introduce a new flexible APU fuel drain line that is one inch shorter and has one elbow flange, thus enabling to restore sufficient clearance with the positive terminal of the APU starter motor.
For the reasons described above, this AD supersedes CAA-NL [the Netherlands] AD 92-139 and requires replacement of the flexible APU fuel drain line, removal of the additional clamps introduced by SBF100-49-023, and a check to verify sufficient clearance between the APU fuel drain line and the positive terminal of the APU starter motor.
You may examine the MCAI in the AD docket on the internet at
This NPRM would not propose to supersede AD 95-21-20. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require the removal of certain clamps and replacement of the flexible APU fuel drain line. Accomplishment of the proposed actions would then terminate all requirements of AD 95-21-20.
Fokker Services B.V. has issued Fokker Service Bulletin SBF100-49-037, dated October 31, 2016. This service information describes procedures for removing certain clamps and replacing the flexible APU fuel drain line (which includes making sure there is sufficient clearance between the new APU fuel drain line and the positive terminal of the APU starter motor and that the earth lead is not chafing against the fuel supply or the fuel drain line). This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD affects 5 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by November 13, 2018.
This AD affects AD 95-21-20, Amendment 39-9407 (60 FR 53857, October 18, 1995) (“AD 95-21-20”).
This AD applies to Fokker Services B.V. Model F28 Mark 0070 and 0100, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 49, Airborne auxiliary power.
This AD was prompted by reports of electrical arcing between the auxiliary power unit (APU) starter motor positive terminal and the APU fuel drain line. We are issuing this AD to address this unsafe condition, which could lead to a fire during APU start and possibly result in damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD: Remove the two additional clamps, part number (P/N) MS21919WCH5 and P/N MS21919WCH13, and replace APU fuel drain line P/N D67066-409 with a new APU fuel drain line P/N W67066-401, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-49-037, dated October 31, 2016.
Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 95-21-20.
No person may install APU fuel drain line P/N D67066-409 after modification of an airplane as required by paragraph (g) of this AD.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0008, dated January 16, 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 Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email
Food and Drug Administration, HHS.
Proposed rule; withdrawal.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the withdrawal of a proposed rule that published in the
The proposed rule published September 18, 2008, at 73 FR 54106 is withdrawn as of September 28, 2018.
For access to the docket, go to
Holli Kubicki, Office of Regulatory Affairs, Office of Strategic Planning and Operational Policy, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-402-4557,
In 1990, FDA began a process of periodically conducting comprehensive reviews of its regulation process, including reviewing the backlog of proposed rulemakings that had not been finalized. As FDA removed many proposed rules not finalized, the Agency implemented a process of reviewing existing proposed rules every 5 years.
As part of this process and the Administration's regulatory reform initiative, we continue to conduct reviews of existing proposed rules. The review determines if the proposals are outdated, unnecessary, or can be revised to reduce regulatory burden while allowing FDA to achieve our public health mission and fulfill statutory obligations.
As part of these efforts, FDA is withdrawing the proposed rule entitled “Label Requirement for Food That Has Been Refused Admission Into the
The proposed rule does not reflect current technology and industry practice. For example, the proposed rule directed owners or consignees to affix labels to physical documents such as invoices, packing lists, bills of lading, and any other documents accompanying refused food. Many of these documents are now electronic. Therefore, since implementation of the proposed rule would not adequately address how to permanently mark electronic documentation accompanying refused food, it would not achieve the public health and efficiency benefits discussed in the notice of proposed rulemaking. As directed by section 304 of the FDA Food Safety Modernization Act (Pub. L. 111-353) that was enacted after FDA issued the proposed rule, FDA now requires, as part of its prior notice regulations, notice to FDA of the name of any country to which imported food has been refused entry. (See 21 CFR 1.281(a)(18).) This includes situations where the United States has refused entry, and it therefore provides FDA with information related to what the proposed marking rule would require.
FDA may reassess how to effectively implement the labeling of documentation accompanying refused food and consider whether to issue a revised proposed rule in the future.
The withdrawal of the proposal identified in this document does not preclude the Agency from reinstituting rulemaking concerning the issues addressed. Should we decide to undertake such a rulemaking in the future, we will re-propose the action and provide a new opportunity for comment. Furthermore, this proposed rule withdrawal is only intended to address the specific actions identified in this document, and not any other pending proposals that the Agency has issued or is considering. If you need additional information about the subject matter of the withdrawn proposed rule, you may review the Agency's website (
Food and Drug Administration, HHS.
Proposed rule; withdrawal.
The Food and Drug Administration (FDA, Agency, we) is announcing the withdrawal of two proposed rules that published in the
As of September 28, 2018, the proposed rules published on January 12, 2007, at 72 FR 1582, and February 19, 2010, at 75 FR 7412 are withdrawn.
For access to the docket, go to
Brian Pendleton, Office of Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 4250, Silver Spring, MD 20993-0002, 301-796-4614,
In 1990, FDA began a process of periodically conducting comprehensive reviews of its regulation process, including reviewing the backlog of proposed rulemakings that had not been finalized. As FDA removed many proposed rules not finalized, the Agency implemented a process of reviewing existing proposed rules every 5 years.
As part of this process and the Administration's regulatory reform initiative, we continue to conduct reviews of existing proposed rules. The review determines if the proposals are outdated, unnecessary, or can be revised to reduce regulatory burden while allowing FDA to achieve our public health mission and fulfill statutory obligations.
As part of these efforts, FDA is withdrawing the following proposed rules:
The withdrawal of the proposed rules does not preclude the Agency from reinstituting rulemaking concerning the issues addressed in the proposed rules listed in the table. Should we decide to undertake such rulemakings in the future, we will re-propose the actions and provide new opportunities for comment. Furthermore, these proposed rules' withdrawal is only intended to address the specific actions identified in this document, and not any other pending proposals that the Agency has issued or is considering. If you need additional information about the subject
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary special local regulation for certain waters of the Manasquan Inlet between Manasquan, NJ, and Point Pleasant Beach, NJ. This action is necessary to protect event participants, spectators, and vessels transiting the area from potential hazards during the Manasquan Inlet Intercoastal Tug marine event. During the enforcement period, unauthorized persons or vessels would be prohibited from entering into, remaining within, transiting through, or anchoring in the regulated area unless authorized by the Captain of the Port Delaware Bay or a designated representative of the Captain of the Port. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before October 5, 2018.
You may submit comments identified by docket number USCG-2018-0883 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Petty Officer Thomas Welker, U.S. Coast Guard; Sector Delaware Bay, Waterways Management Division; telephone (215) 271-4814, email
The Manasquan Beach and Recreation Department notified the Coast Guard that it will be conducting a tug of war event from 11 a.m. to 1:30 p.m. on October 20, 2018. The tug of war will consist of teams on opposing sides of the Manasquan Inlet with a rope extended between the sides. The event will span the entire width of the inlet. Vessel operation in the area of the event could be hazardous to both event participants and vessels. The Captain of the Port Delaware Bay (COTP) has determined that a safety concern exists for non-participant vessels within 400 feet of the tug of war rope.
The purpose of this rulemaking is to ensure the safety of participants and vessels transiting the regulated area during the event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a temporary special local regulation to be in effect from 11 a.m. to 1:30 p.m. on October 20, 2018. The regulated area would cover all waters within 400 feet of the event located between approximate locations 40°6′9.22″ N, 74°2′7.8″ W and 40°6′9.22″ N, 74°2′8.2″ W. During the event, the inlet would be closed to all non-participant vessel traffic. There is a 30-minute break tentatively planned for midway through the event. If circumstances permit, during the break the rope will be removed from navigable waters and vessels may be allowed to transit through the area at the discretion of the COTP or COTP's designated representative. The regulation is intended to ensure the safety of event participants and vessels during the scheduled 11 a.m. to 1:30 p.m. tug of war event. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative of the Captain of the Port. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the regulated area. While this regulated area would impact a designated area of the Manasquan River Inlet for 2 and
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a regulated area lasting 2 and
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Maritime safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
33 U.S.C. 1233; 33 CFR 1.05-1.
(a)
(b)
(c)
(2) To seek permission to enter or remain in the zone, contact the COTP or the COTP's designated representative
(3) If authorization to enter into, remain within, transit through, or anchor in the regulated area is granted, all persons and vessels receiving such authorization shall comply with the instructions of the COTP or the COTP's designated representative.
(4) The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Marines, or by on-scene designated representatives.
(d)
(e)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on a portion of the Delaware River in Philadelphia, PA. This action is necessary to protect the surrounding public and vessels on these navigable waters adjacent to Penn's Landing, Philadelphia, PA, during a fireworks display on October 19, 2018. This proposed rulemaking would prohibit persons and vessels from entering, transiting, or remaining within the safety zone unless authorized by the Captain of the Port Delaware Bay or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before October 5, 2018.
You may submit comments identified by docket number USCG-2018-0711 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Petty Officer Thomas Welker, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division; telephone 215-271-4814, email
On June 18, 2018, a wedding party notified the Coast Guard that it will be conducting a fireworks display from 11:15 p.m. to 11:45 p.m. on October 19, 2018. The fireworks are to be launched from a barge in the Delaware River adjacent to Penn's Landing in Philadelphia, PA. Hazards from firework display include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-foot radius of the barge.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-foot radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a safety zone from 11:00 p.m. through 11:59 p.m. on October 19, 2018. The safety zone would cover all navigable waters within 500 feet of a fireworks barge in the Delaware River adjacent to Penn's Landing in Philadelphia, PA. The barge will be anchored in approximate position 39°57′05.26″ N Latitude 075°08′10.85″ W Longitude. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 11:15 p.m. to 11:45 p.m. fireworks display. No vessel or person would be permitted to enter, transit, or remain within the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Delaware River for one hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting one hour that would prohibit entry within 500 feet of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To request permission to enter the safety zone, contact the COTP or the COTP's representative on marine band radio VHF-FM channel 16 (156.8 MHz) or 215-271-4807.
(3) No vessel may take on bunkers or conduct lightering operations within the safety zone during the enforcement period.
(4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.
(d)
(e)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to amend the regulations establishing safety zones for annual fireworks displays in the Captain of the Port Zone Columbia River. This action would include updating 3 existing safety zones, adding 1 safety zone for a fireworks display that was previously published under a temporary regulation, and removing 10 safety zones for inactive fireworks displays. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before October 29, 2018.
You may submit comments identified by docket number USCG-2018-0868 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LCDR Dixon Whitley, Waterways Management Division, Marine Safety Unit Portland, Coast Guard; telephone 503-240-9319, email
Our regulation for safety zones for fireworks displays in Captain of the Port Zone Columbia River, 33 CFR 165.1315, was revised (82 FR 28556, June 23, 2017) in 2017. This proposed rule would remove 10 safety zones for inactive fireworks displays, add 1 safety zone for a new, recurring fireworks display that was previously published as a temporary safety zone, and update the date or location for 3 existing fireworks displays. The purpose of this revision would provide the public accurate information regarding safety zones for annual fireworks displays in Captain of the Port Zone Columbia River.
The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231. The Captain of the Port Sector Columbia River has determined that fireworks displays create hazardous conditions for the maritime public because of the large number of vessels near the displays, as well as the noise, falling debris, and explosions that occur during the event. Because firework discharge sites pose a potential hazard to the maritime public, these safety zones are necessary in restricting vessel movement and to reduce vessel congregation in the proximity of the firework discharge sites.
The Coast Guard proposes to remove 10 fireworks display safety zones in 33 CFR 165.1315 that are listed in Table 1 below because the Coast Guard has not received an application to conduct these fireworks displays within the past 3 years.
Additionally, the Coast Guard proposes to add a new fireworks display safety zone. This safety zone was previously listed as a temporary safety zone (83 FR 30869, July 2, 2018), and after conferring with the event sponsor,
Finally, the Coast Guard proposes to revise three existing fireworks display safety zones. These revisions include updating the date for 4th of July at Pekin Ferry to more precisely describe when the fireworks display would occur, correcting the wrong state listed for the Independence Day at the Port and updating the location for the Leukemia and Lymphoma Light the Night Fireworks.
These updates would eliminate any confusion caused by the fireworks display safety zones listed in the 33 CFR165.1315 table and any subsequent temporary safety zones resulting from changes. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around these safety zones which would impact small designated areas of the Oregon coast, Tillamook Bay, the Columbia River and its tributaries, and the Clatskanie River for approximately 2 hours during the evening when commercial vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves safety zones lasting approximately two hours in duration and would prohibit entry within 450 yards of the launch sites. Normally such
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
Office of Elementary and Secondary Education, Department of Education.
Proposed priorities.
The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary), U.S. Department of Education (Department) proposes priorities, requirements, definitions, and performance measures under the Comprehensive Centers program. The Assistant Secretary may use these priorities, requirements, definitions, and performance measures for competitions in fiscal year (FY) 2019 and later years. We intend to use the priorities, requirements, and definitions to award grants to eligible applicants seeking to provide capacity-building services to State educational agencies (SEAs), regional educational agencies (REAs), local educational agencies (LEAs), and schools that improve educational outcomes for all students, close achievement gaps, and improve the quality of instruction.
We must receive your comments on or before October 29, 2018.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
•
•
The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
Kim Okahara, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E204, Washington, DC 20202-6135. Telephone: (202) 453-6930. 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.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 13771 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, definitions, and performance measures. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about these proposed priorities, requirements, definitions, and performance measures by accessing
Section 203 of the Educational Technical Assistance Act of 2002 (ETAA) (20 U.S.C. 9601
The ETAA authorizes support for not less than 20 grants to local entities, or consortia of such entities, with demonstrated expertise in providing capacity-building services in reading, mathematics, science, and technology, especially to low-performing schools and districts, including the administration and implementation of programs authorized under the ESEA. Under section 203(a)(2) of the ETAA, the Department is required to establish at least one Center in each of the 10 geographic regions served by the Department's Regional Educational Laboratories (RELs) authorized under section 941(h) of the Educational Research, Development, Dissemination, and Improvement Act of 1994. The proposed funding for Regional Centers established under the ETAA must take into consideration the school-age population, proportion of economically disadvantaged students, increased cost burdens of service delivery in rural areas, and number of schools identified for improvement under ESEA section 1111(d). Accordingly, the regions for the proposed Regional Centers take into account total SEAs, LEAs, REAs, SEAs, and LEAs eligible for the Small, Rural School Achievement Program and the Rural Low-Income School Program, schools, and the associated RELs.
The Department conducted a competition in 2012 and made five-year awards to 15 Regional Centers and seven Content Centers. The 15 Regional Centers provided direct technical assistance to SEAs within their assigned geographic region through a variety of approaches, such as identifying best practices and resources, providing training, and helping States plan strategically and engage key stakeholders. In addition, seven Content Centers provided specialized support in the following key areas: Standards and assessments implementation, great teachers and leaders, school turnaround, enhancing early learning outcomes, college- and career-readiness and success, building State capacity and productivity, and innovations in learning. Content Centers developed materials, such as guides, tools, and training modules, and they provided direct technical assistance to States in collaboration with Regional Centers.
On March 13, 2017, the Department granted waivers to extend the performance period of the Comprehensive Centers from October 1, 2017, through September 30, 2019 (82 FR 13452). The Department concluded it would be in the public interest to hold a competition only after all new statutory requirements under the reauthorized ESEA went into effect. Delaying the competition until after the Department and States began to implement the new provisions under the ESEA allowed applicants to familiarize themselves with the new statutory requirements and submit applications that better serve States under the new law.
Additionally, pursuant to authority granted to the Secretary in Title III of Division H of the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), and subsequent Consolidated Appropriations Acts, Comprehensive Center services may be provided to the Bureau of Indian Education (BIE) and schools within its jurisdiction.
We propose two priorities. The Assistant Secretary may use one or more of these priorities for the FY 2019 Comprehensive Centers program competition or for any subsequent competition.
While specific needs and recommendations varied by region, the three highest needs identified across all 10 RACs were: College and career readiness; ensuring equity and addressing issues of disproportionality; and supporting the lowest performing schools.
Consistent with the RAC findings and recommendations and the requirements of both the ESEA and the ETAA, the Department believes that the best way to assist State-led reform efforts is to focus Comprehensive Centers on implementing and scaling evidence-based programs, practices, and interventions that directly benefit those eligible to receive Comprehensive Center services (recipients): (1) Recipients that have high percentages or numbers of students from low-income families; (2) recipients that are implementing comprehensive support and improvement activities or targeted support and improvement activities; and (3) recipients in rural areas.
In order for States to effectively implement and scale-up evidence-based programs, practices, and interventions, we propose that Regional Centers deliver intensive services to help their assigned States advance through the following phases of implementation: Conducting needs assessments, developing logic models, selecting appropriate evidence-based practices, planning for the implementation of evidence-based practices, implementing evidence-based practices, and evaluating the implementation of evidence-based practices. We also propose that the National Center deliver universal services to help all States address common high-leverage problems, common implementation challenges, and emerging education trends.
By delineating which Centers will deliver universal, targeted, and intensive services, the proposed model minimizes duplication of Comprehensive Center resources and enables more coherent, coordinated, and efficient service delivery to all States.
The FY 2019 Comprehensive Centers program logic model provided in this document outlines the expected inputs, types of services, outputs, and outcomes that, when taken together, we believe are more likely to result in organizational structures and systems that ensure high-quality services and supports for disadvantaged students and students from low-income families.
Regional Centers must provide high-quality intensive capacity-building services to State clients and recipients to identify, implement, and sustain effective evidence-based practices that support improved educator and student outcomes. As appropriate, capacity-building services must assist clients and recipients in: (1) Carrying out approved ESEA Consolidated State Plans with preference given to the implementation and scaling up of evidence-based programs, practices, and interventions that directly benefit recipients that have high percentages or numbers of students from low-income families as referenced in Title I, Part A of the ESEA (ESEA secs. 1113(a)(5) and 1111(d)) and recipients that are implementing comprehensive support and improvement activities or targeted support and improvement activities as referenced in Title I, Part A of the ESEA (ESEA sec. 1111(d)); (2) implementing and scaling-up evidence-based programs, practices, and interventions that address the unique educational obstacles faced by rural populations; (3) carrying out corrective actions (
Applicants must propose to operate a Regional Center in one of the following regions:
The National Center must provide high-quality universal (
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Assistant Secretary proposes the following requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect. See
The Department believes leadership support throughout the SEA is critical to ensuring that Centers provide services that advance State-led efforts to implement and scale-up evidence-based programs, practices, and interventions. When proposing annual service plans to the Department, we propose to require Regional Centers to demonstrate that they consulted with and garnered commitment from Chief State School Officers (CSSOs) or their designees
In addition to maintaining strong relationships with SEA leadership, under the proposed requirements, Centers must conduct routine exploration of client and recipient needs. This exploration process must utilize multiple perspectives from the Center, State clients and recipients, and multiple data sources, such as key Federal and State documents. The Department believes that frequent communication with State clients and recipients is necessary for Centers to identify high-leverage problems; assemble and deploy interdisciplinary teams with appropriate subject-matter expertise; meaningfully collaborate with Department-funded technical assistance providers carrying out projects in States; serve as credible partners to national organizations, businesses, and industry; periodically assess client satisfaction; and monitor progress on agreed-upon outcomes, outputs, and milestones. To that end, Centers are encouraged to develop cost-effective strategies for continuous and timely input from their full range of clients on both State and local needs and the quality of services provided.
In order for Regional Centers and the National Center to be credible partners and valued service providers to States, we believe that each Center must implement a robust personnel management system that enables timely access to nationally recognized experts in the content areas (
The details and parameters of the Department's expectations and involvement will be included in the cooperative agreement with each grantee.
(a)
(1) Develop a service plan annually in consultation with each State's CSSO that includes the following elements: High-leverage problems to be addressed, phase of implementation (
(2) Develop and implement an effective personnel management system that enables the Center to efficiently obtain and retain the services of nationally recognized content experts and other consultants with direct experience working with SEAs, REAs, and LEAs. Personnel must demonstrate that they have the appropriate expertise to deliver quality, intensive services that meet client and recipient needs similar to those in the region to be served.
(3) Develop and implement an effective communications system that enables routine and ongoing exploration of client and recipient needs as well as feedback on services provided. The system must enable routine monitoring of progress toward agreed-upon outcomes, outputs, and milestones; periodic assessment of client satisfaction; and timely identification of changes in State contexts that may impact success of the project. The communications system must include processes for outreach activities (
(4) Collaborate with the National Center to support client and recipient participation in learning opportunities (
(5) Identify and enter into partnership agreements with regional educational laboratories, national organizations, businesses, and industry for the purpose of supporting States in the implementation and scale-up of evidence-based programs, practices, and interventions as well as reducing duplication of services to States.
(6) Be located in the region the Center serves. The Project Director must be full-time (1.0) and located in the region that the Center serves. Key personnel must also be able to provide onsite services at the intensity, duration, and modality appropriate to achieving agreed-upon milestones, outputs, and outcomes described in State service plans.
(7) Within 90 days of receiving funding for an award under this document, demonstrate that it has secured client and partner commitments to carry out proposed service plans.
(b)
(1) Develop a service plan annually in consultation with the Department and Regional Centers. The service plan must take into account commonalities in identified high-leverage problems in Regional Center State service plans, finalized Department monitoring and audit findings, implementation challenges faced by Regional Centers and States, and emerging national education trends. The annual service plan must be an update to the Center's five-year plan submitted as part of the Center's application. The annual service plan must include, at a minimum, the following elements: High-leverage problems to be addressed, capacity-building services to be delivered, key personnel responsible, milestones, outputs, and outcome measures. The annual service plan must also include evidence that the Center involved Regional Centers in identifying targeted and universal services that complement Regional Center services to improve client and recipient capacity.
(2) Maintain the Comprehensive Center network website, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility.
(3) Develop and implement an effective personnel management system that enables the Center to retain and efficiently obtain the services of education practitioners, researchers, policy professionals, and other consultants with direct experience with SEAs, REAs, and LEAs. Personnel must have a proven record of publishing in peer-reviewed journals, presenting at national conferences, or delivering quality adult learning experiences that meet client and recipient needs.
(4) Disseminate information (
(5) Disseminate Regional Center State service plans, Center annual performance reports, and other materials through the Comprehensive Center network website and other channels as appropriate.
(6) Collaborate with Regional Centers to implement learning opportunities for recipients (
(7) Develop and implement an effective communications system that enables routine and ongoing exploration of Regional Center client and recipient needs. The system must enable routine monitoring of progress toward agreed-upon outcomes, outputs, and milestones; periodic assessment of client satisfaction; and timely identification of changes in Federal or State contexts that may impact success of the project. The communications system must include processes for outreach activities (
(8) Identify potential partners and enter into partnership agreements with other federally funded technical assistance providers, industry, national associations, and other organizations to support the implementation and scaling-up of evidence-based programs, practices, and interventions.
(9) Identify a full-time (1.0 FTE) project director capable of managing all aspects of the Center.
(10) Within 90 days of receiving funding for an award under this document, demonstrate that it has secured client and partner commitments to carry out proposed service plans.
(c)
(1) Present applicable State, regional, and local data demonstrating the current needs related to building capacity to implement and scale up evidence-based programs, practices, and interventions. Reference, as appropriate, information related to the Department's finalized monitoring and audit findings.
(2) Demonstrate expert knowledge of statutory requirements, regulations, and policies related to programs authorized under ESEA and current education issues and policy initiatives for supporting the implementation and scaling up of evidence-based programs, practices, and interventions.
(3) Consistent with the priorities and requirements for this program, demonstrate expertise and experience in the following areas:
(i) Managing budgets; selecting, coordinating, and overseeing multiple consultant and sub-contractor teams; and leading large-scale projects to deliver tools, training, and other services to governments, agencies, communities, businesses, schools, or other organizations.
(ii) Designing and implementing performance management processes with staff, subcontractors, and consultants that enable effective hiring, developing, supervising, and retaining a team of subject-matter experts and professional staff.
(iii) Identifying problems and conducting root-cause analysis; developing and implementing logic models, organizational assessments, strategic plans, and process improvements; and sustaining the use of evidence-based programs, practices, and interventions.
(iv) Monitoring and evaluating activities, including, but not limited to: Compiling data, conducting interviews, developing tools to enhance capacity-building approaches, conducting data analysis using statistical software, interpreting results from data using widely acceptable quantitative and qualitative methods, and developing evaluation reports.
(3) Provide copies of memoranda of understanding (MOU) with Department-funded technical assistance providers, including the REL(s) in the region that the Center serves, that are charged with supporting comprehensive, systemic changes in States or Department-funded technical assistance providers with particular expertise (
(4) Describe the current research on adult learning principles, coaching, and implementation science that will inform the applicant's capacity-building services, including how the applicant will promote self-sufficiency and sustainability of State-led school improvement activities.
(5) Present a proposed communications plan for working with appropriate levels of the education system (
(6) Present a proposed evaluation plan for the project. The evaluation plan must describe the criteria for determining the extent to which: Milestones were met; outputs were met; recipient outcomes (short-term, mid-term, and long-term) were met; and capacity-building services proposed in State service plans were implemented as intended.
(7) Present a logic model informed by research or evaluation findings that demonstrates a rationale (as defined in 34 CFR 77.1) explaining how the project is likely to improve or achieve relevant and expected outcomes. This logic model must align with the Comprehensive Centers program logic model, communicate how the project will achieve its expected outcomes (short-term, mid-term, and long-term) and provide a framework for both the formative and summative evaluations of the project consistent with the applicant's evaluation plan.
(8) Include an assurance that, if awarded a grant, the applicant will assist the Department with the transfer of pertinent resources and products and maintain the continuity of services to States during the transition to this new award period, as appropriate, including by working with the FY 2012 Comprehensive Center on Building State Capacity and Productivity to migrate products, resources, and other relevant project information to the National Center's Comprehensive Center network website.
(d)
(1) Describe the proposed approach to intensive capacity-building services, including identification of intended recipients and alignment of proposed capacity-building services to meet client needs. The applicant must also describe how it intends to measure the readiness of clients and recipients to work with the applicant; measure client and recipient capacity across the four capacity-building dimensions, including available resources; and measure the ability of the client and recipients to build capacity at the local level.
(e)
(1) Demonstrate expertise and experience in leading digital engagement strategies to attract and sustain involvement of education stakeholders, including, but not limited to: Implementing a robust web and social media presence, overseeing customer relations management, providing editorial support, and collecting and analyzing web analytics.
(2) Describe the intended recipients of and the proposed approach to targeted capacity-building services, including how the applicant intends to collaborate with Regional Centers to identify potential recipients and how many it has the capacity to reach; measure the readiness and capacity of potential recipients across the four dimensions; and continuously engage potential recipients over the five-year period.
(3) Describe the intended recipients of and the proposed approach to universal capacity-building services, including how the applicant intends to: Measure the quality of the products and services developed to address common high-leverage problems; how many recipients it plans to reach; support recipients in the selection, implementation, and monitoring of evidence-based practices and interventions; and improve knowledge of emerging national education trends.
The four dimensions of capacity-building services are:
(1) Human capacity: Development or improvement of individual knowledge, skills, technical expertise, and ability to adapt and be resilient to policy and leadership changes.
(2) Organizational capacity: Structures that support clear communication and a shared understanding of an organization's visions and goals, and delineated individual roles and responsibilities in functional areas.
(3) Policy capacity: Structures that support alignment, differentiation, or enactment of local, State, and Federal policies and initiatives.
(4) Resource capacity: Tangible materials and assets that support alignment and use of Federal, State, private, and local funds.
The three tiers of capacity-building services are:
(1) Intensive: Assistance often provided on-site and requiring a stable, ongoing relationship between the Regional Center staff and their clients and recipients, as well as periodic evaluations and feedback strategies. This category of capacity-building services should support increased recipient capacity in more than one capacity dimension and improved outcomes at one or more system levels.
(2) Targeted: Assistance based on needs common to multiple clients and recipients and not extensively individualized. A relationship is established between the recipient(s), Regional Center(s), and the National Center. This category of capacity-building services includes one-time, labor-intensive events, such as facilitating strategic planning or hosting national or regional conferences. It can also include less labor-intensive events that extend over a period of time, such as facilitating a series of conference calls on single or multiple topics that are designed around the needs of the recipients. Facilitating communities of practice can also be considered targeted capacity-building services.
(3) Universal capacity-building services: Assistance and information provided to independent users through their own initiative, involving minimal interaction with National Center staff and including one-time, invited or offered conference presentations by National Center staff. This category of capacity-building services also includes information or products, such as newsletters, guidebooks, policy briefs, or research syntheses, downloaded from the Center's website by independent users. Brief communications by National Center staff with recipients, either by telephone or email, are also considered universal services.
A product output under this program would be considered a deliverable under the open licensing regulations at 2 CFR 3474.20.
The proposed performance measures are intended to assess the extent to which Comprehensive Centers: (1) Achieved high client
We will announce the final priorities, requirements, definitions, and performance measures in a notice in the
This document does not solicit applications. In any year in which we choose to use one or more of these proposed priorities, requirements, definitions, and performance measures we invite applications through a notice in the
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For Fiscal Year 2018, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the proposed regulatory action is not significant, the requirements of Executive Order 13771 do not apply.
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed priorities, requirements, definitions, and performance measures only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from regulatory requirements and those we have determined are necessary for administering the Department's programs and activities.
The Department believes that the proposed priorities, requirements, definitions, and performance measures would result in the selection of high-quality applications to establish Centers that are most likely to build the capacity of SEAs in order to improve educational outcomes for all students. Through the proposed priorities, requirements, definitions, and performance measures, we seek to provide clarity as to the scope of activities we expect to support with program funds. A potential applicant would need to consider carefully its capacity to implement a project successfully.
The Department further believes that the costs imposed on an applicant by the proposed priorities, requirements, definitions, and performance measures would be largely limited to paperwork burden related to preparing an application and that the benefits of preparing an application and receiving an award would justify any costs incurred by the applicant. This is because, during the project period, the costs of actually establishing a Center and carrying out activities under a Comprehensive Centers program grant would be paid for with program funds and any matching funds. Thus, the costs of establishing a Comprehensive Center using these proposed priorities,
Elsewhere in this section under Paperwork Reduction Act of 1995, we identify and explain burdens specifically associated with information collection requirements.
The small entities that this proposed regulatory action could affect are eligible research organizations, agencies, institutions of higher education, or partnerships among such entities, or individuals. The Secretary believes that the costs imposed on an applicant by the proposed priorities, requirements, definitions, and performance measures would be limited to paperwork burden related to preparing an application and that the benefits of implementing these proposals would outweigh any costs incurred by the applicant.
Participation in the Comprehensive Centers program is voluntary. For this reason, the proposed priorities, requirements, definitions, and performance measures would impose no burden on small entities unless they applied for funding under the Comprehensive Centers program using the proposed priorities, requirements, definitions, and performance measures. We expect that in determining whether to apply for Comprehensive Center funds, an eligible entity would evaluate the requirements of preparing an application and implementing a Comprehensive Center, and any associated costs, and weigh them against the benefits likely to be achieved by implementing a Center. An eligible entity would probably apply only if it determines that the likely benefits exceed the costs of preparing an application and implementing a project. The likely benefits of applying for a Comprehensive Centers program grant include the potential receipt of a grant as well as other benefits that may accrue to an entity through its development of an application, such as the use of such application to create partnerships with other entities in order to assist SEAs.
The Secretary believes that the proposed priorities, requirements, definitions, and performance measures would not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the proposed action. That is, the length of the applications those entities would submit in the absence of the proposed regulatory action and the time needed to prepare an application would likely be the same.
Further, this proposed regulatory action could help a small entity determine whether it has the interest, need, or capacity to implement activities under the program and, thus, prevent a small entity that does not have such an interest, need, or capacity from absorbing the burden of applying.
This proposed regulatory action would not have a significant economic impact on a small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program. The Secretary invites comments from small eligible entities as to whether they believe this proposed regulatory action would have a significant economic impact on them and, if so, requests evidence to support that belief.
This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
Federal Communications Commission.
Proposed rule.
In this document, Wireline Competition Bureau seeks comment on several proposals to implement a process for resolving location discrepancies at issue for Phase II auction support recipients.
Comments are due on or before October 29, 2018 and reply comments are due on or before November 13, 2018.
You may submit comments, identified by WC Docket No. 10-90 by the following method:
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Alexander Minard, Wireline Competition Bureau at (202) 418-7400 or TTY (202) 418-0484.
This is a synopsis of the Wireline Competition Bureau's document in WC Docket No. 10-90; DA 18-929, released September
1. In this Public Notice, the Wireline Competition Bureau (Bureau) seeks comment on several proposals to implement a process for resolving location discrepancies at issue for Phase II auction support recipients. Specifically, the Bureau seeks comment on approaches to identify and resolve apparent discrepancies between the number of model-determined funded locations that Phase II auction support recipients are expected to serve (funded locations) and the actual number of locations that support recipients can serve (actual locations). The Bureau undertakes this action pursuant to the 2018
2. Pursuant to the process set forth by the Commission, the Bureau must: (1) Collect probative evidence of actual locations from those Phase II auction support recipients choosing to participate in this process (participants) (including evidence demonstrating that the participants could find no additional actual locations other than those identified with location data); (2) make all such evidence available for review by relevant stakeholders and specify the types of evidence that such stakeholders should submit to challenge such evidence; (3) adjudicate individual claims for relief based on a preponderance of the evidence standard; (4) issue an order when appropriate to reduce deployment obligations and authorized support (on a pro rata basis); and, (5) conduct future audits of evidence submitted by participants. While the Commission set some parameters for certain aspects of this process, it also directed the Bureau to adopt requirements and issue guidance necessary for implementation, consistent with prior Commission direction regarding funded location adjustments. The Commission directed the Bureau to “release a public notice or order (following its issuance of a notice and opportunity for comment) detailing instructions, deadlines, and requirements for filing valid geolocation data and evidence for both [participants] and commenters.”
3.
4. In general, CAF support recipients cannot report unfinished residential or business locations or ongoing or future real estate developments as served locations in satisfaction of build-out requirements. Given that this review process, however, will provide the basis for a participant's deployment obligation over a 10-year support term, the Bureau seeks comment on whether actual locations should include prospective developments that have a reasonable certainty of coming into existence within the support term. The Bureau seeks comment on the potential evidentiary obstacles to implementing this modification. How might participants learn of such prospective developments and the number of future locations associated with them? Do development plans routinely indicate the number of residential and business units? Is such information available from local governments and authorities, and does the amount and type of information available from such entities vary to a degree that could provide an unfair advantage or disadvantage to participants based on their geographic areas? As an alternative, should the Bureau rely on relevant stakeholders to submit evidence of such locations in their submissions?
5.
6. The Bureau seeks comment on whether to require that participants use a particular method to identify the geocoordinates and addresses of actual locations or permit carriers to choose their method(s) and correct for inaccuracies. For purposes of reporting deployed locations, USAC has published guidance on three generally accepted methods of geolocation,
7. The Bureau seeks comment on methodological and evidentiary standards necessary to ensure that participants have used geolocation method(s) consistently and comprehensively to accurately identify all actual locations in eligible areas within the state. How would such
8. In the
9. The Bureau seeks comment on the evidence that must be submitted by relevant stakeholders to effectively rebut or refute the participant's contentions. The Bureau expects that stakeholders will identify specific locations that they assert are wrongfully omitted from the participant's list of actual locations. The Bureau proposes that stakeholders seeking to report specific locations omitted from the participant's list must submit the same kind of location evidence that the Bureau requires of participants,
10. The Bureau proposes to dismiss any challenge that lacks some evidentiary showing. The Bureau also proposes not to allow stakeholders to submit alternative evidence of locations based on public or private data sources that the stakeholder cannot conclusively demonstrate to be significantly more accurate than the recipient's data sources. The Bureau seeks comment on these proposals.
11. The Bureau proposes that evidence of omitted locations from relevant stakeholders be submitted in a similar format to the data on actual locations submitted by Phase II auction support recipients. The Bureau intends to review the information submitted by relevant stakeholders and modify lists of actual locations as part of its final adjudicatory decision.
12.
13. The Bureau seeks comment on these and other ways the web-based functionality may be used to facilitate the submission of actual location evidence and ways that the HUBB may be adapted to fulfill this purpose. The Bureau also seeks comment on whether participants may face specific obstacles or burdens in submitting location data electronically into the HUBB or a similar system.
14. In the
15. The Bureau proposes to open a window, 14 days before this deadline and ending on the deadline, for participants to certify, under penalty of perjury, the truth and accuracy of their location data and associated petition. The certification will be mandatory and must be signed by an individual with relevant knowledge (such as an officer of the company), certifying under penalty of perjury that the participant has engaged in due diligence to verify statements and evidence presented in this challenge process and that such information is accurate to the best of the certifying party's knowledge and belief. By opening a filing window rather than permitting participants to certify their data and information at any time during the first year, the Bureau would help ensure that a participant's data reflects the most recent facts on the ground and that the participant does not omit new or prospective building developments
16. Alternatively, the Bureau could permit certifications at any time prior to the final deadline but would also require participants to monitor their supported areas within the state, add any new locations (or potential developments) or remove any locations determined to be ineligible prior to the two-week time frame proposed above and recertify their data. The Bureau emphasizes that regardless of when participants submit their data and information, they will have a good faith obligation to amend or correct data that they later discover to be inaccurate or incomplete. Such obligation will extend until completion of the 10-year funding term. The Bureau seeks comment on these options.
17. The Bureau proposes that it reviews the actual location evidence submitted by Phase II Auction support recipients and, within 60 days of their filing deadline, announce
18. Consistent with standards of review adopted for similar review processes, the Commission adopted a preponderance of the evidence standard to evaluate the merits of participants' claims for adjustment of their defined deployment obligations. The Bureau also proposes that participants bear the burden of persuasion. Accordingly, if the Bureau finds that the participant has failed to demonstrate that it is more likely than not that the CAM-estimated number of funded locations do not reflect the facts on the ground, the Bureau will not modify the defined deployment obligation. The Bureau notes that placing the burden of persuasion on the participant encourages the participant to fully present its evidence and further tempers any incentive to “cherry pick” locations.
19. The Commission has directed that, in circumstances where the Bureau determines that modification of the participant's number of funded locations is warranted, it must reduce the authorized support on a pro rata basis. As part of its adjudicatory order, the Bureau will re-authorize support at the new reduced amount. The Bureau proposes that, given the timing of this review process, if the participant has already been authorized to receive support, the Bureau will also order a reduction in future payments for the remainder of the support term proportionally to reflect the total amount of reduction. The Bureau also proposes to allow participants to promptly adjust their letters of credit to reflect the new authorized funding amount once the Bureau's order modifying the authorized support is issued. The Bureau seeks comment on these proposals.
20. The Bureau notes that the Commission treats location data for served locations as non-confidential and has required the public disclosure of such information. The public interest in accessing these data to ensure transparency and oversight, however, is significantly greater than in accessing evidence of actual locations, particularly before the Bureau issues an order concluding its adjudication of the individual merits of a participant's claim. Further, unlike evidence of served locations, unverified lists of actual locations and related evidence may indirectly reveal future deployment plans or other information that could be used to the competitive disadvantage of participants. The responsive comments of relevant stakeholders could potentially link addresses or other information to specific individuals. Such data, if published, could raise important privacy concerns and trigger statutory protections against agency disclosures, such as outlined in the Privacy Act of 1974.
21. The Bureau seeks comment on what steps it should take to ensure that privacy and competitive interests are not compromised. Should the Commission adopt a protective order to control stakeholders' use of participants' information pending completion of the review process? Should the Bureau require participants and/or relevant stakeholders to seek confidential treatment of their information pursuant to section 0.459 of the Commission's rules or should the Bureau adopt a presumption that such information is confidential, at least until the adjudicatory process is complete? Should or must the Bureau review and aggregate this evidence and release it for public consumption after the Bureau adjudicates the request? Should or must the Bureau release such evidence and findings for all participants at the same time, or can it do so on a rolling basis as it resolves individual requests for relief? The Bureau seeks comment on these issues.
22. Phase II auction support recipients, like all recipients of high-cost support, are subject to compliance audits and other investigations to ensure compliance with program rules and orders. As USF administrator, USAC has the authority and responsibility to audit USF payments. The Commission has designated the Managing Director as the agency official responsible for ensuring “that systems for audit follow-up and resolution are documented and in place, that timely responses are made to all audit reports, and that corrective actions are taken.” The Commission resolves contested audit recommendations and findings, either on appeal from the Bureau or directly, if the challenge raises novel questions of fact, law, or policy.
23. In the
24. Under section 54.320(b) of the Commission's rules, all recipients of
25. If, during the audit, it is discovered that the participant failed to report actual locations when it certified its data, what are the appropriate consequences? Should the Bureau retroactively require that the participant deploy to the CAM estimated number of locations despite the reduction in support? If the participant then defaults by failing to build to the CAM estimated number of locations, should the participant be required to refund support in accordance with default procedures? Should the Bureau treat the participant as if it has defaulted on its deployment obligations in total and seek recovery of all authorized support? Should consequences differ if it is determined that the participant intentionally omitted actual locations or was grossly negligent in researching locations? The Bureau notes that if it determines that the participant intentionally or negligently misrepresented actual locations, the filing may trigger possible forfeiture penalties.
26. The Bureau seeks comment on these proposals and on any alternatives. If commenters believe different procedures would better serve the Commission's goals of granting Phase II auction support recipients relief from defined deployment obligations that may be impossible to fulfill (as opposed to merely difficult or more expensive to fulfill), and providing funding recipients with some certainty about their defined deployment obligations as they plan deployments for future years (without prematurely excluding ongoing developments), they should provide a detailed description of their preferred alternative. The Bureau welcomes suggested alternatives that minimize the impact of these proposals on small businesses, as well as comments regarding the cost and benefits of implementing these proposals.
27. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
28. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Public Notice. Written comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Public Notice. The Commission will send a copy of the Public Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Public Notice and IRFA (or summaries thereof) will be published in the
29. The Bureau is implementing a process, adopted by the Commission in its
30. This Public Notice proposes that participants file actual location data in the High Cost Broadband Portal (HUBB) maintained by the Universal Service Administrative Company (USAC), and separately file a narrative petition detailing the reliability and validity of such data to demonstrate that no additional locations may be found. This Public Notice seeks comment on the various forms of evidence that should be considered for purposes of determining reliability and validity as well as the kinds of evidence that relevant stakeholders should submit to effectively challenge participants' evidence. The Bureau emphasizes that it will not consider assertions about actual locations that are offered without supporting evidence. The Bureau clarifies the Commission's one-year deadline for the submission of location data and proposes that participants file their associated petitions by this deadline. The Bureau also proposes specific deadlines for the filing of petitions by relevant stakeholders and the filing of replies. The Bureau proposes that both participants and relevant stakeholders certify, under penalty of perjury, the truth and accuracy of all such submissions. In addition, the Bureau seeks comment on various proposals relating to the adjudication of requests for support modifications and future auditing processes relating to participants' submissions.
31. 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 rule revisions, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
32. Our actions, over time, may affect small entities that are not easily categorized at present. The Bureau therefore describes here, at the outset, three comprehensive small entity size
33. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
34. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37, 132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data the Bureau estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
35. In this Public Notice, the Bureau seeks public comment on procedures for implementing a review process for the modification of funding awarded under the Connect America Phase II auction. Certain proposals could result in additional reporting requirements.
36. If the Bureau implements the Phase II challenge process articulated above, commenters, including small entities, wishing to participate would be required to comply with the listed reporting and evidentiary standards. This includes filing a challenge along with supporting evidence and serving a copy of the challenge on any challenged party within a specified timeframe.
37. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
38. The Public Notice seeks comment from all interested parties. The Commission is aware that some of the proposals under consideration may impact small entities. Small entities are encouraged to bring to the Commission's attention any specific concerns they may have with the proposals outlined in the Public Notice, and the Commission will consider alternatives that reduce the burden on small entities.
39. The Commission expects to consider the economic impact on small entities, as identified in comments filed in response to the Public Notice, in reaching its final conclusions and taking action in this proceeding. The reporting requirements in the Public Notice could have an impact on both small and large entities. The Commission believes that any impact of such requirements is outweighed by the accompanying public benefits. Further, these requirements are necessary to ensure that the statutory goals of Section 254 of the Act are met without waste, fraud, or abuse.
40. In the Public Notice, the Commission seeks comment on several issues and measures that may apply to small entities in a unique fashion. Small entities may be more likely to seek relief from their obligations to serve the CAM-estimated number of funded locations. Small entities may also be more likely to challenge participants' requests for relief. The Bureau will consider comments from small entities as to whether a different standard should apply.
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45. For additional information on this proceeding, contact Nissa Laughner at (202) 418-1358 or
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advance notice of proposed rulemaking.
NMFS hereby publishes an advance notice of proposed rulemaking to solicit comments on modifying the Atlantic Large Whale Take Reduction Plan's Massachusetts Trap/Pot Restricted Area and the Great South Channel Trap/Pot Restricted Area to allow trap/pot fishing that does not use vertical buoy lines (referred to as buoy-lineless or ropeless gear) prior to gear retrieval. NMFS is requesting comments on this possible action including whether opening these areas that are currently closed to trap/pot fishing would provide an economic benefit or incentive for buoy-lineless fishing development and to assess interest from industry for buoy-lineless fishing in these areas.
Information related to this document must be received by close of business on October 29, 2018.
You may submit comments by any of the following methods:
1. Go to
2. Click the “Comment Now!” icon, complete the required fields.
3. Enter or attach your comments.
Allison Rosner NMFS Protected Resources Division, Greater Atlantic Region, 978-282-8462,
Large whale entanglements resulting in mortalities and serious injuries still occur at levels that, for North Atlantic right whales, exceed the allowable levels established by the Marine Mammal Protection Act (MMPA). Under the MMPA, NMFS is required to reduce the mortality and serious injury to three strategic large whale stocks—the Western Stock of North Atlantic right whales (
Currently the Atlantic Large Whale Take Reduction Plan (Plan) has two seasonal trap/pot closures: Massachusetts Restricted Area (50 CFR 229.32(c)(3)) and the Great South Channel Trap/Pot Closure (50 CFR 229.32(c)(4)). Massachusetts Restricted Area prohibits fishing with, setting, or possessing trap/pot gear in this area unless stowed in accordance with § 229.2 from February 1 to April 30. Great South Channel Trap/Pot Closure prohibits fishing with, setting, or possessing trap/pot gear in this area unless stowed in accordance with § 229.2 from April 1 through June 30.
In 2003, the Atlantic Large Whale Take Reduction Team (Team) agreed to manage entanglement risk by first reducing the risk associated with groundlines and then reducing the risk associated with vertical lines in commercial trap/pot and gillnet gear. Risk reduction of groundlines was addressed in October 2007 with the implementation of the sinking groundline requirement for all fisheries throughout the east coast (72 FR 57104, October 5, 2007). In 2009, at the request of the Team, NMFS also investigated the feasibility of opening a buoy-lineless (or ropeless) fishing gear testing site in the Great South Channel trap/pot and gillnet closure area. At the time, the Agency determined that technological and economic incentives were not sufficient for this to be successful, and that other management actions to reduce entanglement risks caused by vertical lines should be prioritized.
In 2014, the Plan was amended (79 FR 36586, June 27, 2014) to address large whale entanglement risks associated with vertical line (or buoy lines) from commercial trap/pot fisheries. This amendment included gear modifications, gear setting requirements, an expanded seasonal trap/pot closure (Massachusetts Restricted Area) and gear marking for both trap/pot and gillnet fisheries. The original Massachusetts Restricted Area was a seasonal closure from January 1 through April 30 for all trap/pot fisheries. In a subsequent Plan amendment, the boundary for the Massachusetts Restricted Area was expanded by 900 square miles (2.59 square kilometers), and the start date changed to February 1 (79 FR 73848, December 12, 2014).
In response to continued North Atlantic right whale population decline and associated entanglements as well as recent technological developments with ropeless fishing design, NMFS convened a subgroup to investigate the feasibility of buoy lineless options that may help reduce future entanglement risk. The “ALWTRT Ropeless Feasibility Subgroup” met March 15-16, 2018, in Providence, RI, to assess the current research available on ropeless fishing gear prototypes, the feasibility of this technology, and discuss data gaps. From this meeting, the subgroup suggested that the Team and NMFS revisit the previous discussion to open closed areas to buoy-lineless trap/pot fishing. This could incentivize cooperative research that may lead to further technological developments for buoy-lineless fishing.
This notice announces the Agency's preparation for possible rulemaking and associated analysis of changing the Massachusetts Restricted Area and Great South Channel closures to buoy-lineless trap/pot gear areas under the MMPA and to request comments and information regarding this possibility. In order to commercially fish in these areas, fishermen must still comply with the Federal American lobster regulations, state regulations, and other Plan requirements (
Findings from this ANPR and supporting analyses will be presented at an upcoming Team meeting (scheduled for October 2018) for consideration. If at that time the Team recommends that NMFS move forward with allowing the experimentation of buoy-lineless fishing within the closure areas, NMFS will work with the Team to develop best practices that may be considered as conditions under the EFP (
NMFS requests comments on potential impacts from this initiative including economic and habitat impacts, best discrete locations for vertical lineless trap/pot fishing, ways gear conflicts can be reduced, other guidelines for ropeless gear use to consider in the development of best practices, and to solicit industry interest for participating in these types of fisheries. NMFS also requests expressions of interest from potential applicants.
16 U.S.C. 1361
Food Safety and Inspection Service, USDA.
Response to comments and information on waiver criteria.
The Food Safety and Inspection Service (FSIS) is responding to public comments on a petition submitted by the National Chicken Council (NCC) on September 1, 2017, and is also providing information on the criteria applicable to line speed waivers for young chicken establishments. The NCC submitted a petition to FSIS requesting that the Agency establish a waiver program to permit young chicken slaughter establishments to operate without line speed limits if they participate in the New Poultry Inspection System (NPIS) and the FSIS
FSIS published these criteria in the February 23, 2018,
Roberta Wagner, Assistant Administrator, Office of Policy and Program Development, FSIS, USDA; Telephone: (202) 205-0495.
On August 24, 2014, FSIS published a final rule that, among other things, established the NPIS as an additional inspection system for young chicken and all turkey slaughter establishments (79 FR 49566). The NPIS did not replace FSIS's other poultry slaughter inspection systems, and young chicken and turkey slaughter establishments that do not choose to operate under the NPIS may continue to operate under their current inspection system.
Under the NPIS, establishment employees sort carcasses and remove unacceptable carcasses and parts before the birds are presented to an online inspector located at the end of the line before the chiller. Because the online inspector under the NPIS is presented with carcasses that have been sorted, washed, and trimmed by establishment employees, and are thus much more likely to pass inspection, the inspector is able to conduct a more efficient and effective online inspection of each bird processed.
The NPIS was informed by the Agency's experience under the Hazard Analysis and Critical Control Point (HACCP)-Based Inspection Models Project (HIMP) pilot study. FSIS's experience under the HIMP pilot showed that online inspectors in HIMP young chicken establishments were able to conduct an effective online inspection of each carcass when operating at a line speed of up to 175 bpm and that HIMP establishments were able to maintain process control at the line speeds authorized under HIMP. Based on FSIS's experience under HIMP, the Agency initially proposed 175 bpm as the maximum line speed for NPIS young chicken establishments (77 FR 4408). However, after considering the public comments submitted on the proposed rule, FSIS concluded that it was important to assess young chicken establishments' ability to maintain process control as they implement changes to operate under the NPIS (79 FR 49591). Therefore, the final rule that established the NPIS provided for a maximum line speed of 140 bpm for young chicken establishments, instead of 175 bpm as was proposed, with an exception for the 20 young chicken establishments that participated in the HIMP pilot study.
In the preamble to the final rule, FSIS explained that it decided to grant waivers to the 20 young chicken HIMP establishments to permit them to continue to operate at lines speeds of up to 175 bpm after they convert to NPIS because data from the HIMP pilot demonstrated that these establishments were capable of consistently producing safe, wholesome and unadulterated product and meeting pathogen reduction and other performance standards when operating under line speeds authorized under HIMP (79 FR 49591). The preamble to the final rule
In the preamble to the final rule, FSIS also explained that “[a]fter the NPIS has been fully implemented on a wide scale, and the Agency has gained at least a year of experience under the new system, FSIS intends to assess the impact of changes adopted by establishments operating under the NPIS by evaluating the results of the Agency's
The petition asserted that the requested waiver program will encourage more establishments to opt into the NPIS and will promote and enhance Agency and industry efficiency without compromising food safety, worker safety, or animal welfare. The petition referenced information from the 2011 HIMP pilot study,
Consistent with its regulations on petitions, FSIS posted the NCC petition on the FSIS website and received comments from interested persons on the petition (9 CFR 392.6 and 392.7). FSIS also announced the availability of the petition in the October 13, 2017,
In addition to denying the request to establish a line speed waiver program, the January 2018 response also stated that FSIS was denying NCC's request to permit waivers that would allow NPIS young chicken establishments to operate without a maximum line speed. As noted in the response, the preamble to the final rule that established the NPIS stated that, based on its experience under the HIMP pilot, FSIS found that inspectors are able to conduct an effective online inspection of each carcass at line speeds of up to 175 bpm (79 FR 49592). The response noted that the petition did not include data to demonstrate that online inspectors can conduct an effective carcass-by-carcass inspection at line speeds faster than those authorized under HIMP.
In addition to denying the petition, the response noted that FSIS now has over a year of documented process control history for many young chicken establishments operating under the NPIS. The response explained that based on this history, FSIS has decided to consider requests for waivers from young chicken establishments in addition to the current 20 HIMP establishments, to operate at line speeds of up to 175 bpm. The response also explained that in the near future, FSIS
On February 23, 2018, in the
• Must have been operating under the NPIS for at least one year, during which time it has been in compliance with all NPIS requirements;
• Must be in
• Must have a demonstrated history of regulatory compliance. More specifically, the establishment has not received a public health alert
• Must be able to demonstrate that the new equipment, technologies, or procedures that allow the establishment to operate at faster line speeds will maintain or improve food safety.
In addition to outlining the criteria that FSIS will consider to determine whether to grant a line speed waiver, the February 23, 2018
• Provides details about the establishment's HACCP system, including how the establishment addresses the inhibition and reduction of
• Demonstrates that the establishment has effective process control by submitting one year of microbial data, methodology for evaluating that microbial data (
• Describes how existing or new equipment, technologies, or procedures will allow for the operation at a faster line speed (
• Provides support on how the increased line speed will not negatively impact FSIS employee safety nor interfere with inspection procedures (
• Supports how the modifications to its food safety system to operate at the faster line speed will maintain or improve food safety (
• Indicates the type of records that will be maintained in the new process, including the collection of information that will assist FSIS in performing appropriate rule-making analysis (
Because FSIS intends to use the data collected from young chicken establishments to evaluate their ability to maintain process control at higher line speeds, the
In addition, after reviewing comments submitted in response to the NCC petition, FSIS is adding compliance with good commercial practices (GCPs) to the criteria that the Agency will use to consider line speed waiver requests submitted by NPIS young chicken slaughter establishments. The regulations require that poultry be slaughtered in accordance with GCPs, in a manner that will result in thorough bleeding of the poultry carcass and will ensure that breathing has stopped before scalding (9 CFR 381.65(b)). In a
If an establishment is not following GCPs, and birds are dying other than by slaughter, FSIS inspection program personnel (IPP) will document a non-compliance record (NR) citing 9 CFR 381.65(b). If birds are being mistreated, but can still be fully bled and are not breathing when they enter the scalder, IPP are instructed to discuss the mistreatment with the establishment and document the discussion and any planned action by the establishment in a Memorandum of Interview (MOI). IPP will forward a copy of the MOI to the FSIS District Veterinary Medical Specialist (DVMS) for review (FSIS Directive 6100.3,
As discussed below, some comments raised issues related to line speeds for NPIS young chicken establishments and compliance with GCPs. Under all poultry inspection systems, including the NPIS, establishments are required to slaughter poultry in accordance with GCPs. Therefore, in addition to the criteria described above, the Agency will consider compliance with GCPs as part of an establishment's demonstrated history of regulatory compliance. Thus, consistent with the above regulatory compliance criteria, to be eligible for a line speed waiver, establishments must also have not had an NR for violation of GCPs (9 CFR 381.65(b)) in the past 120 days.
Finally, FSIS also will be requiring establishments with line speed waivers to conduct daily Aerobic Plate Count (APC) testing, instead of weekly testing for indicator organisms, and to make the results available to FSIS. This testing will provide additional data for consideration by FSIS when it determines whether rulemaking for young chicken slaughter line speeds is supported.
Establishments that are eligible for a line speed waiver and that have assembled the documentation that needs to be included in their waiver request described above should submit their line speed waiver requests to the FSIS Office of Policy and Program Development (OPPD) Risk Innovations and Management Staff (RIMS). After FSIS receives a line speed waiver request, the Agency will follow the
As noted in the
As also noted in the
Consistent with the waivers granted to the 20 HIMP young chicken establishments to operate at up to 175 bpm, any additional NPIS establishments that are granted a line speed waiver will need to participate in the SIP as a condition of their waivers. Under the SIP, FSIS grants establishments a waiver of a regulation with the condition that the establishment collects and analyzes samples for microbial organisms including both
In addition to participating in the SIP, young chicken establishments that have been granted a line speed waiver will need to continue to meet the criteria outlined in the February 23, 2018,
Under Directive 5020.1, FSIS IPP verify, among other things, that the establishment is effectively implementing its process control procedures as documented in its waiver letter and collecting SIP microbial data to monitor its ability to maintain process control. IPP will review the results of the establishment's microbial sampling program and verify that the establishment takes appropriate corrective actions in response to its testing results, including slowing the line when needed to maintain process control.
Additionally, FSIS will review the results of the Agency's
Directive 5020.1 provides that FSIS may revoke a waiver of regulatory requirements when an establishment fails to meet or follow its alternative procedures associated with the waiver. Thus, if FSIS finds that an establishment that has been granted a line speed waiver is unable to meet the conditions of its waiver agreement, the Agency will consider whether to allow the establishment to implement corrective actions and resume operating under the waiver or whether the waiver needs to be revoked. If the waiver is revoked, the establishment will be required to comply with the 140 bpm maximum line speed for the NPIS (9 CFR 381.69(a)).
FSIS currently posts a table of all establishments that have been granted regulatory waivers under the SIP on the FSIS website at:
As noted above, when FSIS implemented the NPIS, the Agency granted waivers to allow the 20 young chicken establishments that participated in the HIMP pilot to operate at line speeds up to 175 bpm after they converted to the NPIS because data from the HIMP pilot showed that these establishments were able to maintain process control when operating at the line speeds authorized by HIMP (79 FR 49591). A preliminary review of the SIP data that these establishments have submitted to FSIS as a condition of their waivers shows that most of them have operated at line speeds higher than 140 bpm since they converted to the NPIS, and over half report that they have operated between 170 and 175 bpm. Thus, the data collected under these waivers has allowed FSIS to continue to evaluate the ability of the former HIMP young chicken establishments to maintain process control when operating at higher line speeds after they convert to the NPIS.
As discussed above, FSIS now has over a year of documented process control history for many young chicken
So that the data collected from all NPIS establishments with line speed waivers will be comparable, the 20 former HIMP young chicken establishments granted line speed waivers and establishments applying for new line speed waivers will have to meet the new, additional line speed waiver criteria. FSIS intends to issue new waiver letters containing the eligibility criteria described above to the 20 former HIMP establishments and grant them 120 days from receipt to meet the criteria. If an establishment is unable to meet any of the criteria within 120 days of receipt, FSIS may revoke its line speed waiver.
As noted above, FSIS made the NCC petition available to the public on the FSIS website and the Federal eRulemaking Portal at
Comments from poultry slaughter establishments and their employees, companies that own poultry slaughter establishments, trade associations representing the poultry industry, and a few individuals supported granting the petition. Comments from consumer advocacy organizations, animal welfare advocacy organizations, worker advocacy organizations, civil rights advocacy organizations, labor unions, members of Congress, poultry establishment employees, and several individuals urged FSIS to deny the petition. All of the comments submitted in response to organized write-in campaigns urged FSIS to deny the petition.
A summary of the general issues raised by the comments received in response to the NCC petition and FSIS's responses are presented below. Several of the issues have been addressed by FSIS's denial of the NCC petition.
FSIS established 140 bpm as the maximum line speed for the NPIS, with an exception for the 20 former HIMP young chicken establishments, because FSIS concluded that it is important to assess each young chicken establishment's ability to maintain process control as they implement changes to operate under the NPIS (79 FR 49591). In the final rule that established the NPIS, FSIS made clear that it would continue to evaluate the line speeds at which establishments are capable of consistently producing safe, wholesome, and unadulterated product, as well as meeting
Although FSIS has denied NCC's request to establish a waiver program that would provide for unlimited line speeds, the Agency will consider granting individual waivers to allow young chicken establishments that meet the criteria described above to operate at line speeds of up to 175 bpm. The data collected from establishments that are granted these waivers will allow FSIS to evaluate the ability of NPIS establishments that did not participate in the HIMP pilot to maintain process control at line speeds of up to 175 bpm. The waivers do not provide for unlimited line speeds, as requested in the NCC petition, because the Agency's experience under the HIMP pilot showed that online inspectors are able to conduct an effective online inspection of each bird processed at line speeds of up to 175 bpm.
The comments stated that the petition does not identify a public health emergency, does not provide for experimentation, does not identify a new technology, would not be for a limited period of time, and does not describe any definite improvements as required under the regulation. Specific issues raised in the comments received follow:
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Any individual waivers that FSIS may grant using the aforementioned criteria will comply with the regulatory requirements for waivers in 9 CFR 381.3(b) because the waivers will apply to specific classes of cases,
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FSIS broadly defines “new technology as new,
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FSIS interprets “definite improvement” to mean
Comments from consumer advocacy organizations, animal welfare organizations, members of Congress, and worker advocacy organizations stated that the requested waiver system, if implemented, would be inconsistent with the fundamental purpose of the PPIA because eliminating maximum line speeds has the potential to increase the risk that adulterated product will enter commerce. A consumer advocacy organization stated that the potential for human error increases with an increase in line speed, and workers forced to perform the same repetitive activities at a faster pace will become increasingly fatigued, making them more likely to make mistakes that result in product contamination or failure to notice and address safety risks. Consumer advocacy organizations, worker advocacy organizations, and an environmental advocacy organization commented that higher line speeds may also affect the accuracy of the equipment on the evisceration and cause carcasses to become contaminated with fecal material.
Several comments stated that faster line speeds give company sorters less time to identify carcasses affected with food safety defects, such as septicemia/
With respect to the comment that faster line speeds will reduce the percentage of carcasses assessed through offline inspections, as stated in the preamble to the rule that established the NPIS, under the NPIS, the offline carcass verification checks will be more risk-based than under the HIMP pilot to reflect the performance of the establishment (79 FR 49587). As under the HIMP pilot, FSIS continues to conduct eight 10-bird verification checks per line per shift under the NPIS. However, as noted in the final NPIS rule, FSIS monitors and analyzes the ongoing results of its offline carcass verification activities to assess the effectiveness of the establishment's sorting and other process control procedures (79 FR 49587). FSIS conducts additional verification activities in all NPIS establishments, including those operating under waivers, as needed to respond to the Agency's verification findings (FSIS Directive 6500.1,
Comments from consumer advocacy organizations, animal welfare advocacy organizations, worker rights advocacy organizations, civil rights advocacy organizations, and members of Congress stated that in FSIS's 2014 NPIS rulemaking, the Agency acknowledged that line speeds should not increase without further research “to assess establishments' ability to maintain process control as they implement changes to operate under the NPIS” (79 FR 49615). The comments noted that FSIS intended to conduct this assessment “[a]fter the NPIS has been fully implemented on a wide scale and the Agency has gained at least a year of experience under the new system” (79 FR 49615). The comments noted that at the time the NCC petition was submitted, approximately 60 establishments had converted to the NPIS while in the final rule that established the NPIS, FSIS had estimated that 219 establishment would convert. Therefore, the comments asserted, the NPIS has not yet been fully implemented on a wide scale. According to the comments, FSIS has not accrued the necessary experience to evaluate the NPIS establishments' ability to maintain process control at any given line speed.
A consumer advocacy organization noted that FSIS granted SIP waivers to allow the 20 former young chicken HIMP establishments to continue to operate at line speeds of up to 175 bpm after they converted to the NPIS because these establishments have demonstrated that they are able to maintain process control under the line speeds authorized by HIMP. The comment said that in granting these SIP waivers, FSIS stated that it would compare the data from the former HIMP young chicken establishments to data from other non-HIMP NPIS establishments as a means of evaluating the new program (79 FR 49591). The comment stated that FSIS has not made any efforts to conduct such an assessment that is available to the public.
Also as discussed above, when FSIS published the final rule that established the NPIS, the Agency made it clear that it would continue to evaluate the line speeds at which establishments are capable of consistently producing safe, wholesome, and unadulterated product, as well as meeting pathogen reduction and other performance standards (79 FR 49591). The data collected from establishments that are granted new line speed waivers will allow FSIS to evaluate the ability of NPIS establishments that did not participate in the HIMP pilot to maintain process control at line speeds up to 175 bpm. FSIS intends to use these data, along with the data from establishments currently operating under line speed waivers, to inform future rulemaking, if warranted, with respect to line speeds under the NPIS.
Consumer advocacy organizations, animal welfare advocacy organizations, and worker advocacy organizations asserted that the petition does not include any data to demonstrate that the NPIS establishments would be able to maintain process control at faster line speeds. The comments stated that although the petition discusses the results of an unpublished industry survey, the discussion does not provide sufficient detail for FSIS to consider the data. The comments noted that the petition does not include any information on how establishments were chosen for the survey, the methodology used to conduct the survey, or how the results are statistically sound or valid. Comments from a consumer advocacy organization and an animal welfare advocacy organization noted that the petition did not present the
The comments also noted that the NCC survey results were not peer reviewed. A consumer advocacy organization stated that the survey also did not include a pre-specified analysis plan, which could allow for selective reporting, and that the survey relied upon data collected in the winter months, a time period when
Two consumer advocacy organizations noted that the petition also referenced data from the 2011 HIMP Report to support the requested action. The comments asserted that data in the 2011 HIMP Report does not establish that food safety will be maintained should line speed caps be lifted. The comments noted that the 2011 HIMP Report stated that the average line speed under HIMP was 131 bpm, well below the maximum line speed of 175 bpm authorized under HIMP. The comments also asserted that line speed information from former HIMP establishments does not provide insight into operation at unlimited line speeds. The organizations also commented that the petition does not address the concern that other young chicken establishments might behave differently than the 20 former HIMP establishments. One comment stated that the 2011 HIMP Report findings of no statistical difference in fecal NRs and
As noted above, FSIS has established criteria that the Agency intends to use under its existing waiver process to consider waiver requests by young chicken establishments to operate at line speeds of up to 175 bpm. FSIS will consider individual waiver requests on a case-by-case basis and will base its decision on whether to grant a waiver on the information included in an establishment's waiver request submission, not on the data submitted in support of the petition.
Poultry establishments and trade associations representing the poultry industry commented that the available data show that increased line speeds do not present greater risks for worker safety. The comments asserted that worker safety in poultry establishments has improved in the past two decades, with worker illness and injury rates reported by the Bureau of Labor Statistics (BLS) decreasing by more than 80 percent since 1994. The comments stated that the incidence of non-fatal occupational injuries and illnesses in the poultry sector, which includes slaughter and processing, remains at an all-time low. The comments further stated that the total recordable poultry processing illness and injury rate for 2016 was 4.2 cases per 100 full-time workers per year, down from 4.3 in 2005. The comments also stated that the poultry industry's rate of 4.2 was below the rate of 6.9 for similar agricultural industries in terms of injuries per 100 full-time workers and lower than the rate of 4.7 for the entire food manufacturing sector. In addition to these statistics, the comments noted that the NCC's industry survey of establishments that have recently opted into the NPIS and those that had been former HIMP establishments revealed that all plants surveyed, on average, were operating well below the industry's total DART (days away, restricted, or transferred) rates. According to the comments, this provides evidence that the increased line speeds have not resulted in an increase in worker injuries.
Comments from worker and civil rights advocacy organizations, poultry establishment employees, consumer advocacy organizations, labor unions, members of Congress, an environmental advocacy organization, and private citizens asserted that establishing a line speed waiver system as requested in the NCC petition would increase risks to worker health and safety in establishments that operate under such waivers and would expose workers to hazards that have not been studied. The comments referenced studies, reports, and other data on work-related injuries in the meat and poultry processing industry. The most commonly referenced information sources included:
• Studies published by the National Institute for Occupational Safety and Health (NIOSH) that found high rates of carpal tunnel syndrome among workers in the poultry industry. One study found that 34 percent of workers in poultry processing establishments had carpal tunnel syndrome, and 76 percent had evidence of nerve damage in their hands and wrists. Another study found that 42 percent of workers at a poultry processing establishment had carpal tunnel syndrome.
• 2016 BLS data showing that employer reported injury rates for poultry workers were 60 percent above the national average for all private industry, and illness rates were more than five times as high.
• Reports published by the Government Accountability Office (GAO) in 2005, 2016, and 2017 that concluded, among other things, that injury rates in the meat and poultry slaughter industries continue to be higher than the rates for others in the manufacturing industry, that meat and poultry workers may under-report illnesses and injuries because they fear losing their jobs, and that employers may underreport worker injuries because of concerns about potential costs.
• Various reports from worker advocacy organizations on worker safety in meat and poultry processing establishments. These reports include surveys of poultry workers that have suffered illnesses and injury from the fast-paced repetitive tasks associated with the current line speeds.
• OSHA citations of poultry processing establishments for failure to record injuries and illnesses requiring more than first aid.
The comments stated that the available studies, reports, and data contradict NCC's assertion that worker illness and injury are at an all-time low, and, according to the comments, the statistics that NCC relied on are based on a potentially biased self-reporting system. Several comments noted that in the preamble to the final rule that established the NPIS, FSIS recognized that the systemic underreporting of the poultry industry work-related injuries and illness “could make it difficult to accurately assess the extent to which poultry workers suffer from work related injuries and musculoskeletal diseases and disorders.” Comments from a civil rights organization, members of Congress, and a labor union expressed concern that increased line speeds will disproportionately hurt women and people of color. The labor union commented that nearly 40 percent of those who work in animal slaughtering and processing are women and 67 percent are people of color.
The DOL's OSHA was created by the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
During the development of the final rule that established the NPIS, FSIS collaborated with OSHA and NIOSH, to address issues related to worker safety raised by the public comments. OSHA and NIOSH are the government agencies with the expertise and authority to address worker safety issues in private industry workplaces. As a result of this collaboration, the final NPIS regulations include provisions to remind establishments of their existing legal obligations to comply with the worker safety laws administered by OSHA (9 CFR 381.69(d)). The final regulations also provide for establishments operating under the NPIS to submit on an annual basis an attestation to the management member of the local FSIS circuit safety committee stating that the establishment maintains a program to monitor and document any work-related conditions of establishment workers (9 CFR 381.45). Because OSHA is the Federal agency with statutory and regulatory authority to promote workplace safety and health, FSIS forwards the annual attestation to OSHA for use in its own enforcement program. All establishments operating under the NPIS are subject to the attestation regulation, including the NPIS establishments operating under regulatory waivers. However, FSIS employees are not responsible for determining the merit of the content of the attestation or for enforcement of non-compliance with the attestation provision.
With respect to the Agency's decision to consider granting waivers to additional NPIS establishments to operate at line speeds of up to 175 bpm, that decision is categorically excluded from NEPA requirements. Federal agencies may identify classes of actions that normally do not require the preparation of either an EA or EIS because such actions do not have a significant effect on the human environment, either individually or cumulatively (40 CFR 1507.3(b)(2)). Such classes of actions are “categorically excluded” from NEPA requirements (40 CFR 1508.4). Under 7 CFR 1b.4, all FSIS actions, including inspection functions, are categorically excluded from preparation of an EA or EIS unless the Agency head determines that a particular action may have a significant environmental effect. Accordingly, FSIS is not required to prepare an EA or EIS unless it anticipates that granting additional line speed waivers may have a significant environmental effect.
The Agency does not anticipate that its decision to consider granting waivers to additional NPIS establishments to operate at line speeds of up to 175 bpm will have individual or cumulative effects on the environment. Expected sales of poultry products to consumers will determine the total number of birds that a poultry establishment slaughters, not the maximum line speed under which it operates. The Agency has no authority to determine a poultry establishment's production levels. An establishment may decide to increase production hours to slaughter more birds in response to market demand, regardless of its maximum line speed. Granting an establishment a waiver to operate at up to 175 bpm will allow that establishment to slaughter birds more efficiently, but will not affect consumer demand for the establishment's poultry products. In some instances, an establishment that is granted a waiver may be able to reduce its hours of operation while maintaining production at a rate necessary to meet market demand for its poultry products. Thus, granting waivers to allow additional NPIS establishments to operate at up to 175 bpm is not expected to affect the number of birds slaughtered or result in more waste, more water use, or require more fossil fuels to transport the birds from farm to slaughterhouse, as suggested by the comments. In addition,
Comments from consumer advocacy organizations and animal welfare advocacy organizations noted that the petition states that the requested waiver system would be consistent with the Administration's emphasis on reducing regulatory burdens on the industry and assuring competitiveness with other countries. Comments from consumer advocacy and animal welfare advocacy organizations stated that enhanced competitiveness and reduced regulatory burden are not justifications for FSIS to take an action that is inconsistent with its regulatory authority and that, according to the comments, could potentially compromise food safety. Animal welfare advocacy organizations stated that the petition exaggerates the regulatory burden of the maximum authorized line speed under the NPIS. According to the organizations, the petition does not identify any clear cost savings or decreases in FSIS administrative burden and does not include any explanation of how the administration of the requested action would be cost-effective or even financially neutral to FSIS.
Several worker advocacy organizations stated that, in the final rule establishing the NPIS, after FSIS considered the extensive comments from affected stakeholders on all sides, and in light of evidence that young chicken establishments authorized to operate up to 175 bpm under the HIMP pilot were in fact operating at an average speed of 131 bpm, FSIS determined that a maximum line speed of 140 bpm would meet the economic needs of poultry slaughter establishments.
A consumer advocacy organization stated that lifting line speed caps across NPIS establishments will lead to new competitive pressures that could undermine food safety in ways not predictable from currently available data. According to the organization, it is conceivable that lifting line speed caps across the industry would create competitive pressure to push line speeds even higher than observed previously, potentially compromising food safety.
Although FSIS has denied NCC's request to establish a waiver program to allow young chicken NPIS establishments to operate without line speed limits, the Agency will consider granting individual waivers to allow young chicken establishments that meet the criteria described above to operate at line speeds of up to 175 bpm. Under these criteria, line speed waivers will no longer be limited to the 20 former HIMP establishments, and thus, will be equitably distributed to eligible establishments. Because FSIS is not removing the maximum line speed for all NPIS establishments, FSIS has no reason to believe that granting additional individual waivers will create competitive pressure for establishments to increase line speeds. Establishments will not submit line speed waiver requests if their current line speeds meet their business needs.
Comments from worker advocacy organizations asserted that the evidence points to clear problems with the faster line speeds permitted in foreign countries. According to the comments, certain foreign countries are not permitted to export poultry products to the United States because their poultry inspection systems have not been found equivalent to the U.S. system. The comments also stated that the poultry processed in certain foreign establishments have high levels of pathogens that continue to be of concern to European food safety officials. However, the comments did not indicate what the maximum line speeds permitted in these countries were and did not explain how maximum line speeds affected the countries' pathogen levels.
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
FSIS will announce this notice online through the FSIS web page located at
Forest Service, USDA.
Notice; project-specific amendment to the Chugach National Forest 2002 Land and Resource Management Plan.
On May 31, 2018, the U.S. Department of Transportation, Federal Highway Administration (FHWA) signed a Record of Decision for the Sterling Highway MP 45-60 Project, which involves highway construction and reconstruction near Cooper Landing, Kenai Peninsula Borough, Alaska. The U.S. Department of Agriculture, Forest Service participated as a cooperating agency with FHWA and Alaska Department of Transportation and Public Facilities in the preparation of the draft and final Environmental Impact Statements (EIS). To support the FHWA decision, the Forest Service proposes a project-specific Land and Resource Management Plan (Forest Plan) amendment to make the selected route consistent with the Chugach Forest Plan.
Publication of this notice marks the initiation of a public comment period for the proposed action. Comments concerning the scope of the analysis must be received by November 13, 2018. The agency expects to release a draft Record of Decision for the proposed amendment in late 2018.
Send written comments to Chugach National Forest Supervisor's Office, Attn: Sterling Highway Plan Amendment, 161 East 1st Avenue, Door 8, Anchorage, AK 99501. Comments may also be sent via email to
Detailed information about the Sterling Highway Project, including the FHWA's Record of Decision, FEIS, and related reports, is available at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
This notice is specific to the Forest Service. The FHWA was the lead Federal agency for the Sterling Highway Mile 45-60 Project EIS and Record of Decision, which was signed on May 31, 2018. The decision, implementing the “Juneau Creek Alternative,” requires 3.3 miles of new road construction across lands managed by the Chugach National Forest in the Kenai Peninsula Borough, Alaska. The Forest Service must determine whether to consent to the transfer of a highway easement for these lands under 23 U.S.C. 317. This consent is conditioned on the Forest Service completing a project-specific plan amendment because the new route is inconsistent with a Forest Plan standard prohibiting new road construction within a certain type of brown bear habitat. This notice pertains only to this project-specific plan amendment.
The policy for project consistency with prior plans amended using the 2012 Planning Rule is set out at FSH 1909.12, Chapter 20, Section 21.33. For a plan developed or revised under a prior planning regulation (1982 Planning Rule) that is amended pursuant to the 2012 Planning Rule, the consistency requirement is that the 2012 Planning Rule consistency provisions at 36 CFR 219.15(d) apply only to plan component(s) added or modified in conformance with, and as defined by, the 2012 Planning Rule. With respect to other plan provisions, the Forest Service's prior interpretation of consistency applies, that projects need only be consistent with plan standards and guidelines. (See 2012 Final Rule 77 FR 21162, 21241 (April 9, 2012); 1991 Advanced Notice of Proposed Rulemaking 56 FR 6508, 6519-6520 (Feb 15, 1991) and the 1995 Proposed Rule, at 60 FR 18886, 18902, 18909 (April 13, 1995).)
As analyzed and disclosed in the Sterling final EIS, this project is also inconsistent with one guideline related to brown bear habitat. This inconsistency does not require a plan amendment (Forest Plan, p. 3-22), but is
The FHWA decision for the Sterling Highway MP 45-60 Project approves construction of new highway that crosses 3.3 miles of National Forest System land. The Forest Service must determine whether to consent to the transfer of a highway easement for construction and maintenance of the highway on these lands under 23 U.S.C. 317. This consent is conditioned on the Forest Service completing a project-specific Forest Plan amendment because the new route is inconsistent with a Forest Plan standard prohibiting new road construction within important brown bear feeding areas.
These feeding areas were mapped for this project in collaboration with Alaska Department of Fish and Game, and the new highway employs many design features to minimize effects to brown bear habitat. The purpose of this plan amendment is to provide a project-specific variance exempting the requirement for full consistency with this one forestwide standard related to brown bear habitat. The variance would apply only to this project. Completion of this amendment is required for the Forest Service to consent to the appropriation of lands for highway construction.
The proposed action is to exempt the Sterling Highway MP 45-60 Project from the following standard in the 2002 Chugach Forest Plan (Forest Plan, p. 3-29):
“Standard 1, Brown Bear Habitat Management. On the Kenai Peninsula geographic area, manage areas of forest cover approximately 750-feet from both sides of important bear feeding areas in specific areas of a stream where salmon are concentrated in pools, below falls, or where broad spawning flats result in localized feeding concentrations of bears to provide cover for brown bears while feeding, or between brown bears and humans. Important brown bear feeding areas will be located with the advice of the Alaska Department of Fish and Game. Within the 750-foot brown bear management zone the following activities will not be allowed: a. new road construction; b. any vegetation management not intended to maintain or improve ecological conditions for brown bear. This standard does not prohibit relocation, reconstruction, or maintenance of existing roads and trails in these areas. During the process of reconstruction or relocation, emphasize opportunities to locate roads or trails outside of these brown bear zones.”
The amendment would exempt this standard only for the Sterling Highway MP 45-60 Project. It is considered a project-specific amendment because it would not change the applicability of Forest Plan requirements for other projects.
The Forest Service's decision will be supported by the environmental analysis contained within the FHWA final EIS. The FHWA has selected the “Juneau Creek Alternative” in their Record of Decision. The draft and final EIS issued by FHWA include a discussion of Forest Plan consistency, including the need for this project-specific amendment. They also disclose the environmental effects of this project on brown bear habitat. The draft and final EIS is available at
The Forest Supervisor for the Chugach National Forest is the Responsible Official for amending the 2002 Revised Land and Resource Management Plan.
The Responsible Official will decide whether the project warrants a project-specific plan amendment and if so, the content of the amendment.
The scope of this amendment is a one-time exemption from Standard 1, Brown Bear Habitat Management, for the Sterling Highway MP 45-60 Project.
The scale of this amendment is limited to the important brown bear feeding areas where the Juneau Creek Alternative route impacts land mapped as Areas 8, 9, and 11 on Map 3.22-1 of the EIS (Chapter 3.22 Wildlife, p. 3-513). The highway easement would encompass less than 100 acres within the mapped feeding area of approximately 1,000 acres. The decision includes extensive mitigation, including a wildlife overpass and several underpasses, to mitigate the effects to wildlife.
The Responsible Official must ensure that the amendment is consistent with 36 CFR 219 regulations, as described below.
On December 15, 2016, the Department of Agriculture Under Secretary for Natural Resources and Environment issued a final rule that amended the 36 CFR 219 regulations pertaining to National Forest System Land Management Planning (Planning Rule) (81 FR 90723, 90737). The amendment to 36 CFR 219 clarified the Department's direction for amending Forest Plans. The Department also added a requirement for the responsible official amending a plan to provide notice “about which substantive requirements of § 219.8 through 219.11 are likely to be directly relate to the amendment” (36 CFR 219.13(b)(2), 81 FR 90738). Whether a rule provision is directly related to an amendment is determined by any one of the following: The purpose for the amendment, a beneficial effect of the amendment, a substantial adverse effect of the amendment, or a lessening of plan protections by the amendment.
The substantive requirements of § 219.8 through 219.11 that are likely to be directly related to amending the above standard are:
§ 219.9(a): (a) Ecosystem plan components. (1) Ecosystem integrity. As required by § 219.8(a), the plan must include plan components, including standards or guidelines, to maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area, including plan components to maintain or restore their structure, function, composition, and connectivity.
§ 219.10(a)(3): Appropriate placement and sustainable management of infrastructure, such as recreational facilities and transportation and utility corridors
§ 219.10(a)(5): Habitat conditions, subject to the requirements of 219.9, for wildlife, fish, and plants commonly enjoyed and used by the public; for hunting, fishing, trapping, gathering, observing, subsistence and other activities
If the proposed amendment is determined to be “directly related” to a substantive rule requirement, the Responsible Official must apply that requirement within the scope and scale of the proposed amendment and, if necessary, make adjustments to the proposed amendment to meet the rule requirement (36 CFR 219.13(b)(5) and (6)).
The FHWA provided opportunities for public comment throughout the development of this project, including public comment periods and public meetings following issuance of the draft EIS and Final EIS. A history of public participation, including all public comments, is available at:
This notice initiates a 45-day comment period on the proposed amendment. This will be the final comment period for this proposed amendment prior to issuing the record of decision for administrative review. Instructions on how to provide comment, and where to find additional information, are described in the beginning of this notice. Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.
The decision for a plan amendment will be documented in a record of decision issued by the Forest Service. The decision will be subject to the predecisional administrative review process per 36 CFR 219 subpart B. Objections will be accepted only from those who have previously submitted substantive formal comments specific to the proposed plan amendment. The Reviewing Official for any objection is the Regional Forester for the Alaska Region.
Forest Service, USDA.
Notice of availability.
In accordance with Section 3(b) of the Wild and Scenic Rivers Act, the USDA Forest Service, Washington Office, is transmitting the final boundary of the Black Butte National Wild and Scenic River, including portions of Cold Creek, to Congress.
Information may be obtained by contacting Mendocino National Forest Supervisor's Office, 825 N Humboldt Ave., Willows, CA 95988; (530) 934-3316.
The Black Butte Wild and Scenic River, including portions of Cold Creek, boundary is available for review at the following offices: USDA Forest Service, Yates Building, 14th and Independence Avenues SW, Washington, DC 20024; Pacific Southwest Region 1323 Club Drive, Vallejo, CA 94592; and Mendocino National Forest Supervisor's Office, 825 N Humboldt Ave., Willows, CA 95988.
The Northern California Coastal Wild Heritage Wilderness Act (Pub. L. 109-362) of October 17, 2006, designated the Black Butte River and portions of Cold Creek, California, as a National Wild and Scenic River, to be administered by the Secretary of Agriculture. As specified by law, the boundary will not be effective until 90-days after Congress receives the transmittal.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
The Census Bureau produces statistics used to monitor activity in the large and dynamic construction industry. Given the importance of this industry, several of the statistical series have been designated by the Office of Management and Budget as Principal Economic Indicators. Two such indicators are directly dependent on the key estimates from the BPS. For New Residential Construction (which includes Housing Units Authorized by Building Permits, Housing Starts, and Housing Completions), form C-404 is used to collect the estimate for Housing Units Authorized by Building Permits. For New Residential Construction and Sales, the number of housing units authorized by building permits is a key component utilized in the estimation of housing units started, completed, and sold.
These statistics help state, local, and federal governments, as well as private industry, analyze this important sector of the economy. The building permit series are available monthly based on a sample of building permit offices, and annually based on the entire universe of permit offices. Published data from the survey can be found on the Census Bureau's website at
The Census Bureau collects these data primarily by mail or online using an online version of the same questionnaire. Some data are also collected via receipt of proprietary electronic files or mailed printouts for jurisdictions who have established reporting arrangements which allow them to submit their responses using their own file format.
We use the data, a component of The Conference Board Leading Economic Index, to estimate the number of housing units authorized, started, completed, and sold (single-family only). In addition, the Census Bureau uses the detailed geographic data in the development of annual population
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
Bureau of Industry and Security, U.S. Department of 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 27, 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 Mark Crace, BIS ICB Liaison, (202) 482-8093 or at
On March 8, 2018, the President issued Proclamations 9704 and 9705 concurring with the findings of the two investigation reports submitted by the Secretary of Commerce pursuant to section 232 of the Trade Expansion Act of 1962 (U.S.C. 1862) and determining that adjusting imports through the imposition of duties on steel and aluminum is necessary so that imports of steel and aluminum will no longer threaten to impair the national security. The Proclamations also authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior executive branch officials as appropriate, to grant exclusions from the duties for domestic parties affected by the duties. This could take place if the Secretary determines the steel or aluminum for which the exclusion is requested is not produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or should be excluded based upon specific national security considerations. The President directed the Secretary to promulgate regulations as may be necessary to implement an exclusion process. The purpose of this information collection is to allow for submission of objections requests from the remedies instituted in presidential proclamations adjusting imports of steel into the United States and adjusting imports of aluminum into the United States.
Submitted electronically.
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.
Bureau of Industry and Security, U.S. Department of 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 27, 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 Mark Crace, BIS ICB Liaison, (202) 482-8093 or at
On March 8, 2018, the President issued Proclamations 9704 and 9705 concurring with the findings of the two investigation reports submitted by the Secretary of Commerce pursuant to section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862) and determining that adjusting imports through the imposition of duties on steel and aluminum is necessary so that imports of steel and aluminum will no longer threaten to impair the national security. The Proclamations also authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior executive branch officials as appropriate, to grant exclusions from the duties for domestic parties affected by the duties. This could take place if the Secretary determines the steel or aluminum for which the exclusion is requested is not produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or should be excluded based upon specific national security considerations. The President directed the Secretary to promulgate regulations as may be necessary to implement an exclusion process. The purpose of this information collection is to allow for submission of exclusions requests from the remedies instituted in presidential proclamations adjusting imports of steel into the United States and adjusting imports of aluminum into the United States.
Submitted electronically.
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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold a meeting of the Snapper Grouper Advisory Panel (AP) in October 2018.
The Snapper Grouper AP meeting will take place October 17, 2018, from 1:30 p.m. to 5 p.m.; October 18, from 8:30 a.m. until 5 p.m.; and October 19, from 8:30 a.m. until 12 p.m.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Snapper Grouper AP meeting is open to the public and will be available via webinar as it occurs. Registration is required. Webinar registration information and other meeting materials will be posted to the Council's website at:
Agenda items for the Snapper Grouper AP meeting include the following: Input on the 2016-20 Vision
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold meetings of its System Management Plan (SMP) Workgroup via webinar.
The SMP Workgroup will meet via webinar from 9 a.m. until 11 a.m. on October 19, 2018 and from 9 a.m. until 11 a.m. on November 2, 2018.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The SMP Workgroup is an advisory group for the Council that reviews actions items, evaluates protected areas, and reviews management of protected areas recommended by the Council. The SMP Workgroup was formed in March 2018. These will be the first two meetings held to discuss the System Management Plan for the Spawning Special Management Zones (SMZs) created in Amendment 36 to Fishery Management Plan for the Snapper Grouper Fishery of the South Atlantic Region. Agenda items for the SMP Workgroup meetings include the following: Data collected in Spawning SMZs; outreach and enforcement, format for reports, and report card for the Spawning SMZs. The Workgroup will also elect a chair and vice-chair, assign writing tasks, and review materials developed for Spawning SMZs.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application from the Coonamessett Farm Foundation contains all of the required information and warrants further consideration. This Exempted Fishing Permit would allow participating commercial fishing vessels to temporarily possess undersized monkfish for biological sampling during normal fishing operations in the Southern Fishery Management Area. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.
Comments must be received on or before October 15, 2018.
You may submit written comments by any of the following methods:
•
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Cynthia Ferrio, Fishery Management Specialist, 978-281-9180,
The Coonamessett Farm Foundation (CFF) submitted a complete application for an Exempted Fishing Permit (EFP) on September 12, 2018, to conduct fishing activities that the regulations would otherwise restrict. The EFP would authorize 12 participating vessels to temporarily possess undersize monkfish while biologically sampling all monkfish caught during normal fishing operations in the Southern Fishery Management Area. This research is designed to create a reproductive profile for monkfish in the region. Sampling would consist of recording the length, total weight, gonad weight, liver weight, and spleen color of each individual sampled fish. Collection of gonad and blood samples will also occur. Retention and sale of legal catch would be allowed on these trips, but all undersized fish and otherwise prohibited catch will be returned to the sea as quickly as possible.
If approved, this research would be conducted opportunistically over the course of 16 single-day commercial trips within the Southern Fishery Management Area for monkfish. All of these 16 trips are expected to take place in 2019 between January and June. All
CFF is requesting an exemption from the minimum size possession restriction in the Monkfish Fishery Management Plan (FMP) found at 50 CFR 648.93(a) to accurately sample all monkfish during these selected fishing trips. Funding for this research has been awarded under the Monkfish Research Set-Aside Program.
If approved, CFF may request minor modifications and extensions to the EFP throughout the study period. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting and hearing.
The Western Pacific Fishery Management Council (Council) will hold a meeting of its American Samoa Archipelago Fishery Ecosystem Plan (FEP) Advisory Panel (AP) to discuss and make recommendations on fishery management issues in the Western Pacific Region.
The American Samoa Archipelago FEP AP will meet on Thursday, October 11, 2018, between 4:30 p.m. and 6:30 p.m. All times listed are local island times. For specific times and agendas, see
The American Samoa Archipelago FEP AP will meet at the Native American Samoa Advisory Council Building, Pava'ia'i Village, Tutuila, American Samoa, 96799.
Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council; telephone: (808) 522-8220.
Public comment periods will be provided in the agenda. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Scientific and Statistical Committee (SSC) in Charleston, SC. See
The SSC will meet 1 p.m.-5:30 p.m., Monday, October 15, 2018; 8:30 a.m.-5:30 p.m., Tuesday, October 16, 2018; and 8:30 a.m.-12 p.m., Wednesday, October 17, 2018.
Kim Iverson, Public Information Officer, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The following agenda items will be addressed by the SSC during the meeting:
1. Updates on Southeast Data, Assessment and Review (SEDAR) projects; approve the terms of reference, schedule, and identify participants for the Gulf and South Atlantic Scamp Research Track; and approve the terms of reference for the South Atlantic golden Tilefish and Snowy Grouper assessments.
2. Review the findings of a Florida Fish and Wildlife Conservation Commission selectivity study for Red Snapper, determine if they are the best scientific information available, and provide recommendations for including these findings into the Interim Analysis for Red Snapper.
3. Update on ongoing research from NOAA Fisheries' Southeast Fisheries Science Center.
4. Update on the Southeast Reef Fish Survey results from the 2018 sampling year.
5. Review revised Marine Recreational Information Program (MRIP) recreational catch estimates for Council managed stocks and consider approaches for revising Acceptable Biological Catch (ABC) recommendations for unassessed stocks.
6. Review the revised SEDAR assessments for Vermilion Snapper, Black Sea Bass, Blueline Tilefish and Red Grouper using the revised MRIP catch data; apply the ABC Control Rule and provide fishing level recommendations; and discuss uncertainties and changes due to revised MRIP numbers.
7. Review the ABC Control Rule Amendment and analyses, including example application of risk tolerance levels.
8. Review the methodology for a new bag and size limit analysis and the findings of the workgroup; discuss uncertainties and determine if this analysis is best scientific information available and useful for management.
9. Consider forming a workgroup for the SSC to provide input on the South Atlantic Ecosystem Model.
10. Receive updates and progress reports on ongoing Council amendments and activities.
The meeting is open to the public and will also be available via webinar as it occurs. Webinar registration is required. Information regarding webinar registration will be posted to the Council's website at:
Multiple opportunities for comment on agenda items will be provided during SSC meetings. Open comment periods will be provided at the start of the meeting and near the conclusion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. Additional opportunities for comment on specific agenda items will be provided, as each item is discussed, between initial presentations, and SSC discussion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. All comments are part of the record of the meeting.
Although non-emergency issues not contained in the meeting agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting; date changes.
The National Telecommunications and Information Administration (NTIA), as part of its BroadbandUSA program, announced a series of webinars to engage the public and stakeholders with information to accelerate broadband connectivity, improve digital inclusion, strengthen policies and support local priorities in a notice published on July 17, 2018. This notice provides new dates for the November 2018 and December 2018 webinars.
BroadbandUSA will hold a webinar on November 14, 2018, and December 12, 2018, from 2:00 p.m. to 3:00 p.m. Eastern Time.
This is a virtual meeting. NTIA will post the registration information on its BroadbandUSA website,
Elaine Sloan, National Telecommunications and Information Administration, U.S. Department of Commerce, Room 4872, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-8231; email:
On July 17, 2018, NTIA published a Notice announcing that it would host a series of webinars through its BroadbandUSA program on a monthly basis to engage the public and stakeholders with information to accelerate broadband connectivity, improve digital inclusion, strengthen policies and support local priorities.
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), as required
Written comments must be submitted on or before November 27, 2018.
You may submit comments by any of the following methods:
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Request for additional information should be directed to Daniel Hunter, Program Manager, United States Patent and Trademark office, P.O. Box 1450, Alexandria, VA 22313-1450; by telephone at 571-272-8050; or by email at
The United States Patent and Trademark Office (USPTO) established a Work Sharing Pilot Program in conjunction with the Japan Patent Office (JPO) and the Korean Intellectual Property Office (KIPO) to study how the exchange of search results between offices for corresponding counterpart applications improves patent quality and facilitates the examination of patent applications in both offices. Under this Work Sharing Pilot Program, two Collaborative Search Pilot (CSP) programs—USPTO-JPO and USPTO-KIPO—have been implemented. Through their respective CSP(s), each office concurrently conducts searches on corresponding counterpart applications. Each office's search results are exchanged following these concurrent searches, which provides examiners with a comprehensive set of art before them at the commencement of examination.
Work sharing between Intellectual Property (IP) offices is critical for increasing the efficiency and quality of patent examination worldwide. The exchange of information and documents between IP offices also benefits applicants by promoting compact prosecution, reducing pendency, and supporting patent quality by reducing the likelihood of inconsistencies in patentability determinations among IP offices when considering corresponding counterpart applications. The gains in efficiency and quality are achieved through a collaborative work sharing approach to the evaluation of patent claims. As a result of this exchange of search reports, the examiners in both offices may have a more comprehensive set of references before them when making an initial patentability determination.
The forms associated with this collection may be downloaded from the USPTO website in Portable Document Format (PDF) and filled out electronically. Requests to participate in the International Work Sharing Program must be submitted online using EFS-Web, the USPTO's web-based electronic filing system.
Comments submitted in response to this notice will be summarized or
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,
The United States Patent and Trademark Office (USPTO) 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.
Once submitted, the request will be publicly available in electronic format through
Further information can be obtained by:
•
•
Written comments and recommendations for the proposed information collection should be sent on or before October 29, 2018 to Nicholas A. Fraser, OMB Desk Officer, via email to
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.
This information collection covers the submissions made by patent applicants and patentees to excuse small and micro entity fee payment errors, in accordance with the procedures set forth in 37 CFR 1.28(c) and 1.29(k). Specifically, 37 CFR 1.28(c) provides a procedure by which patent applicants and patentees may be excused for erroneous payments of fees in the small entity amount. 37 CFR 1.29(k) provides a procedure by which patent applicants and patentees may be excused for erroneous payments of fees in the micro entity amount.
This information collection is necessary so that patent applicants and patentees may pay the balance of fees due (
Once submitted, the request will be publicly available in electronic format through
Further information can be obtained by:
•
•
Written comments and recommendations for the proposed information collection should be sent on or before October 29, 2018 to Nicholas A. Fraser, OMB Desk Officer, via email to
The United States Patent and Trademark Office (USPTO) 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.
Once submitted, the request will be publicly available in electronic format through
Further information can be obtained by:
•
•
Written comments and recommendations for the proposed information collection should be sent on or before October 29, 2018 to Nicholas A. Fraser, OMB Desk Officer, via email to
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products and services from the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
On 8/24/2018 (83 FR 165), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) and service(s) deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Deletions from the Procurement List.
The Committee is proposing to delete products from the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following products are proposed for deletion from the Procurement List:
Bureau of Consumer Financial Protection.
Notice and request for information.
The Bureau of Consumer Financial Protection (Bureau) is seeking comments and information from interested parties to assist the Bureau in assessing the overall efficiency and effectiveness of the Bureau's Data Governance Program and its Data Collections in support of the Bureau's work and, consistent with law, the Bureau is considering whether any changes to its Data Governance Program or Data Collections would be appropriate.
Comments must be received by December 27, 2018.
You may submit responsive information and other comments, identified by Docket No. CFPB-2018-0031, by any of the following methods:
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All submissions in response to this request for information, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.
Ren Essene, Data Policy Manager; and Suzan Muslu, Data Governance Specialist, at 202-435-7700. If you require this document in an alternative electronic format, please contact
The Bureau of Consumer Financial Protection was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
The executive branch has also emphasized data use, and the President's Management Agenda directly addresses data and information technology as primary drivers of transformation. One of the Cross-Agency Priority Goals is to leverage data as strategic assets to grow the economy, increase the effectiveness of the Federal government, facilitate oversight, and promote transparency. The Bureau aims to leverage data in the same way.
The Bureau is issuing concurrently with this Request for Information (RFI) a report on the
This RFI seeks input on several aspects of the Bureau's Data Governance Program and its Data Collection activities to date, and suggestions for future improvements. For purposes of this RFI, we use the phrase “Data Collections” to refer to Bureau data intakes outside of the Division of Supervision, Enforcement, and Fair Lending or of the Office of Consumer Response. Data Collections include data that are collected by another agency and shared with the Bureau, data that are collected by a commercial entity and sold to the Bureau, public data that are downloaded by the Bureau, as well as instances in which the Bureau itself collects data either directly or through a contractor. The Data Report provides detailed information on the Bureau's Data Collections activities to date.
The Bureau is using this RFI to seek public input regarding the overall effectiveness and efficiency of the Bureau's Data Collections, as well as changes that it may make, consistent with applicable law, to the Data Governance Program at the Bureau; the Bureau's Data Collection practices related to privacy; the sources, uses, and scope of information the Bureau collects; ways the Bureau should or should not reuse data collected for one purpose to inform other functions of the Bureau; ways to reduce reporting burden; changes that may assist the Bureau to more effectively meet our statutory purpose and objectives; and other activities that the Bureau could engage in to make Data Collections from financial institutions more effective and efficient.
The Bureau recently concluded a Call for Evidence in which it sought public comment, through a series of RFIs, on multiple aspects of the Bureau's work. This RFI is not intended to duplicate that work. Accordingly, the Bureau is not seeking comments on the following data or Data Collections that are addressed in other recent Bureau RFIs: (1) Information collected as part of the Bureau's consumer complaint process, public complaint reporting, and the Consumer Complaint Database;
The Bureau encourages comments from all interested members of the public. The Bureau anticipates that the responding public may include entities subject to Bureau rules, trade associations and professional services organizations that represent these entities, individual consumers, consumer advocates, regulators, and researchers or members of academia.
To allow the Bureau to evaluate suggestions more effectively, the Bureau requests that, where possible, comments include:
• Specific discussions of any potential changes to our Data Collection processes, consistent with the laws providing the Bureau with data collection authority and the Bureau's statutory purposes and objectives, and including, in as much detail as possible, the nature of the requested change, and supporting data or other information on impacts, costs, benefits, or information concerning alignment with the processes of other agencies.
• Specific identification of any aspects of the Bureau's approach to its Data Collections that are working well, and including, in as much detail as possible, supporting data or other information on impacts, costs, benefits, or information concerning alignment with the processes of other agencies.
The following sections list areas of interest on which commenters may want to focus. This non-exhaustive list is meant to assist in the formulation of comments and is not intended to restrict what may be addressed by the public. Commenters may comment on matters that are related to the Bureau's Data Collections, but do not appear in the list below. The Bureau requests that, in addressing these questions, commenters identify with specificity the Bureau's Data Collection, format, process, or delivery platform at issue, providing specific examples where appropriate. In discussing the Bureau's Data Collections to date, the Bureau also requests that commenters provide examples and supporting information where possible, as well as relevant information about how this information has been collected by an institution, by which parties, and in what ways. Commenters should feel free to comment on some or all of the questions below, but are encouraged to indicate in which area your comments are focused.
The Bureau requests that commenters note their highest priorities, where possible, along with an explanation of how or why certain suggestions have been prioritized. Suggestions will be most helpful if they focus on revisions that the Bureau could implement without changes in the law, consistent with its existing statutory authorities.
The Bureau is seeking feedback on all aspects of its Data Collections, including the following areas of interest:
1. Aspects of the Bureau's Data Governance Program, including:
a. Best practices for data governance that the Bureau should consider adopting; and
b. Additional ways that the Bureau can improve its Data Governance Program, including improvements to its processes for collecting data, managing data, and releasing data.
2. The Bureau's Data Collection practices related to privacy, including practices the Bureau should maintain or changes that the Bureau can feasibly make to further protect privacy without hindering the Bureau's ability to accomplish its objectives and statutory mandates. Topics may include:
a. Use of aggregated data, including sources of aggregated data sufficient to effectively do the Bureau's work;
b. Use of sampling methodologies;
c. Use of de-identified data and de-identification processes;
d. Use of direct identifiers;
e. Notice to consumers regarding use of data known to be related to them; and
f. How the Bureau's Data Collection practices related to privacy compare to other Federal agencies' practices.
3. Changes the Bureau should, or should not, make to the sources, uses, and scope of its Data Collections.
4. How and when data collected primarily for one Bureau function should, or should not, be used for other Bureau functions consistent with applicable law. Topics may include:
a. The use of confidential supervisory information or confidential investigation information to inform multiple functions of the Bureau;
b. The use of data obtained for purposes of research, market monitoring, or for assessing the effectiveness of significant rules to inform other functions of the Bureau;
c. Reduction of burden on potential furnishers of data by use of the same data by other Bureau functions; and
d. Other issues that the Bureau should consider when using a Data Collection for a function other than the primary function for which it was collected.
5. Ways to improve Data Collection processes that reduce reporting burden without hindering the Bureau's ability to accomplish statutory objectives. Topics may include:
a. Whether Bureau Data Collections overlap with information maintained by other governmental agencies in a way that makes it difficult or particularly burdensome for institutions to comply with Bureau Data Collections;
b. Whether and how the Bureau should leverage existing industry data standards for particular markets that the Bureau regulates as part of its Data Collections;
c. Whether Data Collection requests are aligned with how institutions maintain information or utilize current technologies;
d. Whether Data Collections have provided helpful insight into particular markets, and whether there are other collections that would prove more insightful; and
e. Ways the Bureau may interact with industry or consumer groups to gather suggestions on how to reduce reporting burden and increase the effectiveness of its Data Collections.
6. Changes the Bureau could make to existing Data Collections, or potential new Data Collections the Bureau could collect, consistent with its statutory authority, to more effectively meet the statutory purposes and objectives as set forth in section 1021 of the Dodd-Frank Act:
a. The statutory purposes set forth in section 1021(a) are:
i. All consumers have access to markets for consumer financial products and services; and
ii. Markets for consumer financial products and services are fair, transparent, and competitive.
b. The statutory objectives set forth in section 1021(b) are:
i. Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;
ii. Consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;
iii. Outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;
iv. Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and
v. Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.
7. Other activities that the Bureau could engage in to make the Data Collection requests from financial institutions more effective and efficient.
8. Areas where the Bureau has not exercised the full extent of its Data Collection authority; where Data Collections would be beneficial and align with the purposes and objectives of the applicable Federal consumer financial laws; and/or where the Bureau can better leverage data as a strategic asset to increase effectiveness.
12 U.S.C. 5511(c); 12 U.S.C. 5492(a).
Department of the Army, DoD.
Notice.
In accordance with applicable laws and regulations, announcement is made of the intent to grant an exclusive within a field of use, royalty-bearing, revocable biological materials license.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, MD 21702-5012.
Mr. Barry Datlof, Office of Research & Technology Applications, (301) 619-0033, telefax (301) 619-5034.
In accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i), announcement is made of the intent to grant an exclusive within a field of use, royalty-bearing, revocable biological materials license to 45AZ Dengue-1 strain to PrimeVax Immuno-Oncology, Inc., having its principal place of business at 2229 W Mills Drive, Orange, California 92868.
Anyone wishing to object to grant of this license can file written objections along with supporting evidence, if any, within 15 days from the date of this publication. Written objections are to be filed with the Command Judge Advocate (see
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by October 29, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Cortney Higgins, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
In its ongoing response to this legislation and in support of its mission to “promote a culture of safety to eliminate preventable patient harm by engaging, educating and equipping patient-care teams to institutionalize evidence-based safe practices,” the DoD Patient Safety Program plans to field the Department of Defense Patient Safety Culture Survey. The Culture Survey is based on the Department of Health and Human Services' Agency for Healthcare Research and Quality's validated survey instrument. The survey obtains MHS staff opinions on patient safety issues
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Mr. Licari at
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by October 29, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Cortney Higgins, DoD Desk Officer, at
Fred Licari, 571-372-0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Mr. Licari at
U.S. Army Corps of Engineers, DoD.
Notice of Intent.
The U.S. Army Corps of Engineers (Corps) Seattle District received a permit application from the Chehalis River Basin Flood Control Zone District (applicant) for the construction of a flood retention structure on the upper Chehalis River and the raising of levees at the Centralia-Chehalis Airport. A Department of the Army (DA) permit is required for the project pursuant to Section 404 of the Clean Water Act. The Corps has determined the proposed project may have significant individual and/or cumulative impacts on the human environment. An environmental impact statement (EIS) will be prepared in accordance with the National Environmental Policy Act (NEPA). Preparation of the EIS will support the Corps' eventual decision to either issue, issue with modification or deny the DA permit for the proposed action. The EIS will assess the potential social, economic, and environmental impacts of the projects and is intended to be sufficient in scope to address Federal, State, and local requirements, environmental and socio-economic
The scoping period will start on September 28, 2018.
Written comments concerning the project and requests to be included on the EIS notification mailing list should be submitted to:
Anchor QEA, Care of: Chehalis River Basin Flood Control Zone District EIS, 720 Olive Way, Suite 1900, Seattle, Washington 98101.
Written comments regarding the scope of the EIS—including the environmental analysis, range of alternatives, and potential mitigation actions—should be received at this address or submitted by electronically at
Ms. Janelle Leeson via email at:
1.
2.
The applicant, funded by the Washington State capitol budget, is proposing construction of a flood retention expandable (FRE) facility and associated infrastructure on the main-stem Chehalis River south of the Town of Pe Ell. The facility would have capacity to provide 65,000 acre-feet of temporary flood storage during major floods; the Chehalis River would flow normally during regular conditions or small flood events. The top of the dam structure would be 1,220 feet long with a maximum structural height of up to 254 feet including 3 to 5 feet of freeboard for safety. The FRE facility is proposed to include a 210-foot-wide emergency spillway, discharging into a 70-foot-wide and 230-foot-long stilling basin.
The FRE facility would be constructed with a foundation and hydraulic structure extents capable of supporting future construction of a larger dam with up to 130,000 acre feet of storage. An expansion of the facility would be subject to a separate NEPA and SEPA process and permitting if proposed.
Construction of the flood retention structure would include the installation of a temporary diversion tunnel to accommodate fish passage during construction. Permanent fish passage would be accomplished primarily through five openings installed along the river bottom at the base of the flood retention structure. The openings would be 230 feet in length. They are anticipated to replicate the stream discharge and velocity rating curves exhibited by the natural channel at the dam site (through which fish currently pass without the dam), up through river discharges of 4,000 cubic feet per second (cfs). When water is impounded behind the dam during high-flow events, the low-level outlet would be closed. Fish passage would be provided via a collection, handling, transport, and release (CHTR) facility during the high-flow, short-term periods of time when the dam outlets are closed.
The applicant also proposes to raise the elevation of the Centralia-Chehalis Airport levee in Chehalis, Washington. The existing 9,511-foot-long-levee would be raised 4 to 7 feet, along with raising Airport Road 1,700 feet along the southern extent of the airport.
Potential impacts of the proposal have not been determined at this time. Mitigation for proposed unavoidable impacts to waters of the U.S. will be required to comply with the Corps' 2008 mitigation rule.
A full project description as provided by the applicant can be accessed electrically at
4.
The purpose of scoping is to assist the Corps in defining issues, public concerns, and alternatives and the depth to which they will be evaluated in the EIS. The Corps has prepared project information documents to familiarize agencies, Tribes, the public, and interested organizations with the proposed projects and potential environmental issues. Copies of the documents will be available at the public meeting and at the website
At Montesano City Hall, Banquet Room, 112 North Main Street, Montesano, Washington 98563 on Tuesday, October 16, 2018 from 5:00 p.m. to 8:00 p.m.
At Centralia College, Bowman Rotary Banquet Rooms A and B, 600 Centralia College Boulevard, Centralia, Washington 98531 on Wednesday, October 17, 2018 from 5:00 p.m. to 8:00 p.m.
During the scoping period, continuous access to the scoping meeting presentation will be hosted on the EIS website at
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; extension of final EIS waiting period.
The Notice of Availability for the Final Missouri River Recovery Management Plan and Environmental Impact Statement (MRRMP-FEIS) published in the
Tiffany Vanosdall, U.S. Army Corps of Engineers at (402) 995-2695 or by email at
The MRRMP-FEIS can be downloaded online at:
Take notice that on September 21, 2018, pursuant to sections 206, 306, 309, and 316
The Complainants certify that copies of the Complaint were served on contacts for Respondents.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at
This filing is accessible on-line at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. 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.
The Environmental Protection Agency (EPA) will accept requests, from October 15, 2018 through December 14, 2018, for grants to establish and enhance State and Tribal Response Programs. This notice provides guidance on eligibility for funding, use of funding, grant mechanisms and process for awarding funding, the allocation system for distribution of funding, and terms and reporting under these grants. EPA has consulted with state and tribal officials in developing this guidance.
The primary goal of this funding is to ensure that state and tribal response programs include, or are taking reasonable steps to include, certain elements of a response program and establishing a public record. Another goal is to provide funding for other activities that increase the number of response actions conducted or overseen by a state or tribal response program. This funding is not intended to supplant current state or tribal funding for their response programs. Instead, it is to supplement their funding to increase their response capacity.
For fiscal year 2019, EPA will consider funding requests up to a maximum of $1.0 million per state or tribe. Subject to the availability of funds, EPA regional personnel will be available to provide technical assistance to states and tribes as they apply for and carry out these grants.
This action is applicable as of October 15, 2018. EPA expects to make non-competitive grant awards to states and tribes which apply during fiscal year 2019.
Mailing addresses for EPA Regional Offices and EPA Headquarters can be found at
Rachel Lentz, EPA's Office of Land and Emergency Management, Office of Brownfields and Land Revitalization, (202) 566 2745,
Section 128(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, authorizes a noncompetitive $50 million grant program to establish and enhance state
Section 128(a)(1)(B)(ii)(III) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, authorizes a noncompetitive $1.5 million grant program to assist small communities, Indian tribes, rural areas, or disadvantaged areas to carryout section CERCLA 104(k)(7) (by providing training, research, and technical assistance to individuals and organizations, as appropriate, to facilitate the inventory of brownfields sites, site assessments, remediation of brownfield sites, community involvement, or site preparation). The guidance regarding CERCLA 128(a)(1)(B)(ii)(III) Small Technical Assistance Grants is located in Appendix A.
The Catalogue of Federal Domestic Assistance entry for the section 128(a) State and Tribal Response Program cooperative agreements is 66.817. This grant program is eligible to be included in state and tribal Performance Partnership Grants under 40 CFR part 35 Subparts A and B, with the exception of funds used to capitalize a revolving loan fund for brownfield remediation under section 104(k)(3); or purchase environmental insurance or developing a risk sharing pool, an indemnity pool, or insurance mechanism to provide financing for response actions under a State or Tribal response program.
Requests for funding will be accepted from October 15, 2018 through December 14, 2018. Requests EPA receives after December 14, 2018 will not be considered for FY2019 funding. Information that must be submitted with the funding request is listed in Section IX of this guidance. States or tribes that do not submit the request in the appropriate manner may forfeit their ability to receive funds. First time requestors are strongly encouraged to contact their Regional EPA Brownfields contacts, listed at the end of this guidance, prior to submitting their funding request. EPA will consider funding requests up to a maximum of $1.0 million per state or tribe for FY2019.
Requests submitted by the December 14, 2018 request deadline are preliminary; final cooperative agreement work plans and budgets will be negotiated with the regional offices once final funding allocation determinations are made. As in previous years, EPA will place special emphasis on reviewing a cooperative agreement recipient's use of prior section 128(a) funding in making allocation decisions and unexpended balances are subject to 40 CFR 35.118 and 40 CFR 35.518 to the extent consistent with this guidance. Also, EPA will prioritize funding for recipients establishing their response programs.
States and tribes requesting funds are required to provide a Dun and Bradstreet Data Universal Numbering System (DUNS) number with their cooperative agreement's final package. For more information, please go to
State and tribal response programs oversee assessment and cleanup activities at brownfield sites across the country. The depth and breadth of these programs vary. Some focus on CERCLA related activities, while others are multi-faceted, addressing sites regulated by both CERCLA and the Resource
This funding is intended for those states and tribes that have the required management and administrative capacity within their government to administer a federal grant. The primary goal of this funding is to ensure that state and tribal response programs include, or are taking reasonable steps to include, certain elements of an environmental response program and that the program establishes and maintains a public record of sites addressed. Subject to the availability of funds, EPA regional personnel will provide technical assistance to states and tribes as they apply for and carry out section 128(a) cooperative agreements.
To be eligible for funding under CERCLA section 128(a), a state or tribe must:
1. Demonstrate that its response program includes, or is taking reasonable steps to include, the four elements of a response program described in Section V of this guidance;
2. maintain and make available to the public a record of sites at which response actions have been completed in the previous year and are planned to be addressed in the upcoming year (see CERCLA section 128(b)(1)(C)).
States and tribes are
Section 128(a) recipients that do not have a VRP MOA with EPA must demonstrate that their response program includes, or is taking reasonable steps to include, the four elements described below. Achievement of the four elements should be viewed as a priority. Section 128(a) authorizes funding for activities necessary to establish and enhance the four elements, and to establish and maintain the public record requirement.
The four elements of a response program are described below:
1.
EPA recognizes the varied scope of state and tribal response programs and will not require states and tribes to develop a “list” of brownfield sites. However, at a minimum, the state or tribe should develop and/or maintain a system or process that can provide a reasonable estimate of the number, likely location, and general characteristics of brownfield sites within their state or tribal lands. Inventories should evolve to a prioritization of sites based on community needs, planning priorities, and protection of human health and the environment. Inventories should be developed in direct coordination with communities, and particular attention should focus on communities with limited capacity to compete for and manage a competitive brownfield assessment, revolving loan, or cleanup cooperative agreement.
Given funding limitations, EPA will negotiate work plans with states and tribes to achieve this goal efficiently and effectively, and within a realistic time frame. For example, many of EPA's Brownfields Assessment cooperative agreement recipients conduct inventories of brownfields sites in their communities or jurisdictions. EPA encourages states and tribes to work with these cooperative agreement recipients to obtain the information that they have gathered and include it in their survey and inventory.
2.
a. A response action will protect human health and the environment, and be conducted in accordance with applicable laws; and
b. the state or tribe will complete the necessary response activities if the person conducting the response fails to complete them (this includes operation and maintenance and/or long-term monitoring activities).
3.
a. Public access to documents and related materials that a state, tribe, or party conducting the cleanup is relying on or developing to make cleanup decisions or conduct site activities;
b. prior notice and opportunity for meaningful public comment on cleanup plans and site activities, including the input into the prioritization of sites; and
c. a mechanism by which a person who is, or may be, affected by a release or threatened release of a hazardous substance, pollutant, or contaminant at a brownfield site — located in the community in which the person works or resides — may request that a site assessment be conducted. The appropriate state or tribal official must consider this request and appropriately respond.
4.
In order to be eligible for section 128(a) funding, states and tribes (including those with MOAs) must establish and maintain a public record system, as described below, to enable meaningful public participation (refer to
1. Maintain and update, at least annually or more often as appropriate, a public record that includes the name and location of sites at which response actions have been completed during the previous year;
2. maintain and update, at least annually or more often as appropriate, a public record that includes the name and location of sites at which response actions are planned in the next year; and
3. identify in the public record whether or not the site, upon completion of the response action, will be suitable for unrestricted use. If not, the public record must identify the institutional controls relied on in the remedy and include relevant information concerning the entity responsible for oversight, monitoring, and/or maintenance of the institutional and engineering controls; and how the responsible entity is implementing those activities (see Section VI.C).
Section 128(a) funds may be used to maintain and make available a public record system that meets the requirements discussed above.
It is important to note that the public record requirement differs from the “timely survey and inventory” element described in the “Four Elements” section above. The public record addresses sites at which response actions have been completed in the previous year or are planned in the upcoming year. In contrast, the “timely survey and inventory” element, described above, refers to identifying brownfield sites regardless of planned or completed actions.
EPA's goal is to enable states and tribes to make the public record and other information, such as information from the “survey and inventory” element, easily accessible. For this reason, EPA will allow states and tribes to use section 128(a) funding to make such information available to the public via the internet or other avenues. For example, the Agency would support funding state and tribal efforts to include detailed location information in the public record such as the street address, and latitude and longitude information for each site.
In an effort to reduce cooperative agreement reporting requirements and increase public access to the public record, EPA encourages states and tribes to place their public record on the internet. If a state or tribe places the public record on the internet, maintains the substantive requirements of the public record, and provides EPA with the link to that site, EPA will, for purposes of cooperative agreement funding only, deem the public record reporting requirement met.
EPA encourages states and tribes to maintain public record information, including data on institutional controls, on a long-term basis (more than one year) for sites at which a response action has been completed. Subject to EPA regional office approval, states or tribes may include development and operation of systems that ensure long-term maintenance of the public record, including information on institutional controls (such as ensuring the entity responsible for oversight, monitoring, and/or maintenance of the institutional and engineering controls is implementing those activities) in their work plans.
Section 128(a)(1)(B) describes the eligible uses of cooperative agreement funds by states and tribes. In general, a state or tribe may use funding to “establish or enhance” its response program. Specifically, a state or tribe may use cooperative agreement funds to build response programs that include the four elements outline in section 128(a)(2). Eligible activities include, but are not limited to, the following:
• Developing legislation, regulations, procedures, ordinances, guidance, etc. that establish or enhance the administrative and legal structure of a response program;
• establishing and maintaining the required public record described in Section VI of this guidance;
• operation, maintenance and long-term monitoring of institutional controls and engineering controls;
• conducting site-specific activities, such as assessment or cleanup, provided such activities establish and/or enhance the response program and are tied to the four elements. In addition to the requirement under CERCLA section 128(a)(2)(C)(ii) to provide for public comment on cleanup plans and site activities, EPA strongly encourages states and tribes to seek public input regarding the priority of sites to be addressed-especially from local communities with health risks related to exposure to hazardous waste or other public health concerns, those in economically disadvantaged or remote areas, and those with limited experience working with government agencies. EPA will not provide section 128(a) funds solely for assessment or cleanup of specific brownfield sites; site-specific activities must be part of an overall section 128(a) work plan that includes funding for other activities that establish or enhance the four elements;
• capitalizing a revolving loan fund (RLF) for brownfields cleanup as authorized under CERCLA section 104(k)(3). These RLFs are subject to the same statutory requirements and cooperative agreement terms and conditions applicable to RLFs awarded under section 104(k)(3). Requirements include a 20 percent match (in the form of money, labor, material, or services from a non-federal source) on the amount of section 128(a) funds used for the RLF, a prohibition on using EPA cooperative agreement funds for administrative costs relating to the RLF, and a prohibition on using RLF loans or subgrants for response costs at a site for which the recipient may be potentially liable under section 107 of CERCLA. Other prohibitions relevant to CERCLA section 104(k)(4) also apply; and
• purchasing environmental insurance or developing a risk-sharing pool, indemnity pool, or insurance mechanism to provide financing for response actions under a state or tribal response program.
Under CERCLA section 128(a), establish includes activities necessary to build the foundation for the four elements of a state or tribal response program and the public record requirement. For example, a state or tribal response program may use section 128(a) funds to develop regulations,
States and tribes also need to comply with Grants Policy Issuance (GPI) 17-01 Sustainability in EPA Cooperative Agreements.
Under CERCLA section 128(a), enhancing a state or tribal response program includes related to activities that add to or improve a state or tribal response program or increase the number of sites at which response actions are conducted under such programs.
The exact enhancement activities that may be allowable depend upon the work plan negotiated between the EPA regional office and the state or tribe. For example, regional offices and states or tribes may agree that section 128(a) funds may be used for outreach and training directly related to increasing awareness of its response program, and improving the skills of program staff (training examples include ASTM standards for conducting Limited Transaction Screens, Environmental Phase I and Phase IIs). It may also include developing better coordination and understanding of other state response programs, (
Site-specific assessment and cleanup activities should establish and/or enhance the response program and be tied to the four elements. Site-specific assessments and cleanups can be both eligible and allowable if the activities is included in the work plan negotiated between the EPA regional office and the state or tribe, but activities must comply with all applicable laws and are subject to the following restrictions:
a. Section 128(a) funds can only be used for assessments or cleanups at sites that meet the definition of a brownfields site at CERCLA section 101(39). EPA encourages states and tribes to use site-specific funding to perform assessment (
b. absent EPA approval, no more than $200,000 per site assessment can be funded with section 128(a) funds, and no more than $200,000 per site cleanup can be funded with section 128(a) funds;
c. absent EPA approval, the state/tribe may not use funds awarded under this agreement to assess and/or clean up sites owned or operated by the recipient or held in trust by the United States Government for the recipient; and
d. assessments and cleanups cannot be conducted at sites where the state/tribe is a potentially responsible party pursuant to CERCLA section 107, except:
• At brownfield sites contaminated by a controlled substance as defined in CERCLA section 101(39)(D)(ii)(I); or
• when the recipient would satisfy all of the elements set forth in CERCLA section 101(40) to qualify as a bona fide prospective purchaser, or would satisfy all elements 101(40), except where the date of acquisition of the property was on or before January 11, 2002.
Subawards are defined at 2 CFR 200.92 and may not be awarded to for-profit organizations. If the recipient plans on making any subawards under the cooperative agreement, then they become a pass-through entity. As the pass-through entity, the recipient must report on its subaward monitoring activities under 2 CFR 200.331(d). Additional reporting requirements for these activities will be included in the cooperative agreement. In addition, subawards cannot be provided to entities that may be potentially responsible parties (pursuant to CERCLA section 107) at the site for which the assessment or cleanup activities are proposed to be conducted, except:
1. At brownfields sites contaminated by a controlled substance as defined in CERCLA section 101(39)(D)(ii)(I); or
2. when the recipient would satisfy all of the elements set forth in CERCLA section 101(40) to qualify as a bona fide prospective purchaser, or would satisfy all elements of CERCLA 101(40)(D) except where the date of acquisition of the property was on or before January 11, 2002.
States and tribes may use section 128(a) funds for site-specific activities that improve state or tribal capacity. However, the amount recipients may request for site-specific assessments and cleanups may not exceed 50% of the
• Total amount requested for site-specific activities;
• percentage of the site-specific activities (assuming waiver is approved) in the total budget;
• site-specific activities that will be covered by this funding. If known, provide site specific information and describe how work on each site contributes to the development or enhancement of your state/tribal site response program. Explain how the community will be (or has been) involved in prioritization of site work and especially those sites where there is a potential or known significant environmental impact to the community;
• an explanation of how this shift in funding will not negatively impact the core programmatic capacity (
• an explanation as to whether the sites to be addressed are those for which the affected community(ies) has requested work be conducted (refer to Section VII.A Overview of Funding for more information).
EPA Headquarters will review waiver requests based on the information in the justification and other information available to the Agency. EPA will inform recipients whether the waiver is approved.
States and tribes may use section 128(a) funds for activities that establish and enhance response programs addressing petroleum brownfield sites. Subject to the restrictions listed above (see Section VII.D.1) for all site-specific activities, the costs of site-specific assessments and cleanup activities at petroleum contaminated brownfield sites, as defined in CERCLA section 101(39)(D)(ii)(II), are both eligible and allowable if the activity is included in the work plan negotiated between the EPA regional office and the state or tribe. Section 128(a) funds used to capitalize a Brownfields RLF may be used at brownfield sites contaminated by petroleum to the extent allowed under CERCLA section 104(k)(3).
Other eligible uses of funds for site-specific related include, but are not limited to, the following activities:
• Technical assistance to federal brownfields cooperative agreement recipients;
• development and/or review of quality assurance project plans (QAPPs); and
• entering data into the Assessment Cleanup and Redevelopment Exchange System (ACRES) database
Other uses not specifically referenced in this guidance may also be eligible and allowable. Recipients should consult with their regional state or tribal contact for additional guidance. Costs incurred for activities at non-brownfield sites may be eligible and allowable if such activities are included in the state's or tribe's work plan.
Funding authorized under CERCLA section 128(a) is awarded through a cooperative agreement
Subject to the availability of funds, EPA regional offices will negotiate and enter into section 128(a) cooperative agreements with eligible and interested states or tribes.
For Fiscal Year 2019, EPA will consider funding requests up to a maximum of $1.0 million per state or tribe. Please note that demand for this program continues to increase. Due to the increasing number of entities requesting funding, it is likely that the FY19 states and tribal individual funding amounts will be less than the FY18 individual funding amounts.
States and tribes must define in their work plan the “section 128(a) response program(s)” to which the funds will be applied, and may designate a component of the state or tribe that will be EPA's primary point of contact. When EPA funds the section 128(a) cooperative agreement, states and tribes may distribute these funds among the appropriate state and tribal agencies that are part of the section 128(a) response program. This distribution must be clearly outlined in their annual work plan.
If a portion of the section 128(a) grant funds requested will be used to capitalize a revolving loan fund for cleanup, pursuant to section 104(k)(3), two separate cooperative agreements must be awarded (
If a state or tribe chooses to use its section 128(a) funds to capitalize a revolving loan fund program, the state or tribe must have the lead authority to manage the program (
States and tribes may include section 128(a) cooperative agreements in their PPG as described in 69 FR 51756 (2004). Section 128(a) funds used to capitalize an RLF or purchase environmental insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide financing for response actions under a state or tribal response program are not eligible for inclusion in the PPG.
EPA regional offices will determine the project period for each cooperative agreement. These may be for multiple years depending on the regional office's cooperative agreement policies. Each cooperative agreement must have an annual budget period tied to an annual work plan. While not prohibited, pre-award costs are subject to 40 CFR 35.113 and 40 CFR 35.513.
As part of the annual work plan negotiation process, states or tribes that do
Prior to funding a state's or tribe's annual work plan, EPA regional offices will verify and document that a public record, as described in Section VI and below, exists and is being maintained.
• States or tribes that received initial funding prior to FY18: Requests for FY19 funds will not be accepted from states or tribes that fail to demonstrate, by the December 14, 2018 request deadline, that they established and are maintaining a public record. (
• states or tribes that received initial funding in FY18: By the time of the actual FY19 award, the state or tribe must demonstrate that they established and maintained the public record (those states and tribes that do not meet this requirement will have a term and condition placed on their FY19 cooperative agreement that prohibits the drawdown of FY19 funds until the public record requirement is met).
States and tribes should be aware that EPA and its Congressional appropriations committees place significant emphasis on the utilization of prior years' funding. Unused funds prior to FY18 will be considered in the allocation process. Existing balances of cooperative agreement funds as reflected in EPA's Financial Data Warehouse as of January 1, 2019 may result in a decreased allocation amount or, if appropriate the deobligation and reallocation of prior funding by EPA Regions as provided for in 40 CFR 35.118 and 40 CFR 35.518.
After the December 14, 2018, request deadline, EPA's Regional Offices will submit summaries of state and tribal requests to EPA Headquarters. Before doing so, regional offices may take into account additional factors when determining recommended allocation amounts. Such factors include, but are not limited to, the depth and breadth of the state or tribal program, and scope of the perceived need for funding (
After receipt of the regional recommendations, EPA Headquarters will consolidate requests and make decisions on the final funding allocations.
EPA regional offices will work with interested states and tribes to develop their preliminary work plans and funding requests. Final cooperative agreement work plans and budgets will be negotiated with the regional office once final allocation determinations are made. Please refer to process flow chart below (dates are estimates and subject to change):
All states and tribes requesting FY19 funds must submit (to their regional brownfields contact, shown on the last page of this guidance) a draft work plan of the funds with associated dollar amounts to their regional brownfields contact listed on the last page. Please contact your regional brownfields contact or visit
For
a. Prepare a draft work plan and budget for your FY19 funding request. The funding requested should be reasonably spent in one year. The requestor should work, as early as possible, with their EPA regional program contact to ensure that the funding amount requested and related activities are reasonable.
b. In your funding request, include the prior years' funding amount. Include any funds that you, the recipient, have not received or drawn down in payments (
If you do not have an MOA with EPA, demonstrate how your program includes, or is taking reasonable steps to include, the four elements described in Section VI.
Programmatic Capability—[Only Respond if Specifically Requested by Region]
EPA Regions may request demonstration of Programmatic Capability if the returning grantee has experienced key staff turnover or if the grantee has open programmatic review findings. An entity's corresponding EPA Region will notify returning recipients if the information below is required, and it must be included with your funding request. Describe the organizational structure you will utilize to ensure sound program management to guarantee or confirm timely and successful expenditure of funds, and completion of all technical, administrative and financial requirements of the program and cooperative agreement.
a. Include a brief description of the key qualifications of staff to manage the response program and/or the process you will follow to hire staff to manage the response program. If key staff is already in place, include their roles, expertise, qualifications, and experience.
b. Discuss how this response program fits into your current environmental program(s). If you do not have an environmental program, describe your process to develop, or interest to start one.
c. Describe if you have had adverse audit findings. If you had problems with the administration of any grants or cooperative agreements, describe how you have corrected, or are correcting, the problems.
For
a. Describe your plan to establish a response program, why it is a priority for your tribe, and why CERCLA 128(a) funding will be beneficial to your program. If your tribe is already supported by a tribal consortium receiving CERCLA 128(a) funding, explain why additional resources are necessary.
b. Prepare a draft work plan and budget for your first funding year. The funding requested should be reasonably spent in one year. For budget planning purposes, it is recommended that you assume funding sufficient to support 0.5 staff to establish a response program and some travel to attend regional and national trainings or events.
a. Describe the organizational structure you will utilize to ensure sound program management to guarantee or confirm timely and successful expenditure of funds, and completion of all technical, administrative and financial requirements of the program and cooperative agreement.
b. Include a brief description of the key qualifications of staff to manage the response program and/or the process you will follow to hire staff to manage the response program. If key staff is already in place, include their roles, expertise, qualifications, and experience.
c. Discuss how this response program fits into your current environmental program(s). If you do not have an environmental program, describe your process to develop, or interest to start one.
d. Describe if you have had adverse audit findings. If you had problems with the administration of any grants or cooperative agreements, describe how you have corrected, or are correcting, the problems.
Cooperative agreements for state and tribal response programs will include programmatic and administrative terms and conditions. These terms and conditions will describe EPA's substantial involvement including technical assistance and collaboration on program development and site-specific activities. Each of the subsections below summarizes the basic terms and conditions, and related reporting that will be incorporated into your cooperative agreement.
In accordance with 2 CFR 200.328 and any EPA specific regulations, state and tribes must provide progress reports meeting the terms and conditions of the cooperative agreement negotiated. State and tribal costs for complying with reporting requirements are an eligible expense under the section 128(a) cooperative agreement. As a minimum, state or tribal progress reports must include both a narrative discussion and performance data relating to the state or tribe accomplishments and environmental outputs associated with the approved budget and work plan. Reports should also provide an accounting of section 128(a) funding. If applicable, the state or tribe must include information on activities related to establishing or enhancing the four elements of the state's or tribe's response program. All recipients must provide information related to establishing or, if already established, maintaining the public record. Depending upon the activities included in the state's or tribe's work plan, the recipient may also need to report on the following:
1.
2.
• A narrative description and copies of applicable documents developed or under development to enable the response program to conduct enforcement and oversight at sites. For example:
○ Legal authorities and mechanisms (
○ policies and procedures to implement legal authorities; and other mechanisms;
• a description of the resources and staff allocated/to be allocated to the response program to conduct oversight and enforcement at sites as a result of the cooperative agreement;
• a narrative description of how these authorities or other mechanisms, and resources, are adequate to ensure that:
○ a response action will protect human health and the environment; and be conducted in accordance with applicable federal and state law; and if the person conducting the response action fails to complete the necessary response activities, including operation and maintenance or long-term monitoring activities, the necessary response activities are completed; and
• a narrative description and copy of appropriate documents demonstrating the exercise of oversight and enforcement authorities by the response program at a brownfields site.
3.
4.
• Number and frequency of oversight audits of licensed site professional certified cleanups;
• number and frequency of state/tribal oversight audits conducted;
• number of sites where staff conducted audits, provided technical assistance, or conducted other oversight activities; and
• number of staff conducting oversight audits, providing technical assistance, or conducting other oversight activities.
5.
6.
• Number and description of insurance policies purchased (
• the number of sites covered by the insurance;
• the amount of funds spent on environmental insurance (
• the amount of claims paid by insurers to policy holders.
The regional offices may also request that information be added to the progress reports, as appropriate, to properly document activities described by the cooperative agreement work plan.
EPA regions may allow states or tribes to provide performance data in appropriate electronic format.
The regional offices will forward progress reports to EPA Headquarters, if requested. This information may be used to develop national reports on the outcomes of CERCLA section 128(a) funding to states and tribes.
States and tribes must report, by December 14, 2018, a summary of the
• Environmental programs where CERCLA section 128(a) funds are used to support capacity building (general program support, non-site-specific work). Indicate as appropriate from the following:
__Brownfields
__Underground Storage Tanks/Leaking Underground Storage Tanks
__Federal Facilities
__Solid Waste
__Superfund
__Hazardous Waste Facilities
__VCP (Voluntary Cleanup Program, Independent Cleanup Program, etc.)
__Other____;
• number of properties (or sites) enrolled in a response program during FY18;
• number of properties (or sites) where documentation indicates that cleanup work is complete and all required institutional controls (IC's) are in place, or not required;
• total number of acres associated with properties (or sites) in the previous bullet;
• number of properties where assistance was provided, but the property was not enrolled in the response program (OPTIONAL);
• date that the public record was last updated;
• Estimated total number of properties (or sites) in your brownfields inventory;
• Number of audits/inspections/reviews/other conducted to ensure engineering controls and institutional controls are still protective; and
• Did you develop or revise legislation, regulations, codes, guidance documents or policies related to establishing or enhancing your Voluntary Cleanup Program/Response Program during FY18? If yes, please indicate the type and whether it was new or revised. EPA may require states/tribes to report specific performance measures related to the four elements
All recipients must report, as specified in the terms and conditions of their cooperative agreement, and in Section VIII.I of this guidance, information related to establishing, or if already established, maintaining the public record, described above. States and tribes can refer to an already existing public record (
A list of sites at which response actions have been completed in the past year including:
• Date the response action was completed;
• site name;
• name of owner at time of cleanup, if known;
• location of the site (street address, and latitude and longitude);
• whether an institutional control is in place;
• type of institutional control(s) in place (
• nature of the contamination at the site (
• size of the site in acres.
A list of sites planned to be addressed by the state or tribal response program in the coming year including:
• Site name and the name of owner at time of cleanup, if known;
• location of the site (street address, and latitude and longitude);
• to the extent known, whether an institutional control is in place;
• type of the institutional control(s) in place (
• to the extent known, the nature of the contamination at the site (
• size of the site in acres.
Applicants must ensure that they have the necessary processes and systems in place to comply with the subaward and executive total compensation reporting requirements established under OMB guidance at 2 CFR part 170, unless they qualify for an exception from the requirements, should they be selected for funding.
Unless exempt from these requirements under OMB guidance at 2 CFR part 25 (
1. Be registered in SAM prior to submitting an application or proposal under this announcement. SAM information can be found at
2. Maintain an active SAM registration with current information at all times during which they have an active federal award or an application or proposal under consideration by an agency; and
3. Provide their DUNS number in each application or proposal submitted to the agency. Applicants can receive a DUNS number, at no cost, by calling the dedicated toll-free DUNS Number request line at 1-866-705-5711, or visiting the D&B website at:
If an applicant fails to comply with these requirements, it will affect their ability to receive the award.
Please note that the Central Contractor Registration (CCR) system has been replaced by the System for Award Management (SAM). To learn more about SAM, go to
If funding is provided it will be provided through a cooperative agreement award. All cooperative agreement applications for non-competitive assistance agreements must be submitted using
To learn more about the
An applicant that receives an award under this announcement is expected to manage assistance agreement funds efficiently and effectively, and make sufficient progress towards completing the project activities described in the work-plan in a timely manner. The assistance agreement will include terms and conditions related to implementing this requirement.
Section 128(a)(1)(B)(ii)(III) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, authorizes a noncompetitive $1.5 million grant program to assist small communities, Indian tribes, rural areas, or disadvantaged areas to carryout section CERCLA 104(k)(7) (by providing training, research, and technical assistance to individuals and organizations, as appropriate, to facilitate the inventory of brownfields sites, site assessments, remediation of brownfield sites, community involvement, or site preparation). Statutory definitions of communities eligible to receive funding on behalf of a state or tribe. A recipient can define community as a census track:
Disadvantaged Area—The term `disadvantaged area' means a community with an annual median household income that is less than 80 percent of the statewide annual median household income, as determined by the President based on the latest available decennial census and/or
Small Community—the term `small community' means a community with a population of not more than 15,000 individuals, as determined by the President based on the latest available decennial census.
State and tribes with active CERCLA 128(a) grants and are requesting funds in fiscal year 2019 are eligible to submit one request on behalf of a small community or disadvantaged area. The maximum amount of funding allowed is $20,000. The funding will be awarded as part of the FY19 CERCLA 128(a) funding grant. Requests will be considered based on the following:
• Readiness of the recipient and community to complete the project within a year of award,
• the recipient is in good standing with their current CERCLA 128(a) grant,
• has documented support from the community benefiting from this grant, and
• adequately responds to the criteria listed below.
Information to include in the request:
• The amount of funding requested,
• a description of the target community and how they meet the statutory definition of disadvantaged area or small community,
• a description of the proposed project, including a description of key activities, and how it will further brownfields reuse,
• the expected outcomes and timeline to complete the project,
• how/who will be conducting the activities (
• if additional resources are necessary to complete the project, please explain how you will secure them,
• an explanation of why existing state and tribal funding is inadequate to complete the proposed project,
• and demonstrate that the community supports the state or tribe receiving the grant
Requests should be no more than 2 pages.
These funds may not be places in Performance Partnership Grants.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). Because this action is not subject to notice and comment requirements under the Administrative Procedures Act or any other statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 601
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to FR Notice Published08/10/2018; Extending the Comment Period from 09/24/2018 to 10/26/2018.
Revision to FR Notice Published9/7/2018; Extending the Review Period from 10/09/2018 to 10/22/2018.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces that EPA is planning to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB). The ICR, entitled: “Reporting in the FIFRA Cooperative Agreement Work Plan and Report Template” and identified by EPA ICR No. 2511.02 and OMB Control No. 2070-0198, represents the renewal of an existing ICR that is scheduled to expire on April 30, 2019. Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.
Comments must be received on or before November 27, 2018.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2018-0418, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Carolyn Siu, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 543-9488; email address:
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:
There is no increase or decrease of the PRA burden hours in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB. However, there is an increase in EPA's burden cost in this ICR relative to the previous ICR due to updating the wages (from 2012 to 2017) and using the fully loaded wage rate replacing the unloaded wage rate used in the current ICR. This change is a program adjustment.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
44 U.S.C. 3501
Environmental Protection Agency (EPA).
Notice of Federal Advisory Committee meeting.
Under the Federal Advisory Committee Act, EPA gives notice of a public meeting of the he National Advisory Committee (NAC) and the Governmental Advisory Committee (GAC). The NAC and GAC provide advice to the EPA Administrator on a broad range of environmental policy, technology, and management issues. NAC/GAC members represent academia, business/industry, non-governmental organizations, and state, local and tribal governments. The purpose of the meeting is for the NAC/GAC to provide advice on trade and environment issues related to the North American Agreement on Environmental Cooperation. A copy of the meeting agenda will be posted at
The NAC/GAC will hold a public meeting on Wednesday, October 10, 2018 from 9:00 a.m. to 5:30 p.m., (EST) and Thursday, October 11, 2018 from 9:00 a.m. until 3:00 p.m. (EST)
The meeting will be held at the
Oscar Carrillo, Program Analyst,
Requests to make oral comments or to provide written comments to NAC/GAC should be sent to Oscar Carrillo at
Environmental Protection Agency (EPA).
Notice of tentative approval.
Notice is hereby given that the State of Hawaii revised its approved Public Water System Supervision Program (PWSSP) under the federal Safe Drinking Water Act (SDWA) by adopting the Stage 1 Disinfectants and Disinfection Byproducts Rule, Stage 2 Disinfectants and Disinfection Byproducts Rule, Long Term 2 Enhanced Surface Water Treatment Rule, Lead and Copper Rule Short-Term Regulatory Revisions and Clarifications, Revised Total Coliform Rule, and the expanded Public Water System definition. The Environmental Protection Agency (EPA) has determined that these revisions by the State of Hawaii are no less stringent than the corresponding Federal regulations and otherwise meet applicable SDWA primacy requirements. Therefore, EPA intends to approve these revisions to the State of Hawaii's PWSSP.
Request for a public hearing must be received on or before October 29, 2018.
All documents relating to this determination are available for inspection between the hours of 8:30 a.m. and 4:00 p.m., Monday through Friday, except official State holidays (for the Hawaii location) and official Federal holidays (for the two EPA locations), at the following offices: Hawaii Department of Health, Safe Drinking Water Branch, 2385 Waimano Home Road, Uluakupu Building 4, Pearl City, Hawaii 96782; United States Environmental Protection Agency, Region 9, Pacific Islands Office, 300 Ala Moana Blvd., Room 5124, Honolulu, Hawaii 96850; and United States Environmental Protection Agency, Region 9, Drinking Water Management Section, 75 Hawthorne Street (WTR-3-1), San Francisco, California 94105. Documents relating to this determination are also available online at
Anna Yen, EPA Region 9, Drinking Water Management Section, at the address given above; telephone number: (415) 972-3976; email address:
Background. EPA approved the State of Hawaii's original application for PWSSP primary enforcement authority which, following the public notice period, became effective on October 20, 1977 (42 FR 47244, no request for public hearing received). EPA subsequently approved and finalized revisions to the State of Hawaii's PWSSP on the following dates: May 6, 1993 (58 FR 17892); July 19, 1993 (58 FR 33442); September 29, 1993 (58 FR 45491); March 13, 1995 (60 FR 7962); May 23, 1996 (61 FR 17892); July 31, 2015 (80 FR 45656), and December 8, 2017 (82 FR 57981).
If EPA Region 9 does not receive a timely and appropriate request for a hearing and the Regional Administrator does not elect to hold a hearing on his own motion, this determination shall become final and effective on October 29, 2018, and no further public notice will be issued.
Section 1413 of the Safe Drinking Water Act, as amended, 42 U.S.C. 300g-2 (1996), and 40 CFR part 142 of the National Primary Drinking Water Regulations.
Environmental Protection Agency (EPA).
Notice.
The EPA requests public nominations of scientific experts to be considered for
Dr. Marquea D. King, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 564-3626; email address:
This action is directed to the public in general. This action may, however, be of interest to those who are or may be required to conduct testing of chemical substances and provide submissions to the EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. 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.
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The selection of scientists to serve as
FIFRA SAP members are subject to the provisions of 5 CFR part 2634—Executive Branch Financial Disclosure, Qualified Trusts, and Certificates of Divestiture, as supplemented by EPA in 5 CFR part 6401. In anticipation of this requirement, prospective candidates for service on FIFRA SAP will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks and bonds, and where applicable, sources of research support. EPA will evaluate the candidates' financial disclosure forms to assess whether there are financial conflicts of interest, appearance of a loss of impartiality, or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on FIFRA SAP. Those who are selected from the pool of prospective candidates will be asked to attend the public meetings and to participate in the discussion of key issues and assumptions at these meetings. In addition, they will be asked to review and to help finalize the meeting minutes. The list of
The Federal Insecticide, Fungicide, and Rodenticide Act, Scientific Advisory Panel (FIFRA SAP) serves as a primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix). FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. The FIFRA SAP is assisted in their reviews by ad hoc participation from members of the Food Quality Protection Act (FQPA) Science Review Board (SRB). As a scientific peer review mechanism, FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. The FIFRA SAP is not required to reach consensus in its recommendations to the Agency but consensus is a preferred outcome and possible under FACA.
At this time, EPA is seeking nominations to augment the FQPA SRB, a pool of experts who can be available to the SAP on an ad hoc basis to assist in peer reviews conducted by the Panel. EPA anticipates selecting experts from this pool, as needed, to assist the SAP in their peer review of EPA's issues related to the health and safety of pesticides.
15 U.S.C. 2625
Board of Governors of the Federal Reserve System.
Notice; request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, with revision, the Procurement Solicitation Package (FR 1400; OMB No. 7100-0180).
Comments must be submitted on or before November 27, 2018.
You may submit comments, identified by
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All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Board's public website at:
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions; including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal prior to giving final approval.
Solicitations that require the vendor to process, store, or transmit data from the Board will contain the Vendor Risk Management Offeror Questionnaire (FR 1400C). The questionnaire will be specific to the security controls surrounding the vendor's proposed application that will be used to process, store, or transmit the data. Security controls will be defined and prioritized based on the Federal Information Security Modernization Act of 2014 (FISMA) and the National Institute of Standards and Technology (NIST) Special Publication 800-53 (Security Controls and Assessment Procedures for Federal Information Systems and Organizations). In addition, for solicitations that have subcontracting opportunities and are expected to exceed $100,000 ($300,000 for construction), a non-covered company vendor is required to submit a subcontracting plan in its own format, with its proposal. Then, if the vendor is the chosen vendor and awarded a contract, the vendor is required to provide the quarterly Subcontracting Reports (FR 1400D) to the Board, which shall document the vendor's participation achievement on a cumulative basis. Information from the Subcontracting Report is used to assist the Board in fulfilling the requirement in Section 342(e) of the Dodd-Frank Act that requires the Board to submit to Congress an annual report regarding the fair inclusion of minorities and women in contracting.
The FR 1400 is authorized pursuant to sections 10 and 11 of the Federal Reserve Act (“FRA”), and section 342(c) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Sections 10(3) and 11 of the FRA (12 U.S.C. 243 and 248(l)) grant the Board full authority to manage its buildings and its staff. Section 10(4) of the FRA (12 U.S.C. 244) authorizes the Board to determine and prescribe the manner in which its obligations shall be incurred and its disbursements and expenses allowed and paid. Therefore, the Board can solicit proposals and seek the information in FR 1400 from prospective vendors.
Additionally, the FR 1400 is authorized by section 342(c) of Dodd-Frank (12 U.S.C. 5452(c)), which requires the Board to develop and implement standards and procedures for the review and evaluation of contract proposals and for hiring service providers that include a component that gives consideration to the diversity of a prospective vendor and the fair inclusion of women and minorities in the workforce of such vendor and any subcontractor.
A vendor generally may request confidential treatment for information submitted during the solicitation process, and the Board will review the request to determine if the data may be kept confidential under exemption 4 of the Freedom of Information Act, which protects from disclosure trade secrets and commercial or financial information (5 U.S.C. 552(b)(4)).
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by November 27, 2018.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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To obtain copies of a supporting statement and any related forms for the
1. Access CMS' website address at website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) is denying a request for a hearing submitted by Richard M. Fleming (Fleming) and is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) debarring Fleming for 10 years from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Fleming was convicted of two felonies under Federal law that involved fraud. Additionally, Fleming has demonstrated a pattern of conduct sufficient to find that there is reason to believe that he may violate requirements under the FD&C Act relating to drug products. In determining the appropriateness and period of Fleming's debarment, FDA considered the relevant factors listed in the FD&C Act. Fleming failed to file with the Agency information and analyses sufficient to create a basis for a hearing concerning this action.
The order is applicable September 28, 2018.
Any application for termination of debarment by Fleming under section 306(d) of the FD&C Act (application) may be submitted as follows:
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• If you want to submit an application with confidential information that you do not wish to be made available to the public, submit the application as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and ”Instructions”).
Submit written/paper submissions as follows:
•
• For a written/paper application submitted to the Dockets Management Staff, FDA will post your application, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an application with confidential information that you do not wish to be made publicly available, submit your application only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of your application. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Rachael Vieder Linowes, Office of Scientific Integrity, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4206, Silver Spring, MD 20993, 240-402-5931.
Section 306(b)(2)(B)(ii)(I) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(ii)(I)) permits FDA to debar an individual if it finds that the individual: (1) Has been convicted of a felony that involves bribery, payment of illegal gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion, falsification or destruction of records, or interference with, obstruction of an investigation into, or prosecution of, any criminal offense and (2) based on the conviction and other information, the individual has demonstrated a pattern of conduct sufficient to find that there is reason to believe that the person may violate requirements under the FD&C Act relating to drug products.
On April 24, 2009, Fleming, the president of, and sole physician at, Fleming Heart and Health Institute, P.C. (FHHI), pled guilty to one felony count of healthcare fraud, in violation of 18 U.S.C. 1347 and 2, and one felony count of mail fraud, in violation of 18 U.S.C. 1341 and 2. On August 20, 2009, the U.S. District Court for the District of Nebraska entered a judgment of conviction against Fleming on these counts and sentenced Fleming to 5 years of probation.
Fleming's convictions stemmed from two separate actions. Fleming, through his practice at FHHI, performed various imaging studies and submitted reimbursement claims to Medicare and Medicaid. Fleming pled guilty to one count of felony healthcare fraud in violation of 18 U.S.C. 1347 and 2 for conduct related to the submission of a reimbursement claim. Fleming admitted to knowingly executing and attempting to execute a scheme to defraud Medicare and Medicaid healthcare benefit programs in connection with the delivery of and payment for healthcare benefits, items, and services, namely by submitting payment claims for tomographic myocardial perfusion imaging studies that he did not actually perform. Fleming also pled guilty to one count of felony mail fraud in violation of 18 U.S.C. 1341 and 2 for conduct relating to money paid him to conduct a clinical study of a soy chip food product for the purpose of evaluating health benefits. As Fleming admitted during his guilty plea, he received approximately $35,000 for conducting a clinical trial, but he fabricated data for certain subjects.
By letter dated November 18, 2013, FDA's Office of Regulatory Affairs (ORA) notified Fleming of its proposal to debar him for 10 years from providing services in any capacity to a person having an approved or pending drug product application. The proposal explained that the proposed debarment period was based on both felony fraud convictions. ORA stated that these convictions establish Fleming's disregard for his professional obligations and the law and provide reason to believe that, if he were to provide services to a person that has an approved or pending drug application, he may violate requirements under the FD&C Act relating to drug products. Therefore, ORA found that Fleming was subject to debarment under section 306(b)(2)(B)(ii)(I) of the FD&C Act.
The proposal noted that the maximum debarment period for each offense is 5 years and that FDA may determine whether debarment periods for multiple offenses should run concurrently or consecutively. The proposal outlined findings concerning the four relevant factors that ORA considered in determining the appropriateness and period of debarment, as provided in section 306(c)(3) of the FD&C Act: (1) The nature and seriousness of any offense, (2) the nature and extent of management participation in any offense, (3) the nature and extent of voluntary steps to mitigate the impact on the public, and (4) prior convictions under the FD&C Act or other acts involving matters within FDA's jurisdiction. ORA found that the first three were unfavorable factors and that the last was a favorable factor for Fleming. The notice concluded that “the unfavorable factors cumulatively far outweigh the sole favorable factor.” Accordingly, FDA determines that debarment is appropriate, and that the 5-year period of debarment for each of the two offenses should be served consecutively, resulting in a total debarment period of 10 years.
Fleming timely responded to the proposal to debar and requested a hearing. Fleming's response included multiple documents in which he raises variations of two central arguments, namely that: (1) His guilty plea “does not state a crime” and (2) he is “actually innocent.” Fleming contends that his guilty plea was a “holographic plea” to protect his children.
Under the authority delegated to him by the Commissioner of Food and Drugs, the Director of the Office of Scientific Integrity (OSI) has considered Fleming's request for a hearing. Hearings are granted only if there is a genuine and substantial issue of fact. Hearings will not be granted on issues of policy or law, on mere allegations, denials or general descriptions of positions and contentions, or on data and information insufficient to justify the factual determination urged (see 21 CFR 12.24(b)).
OSI has considered Fleming's arguments and concludes that they are unpersuasive and fail to raise a genuine and substantial issue of fact requiring a hearing.
Fleming submitted multiple documents in support of his arguments that his guilty plea “does not state a crime” and that he is “actually innocent.” However, section 306(l) of the FD&C Act defines conviction as when a Federal or State court's judgment of conviction or when a Federal or State court's acceptance of a guilty plea. In Fleming's “Petition to Enter a Plea of Guilty,” he stated that he understood the charges against him and that he was voluntarily entering his guilty plea. The court entered a judgment of conviction after accepting Fleming's guilty plea. Federal court is the proper venue for any challenge to Fleming's guilty plea based on a claim of actual innocence, not this remedial proceeding. OSI carefully reviewed Fleming's submission in its entirety, and Fleming does not dispute that the court entered a judgment of conviction or that the court accepted his guilty plea; therefore, Fleming's arguments regarding his actual innocence fail to raise a genuine and substantial issue of fact warranting a hearing.
Under section 306(b)(2)(B)(ii)(I) of the FD&C Act, FDA has the authority to debar an individual convicted of certain Federal felonies, involving, among other things, fraud, if FDA finds that the individual has demonstrated a pattern of conduct giving reason to believe that he may violate requirements under the FD&C Act relating to drug products. The relevant factual issues are whether Fleming was, in fact, convicted of a felony involving fraud and whether there is reason to believe that he may violate requirements under the FD&C Act relating to drug products. Fleming does not dispute that he pled guilty to felony healthcare fraud and felony mail fraud or that, based on these convictions, there is reason to believe that he may violate requirements under the FD&C Act relating to drug products. Therefore, Fleming has failed to raise a genuine and substantial issue of fact warranting a hearing regarding whether he is subject to debarment.
Fleming's response included one argument that may be construed to be a challenge to ORA's proposed findings on the nature and seriousness of his offense. Fleming appears to claim that the imaging studies he performed on his patients were safer than the imaging studies he billed to Medicare and Medicaid. In the proposal to debar, in evaluating the nature and seriousness of the offenses, ORA noted that Fleming was convicted of two felonies, healthcare fraud and mail fraud. ORA considered that he billed Medicare and Medicaid for procedures other than those that he had performed, that he falsified clinical trial data, and that his actions “have the potential for causing significant loss of public confidence in the healthcare system.” Fleming's actions took place over a period of several months and demonstrated multiple instances of fraud. While Fleming contends that he performed safer imaging studies than those billed, FDA must weigh this claim against the serious nature of the fraud he committed. Construing Fleming's argument in a light most favorable to him, whether he performed safer imaging studies does not sufficiently counter the very serious nature of fraudulent conduct and is not enough to establish that a shorter debarment period would be appropriate.
Based on the factual findings in the proposal to debar and on the record, OSI finds that a 5-year debarment period for each felony offense is appropriate. The nature and seriousness of Fleming's offense, Fleming's managerial participation, and his lack of voluntary steps to mitigate the impact on the public weigh in favor of debarment. Although Fleming does not appear to have prior criminal convictions involving matters within FDA's jurisdiction, a debarment period of 5 years for each felony conviction is appropriate. As noted in the proposal to debar, the conduct underlying the offenses involved submitting claims for payment for procedures other than the procedures Fleming performed and falsifying clinical trial data, and “[t]he conduct that form[ed] the basis of [his] conviction occurred in the course of [his] profession and showed disregard for the obligations of [his] profession and the law.” Based on the pattern of fraudulent conduct, FDA has reason to believe that Fleming may violate the requirements under the FD&C Act relating to drug products. Furthermore, given that Fleming has offered no arguments challenging the proposed determination regarding the extent to which his debarment periods should run concurrently or consecutively, OSI further determines that the 5-year debarment period for each felony conviction should run consecutively, resulting in a total debarment of 10 years.
Therefore, the Director of OSI, under section 306(b)(2)(B)(i)(I) of the FD&C Act and authority delegated to him by the Commissioner of Food and Drugs, finds that: (1) Fleming has been convicted of a felony which involves bribery, payment of illegal gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion, falsification or destruction of records, or interference with, obstruction of an investigation into, or prosecution of, any criminal offense and (2) based on the conviction and other information, Fleming has demonstrated a pattern of conduct giving reason to believe that he may violate requirements under the FD&C Act relating to drug products. FDA considered the applicable factors listed in section 306(c)(3) of the FD&C Act and determined that a debarment of 10 years is appropriate.
As a result of the foregoing findings, Fleming is debarred for 10 years from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft
Submit either electronic or written comments on the draft guidance by November 27, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Joshua Silverstein, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1615, Silver Spring, MD 20993-0002, 301-796-5155; Angela DeMarco, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1611, Silver Spring, MD 20993-0002, 301-796-4471; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
On March 20, 1998, FDA issued the guidance document entitled “The New 510(k) Paradigm: Alternate Approaches to Demonstrating Substantial Equivalence in Premarket Notifications,” which established the Special 510(k) Program. By establishing the Special 510(k) Program, FDA sought to streamline review of 510(k) submissions by leveraging design control requirements. The Special 510(k) Program allows manufacturers who are intending to change their own legally marketed device to utilize risk analysis and verification and validation activities to facilitate submission, review, and clearance of the change. While FDA intends to review Special 510(k)s within 30 days, the Special 510(k) Program does not alter any statutory or regulatory requirements related to the premarket notification process under sections 510 and 513 of the FD&C Act (21 U.S.C. 360 and 360c) and 21 CFR part 807, subpart E.
To improve the efficiency of 510(k) review, FDA believes that an update to the Special 510(k) Program both clarifies existing policy and expands on device changes appropriate for the Program. This draft guidance, when finalized, will explain the updated factors FDA intends to use when considering
When finalized, this guidance will supersede the Special 510(k) policy in the 1998 guidance entitled “The New 510(k) Paradigm: Alternate Approaches to Demonstrating Substantial Equivalence in Premarket Notifications.”
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “The Special 510(k) Program.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This draft guidance refers to previously approved collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the following FDA regulations have been approved by OMB as listed in the following table:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is denying a request for a hearing submitted by John D. McCoy (McCoy) and is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) debarring McCoy for 4 years from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that McCoy was convicted of a misdemeanor under Federal law for conduct relating to the regulation of a drug product under the FD&C Act and that the conduct underlying the conviction undermines the process for the regulation of drugs. In determining the appropriateness and period of McCoy's debarment, FDA has considered the relevant factors listed in the FD&C Act. McCoy has failed to file with the Agency information and analyses sufficient to create a basis for a hearing concerning this action.
The order is applicable September 28, 2018.
Any application for termination of debarment by McCoy under section 306(d) of the FD&C Act (application) may be submitted as follows:
•
• If you want to submit an application with confidential information that you do not wish to be made available to the public, submit the application as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For a written/paper application submitted to the Dockets Management Staff, FDA will post your application, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an application with confidential information that you do not wish to be made publicly available, submit your application only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of your application. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Rachael Vieder Linowes, Office of Scientific Integrity, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4206, Silver Spring, MD 20993, 240-402-5931.
Section 306(b)(2)(B)(i)(I) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(i)(I)) permits FDA to debar an individual if it finds that: (1) The individual has been convicted of a misdemeanor under Federal law for conduct relating to the development or approval, including the process for development or approval, of a drug product or otherwise relating to the regulation of a drug product under the FD&C Act and (2) the type of conduct that served as the basis for the conviction undermines the process for the regulation of drugs.
On April 20, 2009, in the U.S. District Court for the District of Arizona, McCoy pled guilty to a misdemeanor, namely adulterating a drug while held for sale after shipment in interstate commerce in violation of sections 301(k), 303(a)(1), and 501(d) of the FD&C Act (21 U.S.C. 331(k), 333(a)(1) and 351(d)). The conduct underlying the conviction involved the adulteration of BOTOX®/BOTOX® Cosmetic (BOTOX®). BOTOX® is a biological product derived from Botulinum Toxin Type A that is manufactured by Allergan, Inc., and was approved by FDA for use on humans. Toxin Research International was an Arizona corporation that marketed and sold TRI-Toxin, a Botulinum Toxin Type A product that was neither approved nor licensed by FDA. According to the records of the criminal proceedings, McCoy, while a physician at Skinovative Laser Center, mixed FDA-approved BOTOX® with TRI-toxin, while the BOTOX® was held for sale after shipment in interstate commerce, such that the BOTOX® was adulterated under section 501(d) of the FD&C Act.
By letter dated October 24, 2011, FDA's Office of Regulatory Affairs (ORA) notified McCoy of its proposal to debar him for 4 years from providing services in any capacity to a person having an approved or pending drug product application. The proposal outlined findings concerning three relevant factors ORA considered in determining the appropriateness and period of debarment, as provided in section 306(c)(3) of the FD&C Act. ORA found that the nature and seriousness of the offense and the nature and extent of voluntary steps to mitigate the effect on the public were unfavorable factors for McCoy. The absence of prior convictions involving matters within FDA's jurisdiction was a favorable factor. ORA concluded, “Weighing all the factors, particularly the nature and seriousness of the conduct underlying your conviction, the Agency has determined that the unfavorable factors outweigh the favorable factors, and therefore warrant the imposition of a four year permissible debarment in this case.”
In a letter dated November 23, 2011, through counsel, McCoy requested a hearing on the proposal. In his hearing request, McCoy argues that there are disputed issues of material fact that FDA must consider, under section 306(c)(3) of the FD&C Act, in determining the appropriateness and period of debarment. McCoy also indicated that additional information justifying the hearing would be forthcoming. More than 60 days have passed from the date McCoy received ORA's letter, and McCoy has not filed any additional information.
Under the authority delegated to him by the Commissioner of Food and Drugs, the Director of the Office of Scientific Integrity (OSI) has considered McCoy's request for a hearing. Hearings are granted only if there is a genuine and substantial issue of fact. Hearings will not be granted on issues of policy or law, on mere allegations, denials or general descriptions of positions and contentions, or on data and information insufficient to justify the factual determination urged (see § 12.24(b) (21 CFR 12.24(b))).
OSI has considered McCoy's arguments and concludes that they are unpersuasive and fail to raise a genuine and substantial issue of fact requiring a hearing.
In his hearing request, McCoy first contends that there are disputed issues of material fact with respect to whether he voluntarily acted to mitigate the impact of his offense on the public (see section 306(c)(3)(C) of the FD&C Act). ORA found no evidence that McCoy took any voluntary steps to mitigate the impact on the public. McCoy has not provided any specific allegations or evidence supporting his general assertion that the facts underlying ORA's findings are in dispute. Although McCoy indicated that he would submit additional information supporting his hearing request, he has not done so. Under § 12.24(b)(2), a hearing will not be granted on the basis of mere allegations or denials or general descriptions of positions and contentions. McCoy's bare assertion that there are disputed issues of fact with respect to that consideration fails to create a genuine and substantial issue of fact that warrants a hearing. Upon similar reasoning, McCoy's claim that the disputed issues of fact are not limited to those raised in his hearing request also falls far short of justifying a hearing.
Finally, McCoy contends that there are disputed issues of material fact with respect to whether, under section 306(c)(3)(D) of the FD&C Act, the extent to which changes in ownership, management, or operations has corrected the causes of any offense involved and provide reasonable assurances that the offense will not
Based on the factual findings in the proposal to debar and on the record, OSI finds that a 4-year debarment is appropriate. Although McCoy has no previous criminal convictions related to matters within the jurisdiction of FDA, this sole positive factor does not counterbalance the nature and seriousness of his offense and lack of voluntary steps taken to mitigate the effect on the public. As noted in the proposal to debar, McCoy's actions occurred on a repeated basis, and “[his] conduct created a risk of injury to [his] patients . . ., undermined the Agency's oversight of an approved drug product, and seriously undermined the integrity of the Agency's regulation of drug products.”
Therefore, the Director of OSI, under section 306(b)(2)(B)(i)(I) of the FD&C Act and under authority delegated to him by the Commissioner of Food and Drugs, finds that: (1) McCoy has been convicted of a misdemeanor under Federal law for conduct relating to the development or approval, including the process for development or approval, of a drug product or otherwise relating to the regulation of a drug product under the FD&C Act and (2) the conduct which served as the basis for the conviction undermines the process for the regulation of drugs. FDA has considered the applicable factors listed in section 306(c)(3) of the FD&C Act and determined that a debarment of 4 years is appropriate.
As a result of the foregoing findings, McCoy is debarred for 4 years from providing services in any capacity to a person with an approved or pending drug product application under section 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Vaccines and Related Biological Products Advisory Committee (VRBPAC). The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. At least one portion of the meeting will be closed to the public.
The meeting will be held on November 8, 2018, from 11 a.m. to 2:45 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
For those unable to attend in person, the meeting will also be webcast and will be available at the following link:
Serina Hunter-Thomas, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 6338, Silver Spring, MD 20993-0002, 240-402-5771,
We believe that public discussion of these recommendations on individual scientists would constitute an unwarranted invasion of personal privacy.
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
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 Serina Hunter-Thomas at least 7 days in advance of the meeting.
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).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is withdrawing approval of 24 abbreviated new drug applications (ANDAs) from multiple applicants. The applicants notified the Agency in writing that the drug products were no longer marketed and requested that the approval of the applications be withdrawn.
Approval is withdrawn as of October 29, 2018.
Trang Tran, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 1671, Silver Spring, MD 20993-0002, 240-402-7945,
The applicants listed in the table have informed FDA that these drug products are no longer marketed and have requested that FDA withdraw approval of the applications under the process described in § 314.150(c) (21 CFR 314.150(c)). The applicants have also, by their requests, waived their opportunity for a hearing. Withdrawal of approval of an application or abbreviated application under § 314.150(c) is without prejudice to refiling.
Therefore, approval of the applications listed in the table, and all amendments and supplements thereto, is hereby withdrawn as of October 29, 2018. Introduction or delivery for introduction into interstate commerce of products without approved new drug applications violates section 301(a) and (d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331(a) and (d)). Drug products that are listed in the table that are in inventory on October 29, 2018 may continue to be dispensed until the inventories have been depleted or the drug products have reached their expiration dates or otherwise become violative, whichever occurs first.
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA or we) invites comments on the labeling of plant-based products with names that include the names of dairy foods such as “milk,” “cultured milk,” “yogurt,” and “cheese.” We are interested in learning how consumers use these plant-based products and how they understand terms such as, for example, “milk” or “yogurt” when included in the names of plant-based products. We also are interested in learning whether consumers are aware of and understand differences between the basic nature, characteristics, ingredients, and nutritional content of plant-based products and their dairy counterparts. We are taking this action to inform our development of an approach to the labeling of plant-based products that consumers may substitute for dairy foods.
Submit either electronic or written comments on this document by November 27, 2018.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 27, 2018. The
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.” We will review this copy, including the claimed confidential information, in our 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
Mabel Lee, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2371.
Over the past several years, there has been an emergence and expansion of plant-based products labeled with names that include the names of dairy foods such as “milk” (
We are interested in learning how consumers use these plant-based products and how they understand terms such as, for example, “milk” or “yogurt” when included in the labeling of plant-based products. We are interested in learning whether consumers are aware of and understand the basic nature, essential characteristics, characterizing ingredients, and nutritional differences between plant-based products and dairy foods.
The Federal Food, Drug, and Cosmetic Act (FD&C Act) provides for two general categories of food: Standardized food and nonstandardized food. (See sections 401 and 403(g), (h), and (i) of the FD&C Act (21 U.S.C. 341 and 343(g), (h), and (i)).) Both standardized foods and nonstandardized foods are generally named by their common or usual names. When a food is standardized, the standard is promulgated in a regulation under the common or usual name of the food under section 401 of the FD&C Act. The common or usual name of the food must be declared on the principal display panel of the label when the food is in package form. (See § 101.3(b)(1) (21 CFR 101.3(b)(1).) Foods that are not standardized are also required to bear the common or usual name of the food on their labels when such a name exists (section 403(i)(1) of the FD&C Act and § 101.3(b)(2)). The common or usual name of a food is the name by which it is known to the American public and is generally established by common usage (§ 102.5(d) (21 CFR 102.5(d)).
However, in certain instances where the common or usual name of a nonstandardized food is found to be misleading or to cause confusion,
Our authority to establish food standards is set forth in section 401 of the FD&C Act, which provides, in part, that to promote honesty and fair dealing in the interest of consumers we can promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, or reasonable standards of fill of container.
Under section 403(g) of the FD&C Act, a food is misbranded if it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulation, unless it conforms to such definition and standard. Misbranded food is prohibited from introduction or delivery for introduction into interstate commerce (section 301(a) of the FD&C Act) (21 U.S.C. 331(a))). The factors considered
Standards of identity are established for milk and cream in 21 CFR part 131, subpart B. Each of these standards requires the use of milk or ingredients derived from milk (
Milk is a standardized food and is described in § 131.110(a) (21 CFR 131.110(a)), in part, as the lacteal secretion, practically free of colostrum, obtained by the complete milking of one or more healthy cows. Generally, milk serves as a dietary source of protein, calcium, vitamin A, and potassium. The standard of identity permits optional fortification with vitamins A and D to increase nutrient content (§ 131.110(b)). The common or usual name of food that purports to be or is represented as milk and conforms to the standard of identity is “milk.”
Cultured milk is a standardized food and is produced by culturing cream, milk, partially skimmed milk, and/or skim milk with characterizing microbial organisms (§ 131.112(a) and (c) (21 CFR 131.112(a) and (c))). The standard of identity permits optional fortification with vitamins A and D to increase nutrient content (§ 131.112(b)). The common or usual name of a food that purports to be or is represented as cultured milk and conforms to the standard of identity is “cultured milk.” However, the name of the food may be accompanied by a declaration such as the traditional name of the food or the generic name of the organisms used, thereby indicating the presence of the characterizing microbial organisms or ingredients,
Yogurt is a standardized food produced by culturing cream, milk, partially skimmed milk, and/or skim milk with a characterizing bacterial culture (§ 131.200(a) (21 CFR 131.200(a))). The common or usual name of a food that purports to be or is represented as yogurt and conforms to the standard of identity is “yogurt.” Lowfat yogurt and nonfat yogurt are also standardized foods produced by culturing cream, milk, partially skimmed milk, and/or skim milk with a characterizing bacterial culture (§ 131.203(a) and § 131.206(a) (21 CFR 131.203(a) and 131.206(a))); their common or usual names are “lowfat yogurt” and “nonfat yogurt,” respectively. We note that certain provisions of the standards of identity for yogurt, lowfat yogurt, and nonfat yogurt have been stayed (47 FR 41519, September 21, 1982). We also note that, in the
Standards of identity are established for cheeses and related cheese products in 21 CFR part 133, subpart B. Each of these standards requires the use of milk or ingredients derived from milk (
Standardized foods that have been modified in accordance with a nutrient content claim defined by regulation (
Plant-based products that resemble dairy foods, such as milk, cultured milk, yogurt, and cheese do not have standards of identity, and therefore are nonstandardized foods. Thus, these foods are subject to section 403(i)(1) of the FD&C Act and their labels must bear the common or usual name of the food.
We invite comment, particularly data and other evidence, about: (A) The current market conditions and labeling costs of plant-based products; (B) consumer understanding, perception, purchase, and consumption of plant-based products, particularly those manufactured to resemble dairy foods such as, for example, milk, cultured milk, yogurt, and cheese; (C) consumer understanding regarding the basic nature, characteristics, and properties of these plant-based products; (D) consumer understanding of the nutritional content of plant-based products and dairy foods and the effect, if any, on consumer purchases and use; and (E) the role of plant-based products and dairy foods in meeting the recommendations in the Dietary Guidelines (Ref. 1). Specifically, we are interested in responses to the following questions. In responding to these questions, please identify the question by its associated letter and number (such as “B.1”) so that we can easily associate your response with a specific question.
1. How many different types of plant-based products that are manufactured to resemble dairy foods such as, for example, milk, cultured milk, yogurt, and cheese, are on the market? Please provide any data or evidence to support your answer.
2. What percentage of each subclass (
3. What are the costs associated with label changes? How often are labels revised?
4. How are plant-based products displayed in stores? For example, are they sold in grocery stores next to or mixed with their dairy counterparts or are they sold in areas of the store that are separate or distinct from the areas where their dairy counterparts are sold? Does the packaging or display of these plant-based products affect consumers' perception or expectation about the nutritional properties or performance of these products?
1. Why do consumers purchase and consume these types of plant-based products? How do they use these products? Specifically, do consumers purchase these plant-based products for use as substitutes for their dairy counterparts, or do consumers purchase these plant-based products for distinct uses? If consumers use these plant-based products as substitutes for dairy foods (for example plant-based beverages as alternatives to milk), what are their reasons? Do consumers think they are healthier, and if so, why? Are consumers purchasing these plant-based products because they may be allergic to dairy or are lactose-intolerant? Are consumers purchasing these plant-based products for reasons related to their personal consumption habits, such as a vegan diet? If consumers do not use these plant-based products as substitutes for dairy foods, what are their reasons for choosing these products? (For example, do these products provide unique taste, flavor, or texture?) Does consumer purchasing behavior differ if the consumer is purchasing the product for himself/herself as opposed to purchasing the product for a family member? Please provide any data or evidence to support your answer.
2. Do consumers perceive these plant-based products to be more nutritious, as nutritious, or less nutritious than their dairy counterparts? If consumers perceive these plant-based products to be more nutritious or as nutritious as their dairy counterparts, to what extent does this affect their decision to buy plant-based products? Please provide any data or evidence to support your answer.
3. Do consumers perceive or expect these plant-based products to perform in the same manner as their dairy counterparts? For example, milk can be an ingredient in preparing other foods. Do consumers expect plant-based beverage products to perform in the same manner as milk when preparing other foods or in recipes that use milk? Please provide any data or evidence to support your answer.
4. How do consumers perceive or understand labeling of these plant-based products? For example, do consumers perceive the labeling as suggesting that these plant-based products are equivalent to or can be substituted for their dairy counterparts? Do consumers perceive the labeling as suggesting that plant-based products are different or distinct from their dairy counterparts? Please provide any data or evidence to support your answer.
5. We are aware that some plant-based beverage manufacturers use the term “milk” as part of the name of these foods while other manufacturers use terms such as “beverage” or “drink” as part of the name of these foods. Do consumers perceive plant-based beverages to be different if the term “milk” is used instead of “beverage” or “drink”? For example, how do consumers perceive or understand “soy milk” in comparison to “soy-based beverage” or “soy drink”? Please provide any data or evidence to support your answer.
1. What do consumers believe to be the basic nature, characteristics, or properties of plant-based products manufactured to resemble dairy foods such as, for example, milk, cultured milk, yogurt, and cheese? Is consumer understanding of the basic nature of plant-based products influenced by inclusion of terms such as milk, cultured milk, yogurt, and cheese in the names in the labeling of these products? Do consumers expect plant-based products labeled with such names to have physical characteristics, performance characteristics, or properties of their dairy counterparts? If so, in what ways? Please provide any data or evidence to support your answer.
2. What do consumers believe are the main ingredients of plant-based products? What do consumers understand/think about the different protein sources being used to make these plant-based products? Do they understand that some of these plant-based products contain proteins from more than one plant source (
3. What is consumers' understanding of the amount or proportion of plant-based ingredient(s) relative to other ingredients in plant-based products? Are consumers aware that other ingredients (
4. Do these plant-based products vary in ingredients, even when manufactured using the same type of plant source (
1. Dairy foods, such as milk, cultured milk, yogurt, and cheese, may differ in nutritional content compared to plant-based products manufactured to resemble these dairy foods. What nutrients, if any, do consumers believe to be provided from dairy foods such as milk, cultured milk, yogurt, and cheese? What nutrients, if any, do consumers believe to be in plant-based products that resemble dairy foods, such as milk, cultured milk, yogurt, and cheese? Do consumers expect certain nutrients to be present in both plant-based products and their dairy counterparts, and, if so, what nutrients do they expect? Do these expectations change depending on the terms included in the names of plant-based products,
2. Do parents and caregivers who purchase these plant-based products for young children or other family members
3. Do these plant-based products vary in nutrient composition, even when manufactured using the same type of plant ingredients (
4. We are aware that the United States Department of Agriculture's National Nutrient Database for Standard Reference (USDA Nutrient Database) provides information about the nutritional content of dairy foods as well as some plant-based products that resemble dairy foods (Ref. 2). However, we believe the USDA Nutrient Database may not be a full representation of all the varieties of dairy foods, including milk, cultured milk, yogurt, cheese, and of the plant-based products manufactured to resemble these dairy foods, currently in the United States marketplace. We are interested in any data regarding the nutritional profiles of different dairy foods, such as, for example, milk, modified milk, cultured milk, yogurt, and cheese products, and any data regarding the nutritional profiles of the various plant-based products that resemble dairy foods, including fortified versions of those plant-based products. We are particularly interested in obtaining data that compares the amounts of protein, calcium, vitamin D, and potassium in these plant-based products and their dairy counterparts.
5. How do the protein qualities of plant-based products compare to their dairy counterparts? How does the variation, if any, impact consumer perception, and purchasing and consumption decisions? Please provide any data or evidence to support your answer.
The Dietary Guidelines contain nutritional and dietary information and guidelines for the public. The Dietary Guidelines are based on the preponderance of current scientific and medical knowledge and are intended to help individuals ages 2 years and older consume a healthy, nutritionally adequate diet. As part of these recommendations, the Dietary Guidelines refer to several “food groups,” including a “dairy group,” which includes fortified soy beverages. [
The Dietary Guidelines state that healthy eating patterns in the dairy group include fat-free and low-fat (1 percent) dairy, including milk, yogurt, cheese, or fortified soy beverages (see Ref. 1 at page 23). The Dietary Guidelines explain that soy beverages fortified with calcium, vitamin A, and vitamin D, are included as part of the dairy group because they are similar to fortified low- and non-fat milk based on nutrient composition and in their use in meals. The Dietary Guidelines also state that other plant-based beverages sold as “milks” (such as almond, rice, coconut, and hemp “milks”) are not included as part of the dairy group because their overall nutritional content is not similar to that of milk and fortified soy beverages (id.).
According to the Dietary Guidelines, the key nutrient contributions in the dairy group include calcium, phosphorus, vitamin A, vitamin D (in products fortified with vitamin D), riboflavin, vitamin B12, protein, potassium, zinc, choline, magnesium, and selenium (id.).
1. Do consumers understand that certain plant-based products might have a nutritional content that is not adequate to place them in the dairy group as described in the Dietary Guidelines? How does this influence their purchasing behavior with respect to plant-based products and dairy foods? Please provide any data or evidence to support your answer.
2. Do consumers who purchase or consume plant-based products instead of dairy foods, such as yogurt or cheese, believe that these plant-based products meet the dairy group recommendation described in the Dietary Guidelines? Please provide any data or evidence to support your answer.
The following references are on display at the Dockets Management Staff (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a list of information collections that have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
The following is a list of FDA information collections recently approved by OMB under section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The OMB control number and expiration date of OMB approval for
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by October 29, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Since May 29, 1992, when FDA issued a policy statement on foods derived from new plant varieties, including those varieties that are developed through biotechnology, we have encouraged developers of new plant varieties to consult with us early in the development process to discuss possible scientific and regulatory issues that might arise (57 FR 22984).
The guidance, entitled “Recommendations for the Early Food Safety Evaluation of New Non-Pesticidal Proteins Produced by New Plant Varieties Intended for Food Use,” (available at
We believe that any food safety concern related to such material entering the food supply would be limited to the potential that a new protein in food from the plant variety could cause an allergic reaction in susceptible individuals or could be a toxin. The guidance describes the recommended procedures for early food safety evaluation of new proteins produced by new plant varieties, including bioengineered food plants, and the procedures for communicating with us about the safety evaluation.
Interested persons may use Form FDA 3666 to transmit their submission to the Office of Food Additive Safety in the Center for Food Safety and Applied Nutrition. Form FDA 3666 is entitled, “Early Food Safety Evaluation of a New Non-Pesticidal Protein Produced by a New Plant Variety (New Protein Consultation),” (
In the
We therefore estimate the burden for the information collection as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate. The estimated number of annual responses and average burden per response are based on our experience with early food safety evaluations. Completing an early food safety evaluation for a new protein from a new plant variety is a one-time burden (one evaluation per new protein). Many developers of novel plants may choose not to submit an evaluation because the field testing of a plant containing a new protein is conducted in such a way (
We estimate the annual number of NPCs submitted by developers will be six or fewer. The early food safety evaluation for new proteins includes six main data components. Four of these data components are easily and quickly obtainable, having to do with the identity and source of the protein. We estimate that completing these data components will take about 4 hours per NPC. We estimate the reporting burden for the first four data components to be 24 hours (4 hours × 6 responses).
Two data components ask for original data to be generated. One data component consists of a bioinformatics analysis which can be performed using publicly available databases. The other data component involves “wet” lab work to assess the new protein's stability and the resistance of the protein to enzymatic degradation using appropriate in vitro assays (protein digestibility study). The paperwork burden of these two data components consists of the time it takes the company to assemble the information on these two data components and include it in an NPC. We estimate that completing these data components will take about 16 hours per NPC. We estimate the reporting burden for the two other data components to be 96 hours (16 hours × 6 responses). Thus, we estimate the total annual hour burden for this collection of information to be 120 hours.
National Institutes of Health, HHS.
Notice.
The National Cancer Institute, an institute of the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an Exclusive Patent License to practice the inventions embodied in the Patents and Patent Applications listed in the
Only written comments and/or applications for a license which are received by the National Cancer Institute's Technology Transfer Center on or before October 15, 2018 will be considered.
Requests for copies of the patent applications, inquiries, and comments relating to the contemplated Exclusive Patent License should be directed to: Andrew Burke, Senior Technology Transfer Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, Rm. 1E530, MSC 9702, Bethesda, MD 20892-9702 (for business mail), Rockville, MD 20850-9702; Telephone: (240) 276-5484; Facsimile: (240) 276-5504; Email:
1. U.S. Provisional Patent Application 62/084,654, filed November 26, 2014 (E-028-2015-0-US-01);
2. International Patent Application PCT/US2015/062269, filed November 24, 2015 (E-028-2015-1-PCT-01);
3. Australian Patent Application 2015353720, filed May 18, 2017 (E-028-2015-1-AU-02);
4. Canadian Patent Application 2968399, filed May 18, 2017 (E-028-2015-1-CA-03);
5. Chinese Patent Application 201580070673.7, filed June 23, 2017 (E-028-2015-1-CN-04);
6. European Patent Application 15807756.0 filed June 23, 2017 (E-028-2015-1-EP-05);
7. Israeli Patent Application 252258, filed May 14, 2017 (E-028-2015-1-IL-06);
8. Japanese Patent Application 527874/2017, filed May 24, 2017 (E-028-2015-1-JP-07);
9. Korean Patent Application 2017-7017289, filed June 23, 2017 (E-028-2015-1-KR-08);
10. Mexican Patent Application MX/a/2017/006865, filed May 25, 2017 (E-028-2015-1-MX-09);
11. New Zealand Patent Application 732045, filed May 18, 2017 (E-028-2015-1-NZ-10);
12. Saudi Arabian Patent Application 517381608, filed May 25, 2017 (E-028-2015-1-SA-11);
13. Singapore Patent Application 11201704155U, filed May 23, 2017 (E-028-2015-1-SG-12);
14. United States Utility Patent Application 15/528,813, filed May 23, 2017 (E-028-2015-1-US-13); and
15. Hong Kong Patent Application 18103250.9, filed March 7, 2018 (E-028-2015-1-HK-14).
1. U.S. Provisional Patent Application 62/171,321, filed June 5, 2015 (E-180-2015-0-US-01).
1. U.S. Provisional Patent Application 62/218,688, filed September 15, 2015 (E-265-2015-0-US-01);
2. International Patent Application PCT/US2016/050875, filed September 9, 2016 (E-265-2015-0-PCT-02);
3. Australian Patent Application 2016323017, filed March 6, 2018 (E-265-2015-0-AU-03);
4. Canadian Patent Application 2998869, filed March 15, 2018 (E-265-2015-0-CA-04);
5. Chinese Patent Application 201680058891.3, filed April 3, 2018 (E-265-2015-0-CN-05);
6. European Patent Application 16770408.9 filed March 7, 2018 (E-265-2015-0-EP-06);
7. Israeli Patent Application 257840, filed March 4, 2018 (E-265-2018-0-IL-07);
8. Japanese Patent Application 513423/2018, filed March 13, 2018 (E-265-2015-0-JP-08);
9. Korean Patent Application 2018-7010326, filed April 12, 2018 (E-265-2015-0-KR-09);
10. Mexican Patent Application MX/a/2018/003062, filed March 12, 2018 (E-265-2015-0-MX-10);
11. New Zealand Patent Application 740714, filed March 14, 2018 (E-265-2015-0-NZ-11);
12. Saudi Arabian Patent Application 518391109, filed March 13, 2018 (E-265-2015-0-SA-12);
13. Singapore Patent Application 11201802069U, filed March 13, 2018 (E-265-2015-0-SG-13); and
14. United States Utility Patent Application 15/758,954, filed March 9, 2018 (E-265-2015-0-US-14).
1. U.S. Provisional Patent Application 62/369,883, filed August 2, 2016 (E-175-2016-0-US-01); and
2. International Patent Application PCT/US2017/044615, filed July 31, 2017 (E-175-2016-0-PCT-02).
1. U.S. Provisional Patent Application 62/560,930, filed September 20, 2017 (E-181-2017-0-US-01).
1. U.S. Provisional Patent Application 62/594,244, filed December 4, 2017 (E-239-2017-0-US-01).
1. U.S. Provisional Patent Application 62/565,383, filed September 29, 2017 (E-237-2017-0-US-01).
1. U.S. Provisional Patent Application 62/565,464, filed September 29, 2017 (E-237-2017-1-US-01).
The patent rights in these inventions have been assigned and/or exclusively licensed to the government of the United States of America.
The prospective exclusive license territory may be worldwide, and the fields of use may be limited to the following:
“Development, manufacture and commercialization of autologous, peripheral blood T cell therapy products engineered by CRISPR to express T cell receptors reactive to mutated KRAS, as claimed in the Licensed Patent Rights, for the treatment of human cancers. Specifically excluded from this field of use are retrovirally-engineered peripheral blood T cell therapy products for the treatment of human cancers.
Development, manufacture and commercialization of companion diagnostics approved or cleared by the FDA or equivalent foreign regulatory agency for Licensee-proprietary T cell therapy products.”
“Development, manufacture and commercialization of autologous, peripheral blood T cell therapy products engineered by CRISPR to express T cell receptors reactive to mutated p53, as claimed in the Licensed Patent Rights, for the treatment of cancer in humans.
Development, manufacture and commercialization of companion diagnostics approved or cleared by the FDA or equivalent foreign regulatory agency for Licensee-proprietary T cell therapy products.”
“Development, manufacture and commercialization of autologous, tumor infiltrating lymphocyte-based adoptive T cell therapy products reactive to mutated p53, isolated as claimed in the Licensed Patent Rights, for the treatment of human cancers. Specifically excluded from this field of use are genetically engineered TIL cell therapy products for the treatment of human cancers.
Development, manufacture and commercialization of companion diagnostics approved or cleared by the FDA or equivalent foreign regulatory agency for Licensee-proprietary T cell therapy products.”
Intellectual Property Group A is primarily directed to isolated T cell receptors (TCRs) reactive to mutated Kirsten rat sarcoma viral oncogene homolog (KRAS), within the context of several human leukocyte antigens (HLAs). Mutated KRAS, which plays a well-defined driver role in oncogenesis, is expressed by a variety of human cancers, including: Pancreatic, lung, endometrial, ovarian and prostate. Due to its restricted expression in precancerous and cancerous cells, this antigen may be targeted on mutant KRAS-expressing tumors with minimal normal tissue toxicity.
Intellectual Property Group B is primarily directed to isolated TCRs reactive to mutated tumor protein 53 (TP53 or P53), within the context of several HLAs.
Intellectual Property Group C is primarily directed to methods of isolating T cells which are reactive to mutated P53 antigens. Briefly, pools of 25-mer peptides covering known P53 “hotspot” mutations have been generated. These peptides may be pulsed into autologous antigen
This Notice is made in accordance with 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license will be royalty bearing, and the prospective exclusive license may be granted unless within fifteen (15) days from the date of this published Notice, the National Cancer Institute receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
In response to this Notice, the public may file comments or objections. Comments and objections, other than those in the form of a license application, will not be treated confidentially, and may be made publicly available.
License applications submitted in response to this Notice will be presumed to contain business confidential information and any release of information from these license applications will be made only as required and upon a request under the Freedom of Information Act, 5 U.S.C. 552.
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 of the NHLBI Special Emphasis Panel.
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 Genome Research Review Committee.
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 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.
National Institutes of Health, HHS.
Notice.
The National Institutes of Health (NIH) announces the persons who will serve on the National Institutes of Health's Senior Executive Service 2018 Performance Review Board.
For further information about the NIH Performance Review Board, contact Mr. Kha Nguyen, Director, Division of Senior and Scientific Executive Management, Office of Human Resources, National Institutes of Health, Building 2, Room 5W07, Bethesda, Maryland 20892, telephone 301-451-3231 (not a toll-free number), email
This action is being taken in accordance with Title 5, U.S.C., Section 4314 (c) (4), which requires that members of performance review boards be appointed in a manner to ensure consistency, stability, and objectivity in performance appraisals and requires that notice of the appointment of an individual to serve as a member be published in the
The following persons will serve on the NIH Performance Review Board, which oversees the evaluation of performance appraisals of NIH Senior Executive Service (SES) members:
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 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 Cancer Institute, 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 52b(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.
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.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Nebraska (FEMA-4387-DR), dated August 27, 2018, and related determinations.
The declaration was issued August 27, 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 27, 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 Nebraska resulting from severe storms, tornadoes, straight-line winds, and flooding during the period of June 17 to July 1, 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, Constance C. Johnson-Cage, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Nebraska have been designated as adversely affected by this major disaster:
Cedar, Colfax, Cuming, Dakota, Dixon, Harlan, Logan, Thomas, Thurston, and Wayne Counties for Public Assistance.
All areas within the State of Nebraska are eligible for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of January 3, 2019 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Minnesota (FEMA-4390-DR), dated September 5, 2018, and related determinations.
The declaration was issued September 5, 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 September 5, 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 Minnesota resulting from severe storms, tornadoes, straight-line winds, and flooding during the period of June 15 to July 11, 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, Steven W. Johnson, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Minnesota have been designated as adversely affected by this major disaster:
Aitkin, Beltrami, Blue Earth, Brown, Carlton, Cass, Clearwater, Cottonwood, Faribault, Itasca, Jackson, Koochiching, Lake, Lyon, Martin, Murray, Nicollet, Nobles, Pine, Pipestone, Polk, Redwood, Renville, Rock, St. Louis, Sibley, and Watonwan Counties, as well as the Leech Lake Band of Ojibwe, Red Lake Nation, and White Earth Nation for Public Assistance.
All areas within the State of Minnesota 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 (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The date of November 16, 2018 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Transportation Security Administration, DHS.
60-Day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0058, abstracted below that we will submit to OMB for an extension in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The information collection activity provides a means to gather qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery.
Send your comments by November 27, 2018.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Consistent with the requirements of Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, and E.O. 13777, Enforcing the Regulatory Reform Agenda, TSA is also requesting comments on the extent to which this request for information could be modified to reduce the burden on respondents.
From the TSA perspective, qualitative customer and stakeholder feedback provides useful insights on perceptions and opinions. Unlike the results of statistical surveys, which yield quantitative results that can be generalized to the population of study, this qualitative feedback provides insights into customer or stakeholder perceptions, experiences, and expectations regarding TSA products or services. Such feedback also provides TSA with an early warning of issues with service, and focuses attention on areas where improvement is needed regarding communication, training, or changes in operations that might improve delivery of products or services. These collections allow for ongoing, collaborative, and actionable communications between the Agency and its customers and stakeholders. They also allow feedback to contribute directly to the improvement of program management. The solicitation of feedback targets areas such as: timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses are assessed to plan and inform efforts to improve or maintain the quality of service offered by TSA. If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable.
The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary.
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government.
• The collections are noncontroversial and do not raise issues of concern to other Federal agencies.
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future.
• Personally identifiable information (PII) is collected only to the extent necessary and is not retained.
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, or other matters that are commonly considered private.
The aggregate burden estimate is based on a review of past behavior of participating program offices and several individual office estimates. The likely respondents to this proposed information request are State, local, or tribal government and law enforcement; traveling public; individuals and households; and businesses and organizations. TSA estimates an average of 10 annual surveys with approximately 94,100 responses total. TSA further estimates a frequency of one response per request with an average response time of 10 to 30 minutes resulting in an estimated annual hour burden of 13,317 hours. TSA will provide more refined individual estimates of burden in its subsequent generic information collection applications.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration
(USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until November 27, 2018.
All submissions received must include the OMB Control Number 1615-0116 in the body of the letter, the agency name and Docket ID USCIS-2010-0008. To avoid duplicate submissions, please use only
(1)
(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW,
USCIS is permitted by regulations to waive certain fees provided the party requesting the benefit is unable to pay the prescribed fee. The proposed revision would reduce the evidence required for Form I-912 to only a person's household income and no longer require proof of whether or not an individual receives a means-tested benefit. USCIS policy since 2011 has been to permit a fee waiver where an applicant received a means-tested benefit, even for a short period of time. USCIS has found that the various income levels used in states to grant a means-tested benefit result in inconsistent income levels being used to determine eligibility for a fee waiver. Therefore, the revised form will not permit a fee waiver based on receipt of a means- tested benefit, but will retain the poverty-guideline threshold and financial hardship criteria. If USCIS decides to proceed with the form revision after considering public comments, USCIS will rescind Policy Memorandum, PM-602-0011.1,
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(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,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing to revise an existing information collection.
Interested persons are invited to submit comments on or before November 27, 2018.
Send your comments on the information collection request (ICR) by mail to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or by email to
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the Service; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Service enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Service minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to the Office of Management and Budget (OMB) to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We use the following forms to collect information from qualified rural residents for subsistence harvest:
(1) FWS Form 3-2326, “Federal Subsistence Hunt Application, Permit, and Report.”
(2) FWS Form 3-2327, “Designated Hunter Permit Application, Permit, and Report.”
(3) FWS Form 3-2328, “Federal Subsistence Fishing Application, Permit, and Report.”
(4) FWS Form 3-2378, “Designated Fishing Permit Application, Permit, and Report.”
(5) FWS Form 3-2379, “Federal Subsistence Customary Trade Recordkeeping Form.”
We use the information collected to evaluate:
• Eligibility of applicant.
• Subsistence harvest success.
• Effectiveness of season lengths, harvest quotas, and harvest restrictions.
• Hunting patterns and practices.
• Hunter use.
Three forms are used in the recruitment and selection of members for regional advisory councils:
(1) FWS Form 3-2321, “Federal Subsistence Regional Advisory Council Membership Application/Nomination.”
(2) FWS Form 3-2322, “Regional Advisory Council Candidate Interview.”
(3) FWS Form 3-2323, “Regional Advisory Council Reference/Key Contact Interview.”
The member selection process begins with the information that we collect on the application. Ten interagency review panels interview all applicants and nominees, their references, and regional key contacts. These contacts are based on the information that the applicant provides on the application form. The information that we collect through the application form and subsequent interviews is the basis of the Federal Subsistence Board's recommendations to the Secretaries of the Interior and Agriculture for appointment and reappointment of council members.
A fourth form is being proposed for incumbent members, this would be a shorter form simply asking if there are any updates to previously submitted information.
The Federal Subsistence Board uses the harvest data, along with other information, to set future season dates and harvest limits for Federal subsistence resource users. These seasons and harvest limits are set to meet the needs of subsistence users without adversely impacting the health of existing animal populations.
In addition to the above forms, regulations at 50 CFR part 100 and 36 CFR part 242 contain requirements for the collection of information. We collect nonform information on:
(1) Repeal of Federal subsistence rules and regulations (50 CFR 100.14 and 36 CFR 242.14).
(2) Proposed changes to Federal subsistence regulations (50 CFR 100.18 and 36 CFR 242.18).
(3) Special action requests (50 CFR 100.19 and 36 CFR 242.19).
(4) Requests for reconsideration (50 CFR 100.20 and 36 CFR 242.20).
(5) Requests for permits and reports, such as traditional religious/cultural/educational permits, fishwheel permits, fyke net permits, and under-ice permits (50 CFR 100.25-27 and 36 CFR 242.25-27).
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior; Forest Service, USDA.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended, the Bureau of Land Management (BLM) and the U.S. Department of Agriculture, Forest Service (USFS) Caribou-Targhee National Forest (CTNF), have prepared a Draft Environmental Impact Statement (EIS) for the proposed East Smoky Panel Mine Project (Project), and by this Notice announce the opening of the public comment period.
To ensure consideration, the Agencies must receive written comments on the East Smoky Panel Mine Project Draft EIS no later than 90 days after the Environmental Protection Agency publishes its notice of availability of the Draft EIS in the
You may submit comments related to the Project Draft EIS by any of the following methods:
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Please reference “East Smoky Panel Mine Draft EIS” on all correspondence. CD-ROM and print copies of the East Smoky Panel Mine Draft EIS are available in the BLM Pocatello Field Office at the following address: 4350 Cliffs Drive, Pocatello, ID 83204. In addition, an electronic copy of the Draft EIS is available online at:
Kyle Free, BLM Pocatello Field Office, 4350 Cliffs Drive, Pocatello, ID 83204; phone 208-478-6352; email:
The BLM, as the Federal lease administrator, is the lead agency, and the USFS is the co-lead agency. The Idaho Department of Environmental Quality, Idaho Department of Lands, and Idaho Governor's Office of Energy and Mineral Resources are cooperating agencies. J.R. Simplot Company has submitted a proposed lease modification and Mine and Reclamation Plan (M&RP) for agency review for the East Smoky Panel leases (IDI-015259, IDI-26843, and IDI-012890) at the Smoky Canyon Phosphate Mine in Caribou County, Idaho. Existing Smoky Canyon mining and milling operations were authorized in 1982 by a mine plan approval issued by the BLM and Special Use Authorizations (SUAs) issued by the USFS for off-lease activities, supported by the Smoky Canyon Mine Final EIS and Record of Decision (ROD). Mining operations began in Panel A in 1984 and have continued ever since, with the mining of Panels A through G. The
The Proposed Action would consist of mining the East Smoky Panel as outlined in the Draft EIS. The Draft EIS fully evaluates Alternatives to the Proposed Action, including a No Action Alternative, and addresses issues identified during scoping.
The BLM and USFS will make separate but coordinated decisions related to the proposed Project. The BLM will either approve, approve with modifications, or deny the M&RP; and recommend whether to modify lease IDI-015259. In addition, the BLM will decide whether to approve a modification to the existing B-Panel Mine Plan. The BLM will base its decisions on public and agency input on the Draft EIS, the Final EIS, and any recommendations the USFS may have regarding surface management of leased National Forest System lands. The USFS will make recommendations to the BLM concerning surface management and mitigation on leased lands within the CTNF and will issue decisions on SUAs for off-lease activities. SUAs from the USFS would be necessary for any off-lease disturbances/structures located within the CTNF and associated with the Project. A Forest Plan amendment by the USFS would also be necessary as outlined in the Draft EIS.
On April 3, 2015, the
To facilitate understanding and comments on the Draft EIS, the BLM has planned public meetings for Afton, Wyoming, and Pocatello, Idaho. Meetings will be open-house style, with displays explaining the Project and a forum for commenting on the Project. The BLM will announce dates, times, and locations of the public scoping meetings in mailings and local media at least 15 days in advance.
Stakeholders, interested parties and members of the public should submit written and electronic comments regarding the Draft EIS no later than 90 days after the Environmental Protection Agency publishes its notice of availability of the Draft EIS in the
Before including your phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
42 U.S.C. 4321
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On August 8, 2018, Dexstar Wheel, Elkhart, Indiana, filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of subsidized imports of steel trailer wheels from China and LTFV imports of steel trailer wheels from China. Accordingly, effective August 8, 2018, the Commission, pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-609 and antidumping duty investigation No. 731-TA-1421 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on September 24, 2018. The views of the Commission are contained in USITC Publication 4830 (October 2018), entitled
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted this review on July 3, 2017 (82 FR 30898) and determined on October 6, 2017 that it would conduct a full review (82 FR 48527, October 18, 2017). Notice of the scheduling of the Commission's review and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made this determination pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determination in this review on September 24, 2018. The views of the Commission are contained in USITC Publication 4824 (September 2018), entitled
By order of the Commission.
Criminal Justice Information Services Division, Federal Bureau of Investigation, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until November 27, 2018.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306 (telephone: 304-625-4320) or email
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the final decision to expand the scope of recognition for FM Approvals, LLC (FM), as a NRTL to include twenty six additional test standards. In addition, OSHA announces the addition of four test standards to the NRTL Program's List of Appropriate Test Standards.
The expansion of the scope of recognition becomes applicable on September 28, 2018.
Information regarding this notice is available from the following sources:
OSHA hereby gives notice of the expansion of the scope of recognition of FM Approvals, LLC, as a NRTL. FM's expansion covers the addition of 24 test standards to its scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified by 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification of the products.
The agency processes applications by a NRTL for initial recognition, or for expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
FM submitted an application, dated July 15, 2016, (OSHA-2007-0041-0008) to expand its recognition to include 28 additional test standards. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. In reviewing the application, OSHA determined that three of the requested standards had been withdrawn by the controlling standards development organization; therefore, OSHA cannot add those three standards to FM's NRTL scope of recognition. Additionally, one of the requested standards, ISA 60079-26, has been superseded by UL 60079-26, which was also included in FM's expansion application. Accordingly, OSHA will add the active standard, not the superseded one, and OSHA will grant recognition to 24 standards in the final expansion. OSHA did not perform any on-site reviews in relation to this application.
OSHA published the preliminary notice announcing FM's expansion application in the
To obtain or review copies of all public documents pertaining to FM's application, go to
OSHA staff examined FM's expansion application, capability to meet the requirements of the test standards, and other pertinent information. Based on a review of this evidence, OSHA finds that FM meets the requirements of 29 CFR 1910.7 for expansion of recognition, subject to the specified limitation and conditions listed below. OSHA, therefore, is proceeding with this final notice to grant FM's scope of recognition. OSHA limits the expansion of FM's recognition to testing and certification of products for demonstration of conformance to the test standards listed below in Table 1.
In this notice, OSHA also announces the addition of four new test standards to the NRTL Program's List of Appropriate Test Standards. Table 2, below, lists the test standards that are new to the NRTL Program. OSHA has determined that these test standards are appropriate test standards and will include them in the NRTL Program's List of Appropriate Test Standards.
OSHA's recognition of any NRTL for a particular test standard is limited to equipment or materials for which OSHA standards require third-party testing and certification before using them in the workplace. Consequently, if a test standard also covers any products for which OSHA does not require such testing and certification, a NRTL's scope of recognition does not include these products.
The American National Standards Institute (ANSI) may approve the test standards listed above as American National Standards. However, for convenience, the use of the designation of the standards developing organization for the standard as opposed to the ANSI designation may occur. Under the NRTL Program's policy (see OSHA Instruction CPL 1-0.3, Appendix C, paragraph XIV), any NRTL recognized for a particular test standard may use either the proprietary version of the test standard or the ANSI version of that standard. Contact ANSI to determine whether a test standard is currently ANSI-approved.
In addition to those conditions already required by 29 CFR 1910.7, FM must abide by the following conditions of the recognition:
1. FM must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as a NRTL, and provide details of the change(s);
2. FM must meet all the terms of recognition and comply with all OSHA policies pertaining to this recognition; and
3. FM must continue to meet the requirements for recognition, including all previously published conditions on FM's scope of recognition, in all areas for which it has recognition.
Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the scope of recognition of FM, subject to the limitation and conditions specified above.
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the final decision to expand the scope of recognition for Underwriters Laboratories, Inc., (UL) as a NRTL to include 26 additional test standards. In addition, OSHA announces the addition of 22 test standards to the NRTL Program's List of Appropriate Test Standards.
The expansion of the scope of recognition becomes applicable on September 28, 2018.
Information regarding this notice is available from the following sources:
OSHA hereby gives notice of the expansion of the scope of recognition of Underwriters Laboratories, Inc., as a NRTL. UL's expansion covers the addition of 26 test standards to its scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified by 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification of the products.
The agency processes applications by a NRTL for initial recognition, or for expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires the Agency publish two notices in the
UL submitted an application, dated May 31, 2017, (OSHA-2009-0025-0020) to expand its recognition to include 26 additional test standards. This application was updated on November 1, 2017, (OSHA-2009-0025-0021) to include an additional standard, for a total of 27 standards. OSHA determined that one of the standards requested in UL's application, UL 2703, “Standard for Mounting System, Mounting Devices, Clamping/Retention Devices, and Ground Lugs for Use with Flat-Plate Photovoltaic Modules and Panels,” does not meet the requirements for an appropriate test standard in 29 CFR 1910.7; indeed, this standard is not included on the NRTL Program's List of Appropriate Test Standards. The types of products covered by UL 2703 do not fit into any of the categories covered by OSHA's NRTL Program. Specifically, the standard covers mechanical products, while OSHA's NRTL Program addresses mainly electrical end products. Accordingly, OSHA declines to add UL 2703 to the NRTL Program's List of Appropriate Test Standards and rejects UL's application to add the standard to its scope of recognition. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
OSHA published the preliminary notice announcing UL's expansion application in the
To obtain or review copies of all public documents pertaining to UL's application, go to
OSHA staff examined UL's expansion application, capability to meet the requirements of the test standards, and other pertinent information. Based on a review of this evidence, OSHA finds that UL meets the requirements of 29 CFR 1910.7 for expansion of its recognition, subject to the specified limitation and conditions listed below. OSHA, therefore, is proceeding with this final notice to grant UL's scope of recognition. OSHA limits the expansion of UL's recognition to testing and certification of products for demonstration of conformance to the test standards listed, below in Table 1.
In this notice, OSHA also announces the addition of 22 new test standards to the NRTL Program's List of Appropriate Test Standards. Table 2, below, lists the test standards that are new to the NRTL Program. OSHA has determined that these test standards are appropriate test standards and will include them in the NRTL Program's List of Appropriate Test Standards.
OSHA's recognition of any NRTL for a particular test standard is limited to equipment or materials for which OSHA standards require third-party testing and certification before use in the workplace. Consequently, if a test standard also covers any products for which OSHA does not require such testing and certification, a NRTL's scope of recognition does not include these products.
The American National Standards Institute (ANSI) may approve the test standards listed above as American National Standards. However, for convenience, the use of the designation of the standards-developing organization for the standard as opposed to the ANSI designation may occur. Under the NRTL Program's policy (see OSHA Instruction CPL 1-0.3, Appendix C, paragraph XIV), any NRTL recognized for a particular test standard may use either the proprietary version of the test standard or the ANSI version of that standard. Contact ANSI to determine whether a test standard is currently ANSI-approved.
In addition to those conditions already required by 29 CFR 1910.7, UL must abide by the following conditions of the recognition:
1. UL must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as a NRTL, and provide details of the change(s);
2. UL must meet all the terms of its recognition and comply with all OSHA policies pertaining to this recognition; and
3. UL must continue to meet the requirements for recognition, including all previously published conditions on UL's scope of recognition, in all areas for which it has recognition.
Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the scope of recognition of UL, subject to the limitation and conditions specified above.
Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Heliophysics Advisory Committee (HPAC). This Committee functions in an advisory capacity to the Director, Heliophysics Division, in the NASA Science Mission Directorate. The meeting will be held for the purpose of soliciting, from the science community and other persons, scientific and technical information relevant to program planning.
Monday, October 22, 2018, 2:00 p.m.-4:00 p.m.; Tuesday, October 23, 2018, 1:00 p.m.-2:30 p.m., Eastern Time.
This meeting will take place telephonically and via WebEx. Any interested person must use a touch-tone phone to participate in this meeting. Any interested person may call the USA toll free number 1-888-809-8966, or toll number 1-210-234-8402, passcode 2100562 followed by the # sign to participate in this meeting by telephone on both days. The WebEx link is
Ms. KarShelia Henderson, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355, fax (202) 358-2779, or
The agenda for the meeting includes the following topic:
• Heliophysics Program Annual Performance Review According to the
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Credit Union Administration (NCUA).
Notice.
The National Credit Union Administration (NCUA) will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice.
Comments should be received on or before October 29, 2018 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of this information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for NCUA, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by contacting Dawn Wolfgang at (703) 548-2279, emailing
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on September 25, 2018.
National Science Foundation.
Notice of permit modification request.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated under the Antarctic Conservation Act of 1978. This is the required notice of a requested permit modification.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by October 29, 2018. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314.
Nature McGinn, ACA Permit Officer, at the above address, 703-292-8030, or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
A recent modification to this permit, dated November 22, 2017, permitted coastal camping activities in select locations and resupply of fresh food to the Quixote Expeditions vessel as part of fly/cruise operations.
Now the permit holder proposes a modification to the permit to add a second vessel to support Quixote Expeditions activities, to conduct ship-to-ship fuel transfers, to release comminuted food waste (excepting poultry) at sea, and to operate a remotely piloted aircraft for educational and commercial purposes. In addition to the sailboat, Ocean Tramp, Quixote Expeditions would operate the motor vessel, Hans Hansson, in the Antarctic Peninsula region. The Hans Hansson would carry four or five crew members and up to 12 passengers. The vessel is capable of carrying up to 54,000 liters of diesel fuel in internal tanks; 500 liters of gasoline in a closed tank; four, 11 kg bottles of propane; and two liters of white gas in bottles. The permit holder proposes to conduct fuel transfers from the Hans Hansson to the Ocean Tramp, should it become necessary. Any such fuel transfers would follow precise fuel transfer procedures, with a shipboard oil pollution emergency plan kit readily available, and with no other concurrent activities happening. The permit holder proposes to release food waste, except poultry products, that has been reduced to small particles or ground into the sea at least 12 nautical miles from land. Quixote Expeditions would continue to hold all poultry waste, including eggs and eggshells, onboard for eventual disposal north of 60 degrees South or once in port outside Antarctica. The permit holder proposes to operate a small, battery-operated remotely piloted aircraft system (RPAS) consisting, in part, of a quadcopter equipped with a camera to collect commercial and educational footage of the Antarctic, as well as for ice reconnaissance. The quadcopter would not be flown over concentrations of birds or mammals, or over Antarctic Specially Protected Areas or Historic Sites and Monuments. The RPAS would only be operated by experienced pilots (≤20 hours). Several measures would be taken to prevent against loss of the quadcopter including a highly visible paint color; only operating when the wind is less than 15 knots; operating for only to within 70% of battery life; having prop guards on propeller tips; using a flotation device if operated over water; having an observer on the lookout for wildlife, people, and other hazards; and ensuring that the separation between the operator and quadcopter does not exceed visual contact. The applicant is seeking a Waste Permit to cover any accidental releases that may result from operating the RPAS.
National Science Foundation.
Notice of permits issued.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nature McGinn, ACA Permit Officer, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314; 703-292-8030; email:
On August 16, 2018, the National Science Foundation published a notice in the
Nuclear Regulatory Commission.
Standard review plan-draft section revision; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on proposed updates to NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition” (or SRP). The staff is proposing changes to a select number of sections of SRP Chapter 2 taking into account some of the lessons-learned from the flooding hazard re-evaluations performed by the operating power reactor fleet. Specific changes are being proposed to Section 2.4.6, “Tsunami Hazards”; Section 2.4.9, “Channel Migration or Diversion”; and Section 2.3.3, “Onsite Meteorological Measurements Program”.
Comments must be filed no later than October 29, 2018. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Mark D. Notich, Office of New Reactors, telephone: 301-415-3053; email:
Please refer to Docket ID NRC-2018-0176 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-2018-0176 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.
In connection with the current update to the SRP hydrology chapter, the staff is proposing to place greater emphasis on reviewing the flood-causing mechanism (or mechanisms) consequential to defining the site characteristic for flooding. Consistent with the Commission's policy approach to risk-informed regulation, the updates the staff is proposing will support a simplified review by staff of flood-causing mechanisms determined to not pose a threat to the safe operation of a nuclear power plant. The staff proposes making additional revisions to some of the remaining SRP sections in Chapters 2.3 and 2.4 in the next fiscal year. The scope of these revisions and a timetable for updates would be discussed at a public meeting later this calendar year. In addition, the staff is looking to apply the type of risk-informed approach used in the SRP Sections 2.3 and 2.4 in other SRP sections in the future. Additional meetings will be scheduled in FY19 to discuss specific revisions to the remaining SRP sections in Chapters 2.3, 2.4, and/or other SRP sections. The current update cycle for NRC's SRP Chapter 2.4 on hydrology coincides with the NRC staff's recent completion of its reviews of section 50.54(f) of title 10 of the
In its March 12, 2012, 10 CFR 50.54(f) letter to operating reactor licensees
The staff is now proposing changes to Chapter 2.4 of the SRP taking into account some of the lessons-learned from the 10 CFR 50.54(f) flooding reevaluation reviews as well as the ESP/COL reviews. For example, where simplified analytical (manual) solutions were performed decades ago and prior to the widespread availability of digital computers, licensees are now relying on more-detailed numerical models to perform these very same calculations. It was also learned that licensees made extensive use of geo-spatial databases in connection with those computer simulations. Through these efforts, many of the licensees submitted flood inundation maps for the first time comparing the elevations of the power plant site and as-built structures with the water surface elevations produced by the respective flood-causing mechanisms.
Another key lesson-learned was that a majority of the sites had multiple re-evaluated flooding hazards in excess of the design basis previously used in licensing. In particular, the majority of the exceedances were associated with LIP, which was a flooding hazard not generally evaluated as part of the original design basis for several of the operating-reactor sites. Previously, it was assumed that the consequences of LIP would be addressed by a combination of site grading and some type of storm water management system integrated into the site's drainage design. In many cases it was found that earlier design decisions underestimated the effects of LIP and associated drainage on structures, systems, and components (SSCs) important to safety. Consequently, the staff intends to propose that one of the current SRP chapters be repurposed (SRP Section 2.4.2—“Floods”) to specifically focus on evaluating the effects of LIP and associated site drainage.
In the past the Commission has adopted the concept of the “probable maximum event” when estimating the design bases for nuclear power plants. The probable maximum event, which is determined by accounting for the physical limits of a natural phenomenon, is considered to be the most severe event reasonably (physically) possible at the location of interest and is thought to exceed the severity of all historically-observed events. The concept of “probable maximum event” is consistent with General Design Criterion (GDC) 2 of Appendix A (“
The Commission's reactor siting criteria at 10 CFR 100.20(c)(3) calls for the estimation of the “. . . maximum probable flood [PMF] . . . using historical data.” Floods (or flooding), corresponding to the hypothetical PMF, is thus one of the
The focus of the hydrology reviews in Chapter 2.4 has always been to review and assess applications for the potential flood elevations at the site for the purposes of designing SSCs important to safety. Having reviewed the various flood-causing mechanisms listed in Chapter 2.4, applicants for new power reactors have historically selected the flood-causing mechanism (or mechanisms) consequential to defining the flood elevation site characteristic. The results of that decision-making by the applicant were documented in the Safety Analysis Report (SAR). In many cases, the SAR documentation would be extensive, irrespective of whether the flooding hazard in question was consequential to defining the site characteristic flood. The staff observed that licensees still adhered to this practice in their responses to the staff's recent 10 CFR 50.54(f) flood reevaluation request.
In connection with the current update to the SRP hydrology chapter, the staff has decided to place greater emphasis in its SER on reviewing the flood-causing mechanism (or mechanisms) consequential to defining the site characteristic for flooding. In August 1995, the Commission issued a
In identifying consequential flooding, the staff would review and assess flood inundation and topographic maps for those consequential flood-causing mechanisms, if available. The staff's review would focus primarily on the flood-causing mechanism (or mechanisms) found to be consequential for the purposes of defining the site characteristic flood elevations. Similarly, the detailed discussion contained in the SER would focus primarily on those identified consequential flood-causing mechanisms, including LIP. With this change in emphasis, the SER discussions for those inconsequential flood-causing mechanisms would not need to be fully developed because they are not relevant to defining the site characteristic flood elevations. The only exception to this proposal is LIP. As mentioned above, LIP occurs at all reactor sites, and in many cases was found to exceed the current design basis as part of the recent 10 CFR 50.54(f) flood reevaluation request.
There are several areas for which the staff seeks public comment on the generic changes now being proposed to Chapter 2.4 of the SRP. To determine the bounding flood causing mechanism consequential to defining the site characteristic flood, the staff will review and assess which flood-causing mechanisms are physically plausible and capable of inundating SSCs important to safety at the site. For some sites, based on the physical geography, certain flood-causing mechanisms may be eliminated from consideration by virtue of being located at inland locations well away from large bodies of water such as an ocean or large lake. Such sites would not be expected to be threatened by the effects of storm surge or tsunamis of marine origin. Still other sites might be located in Mediterranean or Subtropical climatic settings for which average daily temperatures do not drop below the freezing point of water and thus may not be susceptible to ice effects. Lastly, some sites might be located adjacent to large inland lakes or the open coast for which there is an absence of rivers or streams; such sites can be expected to be free from flooding due to riverine-based events. Hence, the need for water surface elevation estimates within the reactor powerblock due to these flooding mechanisms would be obviated. However, there could be a scenario in which a proposed reactor site might be vulnerable to flooding by multiple scenarios; for example, a site located in a watershed occupied by multiple upstream dams of different impoundment volumes and distances from the reactor site. The timing and sequencing of the failure of any of these dams could result in significantly different inundation depths at the site in question. As a result, all potential flooding scenarios need to be examined and considered in detail to calculate the site's inundation map, associated effects, and flood event duration for those consequential (bounding) flood-causing mechanisms.
As illustrated by the examples described above, the staff's proposed detailed review of the hydrology portion of the application would focus primarily only on those flood-causing mechanisms, including LIP, which could result in consequential flooding at a reactor site. Under such an approach, the staff may also need to review multiple scenarios for the same flood-causing mechanism to determine which scenario is the bounding flooding event. The staff intends to review and assess inundation maps to assure that they are prepared consistent with Federal standards for inundation mapping, such as the Federal Emergency Management Agency (FEMA) Publication 64-P, entitled “Federal Guidelines for Dam Safety: Emergency Action Planning for Dams”
The staff also proposes to expand the flood hazard PMF definition to include associated flooding effects and the flood event duration and reduce the use of terms in the respective SRP chapters such as “maximum,” “probable maximum,” and “PMF” when referring to flood-causing mechanisms and instead refer to consequential and non-consequential flood-causing mechanisms. As part of staff's recent 10 CFR 50.54(f) flood reevaluation, staff noted the terms “maximum,” or “probable maximum,” could be misinterpreted since these terms refer to deterministic methodologies that are not frequency based. In addition, staff continues to pursue probabilistic flood hazard analysis (PFHA) methodologies, and removal of staff's discussion of maximum flood elevation is aligned with this pursuit.
The term “safety-related SSCs” is being replaced with the term “SSCs important to safety” to better track with the definition of that phrase currently found in Appendix A to 10 CFR part 50 of the Commission's regulations.
The staff is also proposing to introduce a glossary of some standard flooding terms to avoid confusion between applicants and the NRC staff when communicating on certain flooding concepts. A tentative list of those concepts and their definitions is included as an appendix to this document. Some of these definitions have been previously published by the Nuclear Energy Institute (NEI) and used by the NRC staff with the recent 10 CFR 50.54(f) flood reevaluation. Included in the list of terms is a proposed definition for “consequential flooding.” Public comment on these concepts and definitions is welcomed as the staff intends to propose that they will be added to an update of SRP Section 2.4.1 (“Hydrologic Description”) at a later date.
Lastly, other generic changes proposed to SRP Chapter 2.4 include technical editing, as appropriate, to improve the readability of the various SRP sections as well as to better convey lessons-learned from the recent 10 CFR 50.54(f) flooding reviews. For example, among the lessons-learned was the need to re-organize and update the “References” Section (Section VI) to the respective SRP sections.
The staff plans on making additional revisions to the remaining SRP sections in Chapter 2.4 next fiscal year (FY19) based on the lessons-learned from the 10 CFR 50.54(f) and ESP/COL flooding reviews. The scope of these future revisions is consistent with the generic revisions described above (
Following publication of the 1995 PRA
SECY-98-144 also noted that the Commission's regulations requirements that are either prescriptive or
Risk-informed, performance-based approaches are becoming more widespread in regulatory decision-making owing to improved methods, models, and approaches. Probabilistic seismic hazard analysis is just one example that has been in use in regulatory applications since the early 1980s. As the staff prepares updates to Chapter 2.4 of the SRP in FY19, the staff intends to seek stakeholder views on review methods and acceptance criteria that might be appropriate for implementation in the context of probabilistic flood hazard analyses for nuclear power plants. Later in FY19, the staff will issue a second
In light of the new review philosophy envisioned for future license applications (as described above), the staff seeks public comment on other specific revisions proposed in the following SRP chapters. Electronic copies of these SRP chapters are available through the NRC's Agencywide Documents Access and Management System (ADAMS), at
A revision to SRP Section 2.3.3 (“Onsite Meteorological Measurement Programs”) is also being proposed that captures lessons-learned from the staff's review of DC, ESP, and COL applications received during the previous decade.
Changes to SRP Section 2.3.3 were made to update the text with editorial and clarifying statements, including utilizing consistent terminology within this SRP section and within planned updates to the other SRP Chapter 2.3 sections. For example, the term “atmospheric diffusion” was replaced with “atmospheric dispersion” because atmospheric dispersion is generally recognized as having two components: Transport and diffusion. The term “atmospheric stability class” was also replaced with “atmospheric stability” due to the recognition that newer atmospheric dispersion models may be using direct measurements of atmospheric turbulence instead of classifying atmospheric stability into seven district classes as is currently discussed in Regulatory Guide 1.23, Revision 1.
The staff plans on making additional revisions to some of the remaining SRP sections in Chapter 2.3 in the next fiscal year.
The staff intends to conduct a public meeting later this calendar year to discuss the changes being proposed to SRP Chapters 2.3 and 2.4. The timing and location of that public meeting will be announced in the
In addition to the lessons-learned from the section 50.54(f) reviews, the changes proposed to SRP Chapter 2 also reflect the current staff reviews, methods, and practices based on lessons-learned from the NRC's reviews of design certification and combined license applications completed since the last revision of this chapter.
Following NRC staff evaluation of public comments, the NRC intends to finalize SRP Sections 2.4.6, 2.4.9, and 2.3.3 in ADAMS and post it on the NRC's public website at
Issuance of this draft SRP section, if finalized, would not constitute backfitting as defined in 10 CFR 50.109, (the Backfit Rule) or otherwise be inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations.
The SRP provides internal guidance to the NRC staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
The NRC staff does not intend to impose or apply the positions described in the draft SRP to existing (already issued) licenses and regulatory approvals. Hence, the issuance of a final SRP, even if considered guidance within the purview of the issue finality provisions in 10 CFR part 52, would not need to be evaluated as if it were a backfit or as being inconsistent with issue finality provisions. If, in the future, the NRC staff seeks to impose a position in the SRP on holders of already issued licenses in a manner that does not provide issue finality as described in the applicable issue finality provision, then the staff must make the showing as set forth in the Backfit Rule or address the criteria for avoiding issue finality as described in the applicable issue finality provision.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed below—were intended to apply to every NRC action that substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
The documents identified in the following table are available to interested persons through the following methods, as indicated.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Structural Analysis will hold a meeting on October 3, 2018, at 11545 Rockville Pike, Room T-2B1, Rockville, Maryland 20852.
The meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will review the Nuclear Regulatory Commission (NRC) Office of Nuclear Regulatory Research report NUREG/CR-7237, “Correlation of Seismic Performance in Similar SSCs (Structures, Systems, and
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Girija Shukla (Telephone 301-415-5844 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC website at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland. After registering with Security, please contact Mr. Theron Brown (Telephone 301-415-6702 or 301-415-8066) to be escorted to the meeting room.
Nuclear Regulatory Commission.
Standard review plan-draft section revision; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on draft NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition,” Section 2.5.3, “Surface Deformation.” SRP Section 2.5.3, Surface Deformation, was last updated in 2014. This proposed update to the SRP focuses on risk-informing the staff's review in this area on the potential for tectonic or non-tectonic surface deformation that could adversely affect the safe operation of a nuclear power plant at the proposed site.
Comments must be filed no later than October 29, 2018. Comments received after this date will be considered, if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Mark D. Notich, Office of New Reactors, telephone: 301-415-3053; email:
Please refer to Docket ID NRC-2018-0178 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC-2018-0178 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
In the area of geology, seismology, and geotechnical engineering, section 100.23(c) of title 10 of the
Since the last update to SRP Section 2.5.3 in 2014, the staff completed review of licensee submittals of reevaluated seismic hazards in response to 10 CFR 50.54(f) information requests that were sent to licensees after the near-term task force review of the Fukushima Dai-ichi accident (ADAMS Accession No. ML12056A046). In addition to reviewing the hazard reevaluations for the operating reactor fleet submitted in response to the 10 CFR 50.54(f) information requests, the NRC staff remained actively engaged in several ESP and COL application reviews for new power reactors. In connection with those reviews, ESP and COL applicants evaluated the potential for tectonic and non-tectonic surface deformation consistent with the guidance found in the SRP. One of the lessons-learned from the 10 CFR 50.54(f) information reviews and the reviews for new power reactors was that a risk-informed focus on hazards most likely to affect a site would be appropriate for the consideration of the potential for tectonic and non-tectonic surface deformation at a site.
Consistent with the Commission's approach to risk-informed regulation, the staff proposes that SRP Section 2.5.3 be simplified to focus the review on the potential for tectonic and non-tectonic surface deformation that could adversely affect the safe operation of a nuclear power plant at the proposed site.
Since the 2014 update to SRP Section 2.5.3, the staff completed the review of licensee submittals of reevaluated seismic hazards in response to the 10 CFR 50.54(f) information request regarding the Fukushima Dai-ichi nuclear power plant accident in 2011. A risk-informed focus was successfully used for the 10 CFR 50.54(f) flooding reviews and allowed licensees to focus the reevaluation on those hazards that are most likely to impact the site and adversely affect SSCs important to safety. Using this approach, licensees provided a brief explanation of why a particular hazard does not affect the site and a more detailed evaluation for those hazards that could adversely affect the safe operation of the plant. Due to its success, this risk-informed approach is being incorporated into various sections of the SRP.
Upon review of the various causes of surface deformation described in SRP Section 2.5.3, the staff proposes that only the mechanisms that could adversely affect the functionality of the SSCs important to safety need to be described in detail in future license applications. Applicants would still be expected to perform their due diligence and consider the potential for tectonic and non-tectonic surface deformation identified in SRP Section 2.5.3 against the applicable siting criteria in 10 CFR part 100, but the staff proposes that the applicant's level of detail be focused on the potential for tectonic and non-tectonic surface deformation most likely to impact the site and adversely affect SSCs important to safety.
Changes to SRP Section 2.5.3 include technical editing, as appropriate, to improve the readability of the various SRP subsections as well as to better convey lessons-learned from the recent 10 CFR 50.54(f) reviews. The term “safety-related SSCs” is replaced with the term “SSCs important to safety” to better align with the regulatory terminology in 10 CFR parts 50 and 54. The references in SRP Section 2.5.3 were also updated, deleted or added, as appropriate.
Technical changes to SRP Section 2.5.3 include the addition of anthropogenic activities as a possible cause of non-tectonic surface deformation and the aforementioned focused review of those causes of surface deformation that could adversely affect the safe operation of a nuclear power plant at the proposed site. Similar to the 2014 update to SRP 2.5.3, the risk-informed approach to the 2018 update focuses on the distinction between the different types of surface deformation, primarily tectonic and non-tectonic deformation. Surface deformation includes non-tectonic deformation due to dissolution, salt diapirism, and anthropogenic activities, such as mine collapse. The addition of anthropogenic activities as a potential source of non-tectonic surface deformation is in keeping with recognized mechanisms of non-tectonic deformation that could potentially affect a proposed nuclear power plant site. The acceptance review section was also revised to reflect the changes made to the Office of New Reactors' (NRO) office instruction related to acceptance reviews.
The NRC seeks public comment on the proposed draft section revision of SRP Section 2.5.3. The changes to SRP Chapter 2 reflect the current staff reviews, methods, and practices based on lessons learned from the NRC's reviews of design certification and combined license applications completed since the last revision of this chapter. The draft SRP section would also provide guidance for reviewing an application for a combined license under 10 CFR part 52.
Following NRC staff evaluation of public comments, the NRC intends to finalize SRP Section 2.5.3 in ADAMS and post it on the NRC's public website at
Issuance of this draft SRP section, if finalized, would not constitute backfitting as defined in 10 CFR 50.109, (the Backfit Rule) or otherwise be inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations.
1.
The SRP provides guidance to the NRC staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in guidance intended for use by only the staff are not matters that constitute backfitting as that term is defined in 10 CFR 50.109(a)(1) or involve the issue finality provisions of 10 CFR part 52.
2.
Applicants and potential applicants are not, with certain exceptions, the subject of either the Backfit Rule or any
The exceptions to the general principle are applicable whenever a 10 CFR part 50 operating license applicant references a construction permit or a 10 CFR part 52 combined license applicant references a license (
The NRC staff does not currently intend to impose the positions represented in this draft SRP section in a manner that constitutes backfitting or is inconsistent with any issue finality provision of 10 CFR part 52. If in the future the NRC staff seeks to impose positions stated in this draft SRP section in a manner that would constitute backfitting or be inconsistent with these issue finality provisions, the NRC staff must make the showing as set forth in the Backfit Rule or address the regulatory criteria set forth in the applicable issue finality provision, as applicable, that would allow the staff to impose the position.
3.
The NRC staff does not intend to impose or apply the positions described in this draft SRP section to existing (already issued) licenses (
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently filed Postal Service request proposing modifications to its market dominant service performance measurement systems. This document informs the public of this proceeding and the technical conference, 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.
On September 20, 2018, the Postal Service filed a notice, pursuant to 39 CFR 3055.5, proposing modifications to its market dominant service performance measurement systems.
The Postal Service's proposed modifications focus on accurately describing procedures in regard to “Non-Airlift Days.” These are typically days before a non-Monday holiday where air transportation is limited on the day of mail induction (the day before the holiday) or the following day (the day of the holiday). Notice at 1. The Postal Service proposes to modify its service performance measurement plan for mailpieces that are dropped at a collection box, business mail chute, or Post Office location on a Non-Airlift Day to start-the-clock on measurement on the date of the following applicable acceptance day.
Other proposed modifications focus on correcting areas of the service performance measurement plan to reflect current operations. These include removing references to certain parcels products that were recently moved from the market dominant to the competitive category, a product name change, and other applicable updates.
Interested persons are invited to comment on any or all aspects of the Postal Service's proposed modifications concerning the service performance measurement systems. Comments are due October 12, 2018. The Commission does not anticipate the need for reply comments at this time. The Commission intends to evaluate the comments received and use those suggestions to help carry out its service performance measurement responsibilities under the Postal Accountability and Enhancement Act. Material filed in this docket will be available for review on the Commission's website,
1. Docket No. PI2018-2 is established for the purpose of considering the Postal Service's proposed modifications to its market dominant service performance measurement systems.
2. Interested persons may submit written comments on any or all aspects of the Postal Service's proposals no later than October 12, 2018.
3. Lyudmila Y. Bzhilyanskaya is designated to represent the interests of the general public in this docket.
4. The Secretary shall arrange for publication of this Notice in the
By the Commission.
On June 26, 2018, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On August 14, 2018, pursuant to Section 19(b)(2) of the Act,
The Trust is registered under the Investment Company Act of 1940 (“1940 Act”).
The Fund intends to change its investment strategy such that the Shares would no longer qualify for generic listing on the Exchange. Specifically, the Fund's portfolio would continue to satisfy all of the generic listing requirements except that:
• The Fund, through its Subsidiary,
• the Fund and the Subsidiary would be able to invest in the securities of non-exchange-traded open-end investment companies (
According to the Exchange, GBTC is a private, open-ended trust available to accredited investors that derives its value from the price of bitcoin.
The Exchange represents that the investments in securities of non-exchange-traded open-end investment companies will not be principal investments of the Fund. These investments, which may include mutual funds that invest, for example, principally in fixed income securities, would be utilized to help the Fund meet its investment objective and to equitize cash in the short term. According to the Exchange, such securities have a net asset value based on the value of securities and financial assets the investment company holds.
The Commission is instituting proceedings pursuant to Section
Pursuant to Section 19(b)(2)(B) of the Act,
According to the Exchange, the Fund, through its Subsidiary, may invest up to 15% of its total assets in OTC shares of GBTC. In addition, the Exchange represents that the liquid market in the shares of GBTC alleviates valuation concerns, and that the substantial and sustained trading volume in shares of GBTC would help to limit any adverse effect on the Fund's arbitrage mechanism. What are commenters' views on the Exchange's assertions that the liquid market in the shares of GBTC alleviates valuation and arbitrage concerns? What are commenters' views on whether any premium or discount in the market price of GBTC compared to the value of its portfolio assets would affect valuation and arbitrage concerns? What are commenters' views, generally, on whether exposure to spot bitcoin markets through investment in GBTC would render the Shares of the Fund susceptible to manipulation?
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by October 19, 2018. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by November 2, 2018. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice,
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 31, 2018, New York Stock Exchange LLC (“NYSE”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to rename the “Extended Trading Hours” to “Global Trading Hours” in its rules and Fees Schedule.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to reflect in the Exchange's rulebook and Fees Schedule, a non-substantive branding change with respect to the Exchange's “Extended Trading Hours” session.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed change is a non-substantive change and does not impact the governance, ownership or operations of the Exchange. The Exchange believes that by ensuring that its rules and Fees Schedule reflect the new branding name for the Extended Trading Hours session, the proposed rule change would reduce potential investor or market participant confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change does not address competitive issues, but rather is concerned solely with updating the Exchange's rules and Fees Schedule to reflect the abovementioned name change.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 2.875 percent for the October-December quarter of FY 2019.
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of an Economic Injury Disaster Loan (EIDL) declaration for the State of Florida, dated 09/04/2018.
Issued on 09/20/2018.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of an Economic Injury declaration for the State of FLORIDA dated 09/04/2018, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
By virtue of the authority vested in me as Secretary of State pursuant to section 7041(a)(1) of the Department of State, Foreign Operations, and Related
This determination shall be published in the
By virtue of the authority vested in me as Secretary of State pursuant to section 7041(a)(3)(B) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2017 (Div. J, Pub. L. 115-31) (the “Act”), I hereby determine that it is important to the national security interest of the United States to waive the certification requirement under section 7041(a)(3)(A) of the Act. I hereby waive that requirement.
This determination shall be published in the
This notice announces a meeting of the Department of State's International Telecommunication Advisory Committee (ITAC). The ITAC will meet on October 17, 2018, at AT&T, 1120, 20th Street NW, Washington DC at 2:00 p.m. to review the results of recent multilateral meetings', update on preparations for the International Telecommunication Union (ITU) 2018 Plenipotentiary Conference (PP-18), and discuss preparations for other upcoming multilateral meetings at the ITU. The meeting will focus on the following topics:
PP-18 will take place in Dubai, United Arab Emirates, from October 29 to November 17, 2018. The Plenipotentiary Conference, which takes place every four years, is the highest policy-making body of the ITU. PP-18 is expected to determine the overall policy direction of the ITU; adopt the strategic and financial plans for the next four years; and elect the 48 members of Council, 12 members of the Radio Regulations Board, and five senior ITU elected officials.
The OECD is scoping possible principles to foster trust in and adoption of artificial intelligence. The Department of State would welcome any written comments on this work to the ITAC email address.
Attendance at the ITAC meeting is open to the public as seating capacity allows. The public will have an opportunity to provide comments at this meeting at the invitation of the chair. Persons wishing to request reasonable accommodation during the meeting should send their requests to
Further details on this ITAC meeting will be announced through the Department of State's email list,
Surface Transportation Board.
Notice tentatively approving and authorizing finance transaction.
On August 31, 2018, National Express LLC (National Express) and Alan Wise (collectively, Applicants), noncarriers, jointly filed an application under 49 U.S.C. 14303 for National Express to acquire control of Wise Coaches, Inc. d/b/a Wise Coach of Nashville (Wise). The Board is tentatively approving and authorizing the transaction, and, if no opposing comments are timely filed, this notice will be the final Board action. Persons wishing to oppose the application must follow the rules at 49 CFR 1182.5 & 1182.8.
Comments must be filed by November 13, 2018. Applicants may file a reply by November 27, 2018. If no opposing comments are filed by November 13, 2018, this notice shall be effective on November 14, 2018.
Send an original and 10 copies of any comments referring to Docket No. MCF 21083 to: Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, send one copy of comments to National Express' representative: Andrew K. Light, Scopelitis, Garvin, Light, Hanson & Feary, P.C., 10 W Market Street, Suite 1400, Indianapolis, IN 46204.
Sarah Fancher (202) 245-0355. Federal Information Relay Service (FIRS) for the hearing impaired: 1-800-877-8339.
According to the application, National Express is a non-carrier holding company organized under the laws of the state of Delaware that is indirectly controlled by a British corporation, National Express Group, PLC (Express Group). (Appl. 1-2.) Applicants state that Express Group indirectly controls the following passenger motor carriers (collectively, National Express Affiliated Carriers):
Applicants assert the following facts regarding the National Express Affiliated Carriers held by Express Group (
• Aristocrat is a passenger motor carrier providing to the public interstate passenger charter services in the states of New Jersey, New York, and Pennsylvania, and intrastate passenger charter services in the state of New Jersey. The USDOT Number assigned to Aristocrat is 141894, and Aristocrat has a “Satisfactory” USDOT Safety Rating. Aristocrat holds interstate carrier authority from the Federal Motor Carrier Safety Administration (FMCSA) under MC-173839.
• Beck is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services in the state of Illinois under contracts with regional and local school jurisdictions. Beck also provides charter passenger services to the public. The USDOT Number assigned to Beck is 277593, and Beck has a “Satisfactory” USDOT Safety Rating. Beck holds interstate carrier authority under MC-143528.
• Durham is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services in several states under contracts with regional and local school jurisdictions. Durham also provides charter passenger services to the public. The USDOT Number assigned to Durham is 350651, and Durham has a “Satisfactory” USDOT Safety Rating. Durham holds interstate carrier authority under MC-163066.
• MV is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services in the state of Illinois under contracts with regional and local school jurisdictions. MV also provides charter passenger services to the public. The USDOT Number assigned to MV is 1049130, and MV has a “Satisfactory” USDOT Safety Rating. MV holds interstate carrier authority under MC-148934.
• NETY is a passenger motor carrier primarily engaged in providing paratransit services in the area of Yuma, Ariz. The USDOT Number assigned to NETY is 2532398, and NETY has a “Satisfactory” USDOT Safety Rating. NETY holds interstate carrier authority under MC-960629.
• Petermann is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services in the state of Ohio under contracts with regional and local school jurisdictions. Petermann also provides charter passenger services to the public. The USDOT Number assigned to Petermann is 821384, and Petermann has a “Satisfactory” USDOT Safety Rating. Petermann holds interstate carrier authority under MC-364668.
• Northeast is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services, primarily in the states of Ohio and Pennsylvania under contracts with regional and local school jurisdictions. Northeast also provides charter passenger services to the public. The USDOT Number assigned to Northeast is 2058860, but Northeast does not yet have a USDOT Safety Rating. Northeast holds interstate carrier authority under MC-723926.
• Southwest is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services in the state of Texas under contracts with regional and local school jurisdictions. Southwest also provides charter passenger services to the public. The USDOT Number assigned to Southwest is 1765359, but Southwest does not yet have a USDOT Safety Rating. Southwest holds interstate carrier authority under MC-644996.
• STSA is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services, primarily in the state of Kansas under contracts with regional and local school jurisdictions. STSA also provides charter passenger services to the public. The USDOT Number assigned to STSA is 2133951, and STSA has a “Satisfactory” USDOT Safety Rating. STSA holds interstate carrier authority under MC-749360.
• Queen City is a passenger motor carrier primarily engaged in providing non-regulated student school bus transportation services in the metropolitan area of Cincinnati, Ohio, and charter passenger services to the public. The USDOT Number assigned to Queen City is 224683, and Queen City has a “Satisfactory” USDOT Safety Rating. Queen City holds interstate carrier authority under MC-163846.
• Trans Express provides interstate and intrastate passenger transportation services in the state of New York. The USDOT Number assigned to Trans Express is 530250, and Trans Express has a “Satisfactory” USDOT Safety Rating. Trans Express holds interstate carrier authority under MC-187819.
• Trinity is a passenger motor carrier engaged in providing non-regulated school bus transportation services in southeastern Michigan and also operates charter service to the public. The USDOT Number assigned to Trinity is 822553, but Trinity does not yet have a USDOT Safety Rating. Trinity holds interstate carrier authority under MC-364003.
• Trinity Student is a passenger motor carrier primarily engaged in providing non-regulated school bus transportation services in northern Ohio. Trinity Student also provides charter passenger services. The USDOT Number assigned to Trinity Student is 2424638, but Trinity Student does not yet have a USDOT Safety Rating. Trinity Student holds interstate carrier authority under MC-836335.
• White Plains is a passenger motor carrier and operates primarily as a provider of non-regulated school bus transportation services in the state of New York, paratransit services, and charter service to the public. The USDOT Number assigned to White Plains is 25675, and White Plains has a “Satisfactory” USDOT Safety Rating. White Plains holds interstate carrier authority under MC-160624.
Applicants assert the following facts about Wise (Appl. at 7-8):
• Wise is a Tennessee corporation. It operates primarily as a motor carrier providing interstate passenger charter services in the state of Tennessee and surrounding states, and intrastate passenger charter and shuttle services in the state of Tennessee. The USDOT Number assigned to Wise is 763412, and Wise has a “Satisfactory” USDOT Safety Rating. Wise holds interstate carrier authority under MC-343763.
Applicants state that Wise is not affiliated with any other passenger carrier that has interstate passenger motor carrier authority. (
According to the Application, Alan Wise holds all of the issued and outstanding equity stock of Wise. Applicants assert that National Express would acquire all of the outstanding equity stock, resulting in 100% control of Wise through the stock acquisition. (
Under 49 U.S.C. 14303(b), the Board must approve and authorize a transaction that it finds consistent with the public interest, taking into consideration at least: (1) The effect of the proposed transaction on the adequacy of transportation to the public, (2) the total fixed charges that result, and (3) the interest of affected carrier employees. Applicants submitted information, as required by 49 CFR 1182.2, including information to demonstrate that the proposed transaction is consistent with the public interest under 49 U.S.C. 14303(b),
Applicants submit that the proposed transaction would have no material
According to Applicants, “[t]he addition of Wise to the carriers held by National Express is consistent with the practices within the passenger motor carrier industry of strong, well-managed transportation organizations adapting their corporate structure to operate several different passenger carriers within the same services markets, but in different geographic areas.” (
Applicants also claim that neither competition nor the public interest would be adversely affected by the contemplated transaction. Applicants state that the population and demand for charter and shuttle services in Nashville, Tenn., and the surrounding area (the Service Area) have consistently grown and are expected to increase in the foreseeable future. (
Applicants assert that there are no significant fixed charges associated with the contemplated transaction. (
The Board finds that the acquisition proposed in the application is consistent with the public interest and should be tentatively approved and authorized. If any opposing comments are timely filed, these findings will be deemed vacated, and, unless a final decision can be made on the record as developed, a procedural schedule will be adopted to reconsider the application.
This action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our website at
1. The proposed transaction is approved and authorized, subject to the filing of opposing comments.
2. If opposing comments are timely filed, the findings made in this notice will be deemed vacated.
3. This notice will be effective November 14, 2018, unless opposing comments are filed by November 13, 2018.
4. A copy of this notice will be served on: (1) The U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; (2) the U.S. Department of Justice, Antitrust Division, 10th Street & Pennsylvania Avenue NW, Washington, DC 20530; and (3) the U.S. Department of Transportation, Office of the General Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590.
By the Board, Board Members Begeman and Miller.
San Pedro Valley Railroad, LLC (SPVR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to operate two rail lines being acquired by San Pedro Valley Holdings, LLC: (1) From point of connection to Union Pacific Railroad (UP) at milepost 1033.25 at or near Benson, to milepost 1040.15 at or near St. David, a distance of 6.9 miles in Cochise County, Ariz.; and (2) from point of connection to UP at milepost 1074 at or near Wilcox, to all tracks at Wilcox Yard, a total of 8,281 feet or 1.57 miles, in Cochise County (collectively, the Lines). The Lines total approximately 8.47 miles.
This transaction is related to a concurrently filed verified notice of exemption in
SPVR certifies that, as a result of the proposed transaction, its projected annual revenues will not result in its becoming a Class I or Class II rail carrier and will not exceed $5 million. SPVR also certifies that the proposed transaction does not involve any interchange commitments as defined in 49 CFR 1150.43(h).
The earliest this transaction may be consummated is October 17, 2018, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed by October 10, 2018 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36217, must be filed with the Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on SPVR's counsel, Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1666, Chicago, IL 60604-1228.
According to SPVR, no environmental or historic documentation or report is required pursuant to 49 CFR 1105.6(c) and 1105.8(b).
Board decisions and notices are available on our website at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Surface Transportation Board.
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 Surface Transportation Board (Board) gives notice of its intent to request from the Office of Management and Budget (OMB) approval without change of the six existing collections described below. The Board previously published a notice about this collection in the
Comments on these information collections should be submitted by October 29, 2018.
Written comments should be identified as “Paperwork Reduction Act Comments, Surface Transportation Board: Rail Carrier Financial Reports.” These comments should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Michael McManus, Surface Transportation Board Desk Officer: By email at
For further information regarding these collections, contact Pedro Ramirez at (202) 245-0333 or
Comments are requested concerning each collection as to (1) whether the particular collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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, when appropriate. Submitted comments will be included and/or summarized in the Board's request for OMB approval.
Under the PRA, a federal agency that conducts or sponsors a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Section 3507(b) of the PRA requires, concurrent with an agency's submitting a collection to OMB for approval, a 30-day notice and comment period through publication in the
In Docket No. FD 36218, Gregory B. Cundiff, Connie Cundiff, CGX, Inc. (CGX), and Ironhorse Resources, Inc. (IHR),
This transaction is related to a concurrently filed verified notice of exemption in
In Docket No. FD 36219, applicants filed a verified notice of exemption under 49 CFR 1180.2(d)(2) for IHR to continue in control of San Pedro Valley Railroad, LLC (SPVR), upon SPVR's becoming a Class III rail carrier. This transaction is related to a concurrently filed verified notice of exemption in
According to applicants, CGX will continue in control of SPVH upon SPVH's becoming a Class III rail carrier and will remain in control of the following Class III carriers: Crystal City Railroad, Inc; Lone Star Railroad, Inc.; Rio Valley Railroad, Inc.; and Mississippi Tennessee Holdings, Inc. Applicants state that IHR will continue in control of SPVR upon SPVR's becoming a Class III rail carrier and will remain in control of the following Class III carriers: Texas Railroad Switching, Inc.; Rio Valley Switching Company; Mississippi Tennessee Railroad, LLC; Southern Switching Company; Gardendale Railroad, Inc.; Caney Fork & Western Railroad; and Santa Teresa Southern Railroad.
The earliest these transactions may be consummated is October 17, 2018, the effective date of the exemptions (30 days after the verified notices were filed).
Applicants state that: (1) The properties to be acquired by SPVH and operated by SPVR, and the properties of the rail carriers controlled by CGX and IHR do not connect with each other; (2) the proposed continuances in control are not part of a series of anticipated transactions that would connect the carriers with each other or any railroad in their corporate families; and (3) the transactions do not involve a Class l rail carrier. Therefore, the transactions are exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under Sections 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here because all of the carriers involved are Class III carriers.
If the notices contain false or misleading information, the exemptions are void ab initio. Petitions to revoke the exemptions under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemptions. Petitions for stay must be filed no later than October 10, 2018 (at least seven days before the exemptions become effective).
An original and 10 copies of all pleadings, referring to Docket Nos. FD 36218 and FD 36219, must be filed with the Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on the applicants' counsel, Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1666, Chicago, IL 60604-1228.
According to applicants, these actions are categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic reporting under 49 CFR 1105.8(b).
Board decisions and notices are available on our website at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
On September 10, 2018, the New York State Department of Environmental Conservation (the Department) filed an application under 49 U.S.C. 10903 requesting that the Surface Transportation Board (the Board) authorize the third-party, or adverse, abandonment of Saratoga and North Creek Railway (SNCR) over approximately 29.71 miles of rail line extending between milepost NC 0.0 at North Creek, NY, and its terminus at milepost NC 29.71 near the former Tahawus Mine (Tahawus Line or the Line). The Line traverses United States Postal Service Zip Codes 12842, 12843, 12851, 12852, 12853, and 12857.
According to the Department, the Line was built by the United States during the Second World War to facilitate the transportation of strategic materials from a former mine owned and operated by NL Industries. In 2012, SNCR obtained Board authority to operate over the Tahawus Line, which it had purchased from NL Industries the year
In a decision served on February 27, 2018, the Department was granted exemptions from several statutory provisions as well as waivers of certain Board regulations that were not relevant to its adverse discontinuance application or that sought information not available to the Department.
According to the Department, there is no documentation in its possession that indicates that the Line contains federally granted rights-of-way. Any documentation in the Department's possession will be made available promptly to those requesting it. The Department's entire case-in-chief for adverse abandonment was filed with the application.
The Department states that the interests of railroad employees will be protected by the conditions set forth in
Any interested person may file written comments concerning the proposed adverse abandonment or protests (including protestant's entire opposition case) by October 25, 2018. Persons who may oppose the proposed adverse abandonment but who do not wish to participate fully in the process by submitting verified statements of witnesses containing detailed evidence should file comments. Persons opposing the proposed adverse abandonment who wish to participate actively and fully in the process should file a protest, observing the filing, service, and content requirements of 49 CFR 1152.25. The Department's reply is due by November 9, 2018.
All filings in response to this notice must refer to Docket No. AB 1261 and must be sent to: (1) Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001; and (2) Joshua M. Tallent, New York State Office of the Attorney General, Environmental Protection Bureau, The Capitol, Albany, NY 12224-0341.
Any request for an interim trail use/railbanking condition under 16 U.S.C. 1247(d) and 49 CFR 1152.29 must be filed by October 25, 2018, and should address whether the issuance of a certificate of interim trail use in this case would be consistent with the grant of an adverse abandonment application. Each trail use request must be accompanied by a $300 filing fee.
Filings may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should comply with the instructions found on the Board's “
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by the Board's Office of Environmental Analysis (OEA) will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Any other persons who would like to obtain a copy of the EA (or EIS) may contact OEA by phone at the number listed below. EAs in these abandonment proceedings normally will be made available within 33 days of the filing of the application. The deadline for submission of comments on the EA will generally be within 30 days of its service. The comments received will be addressed in the Board's decision. A supplemental EA or EIS may be issued where appropriate.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or refer to the full abandonment regulations at 49 CFR pt. 1152. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Board decisions and notices are available on our website at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
San Pedro Valley Holdings, LLC (SPVH), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire two rail lines owned by the San Pedro and Southwestern Railroad Company: (1) From point of connection to Union Pacific Railroad (UP) at milepost 1033.25 at or near Benson, to milepost 1040.15 at or near St. David, a distance of 6.9 miles in Cochise County, Ariz.; and (2) from point of connection to UP at milepost 1074 at or near Wilcox, to all tracks at Wilcox Yard, a total of 8,281 feet or 1.57 miles, in Cochise County (collectively, the Lines). The Lines total approximately 8.47 miles.
This transaction is related to a concurrently filed verified notice of exemption in
SPVH certifies that, as a result of the proposed transaction, its projected annual revenues will not result in its becoming a Class I or Class II rail carrier and will not exceed $5 million. SPVH also certifies that the proposed transaction does not involve any interchange commitments as defined in 49 CFR 1150.43(h).
The earliest this transaction may be consummated is October 17, 2018, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the
An original and 10 copies of all pleadings, referring to Docket No. FD 36216, must be filed with the Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on SPVH's counsel, Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1666, Chicago, IL 60604-1228.
According to SPVH, no environmental or historic documentation or report is required pursuant to 49 CFR 1105.6(c) and 1105.8(b).
Board decisions and notices are available on our website at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Office of the United States Trade Representative.
Notice of modification and amendment of action.
In a notice published on September 21, 2018 (September 21st Notice), the U.S. Trade Representative (Trade Representative) adopted a supplemental action in this 301 investigation by imposing additional duties on goods of China classified in subheadings of the Harmonized Tariff Schedule of the United States (HTSUS) listed in Annex A of that Notice. Pursuant to a Presidential Proclamation of July 30, 2018, certain HTSUS subheadings covered by the supplemental action will be modified as of October 1, 2018. This notice conforms the September 21 supplemental action to the HTSUS modifications in the Presidential Proclamation and amends the prior action taken in the investigation by removing certain subheadings of the HTSUS listed in Annex A to the September 21st Notice.
For questions about this notice, contact Assistant General Counsels Arthur Tsao or Megan Grimball, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For questions on customs classification or implementation of additional duties on products covered in the supplemental action, contact
In the September 21st Notice (83 FR 47974), the Trade Representative, in accordance with the specific direction of the President, determined to modify the action being taken in this Section 301 investigation by imposing additional duties on products of China classified in the full and partial subheadings of the HTSUS set out in Annex A to the September 21st Notice, while maintaining the prior action being taken in the investigation. This supplemental action was effective on September 24, 2018.
Proclamation 9771 (83 FR 37993), among other things, modifies the HTSUS to ensure conformity with U.S. obligations under the International Convention on the Harmonized Commodity Description and Coding System, based on a recommendation of the U.S. International Trade Commission. These HTSUS modifications are effective October 1, 2018.
The HTSUS modifications in Proclamation 9771 include certain subheadings in chapter 44 of the HTSUS covered by the action in the September 21st Notice. Paragraph A of the Annex to this notice makes the appropriate conforming amendments to the supplemental action set out in the September 21st Notice. In particular, 14 subheadings in chapter 44 deleted by Proclamation 9771 are accordingly deleted from Annex A of the September 21st Notice, and are replaced by the corresponding 38 new subheadings in chapter 44 of the HTSUS that were added by Proclamation 9771. These changes to the September 21 action are effective on October 1, 2018.
Paragraph B of the Annex to this notice corrects a typographical error in the fourth paragraph of U.S. Note 20(a) to subchapter III of chapter 99, as set out in Annex C of the notice published at 83 FR 40823 (August 16, 2018).
To account fully for the extensive public comments and testimony previously provided in response to the
Department of Transportation, Federal Aviation Administration (FAA).
Notice of submission deadline.
Under this notice, the FAA announces the submission deadline of October 4, 2018, for summer 2019 flight schedules at Chicago O'Hare International Airport (ORD), John F. Kennedy International Airport (JFK), Los Angeles International Airport (LAX), Newark Liberty International Airport (EWR), and San Francisco International Airport (SFO). The deadline coincides with the schedule submission deadline for the International Air Transport Association (IATA) Slot Conference for the summer 2019 scheduling season.
Schedules must be submitted no later than October 4, 2018.
Schedules may be submitted by mail to the Slot Administration Office, AGC-200, Office of the Chief Counsel, 800 Independence Avenue SW, Washington, DC 20591; facsimile: 202-267-7277; or by email to:
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
The FAA has designated EWR, LAX, ORD, and SFO as IATA Level 2 airports
The FAA is primarily concerned about scheduled and other regularly conducted commercial operations during peak hours, but carriers may submit schedule plans for the entire day. At ORD, the peak hours for the summer 2019 scheduling season are 0700 to 2100 Central Time (1200 to 0200 UTC), at LAX and SFO from 0600 to 2300 Pacific Time (1300 to 0600 UTC), and at EWR and JFK from 0600 to 2300 Eastern Time (1000 to 0300 UTC). These hours are unchanged from previous scheduling seasons. Carriers should submit schedule information in sufficient detail including, at minimum, the marketing or operating carrier, flight number, scheduled time of operation, frequency, aircraft equipment, and effective dates. IATA standard schedule information format and data elements for communications at Level 2 and Level 3 airports in the IATA Standard Schedules Information Manual (SSIM) Chapter 6 may be used. The WSG provides additional information on schedule submissions at Level 2 and Level 3 airports.
The U.S. summer scheduling season is from March 31, 2019, through October 26, 2019, in recognition of the IATA northern summer scheduling period. The FAA understands there may be differences in schedule times due to different U.S. daylight saving time dates and will accommodate these differences to the extent possible.
As stated in the WSG, schedule facilitation at a Level 2 airport is based on schedule adjustments mutually agreed between the airlines and the facilitator; the intent is to avoid exceeding the airport's coordination parameters; the concepts of historic precedence and series of slots do not apply at Level 2 airports; and the facilitator should adjust the smallest number of flights by the least amount of time necessary to avoid exceeding the airport's coordination parameters.
The FAA considers several factors and priorities as it reviews schedule requests at Level 2 airports, which are consistent with the WSG, including—services from the previous equivalent season over new demand for the same timings, services that are unchanged over services that plan to change time or other capacity relevant parameters, introduction of year-round services, effective period of operation, regularly planned operations over
At Level 2 airports, the FAA seeks to improve communications with carriers and schedule facilitators on potential runway schedule issues or terminal and gate issues that may affect the runway times. The FAA also seeks to reduce the time that carriers consider proposed offers on schedules. Retaining open offers for extended periods of time may delay the facilitation process for the airport. Reducing this delay is particularly important to allow the FAA to make informed decisions at airports where operations in some hours are at or near the scheduling limits. The agency recognizes that there are circumstances that may require some schedules to remain open. However, the FAA expects to substantially complete the process on initial submissions each scheduling season within 30 days of the end of the Slot Conference. After this time, the agency would confirm the acceptance of proposed offers, as applicable, or issue a denial of schedule requests. At Level 3 airports, the FAA follows the slot offer and acceptance procedures set forth in the WSG.
Slot management in the United States differs from other countries that follow the WSG in some respects. In the United States, the FAA is responsible for facilitation and coordination of runway access for takeoffs and landings at Level 2 and Level 3 airports; however, the airport authority or its designee is responsible for facilitation and coordination of terminal/gate/airport facility access. The process with the individual airports for terminal access and other airport services is separate from, and in addition to, the FAA schedule review based on runway capacity. Approval from both the FAA and the airport authority for runway and airport availability, respectively, is necessary before implementing schedule plans. Contact information for Level 2 and Level 3 airports is available at
Generally, the FAA uses average hourly runway capacity throughput for airports and performance metrics in its schedule reviews at Level 2 airports and for the scheduling limits at Level 3 airports.
Finally, the FAA notes that the schedule information submitted by carriers to the FAA may be subject to disclosure under the Freedom of Information Act (FOIA). The WSG also provides for release of information at certain stages of slot coordination and schedule facilitation. In general, once it acts, the FAA may release information on slot allocation or similar slot transactions or schedule information reviewed as part of the schedule facilitation process. The FAA does not expect that practice to change and most slot and schedule information would not be exempt from release under FOIA. The FAA recognizes that some airlines may submit information on schedule plans that is not available to the public and may be considered by the carrier to be proprietary. Carriers that submit slot or schedule information deemed proprietary should clearly mark such information accordingly. The FAA will take the necessary steps to protect properly designated information to the extent allowable by law.
The Port Authority of New York and New Jersey (PANYNJ) plans construction on JFK Runway 13L/31R that will close the runway from April 1, 2019, through November 15, 2019. The FAA will develop an operational “playbook” for runway configurations that would be used under various weather and operating conditions while Runway 13L/31R is closed. The FAA worked with MITRE's Center for Advanced Aviation System Development on modeling the expected runway configuration and the results indicate that average arrival delays could increase modestly while departure delays would remain close to current levels or decrease due to runway configurations that have higher departure and lower arrival capacities. As with the three prior runway construction projects and closures, delays in the early and late months of the summer 2019 scheduling season are projected to increase over the typical delays in those months but remain below the average delays in the peak June to August months.
The FAA will work closely with the airport and operators to efficiently manage operations during construction. The PANYNJ meets regularly with airlines and other stakeholders to discuss construction plans and consults with the FAA and local air traffic control facilities to minimize operational impacts. Carriers should contact the PANYNJ for the latest information on airport construction plans. The FAA New York District and the New York Area Program Integration Office also holds a regular Delay Initiatives Meeting that addresses construction and operational plans. These local meetings are the best sources of current construction-related information to assist in planning schedules and operations.
The FAA is continuing to monitor operations and delays at EWR and to identify ways to improve performance metrics and operational efficiency, and achieve delay reductions in a Level 2 environment. Demand for access to EWR and the New York City area remains high. Recent requests for flights at EWR have exceeded the scheduling limits in the 8 a.m. and 1300-2159 local hours. The FAA has advised carriers in prior seasons that it would not be able to accommodate all requests for new or retimed operations in peak hours and worked with carriers to identify times that were available. In some limited cases, carriers were able to swap with other airlines for their preferred times in the peak for winter 2018. Carriers may continue to seek swaps in order to operate within the peak. However, the FAA also continues to seek the voluntary cooperation of all carriers operating in peak hours to retime operations out of the peak to improve performance at EWR.
For the summer 2019 season, the hourly scheduling limit remains at 79
The FAA notes that despite efforts to facilitate voluntary scheduling cooperation at EWR, and reductions in the hourly scheduling limits,
Based on historical demand, the FAA anticipates the 0700 to 0859 and 1330 to 2159 periods to be unavailable for new flights. Consistent with the WSG, carriers should be prepared to adjust schedules to meet the hourly limits in order to minimize potential congestion and delay. Carriers are again reminded that runway approval must be obtained from the FAA in addition to any requirements for approval from airport terminal or other facilities prior to operation.
The PANYNJ also plans construction on EWR Runway 11/29 during 2019. The plans currently include night and weeknight closures and a 12-day full closure in late August. The FAA will assess the potential operational impacts and any necessary mitigations once the construction plans are finalized. As indicated for the JFK runway construction, the PANYNJ is the best source of information on the construction and FAA meetings such as the Delay Initiative Meeting is the best source for operational plans.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA is considering a proposal to change 97.507 acres of airport land from aeronautical use to non-aeronautical use and to authorize the sale of airport property located at Indianapolis International Airport, Indianapolis, Indiana. The aforementioned land is not needed for aeronautical use.
The land consists of 155 original airport acquired parcels. The parcels were acquired under grants 6-18-0038-14, 3-18-0038-17, 3-18-0038-18, 3-18-0038-23, 3-18-0038-24, 3-18-0038-43, 3-18-0038-45, 3-18-0038-47, 3-18-0038-51, 3-18-0038-54, 3-18-0038-67, 3-18-0038-78, 3-18-0038-81, 3-18-0038-83, 3-18-0038-88, 3-18-0038-96, 3-18-0038-112, Passenger Facility Charges, and local funding.
There are no impacts to the airport by allowing the Indianapolis Airport Authority to dispose of the property. The land is not needed for future aeronautical development.
Comments must be received on or before October 29, 2018.
Documents are available for review by appointment at the FAA Chicago Airports District Office, Melanie Myers, Program Manager, 2300 East Devon Avenue, Des Plaines, Illinois 60018. Telephone: (847) 294-7525/Fax: (847) 294-7046 and Eric Anderson, Director of Properties, Indianapolis Airport Authority, 7800 Col. H. Weir Cook Memorial Drive, Indianapolis, IN 46241 Telephone: 317-487-5135.
Melanie Myers, Program Manager, Federal Aviation Administration, Chicago Airports District Office, 2300 East Devon Avenue, Des Plaines, Illinois 60018. Telephone: (847) 294-7525/Fax: (847) 294-7046.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The disposition of proceeds from the sale of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject airport property at the Indianapolis International Airport, Indianapolis, Indiana from federal land covenants, subject to a reservation for continuing right of flight as well as restrictions on the released property as required in FAA Order 5190.6B section 22.16. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
Lots Numbered 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, and 21 through 33 of Hill Top Addition, as per plat thereof, recorded in Plat Book 4, pages 134 through 135 in the Office of the Recorder of Hendricks County, Indiana, Lots Numbered 1 through 8 and part of Lots 9 and 12 of Applecreek, as per plat thereof, recorded in Plat Book 8, page 85 in said Recorder's Office, Lots
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 18, 2018.
Send comments identified by docket number FAA-2018-0835 using any of the following methods:
•
•
•
•
Nia Daniels, (202) 267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Sections of 14 CFR Affected: 43.2(a)(2); 43.3(a), (j), and (k)(1); 43.7(d); 43.9(d); 43.10(c)(5) and (d); 91.119(b) and (c); 91.121; 91.126(d); 91.127(c); 91.129(c) and (d); 91.130(c) and (d); 91.131(a)(1), (b), (c)(2), and (d); 91.144(a); 91.151(a); 91.155(a) and (c); 91.167(a)(3); 91.203(a)(1); 91.205(a), (b)(1) through (4), (b)(7), (b)(9), (b)(11) and (b)(12), and (c)(1) through (c)(4); 91.209(a)(1); 91.213(a) through (c); 91.215(b)(1) and (2); 91.225(b), (d)(1) and (2), and (f); 119.71(b), (d) and (e); 135.25(a)(1); 135.63(c) and (d); 135.79; 135.93; 135.109(b); 135.149(a); 135.161; 135.179(a); 135.203(a); 135.205(a); 135.209(a); 135.227(a) through (c), (e), and (f); 135.243(b)(1) through (3); 135.267; 135.337(b)(5) through (7); 135.337(c)(5) and (e); 135.338(b)(5) and (6); 135.339(e)(3) and (4); 135.340(e)(3) and (4); 135.341(b)(2) through (4); 135.415(a), (b), and (d); 135.417; 135.423(c); 135.429(a); 135.435; 135.437(b); 135.439(a)(2); 135.443(b)(3); and 135.501(a).
Federal Aviation Administration (FAA), DOT.
Notice of public meeting.
The Federal Aviation Administration (FAA) is hosting an industry day to introduce the Four-Dimensional Trajectory (4DT) Live Flight Demonstration Project to the aviation community. The FAA will present and discuss the 4DT Live Flight Demonstration Project vision, objectives, partnership requirements, and project timelines. The Industry Day will provide the initial platform for interested organizations to collaborate and strategize on project partnerships to execute the live flight demonstrations with the FAA.
The public meeting will be held on October 24, 2018, from 1:00 p.m. to 4:30 p.m. Teaming proposals will be due 1 month following Industry Day.
The public meeting will be held at the FAA's Florida NextGen Testbed (FTB), 557 Innovation Way, Daytona Beach, FL 32114.
Biruk Abraham, 4DT Live Flight Project Manager, Technology Development & Prototyping Division (ANG-C5), Federal Administration, 800 Independence Ave. SW, Washington, DC 20591; telephone (202) 267-8816; email:
The current Air Traffic Management (ATM) environment is dependent on the exchange of information via a combination of voice and digital means. As ATM continues to evolve into a more collaborative decision making (CDM) environment to support the increasing operational density, the demand for digitally exchanging more and increasingly complex information will continue to grow. In a CDM environment, the current systems and mixed aircraft equipage of communication capabilities could lead to inefficient use of airspace and airport operations. The FAA envisions that leveraging emerging technologies and data exchange standards will result in the exchange of significantly more and high-quality aviation information via commercially available high-bandwidth air/ground (A/G) communications infrastructure. This will enable an efficient CDM environment, leading to the realization of trajectory-based operations benefits within the National Airspace System (NAS) and its airspace users.
The FAA is establishing a 4DT Live Flight Demonstration Project in collaboration with partners in the aviation community to showcase applications supporting A/G capabilities for the exchange of trajectory information, negotiation of trajectories and execution of agreed upon trajectories throughout all phases of flight, utilizing a commercially available communications architecture and flight deck technologies.
To solicit industry partnership teams, the FAA is hosting an Industry Day to introduce the 4DT Live Flight Demonstration Project. The FAA invites the aviation community—commercial and corporate operators, aircraft avionics manufacturers, aircraft connectivity service providers, and all others interested in participating in the live flight demonstrations to attend the 4DT Live Flight Demonstration Industry Day. The Industry Day will provide a platform for interested organizations to collaborate and strategize on project partnerships to execute the live flight demonstrations with the FAA.
The 4DT Live Flight Demonstration will leverage the FAA's System Wide Information Management capabilities, Controller-Pilot Data Link Communications services, and FAA ATM and air traffic control (ATC) ground automation capabilities. The FAA is seeking to engage industry partner teams to provide complementary industry resources required for the demonstration. These
Space at the FTB facility is limited and therefore, attendance will be on a first come first served basis. However, a webcast will be provided for those that cannot attend in person. To attend the Industry Day (in person or via webcast), participants must register via the following link:
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the OCC, the Board, and the FDIC (the agencies) may not conduct or sponsor, and a 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 Federal Financial Institutions Examination Council (FFIEC), of which the agencies are members, has approved the agencies' publication for public comment of a proposal to revise and extend the Consolidated Reports of Condition and Income for a Bank with Domestic and Foreign Offices (FFIEC 031), the Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only (FFIEC 041), and the Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only and Total Assets Less Than $1 Billion (FFIEC 051), which are currently approved collections of information. The Consolidated Reports of Condition and Income are commonly referred to as Call Reports. The FFIEC has also approved the Board's publication for public comment, on behalf of the agencies, of a proposal to revise and extend the Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002) and the Report of Assets and Liabilities of a Non-U.S. Branch that is Managed or Controlled by a U.S. Branch or Agency of a Foreign (Non-U.S.) Bank (FFIEC 002S) as well as the agencies' publication for public comment of proposals to revise and extend the Foreign Branch Report of Condition (FFIEC 030), the Abbreviated Foreign Branch Report of Condition (FFIEC 030S), and the Regulatory Capital Reporting for Institutions Subject to the Advanced Capital Adequacy Framework (FFIEC 101), all of which are currently approved collections of information.
The proposed revisions generally address the revised accounting for credit losses under the Financial Accounting Standards Board's (FASB) Accounting Standards Update (ASU) No. 2016-13, “Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments” (ASU 2016-13). This proposal also includes reporting changes for regulatory capital related to implementing the agencies' recent notice of proposed rulemaking on the implementation and capital transition for the current expected credit losses methodology (CECL).
In addition, this notice includes other revisions to the Call Reports and the FFIEC 101 resulting from two sections of the Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA), effective upon enactment on May 24, 2018, that affect the information reported in these reports and for which the agencies submitted emergency review requests to OMB that OMB has approved.
The proposed revisions related to ASU 2016-13 would begin to take effect March 31, 2019, for reports with quarterly report dates and December 31, 2019, for reports with an annual report date, with later effective dates for certain respondents. At the end of the comment period for this notice, the comments received will be reviewed to determine whether the FFIEC and the agencies should modify the proposed revisions to one or more of the previously identified reports. As required by the PRA, the agencies will then publish a second
Comments must be submitted on or before November 27, 2018.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the “CECL and EGRRCPA Reporting Revisions,” will be shared among the agencies.
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All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
You may personally inspect and photocopy comments at the OCC, 400 7th Street SW, Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649-6700 or, for persons who are deaf or hearing impaired, TTY, (202) 649-5597. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments.
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All public comments are available from the Board's website at
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503; by fax to (202) 395-6974; or by email to
For further information about the proposed revisions to the information collections discussed in this notice, please contact any of the agency staff whose names appear below. In addition, copies of the reporting forms for the reports within the scope of this notice can be obtained at the FFIEC's website (
In June 2016, the FASB issued ASU 2016-13, which introduced CECL for estimating allowances for credit losses and added Topic 326, Credit Losses, to the Accounting Standards Codification (ASC). The new credit losses standard changes several aspects of existing U.S. generally accepted accounting principles (U.S. GAAP) as follows:
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The new accounting standard developed by the FASB has been designed to replace the existing incurred loss methodology in U.S. GAAP. Under CECL, the allowance for credit losses is an estimate of the expected credit losses on financial assets measured at amortized cost, which is measured using relevant information about past events, including historical credit loss experience on financial assets with similar risk characteristics, current conditions, and reasonable and supportable forecasts that affect the collectability of the remaining cash flows over the contractual term of the financial assets. In concept, an allowance will be created upon the origination or acquisition of a financial asset measured at amortized cost. At subsequent reporting dates, the allowance will be reassessed for a level that is appropriate as determined in accordance with CECL. The allowance for credit losses under CECL is a valuation account, measured as the difference between the financial assets' amortized cost basis and the amount expected to be collected on the financial assets,
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Impairment measurement under existing U.S. GAAP has often been considered complex because it encompasses five credit impairment models for different financial assets.
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CECL introduces the concept of PCD financial assets, which replaces purchased credit-impaired (PCI) assets under existing U.S. GAAP. The differences in the PCD criteria compared to the existing PCI criteria will result in more purchased loans HFI, HTM debt securities, and available-for-sale (AFS) debt securities being accounted for as PCD financial assets. In contrast to the existing accounting for PCI assets, the new standard requires the estimate of expected credit losses embedded in the purchase price of PCD assets to be estimated and separately recognized as an allowance as of the date of
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The new accounting standard also modifies the existing accounting practices for impairment on AFS debt securities. Under this new standard, institutions will recognize a credit loss on an AFS debt security through an allowance for credit losses, rather than a direct write-down as is required by current U.S. GAAP. The recognized credit loss is limited to the amount by which the amortized cost of the security exceeds fair value. A write-down of an AFS debt security's amortized cost basis to fair value, with any incremental impairment reported in earnings, would be required only if the fair value of an AFS debt security is less than its amortized cost basis and either (1) the institution intends to sell the debt security, or (2) it is more likely than not that the institution will be required to sell the security before recovery of its amortized cost basis.
Although the measurement of credit loss allowances is changing under CECL, the FASB's new accounting standard does not address when a financial asset should be placed in nonaccrual status. Therefore, institutions should continue to apply the agencies' nonaccrual policies that are currently in place. In addition, the FASB retained the existing write-off guidance in U.S. GAAP, which requires an institution to write off a financial asset in the period the asset is deemed uncollectible.
Institutions
For a PBE that is not an SEC filer, the credit losses standard is effective for fiscal years beginning after December 15, 2020, including interim periods within those fiscal years. Thus, for a PBE that is not an SEC filer and has a calendar year fiscal year, the standard is effective January 1, 2021, and the institution must first apply the new credit losses standard in its Call Report, FFIEC 002,
For an institution that is not a PBE, the credit losses standard is effective for fiscal years beginning after December 15, 2020, and for interim period financial statements for fiscal years beginning after December 15, 2021.
For regulatory reporting purposes, early application of the new credit losses standard will be permitted for all institutions for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years.
The following table provides
For additional information on key elements of the new accounting standard and initial supervisory views with respect to measurement methods, use of vendors, portfolio segmentation, data needs, qualitative adjustments, and allowance processes, refer to the agencies' Joint Statement on the New Accounting Standard on Financial Instruments—Credit Losses issued on June 17, 2016, and Frequently Asked Questions on the New Accounting Standard on Financial Instruments—Credit Losses (CECL FAQs), which were last updated on September 6, 2017.
On May 24, 2018, EGRRCPA amended various statutes administered by the agencies and affected regulations issued by the agencies.
Section 214 of EGRRCPA adds a new Section 51 to the Federal Deposit Insurance Act (FDI Act) governing the risk-based capital requirements for certain acquisition, development, or construction (ADC) loans. EGRRCPA provides that, effective upon enactment, the agencies may only require a depository institution to assign a heightened risk weight to an HVCRE exposure if such exposure is an “HVCRE ADC Loan,” as defined in Section 214 of EGRRCPA. Accordingly, a depository institution is permitted to use the definition of HVCRE ADC Loan in place of the existing definition of HVCRE loan when reporting HVCRE exposures held for sale, held for investment, and held for trading on Schedule RC-R, Regulatory Capital, Part II, Risk-Weighted Assets, in the Call Reports, as well as on Schedule B and Schedule G in the FFIEC 101 for institutions required to file that form.
Section 29 of the FDI Act (12 U.S.C. 1831f), as amended by Section 202 of EGRRCPA, excepts a capped amount of reciprocal deposits from treatment as brokered deposits for qualifying institutions, effective upon enactment. The current Call Report instructions, consistent with the law prior to the enactment of EGRRCPA, treat all reciprocal deposits as brokered deposits. When reporting in the Call Report, institutions should apply the newly defined terms and other provisions of Section 202 to determine whether they and their reciprocal deposits are eligible for the statutory exclusion and report as brokered deposits in Schedule RC-E, and reciprocal brokered deposits in Schedule RC-O, only those reciprocal deposits that are considered brokered deposits under the new law.
The agencies propose to extend for three years, with revision, the FFIEC 031, FFIEC 041, and FFIEC 051 Call Reports.
The estimated average burden hours collectively reflect the estimates for the FFIEC 031, the FFIEC 041, and the FFIEC 051 reports. When the estimates are calculated by type of report across the agencies, the estimated average burden hours per quarter are 121.74 (FFIEC 031), 55.57 (FFIEC 041), and 38.59 (FFIEC 051). The estimated burden per response for the quarterly filings of the Call Report is an average that varies by agency because of differences in the composition of the banks and savings associations under each agency's supervision (
The Call Report information collections are mandatory: 12 U.S.C. 161 (for national banks), 12 U.S.C. 324 (for state member banks), 12 U.S.C. 1817 (for insured state nonmember commercial and savings banks), and 12 U.S.C. 1464 (for federal and state savings associations). At present, except for selected data items and text, these information collections are not given confidential treatment.
Banks and savings associations submit Call Report data to the agencies each quarter for the agencies' use in monitoring the condition, performance, and risk profile of individual institutions and the industry as a whole. Call Report data serve a regulatory or public policy purpose by assisting the agencies in fulfilling their shared missions of ensuring the safety and soundness of financial institutions and the financial system and protecting consumer financial rights, as well as
The Board proposes to extend for three years, with revision, on behalf of the agencies the FFIEC 002 and FFIEC 002S reports.
These information collections are mandatory (12 U.S.C. 3105(c)(2), 1817(a)(1) and (3), and 3102(b)). Except for select sensitive items, the FFIEC 002 is not given confidential treatment; the FFIEC 002S is given confidential treatment (5 U.S.C. 552(b)(4) and (8)).
On a quarterly basis, all U.S. branches and agencies of foreign banks are required to file the FFIEC 002, which is a detailed report of condition with a variety of supporting schedules. This information is used to fulfill the supervisory and regulatory requirements of the International Banking Act of 1978. The data are also used to augment the bank credit, loan, and deposit information needed for monetary policy and other public policy purposes. The FFIEC 002S is a supplement to the FFIEC 002 that collects information on assets and liabilities of any non-U.S. branch that is managed or controlled by a U.S. branch or agency of the foreign bank. A non-U.S. branch is managed or controlled by a U.S. branch or agency if a majority of the responsibility for business decisions, including but not limited to decisions with regard to lending or asset management or funding or liability management, or the responsibility for recordkeeping with respect to assets or liabilities for that foreign branch, resides at the U.S. branch or agency. A separate FFIEC 002S must be completed for each managed or controlled non-U.S. branch. The FFIEC 002S must be filed quarterly along with the U.S. branch or agency's FFIEC 002. The data from both reports are used for (1) monitoring deposit and credit transactions of U.S. residents; (2) monitoring the impact of policy changes; (3) analyzing structural issues concerning foreign bank activity in U.S. markets; (4) understanding flows of banking funds and indebtedness of developing countries in connection with data collected by the International Monetary Fund and the Bank for International Settlements that are used in economic analysis; and (5) assisting in the supervision of U.S. offices of foreign banks. The Federal Reserve System collects and processes these reports on behalf of all three agencies.
The agencies propose to extend for three years, with revision, the FFIEC 030 and FFIEC 030S reports.
This information collection is mandatory: 12 U.S.C. 602 (Board); 12 U.S.C. 161 and 602 (OCC); and 12 U.S.C. 1828 (FDIC). This information collection is given confidential treatment under 5 U.S.C. 552(b)(4) and (8).
The FFIEC 030 collects asset and liability information for foreign branches of insured U.S. banks and insured U.S. savings associations (U.S. depository institutions) and is required for regulatory and supervisory purposes. The information is used to analyze the foreign operations of U.S. institutions. All foreign branches of U.S. institutions regardless of charter type file this report as provided in the instructions to the FFIEC 030 and FFIEC 030S.
A U.S. depository institution generally must file a separate report for each foreign branch, but in some cases may consolidate filing for multiple foreign branches in the same country, as described below. A branch with either total assets of at least $2 billion or commitments to purchase foreign
A U.S. depository institution with a foreign branch having total assets of $50 million, but less than or equal to $250 million that does not meet the criteria to file the FFIEC 030 report must file the FFIEC 030S report for this foreign branch on an annual basis as of December 31. A U.S. depository institution with a foreign branch having total assets of less than $50 million is exempt from filing the FFIEC 030 and 030S reports.
The agencies propose to extend for three years, with revision, the FFIEC 101 report.
Each advanced approaches institution
The agencies use data reported in the FFIEC 101 to assess and monitor the levels and components of each reporting entity's capital requirements and the adequacy of the entity's capital under the Advanced Capital Adequacy Framework;
In response to the new credit losses standard, key elements of which were outlined above in Section A of “Supplementary Information, I. Background,” the agencies reviewed the existing FFIEC reports to determine which reports may be affected by ASU 2016-13. As a result, revisions are proposed to the following FFIEC reports: (1) Call Reports (FFIEC 031, FFIEC 041, and FFIEC 051), (2) FFIEC 002 and FFIEC 002S, (3) FFIEC 030 and FFIEC 030S, and (4) the FFIEC 101.
The agencies also reviewed the existing FFIEC reports to determine which reports may be affected by EGRRCPA. As a result, additional revisions are proposed for the Call Reports (FFIEC 031, FFIEC 041, and FFIEC 051) and the FFIEC 101.
A detailed description of the proposed revisions resulting from both ASU 2016-13 and EGRRCPA follows.
In response to the changes in accounting for credit losses under ASU 2016-13, the agencies are proposing revisions to the manner in which data on credit losses is reported in the Call Report. These changes are necessary to align the information reported in the Call Report with the new accounting standard as it relates to the credit losses for loans and leases, including off-balance sheet credit exposures.
In developing these proposed Call Report revisions, the agencies followed the guiding principles for evaluating potential additions and deletions of Call Report data items and other revisions to the Call Report. In general, data items collected in the Call Report must meet three guiding principles: (1) The data items serve a long-term regulatory or public policy purpose by assisting the FFIEC member entities in fulfilling their shared missions of ensuring the safety and soundness of financial institutions and the financial system and the protection of consumer financial rights, as well as agency-specific missions affecting national and state-chartered institutions; (2) the data items to be collected maximize practical utility and minimize, to the extent practicable and appropriate, burden on financial
The existing Call Report schedules impacted by ASU 2016-13 and included in the development of this proposal are:
Schedule RI—Income Statement
Schedule RI-B—Charge-offs and Recoveries on Loans and Leases and Changes in Allowance for Loan and Lease Losses
Schedule RI-C—Disaggregated Data on the Allowance for Loan and Lease Losses [FFIEC 031 and FFIEC 041 only]
Schedule RI-D—Income from Foreign Offices [FFIEC 031 only]
Schedule RI-E—Explanations
Schedule RC—Balance Sheet
Schedule RC-B—Securities
Schedule RC-C—Loans and Lease Financing Receivables
Schedule RC-F—Other Assets
Schedule RC-G—Other Liabilities
Schedule RC-H—Selected Balance Sheet Items for Domestic Offices [FFIEC 031 only]
Schedule RC-K—Quarterly Averages
Schedule RC-N—Past Due and Nonaccrual Loans, Leases, and Other Assets
Schedule RC-R—Regulatory Capital
Schedule RC-V—Variable Interest Entities [FFIEC 031 and FFIEC 041 only]
Schedule SU—Supplemental Information [FFIEC 051 only]
As noted previously, ASU 2016-13 broadens the scope of financial assets for which allowances for credit losses must be estimated. CECL is applicable to all financial instruments measured at amortized cost (including loans held for investment and HTM debt securities, as well as trade and reinsurance receivables and receivables that relate to repurchase agreements and securities lending agreements), net investments in leases, and off-balance-sheet credit exposures not accounted for as insurance, including loan commitments, standby letters of credit, and financial guarantees. In addition, under ASU 2016-13, institutions will record credit losses on AFS debt securities through an allowance for credit losses rather than as a write-down through earnings for other-than-temporary impairment (OTTI). The broader scope of financial assets for which allowances must be estimated under ASU 2016-13 results in the proposed reporting of additional allowances, and related charge-off and recovery data, in the Call Report and proposed changes to the terminology used to describe allowances for credit losses within the Call Report. To address the broader scope of assets that will have allowances under ASU 2016-13, the agencies propose to change the allowance nomenclature to consistently use “allowance for credit losses” followed by the specific asset type as relevant,
By broadening the scope of financial assets for which the need for allowances for credit losses must be assessed to include HTM and AFS debt securities, the new standard eliminates the existing OTTI model for such securities. Subsequent to an institution's adoption of ASU 2016-13, the concept of OTTI will no longer be relevant and information on OTTI will no longer be captured in the Call Report.
The new standard also eliminates the separate impairment model for PCI loans and debt securities. Under CECL, credit losses on PCD financial assets measured at amortized cost are subject to the same credit loss measurement standard as all other financial assets measured at amortized cost. Subsequent to an institution's adoption of ASU 2016-13, information on PCI loans will no longer be captured in the Call Report.
While the standard generally does not change the scope of off-balance sheet credit exposures subject to an allowance for credit loss assessment, the standard does change the period over which an institution should estimate expected credit losses. For off-balance-sheet credit exposures, an institution will estimate expected credit losses over the contractual period in which it is exposed to credit risk via a present contractual obligation to extend credit. For the period of exposure, the estimate of expected credit losses should consider both the likelihood that funding will occur and the amount expected to be funded over the estimated remaining life of the commitment or other off-balance-sheet exposure. In contrast to existing practices, the FASB decided that no credit losses should be recognized on off-balance-sheet credit exposures that are unconditionally cancellable by the issuer. The exclusion of unconditionally cancellable off-balance sheet exposures from the allowance for credit losses assessment requires clarification in the Call Report instructions.
The agencies also note that, because of the different effective dates for ASU 2016-13 for PBEs that are SEC filers, other PBEs (non-SEC filers), and all other entities, as well as the option for early adoption and the varying fiscal years across the population of institutions that file Call Reports, the period over which institutions may be implementing this ASU ranges from the first quarter of 2019 through the fourth quarter of 2022. December 31, 2022, will be the first quarter-end Call Report date as of which all institutions would be required to prepare their Call Reports in accordance with ASU 2016-13.
As of the new accounting standard's effective date for an individual institution, the institution will apply the standard based on the characteristics of financial assets as follows:
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This proposal addresses the changes to the reporting of reciprocal deposits and HVCRE exposures in the Call Report resulting from EGRRCPA. The guiding principles, noted above, were applied in determining these proposed changes to the Call Report.
The existing Call Report schedules impacted by EGRRCPA and for which revisions are included in this proposal are:
Schedule RC-E—Deposit Liabilities
Schedule RC-O—Other Data for Deposit Insurance and FICO Assessments
Schedule RC-R—Regulatory Capital: Part II. Risk-Weighted Assets
The proposed Call Report revisions are consistent across the FFIEC 031, FFIEC 041, and FFIEC 051 reporting forms to the extent that the same schedule and data items within these schedules currently exist within each reporting form. Throughout this detailed discussion of specific proposed Call Report revisions, for each schedule discussed, the agencies have included the affected form numbers next to the schedule name. Unless otherwise stated, all changes relating to a particular schedule apply to all forms listed.
Due to the staggered effective dates, ASU 2016-13 will not be implemented by all institutions until December 2022. It is expected that the majority of institutions will implement the standard in the first or fourth quarter of 2021. As such, the proposed revisions to schedule titles or specific data item captions resulting from the change in nomenclature upon the adoption of CECL generally would not be reflected in the reporting forms until March 31, 2021, as outlined in the following schedule-by-schedule descriptions of the proposed changes to the affected Call Report schedules. Effective for the March 31, 2021, report date, unless otherwise indicated, the schedule titles or specific data item captions referencing the “provision for loan and lease losses” and the “allowance for loan and lease losses” would be changed to the “provision for credit losses” and the “allowance for credit losses on loans and leases,” respectively.
From March 31, 2019, through December 31, 2020, the reporting form and instructions for each schedule title or data item impacted by the change in nomenclature would include guidance stating how institutions that have adopted ASU 2016-13 would report the data items related to the “provision for credit losses” and “allowance for credit losses,” as applicable. For the transition period from March 31, 2021, through December 31, 2022, the reporting form and instructions for each impacted schedule title or data item would be updated to include guidance stating how institutions that have not adopted ASU 2016-13 would report the “provision for loan and lease losses” or the “allowance for loan and lease losses,” as applicable.
To address the broader scope of financial assets for which provisions will be calculated under ASU 2016-13, the agencies propose to revise Schedule RI, item 4, from “Provision for loan and lease losses” to “Provisions for credit losses on financial assets,” effective March 31, 2021. To address the elimination of the concept of OTTI by ASU 2016-13, effective December 31, 2022, the agencies propose to remove Schedule RI, Memorandum item 14, “Other-than-temporary impairment losses on held-to-maturity and available-for-sale debt securities recognized in earnings.” Under the new standard, institutions will recognize credit losses on HTM and AFS debt securities through an allowance for credit losses, and the agencies propose to collect information on the allowance for credit losses on these two categories of debt securities in Schedule RI-B as described below. From March 31, 2019, through September 30, 2022, the reporting form and instructions for Memorandum item 14 will include guidance stating that Memorandum item 14 is to be completed only by institutions that have not adopted ASU 2016-13.
To address the broader scope of financial assets for which allowances will be calculated under ASU 2016-13 and for which charge-offs and recoveries will be applicable, the agencies propose to change the title of Schedule RI-B effective March 31, 2019, from “Charge-offs and Recoveries on Loans and Leases and Changes in Allowance for Loan and Lease Losses” to “Charge-offs and Recoveries on Loans and Leases and Changes in Allowances for Credit Losses.”
In addition, for the FFIEC 031 and FFIEC 041 only, effective March 31,
To further address the broader scope of financial assets for which allowances will be calculated under ASU 2016-13, the agencies propose to revise Schedule RI-B, Part II, to also include changes in the allowances for credit losses on HTM and AFS debt securities. Effective March 31, 2019, the agencies propose to change the title of Schedule RI-B, Part II, from “Changes in Allowance for Loan and Lease Losses” to “Changes in Allowances for Credit Losses.”
In addition, effective March 31, 2019, Schedule RI-B, Part II, would be expanded from one column to a table with three columns titled:
In addition, effective March 31, 2019, Schedule RI-B, Part II, item 4, will be revised from “Less: Write-downs arising from transfers of loans to a held-for-sale account” to “Less: Write-downs arising from transfers of financial assets” to capture changes in allowances from transfers of loans from held-to-investment to held-for-sale and from transfers of securities between categories,
Effective March 31, 2019, or the first quarter in which an institution reports its adoption of ASU 2016-13, whichever is later, Schedule RI-B, Part II, item 6, “Adjustments,” would be used to capture the initial impact of applying ASU 2016-13 as of the effective date in the period of adoption, including the initial allowance gross-up for PCD assets as of the effective date. Item 6 also would be used to report the allowance gross-up upon the acquisition of PCD assets on or after the effective date. These adjustments would be explained in items for which preprinted captions would be provided in place of the existing text fields in Schedule RI-E, items 6.a and 6.b, respectively, as proposed below.
In the memorandum section of Schedule RI-B, Part II, on the FFIEC 031 and the FFIEC 041, to address the change in allowance nomenclature arising from the broader scope of allowances under ASU 2016-13, the agencies propose to revise the caption for Memorandum item 3, effective March 31, 2021, from “Amount of allowance for loan and lease losses attributable to retail credit card fees and finance charges” to “Amount of allowance for credit losses on loans and leases attributable to retail credit card fees and finance charges.” Also in the memorandum section of Schedule RI-B, Part II, on the FFIEC 031 and the FFIEC 041, effective December 31, 2022, the agencies propose to remove existing Memorandum item 4, “Amount of allowance for post-acquisition credit losses on purchased credit impaired loans accounted for in accordance with FASB ASC 310-30,” as ASU 2016-13 eliminates the concept of PCI loans and the separate credit impairment model for such loans. From March 31, 2019, through September 30, 2022, the reporting form and instructions for Schedule RI-B, Part II, Memorandum item 4, would specify that this item should be completed only by institutions that have not yet adopted ASU 2016-13.
Given that the scope of ASU 2016-13 is broader than the three financial asset types proposed to be included in the table in Schedule RI-B, Part II, effective March 31, 2019, the agencies propose to also add new Memorandum item 5, “Provisions for credit losses on other financial assets measured at amortized cost,” and Memorandum item 6, “Allowance for credit losses on other financial assets measured at amortized cost,” to Schedule RI-B, Part II, at the same time. For purposes of Memorandum items 5 and 6, other financial assets would include all financial assets measured at amortized cost other than loans and leases held for investment and held-to-maturity debt securities. From March 31, 2019, through September 30, 2022, the reporting form and instructions for Schedule RI-B, Part II, would include guidance stating that Memorandum items 5 and 6 are to be completed only by institutions that have adopted ASU 2016-13.
Schedule RI-C currently requests allowance information for specified categories of loans held for investment that is disaggregated on the basis of three separate credit impairment models, and the amounts of the related recorded investment, from institutions with $1 billion or more in total assets. ASU 2016-13 eliminates these separate credit impairment models and replaces them with CECL for all financial assets measured at amortized cost. As a result of this change, effective March 31, 2021, the agencies propose to change the title of Schedule RI-C from “Disaggregated Data on the Allowance for Loan and Lease Losses” to “Disaggregated Data on Allowances for Credit Losses.”
To capture disaggregated data on allowances for credit losses from institutions that have adopted ASU 2016-13, the agencies propose to create Schedule RI-C, Part II, “Disaggregated Data on Allowances for Credit Losses,” effective March 31, 2019. The existing table in Schedule RI-C, which includes items 1 through 6 and columns A through F, would be renamed “Part I. Disaggregated Data on the Allowance for Loan and Lease Losses.” From March 31, 2019, through September 30, 2022, the reporting form and instructions for Schedule RI-C, Part I, would include guidance stating that only those institutions that have not adopted ASU 2016-13 should complete Schedule RI-C, Part I.
The proposed Part II of this schedule would contain the same six loan portfolio categories and the unallocated category for which data are currently collected in existing Schedule RI-C along with the following portfolio categories for which allowance information would begin to be reported for HTM debt securities:
For each category of loans in Part II of Schedule RI-C, institutions would
The agencies will use the securities-related information gathered in proposed Part II of the schedule to monitor the allowance levels and changes in these levels for the categories of HTM debt securities specified above, which would serve as a starting point for assessing the appropriateness of these levels. Further, with the proposed removal of the Call Report item for OTTI losses recognized in earnings (Schedule RI, Memorandum item 14), proposed Schedule RI-C, Part II, will become another source of information regarding credit losses on HTM debt securities, in addition to data proposed to be reported in Schedule RI-B, Part II. From March 31, 2019, through September 30, 2022, the reporting form and instructions for Schedule RI-C, Part II, would include guidance stating that only those institutions with $1 billion or more in total assets that have adopted ASU 2016-13 should complete Schedule RI-C, Part II.
In addition, effective December 31, 2022, the agencies propose to remove the existing Schedule RI-C, Part I. Schedule RI-C, Part II, would then be the only table remaining within this schedule and the “Part II” designation would be removed.
To address the broader scope of financial assets for which provisions will be calculated under ASU 2016-13, effective March 31, 2021, the agencies propose to revise Schedule RI-D, item 3, from “Provision for loan and lease losses in foreign offices” to “Provisions for credit losses in foreign offices.”
Institutions use item 4 of Schedule RI-E to itemize and describe amounts included in Schedule RI-A, item 2, “Cumulative effect of changes in accounting principles and corrections of material accounting errors.” Effective March 31, 2019, the agencies propose to replace the existing text field for Schedule RI-E, item 4.a, with a preprinted caption that would be titled “Adoption of Current Expected Credit Losses Methodology—ASC Topic 326.” Institutions will use this item to report the cumulative-effect adjustment (net of applicable income taxes) recognized in retained earnings for the changes in the allowances for credit losses on financial assets and off-balance sheet credit exposures as of the beginning of the fiscal year in which the institution adopts ASU 2016-13. Providing a preprinted caption for this data item, rather than allowing each institution to enter its own description for this cumulative-effect adjustment in the text field for item 4.a, will enhance the agencies' ability to compare the impact of the adoption of ASU 2016-13 across institutions. From March 31, 2019, through December 31, 2022, the reporting form and instructions for Schedule RI-E, item 4.a, would specify that this item is to be completed only in the quarter-end Call Reports for the remainder of the calendar year in which an institution adopts ASU 2016-13. The agencies anticipate that the preprinted caption for Schedule RI-E, item 4.a, would be removed after all institutions have adopted ASU 2016-13.
For Schedule RI-E, item 6, to address the broader scope of financial assets for which allowances will be maintained under ASU 2016-13, effective March 31, 2019, the agencies propose to revise this item from “Adjustments to allowance for loan and lease losses” to “Adjustments to allowances for credit losses.” In addition, effective March 31, 2019, the agencies propose to replace the existing text field for Schedule RI-E, item 6.a, with a preprinted caption that would be titled “Initial allowances for credit losses recognized upon the acquisition of purchased credit-deteriorated assets on or after the effective date of ASU 2016-13.” Also, effective March 31, 2019, the agencies propose to replace the existing text field for Schedule RI-E, item 6.b, with a preprinted caption that would be titled “Effect of adoption of current expected credit losses methodology on allowances for credit losses on loans and leases held for investment and held-to-maturity debt securities.” Item 6.b would be used to capture the change in the amount of allowances from initially applying ASU 2016-13 to these two categories of assets as of the effective date of the accounting standard in the period of adoption, including the initial allowance gross-up for any PCD assets held as of the effective date. From March 31, 2019, through September 30, 2022, the reporting form and instructions for Schedule RI-E, items 6.a and 6.b, would specify that these items are to be completed only by institutions that have adopted ASU 2016-13. The instructions for item 6.b would further state that this item is to be completed only in the quarter-end Call Reports for the remainder of the calendar year in which an institution adopts ASU 2016-13. The agencies anticipate that the preprinted caption for Schedule RI-E, item 6.b, would be removed after all institutions have adopted ASU 2016-13.
To address the broader scope of financial assets for which allowances will be estimated under ASU 2016-13, the agencies propose revisions to the reporting form and instructions to specify which asset categories should be reported net of an allowance for credit losses on the Call Report balance sheet and which asset categories should be reported gross of such an allowance. The agencies determined that the only financial asset category for which separate (
Effective March 31, 2021, the agencies propose to revise Schedule RC, item 2.a, from “Held-to-maturity securities” to “Held-to-maturity securities, net of allowance for credit losses.” From March 31, 2019, through December 31, 2020, the agencies propose to add a footnote to Schedule RC, item 2.a, specifying that institutions should “report this amount net of any applicable allowance for credit losses.” Additionally, for Schedule RC, item 3.b, “Securities purchased under agreements to resell,” and Schedule RC, item 11, “Other assets,” effective March 31, 2019, the agencies propose to add a footnote to these items specifying that institutions should “report this amount net of any applicable allowance for
In addition, to address the change in allowance nomenclature under ASU 2016-13, the agencies propose to revise Schedule RC, item 4.c, from “LESS: Allowance for loan and lease losses” to “LESS: Allowance for credit losses on loans and leases” effective March 31, 2021.
Effective March 31, 2019, the agencies propose to revise the instructions to Schedule RC-B to clarify that for institutions that have adopted ASU 2016-13, allowances for credit losses should not be deducted from the amortized cost amounts reported in columns A and C of this schedule.
Effective March 31, 2021, to address the change in allowance nomenclature, the agencies propose to revise the reporting form and instructions for Schedule RC-C by replacing references to the allowance for loan and lease losses in statements indicating that the allowance should not be deducted from the loans and leases reported in this schedule with references to the allowance for credit losses. Thus, loans and leases will continue to be reported gross of any related allowances or allocated transfer risk reserve in Schedule RC-C, Part I.
In addition, to address the elimination of PCI assets by ASU 2016-13, the agencies propose to remove Schedule RC-C, Part I, Memorandum items 7.a and 7.b, in which institutions report the outstanding balance and balance sheet amount, respectively, of PCI loans held for investment effective December 31, 2022. The agencies determined that these items were not needed after the transition to PCD loans under ASU 2016-13 because the ASU eliminates the separate credit impairment model for PCI loans and applies CECL to all loans held for investment measured at amortized cost. From March 31, 2019, through September 30, 2022, the reporting form and instructions for Schedule RC-C, Part I, Memorandum items 7.a and 7.b, would specify that these items should be completed only by institutions that have not yet adopted ASU 2016-13.
Additionally, since ASU 2016-13 supersedes ASC 310-30, the agencies propose to revise Schedule RC-C, Part I, Memorandum item 12, “Loans (not subject to the requirements of FASB ASC 310-30 (former AICPA Statement of Position 03-3)) and leases held for investment that were acquired in business combinations with acquisition dates in the current calendar year,” effective December 31, 2022. As revised, the loans held for investment to be reported in Memorandum item 12 would be those not considered purchased credit deteriorated per ASC 326. From March 31, 2019, through September 30, 2022, the agencies propose to revise the reporting form and instructions for Schedule RC-C, Part I, by adding a statement explaining that, subsequent to adoption of ASU 2016-13, an institution should report only loans held for investment not considered purchased credit deteriorated per ASC 326 in Schedule RC-C, Part I, Memorandum item 12.
To address the broader scope of financial assets for which allowances will be applicable under ASU 2016-13, the agencies propose to specify that assets within the scope of the ASU that are included in Schedule RC-F should be reported net of any applicable allowances for credit losses. Effective March 31, 2019, the agencies propose to revise the reporting form and the instructions for Schedule RC-F by adding a statement explaining that, subsequent to adoption of ASU 2016-13, an institution should report asset amounts in Schedule RC-F net of any applicable allowances for credit losses.
In addition, effective March 31, 2019, the agencies propose to add a footnote to item 1, “Accrued interest receivable,” on the reporting form and a statement to the instructions for item 1 that specify that institutions should exclude from this item any accrued interest receivable that is reported elsewhere on the balance sheet as part of the related financial asset's amortized cost.
To address ASU 2016-13's exclusion of off-balance sheet credit exposures that are unconditionally cancellable from the scope of off-balance sheet credit exposures for which allowances for credit losses should be measured, the agencies propose to revise the reporting form and instructions for Schedule RC-G, item 3, “Allowance for credit losses on off-balance-sheet credit exposures,” effective March 31, 2019. As revised, the reporting form and instructions would state that institutions that have adopted ASU 2016-13 should report in item 3 the allowance for credit losses on those off-balance-sheet credit exposures that are not unconditionally cancellable.
Effective March 31, 2019, the agencies propose to revise the instructions to Schedule RC-H to clarify that institutions that have adopted ASU 2016-13 should report Schedule RC-H, item 3, “Securities purchased under agreements to resell,” at amortized cost net of any related allowance for credit losses, which would be consistent with the proposed reporting of this asset category in Schedule RC—Balance Sheet. Also effective March 31, 2019, the agencies propose to revise the instructions to items 10 through 17 of Schedule RC-H to clarify that, for institutions that have adopted ASU 2016-13, allowances for credit losses should not be deducted from the amortized cost amounts reported for HTM debt securities in column A.
Effective March 31, 2019, the agencies propose to revise the instructions to Schedule RC-K to clarify that, for institutions that have adopted ASU 2016-13, allowances for credit losses should not be deducted from the related amortized cost amounts when calculating the quarterly averages for all debt securities.
To address the elimination of PCI assets by ASU 2016-13, the agencies propose to remove Schedule RC-N, Memorandum items 9.a and 9.b, in which institutions report the outstanding balance and balance sheet amount, respectively, of past due and nonaccrual PCI loans effective December 31, 2022. The agencies determined that these items were not needed for PCD loans under ASU 2016-13 given that the ASU eliminates the separate credit impairment model for PCI loans and applies CECL to PCD loans and all other loans held for investment measured at amortized cost. From March 31, 2019, through September 30, 2022, the reporting form and the instructions for Schedule RC-N, Memorandum items 9.a and 9.b, would specify that these items should be completed only by institutions that have not yet adopted ASU 2016-13.
In connection with the agencies' recently issued proposed rule on the implementation of CECL and the related transition for regulatory capital (CECL NPR),
The CECL NPR would introduce a newly defined regulatory capital term, allowance for credit losses (ACL), which would replace the term ALLL, as defined under the existing capital rules, for institutions that have adopted CECL. The CECL NPR also proposes that credit loss allowances for PCD assets held by these institutions would be netted when determining the carrying value, as defined in the CECL NPR, and, therefore, only the resulting net amount would be subject to risk-weighting. In addition, under the CECL NPR, the agencies are proposing to provide each institution the option to phase in over the three-year period beginning with the institution's CECL effective date the day-one regulatory capital effects that may result from the adoption of ASU 2016-13.
In general, under the CECL NPR, institutions that have adopted CECL would report ACL amounts in Schedule RC-R items instead of ALLL amounts that are currently reported. Effective December 31, 2022, the agencies are proposing to remove references to ALLL and replace them with references to ACL on the reporting form for Schedule RC-R. From March 31, 2019, through September 30, 2022, the agencies are proposing to revise the instructions to Schedule RC-R to direct institutions that have adopted CECL to use ACL amounts instead of ALLL amounts in calculating regulatory capital. The instructional revisions would affect Schedule RC-R, Part I. Regulatory Capital Components and Ratios, item 30 (FFIEC 051) and item 30.a (FFIEC 031 and 041), “Allowance for loan and lease losses includable in tier 2 capital”; and Schedule RC-R, Part II. Risk-Weighted Assets, item 6, “LESS: Allowance for loan and lease losses”; item 26, “Risk-weighted assets base for purposes of calculating the allowance for loan and lease losses 1.25 percent threshold”; item 28, Risk-weighted assets before deductions for excess allowance for loan and lease losses and allocated transfer risk reserve”; and item 29, “LESS: Excess allowance for loan and lease losses”.
In addition, under the CECL NPR, assets and off-balance sheet credit exposures for which any related credit loss allowances are eligible for inclusion in regulatory capital would be calculated and reported in Schedule RC-R, Part II. Risk-Weighted Assets, on a gross basis. Therefore, the agencies are proposing to revise the instructions for Schedule RC-R, Part II, Risk-Weighted Assets, item 2.a, “Held-to-maturity securities”; item 3.b, “Securities purchased under agreements to resell”; item 5.a, “Residential mortgage exposures” held for investment; item 5.b, “High volatility commercial real estate exposures” held for investment; item 5.c, Held-for-investment “Exposures past due 90 days or more or on nonaccrual”; item 5.d, “All other exposures” held for investment; item 8, “All other assets,” and item 9.a, “On-balance sheet securitization exposures: Held-to-maturity securities”; to explain that institutions that have adopted CECL should report and risk weight their loans and leases held for investment, HTM securities, and other financial assets measured at amortized cost gross of their credit loss allowances, but net of any associated allowances on PCD assets.
In addition, effective March 31, 2019, the agencies propose to add a new Memorandum item 4 to Schedule RC-R, Part II, that would collect data by asset category on the “Amount of allowances for credit losses on purchased credit-deteriorated assets.” The amount of such allowances for credit losses would be reported separately for “Loans and leases held for investment” in Memorandum item 4.a, “Held-to-maturity debt securities” in Memorandum item 4.b, and, “Other financial assets measured at amortized cost” in Memorandum item 4.c. The instructions for Schedule RC-R, Part II, Memorandum item 4, would specify that these items should be completed only by institutions that have adopted ASU 2016-13.
The agencies also would include footnotes for the affected Schedule RC-R items on the reporting forms to highlight the revised treatment of those items for institutions that have adopted CECL.
Under the CECL NPR, an institution that experiences a reduction in retained earnings as of the effective date of CECL for the institution as a result of the institution's adoption of CECL may elect to phase in the regulatory capital impact of adopting CECL (electing institution). As described in the CECL NPR, an
During the CECL transition period, an electing institution would need to make adjustments to its retained earnings, temporary difference deferred tax assets (DTAs), ACL, and average total consolidated assets for regulatory capital purposes. An advanced approaches electing institution also would need to make an adjustment to its total leverage exposure. These adjustments are described in detail in the CECL NPR.
The agencies are proposing to revise the instructions to Schedule RC-R, Part I. Regulatory Capital Components and Ratios, item 2, “Retained earnings”; items 30 (FFIEC 051) and 30.a (FFIEC 031 and 041), “Allowance for loan and lease losses includable in tier 2 capital”; item 36, “Average total consolidated assets”; and item 45.a (FFIEC 031 and 041), “Total leverage exposure”; and Schedule RC-R, Part II. Risk-Weighted Assets, item 8, “All other assets,” consistent with the adjustments to these items for the applicable transitional amounts as described in the CECL NPR for the reporting by electing institutions of the adjusted amounts. The agencies also propose to include footnotes on the reporting forms to highlight the changes to these items for electing institutions.
The agencies propose to clarify in the instructions effective March 31, 2019, that all assets of consolidated variable interest entities should be reported net of applicable allowances for credit losses by institutions that have adopted ASU 2016-13. Net reporting on Schedule RC-V by such institutions is consistent with the proposed changes to Schedules RC and RC-F. Similarly, effective March 31, 2019, the reporting form for Schedule RC-V will also specify that institutions that have adopted ASU 2016-13 should report assets net of applicable allowances.
To address the change in allowance nomenclature arising from the broader scope of allowances under ASU 2016-13, the agencies propose to revise Schedule SU, item 8.c, effective March 31, 2021, from “Amount of allowance for loan and lease losses attributable to retail credit card fees and finance charges” to “Amount of allowance for credit losses on loans and leases attributable to retail credit card fees and finance charges.”
As mentioned above in Section B of “Supplementary Information, I. Background,” Sections 202 and 214 of EGRRCPA on reciprocal deposits and HVCRE ADC loans, respectively, were effective upon enactment on May 24, 2018, and affect the reporting of information in the Call Reports effective beginning with the June 30, 2018, report date. To assist institutions in preparing their Call Reports for that report date, the Call Report Supplemental Instructions for June 2018 included information regarding the reporting of HVCRE exposures and reciprocal deposits.
In amending Section 29 of the FDI Act to except a capped amount of reciprocal deposits from treatment as brokered deposits for qualifying institutions, Section 202 defines “reciprocal deposits” to mean “deposits received by an agent institution through a deposit placement network with the same maturity (if any) and in the same aggregate amount as covered deposits placed by the agent institution in other network member banks.” The terms “agent institution,” “deposit placement network,” “covered deposit,” and “network member bank,” all of which are used in the definition of “reciprocal deposit,” also are defined in Section 202.
In particular, an “agent institution” is an FDIC-insured depository institution that meets at least one of the following criteria:
• The institution is well-capitalized
• The institution has obtained a waiver from the FDIC to accept, renew, or roll over brokered deposits pursuant to section 29(c) of the FDI Act (12 U.S.C. 1831f(c)); or
• The institution does not receive reciprocal deposits in an amount that is greater than a “special cap” (discussed below).
Under the “general cap” set forth in Section 202, an agent institution may classify reciprocal deposits up to the lesser of the following amounts as non-brokered reciprocal deposits:
• $5 billion, or
• An amount equal to 20 percent of the agent institution's total liabilities.
Any amount of reciprocal deposits in excess of the “general cap” would be treated as, and should be reported in the Call Report as, brokered deposits.
A “special cap” applies if an agent institution is either
Section 51 of the FDI Act, as added by Section 214 of EGRRCPA, governs the risk-based capital requirements for HVCRE ADC Loans and defines this term. Under Section 214, the assignment of a heightened risk weight to HVCRE exposures may be required only if the exposure meets the statutory definition of an HVCRE ADC Loan.
The revisions discussed in this section have already been submitted to OMB under the emergency review process, and OMB has approved these changes. However, the agencies are requesting comment on whether there should be any further changes for these items or revisions to the items or instructions developed by the agencies.
To address the change in the treatment of certain reciprocal deposits under Section 202 of EGRRCPA in the Call Report, the agencies, through the
In addition, the agencies plan to add a new Memorandum item 1.g to Schedule RC-E in which institutions would report their “Total reciprocal deposits” (as of the report date) in accordance with the definition of this term in Section 202, starting with the September 30, 2018, Call Report. The new Memorandum item 1.g of Schedule RC-E would be used in determining an institution's “special cap” if the institution were found to not have a composite condition of “outstanding” or “good” or was determined not to be well capitalized. The measurement of an institution's “special cap” would be the average of reciprocal deposits held on the last day of each of the four calendar quarters preceding the calendar quarter in which the institution was found to not have a composite condition of “outstanding” or “good” or was determined not to be well capitalized.
From a supervisory perspective, a funding concentration could arise if a significant amount of an institution's deposits comes from reciprocal deposits obtained through a single deposit placement network, regardless of whether the reciprocal deposits are treated as brokered under Section 202. Examiners review funding concentrations on an institution-by-institution basis. The Memorandum item for “Total reciprocal deposits” would enable the agencies to identify significant changes in the reported amounts of such deposits at institutions for appropriate supervisory follow-up.
To address the change in the treatment of certain reciprocal deposits under Section 202 of EGRRCPA, the agencies, through the Supplemental Instructions for June 2018, explained that institutions that chose to report based on the new law should include in items 9, “Reciprocal brokered deposits,” and 9.a, “Fully consolidated reciprocal brokered deposits,” only those reciprocal deposits that are still considered brokered deposits after application of Section 202 of the new law. The agencies plan to reissue these Supplemental Instructions for September 2018. Revised instructions for items 9 and 9.a will be incorporated into the Call Report instruction books at a future date.
To address the EGRRCPA change that applies to the reporting of HVCRE exposures for risk-based capital purposes, the agencies revised the instructions to Schedule RC-R, Part II, through the Call Report Supplemental Instructions for June 2018. The revised instructions explain that, pending further action by the agencies, when reporting HVCRE exposures in Schedule RC-R, Part II, institutions may use available information to reasonably estimate and report only “HVCRE ADC Loans” held for sale, held for investment, and held for trading in Schedule RC-R, Part II, items 4.b, 5.b and 7, respectively. The portion of any “HVCRE ADC Loan” that is secured by collateral or has a guarantee that qualifies for a risk weight lower than 150 percent may continue to be assigned a lower risk weight when completing Schedule RC-R, Part II. Pending further agency action, institutions may refine their estimates of “HVCRE ADC Loans” in good faith as they obtain additional information, but they will not be required to amend Call Reports previously filed for report dates on or after June 30, 2018, as these estimates are adjusted. Alternatively, institutions may continue to report and risk weight HVCRE exposures in a manner consistent with the current Call Report instructions for Schedule RC-R, Part II, until the agencies take further action. The agencies will incorporate the instructions for these items, currently in the Supplemental Instructions for June 2018, into the Call Report instruction books at a future date.
At present, a reporting U.S. branch or agency of a foreign bank is not required to, but may choose to, establish a general allowance for loan losses, which it would report in its FFIEC 002 report in Schedule M, Part IV, item 1, “Amount of allowance for loan losses, if any, carried on the books of the reporting branch or agency including its IBF.” In addition, any general allowance for loan losses is reported in Schedule M, Part I, item 2(a), column B, as part of the “Gross due to” the “Head office of parent bank,” as well as in either Schedule RAL, item 2(a), “Net due from related depository institutions,” or item 5(a), Net due to related depository institutions,” as applicable. The institution would report the total amount of the allowance carried on the books of the reporting institution, even if part of that allowance is applicable to other branches.
To address the change in allowance nomenclature arising from the broader scope of allowances under ASU 2016-13, the agencies propose to revise Schedule M, Part IV, item 1, from “Amount of allowance for loan losses” to “Allowance for credit losses on loans and leases,” effective March 31, 2021. For the period from March 31, 2019, through December 31, 2020, the reporting form and instructions for this data item would include guidance stating that institutions that have adopted ASU 2016-13 would report the “allowance for credit losses on loans and leases,” as applicable. For the transition period from March 31, 2021, through December 31, 2022, the reporting form and instructions for this data item would be updated to include guidance stating that institutions that have not adopted ASU 2016-13 would report the amount of the “allowance for loan losses,” as applicable. In addition, for these same time periods, the agencies propose to revise the instructions for Schedule M, Part I, item 2(a), column B, as well as Schedule RAL, items 2(a) and 5(a), to incorporate language clarifying that institutions should include any allowance for loan losses or any allowances for credit losses in these items, as applicable. If an institution chooses to establish them, the allowances for credit losses reportable in item 2(a) or 5(a), as applicable, could apply to loans, leases, other financial assets measured at amortized cost, and off-balance sheet credit exposures (but not available-for-sale securities, which are reported at fair value on Schedule RAL).
Finally, effective March 31, 2019, the agencies propose to add a statement to the instructions for Schedule RAL, item 1(h), “Other assets (including other claims on nonrelated parties,” that specifies that institutions that have adopted ASU 2016-13 should exclude from this item any accrued interest receivable that is reported elsewhere on the balance sheet as part of the related financial asset's amortized cost.
The General Instructions for the FFIEC 002S state that due from/due to relationships with related institutions (both depository and nondepository) are to be reported on a gross basis and that such relationships include all claims between the foreign branch and any related institutions (whether depository or nondepository) arising in connection with any accounting or regulatory allocations entered on the books of the reporting foreign branch that ultimately affect unremitted profits. As an example of such allocations, the General Instructions cite the “allowance for possible loan losses.” In addition, the instructions for item 2(c), “Loans,” states that loans (and leases) should be reported before deduction of any allowance for loan losses. To address the change in allowance nomenclature arising from the broader scope of allowances under ASU 2016-13, the agencies propose to revise the FFIEC 002S General Instructions and item 2(c) instructions to change the “allowance for loan losses” terminology to “allowances for credit losses” and “allowances for credit losses on loans and leases,” respectively, effective March 31, 2021. Allowances for credit losses could apply to loans, leases, other financial assets measured at amortized cost, and off-balance sheet credit exposures (but not available-for-sale securities). For the period from March 31, 2019, through December 31, 2020, the General Instructions for reporting due from/due to relationships would include guidance stating that institutions that have adopted ASU 2016-13 should interpret the “allowance for loan losses” as “allowances for credit losses,” as applicable. For the transition period from March 31, 2021, through December 31, 2022, these General Instructions would include guidance stating that institutions that have not adopted ASU 2016-13 should interpret “allowances for credit losses” as the “allowance for loan losses,” as applicable. Comparable changes would be made to the instructions for item 2(c) for these periods.
All asset categories on the FFIEC 030 report are reported gross of any related allowances. Allowances for credit losses, including loan and lease losses, are reported in line item 16, “Gross due to head office, U.S. branches, and other foreign branches of this bank.” Currently, however, the instructions for line item 8, “Gross due from head office, U.S. branches, and other foreign branches of this bank,” also state that institutions should report any allowance for loan and lease losses and other valuation allowances in this line item. Effective March 31, 2019, the agencies propose to remove this language from the line item 8 instructions since the allowance for loan and lease losses and other valuation allowances are reported in line item 16. Additionally, the agencies propose to add a statement to the instructions for balance sheet item 10, “Other assets,” that specifies that institutions that have adopted ASU 2016-13 should exclude from this item any accrued interest receivable that is reported elsewhere on the balance sheet as part of the related financial asset's amortized cost.
The gross due to amounts reported in Liabilities item 16, “Gross due to head office, U.S. branches, and other foreign branches of this bank,” include any allowance for loan and lease losses on the books of the reporting branch. To address the change in allowance nomenclature arising from the broader scope of allowances under ASU 2016-13, effective March 31, 2019, the agencies propose to revise the reporting instructions for Liabilities item 16, to change “any allowance for loan and lease losses” to “any allowances for credit losses.” From March 31, 2019, through September 30, 2022, the instructions for item 16 would specify that institutions that have not adopted ASU 2016-13 should continue to include the allowance for loan and lease losses in this item.
Branches that file the FFIEC 030S report their “Gross due to related institutions” in item 3. The instructions for item 3 state that this item corresponds to FFIEC 030 Liabilities items 16 and 17.
The proposed changes in the CECL NPR would revise the capital rules applicable to an advanced approaches institution
To reflect the proposed changes in the CECL NPR and in the optional CECL transition provision, the agencies are proposing to revise the instructions to FFIEC 101, Schedule A—Advanced Approaches Regulatory Capital, item 50, “Eligible credit reserves includable in tier 2 capital”; item 76, “Total allowance for loan and lease losses (ALLL) under the standardized approach”; and item 77, “Amount of ALLL includable in tier 2 capital under the standardized approach,” effective March 31, 2019, for advanced approaches institutions that have adopted CECL. The proposed revisions to these instructions would incorporate the new definitions in the CECL NPR, as well as the mechanics of the CECL transition provision for electing advanced approaches institutions that have adopted CECL. The agencies also would include footnotes on the forms to highlight these items for these advanced approaches institutions.
In addition, the definition of HVCRE ADC Loan in Section 214 of EGRRCPA that applies to the reporting of such exposures held for sale, held for investment, and held for trading in Schedule RC-R, Part II, of the Call Report also impacts the reporting of information in the FFIEC 101 on HVCRE exposures in Schedule B, item 5, and Schedule G—High Volatility Commercial Real Estate.
Public comment is requested on all aspects of this joint notice. Comment is specifically invited on:
(a) In Call Report Schedule RI, Income Statement, whether institutions should continue reporting the provision for credit losses on off-balance sheet credit exposures in item 7.d, “Other noninterest expense,” or whether institutions should report this expense as part of proposed item 4, “Provisions for credit losses on financial assets”;
(b) In Call Report Schedule RI-C, Part II, Disaggregated Data on Allowances for Credit Losses, whether the agencies should retain item 5 for reporting unallocated allowances for loans and leases, as proposed, or whether ASU 2016-13 is viewed as eliminating the potential for unallocated allowances considering the accounting standard requires allowances to be estimated at a pool level when similar risk characteristics exist and at an individual asset level when similar risk characteristics do not exist;
(c) For proposed Schedule RI-C, Part II, whether the general categories of debt securities for which data are proposed to be collected are at the appropriate level of granularity or whether alternative categories should be used and, if so, what these categories should be;
(d) Also for proposed Schedule RI-C, Part II, whether the proposed annual reporting frequency for the disaggregation of data on the allowances for credit losses on HTM debt securities and AFS debt securities is appropriate or whether more frequent reporting of these data would be more appropriate and, if so, what the reporting frequency should be;
(e) Whether, after an institution adopts ASU 2016-13, all accrued interest receivable currently reported in “Other assets” should be reported as part of the balance sheet amount of the related financial asset, consistent with the definition of amortized cost in the ASU;
(f) Whether the agencies should consider according confidential treatment to Schedule RC-O, items 9 and 9.a, on reciprocal brokered deposits, and Schedule RC-E, Memorandum items 1.b through 1.d, on brokered deposits, because amounts an institution reports in these items in relation to the amount reported in proposed Schedule RC-E, Memorandum item 1.g, “Total reciprocal deposits,” and changes in these reported amounts over time, may enable users of Call Report data to make inferences about the institution's composite rating under the Uniform Financial Institutions Rating System, which is confidential supervisory information;
(g) Whether the proposed revisions to the collections of information that are the subject of this notice are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(h) The accuracy of the agencies' estimates of the burden of the information collections as they are proposed to be revised, including the validity of the methodology and assumptions used;
(i) Ways to enhance the quality, utility, and clarity of the information to be collected;
(j) 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
(k) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this joint notice will be shared among the agencies. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is outdated and no longer used.
Effective September 28, 2018.
Ms. Carrie Moore, telephone 571-372-6093.
DoD is amending the DFARS to remove DFARS clause 252.247-7020, Additional Services, and the associated clause prescription at DFARS 247.271-3. DFARS clause 252.247-7020 applies to personal property movement and storage contracts when a need for services related to the contract, but not specifically addressed in the contract, occurs during contract performance.
The DFARS clause is included in contracts when acquiring services for the preparation of personal property for movement or storage, or for performance of intra-city or intra-area movement, and advises contractors that the rates billed to the US Government for additional services must be comparable to the rates for similar services on file with the Military Traffic Management Command at the time of the order.
The DFARS clause is no longer necessary, as the requirement for personal property movement and storage has evolved since the creation of this clause. Coordination with multi-functional teams and proactive communication with customers has better defined such additional services, and the requirement for these services is included in the performance work statement and resultant contract line item structure. As such, this clause is no longer necessary.
The removal of this DFARS clause supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the
This rule merely removes obsolete DFARS clause 252.247-7020, Additional Services. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items.
Executive Order (E.O.) 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, 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. The Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA), has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2).
This rule is not an Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, regulatory action, because this rule is not significant under E.O. 12866.
The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule merely removes an obsolete clause from the DFARS.
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section V. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 247 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is no longer necessary.
Effective September 28, 2018.
Ms. Carrie Moore, telephone 571-372-6093.
DoD is amending the DFARS to remove the DFARS clause 252.247-7005, Indefinite Quantities—No Fixed Charges, and the associated clause prescription at DFARS 247.270-4(e). The DFARS clause is used in indefinite-delivery, indefinite-quantity contracts for stevedoring services to notify the contractor that the minimum value of an order placed under the contract shall not be less than $100.
Federal Acquisition Regulation (FAR) clause 52.216-19, Order Limitations, is prescribed for use in all indefinite-delivery contracts and notifies the contractor of the minimum and maximum values of orders to be placed under the contract. In the FAR clause, the minimum and maximum values are blank spaces to be filled-in by the contracting officer prior to solicitation. The FAR clause serves the same purpose as the DFARS clause and can be used to reflect the appropriate ordering limitations for stevedoring services. As such, this DFARS clause is unnecessary and can be removed.
The removal of this DFARS clause supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the
This rule only removes DFARS clause 252.247-7005, Indefinite Quantities—No Fixed Charges, which is obsolete. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold or for commercial items, including commercially available off-the-shelf items.
E.O. 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, 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. The Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2).
This rule is not an E.O. 13771, Reducing and Controlling Regulatory Costs, regulatory action, because this rule is not significant under E.O. 12866.
The statute that applies to the publication of the FAR is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule merely removes an obsolete requirement from the DFARS.
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section V. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
The rule does not contain any information collection requirements that require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 247 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is no longer necessary.
Effective September 28, 2018.
Ms. Carrie Moore, telephone 571-372-6093.
DoD is amending the DFARS to remove the DFARS clause 252.216-7005, Award Fee, and the associated clause prescription at DFARS 216.406(e)(2). The DFARS clause advises contractors that: They may earn an award fee from zero dollars to the maximum amount stated in the award fee plan; an award fee will not be paid for any evaluation period in which the Government rates the contractor's overall cost, schedule, and technical performance below satisfactory; and, the contracting officer may unilaterally revise the award fee plan prior to the beginning of a rating period in order to redirect the contractor's emphasis on performance.
Federal Acquisition Regulation (FAR) 16.401 prescribes the award fee pool percentages that are available to the contractor and required for use by the Government in an award fee plan. Like the DFARS clause, these percentages permit the contractor to earn between 0% and 100% of the award fee pool. Also like the DFARS clause, the FAR requires all award fee plans to prohibit contractors from earning any award fee when the contractor's overall cost, schedule, and technical performance is below satisfactory. While the FAR does not address the unilateral ability to of the contracting officer to make revisions to the award fee plan, as discussed in the DFARS clause, the FAR does require award fee plans to contain reasonable and attainable targets that motivate contractors and discourage inefficiency or waste. Finally, DFARS 216.401 requires the award fee plan to be incorporated into the contract. This action provides contractors with an award fee plan that conveys all of the FAR information and requirements for award fee plans. As such, this DFARS clause is unnecessary and can be removed.
The removal of this DFARS clause supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the
This rule only removes DFARS clause 252.216-7005, Award Fee, which is obsolete. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold and for commercial items, including commercially available off-the-shelf items.
E.O. 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, 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. The Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2).
This rule is not an E.O. 13771, Reducing and Controlling Regulatory Costs, regulatory action, because this rule is not significant under E.O. 12866.
The statute that applies to the publication of the FAR is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section V. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
The rule does not contain any information collection requirements that require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 216 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove a clause that is no longer necessary.
Effective September 28, 2018.
Ms. Carrie Moore, telephone 571-372-6093.
DoD is amending the DFARS to remove the DFARS clause 252.247-7004, Indefinite Quantities—Fixed Charges, and the associated clause prescription at DFARS 247.270-4(d). When applicable, the DFARS clause is used in indefinite-delivery, indefinite-quantity contracts for stevedoring services to notify the contractor that the Government is obligated to pay the contractor the fixed monthly amount established in the contract.
This notification is not necessary, since line items are established in all contracts to describe the items being purchased, as well as the pricing, funding, and delivery information for each item. The award of the contract is the Government's agreement to pay the contractor for the line items, in accordance with the contract; therefore, this DFARS clause provides no additional benefit for the contractor or the Government. As such, this DFARS clause is unnecessary and can be removed.
The removal of this DFARS text supports a recommendation from the DoD Regulatory Reform Task Force. On February 24, 2017, the President signed Executive Order (E.O.) 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. In accordance with E.O. 13777, DoD established a Regulatory Reform Task Force to review and validate DoD regulations, including the DFARS. A public notice of the establishment of the DFARS Subgroup to the DoD Regulatory Reform Task Force, for the purpose of reviewing DFARS provisions and clauses, was published in the
This rule only removes DFARS clause 252.247-7004, Indefinite Quantities—Fixed Charges, which is obsolete. Therefore, the rule does not impose any new requirements on contracts at or below the simplified acquisition threshold or for commercial items, including commercially available off-the-shelf items.
E.O. 12866, Regulatory Planning and Review; and E.O. 13563, Improving Regulation and Regulatory Review, 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. The Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2).
This rule is not an E.O. 13771, Reducing and Controlling Regulatory Costs, regulatory action, because this rule is not significant under E.O. 12866.
The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule merely removes an obsolete notification from the DFARS.
Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section V. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
The rule does not contain any information collection requirements that require the approval of the OMB under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 247 and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Bureau of Land Management, Interior.
Final rule.
In this action, the Bureau of Land Management (BLM) is revising its regulations, as amended by the November 18, 2016, rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” in a manner that reduces unnecessary compliance burdens, is consistent with the BLM's existing statutory authorities, and re-establishes longstanding requirements that had been replaced. The BLM is rescinding the novel requirements pertaining to waste-minimization plans, gas-capture percentages, well drilling, well completion and related operations, pneumatic controllers, pneumatic diaphragm pumps, storage vessels, and leak detection and repair (LDAR). The BLM is also revising other provisions related to venting and flaring and is adding provisions regarding deference to appropriate State or tribal regulation in determining when flaring of associated gas from oil wells will be royalty-free.
The final rule is effective on November 27, 2018.
Steven Wells, Division Chief, Fluid Minerals Division, 202-912-7143 or
On November 18, 2016, the BLM published in the
On March 28, 2017, President Trump issued Executive Order (E.O.) 13783, “Promoting Energy Independence and Economic Growth,” directing the BLM to review the 2016 rule and, if appropriate, to publish proposed and final rules suspending, revising, or rescinding it.
The BLM reviewed the 2016 rule and found that certain impacts were underestimated and many provisions of the rule would have added regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. The BLM also found that the 2016 rule's approach to reduction of fugitive emissions and flaring departed from the historic approach of considering “waste” in the context of a reasonable and prudent operator standard. This final rule revises the 2016 rule in a manner that ensures consistency with the policies set forth in section 1 of E.O. 13783, which states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”
The BLM reviewed the 2016 rule and determined that it would have imposed costs exceeding its benefits. As detailed in the Regulatory Impact Analysis (RIA) prepared for this rule, and evidenced by the RIA prepared for the 2016 rule (2016 RIA), many of the provisions of the 2016 rule would have imposed compliance costs well in excess of the value of the resource (natural gas) that would have been conserved. In addition, the provisions of the 2016 rule, unlike the analogous Environmental Protection Agency (EPA) regulations with which many of them overlapped, would have affected existing wells, including a substantial number that are “marginal,” or low-producing, and therefore less likely to remain economical to operate if subjected to additional compliance costs. The BLM estimates that approximately 73 percent of wells on BLM-administered leases would be considered marginal wells and that the annual compliance costs associated with the 2016 rule would have constituted 24 percent of an operator's annual revenues from even the highest-producing marginal oil wells and 86 percent of an operator's annual revenues from the highest-producing marginal gas wells. Finally, the BLM has determined that the 2016 rule also contains numerous administrative and reporting requirements that would have imposed unnecessary burdens on operators and the BLM. For these reasons, the BLM revised the 2016 rule in a manner that reduces unnecessary compliance burdens and, in large part, re-establishes the longstanding requirements that the 2016 rule replaced.
With this final rule, the BLM is discouraging excessive venting and flaring by placing volume and/or time limits on royalty-free venting and flaring during production testing, emergencies, and downhole well maintenance and liquids unloading. The BLM has also retained the 2016 rule's subpart 3178 provisions, which incentivize the beneficial use of gas by making gas used for operations and production purposes royalty free. Finally, by rescinding the 2016 rule's prescriptive requirements for pneumatic equipment, storage tanks, and LDAR—many of which were not cost-effective and risked the early shut-in of marginal wells—this final rule allows operators to continue implementing waste reduction strategies and programs that they find successful and to tailor or modify their programs in a manner that makes sense for their operations.
The BLM manages more than 245 million acres of public land, known as the National System of Public Lands, primarily located in 12 Western States, including Alaska. The BLM also manages 700 million acres of subsurface mineral estate throughout the nation.
The BLM's onshore oil and gas management program is a major contributor to the nation's oil and gas production. In fiscal year (FY) 2017, sales volumes from Federal onshore production lands accounted for approximately 9 percent of domestic natural gas production, 5 percent of U.S. natural gas liquids production, and 5
The venting or flaring of some natural gas is a practically unavoidable consequence of oil and gas development. Whether during well drilling, production testing, well purging, or emergencies, it is not uncommon for gas to reach the surface that cannot be feasibly captured, used, or sold. When this occurs, the gas must either be combusted (“flared”) or released to the atmosphere (“vented”). Depending on the circumstances, operators may flare natural gas on a longer-term basis from production operations, predominantly in situations where an oil well co-produces natural gas (or “associated gas”) in an exploratory area or a field that lacks adequate gas-capture infrastructure to bring the gas to market. Production equipment may be designed to vent or flare gas,
In response to oversight reviews and a recognition of increased flaring from Federal and Indian leases, the BLM developed a final rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” which was published in the
The 2016 rule was intended to: Reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian leases; clarify when produced gas lost through venting, flaring or leaks is subject to royalties; and clarify when oil and gas production may be used royalty free on-site. The 2016 rule applied to all wells producing Federal and Indian oil and gas and regulated new, modified, and existing sources of methane emissions on Federal and Indian leases, units, and communitized areas. The 2016 rule became effective on January 17, 2017, with some requirements taking effect immediately, but the majority of requirements were to phase-in over time.
On March 28, 2017, President Trump issued E.O. 13783, entitled, “Promoting Energy Independence and Economic Growth,” directing the BLM to review the 2016 rule. Section 7(b) of E.O. 13783 directs the Secretary of the Interior to review four specific rules, including the 2016 rule, for consistency with the policy articulated in section 1 of the Order and, if appropriate, to publish rules suspending, revising, or rescinding those rules. Among other things, section 1 of E.O. 13783 states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”
To implement E.O. 13783, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3349, entitled, “American Energy Independence” on March 29, 2017, which, among other things, directs the BLM to review the 2016 rule to determine whether it is fully consistent with the policy set forth in section 1 of E.O. 13783.
The BLM reviewed the 2016 rule and determined it to be inconsistent with the policy in section 1 of E.O. 13783. The BLM found that some provisions of the 2016 rule would have added (once fully in effect) regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. The BLM estimates that approximately 73 percent of wells on BLM-administered leases would be considered marginal wells and that the annual compliance costs associated with the 2016 rule would have constituted 24 percent of the annual revenues of even the highest-producing marginal oil wells and 86 percent of the annual revenues of the highest-producing marginal gas wells. The BLM also finds that marginal oil and gas production on Federal lands supported an estimated $2.9 billion in economic output in the national economy in FY 2015. To the extent that the 2016 final rule would have adversely impacted production from marginal wells through premature shut-ins, this estimated economic output would have been jeopardized.
On February 22, 2018, the BLM published a proposal to revise the 2016 rule in a manner that would make it consistent with the policies set forth in section 1 of E.O. 13783. 83 FR 7924 (Feb. 22, 2018). The BLM provided for a 60-day public comment period, which generated more than 600,000 comments on the proposed rule. The BLM received comments from a wide variety of persons and entities, including individual citizens, environmental advocacy groups, industry advocacy groups, oil and gas exploration and production companies, public interest groups, state agencies, and tribes. The BLM has summarized and responded to these comments in a separate “Responses to Comments” document, available on the
The BLM has several compelling reasons for modifying the requirements in the 2016 rule.
First, the BLM believes that many provisions of the 2016 rule exceeded the BLM's statutory authority to regulate for the prevention of “waste” under the Mineral Leasing Act (MLA). The MLA states that all leases “shall be subject to the condition that the lessee will, in conducting his explorations and mining operations, use all reasonable precautions to prevent waste of oil or gas developed in the land . . . .”
The Department's implementation of the MLA has long been informed by an understanding that there is a certain amount of unavoidable loss of oil and gas that is inherent in oil and gas production and, therefore, not all losses of gas may be considered “waste” under the MLA.
In the 2016 rule, the BLM recognized the inconsistency with its longstanding practice, but argued that past practice did not prohibit the BLM from pursuing a different approach.
The BLM's experience in the litigation of the 2016 rule reinforces the BLM's conclusion that the 2016 rule exceeded its statutory authority. Immediately after the 2016 rule was issued, petitions for judicial review of the rule were filed by industry groups and States with significant BLM-managed Federal and Indian minerals.
Second, the BLM reviewed the 2016 rule's requirements and determined that the rule's compliance costs for industry and implementation costs for the BLM exceed the rule's benefits. Over the 10-year evaluation period (2019-2028), the total net benefits from the 2016 rule are estimated to be −$736 million to −$1.01 billion (net present value (NPV) and interim domestic social cost of methane (SC-CH
In addition, many of the 2016 rule's requirements placed a particular compliance burden on operators of marginal or low-producing wells, and there is a substantial risk that many of these wells would not be economical to operate with the additional compliance costs. Although the characteristics of what is considered to be a marginal well can vary, the percentage of the nation's oil and gas wells classified as marginal is high. The Interstate Oil and Gas Compact Commission (IOGCC) published a report in 2015 detailing the contributions of marginal wells to the nation's oil and gas production and economic activity.
The 2016 rule's requirements that would have placed a particular burden on marginal wells were those pertaining to pneumatic controllers, pneumatic diaphragm pumps, and LDAR. To illustrate the impact on the economic viability of marginal oil and gas wells from the 2016 rule, the BLM calculated the per-well reduction in revenue from the costs imposed by the requirements in the 2016 rule. The reduction in revenue was calculated using both total and annualized costs at three different periods in EIA's 2018 Annual Energy Outlook (AEO) price forecast. The per-well revenue values are the product of estimated annual production and annual average prices less royalty payments and lifting costs. Based on EIA's projected 2019 prices, the estimated revenue reduction for marginal oil wells ranges from 24 percent for wells producing 10 bbl/day to 236 percent for wells producing 1 bbl/day. Revenue reductions to marginal gas wells range from 86 percent for wells producing 60 mcf/day to 1,037 percent for wells producing 5 mcf/day. These values are reduced when using annualized costs, however, the reductions in revenue are still substantial. Production from marginal wells represents a smaller fraction of total oil and gas production than that of non-marginal wells. However, as the BLM's analysis indicates, this means that any associated regulatory burdens would have a disproportionate impact on marginal wells, since the compliance costs represent a much higher fraction of oil and gas revenues for marginal wells than they do for non-marginal wells. Thus, the compliance burdens of the 2016 rule pose a greater cost to marginal-well producers. The BLM's analysis of the impact of the 2016 rule on marginal wells is explained in more detail in Section 4.5.6 of the RIA.
The 2016 rule attempted to address the marginal-well problem by providing operators with an opportunity to obtain exemptions from many of the most costly requirements when compliance would impose such costs that an operator would cease production and abandon significant recoverable reserves. Although the 2016 rule allowed operators to request an alternative LDAR program based on these considerations, there was no opportunity for a full exemption from the LDAR requirement in the 2016 rule.
In addition to the costs of complying with the 2016 rule's operational requirements, there were many reporting requirements in the 2016 rule and the cumulative effect of the burden would have been substantial. Specifically, the BLM estimates that the 2016 rule would have imposed administrative costs of about $14 million per year ($10.7 million to be borne by the industry and $3.27 million to be borne by the BLM). The BLM estimates that this final rule will alleviate the vast majority of these burdens and will pose administrative burdens of only $349,000 per year. (See RIA Section 3.2.2).
Beyond the cost-benefit analysis, the impact to marginal wells, and the reporting burdens, the BLM notes that the 2016 rule had many requirements that overlapped with the EPA's regulations issued under the Clean Air Act, namely EPA's New Source Performance Standards (NSPS) at 40 CFR part 60, subparts OOOO (NSPS OOOO) and OOOOa (NSPS OOOOa). The EPA's NSPS OOOO regulates new, reconstructed, and modified pneumatic controllers, storage tanks, and gas wells completed using hydraulic fracturing, while NSPS OOOOa regulates new, reconstructed, and modified pneumatic pumps, fugitive emissions from well sites and compressor stations, and oil and gas wells completed using hydraulic fracturing. The BLM's 2016 rule also would have regulated emissions of natural gas from these source categories. While the EPA regulates new, modified, and reconstructed sources, the BLM's 2016 rule applied to all wells and facilities producing Federal and Indian oil and gas and regulated emissions from new, modified, and existing sources. The 2016 rule's emissions-targeting provisions were informed by and were largely similar to EPA's requirements for the same sources of emissions. Therefore, the practical effect of the 2016 rule's emissions-targeting provisions was essentially to impose EPA requirements designed for new and reconstructed sources on existing sources producing Federal and Indian oil and gas.
In addition, as the BLM acknowledged during the development of the 2016 rule,
Finally, the 2016 rule also had requirements that limited the flaring of associated gas produced from oil wells. The 2016 rule sought to constrain the flaring of associated gas through the imposition of a “capture percentage” requirement, which required operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The requirement would have become more stringent over a period of years. As explained below, the BLM has chosen to rescind this requirement in favor of an approach that relies on State and tribal regulations and reinstates the NTL-4A standard for flaring in the absence of applicable State or tribal regulations. The BLM reviewed State regulations, rules, and orders designed to limit the waste of oil and gas resources and the flaring of natural gas, and determined that States with the most significant BLM-managed oil and gas production place restrictions or limitations on gas flaring from oil wells. For example, the State of North Dakota has requirements that are similar (but not identical) to the 2016 rule. Other States generally have flaring limits that trigger a review by a governing board to determine whether the gas should be conserved. A memorandum containing a summary of the statutory and regulatory restrictions on venting and flaring in the 10 States responsible for approximately 99 percent of Federal oil and gas production is available on the
Pursuant to a delegation of Secretarial authority, the BLM regulates the development of Federal and Indian onshore oil and gas resources under the following statutes: The Mineral Leasing Act of 1920 (MLA) (30 U.S.C. 188-287), the Mineral Leasing Act for Acquired Lands (MLAAL) (30 U.S.C. 351-360), the Federal Oil and Gas Royalty Management Act (30 U.S.C. 1701-1758), the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701-1785), the Indian Mineral Leasing Act of 1938 (IMLA) (25 U.S.C. 396a-g), the Indian Mineral Development Act of 1982 (IMDA) (25 U.S.C. 2101-2108), the Act of March 3, 1909 (25 U.S.C. 396), and the other statutes and authorities listed in 43 CFR 3160.0-3. These statutes authorize the Secretary of the Interior to promulgate such rules and regulations as may be necessary to carry out the statutes' various purposes.
The Federal mineral leasing statutes share a common purpose of promoting the development of Federal oil and gas resources for the financial benefit of the public.
The Indian minerals statutes require the Secretary to exercise his trust responsibilities in the best interests of the tribes or of the individual Indian mineral owners, considering all factors affecting their interests.
To assure that the development of Federal and Indian oil and gas resources will not be unnecessarily hindered by regulatory burdens, the BLM has, in this rulemaking, exercised its inherent authority
The BLM received a number of comments addressing its statutory authority and obligations. The BLM did not make any changes to the rule based on these comments.
Some commenters argued that the 2016 rule exceeded the BLM's statutory authority and alleged that BLM was attempting to regulate air quality under the guise of waste prevention. These commenters argued that the authority to regulate air quality at oil and gas operations rests with the EPA and the States, not with the BLM. As evidence of the alleged overreach, these commenters cited a number of “air quality” provisions in the 2016 rule for which compliance costs outweighed conservation benefits. These commenters expressed support for the BLM's revision of the 2016 rule on the grounds that the revision brings the BLM's regulations back in line with its statutory authority.
Other commenters argued that the BLM's proposed revision of the 2016 rule would fail to meet what they saw as the BLM obligations under the MLA. They argued that the proposed revision of the 2016 rule would not require operators to use “all reasonable precautions to prevent waste” and would not prevent “undue waste.” They further argued that the BLM's policy determination that waste-prevention regulations should balance compliance costs against conservation benefits (
Some commenters noted that the BLM gave less emphasis to operator economics in developing the 2016 rule. As explained above, the BLM believes that, by failing to give due regard to operator economics, the BLM exceeded its statutory authority in imposing many of the 2016 rule's requirements. The BLM's revision of the 2016 rule is consistent with the MLA and is consistent with the BLM's longstanding approach to regulating waste prior to the promulgation of the 2016 rule that considered the economic feasibility of marketing lost gas in making “avoidable loss” determinations.
Some commenters argued that the BLM's revision of the 2016 rule violates FLPMA because FLPMA states that the Secretary “shall manage the public lands under principles of multiple use and sustained yield” and that the Secretary “shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the public lands.” 43 U.S.C. 1732(a)-(b). The BLM acknowledges the quoted mandates of FLPMA, but disagrees that they support the commenters' conclusion. FLPMA's concern with “unnecessary or undue degradation” must be understood in light of the statute's overarching mandate that the BLM manage the public lands under “principles of multiple use and sustained yield.”
The 2016 rule replaced the BLM's prior policy, NTL-4A, which governed venting and flaring from BLM-administered leases for more than 35 years. Because the BLM has found the 2016 rule would impose excessive costs (when fully implemented), and believes that a regulatory framework similar to NTL-4A can be applied in a manner that limits waste without unnecessarily burdening production, the BLM has replaced the requirements contained in the 2016 rule with requirements similar
The preamble to the 2016 rule suggested that NTL-4A was outdated and needed to be overhauled to account for technological advancements and to incorporate “economical, cost-effective, and reasonable measures that operators can take to minimize gas waste.”
With this final rule, the BLM has rescinded the following requirements of the 2016 rule:
• Waste Minimization Plans;
• Well drilling requirements;
• Well completion and related operations requirements;
• Pneumatic controllers equipment requirements;
• Pneumatic diaphragm pumps equipment requirements;
• Storage vessels equipment requirements; and
• LDAR requirements.
In addition, the BLM has modified and/or replaced the following requirements of the 2016 rule with requirements that are similar to those that were in NTL-4A:
• Gas-capture requirements;
• Downhole well maintenance and liquids unloading requirements; and
• Measuring and reporting volumes of gas vented and flared.
The remaining requirements in the 2016 rule have either been retained, modified only slightly, or removed, but the impact of the removal is small relative to the items listed above.
Many of the rescinded provisions of the 2016 rule focused on controlling emissions from sources and operations, which are regulated by EPA under its Clean Air Act authority, and for which there are analogous EPA regulations at 40 CFR part 60, subparts OOOO and OOOOa. Specifically, these emissions-targeting provisions of the 2016 rule are §§ 3179.102, 3179.201, 3179.202, 3179.203, and 3179.301 through 3179.305. The BLM has chosen to rescind these provisions based on a number of considerations.
First, the BLM has reconsidered whether the substantial compliance costs associated with the emissions-targeting provisions are justified by the value of the gas that is expected to be conserved as a result of compliance. As detailed in the RIA, and evidenced by the 2016 RIA, many of the emissions-targeting provisions of the 2016 rule were expected to impose compliance costs well in excess of the value of the resource (natural gas) that would be conserved. The BLM has made the policy determination that it is not appropriate for “waste prevention” regulations to impose compliance costs greater than the value of the resources they are expected to conserve. Although the RIA for the 2016 rule found that, in total, the benefits of these provisions outweighed their costs, this finding depended on the use of a global social cost of methane (SC-CH
E.O. 13783, at Section 5, disbanded the earlier Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and withdrew the Technical Support Documents
Several commenters argued that the SC-CH
In addition to cost-benefit concerns, the BLM believes that the emissions-targeting provisions of the 2016 rule create unnecessary regulatory overlap in light of EPA's Clean Air Act authority and its analogous regulations that similarly reduce losses of gas.
The BLM received comments asserting that the BLM cannot rely on EPA's regulations to reduce waste from oil and gas operations on Federal and Indian leases for a variety of reasons, including that EPA's regulations do not apply to existing sources, that the EPA does not regulate for the purpose of preventing waste, and that the BLM has not quantified the extent to which EPA's regulations will reduce waste from Federal and Indian oil and gas operations in the time period before EPA's regulations entirely displace the 2016 rule's requirements. These comments are based on an incorrect belief that the BLM is relying on EPA regulations to limit waste. As discussed above, the BLM has found that many of the emissions-targeting provisions of the 2016 rule do not target waste because their compliance costs far exceed the value of the resource to be conserved. Even if the BLM were relying on EPA's regulations to address waste from these sources and operations—which it is not—this would be consistent with the 2016 rule, which provided exemptions for sources and operations compliant with or subject to analogous EPA regulations.
Finally, the BLM recognizes that the oil and gas exploration and production industry continues to pursue reductions in methane emissions on a voluntary basis. For example, XTO Energy, Inc., which operates 2,572 BLM-administered leases and agreements, has publicly stated that it is undertaking a 3-year plan to phase out high-bleed pneumatic devices from its operations and will be implementing an enhanced LDAR program.
With this final rule, the BLM did not revise the royalty provisions (43 CFR 3103.3-1) or the royalty-free use provisions (43 CFR part 3170, subpart 3178) that were part of the 2016 rule. Although the BLM sought and received comments on the royalty-free use provisions in subpart 3178, the BLM was not persuaded that any amendment of subpart 3178 is necessary at this time.
The BLM intends that each of the provisions of the final rule is severable. It is reasonable to consider the provisions severable because they do not inextricably depend on each other. For example, revised § 3179.4, which specifies when losses of oil or gas associated with common events and operations will be deemed “avoidable” or “unavoidable,” does not depend on, and may operate effectively in the absence of, revised § 3179.201, which determines when the flaring of associated gas from oil wells will be royalty-bearing.
As was proposed, the BLM rescinds the following provisions of the 2016 rule in this final rule:
In the 2016 rule, the BLM added a paragraph (j) to 43 CFR 3162.3-1, which required that, when submitting an Application for Permit to Drill (APD) for an oil well, an operator must also submit a waste-minimization plan. Submission of the plan was required for approval of the APD, but the plan was not itself part of the APD, and the terms of the plan were not enforceable against the operator. The purpose of the waste-minimization plan was for the operator to set forth a strategy for how the operator would comply with the requirements of 43 CFR part 3170, subpart 3179, regarding the control of waste from venting and flaring from oil wells.
The waste-minimization plan was required to include information regarding: The anticipated completion date(s) of the proposed oil well(s); a description of anticipated production from the well(s); certification that the operator has provided one or more midstream processing companies with information about the operator's production plans, including the anticipated completion dates and gas production rates of the proposed well or wells; and identification of a gas
Additional information was required when an operator could not identify a gas pipeline with sufficient capacity to accommodate the anticipated production from the proposed well, including: A gas pipeline system location map showing the proposed well(s); the name and location of the gas processing plant(s) closest to the proposed well(s); all existing gas trunklines within 20 miles of the well, and proposed routes for connection to a trunkline; the total volume of produced gas, and percentage of total produced gas, that the operator is currently venting or flaring from wells in the same field and any wells within a 20-mile radius of that field; and a detailed evaluation, including estimates of costs and returns, of potential on-site capture approaches.
The BLM estimates that the administrative burden of the waste-minimization plan requirements would be roughly $5 million per year for industry and $800,000 per year for the BLM (RIA at Section 7.1).
This final rule rescinds the waste minimization plan requirement of § 3162.3-1(j). The BLM believes that the waste minimization plan requirement imposed an unnecessary administrative burden on both operators and the BLM. The purpose of the waste-minimization-plan requirement was to guide an operator's behavior by forcing it to collect and consider information pertaining to gas capture. The BLM believes that there will be sufficient information-based safeguards against undue waste even in the absence of the waste-minimization-plan requirement for the following reasons. First, the BLM has found that comparable gas-capture-plan requirements in North Dakota and New Mexico will ensure that operators in those States take account of the availability of capture infrastructure. In New Mexico, the operator must submit a gas-capture plan when seeking permission to drill a well. In North Dakota, the operator must submit a gas-capture plan when seeking permission to drill a well if the operator has not been in compliance with the State's gas-capture requirements during any of the most recent 3 months. The BLM notes that more than half of the flaring of Federal and Indian gas occurs in the states of North Dakota and New Mexico. Second, State regulations in Utah, Wyoming, and Montana require operators to submit production information similar to that required under § 3162.3-1(j)(2) when operators seek approval for long-term flaring of associated gas. In these States, both operators and State regulators will be able to consider the potential for capture before long-term flaring of associated gas can be approved. Finally, under § 3179.201(c), applicable in the absence of State or tribal regulation for the flaring of associated gas, an operator is required to submit one of the following before it could receive approval for royalty-free flaring of associated gas under final § 3179.201(c): (1) A report supported by engineering, geologic, and economic data which demonstrates to the BLM's satisfaction that the expenditures necessary to market or use the gas are not economically justified; or (2) An action plan that will eliminate the flaring within a time period approved by the BLM. All of these requirements will help to fulfill the purpose of § 3162.3-1(j), which is to ensure that operators do not waste gas without giving due consideration to the possibility of marketing or using the gas.
In addition, the extensive amount of information that an operator must include in the waste-minimization plan makes compliance with the requirement cumbersome for operators. Operators have also expressed concern that the waste-minimization-plan requirement will slow down APD processing as BLM personnel take time to determine whether the waste-minimization plan submitted by an operator is “complete and adequate,” and whether the operator has provided all required pipeline information to the full extent that the operator can obtain it.
Some commenters expressed support for the rescission of § 3162.3-1(j), arguing that the BLM's waste-minimization-plan requirement was redundant with State requirements and reflected an inappropriate “one size fits all” approach to basin-specific infrastructure problems. These commenters further argued that the BLM had erroneously assumed that, unless operators are forced to gather information pertaining to gas capture infrastructure, they will not do so or will not pursue opportunities to capture and market associated gas when economically justified. Some commenters argued that the BLM has not justified the rescission of the waste-minimization-plan requirement because: New Mexico has not been enforcing its comparable requirement; the process for seeking approval for flaring in Utah, Wyoming, and Montana is not an adequate substitute since the information is submitted after the well has been approved and drilled; and, the BLM can allocate more resources to APD processing to ensure that the waste-minimization-plan requirement does not slow down APD processing. First, the BLM is aware of no evidence that New Mexico is not implementing its gas capture plan requirement. Second, the BLM does not agree that the timing of the applications to flare—whether under Utah, Wyoming, or Montana State regulations or § 3179.201(c)—precludes operators and regulators from using the information to make prudent determinations about whether flaring or capture is warranted. The fact that a well has already been drilled does not preclude State regulators from denying approval to flare where production and infrastructure information indicates that capture is warranted. Finally, the BLM does not see the need to allocate additional BLM resources to accommodate a requirement that is duplicative of State requirements in the two States with the highest rates of flaring and provides limited additional benefit (if any) in other States where flaring is less prevalent and/or State regulations require similar information to be submitted to regulators in order to obtain permission to flare.
In light of the foregoing, the BLM concludes that there is limited (if any) benefit to the waste minimization plan requirement of § 3162.3-1(j) and is therefore rescinding it in its entirety.
The BLM has summarized and responded to the comments received on the rescission of § 3162.3-1(j) in a separate “Responses to Comments” document, available on the
In the 2016 rule, the BLM sought to constrain the routine flaring of associated gas through the imposition of a “capture percentage” requirement, requiring operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The capture percentage requirement would have become more stringent over a period of years, beginning with an 85 percent capture requirement (5,400 Mcf per well flaring allowable) in January 2018, and eventually reaching a 98 percent capture requirement (750 Mcf per well flaring allowable) in January 2026. An operator could choose to comply with the capture targets on each of the operator's leases, units or communitized areas, or on a county-wide or state-wide basis.
As proposed, this final rule rescinds the 2016 rule's capture percentage
In addition, the BLM has identified a number of practical problems with the 2016 rule's capture percentage requirements. In the early years, when capture percentages would not be as high and allowable flaring would be high, the 2016 rule would have allowed for large amounts of royalty-free flaring. In the later years, the BLM believes that the 2016 rule would have introduced complexities that would have undermined its effectiveness. Because of the common use of horizontal drilling through multiple leaseholds of different ownership, the 2016 rule's coordination requirements in previous § 3179.12 (providing for coordination with States and tribes when any requirement would adversely impact production from non-Federal and non-Indian interests) created a high degree of uncertainty over how the capture requirements would have been implemented and what their impact would have been. Even if the capture percentage requirements were to be implemented and effective as written, the BLM is concerned that the prescriptive nature of the approach would have allowed for unnecessary flaring in some cases while prohibiting necessary flaring in others. For example, even if an operator could feasibly capture all of the gas it produces from a Federal well, the operator could still flare a certain amount of gas without violating previous § 3179.7's capture-percentage requirements. Thus, in situations where the operator faced transmission or processing-plant capacity limitations (
Furthermore, the capture-percentage requirement afforded less flexibility for smaller operators with fewer operating wells than it would have for larger operators with a greater number of operating wells. A small operator with only a few wells in an area with inadequate gas-capture infrastructure would have likely been faced with curtailing production or violating § 3179.7's prescriptive limits. On the other hand, a larger operator with many wells would have had greater flexibility to average the flaring allowable over its portfolio and avoid curtailing production or other production constraints.
In place of the 2016 rule's capture-percentage requirements, the final rule, as was proposed, addresses the routine flaring of associated gas by deferring to State or tribal regulations where possible and codifying the familiar NTL-4A standard for royalty-free flaring as a backstop where no applicable State or tribal regulation exists. The final rule's approach to the routine flaring of associated gas is explained more fully below (see the discussion of § 3179.201).
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.7 in a separate “Responses to Comments” document, available on the
Previous § 3179.8 allowed operators of leases issued before January 17, 2017, to request a lower capture percentage requirement than would otherwise be imposed under § 3179.7. In order to obtain this lower capture requirement, an operator would have had to demonstrate that the applicable capture percentage under § 3179.7 would “impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.” Because the BLM is rescinding the capture percentage requirements of previous § 3179.7, the BLM is also rescinding the mechanism for obtaining a lower capture requirement, as was proposed. Because § 3179.7 is now rescinded, there is no need for previous § 3179.8.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.8 in a separate “Responses to Comments” document, available on the
Previous § 3179.11(a) stated that the BLM may exercise its existing authority under applicable laws and regulations, as well as under the terms of applicable permits, orders, leases, and unitization or communitization agreements, to limit production from a new well that is expected to force other wells off of a common pipeline. Previous § 3179.11(b) stated that the BLM could similarly exercise existing authority to delay action on an APD or impose conditions of approval on an APD. Previous § 3179.11 was not an independent source of authority or obligation on the part of the BLM. Rather, previous § 3179.11 was intended to clarify how the BLM could exercise existing authorities in addressing the waste of gas. However, the BLM understands that previous § 3179.11 could easily be misread to indicate that the BLM has plenary authority to curtail production or delay or condition APDs regardless of the circumstances. Because previous § 3179.11 is unnecessary and is susceptible to misinterpretation, the BLM is rescinding it, as proposed.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.11 in a separate “Responses to Comments” document, available on the
Previous § 3179.12 stated that, to the extent an action to enforce 43 CFR part 3170, subpart 3179, may adversely affect production of oil or gas from non-Federal and non-Indian mineral interests, the BLM will coordinate with the appropriate State regulatory authority. The purpose of this provision was to ensure that due regard was given
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.12 in a separate “Responses to Comments” document, available on the
Previous § 3179.101(a) required gas reaching the surface as a normal part of drilling operations to be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or flare stack; (3) Used in the operations on the lease, unit, or communitized area; or (4) Injected. Previous § 3179.101(a) also specified that gas may not be vented, except under the circumstances specified in previous § 3179.6(b) or when it was technically infeasible to use or dispose of the gas in one of the ways specified above. Previous § 3179.101(b) stated that gas lost as a result of a loss of well control would be classified as avoidably lost if the BLM determined that the loss of well control was due to operator negligence.
As was proposed, the BLM is rescinding previous § 3179.101 because it would be duplicative under final subpart 3179. In essence, § 3179.101(a) required an operator to flare gas lost during well drilling rather than vent it (unless technically infeasible). This same requirement is contained in final § 3179.6(b). Previous § 3179.101(b) stated that where gas was lost during a loss of well control, the lost gas would be considered “avoidably lost” if the BLM determined that the loss of well control was due to operator negligence. This principle is contained in final § 3179.4(b), which requires an absence of operator negligence in order for lost gas to be considered “unavoidably lost.”
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.101 in a separate “Responses to Comments” document, available on the
Previous § 3179.102 addressed gas that reached the surface during well-completion, post-completion, and fluid-recovery operations after a well has been hydraulically fractured or refractured. It required the gas to be disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or stack, subject to a volumetric limitation in § 3179.103; (3) Used in the lease operations; or (4) Injected. Previous § 3179.102 specified that gas could not be vented, except under the narrow circumstances specified in previous § 3179.6(b) or when it was technically infeasible to use or dispose of the gas in one of the four ways specified above. Previous § 3179.102(b) provided that an operator would be deemed to be in compliance with its gas capture and disposition requirements if the operator was in compliance with the requirements for control of gas from well completions established under 40 CFR part 60, subparts OOOO or OOOOa, or if the well was not a “well affected facility” under those regulations. Previous § 3179.102(c) and (d) allowed the BLM to exempt an operator from the requirements of previous § 3179.102 where the operator demonstrated that compliance would cause the operator to cease production and abandon significant recoverable oil reserves under the lease.
As was proposed, this final rule rescinds previous § 3179.102 in its entirety. The EPA finalized regulations in 40 CFR part 60, subpart OOOO and OOOOa, that are applicable to all of the well completions covered by previous § 3179.102. See 81 FR 35824 (June 3, 2016); 81 FR 83055-56. In light of the complete overlap with EPA regulations, and the fact that compliance with these regulations satisfies an operator's obligations under previous § 3179.102, the BLM has concluded that previous § 3179.102 is duplicative and unnecessary. In the 2016 rule, the BLM recognized the duplicative nature of § 3179.102, but sought to establish a “backstop” in the “unlikely event” that the analogous EPA regulations ceased to be in effect. See 81 FR 83056. The BLM no longer believes that it is appropriate to insert duplicative regulations into the Code of Federal Regulations as insurance against unlikely events. In addition, the BLM questions the appropriateness of issuing regulations that serve as a backstop to the regulations of other Federal agencies, especially when those agencies have promulgated their regulations under different authorities.
The BLM notes that, under revised § 3179.4(b)(2), the BLM reserves the right to limit royalty-free flaring during well-completion operations based on the operator's negligence or failure to take reasonable precautions to prevent the loss. Furthermore, the implicit requirement of previous § 3179.102 that gas that reaches the surface during well-completion operations be disposed of by some means other than venting is maintained in the general venting prohibition of final § 3179.6.
In light of the foregoing, the BLM is rescinding previous § 3179.102 in its entirety.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of §§ 3179.102 in a separate “Responses to Comments” document, available on the
Previous § 3179.201 addressed pneumatic controllers that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. Previous § 3179.201 applied to such controllers if the controllers: (1) Had a continuous bleed rate greater than 6 standard cubic feet per hour (scf/hour) (“high-bleed” controllers); and (2) Were not covered by EPA regulations that prohibit the new use of high-bleed
The BLM estimates that this requirement, over 10 years from 2019-2028, would have imposed costs of about $12 million to $13 million and would have generated cost savings from product recovery of $20 million to $26 million (RIA at Section 4.4). As was proposed, this final rule rescinds previous § 3179.201 in its entirety. Low-bleed continuous pneumatic controllers are expected to generate revenue for operators when employed at sites from which gas is captured and sold and when the sale price of gas is generally higher than it is now. Thus, the BLM expects many operators to adopt low-bleed pneumatic controllers even in the absence of previous § 3179.201's requirements. This belief is supported by the fact that low-bleed continuous pneumatic controllers are already very common, representing about 89 percent of the continuous bleed pneumatic controllers in the petroleum and natural gas production sectors.
The BLM notes that the EPA has regulations in 40 CFR part 60, subparts OOOO and OOOOa, that require new, modified, or reconstructed continuous bleed controllers to be low-bleed. As new facilities on Federal and Indian leases come online and more of the existing high-bleed continuous controllers are replaced, these EPA regulations will require the installation of low-bleed continuous controllers. The BLM understands the typical lifespan of a pneumatic controller to be 10 to 15 years. Finally, as discussed above, the BLM recognizes that the oil and gas exploration and production industry continues to pursue reductions in methane emissions on a voluntary basis, and the BLM expects these efforts to result in a reduction in the number of high-bleed pneumatic devices employed by the industry.
In addition to the explanation provided here, which addresses most of the issues raised in the comments that BLM received about the rescission of this section, the BLM has summarized and responded to the comments received about the rescission of § 3179.201 in a separate “Responses to Comments” document, available on the
Previous § 3179.202 established requirements for operators with pneumatic diaphragm pumps that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that included a Federal or Indian lease. It applied to such pumps if they were not covered under EPA regulations at 40 CFR part 60, subpart OOOOa, but would be subject to that subpart if they were a new, modified, or reconstructed source. For covered pneumatic pumps, previous § 3179.202 required that the operator either replace the pump with a zero-emissions pump or route the pump exhaust to processing equipment for capture and sale. Alternatively, an operator had the option of routing the exhaust to a flare or low-pressure combustion device if the operator made a determination (and notifies the BLM through a Sundry Notices and Reports on Wells, Form 3160-5) that replacing the pneumatic diaphragm pump with a zero-emissions pump or capturing the pump exhaust was not viable because: (1) A pneumatic pump was necessary to perform the function required; and (2) Capturing the exhaust was technically infeasible or unduly costly. If an operator made this determination and had no flare or low-pressure combustor on-site, or routing to such a device would have been technically infeasible, the operator was not required to route the exhaust to a flare or low-pressure combustion device. Under previous § 3179.202(h), an operator was required to replace its covered pneumatic diaphragm pump or route the exhaust gas to capture or flare beginning no later than January 17, 2018. Previous § 3179.202(f) and (g) would have allowed the BLM to exempt an operator from the requirements of previous § 3179.202 where the operator demonstrated that compliance would have caused the operator to cease production and abandon significant recoverable oil reserves under the lease.
The BLM estimates that the costs of compliance with previous § 3179.202 would have outweighed the value of its conservation effects. Specifically, the BLM estimates that § 3179.202, over 10 years from 2019-2028, would have imposed costs of about $29 million to $30 million, while only generating cost savings from product recovery of $15 million to $19 million (RIA at Section 4.4). Because previous § 3179.202 imposed compliance costs greater than the value of the resources it was expected to conserve, the BLM does not consider it to be an appropriate “waste prevention” requirement, and is rescinding it in its entirety, as was proposed.
The BLM notes that, as discussed above, industry is making ongoing efforts to retire old leak-prone equipment, including pneumatic pumps, on a voluntary basis. Furthermore, analogous EPA regulations in 40 CFR part 60, subpart OOOOa, will reduce the loss of gas from pneumatic diaphragm pumps on Federal and Indian leases as more and more of them are covered by the EPA regulations over time. These reasons further support rescission of previous § 3179.202.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.202 in a separate “Responses to Comments” document, available on the
Previous § 3179.203 applied to crude oil, condensate, intermediate hydrocarbon liquid, or produced-water storage vessels that contained production from a Federal or Indian lease, or from a unit or communitized
As proposed, the BLM is rescinding previous § 3179.203 in its entirety. The BLM finds that the costs of compliance with previous § 3179.203 would have outweighed the value of its conservation effects. Specifically, the BLM estimates that previous § 3179.203, over 10 years from 2019-2028, would have imposed costs of about $51 million to $56 million while only generating cost savings from product recovery of about $1 million (RIA at Section 4.4). The BLM has always believed that previous § 3179.203 would have a limited reach, due to the 6 tpy emissions threshold and the carve-out for storage vessels covered by EPA regulations. The BLM estimated in the RIA for the 2016 rule that § 3179.203 would impact fewer than 300 facilities on Federal and Indian lands (2016 RIA at 69). Because previous § 3179.203 imposed compliance costs well in excess of the value of the resources it was expected to conserve, the BLM does not consider it to be an appropriate “waste prevention” requirement, and is rescinding it in its entirety.
Finally, the BLM notes that, even with § 3179.203 rescinded, the BLM retains the authority to impose royalties on vapor losses from storage vessels under final § 3179.4(b)(2)(vii) when the BLM determines that recovery of the vapors is warranted.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on the rescission of § 3179.203 in a separate “Responses to Comments” document, available on the
Previous §§ 3179.301 through 3179.305 established leak detection, repair, and reporting requirements for: (1) Sites and equipment used to produce, process, treat, store, or measure natural gas from or allocable to a Federal or Indian lease, unit, or communitization agreement; and (2) Sites and equipment used to store, measure, or dispose of produced water on a Federal or Indian lease. Previous § 3179.302 prescribed the instruments and methods that may have been used for leak detection. Previous § 3179.303 prescribed the frequency for inspections and previous § 3179.304 prescribed the time frames for repairing leaks found during inspections. Finally, previous § 3179.305 required operators to maintain records of their LDAR activities and submit an annual report to the BLM. Pursuant to previous § 3179.301(f), operators were required to begin to comply with the LDAR requirements of previous §§ 3179.301 through 3179.305 before: (1) January 17, 2018, for all existing sites; (2) 60 days after beginning production for sites that begin production after January 17, 2017; and (3) 60 days after a site that was out of service was brought back into service and re-pressurized.
As proposed, the BLM is rescinding previous §§ 3179.301 through 3179.305 in their entirety. The BLM finds that the costs of compliance with §§ 3179.301 through 3179.305 outweigh the value of their conservation effects. The BLM estimates that these requirements, over 10 years from 2019-2028, would have imposed costs of about $550 million to $688 million while only generating cost savings from product recovery of about $101 million to $128 million (RIA at Section 4.4). In addition, the BLM estimates that the administrative burdens associated with the LDAR requirements, at roughly $5 million, would have represented the bulk of the administrative burdens of the 2016 rule. Because the 2016 rule's LDAR requirements would have imposed compliance costs well in excess of the value of the resources they were expected to conserve, the BLM does not consider them to be appropriate “waste prevention” requirements, and is rescinding them in their entirety.
The BLM has identified additional problems with the 2016 rule's LDAR requirements—beyond their unjustified costs—that further support rescission. First, the LDAR requirements inappropriately applied to all wellsites equally. Wellsites that are not connected to deliver gas to market would not achieve any waste reduction because sales from the recovered gas would not be realized. Second, the LDAR requirements posed an unnecessary burden to operators of marginal wells, particularly marginal oil wells. The BLM does not estimate that the potential fugitive gas losses from marginal oil wells would be substantial enough to warrant the costs of maintaining an LDAR program with semi-annual inspection frequencies. As noted previously, the BLM estimates that over 73 percent of oil wells on the public lands are marginal.
Some commenters argued that, rather than rescinding the LDAR requirements in their entirety, the BLM should have considered alternative LDAR requirements that would have been less burdensome to operators. The BLM appreciates the commenters' concern with examining alternative approaches to LDAR. The BLM considered a reasonable range of LDAR alternatives and determined that the rescission of the LDAR requirements of the 2016 final rule is appropriate. This determination was based on the following information. In the RIA for the 2016 rule, the BLM examined the impacts of a range of alternative approaches for LDAR. See 2016 RIA at 91-93. Specifically the RIA examined the five following LDAR alternatives: (1) Semi-annual inspections (adopted in the 2016 rule); (2) Quarterly inspections; (3) Semi-annual inspections, but annual inspections for oil wells with <300 gas/oil ratio (GOR); (4) Semi-annual inspections, exempting oil wells with <300 GOR; and (5) Annual inspections. Note that the last three alternatives would have imposed fewer compliance costs than the alternative adopted in the 2016 rule. However, for all of the alternatives examined, compliance costs greatly outweighed cost savings (
In addition to the explanation provided here, the BLM has summarized and responded to the
Previous § 3179.401 would have allowed a State or tribe to request a variance from any provisions of subpart 3179 by identifying a State, local, or tribal regulation to be applied in place of those provisions and demonstrating that such State, local, or tribal regulation would perform at least equally well as those provisions in terms of reducing waste of oil and gas, reducing environmental impacts from venting and/or flaring of gas, and ensuring the safe and responsible production of oil and gas.
As was proposed, the BLM is rescinding previous § 3179.401 because it believes that the variance process established by this section was too restrictive and is no longer necessary in light of the BLM's action to re-institute NTL-4A standards and to defer to State and tribal regulations for the flaring of associated gas, as explained in the discussion of final § 3179.201. Notably, in this final rule, the BLM has chosen to include a new § 3179.401, described below, which will allow for additional deference to tribal regulations. We discuss tribal comments received on this section below.
With this final rule, the BLM is revising subpart 3179 as follows:
Section 3179.1 states that the purpose of 43 CFR part 3170, subpart 3179, is to implement and carry out the purposes of statutes relating to prevention of waste from Federal and Indian leases, the conservation of surface resources, and management of the public lands for multiple use and sustained yield. The BLM is not revising existing § 3179.1 as a part of this rulemaking. Section 3179.1 is presented here for context.
This section specifies which leases, agreements, tracts, and facilities are covered by this subpart. The section also states that subpart 3179 applies to Indian Mineral Development Act (IMDA) agreements, unless specifically excluded in the agreement or unless the relevant provisions of this subpart are inconsistent with the agreement, and to agreements for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary of the Interior, unless specifically excluded in the agreement. Existing § 3179.2 remains largely unchanged. However, the BLM is revising paragraph (a)(5) by using the more-inclusive words “well facilities” instead of the words “wells, tanks, compressors, and other equipment” to describe the onshore equipment that is subject to this final rule. The purpose of the phrase “wells, tanks, compressors, and other equipment” was to specify components subject to LDAR requirements which, as described above, the BLM is rescinding.
As was proposed, this section keeps, in their entirety, four of the 18 definitions that appear in previous § 3179.3: “Automatic ignition system,” “gas-to-oil ratio,” “liquids unloading,” and “lost oil or lost gas.” The definition for “capture” is retained in this final rule as it appeared in previous § 3179.3, except, as proposed, the word “reinjection” has been changed to “injection” to be consistent with references to conservation by injection (as opposed to reinjection) elsewhere in subpart 3179.
A definition for “gas well” is also maintained in this final rule, however the second and third sentences in the existing definition are removed, as was proposed. The second-to-last sentence in the previous definition of “gas well” is removed because, although a well's designation as a “gas” well or “oil” well is appropriately determined by the relative energy values of the well's products, the 6,000 scf/bbl standard in previous § 3179.3 is not a commonly used standard. The last sentence in the existing definition of “gas well,” which states generally that an oil well will not be reclassified as a gas well when its gas-to-oil ratio (GOR) exceeds the 6,000 scf/bbl threshold, is removed and replaced with a simpler qualifier making clear that a well's status as a “gas well” is “determined at the time of completion.”
As was proposed, a new definition for “oil well” is added in this final rule that defines an “oil well” as a “well for which the energy equivalent of the oil produced exceeds the energy equivalent of the gas produced, as determined at the time of completion.” The addition of a definition of “oil well” should help to make clear when final § 3179.201's requirements for “oil-well gas” apply.
In the proposed rule, the BLM proposed to add a definition of “waste of oil or gas” that would define waste, for the purposes of subpart 3179, to mean any act or failure to act by the operator that is not sanctioned by the authorized officer as necessary for proper development and production, where compliance costs are not greater than the monetary value of the resources they are expected to conserve, and which results in: (1) A reduction in the quantity or quality of oil and gas ultimately producible from a reservoir under prudent and proper operations; or (2) Avoidable surface loss of oil or gas. This proposed definition incorporated the definition of “waste of oil or gas” from the BLM's operating regulations at 43 CFR 3160.0-5, but added an economic limitation: Waste does not occur where the cost of conserving the oil or gas exceeds the monetary value of that oil or gas. The BLM requested public comment on this proposed definition. Some commenters expressed support for the economic standard contained in the definition and argued that it would be consistent with the MLA's concept of “waste,” as well as past BLM practice. Other commenters argued that “waste of oil or gas” expressed the same concept as “avoidably lost” production, and that the new definition of “waste of oil or gas” was therefore superfluous and could create confusion to the extent that it could be read as inconsistent with the definition of “avoidably lost” production in § 3179.4(a). Still other commenters noted that the practical application of the definition of “waste of oil or gas” would be difficult because the definition did not contain a time horizon over which the operator should evaluate its compliance costs and the value of the resources that compliance would be expected to conserve. The BLM has chosen to retain the proposed definition of “waste of oil or gas” in the final rule. This definition codifies the BLM's policy determination that it is not appropriate for “waste prevention” regulations to impose compliance costs greater than the value of the resources they are expected to conserve. Because the term “waste of oil or gas” is not used in subpart 3179 (outside of the definitions section), the BLM does not expect any conflict between this definition and the provisions of § 3179.4, which identify “avoidably lost” oil or gas. However, if a conflict ever arises, the BLM will view § 3179.4 as controlling on the question of what constitutes a royalty-bearing
As was proposed, this section removes 12 definitions from the previous regulations because they are no longer needed: “Accessible component,” “capture infrastructure,” “compressor station,” “continuous bleed,” “development oil well,” “high pressure flare,” “leak,” “leak component,” “liquid hydrocarbon,” “pneumatic controller,” “storage vessel,” and “volatile organic compounds (VOC).” These definitions pertain to requirements in previous subpart 3179 that the BLM is rescinding.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.3 in a separate “Responses to Comments” document, available on the
Final § 3179.4 describes the circumstances under which lost oil or gas is classified as “avoidably lost” or “unavoidably lost.” None of the language in this section of the final rule has changed from the language that BLM proposed. Under final § 3179.5, royalty is due on all avoidably lost oil or gas, while royalty is not due on unavoidably lost oil or gas. Final § 3179.4 includes concepts from both previous § 3179.4 and NTL-4A, Sections II. and III.
Final paragraph (a) defines “avoidably lost” production and mirrors the “avoidably lost” definition in NTL-4A Section II.A. Final paragraph (a) defines avoidably lost gas as gas that is vented or flared without BLM approval, and produced oil or gas that is lost due to operator negligence, the operator's failure to take all reasonable measures to prevent or control the loss, or the operator's failure to comply fully with applicable lease terms and regulations, appropriate provisions of the approved operating plan, or prior written BLM orders. This paragraph replaces the “avoidably lost” definition that appears in the last paragraph of previous § 3179.4, which primarily defined “avoidably lost” oil or gas as lost oil gas that is not “unavoidably lost” and also expressly included “excess flared gas” as defined in previous § 3179.7, which the BLM is rescinding.
Final paragraph (b) defines “unavoidably lost” production. Final paragraph (b)(1) follows language from Section II.C(2) of NTL-4A. It states that oil or gas that is lost due to line failures, equipment malfunctions, blowouts, fires, or other similar circumstances is considered to be unavoidably lost production, unless the BLM determines that the loss was avoidable under § 3179.4(a)(2)—
Final paragraph (b)(2) is substantially similar to the definition of “unavoidably lost” oil or gas that appears in previous § 3179.4(a). This paragraph improves upon NTL-4A by providing clarity to operators and the BLM about which losses of oil or gas should be considered “unavoidably lost.” Paragraph (b)(2) introduces a list of operations or sources from which lost oil or gas is considered “unavoidably lost,” so long as the operator has not been negligent, has taken all reasonable measures to prevent or control the loss, and has complied fully with applicable laws, lease terms, regulations, provisions of a previously approved operating plan, or other written orders of the BLM, as provided in § 3179.4(a)(2).
Except for cross references, final § 3179.4(b)(2)(i) through (vi) are the same as paragraphs (a)(1)(i) through (vi) in previous § 3179.4. These paragraphs list the following operations or sources from which lost oil or gas would be considered “unavoidably lost”: Well drilling; well completion and related operations; initial production tests; subsequent well tests; exploratory coalbed methane well dewatering; and emergencies.
This final rule removes normal operating losses from pneumatic controllers and pumps (previous § 3179.4(a)(1)(vii)) from the list of unavoidable losses because the use of gas in pneumatic controllers and pumps is already royalty free under previous § 3178.4(a)(3).
Final paragraph (b)(2)(vii) is similar to previous § 3179.4(a)(1)(viii), but has been rephrased to reflect the NTL-4A provisions pertaining to storage-tank losses (NTL-4A Section II.C(1)). Under final § 3179.4(b)(2)(vii), normal gas vapor losses from a storage tank or other low-pressure production vessel are unavoidably lost, unless the BLM determines that recovery of the vapors is warranted. Changing the phrase “operating losses” (as used in previous § 3179.4(a)(1)(viii)) to “gas-vapor losses” makes clear that this provision applies to low-pressure gas losses.
Final § 3179.4(b)(2)(viii) is the same as previous § 3179.4(a)(1)(ix). It states that well venting in the course of downhole well maintenance and/or liquids unloading performed in compliance with § 3179.104 is an operation from which lost gas is considered “unavoidably lost.”
The final rule does not retain previous § 3179.4(a)(1)(x), which classified leaks as unavoidable losses when the operator has complied with the LDAR requirements in previous §§ 3179.301 through 3179.305. The BLM is rescinding these LDAR requirements and so there is no need to reference these requirements as a limitation on losses through leaks.
Final § 3179.4(b)(2)(ix) is the same as previous § 3179.4(a)(1)(xi), identifying facility and pipeline maintenance, such as when an operator must blow-down and depressurize equipment to perform maintenance or repairs, as an operation from which lost oil or gas would be considered “unavoidably lost,” so long as the operator has not been negligent and has complied with all appropriate requirements.
The final rule does not include previous § 3179.4(a)(1)(xii). This paragraph listed the flaring of gas from which at least 50 percent of natural gas liquids have been removed and captured for market as an unavoidable loss. This provision was included in the 2016 rule as part of the BLM's effort to adopt a gas-capture percentage scheme similar to that of North Dakota. The BLM is removing this provision because it is rescinding the gas-capture percentage requirements contained in the 2016 rule.
The final rule does not include previous § 3179.4(a)(2). Previous § 3179.4(a)(2) provided that gas that is flared or vented from a well that is not connected to a gas pipeline is unavoidably lost, unless the BLM has determined otherwise. Previous § 3179.4(a)(2) was essentially a blanket approval for royalty-free flaring from wells not connected to a gas pipeline. Flaring from these wells, however,
Final § 3179.4(b)(3) states that produced gas that is flared or vented with BLM authorization or approval is unavoidably lost. This provision mirrors final § 3179.4(a), which states that gas that is flared or vented without BLM authorization or approval is avoidably lost, and provides clarity to operators about royalty obligations with respect to authorized venting and flaring.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.4 in a separate “Responses to Comments” document, available on the
As proposed, the final rule does not change previous § 3179.5. This section continues to state that royalty is due on all avoidably lost oil or gas and that royalty is not due on any unavoidably lost oil or gas.
The title of this section in the final rule has been changed from “venting prohibitions” to “venting limitations.” As was proposed, the final rule retains most of the provisions in previous § 3179.6. The purpose of both sections is to prohibit flaring and venting from gas wells, with certain exceptions, and to require operators to flare, rather than vent, any uncaptured gas, whether from oil wells or gas wells, with certain exceptions.
Final § 3179.6(a) is the same as the previous § 3179.6(a), except the cross reference has been updated. It states that gas-well gas may not be flared or vented, except where it is unavoidably lost, pursuant to § 3179.4(b). This same restriction on the flaring of gas-well gas was included in NTL-4A.
Both previous and final § 3179.6(b) state that operators must flare, rather than vent, any gas that is not captured, with the exceptions listed in subsequent paragraphs. Although the text of NTL-4A did not contain a similar requirement that, in general, lost gas should be flared rather than vented, the implementing guidance for NTL-4A in the United States Geological Survey's (USGS) Conservation Division Manual did contain a similar preference for flaring over venting. The flaring of gas is generally preferable to the venting of gas due to safety concerns. Final § 3179.6(b) therefore represents an improvement on NTL-4A by making clear in the regulation, rather than in implementation guidance, that lost gas should be flared when possible.
The first three flaring exceptions in both the previous and final § 3179.6 are identical: Paragraph (b)(1) allows for venting when flaring is technically infeasible; paragraph (b)(2) allows for venting in the case of an emergency, when the loss of gas is uncontrollable, or when venting is necessary for safety; and paragraph (b)(3) allows for venting when the gas is vented through normal operation of a natural-gas-activated pump or pneumatic controller.
The fourth flaring exception, listed in final § 3179.6(b)(4), allows gas vapors to be vented from a storage tank or other low-pressure production vessel, except when the BLM determines that gas-vapor recovery is warranted. Although this language is somewhat different than what appears in previous § 3179.6(b)(4), it has the same practical effect. As was proposed, it has been changed in this final rule to align the language with final § 3179.4(b)(vii) and to remove the cross-reference to the storage tank requirements in previous § 3179.203, which the BLM is rescinding.
The fifth exception, listed in final § 3179.6(b)(5), applies to gas that is vented during downhole well maintenance or liquids unloading activities. This is similar to previous § 3179.6(b)(5), except that the final rule, as was proposed, removes the cross reference to previous § 3179.204. Although the revision of subpart 3179 retains limitations on royalty-free losses of gas during well maintenance and liquids unloading in final § 3179.104, no cross-reference to those restrictions is necessary in this section, which simply addresses whether the gas may be vented or flared, not whether it is royalty-bearing.
The final rule removes the flaring exception listed in previous § 3179.6(b)(6), which applied to gas vented through a leak, provided that the operator had complied with the LDAR requirements in previous §§ 3179.301 through 3179.305. The BLM is rescinding these LDAR requirements so there is no need to reference these requirements as a limitation on venting through leaks.
The sixth flaring exception, listed in final § 3179.6(b)(6), is identical to the exception listed in previous § 3179.6(b)(7). This exception allows gas venting that is necessary to allow non-routine facility and pipeline maintenance to be performed.
The seventh flaring exception, listed in final § 3179.6(b)(7), is identical to the exception listed in previous § 3179.6(b)(8). This exception allows venting when a release of gas is unavoidable under § 3179.4, and Federal, State, local, or tribal law, regulation, or enforceable permit terms prohibit flaring.
Final § 3179.6(c) is identical to previous § 3179.6(c). Both sections require all flares or combustion devices to be equipped with automatic ignition systems. In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.6 in a separate “Responses to Comments” document, available on the
As was proposed, final § 3179.101 establishes volume and duration standards which limit the amount of gas that may be flared royalty free during initial production testing. The gas is no longer royalty free after reaching either limit. Final § 3179.101 establishes a volume limit of 50 million cubic feet (MMcf) of gas that may be flared royalty free during the initial production test of each completed interval in a well. Additionally, final § 3179.101 limits royalty-free initial production testing to a 30 day period, unless the BLM approves a longer period.
The 2016 rule also used volume and duration thresholds to limit royalty-free initial production testing. Previous § 3179.103 provided for up to 20 MMcf of gas to be flared royalty free during well drilling, well completion, and initial production testing operations combined. Under previous § 3179.103, upon receiving a Sundry Notice request from the operator, the BLM could have increased the volume of royalty-free
Under NTL-4A, gas lost during initial production testing was royalty free for a period not to exceed 30 days or the production of 50 MMcf of gas, whichever occurred first, unless a longer test period was authorized by the State and accepted by the BLM.
The volume and duration limits in final § 3179.101 are similar to those in previous § 3179.103 and NTL-4A. Both sections and NTL-4A allow 30 days from the start of the test, and all three allow for extensions of time. However, previous § 3179.103 limited an extension to no more than 60 days, whereas final § 3179.101 does not specify an extension limit. Final § 3179.101 allows for up to 50 MMcf of gas to be flared royalty free, with no express opportunity for an increase in the volume of royalty-free flaring during initial production testing. By comparison, previous § 3179.103 allowed for 20 MMcf to be flared royalty free, with the possibility of an additional 30 MMcf of gas flared with BLM approval, and no opportunity for additional royalty-free flaring beyond the cumulative 50 MMcf of gas.
Some commenters argued that the regulation should allow for operators to seek BLM approval for additional volumes of royalty-free flaring during initial production testing in the same way they can seek additional time for royalty-free flaring. Commenters also argued that the BLM should allow for additional time and volumes of royalty-free flaring when such longer periods or additional volumes of flaring are authorized by a State. The BLM does not agree with the comments and did not change § 3179.101 in response to them. Based on consultation with experienced BLM petroleum engineers and the fact that these limitations are consistent with longstanding standards in NTL-4A, the BLM believes the limitations in § 3179.101(a)(2) and (3) provide most operators sufficient time and volume for testing in a royalty-free status. Although an extension of the time period for initial production testing may sometimes be justified (as where the operator has failed to acquire adequate reservoir information), the volume threshold acts as a governor to ensure that the public and tribes are compensated for excessive losses of publicly or tribally owned gas during initial production testing. Beyond the 50 Mmcf threshold, the operator may continue initial production testing, but incurs a royalty obligation.
The provision for exploratory coalbed methane wells in previous § 3179.103 is the most notable difference between it and this final rule with regard to the initial production testing. Previous § 3179.103 provided for up to 270 cumulative royalty-free production testing days for exploratory coalbed methane wells, whereas the final rule contains no special provision for such wells. Exploratory coalbed methane wells are expected to be an exceedingly low percentage of future wells drilled, and so the BLM does not believe that a special provision addressing these wells is necessary.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.101 in a separate “Responses to Comments” document, available on the
As proposed, final § 3179.102(a) provides that gas flared during well tests subsequent to the initial production test is royalty free for a period not to exceed 24 hours, unless the BLM approves or requires a longer test period. Also as proposed, final § 3179.102(b) provides that the operator may request a longer test period and must submit its request using a Sundry Notice. Final § 3179.102 is functionally identical to previous § 3179.104.
NTL-4A included royalty-free provisions for “evaluation tests” and for “routine or special well tests.” Because NTL-4A also contained specific provisions for “initial production tests,” all of the other mentioned tests were presumed to be subsequent to the initial production tests. Under NTL-4A, royalty-free evaluation tests were limited to 24 hours, with no mention of a possibility for extension. Routine or special well tests, which are well tests other than initial production tests and evaluation tests, were royalty free under NTL-4A, but only after approval by the BLM.
The provisions for subsequent well tests in final § 3179.102 are essentially the same as those in both the 2016 rule and in NTL-4A. All three provide for a base test period of 24 hours, and all three have a provision for the BLM to approve a longer test period. Final § 3179.102 improves upon NTL-4A by dispensing with the distinction between “evaluation tests” and “routine or special well tests,” making the requirements for subsequent well tests more clear.
The comments about this section that the BLM received expressed support for the provision, as summarized in a separate “Responses to Comments” document, available on the
Under final § 3179.4(b)(2)(vi), royalty is not due on gas that is lost during an emergency. As proposed, final § 3179.103 describes the conditions that constitute an emergency, and lists circumstances that do not constitute an emergency. As provided in final § 3179.103(d), an operator is required to estimate and report to the BLM on a Sundry Notice the volumes of gas that were flared or vented beyond the timeframe for royalty-free flaring under final § 3179.103(a) (
The provisions in final § 3179.103 are nearly identical to those in previous § 3179.105. The most notable change from the 2016 rule is in describing those things that do not constitute an
The description of “emergencies” in NTL-4A was brief and was subject to misinterpretation. The purpose behind both previous § 3179.105 and final § 3179.103 is to improve upon NTL-4A by narrowing the meaning of “emergency,” such that it is uniformly understood and consistently applied.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.103 in a separate “Responses to Comments” document, available on the
Under final § 3179.4(b)(2)(viii), gas lost in the course of downhole well maintenance and/or liquids unloading performed in compliance with final § 3179.104 is royalty free. Final § 3179.104(a) states that gas vented or flared during downhole well maintenance and well purging is royalty free for a period not to exceed 24 hours. Final § 3179.104(a) also states that gas vented from a plunger lift system and/or an automated well control system is royalty free. Final § 3179.104(b) states that the operator must minimize the loss of gas associated with downhole well maintenance and liquids unloading, consistent with safe operations. Final § 3179.104(c) states that, for wells equipped with a plunger lift system or automated control system, minimizing gas loss under paragraph (b) includes optimizing the operation of the system to minimize gas losses to the extent possible consistent with removing liquids that would inhibit proper function of the well. Final § 3179.104(d) provides that the operator must ensure that the person conducting manual well purging remains present on-site throughout the event in order to end the event as soon as practical, thereby minimizing any venting to the atmosphere. Final § 3179.104(e) defines “well purging” as blowing accumulated liquids out of a wellbore by reservoir gas pressure, whether manually or by an automatic control system that relies on real-time pressure or flow, timers, or other well data, where the gas is vented to the atmosphere, and it does not apply to wells equipped with a plunger lift system. Final § 3179.104(e) is identical to previous § 3179.204(g).
Previous § 3179.204 required the operator to “minimize vented gas” in liquids unloading operations, but did not impose volume or duration limits. As with final § 3179.104, previous § 3179.204 allowed for gas vented or flared during well purging to be royalty free provided that the operator ensured that the person conducting the operation remained on-site throughout the event. Previous § 3179.204 also required plunger lift and automated control systems to be optimized to minimize gas loss associated with their effective operation. The main difference between previous § 3179.204 and final § 3179.104 is that previous § 3179.204(c) required the operator to file a Sundry Notice with the BLM the first time that each well was manually purged or purged with an automated control system. That Sundry Notice was required to include documentation showing that the operator evaluated the feasibility of using methods of liquids unloading other than well purging and that the operator determined that such methods were either unduly costly or technically infeasible. In addition to the apparent administrative burden of filing the Sundry Notice, this would have imposed additional costs on the operator by requiring it to evaluate and analyze other methods of liquids unloading. And, the evaluation may have led the operator to identify a more costly alternative that could not be ignored as “unduly costly.” Additionally, under previous § 3179.204, the operator would file a Sundry Notice with the BLM each time a well-purging event exceeded either a duration of 24 hours in a month or an estimated gas loss of 75 Mcf in a month. For each manual purging event, the operator would also have needed to keep a record of the cause, date, time, duration, and estimate of the volume of gas vented. The operator would have had to maintain these records and make them available to the BLM upon request.
With respect to royalty, gas vented during well purging was addressed in NTL-4A as follows: “. . . operators are authorized to vent or flare gas on a short-term basis without incurring a royalty obligation . . . during the unloading or cleaning up of a well during . . . routine purging . . . not exceeding a period of 24 hours.” As used in NTL-4A, it is unclear whether the “24 hours” limit was intended to be 24 hours per month or 24 hours per purging event. In this final rule, the BLM has modified proposed § 3179.104(a) to make clear that it imposes a 24-hour limit per event.
The available data show that the frequency of liquids unloading maintenance operations vary and that the events are relatively short in duration. A study by Shires and Lev-On
In terms of minimizing the loss of gas during well-purging events, final § 3179.104 and previous § 3179.204 are essentially the same. Differences between the two are found in the reporting and recordkeeping requirements imposed by the 2016 rule.
As mentioned above, final § 3179.104(d) requires the person conducting manual well purging to remain present on-site throughout the event to end the event as soon as practical. This provision was not a requirement in NTL-4A, and was first established in the 2016 rule.
The comments about section that the BLM received expressed support for the provision, as summarized in a separate “Responses to Comments” document, available on the
As proposed, final § 3179.201 governs the routine flaring of associated gas from oil wells. The requirements of final § 3179.201 replace the “capture percentage” requirements of the 2016 rule. Short-term flaring, such as that experienced during initial production testing, subsequent well testing, emergencies, and downhole well maintenance and liquids unloading, are governed by final §§ 3179.101 through 3179.104.
Final § 3179.201(a) allows operators to vent or flare oil-well gas royalty free when the venting or flaring is done in compliance with applicable rules, regulations, or orders of the State regulatory agency (for Federal gas) or tribe (for Indian gas). This section establishes State or tribal rules, regulations, and orders as the prevailing regulations for the venting and flaring of oil-well gas on BLM-administered leases, unit participating areas (PAs), or communitization agreements (CAs).
Under the 2016 rule, an operator's royalty obligations for venting or flaring were determined by the avoidable/unavoidable loss definitions and the gas-capture-requirement thresholds. Operator royalty obligations for the flaring of associated gas from oil wells under NTL-4A were, for the most part, dependent on a discretionary authorization by the BLM based on the economics of gas capture or an action plan to eventually eliminate the flaring. NTL-4A also allowed for gas to be flared royalty free pursuant to the rules, regulations, or order of the appropriate State regulatory agency, when the BLM had ratified or accepted such rules, regulations, or orders. The final rule implements this concept from NTL-4A by deferring to the rules, regulations, or orders of State regulatory agencies or a tribe. This change both simplifies an operator's obligations by aligning Federal and State venting and flaring requirements for oil-well gas and allows for region-specific regulation of oil-well gas that accounts for regional differences in production, markets, and infrastructure. An operator owes royalty on any oil-well gas flared in violation of applicable State or tribal requirements.
The BLM has analyzed the statutory and regulatory restrictions on venting and flaring in the 10 States constituting the top eight producers of Federal oil and the top eight producers of Federal gas, which collectively produce more than 99 percent of Federal oil and more than 98 percent of Federal gas. The BLM found that each of these States have statutory or regulatory restrictions on venting and flaring that are expected to constrain the waste of associated gas from oil wells. Most of these States require an operator to obtain approval from the State regulatory authority (by justifying the need to flare) in order to engage in the flaring of associated gas.
Some commenters expressed support for the deference to State and tribal regulations in § 3179.201(a). These commenters noted that the various oil and gas fields throughout the country possess different geological characteristics and that the primary fossil fuel resources extracted from the fields vary in type and quality. These commenters expressed support for § 3179.201(a) because it accounts for these regional differences. The BLM agrees with these commenters that regional geological differences make it difficult to develop a single standard for oil-well gas flaring that will be fair and effective when applied nationwide.
Other commenters objected to § 3179.201(a) on the grounds that State flaring regulations are less stringent than the 2016 rule, that State flaring regulations differ from State to State, that existing State regulations will not reduce flaring from current levels, that States may amend their regulations, and that North Dakota's flaring regulations have been, in the view of the commenters, ineffective. The BLM agrees that many of the State regulations it analyzed are not as stringent as the capture percentage requirements of the 2016 rule and that State flaring regulations vary from State to State. However, the BLM disagrees that this represents a flaw in § 3179.201(a). As explained above and evidenced by the 2016 RIA, BLM expected the capture percentage requirements of the 2016 rule to impose net costs. In § 3179.201(a), the BLM is replacing a regulatory requirement that imposed unreasonable costs with a policy that will reasonably constrain waste while
With respect to the efficacy of North Dakota's regulations, commenters submitted tabular data indicating that, of the top 30 producers of gas in the Bakken/Bakken-Three Forks/Three-Forks pools, 19 exceeded the applicable flaring percentage requirement in at least one month in 2017. The table submitted by the commenters highlighted each month in which an operator failed to meet the applicable capture target of 85 percent. The BLM notes that the table indicates that in many of these instances the operator appears to have narrowly missed the requirement (
Final § 3179.201(b) exclusively addresses oil-well gas production from an Indian lease. Vented or flared oil-well gas from an Indian lease will be treated as royalty free pursuant to final § 3179.201(a) only to the extent it is consistent with the BLM's trust responsibility.
In the event a State regulatory agency or tribe does not currently have rules, regulations, or orders governing venting or flaring of oil-well gas, the BLM is retaining the NTL-4A approach as a backstop, providing a way for operators to obtain BLM approval to vent or flare oil-well gas royalty free by submitting an application with sufficient justification as described in final § 3179.201(c). Applications for royalty-free venting or flaring of oil-well gas must include either: (1) An evaluation report supported by engineering, geologic, and economic data demonstrating that capturing or using the gas is not economical; or (2) An action plan showing how the operator will minimize the venting or flaring of the gas within 1 year of the application. If an operator vents or flares oil-well gas in excess of 10 MMcf per well during any month, the BLM may determine the gas to be avoidably lost and subject to royalty assessment. The BLM notes that there was no similar provision in NTL-4A allowing for the BLM to impose royalties where flaring under an action plan exceeds 10 MMcf per well per month. However, this provision is based on guidance in the Conservation Division Manual
As under NTL-4A, the evaluation report required under final § 3179.201(c)(1) must demonstrate to the BLM's satisfaction that the expenditures necessary to market or beneficially use the gas are not economically justified. Under final § 3179.201(d)(1), the evaluation report must include estimates of the volumes of oil and gas that would be produced to the economic limit if the application to vent or flare were approved, and estimates of the volumes of oil and gas that would be produced if the applicant was required to market or use the gas.
From the information contained in the evaluation report, the BLM will determine whether the operator can economically operate the lease if it is required to market or use the gas, taking into consideration both oil and gas production, as well as the economics of a field-wide plan. Under final § 3179.201(d)(2), the BLM is able to require operators to provide updated evaluation reports as additional development occurs or economic conditions improve, but no more than once a year. NTL-4A did not contain a similar provision allowing the BLM to require an operator to update its evaluation report based on changing circumstances. Final § 3179.201(d)(2) thus represents a change from NTL-4A.
An action plan submitted under final § 3179.201(c)(2) must show how the operator will minimize the venting or flaring of the oil-well gas within 1 year. An operator may apply for an approval of an extension of the 1-year time limit. In the event the operator fails to implement the action plan, the entire volume of gas vented or flared during the time covered by the action plan would be subject to royalty.
Final § 3179.201(e) provides for grandfathering of prior approvals to flare royalty free. These approvals will continue in effect until no longer necessary because the venting or flaring is authorized by the rules, regulations, or orders of an appropriate State regulatory agency or tribe under final § 3179.201(a), or the BLM requires an updated evaluation report and determines to amend or revoke its approval.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.201 in a separate “Responses to Comments” document, available on the
As proposed, final § 3179.301(a) requires operators to estimate or measure all volumes of lost oil and gas, whether avoidably or unavoidably lost, from wells, facilities, and equipment on a lease, unit PA, or CA and report those volumes under applicable Office of Natural Resources Revenue (ONRR)
Under final § 3179.301(c), the BLM may require the installation of additional measurement equipment whenever it determines that the existing methods are inadequate to meet the purposes of subpart 3179. NTL-4A contained essentially the same provision. Based on past experience in implementing NTL-4A, the BLM believes that final § 3179.301(c) would help to ensure accuracy and accountability in situations in which high volumes of royalty-bearing gas are being flared.
Final § 3179.301(d) allows the operator to combine gas from multiple leases, unit PAs, or CAs for the purpose of flaring or venting at a common point, but the operator is required to use a BLM-approved method to allocate the quantities of the vented or flared gas to each lease, unit PA, or CA. Commingling to a single flare is allowed because the BLM recognizes that the additional costs of requiring individual flaring measurement and meter facilities for each lease, unit PA, or communitized area are not necessarily justified by the incremental royalty accountability afforded by the separate meters and flares.
Final § 3179.301 is essentially the same as previous § 3179.9. The main difference between the two is that previous § 3179.9 required measurement or calculation under a particular protocol when the volume of flared gas exceeded 50 Mcf per day.
In addition to the explanation provided here, the BLM has summarized and responded to the comments received on § 3179.301 in a separate “Responses to Comments” document, available on the
Tribal commenters stated that the revision of the 2016 rule should provide more opportunity for tribes to exercise their sovereignty over oil and gas development under their jurisdiction. In order to facilitate this, the BLM has chosen to modify the proposed rule to include a new provision that would allow for additional deference to Tribal rules, regulations, and orders concerning the matters addressed in subpart 3179. New § 3179.401(a) states that a Tribe that has rules, regulations, or orders that are applicable to any of the matters addressed in subpart 3179 may seek approval from the BLM to have such rules, regulations, or orders apply in place of any or all of the provisions of subpart 3179 with respect to lands and minerals over which that Tribe has jurisdiction. Under § 3179.401(b), the BLM will approve the tribe's request as long as it is consistent with the BLM's trust responsibility.
The BLM reviewed the final rule and conducted an RIA and Environmental Assessment (EA) that examine the impacts of the final rule's requirements. The RIA and EA that the BLM prepared have been posted in the docket for the final rule on the
The BLM's final rule will remove almost all of the requirements in the 2016 rule that we previously estimated would pose a compliance burden to operators and generate benefits of gas savings or reductions in methane emissions. The final rule replaces the 2016 rule's requirements with requirements largely similar to those that were in NTL-4A. Also, for the most part, the final rule removes the administrative burdens associated with the 2016 rule's subpart 3179.
In conducting this RIA, the BLM also revisited the underlying assumptions used in the RIA for the 2016 rule. Specifically, the BLM revisited the underlying assumptions pertaining to LDAR, administrative burdens, and climate benefits (see Sections 3.2, 3.3, and 7 of the RIA).
For this final rule, we track the impacts over the first 10 years of implementation against the baseline. The period of analysis in the RIA prepared for the 2016 rule was 10 years. Results are provided using the net present value (NPV) of costs and benefits estimated over the evaluation period, calculated using 7 percent and 3 percent discount rates.
First, we examined the reductions in compliance costs, excluding the savings that would have been realized from product recovery. The final rule reduces compliance costs from the baseline. Over the 10-year evaluation period (2019-2028), we estimate a total reduction in compliance costs of $1.36 billion to 1.63 billion (NPV using a 7 percent discount rate) or $1.71 billion to 2.08 billion (NPV using a 3 percent discount rate). We expect very few compliance costs associated with the final rule, including the remaining administrative burdens.
The final rule reduces benefits from the baseline, since estimated cost savings that would have come from product recovery will be forgone and the emissions reductions would also be forgone. The final rule will result in forgone cost savings from natural gas recovery. Over the 10-year evaluation period (2019-2028), we estimate total forgone cost savings from natural gas recovery (from the baseline) of $559 million (NPV using a 7 percent discount rate) or $734 million (NPV using a 3 percent discount rate). The final rule also expects to result in forgone methane emissions reductions. Over the 10-year evaluation period (2019-2028), we estimate total forgone methane emissions reductions from the baseline valued at $66 million (NPV and interim domestic SC-CH4 using a 7 percent discount rate) or $259 million (NPV and interim domestic SC-CH4 using a 3 percent discount rate).
The final rule is estimated to result in positive net benefits relative to the baseline. More specifically, we estimate that the reduction of compliance costs will exceed the forgone cost savings from recovered natural gas and the value of the forgone methane emissions reductions. Over the 10-year evaluation period (2019-2028), we estimate total net benefits from the baseline of $734 million to $1.01 billion (NPV and interim domestic SC-CH
The final rule is expected to influence the production of natural gas, natural gas liquids, and crude oil from onshore Federal and Indian oil and gas leases. However, since the relative changes in production are expected to be small, we do not expect that the final rule will significantly impact the price, supply, or distribution of energy. This is not to say that the rule would not have a positive effect on marginal wells and the production of oil and natural gas from marginal wells.
The BLM conducted an analysis to examine the impacts that the 2016 rule would have had on marginal wells. As described in Section II.b of this preamble and Section 4.5.6 of the RIA, the BLM estimates that approximately 73 percent of wells on BLM-administered leases are considered to be marginal wells and that the annual compliance costs associated with the 2016 rule would have constituted 24 percent of the annual revenues of even the highest-producing marginal oil wells and 86 percent of the annual revenues of the highest-producing marginal gas wells. Production from marginal wells represents a smaller fraction of total oil and gas production than that of non-marginal wells. However, as the BLM's analysis indicates, this means that any associated regulatory burdens would have a disproportionate impact on marginal wells, since the compliance costs represent a much higher fraction of oil and gas revenues for marginal wells than they do for non-marginal wells. Thus, the compliance burdens of the 2016 rule pose a greater cost to marginal well producers.
The BLM also finds that marginal oil and gas production on Federal lands supported an estimated $2.9 billion in economic output in the national economy in FY 2015. To the extent that the 2016 rule would have adversely impacted production from marginal wells through premature shut-ins, this estimated economic output would have been jeopardized. Therefore, while the BLM has determined that the 2018 final rule would not significantly impact the price, supply, or distribution of energy, the BLM acknowledges that the 2016 rule had the potential to harm the production of oil and natural gas from marginal wells and that this revision of the 2016 rule would avoid those potentially harmful effects.
The final rule will reverse the estimated incremental changes in crude oil and natural gas production associated with the 2016 rule. Over the 10-year evaluation period (2019-2028), we estimate that 18.4 million barrels of crude oil production and 22.7 Bcf of natural gas production will no longer be deferred (as it would have been under the 2016 rule). However, we also estimate that there will be 299 Bcf of forgone natural gas production (that would have been produced and sold under the 2016 rule, rather than vented or flared). See RIA at Section 4.5.1.
For context, we note the share of the total U.S. onshore production in 2015 that the incremental changes in production will represent. The per-year average of the estimated crude oil volume that will no longer be deferred represents 0.058 percent of the total onshore U.S. crude oil production in 2015.
The 2016 rule would have been expected to impact the production of crude oil and natural gas from Federal and Indian oil and gas leases. In the RIA for the 2016 rule, the BLM estimated that the rule's requirements would generate additional natural gas production, but that substantial volumes of crude oil production would be deferred or shifted to the future. The BLM concluded that the 2016 rule would generate overall additional royalty, with the royalty gains from the additional natural gas produced outweighing the value of the royalty losses from crude oil production (and some associated gas) being deferred into the future.
This final rule, which reverses most of the 2016 rule's provisions, is expected to reverse the estimated royalty impacts of the 2016 rule. This formulation does not account for the potential countervailing impacts of the reduction in compliance burdens, which might spur additional production on Federal and Indian lands and prolong production from marginal wells, and therefore have a positive impact on royalties.
We note that royalty impacts are presented separately from the costs, benefits, and net benefits. Royalty payments are recurring income to Federal or tribal governments and costs to the operator or lessee. As such, they are transfer payments that do not affect the total resources available to society. An important but sometimes difficult problem in cost estimation is to distinguish between real costs and transfer payments. While transfers should not be included in the economic analysis estimates of the benefits and costs of a regulation, they may be important for describing the distributional effects of a regulation.
The final rule will result in forgone royalty payments to the Federal Government, tribal governments, States, and private landowners. Over the 10-year evaluation period (2019-2028), we estimate total forgone royalty payments (from the baseline) of $28.3 million (NPV using a 7 percent discount rate) or $79.1 million (NPV using a 3 percent discount rate).
E.O. 13563 reaffirms the principles of E.O. 12866 and requires that agencies, among other things, “identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.”
The 2016 rule established requirements and direct regulation on operators. Under this final rule, the BLM will remove the requirements of the 2016 rule that impose the most substantial direct regulatory burdens on operators. Also, with the final rule, the BLM will remove the duplicative operational and equipment requirements and paperwork and administrative burdens.
In developing this final rule, the BLM considered scenarios for retaining certain requirements previously contained in subpart 3179. For example, we examined the impacts of retaining subpart 3179 in its entirety (essentially taking no action). We also examined the impacts of retaining the gas-capture requirements of the 2016 rule (previous §§ 3179.7 and 3179.8) and the measurement/metering requirements (previous § 3179.9) while rescinding the operational and equipment requirements addressing venting from leaks, pneumatic equipment, and storage tanks. The results of these alternative scenarios are presented in the RIA at Section 4.
E.O. 13563 reaffirms the principles established in E.O. 12866, but calls for additional consideration of the regulatory impact on employment. E.O. 13563 states, “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” An analysis of employment impacts is a standalone analysis and the impacts should not be included in the estimation of benefits and costs.
This final rule removes or replaces requirements of the BLM's 2016 rule on waste prevention and is a deregulatory action. As such, we estimate that it will result in a reduction of compliance costs for operators of oil and gas leases on Federal and Indian lands. Therefore, it is likely that the impact, if any, on employment will be positive.
In the RIA for the 2016 rule, the BLM concluded that the requirements were not expected to impact the employment within the oil and gas extraction, drilling oil and gas wells, and support activities industries, in any material way. This determination was based on several reasons. First, the estimated incremental gas production represented only a small fraction of the U.S. natural gas production volumes. Second, the estimated compliance costs represented only a small fraction of the annual net incomes of companies likely to be impacted. Third, for those operations that would have been impacted, the 2016 rule had provisions that would exempt these operations from compliance to the extent that the compliance costs would force the operator to shut in production. Based on these factors, the BLM determined that the 2016 rule would not alter the investment or employment decisions of firms or significantly adversely impact employment. The RIA also noted that the requirements would necessitate the one-time installation or replacement of equipment and the ongoing implementation of an LDAR program, both of which would require labor.
By removing or revising the requirements of the 2016 rule, the BLM is alleviating the associated compliance burdens on operators. The investment and labor necessary to comply with the 2016 rule will not be needed. We do not believe that the cost savings in themselves will be substantial enough to substantially alter the investment or employment decisions of firms. However, we also recognize that there may be a small positive impact on investment and employment due to the reduction in compliance burdens if the output effects dominate. The magnitude of the reductions will be relatively small but could carry competitiveness impacts, specifically on marginal wells on Federal lands, encouraging investment. In sum, the effect on investment and employment of this rule remains unknown, but we do not believe that the final rule will substantially alter the investment or employment decisions of firms.
The BLM reviewed the Small Business Administration (SBA) size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau. We conclude that small entities represent the majority of entities operating in the onshore crude oil and natural gas extraction industry and, therefore, the final rule will impact a substantial number of small entities. To examine the economic impact of the rule on small entities, the BLM performed a screening analysis on a sample of potentially affected small entities, comparing the reduction of compliance costs to entity profit margins. This screening analysis showed that the estimated per-entity reduction in compliance costs would result in an average increase in profit margin of 0.19 percentage points (based on the 2014 company data).
The BLM performed the screening analysis pursuant to its obligations under the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act. The BLM recognizes that there are many operators of Federal and Indian leases that are substantially smaller than the SBA size standards for small businesses in the affected industries.
The BLM also notes that most of the emissions-based requirements in the 2016 rule (including LDAR, pneumatic controllers, pneumatic pumps, and liquids unloading requirements) would have imposed a particular burden on marginal or low-producing wells.
The final rule applies to oil and gas operations on both Federal and Indian leases. In the RIA, the BLM estimates the impacts associated with operations on Indian leases, as well as royalty implications for tribal governments. We estimate these impacts by scaling down the total impacts by the share of oil wells on Indian lands and the share of gas wells on Indian Lands. Please reference the RIA at Section 4.4.5 for a full explanation of the estimated impacts.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this final rule is economically significant because it will:
• Have an annual effect of $100 million or more on the economy; and
• Raise novel legal or policy issues.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the Nation's regulatory system to promote
This final rule rescinds or revises portions of the BLM's 2016 rule. We have developed this final rule in a manner consistent with the requirements in Executive Order 12866 and Executive Order 13563.
The BLM reviewed the requirements of the final rule and determined that it will not 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. For more detailed information, see the RIA prepared for this final rule. The RIA has been posted in the docket for the proposed rule on the Federal eRulemaking Portal:
This final rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's RIA.
The Regulatory Flexibility Act (5 U.S.C. 601
The BLM reviewed the SBA size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau in the Economic Census. The BLM concludes that the vast majority of entities operating in the relevant sectors are small businesses as defined by the SBA. As such, the final rule will likely affect a substantial number of small entities.
The BLM reviewed the final rule and estimates that it will generate cost savings of about $72,000 per entity per year. These estimated cost savings will provide relief to small operators, which, the BLM notes, represent the overwhelming majority of operators of Federal and Indian leases.
For the purpose of carrying out its review pursuant to the RFA, the BLM believes that the final rule will not have a “significant economic impact on a substantial number of small entities,” as that phrase is used in 5 U.S.C. 605. An initial regulatory flexibility analysis is therefore not required. In making a significance determination under the RFA, BLM used an estimated per-entity cost savings to conduct a screening analysis. The analysis shows that the average reduction in compliance costs associated with this final rule are a small enough percentage of the profit margin for small entities, so as not be considered “significant” under the RFA.
Details on this determination can be found in the RIA for the final rule.
This final rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This final rule:
(a) Will 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) Will not have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This final rule will not impose an unfunded mandate on State, local, or tribal governments, or the private sector of $100 million or more per year. The final rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. The final rule contains no requirements that would apply to State, local, or tribal governments. It will rescind or revise requirements that would otherwise apply to the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531
This final rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required. The final rule rescinds or revises many of the requirements placed on operators by the 2016 rule. Operators will not have to undertake the associated compliance activities, either operational or administrative. Therefore, the final rule impacts some operational and administrative requirements on Federal and Indian lands. All such operations are subject to lease terms which expressly require that subsequent lease activities be conducted in compliance with subsequently adopted Federal laws and regulations. This final rule conforms to the terms of those leases and applicable statutes and, as such, the rule is not a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the rule will not cause a taking of private property or require further discussion of takings implications under Executive Order 12630.
Under the criteria in section 1 of Executive Order 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism impact statement is not required.
The final rule will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local governmental entities. The rule will affect the relationship between
This final rule complies with the requirements of Executive Order 12988. More specifically, this final rule meets the criteria of section 3(a), which requires agencies to review all regulations to eliminate errors and ambiguity and to write all regulations to minimize litigation. This final rule also meets the criteria of section 3(b)(2), which requires agencies to write all regulations in clear language with clear legal standards.
The Department 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. We have evaluated this final rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified substantial direct effects on federally recognized Indian tribes that will result from this final rule. Under this final rule, oil and gas operations on tribal and allotted lands will no longer be subject to many of the requirements placed on operators by the 2016 rule.
The BLM believes that revising the requirements of subpart 3179 will prevent Indian lands from being viewed as less attractive to oil and gas operators than non-Indian lands due to unnecessary and burdensome compliance costs, thereby preventing economic harm to tribes and allottees. The BLM conducted tribal outreach which it believes is appropriate given that the final rule will remove many of the compliance burdens of the 2016 rule, defer to tribal laws, regulations, rules, and orders, with respect to oil-well gas flaring from Indian leases, and otherwise revise subpart 3179 in a manner that aligns it with NTL-4A.
The BLM is committed to engaging in meaningful Tribal Consultation. Through a letter dated November 21, 2017, the BLM notified 428 Tribal leaders and representatives of its intent to propose a rule to revise the 2016 final rule. In the letter, the BLM offered to participate in government-to-government consultations or to accept for consideration written comments, at the recipient's convenience. These letters were sent three months before the BLM published the proposed rule in the
The BLM received letters from several tribes seeking government-to-government consultation. The BLM also received comments from three allottees and members of tribes who did not request consultation. In response, the BLM conducted government-to-government consultations with the tribes who had requested consultation. During each of these government-to-government consultations, the BLM discussed the regulatory action with the tribes. The feedback the BLM received was overall positive, particularly about the opportunity for greater tribal sovereignty.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides that 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. 44 U.S.C. 3512. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).
OMB approved 24 information collection activities in the 2016 rule pertaining to waste prevention and assigned control number 1004-0211 to those activities. See “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” Final Rule, 81 FR 83008 (Nov. 18, 2016). In the Notice of Action approving the 24 information collection activities in the 2016 rule, OMB announced that the control number will expire on January 31, 2018. The Notice of Action also included terms of clearance.
On October 5, 2017, the BLM proposed a rule that would suspend or delay several regulations in the 2016 rule. In that proposed rule, the BLM requested the extension of control number 1004-0211 until January 31, 2019, including the 24 information collection activities in the 2016 rule. The BLM invited public comment on the proposed extension of control no. 1004-0211. The BLM also submitted the information collection request for the proposed rule to OMB for review in accordance with the PRA.
The BLM finalized that rule on December 8, 2017. See 82 FR 58050. OMB approved the information collection activities in the rule with an expiration date of December 31, 2020, and with a Term of Clearance that maintains the effectiveness of the Terms of Clearance associated with the 2016 rule. That Term of Clearance requires the BLM to submit to the Office of Information and Regulatory Affairs draft guidance to implement the collection of information requirements of the 2016 rule no later than 3 months after January 17, 2019.
This final rule does not modify any regulations in 43 CFR part 3170, subpart 3178. Accordingly, the BLM requests continuation of the information collection activity at 43 CFR 3178.5, 3178.7, 3178.8, and 3178.9 (“Request for Approval for Royalty-Free Uses On-Lease or Off-Lease”).
The final rule removes the information collection activity at 43 CFR 3162.3-1(j) (“Plan to Minimize Waste of Natural Gas”). The final rule also removes or revises many regulations and information collection activities in 43 CFR part 3170, subpart 3179. As a result, the BLM now requests revision of control number 1004-0211 to include:
• The information collection activities in this final rule; and
• The information collection activity entitled, “Request for Approval for Royalty-Free Uses On-Lease or Off-Lease.”
A. The BLM requests that OMB control number 1004-0211 continue to include the following information collection activity that was included at 43 CFR part 3170, subpart 3178, of the 2016 rule: Request for Approval for Royalty-Free Uses On-Lease or Off-Lease (43 CFR 3178.5, 3178.7, 3178.8, and 3178.9).
Section 3178.5 requires submission of a Sundry Notice (Form 3160-5) to request prior written BLM approval for use of gas royalty free for the following operations and production purposes on the lease, unit or communitized area:
• Using oil or gas that an operator removes from the pipeline at a location downstream of the facility measurement point (FMP);
• Removal of gas initially from a lease, unit PA, or communitized area for treatment or processing because of particular physical characteristics of the gas, prior to use on the lease, unit PA or communitized area; and
• Any other type of use of produced oil or gas for operations and production purposes pursuant to § 3178.3 that is not identified in § 3178.4.
• The equipment or facility in which the operation is conducted is located off the lease, unit, or communitized area for engineering, economic, resource-protection, or physical-accessibility reasons; and
• The operations are conducted upstream of the FMP.
Section 3178.8 requires that an operator measure or estimate the volume of royalty-free gas used in operations upstream of the FMP. In general, the operator is free to choose whether to measure or estimate, with the exception that the operator must in all cases measure the following volumes:
• Royalty-free gas removed downstream of the FMP and used pursuant to §§ 3178.4 through 3178.7; and
• Royalty-free oil used pursuant to §§ 3178.4 through 3178.7.
If oil is used on the lease, unit or communitized area, it is most likely to be removed from a storage tank on the lease, unit or communitized area. Thus, this regulation also requires the operator to document the removal of the oil from the tank or pipeline.
Section 3178.8(e) requires that operators use best available information to estimate gas volumes, where estimation is allowed. For both oil and gas, the operator must report the volumes measured or estimated, as applicable, under ONRR reporting requirements. As revisions to Onshore Oil and Gas Orders No. 4 and 5 have now been finalized as 43 CFR part 3170, subparts 3174 and 3175, respectively, the final rule text now references § 3173.12, as well as §§ 3178.4 through 3178.7 to clarify that royalty-free use must adhere to the provisions in those sections.
Section 3178.9 requires the following additional information in a request for prior approval of royalty-free use under § 3178.5, or for prior approval of off-lease royalty-free use under § 3178.7:
• A complete description of the operation to be conducted, including the location of all facilities and equipment involved in the operation and the location of the FMP;
• The volume of oil or gas that the operator expects will be used in the operation and the method of measuring or estimating that volume;
• If the volume expected to be used will be estimated, the basis for the estimate (
• The proposed disposition of the oil or gas used (
B. The BLM requests the revision of the following information collection activities in accordance with this final rule:
A regulation in the 2016 rule, 43 CFR 3179.103, allows gas to be flared royalty free during initial production testing. The regulation lists specific volume and time limits for such testing. An operator may seek an extension of those limits on royalty-free flaring by submitting a Sundry Notice (Form 3160-5) to the BLM.
A regulation in this final rule, 43 CFR 3179.101, is similar to the 2016 rule in addressing the royalty-free treatment of gas volumes flared during initial production testing. Title 43 CFR 3179.101 in this final rule would provide that gas flared during the initial production test of each completed interval in a well is royalty free until one of the following occurs:
• The operator determines that it has obtained adequate reservoir information;
• 30 days have passed since the beginning of the production test, unless the BLM approves a longer test period; or
• The operator has flared 50 MMcf of gas.
Section 3179.101 of this final rule also provides that an operator may request a longer test period by submitting a Sundry Notice.
A regulation in the 2016 rule, 43 CFR 3179.104, allows gas to be flared royalty free for no more than 24 hours during well tests subsequent to the initial production test. That regulation allows an operator to seek authorization to flare royalty free for a longer period by submitting a Sundry Notice (Form 3160-5) to the BLM.
A regulation in this final rule, 43 CFR 3179.102, is substantively identical to 43 CFR 3179.104 in the 2016 rule. Accordingly, the BLM requests that the information collection activity at 43 CFR 3179.102 of this final rule replace the activity at 43 CFR 3179.104 of the 2016 rule.
A regulation in the 2016 rule, 43 CFR 3179.105, allows an operator to flare gas royalty free during a temporary, short-term, infrequent, and unavoidable emergency. A regulation in this final rule, at 43 CFR 3179.103, is almost identical to 43 CFR 3179.105 of the 2016 rule. The BLM thus requests that the information collection activity entitled, “Reporting of Venting or Flaring (43 CFR 3179.105)” be re-named “Emergencies (43 CFR 3179.103).”
As provided at 43 CFR 3179.103(a) of this final rule, gas flared or vented during an emergency would be royalty-free for a period not to exceed 24 hours, unless the BLM determines that emergency conditions exist necessitating venting or flaring for a longer period. Section 3179.103(d) of this final rule would require the operator to report to the BLM on a Sundry Notice, within 45 days of the
As defined at 43 CFR 3179.103(b) of this final rule, an “emergency” for purposes of 43 CFR part 3170, subpart 3179, is a temporary, infrequent and unavoidable situation in which the loss of gas or oil is uncontrollable or necessary to avoid risk of an immediate and substantial adverse impact on safety, public health, or the environment, and is not due to operator negligence.
As provided at 43 CFR 3179.103(c) of this final rule, the following events would not constitute emergencies for the purposes of royalty assessment:
• The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
• Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
• Scheduled maintenance;
• A situation caused by operator negligence, including recurring equipment failures; or
• A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.
D. The BLM requests the removal of the following information collection activities in accordance with this final rule:
1. “Plan to Minimize Waste of Natural Gas”;
2. “Notification of Choice to Comply on County- or State-wide Basis”;
3. “Request for Approval of Alternative Capture Requirement”;
4. “Request for Exemption from Well Completion Requirements”;
5. “Notification of Functional Needs for a Pneumatic Controller”;
6. “Showing that Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves (Pneumatic Controller)”;
7. “Showing in Support of Replacement of Pneumatic Controller within 3 Years”;
8. “Showing that a Pneumatic Diaphragm Pump was Operated on Fewer than 90 Individual Days in the Prior Calendar Year”;
9. “Notification of Functional Needs for a Pneumatic Diaphragm Pump”;
10. “Showing that Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves (Pneumatic Diaphragm Pump)”;
11. “Showing in Support of Replacement of Pneumatic Diaphragm Pump within 3 Years”;
12. “Storage Vessels”;
13. “Downhole Well Maintenance and Liquids Unloading—Documentation and Reporting”;
14. “Downhole Well Maintenance and Liquids Unloading—Notification of Excessive Duration or Volume”;
15. “Leak Detection—Compliance with EPA Regulations”;
16. “Leak Detection—Request to Use an Alternative Monitoring Device and Protocol”;
17. “Leak Detection—Operator Request to Use an Alternative Leak Detection Program”;
18. “Leak Detection—Operator Request for Exemption Allowing Use of an Alternative Leak-Detection Program that Does Not Meet Specified Criteria”;
19. “Leak Detection—Notification of Delay in Repairing Leaks”;
20. “Leak Detection—Inspection Recordkeeping and Reporting”; and
21. “Leak Detection—Annual Reporting of Inspections.”
E. The BLM requests the addition of following information collection activity, in accordance with this final rule: Oil-Well Gas (43 CFR 3179.201).
A regulation in this final rule, 43 CFR 3179.201, would provide that, except as otherwise provided in 43 CFR part 3170, subpart 3179, oil-well gas may not be vented or flared royalty free unless BLM approves such action in writing. The BLM would be authorized to approve an application for royalty-free venting or flaring of oil-well gas upon determining that royalty-free venting or flaring is justified by the operator's submission of either:
(1) An evaluation report supported by engineering, geologic, and economic data that demonstrates to the BLM's satisfaction that the expenditures necessary to market or beneficially use such gas are not economically justified; or
(2) An action plan showing how the operator will minimize the venting or flaring of the gas within 1 year or within a greater amount of time if the operator justifies an extended deadline. If the operator fails to implement the action plan, the gas vented or flared during the time covered by the action plan would be subject to royalty.
The data in the evaluation report that is mentioned above would need to include:
• The applicant's estimates of the volumes of oil and gas that would be produced to the economic limit if the application to vent or flare were approved; and
• The volumes of the oil and gas that would be produced if the applicant were required to market or use the gas.
The BLM would be authorized to require the operator to provide an updated evaluation report as additional development occurs or economic conditions improve. In addition, the BLM would be authorized to determine that gas is avoidably lost and therefore subject to royalty if flaring exceeds 10 MMcf per well during any month.
The BLM notes that there are no additional reporting requirements associated with 43 CFR 3179.301 in the final rule. Section 3179.301, which is a revision of 43 CFR 3179.9, is already covered under an approved OMB control number 1012-0004. The provision provides that the operator must estimate or measure volumes of gas vented or flared, and report those volumes under “applicable ONRR reporting requirements,” which is authorized under control number 1012-0004. An ONRR regulation (30 CFR 1210.102) requires operators to submit a form that is included in that control number (Form ONRR-4054, Oil and Gas Operations Report) monthly for all oil and gas production. Volumes of vented gas and flared gas must be included in that report, using codes to identify those volumes. ONRR uses the information on Form ONRR-4054 to track all oil and gas from the point of production to the point of first sale or other disposition, to ensure proper royalties are paid. The BLM and other Federal Government agencies use the data to monitor and inspect lease operations. As revised, proposed 43 CFR 3179.301 does not change the burdens that ONRR estimates for Form ONRR-4054.
This final rule results in the following adjustments in hour or cost burdens:
1. The hours per response for Request for Approval for Royalty-Free Uses On-Lease or Off-Lease are increased from 4 to 8.
2. The number of responses for “Request for Extension of Royalty-Free Flaring During Initial Well Testing” are increased from 500 to 750.
Program changes in this final rule would result in 62,125 fewer responses than in the 2016 rule (1,075 responses minus 63,200 responses) and 78,160 fewer burden hours than in the 2016 rule (4,010 responses minus 82,170 responses). The program changes and their reasons are itemized in Tables 15-1 and 15-2 of the supporting statement.
The following table details the annual estimated hour burdens for the information activities described above:
The BLM has prepared an Environmental Assessment (EA) to determine whether this proposed rule would have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
This final rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
Section 4(b) of Executive Order 13211 defines a “significant energy action” as “any action by an agency (normally published in the
The rule rescinds or revises certain requirements in the 2016 rule and reduces compliance burdens. The BLM determined that the 2016 rule would not have impacted the supply, distribution, or use of energy. It stands to reason that a revision in a manner that conforms 43 CFR part 3170, subpart 3179, with the policies governing venting and flaring prior to the 2016 rule will likewise not have an impact on the supply, distribution, or use of energy. As such, we do not consider the final rule to be a “significant energy action” as defined in Executive Order 13211.
The principal authors of this final rule are: James Tichenor, Justin Abernathy, Michael Riches, and Nathan Packer of the BLM Washington Office; Adam Stern of the Department of the Interior's Office of Policy Analysis; Beth Poindexter of the BLM Montana and North Dakota State Office; David Mankiewicz of the BLM Farmington, New Mexico Field Office; and Jennifer Sanchez of the BLM Roswell, New Mexico Field Office; assisted by Faith Bremner of the BLM's Division of Regulatory Affairs and by the Department of the Interior's Office of the Solicitor.
Administrative practice and procedure, Government contracts, Indians—lands, Mineral royalties, Oil and gas exploration, Penalties, Public lands—mineral resources, Reporting and recordkeeping requirements.
Administrative practice and procedure, Flaring, Government contracts, Incorporation by reference, Indians—lands, Immediate assessments, Mineral royalties, Oil and gas exploration, Oil and gas measurement, Public lands—mineral resources, Reporting and recordkeeping requirements, Royalty-free use, Venting.
For the reasons set out in the preamble, the Bureau of Land Management amends 43 CFR parts 3160 and 3170 as follows:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740; and Sec. 107, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
The purpose of this subpart is to implement and carry out the purposes of statutes relating to prevention of waste from Federal and Indian (other than Osage Tribe) leases, conservation of surface resources, and management of the public lands for multiple use and sustained yield. This subpart supersedes those portions of Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil and Gas Lost (NTL-4A), pertaining to, among other things, flaring and venting of produced gas, unavoidably and avoidably lost gas, and waste prevention.
(a) This subpart applies to:
(1) All onshore Federal and Indian (other than Osage Tribe) oil and gas leases, units, and communitized areas, except as otherwise provided in this subpart;
(2) IMDA oil and gas agreements, unless specifically excluded in the agreement or unless the relevant provisions of this subpart are inconsistent with the agreement;
(3) Leases and other business agreements and contracts for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary, unless specifically excluded in the lease, other business agreement, or Tribal Energy Resource Agreement;
(4) Committed State or private tracts in a federally approved unit or communitization agreement defined by or established under 43 CFR part 3100, subpart 3105, or 43 CFR part 3180; and
(5) All onshore well facilities located on a Federal or Indian lease or a federally approved unit or communitized area.
(b) For purposes of this subpart, the term “lease” also includes IMDA agreements.
As used in this subpart, the term:
(1) A reduction in the quantity or quality of oil and gas ultimately producible from a reservoir under prudent and proper operations; or
(2) Avoidable surface loss of oil or gas.
For purposes of this subpart:
(a)
(1) Gas that is vented or flared without the authorization or approval of the BLM; or
(2) Produced oil or gas that is lost when the BLM determines that such loss occurred as a result of:
(i) Negligence on the part of the operator;
(ii) The failure of the operator to take all reasonable measures to prevent or control the loss; or
(iii) The failure of the operator to comply fully with the applicable lease terms and regulations, appropriate provisions of the approved operating plan, or prior written orders of the BLM.
(b)
(1) Oil or gas that is lost because of line failures, equipment malfunctions, blowouts, fires, or other similar circumstances, except where the BLM determines that the loss was avoidable pursuant to paragraph (a)(2) of this section;
(2) Oil or gas that is lost from the following operations or sources, except where the BLM determines that the loss was avoidable pursuant to paragraph (a)(2) of this section:
(i) Well drilling;
(ii) Well completion and related operations;
(iii) Initial production tests, subject to the limitations in § 3179.101;
(iv) Subsequent well tests, subject to the limitations in § 3179.102;
(v) Exploratory coalbed methane well dewatering;
(vi) Emergencies, subject to the limitations in § 3179.103;
(vii) Normal gas vapor losses from a storage tank or other low pressure production vessel, unless the BLM determines that recovery of the gas vapors is warranted;
(viii) Well venting in the course of downhole well maintenance and/or liquids unloading performed in compliance with § 3179.104; or
(ix) Facility and pipeline maintenance, such as when an operator must blow-down and depressurize equipment to perform maintenance or repairs; or
(3) Produced gas that is flared or vented with BLM authorization or approval.
(a) Royalty is due on all avoidably lost oil or gas.
(b) Royalty is not due on any unavoidably lost oil or gas.
(a) Gas well gas may not be flared or vented, except where it is unavoidably lost pursuant to § 3179.4(b).
(b) The operator must flare, rather than vent, any gas that is not captured, except:
(1) When flaring the gas is technically infeasible, such as when the gas is not readily combustible or the volumes are too small to flare;
(2) Under emergency conditions, as defined in § 3179.105, when the loss of gas is uncontrollable or venting is necessary for safety;
(3) When the gas is vented through normal operation of a natural gas-activated pneumatic controller or pump;
(4) When gas vapor is vented from a storage tank or other low pressure
(5) When the gas is vented during downhole well maintenance or liquids unloading activities;
(6) When the gas venting is necessary to allow non-routine facility and pipeline maintenance to be performed, such as when an operator must, upon occasion, blow-down and depressurize equipment to perform maintenance or repairs; or
(7) When a release of gas is unavoidable under § 3179.4 and flaring is prohibited by Federal, State, local or tribal law, regulation, or enforceable permit term.
(c) For purposes of this subpart, all flares or combustion devices must be equipped with an automatic ignition system.
(a) Gas flared during the initial production test of each completed interval in a well is royalty free until one of the following occurs:
(1) The operator determines that it has obtained adequate reservoir information;
(2) Thirty (30) days have passed since the beginning of the production test, unless the BLM approves a longer test period; or
(3) The operator has flared 50 million cubic feet (MMcf) of gas.
(b) The operator may request a longer test period and must submit its request using a Sundry Notice.
(a) Gas flared during well tests subsequent to the initial production test is royalty free for a period not to exceed 24 hours, unless the BLM approves or requires a longer test period.
(b) The operator may request a longer test period and must submit its request using a Sundry Notice.
(a) Gas flared or vented during an emergency is royalty free for a period not to exceed 24 hours, unless the BLM determines that emergency conditions exist necessitating venting or flaring for a longer period.
(b) For purposes of this subpart, an “emergency” is a temporary, infrequent and unavoidable situation in which the loss of gas or oil is uncontrollable or necessary to avoid risk of an immediate and substantial adverse impact on safety, public health, or the environment, and is not due to operator negligence.
(c) The following do not constitute emergencies for the purpose of royalty assessment:
(1) The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
(2) Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
(3) Scheduled maintenance;
(4) A situation caused by operator negligence, including recurring equipment failures; or
(5) A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.
(d) Within 45 days of the start of the emergency, the operator must estimate and report to the BLM on a Sundry Notice the volumes flared or vented beyond the timeframe specified in paragraph (a) of this section.
(a) Gas vented or flared during downhole well maintenance and well purging is royalty free for a period not to exceed 24 hours per event, provided that the requirements of paragraphs (b) through (d) of this section are met. Gas vented or flared from a plunger lift system and/or an automated well control system is royalty free, provided the requirements of paragraphs (b) and (c) of this section are met.
(b) The operator must minimize the loss of gas associated with downhole well maintenance and liquids unloading, consistent with safe operations.
(c) For wells equipped with a plunger lift system and/or an automated well control system, minimizing gas loss under paragraph (b) of this section includes optimizing the operation of the system to minimize gas losses to the extent possible consistent with removing liquids that would inhibit proper function of the well.
(d) For any liquids unloading by manual well purging, the operator must ensure that the person conducting the well purging remains present on-site throughout the event to end the event as soon as practical, thereby minimizing to the maximum extent practicable any venting to the atmosphere.
(e) For purposes of this section, “well purging” means blowing accumulated liquids out of a wellbore by reservoir gas pressure, whether manually or by an automatic control system that relies on real-time pressure or flow, timers, or other well data, where the gas is vented to the atmosphere, and it does not apply to wells equipped with a plunger lift system.
(a) Except as provided in §§ 3179.101, 3179.102, 3179.103, and 3179.104, vented or flared oil-well gas is royalty free if it is vented or flared pursuant to applicable rules, regulations, or orders of the appropriate State regulatory agency or tribe. Applicable State or tribal rules, regulations, or orders are appropriate if they place limitations on the venting and flaring of oil-well gas, including through general or qualified prohibitions, volume or time limitations, capture percentage requirements, or trading mechanisms.
(b) With respect to production from Indian leases, vented or flared oil-well gas will be treated as royalty free pursuant to paragraph (a) of this section only to the extent it is consistent with the BLM's trust responsibility.
(c) Except as otherwise provided in this subpart, oil-well gas may not be vented or flared royalty free unless the BLM approves it in writing. The BLM may approve an application for royalty-free venting or flaring of oil-well gas if it determines that it is justified by the operator's submission of either:
(1) An evaluation report supported by engineering, geologic, and economic data that demonstrates to the BLM's satisfaction that the expenditures necessary to market or beneficially use such gas are not economically justified. If flaring exceeds 10 MMcf per well during any month, the BLM may determine that the gas is avoidably lost and therefore subject to royalty; or
(2) An action plan showing how the operator will minimize the venting or flaring of the oil-well gas within 1 year. An operator may apply for approval of an extension of the 1-year time limit, if justified. If the operator fails to implement the action plan, the gas vented or flared during the time covered by the action plan will be subject to royalty. If flaring exceeds 10 MMcf per well during any month, the BLM may determine that the gas is avoidably lost and therefore subject to royalty.
(d) The evaluation report in paragraph (c)(1) of this section:
(1) Must include all appropriate engineering, geologic, and economic data to support the applicant's determination that marketing or using the gas is not economically viable. The
(2) The BLM may require the operator to provide an updated evaluation report as additional development occurs or economic conditions improve, but no more than once a year.
(e) An approval to flare royalty free, which is in effect as of November 27, 2018, will continue in effect unless:
(1) The approval is no longer necessary because the venting or flaring is authorized by the applicable rules, regulations, or orders of an appropriate State regulatory agency or tribe, as provided in paragraph (a) of this section; or
(2) The BLM requires an updated evaluation report under paragraph (d)(2) of this section and determines to amend or revoke its approval.
(a) The operator must estimate or measure all volumes of lost oil and gas, whether avoidably or unavoidably lost, from wells, facilities and equipment on a lease, unit PA, or communitized area and report those volumes under applicable ONRR reporting requirements.
(b) The operator may:
(1) Estimate or measure vented or flared gas in accordance with applicable rules, regulations, or orders of the appropriate State or tribal regulatory agency;
(2) Estimate the volume of the vented or flared gas based on the results of a regularly performed GOR test and measured values for the volumes of oil production and gas sales, to allow BLM to independently verify the volume, rate, and heating value of the flared gas; or
(3) Measure the volume of the flared gas.
(c) The BLM may require the installation of additional measurement equipment whenever it is determined that the existing methods are inadequate to meet the purposes of this subpart.
(d) The operator may combine gas from multiple leases, unit PAs, or communitized areas for the purpose of flaring or venting at a common point, but must use a method approved by the BLM to allocate the quantities of the vented or flared gas to each lease, unit PA, or communitized area.
(a) A tribe that has rules, regulations, or orders that are applicable to any of the matters addressed in this subpart may seek approval from the BLM to have such rules, regulations, or orders apply in place of any or all of the provisions of this subpart with respect to lands and minerals over which that tribe has jurisdiction.
(b) The BLM will approve a tribe's request under paragraph (a) to the extent that it is consistent with the BLM's trust responsibility.
(c) The deference to tribal rules, regulations, or orders provided for in this section is supplemental to, and does not limit, the deference to tribal rules, regulations, or orders provided for in § 3179.201.
Bureau of Safety and Environmental Enforcement, Interior.
Final rule.
The Bureau of Safety and Environmental Enforcement (BSEE) is amending the regulations regarding oil and natural gas production safety systems. After a thorough reexamination of the current regulations, and consideration of recent experiences from implementation of those regulations and of public comments on the proposed rule to amend those regulations, BSEE is revising or removing certain regulatory provisions that create unnecessary burdens on stakeholders, and clarifying other provisions, while ensuring safety and environmental protection.
This rule becomes effective on December 27, 2018.
The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of December 27, 2018.
BSEE can make copies of incorporated standards available for review at BSEE's office(s) upon advance request. One location where incorporated standards can be available for review is BSEE's headquarters at 45600 Woodland Road, Sterling, Virginia, 20166. Please email:
Amy White, Regulations and Standards Branch, 703-787-1665 or by email:
BSEE derives its authority primarily from the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331-1356a. Congress enacted OCSLA in 1953, significantly amended it in 1978, and subsequently amended specific provisions. As amended, OCSLA authorizes the Secretary of the Interior (Secretary) to lease the Outer Continental Shelf (OCS) for resource development in a way that makes it available for expeditious and orderly development, consistent with national needs and subject to environmental safeguards. Among other things, Congress established a policy to provide for orderly and expeditious development of oil and natural gas resources of the OCS to meet national economic and energy policy and which may serve to assure national security and reduce dependence on foreign sources. OCSLA also states that, among other purposes, OCS oil and gas resources should be managed in a way that balances orderly development with protection of the environment. The Secretary has delegated authority to perform certain of these functions to BSEE.
To carry out its responsibilities, BSEE regulates offshore oil and gas operations to ensure that operations are safe and environmentally responsible.
This final rule amends and updates the regulations in 30 CFR part 250, subpart H, Oil and Gas Production Safety Systems (subpart H). This rule supports the Administration's objective of facilitating energy dominance by encouraging increased domestic oil and gas production and reducing unnecessary burdens on stakeholders, while ensuring safety and environmental protection.
Since 2010, the Department of the Interior (Department) has promulgated several rulemakings (
On December 29, 2017, BSEE published in the
• Updates the incorporation of certain standards referenced in subpart H;
• Adds gas lift shut down valves (GLSDVs) to the list of safety and pollution prevention equipment (SPPE);
• Revises requirements for SPPE by replacing the requirement for independent third parties to certify that each device will function in the most extreme conditions to which it will be exposed with requirements for device design testing, documentation of the process the operator used to ensure the device is designed to function as required, and independent third party review and certification of a device if the device is moved to a different location
• Clarifies equipment failure reporting requirements;
• Clarifies and revises some of the production safety system design requirements, including revising the requirements for professional engineer (PE) stamping, revising the requirements for piping schematics, simplifying the requirements for electrical system information, revising the requirement for operators to provide certain documents to BSEE, and clarifying when operators must update existing documents;
• Clarifies requirements for atmospheric vessels containing Class I liquids;
• Clarifies requirements for inspection of the fire tube for tube-type heaters;
• Clarifies the requirement for notifying the BSEE District Manager before commencing production; and
• Makes other conforming changes to ensure consistency within the regulations and makes other minor edits.
Since the start of 2017, the President issued several Executive Orders (E.O.) that necessitated the review of BSEE's rules. On January 30, 2017, the President issued E.O. 13771, entitled, “Reducing Regulation and Controlling Regulatory Costs” (82 FR 9339), which requires Federal agencies to take proactive measures to reduce the costs associated with complying with Federal regulations.
On March 28, 2017, the President issued E.O. 13783, entitled, “Promoting Energy Independence and Economic Growth” (82 FR 16093). This E.O. directed Federal agencies to review all existing regulations and other agency actions and, ultimately, to suspend, revise, or rescind any regulations or actions that unnecessarily burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.
On April 28, 2017, the President issued E.O. 13795, entitled, “Implementing an America-First Offshore Energy Strategy” (82 FR 20815). This E.O. directed the Secretary of the Interior to reconsider the 2016 Well Control Rule adopted in April 2016 and to take appropriate action to “revise any related rules” for consistency with E.O. 13795's stated policy “to encourage energy exploration and production, including on the Outer Continental Shelf, in order to maintain the Nation's position as a global energy leader and foster energy security and resilience for the benefit of the American people, while ensuring that any such activity is safe and environmentally responsible.”
To further implement E.O. 13783, the Secretary issued Secretary's Order (S.O.) 3349, entitled, “American Energy Independence,” on March 29, 2017. The S.O. directed DOI to review all existing regulations “that potentially burden the development or utilization of domestically produced energy resources.” Similarly, to implement E.O. 13795, the Secretary issued S.O. 3350, entitled, “America-First Offshore Energy Strategy,” on May 1, 2017, which directed BSEE to review the 2016 Well Control Rule and related rulemakings. BSEE interpreted each of these orders to apply to the 2016 PSSR.
As part of its response to E.O.s 13783 and 13795 and to S.O.s 3349 and 3350, BSEE reviewed the regulations in subpart H, as revised by the 2016 PSSR, with a view toward the policy of encouraging energy exploration and production on the OCS, and reducing unnecessary regulatory burdens, while ensuring that any such activity is safe and environmentally responsible. Like the 2016 PSSR, BSEE also focused on offshore oil and gas production technology and operations, including subsea production systems used for production in increasingly deeper waters. This focus is unrelated to well control during well operations. Nevertheless, BSEE carefully analyzed all the provisions in the proposed rule and this final rule and compared them to the 424 recommendations arising from 26 separate reports from 14 different organizations developed in the wake of and in response to the
In accordance with the National Technology Transfer and Advancement Act, Public Law 104-113 (NTTAA), 15 U.S.C. 3701
The Office of the Federal Register's (OFR) regulations, at 1 CFR part 51, govern how BSEE and other Federal agencies incorporate documents by reference. Agencies may incorporate a document by reference by publishing in the
When a copyrighted publication is incorporated by reference into BSEE regulations, BSEE is obligated to observe and protect that copyright. BSEE provides website addresses where members of the public may access these standards for viewing, sometimes for free and sometimes for a fee. SDOs decide whether to charge a fee. One such organization, API, provides free online public access to view read only copies of its key industry standards, including a broad range of technical standards. In particular, API voluntarily makes available all API standards that are safety-related and that are incorporated into Federal regulations for free viewing by the public online in the Incorporation by Reference Reading Room on API's website at:
BSEE recognizes that there may be additional opportunities to make standards more accessible and agrees to work with OMB and the OFR to explore potential approaches to improve public access to standards and to information about the standards.
In addition to the legal requirement under the NTTAA for Federal agencies to use standards, there are a number of benefits to incorporating these documents into the regulations. Standards increase consistency for employee training, equipment compatibility, processes, and testing during operations. Standards help ensure that operators and their contractors take proper precautions during operations; resulting in safety performance improvements through the reduction of lost time from injuries and incidents, work environment safety standards, proper training, product failure reporting, quality control and assurance requirements, addressing safety issues, and improved communications between user and supplier. Global adoption of standards is a compelling reason for the most updated editions to be part of regulatory frameworks since they drive consistency, promote competition, and reduce the burden of compliance.
In response to the proposed rule, BSEE received 733 separate sets of comments, including some comments that had a total of over 60,000 signatures attached to the comments. BSEE received comments from a wide range of stakeholders, including industry trade groups and individual companies, State and local governments, Tribal authorities, members of the U.S. Congress, environmental groups, SDOs, and private citizens. All comments are posted at the Federal Rulemaking Portal:
Commenters raised issues on a number of topics, including general issues, section-by- section comments, and comments on certain additional issues on which BSEE solicited comments, including:
• Potential Revisions to § 250.107(c) Best Available and Safest Technology (BAST);
• Potential Revisions to § 250.198 Documents incorporated by reference;
• Extension of Compliance Deadline for Pressure Safety Valve (PSV) Testing Under § 250.880 Production safety system testing;
• Potential Revisions Based on the Investigation of the Explosion and Fatality on West Delta Block 105 Platform E; and
• Implementation of This Rulemaking.
Some commenters opposed any changes to the existing production safety regulations, while other commenters supported most of the proposed revisions. Many commenters seemed to confuse the 2016 PSSR and BSEE's December 2017 proposed rule with the 2016 WCR. The comments indicate that those commenters apparently assumed that the proposed rule involved revisions to the 2016 WCR, which was not the case.
These commenters evidently confused the 2016 PSSR, which updated production safety systems regulations, with the 2016 WCR, which discussed the recommendations in the
While the 2016 WCR was responsive to the Commission's and other
Further, the commenters' suggestions that
Similarly, BSEE disagrees with one commenter's suggestion that BSEE should not make changes to the 2016 PSSR simply because the “SUMMARY” statement in that final rule said that it was “
Similarly, as explained in the proposed rule, by E.O.s 13783 and 13795, as well as S.O.s 3349 and 3350, issued in early 2017, obligated BSEE to review existing regulations (which include the 2016 PSSR) to determine whether it unnecessarily burdened exploration, development, or production of energy resources, and whether it would be appropriate to revise the rules to reduce those burdens while still ensuring that such activities are safe and environmentally responsible.
Specifically, several of the standards incorporated into subpart H (
Risk-based inspections complement BSEE's existing National Safety Inspection Program under OCSLA, which requires BSEE to conduct annual scheduled inspections and periodic unannounced inspections on all OCS oil and gas facilities. Risk-based inspection approaches evaluate operational and performance information, such as data from prior inspections and failure reporting, to identify those facilities and operations that may pose a higher likelihood of an unsafe event or of more severe consequences from such an event. BSEE uses this data to manage its inspector force and to target their work to address production facilities with higher risks of safety incidents, equipment failure, or INCs. Accordingly, BSEE implemented a formal risk-based inspection program in 2018 following pilot testing.
The program is comprised of two categories of risk-based inspections—a “facility-based” category targeting specific production facilities identified as higher-risk, and a “performance-based” category targeting specific operations or equipment across multiple facilities. Facility-based risk inspections employ a quantitative model and additional qualitative evaluation of operational and performance information to identify higher-risk facilities, and inspection protocols are tailored to facility-specific hazards, barriers, and risks. Performance-based risk inspections employ trend analysis of performance indicators, such as incident and INC data, to identify safety issues (
BSEE does not believe that the additional measures—for automatic shut-in of individual facilities with a failure or for wide-spread shut-in of production that uses similar SPPE—suggested by a commenter are appropriate or necessary at this time. The testing provisions in existing § 250.880 already require operators to repair and reinstall or replace many key components in production safety equipment (
Although the commenters may disagree with how BSEE has balanced those statutory principles and goals, the difficult and complex task of balancing those policies is committed to BSEE's discretion and expert judgment. And for all the reasons discussed in the proposed rule and in this notice, BSEE has determined that the proposed revisions to subpart H (including those singled out by these commenters), as finalized in this rule, will reduce unnecessary regulatory burdens while ensuring safe and environmentally responsible operations on the OCS.
In addition, BSEE notes that subpart H, as a whole, ensures safety and environmental protection safeguards at every stage of the production process, including with regard to: Design and approval of safety equipment and safety systems; installation of such equipment and systems at production facilities; personnel safety device training; continuous maintenance, field testing, and reporting of failures and problems to BSEE and manufacturers; equipment repair/removal/replacement, when needed, to ensure ongoing functionality; and shut-in, shutdown, and emergency procedures to deal with potential and impending risks.
Moreover, many of the specific requirements that apply at these stages of production, especially during production operations, are intended to prevent harm to safety or the environment. For example, if the required SPPE fails, the default setting for the valves is to fail in “safe mode”; in most cases, that is the “closed” position, thus preventing the release of hydrocarbons within the production system and limiting the impact of equipment failures. In addition, the SPPE in production safety systems are typically part of a closed system. Thus, when components fail, releasing hydrocarbons, another barrier confines the oil or gas within the system.
Accordingly, BSEE is confident that the final rule changes, which should reasonably reduce burdens (
As discussed in the proposed rule (82 FR 61705), all standards incorporated in BSEE's regulations are available to view for free at BSEE's headquarters office in Sterling, Virginia and at BSEE's other office locations, during normal working hours, upon request. BSEE received no requests to examine the standards proposed for incorporation in the proposed rule at BSEE's office.
In addition to making standards available at BSEE for in-office examination, API voluntarily allows the public to view documents cited in government regulations free of charge on its website. (
In this case, the updated or reaffirmed editions of the API standards referred to in the proposed rule (as well as one new replacement standard) were made available for free viewing on API's website beginning on January 19, 2018. BSEE recognizes that those editions of the API standards were not available for viewing on API's website during the entire comment period. Nonetheless, those editions could be accessed for public viewing during a significant portion of the comment period. Moreover, at all times during the comment period, commenters could have requested to view the relevant editions of API's standards at BSEE's office or purchased copies of those editions from API for a fee.
In addition, although some commenters suggested or implied that BSEE should make incorporated industry standards freely downloadable and searchable, apparently without regard to whether the standards are protected by copyright under U.S. and international law. Federal law—including the NTTAA, which authorizes and requires BSEE to incorporate industry-developed consensus standards by reference under appropriate circumstances, and the OFR regulations (1 CFR part 51) that govern all incorporations by reference in Federal regulations—does not eliminate copyright protection for incorporated standards. In fact, OFR, which has authority to approve all incorporations by reference, has considered and expressly rejected the idea that either the NTTAA or OFR's own regulations remove copyright protections.
Further, OFR's rules for incorporation by reference require only that an agency discuss in the final rule the ways that the incorporated document(s) are “reasonably available” to interested parties and how interested parties can obtain the documents.
BSEE disagrees, however, with the commenter's suggestion that the incorporation of documents by reference in general is overly cumbersome and often reduces clarity, and with the implication that BSEE therefore should not use incorporated standards. Standards typically address complex technical issues, often at great length and in great detail, and it would be difficult and impracticable to duplicate that effort by drafting and inserting such detailed standards in the regulations. In fact, the NTTAA requires Federal agencies to use technical standards developed by voluntary consensus organizations to carry out the agencies' objectives, when consistent with Federal law, in lieu of creating new Federal standards. And it is frequently more practical and efficient for agencies to incorporate such standards—with which the regulated industry is typically already familiar through their development by industry experts—by reference in the regulatory text rather than for the agencies to develop separate Federal standards. Moreover, OMB Circular A-119, which instructs agencies on compliance with the NTTAA, expressly recognizes incorporation by reference of such standards as an acceptable means of using such standards in regulations.
Consistent with the NTTAA, BSEE frequently participates in the standards development process by attending relevant standards development committee meetings and commenting on the documents as they are developed. Furthermore, requiring operators to follow specific standards documents that are incorporated by reference in the regulations often helps operators by providing detailed instructions for meeting the standards that would be impracticable to include in regulatory text. These instructions can help ensure consistency in operators' approaches to carrying out regulatory requirements. This consistency, in turn, helps BSEE in reviewing and approving plans, permits, and other applications and simplifies the inspection process.
With regard to the commenter's suggestion that BSEE provide summaries of the relevant standards, BSEE notes that it is already required, by OFR's regulations governing incorporations by reference, to summarize the incorporated materials in preambles to proposed and final rules (
With regard to the commenter's concern that BSEE had not completed its own evaluation of the new editions of certain standards that BSEE proposed to update, BSEE agrees that was the case at the time the proposed rule was published. However, BSEE did not intend to incorporate into a final rule any standards for which it had not completed its evaluation and is not doing so. Rather, BSEE sought to use the proposed rulemaking to solicit public feedback on those documents for BSEE to take into consideration while BSEE continued its internal review of these documents.
Concerning the comments on BSEE's use of API standards, and the assertion that API standards increasingly do not represent best industry practices, BSEE does not agree that incorporation and use of the standards referenced in this final rule is either inappropriate or detrimental to safety and environmental protection. BSEE has evaluated the API standards incorporated in this final rule, and determined that they are at least as protective as the previously incorporated versions of those standards and serve as a valuable complement to BSEE's regulations in helping to achieve the statutory objectives. These standards provide a baseline. BSEE adds supplemental requirements where appropriate. Moreover, as previously discussed, the NTTAA mandates that Federal agencies use technical standards developed by voluntary consensus standards organizations, instead of government-developed standards, where practicable and consistent with applicable law. There are only a few SDOs, including API, that address issues related to offshore oil and gas operations. Also, API provides standards on technical topics that are not addressed by other SDOs. And, consistent with the NTTAA's preference for agency use of consensus standards (
In addition, based on recommendations in other post-
In addition, the issue of whether BSEE should modify its procedures for incorporating industry standards in the future is beyond the scope of this rulemaking. As previously discussed, in this rulemaking BSEE made all of the documents incorporated by reference available for public review in connection with the comment period provided for the proposed rule and continues to make publicly available at its office all of the standards incorporated by reference in the final rule.
Similarly, BSEE does not agree that a “technical analysis” of the kind suggested by the commenter prior to a proposed incorporation by reference is necessary in order for commenters to be able to comment on such a proposal. As discussed previously, BSEE complies with the NTTAA requirement that an agency use standards developed or adopted by “voluntary consensus standards bodies” rather than government-unique standards, except where inconsistent with applicable law or otherwise impractical. (
BSEE proposed to revise § 250.198 by replacing older editions of certain standards incorporated in the regulations with new or recently reaffirmed editions of those standards.
BSEE received numerous comments that raised several issues (
BSEE received no comments on the proposed revisions to the cross-references in § 250.198(h)(58) and (62) and the final rule makes those revisions.
In addition, although BSEE has completed its evaluation of most of the standards proposed for incorporation (including the Third Edition of API RP 500), BSEE needs more time to complete its evaluation of the other five standards (including the Eighth Edition of API RP 14C). Accordingly, BSEE will not finalize the proposed incorporation of the following standards at this time and will make final decisions as to whether to incorporate some or all of these standards in a final rule at a later date:
• API RP 14C, Analysis, Design, Installation, and Testing of Basic Surface Safety Systems for Offshore Production Platforms, Eighth Edition (February 2017). BSEE proposed to substitute the Eighth Edition for the currently incorporated Seventh Edition (2001, reaffirmed 2007). The Eighth Edition contains extensive substantive changes compared to the last substantive revision (the Sixth Edition) in 1998 and makes numerous organizational changes as compared to the Seventh Edition.
• API STD 2RD, Dynamic Risers for Floating Production Systems, Second Edition, September 2013. BSEE proposed to substitute this standard for the currently incorporated First Edition of API RP 2RD (1998, Errata 2009) of the same standard.
• ANSI/API Spec. 14A, Subsurface Safety Valve Equipment, Twelfth Edition (January 2015; Errata, July 2015; Addendum, June 2017). BSEE proposed to substitute the Twelfth Edition for the currently incorporated Eleventh Edition (2005) of the same standard.
• ANSI/API Spec. 17J, Unbonded Flexible Pipe, Fourth Edition May 2014; Errata 1, September 2016; Errata 2, May 2017; Addendum 1, October 2017. BSEE proposed to substitute this edition for the currently incorporated Third Edition (2008) of the same standard.
• API RP 2SM, Design, Manufacture, Installation, and Maintenance of Synthetic Fiber Ropes for Offshore Mooring, Second Edition (2014). BSEE proposed to substitute this edition for the currently incorporated First Edition (2001; 2007 Addendum) of the same standard.
BSEE is carrying forward with certain proposed revisions to § 250.198 in the final rule. First, as previously mentioned, and as proposed, the final rule revises § 250.198(h)(58) (which incorporates API RP 14F, Recommended Practice for Design, Installation, and Maintenance of Electrical Systems for Fixed and Floating Offshore Petroleum Facilities for Unclassified and Class 1, Division 1 and Division 2 Locations, Upstream Segment) and § 250.198(h)(62) (which incorporates API RP 14J, Recommended Practice for Design and Hazards Analysis for Offshore Production Facilities) to update the cross-references to § 250.842(b), which this final rule has redesignated as § 250.842(c). Second, BSEE has completed its evaluations of the following standards, as well as any comments received on their proposed incorporation, and determined that these standards are at least as protective of safety and the environment as the standards previously incorporated in the regulations. Accordingly, this final rule revises existing § 250.198 to incorporate the following updated standards:
• ASME Boiler and Pressure Vessel Code (BPVC)
○ Section I, Rules for Construction of Power Boilers including Appendices (2017 Edition). This edition replaces the previously incorporated 2004 edition of that standard, including the July 2005 Addenda and all Section I Interpretations Volume 55. ASME BPVC Section 1 provides methods and requirements for: construction of power, electric, and miniature boilers; high temperature water boilers, heat recovery steam generators, and certain fired pressure vessels to be used in stationary service; and power boilers used in locomotive, portable, and traction service. Major changes in the 2017 edition include: (a) New guidance on visual examination in the fabrication process; (b) a non-mandatory option for ultrasonic examination acceptance criteria; (c) requirements for retaining radiographs as digital images; (d) clarification of material identification requirements for a “pressure part material;” (e) updated mandatory training requirements for qualified personnel for various non-destructive examination (NDE) techniques; (f) updated provisions on the types of auxiliary lift devices that operators can use for alternative testing of valves to align with current state of the art; (g) clarification that welded pressure parts must be hydrostatic-tested with the completed boiler; and (h) references to other updated standards.
○ Section IV, Rules for Construction of Heating Boilers; including Appendices 1, 2, 3, 5, 6, and Non-mandatory Appendices B, C, D, E, F, H, I, K, L, and M, and the Guide to Manufacturers Data Report Forms (2017 Edition). This edition replaces the previously incorporated 2004 Edition and 2005 Addenda of that standard. The updated standard provides requirements for design, fabrication, installation, and inspection of steam heating, hot water heating, hot water supply boilers, and potable water heaters intended for low pressure service that are directly fired by oil, gas, electricity, coal, or other solid or liquid fuels. The new edition also (a) provides equipment scope clarifications, (b) includes a new mandatory appendix for feedwater economizers, (c) deletes conformity assessments requirements and moves them to normative reference ASME CA-1, (d) provides new corrosion resistant alloy requirements for internal tank surfaces of heat exchangers installed in storage tanks, and (e) clarifies requirements for modular boilers.
○ Section VIII, Rules for Construction of Pressure Vessels; Divisions 1, 2, and 3 (2017 Edition) and all Section VIII Interpretations Volumes 54 and 55. This edition replaces the previously incorporated 2004 Edition and 2005 Addenda, Divisions 1, 2, and 3 and all Section VIII Interpretations Volumes 54 and 55. Since the 2004 edition was issued, ASME has rewritten the BPVC code to incorporate the latest technologies and engineering knowledge. The 2017 Edition gives detailed requirements for the design, fabrication, testing, inspection, and certification of both fired and unfired pressure vessels. This updated edition specifically refers to those pressure vessels that operate at pressures, either internal or external, that exceed 15 pounds per square inch gauge (psig). Section VIII contains three divisions, each of which covers different vessel specifications.
• API 510, Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration, Downstream Segment, Tenth Edition (May 2014), including Addendum 1 (May 2017). This edition replaces the previously incorporated Ninth Edition of the same standard. API 510 covers the in-service inspection, repair, alteration, and re-rating activities for pressure vessels and the pressure-relieving devices protecting these vessels. API 510 is intended to specify the in-service inspection and condition-monitoring program that is needed to determine the integrity of pressure vessels and pressure-relieving devices. The Tenth Edition includes updated normative references, updated definitions, and new requirements for inspection programs, corrective actions,
• API RP 2SK, Design and Analysis of Stationkeeping Systems for Floating Structures, Third Edition (October 2005), Addendum (May 2008), reaffirmed edition of June 2015. The reaffirmed document makes no changes to the previously incorporated 2008 Third Edition. It provides a method for analyzing, designing, or evaluating station-keeping systems (mooring, dynamic positioning, or thruster-assisted mooring) that operators use for floating units. The reaffirmed standard also addresses some operational aspects of such systems and provides different design requirements for mobile and permanent moorings.
• ANSI/API RP 14B, Design, Installation, Operation, Test and Redress of Subsurface Safety Valve Systems, Sixth Edition (September 2015). This edition replaces the previously incorporated Fifth Edition (2005) of the same standard. This standard creates requirements and provides guidelines for subsurface safety valve (SSSV) system equipment. Manufacturers and operators design and install SSSVs to prevent an uncontrolled well flow, when actuated. The Sixth Edition addresses system design, installation, operation, testing, redress, support activities, documentation, and failure reporting. The Sixth Edition covers specific equipment including control systems, control lines, SSSVs, and secondary tools and provides criteria for proper redress for replacement or disassembly of an SSSV. In contrast to the Fifth Edition, the Sixth Edition also emphasizes supplier and manufacturer operating manuals, systems integration manuals, handling, system quality, documentation, and data control.
• API RP 14FZ, Design, Installation, and Maintenance of Electrical Systems for Fixed and Floating Offshore Petroleum Facilities for Unclassified and Class I, Zone 0, Zone 1 and Zone 2 Locations, Second Edition (May 2013). This edition replaces the previously incorporated First Edition (2001, reaffirmed 2007) of the same standard. The Second Edition contains substantial changes from the First Edition. The Second Edition establishes minimum requirements and guidelines for design and installation of electrical systems on fixed and floating petroleum facilities located offshore in hazardous locations classified as Zone 0, Zone 1, or Zone 2. As revised, the Second Edition of API RP 14FZ applies to both permanent and temporary electrical installations and describes basic desirable electrical practices for offshore electrical systems.
• API RP 14G, Fire Prevention and Control on Fixed Open-type Offshore Production Platforms, Fourth Edition (April 2007), reaffirmed January 2013. The reaffirmed document makes no changes to the previously-incorporated standard. This reaffirmed standard includes provisions for minimizing the likelihood of an accidental fire, and for designing, inspecting, and maintaining fire control systems. The reaffirmed standard emphasizes the need to train personnel in firefighting, to conduct routine drills, and to establish methods and procedures for safe evacuation. API's intent in this standard is for fire control systems to provide an early response to prevent incipient fires from spreading; however, the intent is not to preclude the application of more extensive practices to meet special situations or the substitution of other systems that will provide an equivalent or greater level of protection. This reaffirmed standard is applicable to fixed open-type offshore production platforms, which are generally installed in moderate climates and which have sufficient natural ventilation to minimize the accumulation of vapors; enclosed areas, such as quarters buildings and equipment enclosures, normally installed on this type platform are addressed. Totally enclosed platforms installed for extreme weather conditions or other reasons, however, are beyond the scope of this standard.
• API STD 6AV2, Installation, Maintenance, and Repair of Surface Safety Valves and Underwater Safety Valves Offshore (First Edition March 2014) and Errata 1, August 2014. This standard replaces the previously incorporated API RP 14H, Installation, Maintenance and Repair of Surface Safety Valves and Underwater Safety Valves Offshore (Fifth Edition 2007), which API withdrew when it adopted API STD 6AV2. The new standard provides practices for installing and maintaining Surface Safety Valves (SSVs) and Underwater Safety Valves (USVs) used or intended to be used as part of a safety system (as defined by documents such as API RP 14C) and includes provisions for conducting inspections, installations, and maintenance, field and off-site repair as well as provisions addressing testing procedures, acceptance criteria, failure reporting, and documentation. API STD 6AV2 also includes updated definitions, new provisions for qualified personnel, new documentation and test procedures, acceptance criteria for post-installation and post-field repair, and provisions for offsite repair and remanufacture alignment to ANSI/API Spec. 6A.
• API RP 500, Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Division 1 and Division 2, Third Edition (December 2012; Errata January 2014). This edition replaces the previously incorporated Second Edition (1997, reaffirmed 2002) of the same standard. The purpose of this standard is to provide guidelines for classifying locations (Class I, Division 1 and Class I, Division 2) at petroleum facilities for the selection and installation of electrical equipment. This standard followed the basic definitions given in the 2011 edition of National Fire Protection Association (NFPA) 70, National Electrical Code (NEC).
• ANSI/API Spec. Q1, Specification for Quality Management System Requirements for Manufacturing Organizations for the Petroleum and Natural Gas Industry, Ninth Edition (June 2013; Errata, February 2014; Errata 2, March 2014) and Addendum 1 (June 2016). This edition replaces the previously incorporated Eighth Edition (2007) of the same standard. This updated standard features over 85 new clauses and five new sections, creating a major shift in quality management as it applies to the oil and gas industry. A thematic change is the approach to quality through risk assessment and risk management. The five new sections include risk assessment and management, contingency planning, product quality planning, preventative maintenance, and management of change. The Ninth Edition is also intended to align with API Spec. Q2, Quality Management System Requirements for Service Supply Organizations for the Petroleum and Natural Gas Industries, First Edition (2011). Overall, the goal of ANSI/API Spec. Q1 Ninth Edition is to further enhance the minimum baseline requirements of quality management systems of oil and gas equipment manufacturers.
• ANSI/API Spec. 6A, Wellhead and Christmas Tree Equipment, Twentieth Edition (October 2010; Addendum 1, November 2011; Errata 2, November 2011; Addendum 2, November 2012; Addendum 3, March 2013; Errata 3, June 2013; Errata 4, August 2013; Errata 5, November 2013; Errata 6, March 2014; Errata 7, December 2014; Errata 8, February 2016; Addendum 4, June 2016; Errata 9, June 2016; Errata 10, August 2016). This edition replaces the previously incorporated Nineteenth Edition (2004) of the same standard. The Twentieth Edition includes significant changes from the previous edition, such
• API Spec. 6AV1, Specification for Verification Test of Wellhead Surface Safety Valves and Underwater Safety Valves for Offshore Service, Second Edition (February 2013). This edition replaces the previously incorporated First Edition (1996, reaffirmed 2008) of the same standard. The Second Edition establishes design validation requirements for ANSI/API Spec. 6A, Specification for Wellhead and Christmas Tree Equipment, for SSVs and USVs as well as associated valve bore sealing mechanisms for Class II and Class III SSVs and USVs. Major changes from the First Edition include: replacing “Performance Requirement” with the term “Class;” phasing out the use of Class 1/PR1 valves; establishment of API licensing of test agencies; updated facility requirements; more specificity on the validation testing procedures of Class II valves; and new validation tests for Class III SSVs and USVs.
• API 570, Piping Inspection Code: In-service Inspection, Rating, Repair, and Alteration of Piping Systems, Fourth Edition (February 2016; Addendum 1, May 2017). This edition replaces the previously incorporated Third Edition (2009). API 570 covers inspection, rating, repair, and alteration procedures for metallic and fiberglass-reinforced plastic piping systems and their associated pressure relieving devices that have been placed in service. This inspection code applies to all hydrocarbon and chemical process piping covered in section 1.2.1 that have been placed in service (unless specifically designated as optional per section 1.2.2). This publication does not cover inspection of specialty equipment, including instrumentation, exchanger tubes and control valves. The “in service inspection” Code in this standard no longer covers process piping systems that have been retired from service and abandoned in place. However, piping that is abandoned in place may still need some amount of inspection and/or risk mitigation to ensure that it does not become a process safety hazard because of continuing deterioration. Process piping systems that are temporarily out of service, but have been preserved for potential future use, are still covered by the new edition of this Code.
• API STD 6AV2 (First Edition), API 510 (Tenth Edition), and API 570 (Fourth Edition) apply to both new and existing facilities and equipment;
• API RP 2SK (Third Edition, reaffirmed 2015), API RP 14FZ (Second Edition), and API RP 500 (Third Edition) apply only to new facilities installed after the final rule effective date; and
• ANSI/API RP 14B (Sixth Edition), ANSI/API Spec. Q1 (Ninth Edition), and API Spec. 6AV1 (Second Edition) apply only to new equipment installed after the effective date.
BSEE did not receive any comments on this section of the proposed rule. Since BSEE decided not to incorporate by reference the second edition of API STD 2RD, as proposed, the final rule implements no changes to this section of the regulations.
BSEE proposed updating API RP 2RD to API STD 2RD in this rule. BSEE did not receive any comments on this section of the proposed rule. BSEE decided not to incorporate by reference the second edition of API STD 2RD, as proposed.
However, BSEE is revising paragraph (a) of this section to clarify expectations for preproduction inspections of new facilities, adding two new subordinate paragraphs to paragraph (a). In the current regulations, paragraph (a) of this section already requires operators to receive BSEE approval of their production safety system application and request a preproduction inspection from BSEE before commencing production. BSEE added a new paragraph (a)(1) to clarify the requirement to obtain approval of the production safety system application by referencing § 250.842, which contains the requirements for that application. BSEE also added new paragraph (a)(2) to highlight and clarify the requirement to request a preproduction inspection, including language noting that the operator must notify the District Manager 72 hours before it plans to commence initial production and adding a cross reference to that existing requirement in § 250.880(a)(1). These revisions are purely organizational and clarifying and do not impose any new substantive requirements.
In the proposed rule, BSEE proposed to clarify that GSLDVs are a type of SPPE, since, for reasons explained in the 2017 proposed rule (82 FR 61709), GLSDVs already must follow § 250.801. BSEE also proposed to revise the introductory sentence in paragraph (a) of this section to remove the phrase “[i]n wells located on the OCS,” since all of the equipment that is considered SPPE is either located in a well or a riser. After consideration of comments submitted on the proposed revisions to this section, as discussed below, the final rule revises § 250.801(a) to expressly include GLSDVs in the list of equipment that BSEE considers to be SPPE. In addition, as proposed, the final rule revises paragraph (a) to remove the phrase, “[i]n wells located on the OCS.”
Consistent with the proposed revision to § 250.801, BSEE is revising this section to include GLSDVs in the equipment addressed in paragraphs (a) and (c) of this section, as well. BSEE also is revising paragraph (d)(2) of § 250.802 to remove the phrase “on that well,” as proposed. BSEE does not need to specify the location of the SPPE since all of the equipment that is considered SPPE is either located in a well or a riser.
However, the responsibility for verifying that the SPPE is fit-for-service on a specific facility ultimately rests with the operator and BSEE, not the OEM. The existing requirement for independent third party certification helps to supplement BSEE's review process. Based on the public comments, BSEE reviewed this process and the existing third party certification programs and is revising the current requirements regarding the independent third party certifications as previously described.
BSEE determined that it is appropriate to retain the existing language requiring the device to be designed to function under the conditions to which it may be exposed, while deleting the phrase “most extreme.” The recommendations arising from the
The independent third party certification required by existing regulations is a one-time certification of each device. A one-time certification will not guarantee that a device will function as designed for the life of the device. Accordingly, an independent third party's certification that the device will function is inherently of limited value. The existing regulations already include additional requirements to ensure that SPPE will function when needed. For example, § 250.880 establishes detailed testing requirements for SPPE, based on the specific type of device, ensuring that all SPPE are tested on a regular basis and repaired or replaced, as appropriate. This regular testing is designed to ensure the SPPE will function when needed, preventing failures during operations.
BSEE requested comments concerning a method of using BSDVs which were already in the operator's inventory, but had not been certified pursuant to the SPPE requirements. BSEE also requested information on the size of this non-certified BSDV inventory. The comments from industry associations included a recommendation that would allow the use of non-certified equipment if a purchase order had been signed by the effective date of the 2016 rule. BSEE notes that operators were aware of the likely SPPE requirements long before the effective date of the 2016 rule. In addition, operators have options under the existing regulations for obtaining approval to use non-certified SPPE. We believe that this case-by case approval process is a better approach than attempting to address the issue through a modification of the SPPE requirements. Consequently, BSEE made no change to the regulations regarding existing BSDV inventory.
Existing § 250.803(b) requires operators to ensure that an investigation and a failure analysis to determine the cause of the failure are performed within 120 days of the failure and that the conclusions and any corrective action are documented. If an entity other than the manufacturer performs the investigation and analysis, the regulation requires operators to ensure that the manufacturer and BSEE receive copies of the analysis report. Existing § 250.803(c) specifies that if an equipment manufacturer notifies an operator that it changed the design of the equipment that failed, or if the operator changes operating or repair procedures as a result of a failure, then the operator must, within 30 days of such changes, report the design change or modified procedures in writing to the Chief of BSEE's Office of Offshore Regulatory Programs (OORP) (at the address specified in existing paragraph (d)) or to the Chief's designee.
BSEE proposed to revise § 250.803(a) to expressly include GLSDVs in the list of equipment that are subject to the failure reporting requirements and to clarify that operators must submit their SPPE failure information to BSEE through the Chief, OORP, unless BSEE has designated a third-party under proposed paragraph (d), to whom operators would then be required to submit their failure information.
Commenters asserted that the “failure” definition proposed in § 250.803(a) could be interpreted so broadly as to include maintenance issues and routine repair items that would create an administrative burden with no safety or environmental protection improvement, while noting that some operators disagree with this position. Those operators recognize that parts wear over time, and due to the wear, the SPPE device would “fail to meet the functional specification.”
With regard to the commenters' suggestion that BSEE hold workshops with industry to determine the best repository or clearinghouse for collecting failure data, BSEE does not agree that this approach is necessary, at this time. BSEE already has identified BTS as an appropriate clearinghouse for this data. The commenters did not raise specific objections or concerns related to BSEE's designation of BTS to collect the failure data. BSEE's collaboration with BTS allows the collection and analysis of failure data under strict standards of confidentiality, which supports robust reporting.
With regard to commenters' assertion that the existing definition could be interpreted so broadly as to include maintenance issues and routine repair items, BSEE observes that the types of devices included as SPPE in the final rule represent primary and secondary barriers to prevent the loss of well control and subsequent potentially catastrophic events. In a study recently completed for BSEE by ExproSoft
BSEE agrees that a failure is ultimately a result of its root cause, and BSEE is implementing the failure reporting requirements to promote confidence that there will be no adverse impact on entities that report failures by designating BTS as the third party to receive and analyze information submitted under this section (
BSEE proposed to revise paragraph (a) of this section to clarify that operators must shut in the production on any facility that “is impacted or that will potentially be impacted by an emergency situation.” This proposed clarification was intended to ensure that operators understand their obligation to properly secure wells before the platform is evacuated in the event of an emergency. The proposed rule also included some examples of emergencies (such as named storms, ice events, or earthquakes), but did not specify all emergency events that could trigger this provision; rather, the operator must determine when its facility is impacted or will potentially be impacted due to an emergency situation. (
1. When approved by the BSEE District Manager (or, in Alaska, the OCS Regional Supervisor of Field Operations) for a well incapable of natural flow (§ 250.810);
2. When in the process of changing-out an SSSV or the production tubing housing an SSSV (§ 250.812);
3. When an SSSV becomes inoperable and measures are taken to address the issue (§ 250.813);
4. When an SSSV is in the process of being repaired, replaced, or installed (§ 250.814); or
5. When a wireline or pumpdown-retrievable SSSV is removed for routine operations (not exceeding 15 days and with prescribed safety mitigations in-place) (§ 250.817).
Section summary: This section addresses requirements for the design, installation, and operations of SSSVs installed on subsea trees. These provisions ensure reliable operation and establish that a well with a subsea tree must not be open to flow while an SSSV is inoperable. BSEE proposed to revise § 250.828(c) to update the title of API RP 14B with ANSI/API RP 14B. That proposal is adopted in this final rule.
BSEE proposed revising the introductory paragraph in this section to replace API Spec. 6A with ANSI/API Spec. 6A. BSEE did not receive any comments on this section of the proposed rule. BSEE is finalizing this provision as proposed.
The final rule revises this section by incorporating API STD 6AV2 in place of API RP 14H, which was withdrawn by API. BSEE did not receive any comments on this section of the proposed rule. BSEE is finalizing this provision as proposed.
BSEE proposed revising this section by incorporating API STD 6AV2 in place of API RP 14H, which was withdrawn by API. BSEE did not receive any comments on this section of the proposed rule. The final rule revises this section to update the new incorporation by reference, as proposed. In the final rule, BSEE is also making minor changes in the wording to emphasize that all BSDVs that are removed from service and reinstalled must meet the requirement of this section. This was the case under the existing regulation, but the revision will make the requirement more explicit.
This section addresses actions operators must take in the event of an emergency situation. These situations include weather events, such as storms. This section includes details on valve closures related to specific conditions on the facility, such as process upsets and emergency shutdown (ESD) events, and it includes requirements pertaining to dropped objects in the vicinity of producing subsea wells.
BSEE is revising paragraph (a) of this section to clarify that operators must shut in the production on any facility that “is impacted or will potentially be impacted by an emergency situation.” This revision is consistent with the revision to § 250.821(a) for facilities with dry trees. Paragraph (a) of the final rule includes examples of emergencies, such as named storms, ice events, or earthquakes. It is not BSEE's intent to specify all emergency events that could trigger actions required by this regulation. The operator must determine when there may be impacts due to an emergency or if an emergency event impacted their facility.
BSEE also adds GLSDVs to the list of equipment that must be closed during a shut-in. This is consistent with
In addition, BSEE is revising paragraph (b) of this section to clarify the requirements for dropped objects in an area with subsea operations and for consistency with the provisions of the dropped objects plan required by § 250.714. Section 250.714 does not require operators to submit this plan as part of the application for permit to drill (APD) or application for permit to modify (APM); rather, the operator must make their dropped object plans available to BSEE upon request. A dropped object plan is not a static plan and § 250.714 requires operators to update their dropped objects plans as the subsea infrastructure changes.
BSEE proposed revising several paragraphs in this section that address dropped objects to use the phrase “vessel (
BSEE adds a new paragraph (c) to this section to address major modifications to a facility, by directing operators to follow the requirements in § 250.900(b)(2). This is not a new requirement, as operators are already required to follow the provisions of § 250.900(b)(2) for major modifications. This simply provides direction to the operator and emphasizes the need to follow § 250.900(b)(2). The final paragraph (c) is substantively the same as the proposed, but with minor clarifying changes in response to comments.
In the proposed rule, BSEE also requested comments on paragraph (b) of this section, and whether BSEE needed to make other changes to address corrosion prevented. Existing paragraph (b) of this section requires operators to maintain all piping for platform production processes as specified in API RP 14E, Recommended Practice for Design and Installation of Offshore Production Platform Piping Systems (API RP 14E). Section 6.5(a)(1) of API RP 14E addresses painting of steel piping to prevent corrosion. BSEE solicited comments on this requirement in the proposed rule's preamble. Corrosion prevention is important for safety and pollution prevention and BSEE is not removing the reference to API RP 14E from this section.
The existing § 250.842(a) regulations require the operator to submit a production safety system application to the District Manager before installing or modifying a production safety system. While this section requires the application to be approved, it does not specify the timing of that approval. To address this, BSEE proposed to revise the introductory provisions in paragraph (a) to state that the District Manager must approve the production safety system application before the operator may commence production through or utilize the new or modified system. BSEE is revising this provision in the final rule for clarity, to state that the District Manager must approve the production safety system application before the operator may commence production “through or otherwise use the new or modified system.”
Paragraph (a) of existing § 250.842 also includes a table that details the information that the operator needs to include in the production safety system application. Paragraph (b)(2) of the existing regulations requires the operator to certify that the “designs for the mechanical and electrical systems under paragraph (a) of this section were reviewed, approved, and stamped by an appropriate registered professional engineer(s).” This includes all of the information, diagrams, drawings, and designs that are submitted pursuant to existing paragraph (a). BSEE proposed to revise some requirements in the table in paragraph (a) related to the information, diagrams, drawings, and designs (design documents) operators must submit to BSEE for approval. BSEE proposed to revise this provision to require operators to submit the most critical documents to BSEE, and to have only those documents stamped by a PE.
In addition to requiring the operators to submit the most critical designs documents to BSEE and to have only those items sealed by a PE, BSEE proposed in a new paragraph (b) to require operators to develop and maintain other supporting documents. The supporting documents identified in proposed paragraph (b) provide additional details and information related to the design documents required in proposed paragraph (a). While these paragraph (b) documents provide supporting information, they are not critical for BSEE to review during the approval process. However, the operator still must develop these documents and make them available for review and inspection by BSEE upon request. The final rule generally reflects those changes as proposed, with some clarifications based on public comments.
BSEE proposed revising the table in paragraph (a) to require operators to submit the safety analysis flow diagram, safety analysis function evaluation (SAFE) chart, electrical one line diagram, and area classification diagram for new facilities and for modifications to existing facilities. BSEE proposed additional revisions and reorganization of the existing table in paragraph (a).
Existing provisions in paragraph (a)(1) require the operator to submit a piping and instrumentation diagram; existing paragraphs (a)(1)(i) through (vii) identify the specific information that the piping and instrumentation diagram must include. BSEE proposed changing the requirement in existing paragraph (a)(1) for the piping and instrumentation diagram to instead require a safety analysis flow diagram and a SAFE chart, and also proposed to incorporate references to the relevant sections of API RP 14C that describe the contents of these two items. In addition, BSEE proposed to retain the information requirements for piping and instrumentation diagrams that were already in existing paragraphs (a)(1)(i) through (vii). However, under the proposed rule, the information required by the existing paragraphs (a)(1)(i) through (vii) would be submitted with the safety analysis flow diagram and SAFE chart, instead of the piping and instrumentation diagram. These proposed changes would better align the requirements with the information identified in industry standards, including API RP 14C. In the proposed rule, this information would be required for new facilities and modifications of existing facilities.
BSEE proposed additional reorganization of the table in paragraph (a) in conjunction with the proposed changes to paragraph (a)(1). Since the safety analysis flow diagram and SAFE chart are required under paragraph (a)(2) in the existing regulations, BSEE proposed to remove that paragraph in the table. BSEE also proposed to move the requirement for electrical system information from under existing paragraph (a)(3) to new paragraph (a)(2) and proposed to call that information the “electrical one-line diagram.” BSEE proposed revising the requirements for the electrical one-line diagram, to include “generators, circuit breakers, transformers, bus bars, conductors, battery banks, automatic transfer switches, uninterruptable power supply (UPS), dynamic (motor) loads, and static (
BSEE proposed to move the additional detailed electrical information that is required in existing paragraph (a)(3) to new paragraph (b)(1), as this is supporting information for the electrical systems. Proposed paragraph (b)(1) would require additional supporting electrical system information including: (i) Cable tray/conduit routing plan which identifies the primary wiring method (
BSEE proposed to remove from the table the information required in existing paragraph (a)(4) for schematics of the fire and gas-detection systems. Proposed paragraph (a)(4) would instead require a schematic piping and instrumentation diagram and apply to new facilities only.
Existing paragraph (a)(5) addresses the service fee for the production safety system application. BSEE did not propose any revisions to that paragraph.
To accommodate the new paragraph (b), BSEE proposed removing existing paragraph (c) and redesignating existing paragraph (b) as new paragraph (c). New paragraph (b) would require the operator to develop and maintain documents that provide supporting documents to the design documents required in the table in proposed paragraph (a). These documents would contain information that is related to the design documents that would be required in proposed paragraph (a), but this information is not critical for BSEE to review during the approval process. However, the operator would still be required to develop these documents and make them available for review and inspection by BSEE upon request. The final rule generally reflects those changes as proposed, with some clarifications based on public comments.
Under the proposed rule, new paragraph (c) (which is existing paragraph (b)) would continue to require operators to certify: (1) That all electrical installations were designed according to API RP 14F or API RP 14FZ, as applicable; (2) that an appropriate registered professional engineer(s) reviewed, approved, and stamped the designs for the mechanical and electrical systems that operators are required to submit under paragraph (a) of this section. For modified systems, only appropriate registered professional engineer(s) are required to approve and stamp the modifications. The registered professional engineer must be registered in a State or Territory of the United States and have sufficient expertise and experience to perform the duties; and (3) that a hazards analysis was performed in accordance with § 250.1911 and API RP 14J (incorporated by reference as specified in § 250.198), and that operators have a hazards analysis program in place to assess potential hazards during the operation of the facility. As proposed, BSEE is revising redesignated paragraph (c)(2) of § 250.842 (existing (b)(2)) to require the designs for the mechanical and electrical systems that the operator is required to submit under paragraph (a) of this section be reviewed, approved, and stamped by an appropriate registered professional engineer(s).
Existing paragraph (c) requires operators to certify, in a letter to the District Manager, that the mechanical and electrical systems were installed in accordance with the approved designs, before beginning production. The intent of this step was to ensure the operator properly documented the installation of the mechanical and electrical systems. However, this submittal was a burdensome step to assure document management and confirm that operator performed the modification as proposed and approved. Because the operators must submit the as-built drawings, which BSEE uses for field verification, the required certification letter is redundant and not needed. So BSEE proposed to remove this requirement entirely.
BSEE proposed to revise existing paragraph (d) to clarify requirements regarding PE stamping of required drawings. The rule proposed to require the diagrams that operators submit to BSEE under § 250.842(a)(1), (2), and (3) be reviewed, approved, and stamped by an appropriate registered PE(s). In addition, BSEE proposed moving the requirement from existing paragraph (e)—that the operators submit the as-built diagrams within 60 days of commencing production—to new paragraph (d).
Since under the proposed rule, the regulations no longer need existing paragraph (e) and BSEE proposed to delete it, BSEE proposed to redesignate existing paragraph (f) as new paragraph (e). Proposed, redesignated paragraph (e) would continue to address the requirements for maintaining the requisite documents. BSEE did not propose any revisions to the requirements in redesignated paragraph (e).
In the final regulatory text, BSEE changed the language in introductory paragraph (a) to generally refer to the information submitted under § 250.842 as “design documentation.” BSEE made this change throughout § 250.842. This is a clarification and provides consistency in the way the regulations refer to the various diagrams required in this section.
BSEE is maintaining the requirements in the existing table in § 250.842(a)(1) through (5), mostly as proposed. However, BSEE made some revisions to these sections in response to comments. In the final rule, BSEE combined the requirement in proposed paragraph (a)(1)(ii), “piping and specification breaks” with proposed paragraph (a)(1)(vii) and revised that requirement to specify “piping sizes” and to include “the location of piping and specification breaks” with the information required in paragraph (a)(1). Since paragraph (a)(1)(ii) was removed, the rest of the provisions in that paragraph were renumbered.
BSEE also revised paragraph (a)(2) in the final rule. BSEE removed “battery banks” as a specific item to be included on the required electrical one-line diagram, and added “associated battery banks” as part of what must be included with the uninterruptable power supply. In addition, paragraph (a)(3)(ii) in the final rule removed the location of “control rooms, motor control center (MCC) buildings, and any other buildings” as specific items included as part of the plan for the area classification diagram. The final regulatory text requires “any buildings” to be identified, with control rooms and MCC buildings provided as examples of types of buildings.
As was proposed, paragraph (a)(3) will no longer require operators to identify all areas where potential ignition sources are located in the design documents submitted to BSEE. This requirement is addressed under final paragraph (c)(3), which requires operators to perform a hazards analysis in accordance with § 250.1911 and API RP 14J. API RP 14J specifically addresses ignition sources and minimizing the chances of ignition. API RP 14J directs the operator to consider all ignition sources when designing their facility and provides detailed guidance on designing the facility and equipment to prevent the ignition of hydrocarbons. It is not necessary to specify that operators must develop and maintain a separate document identifying ignition sources because this is part of compliance with API RP 14J. In addition, existing paragraph (b)(3) (proposed paragraph (c)(3)) requires operators to have a hazards analysis program in place to assess potential hazards during the operation of the facility. The final rule, as proposed, still requires the operator's classification diagram to show safety-critical information, such as the locations of significant hydrocarbons and Class I flammable sources, but, in light of the requirement in § 250.842(c) and API RP
The final rule revises the regulatory text for paragraph (a)(4) to state that the production safety system application must include a “piping and instrumentation diagram, for new facilities,” removing the word “schematic.” Also, BSEE added the word “flow” to the description of the detailed information the piping and instrumentation diagram must include; to read, “a detailed flow diagram.” These changes are described in more detail in the comment and response discussion that follows this Section Summary.
BSEE finalized new proposed paragraph (b), with some revisions. The drawings required under final paragraph (b) include additional electrical system information, schematics of the fire and gas-detection systems, and revised piping and instrumentation diagrams for existing facilities. BSEE revised final paragraph (b) to make clarifications, based on comments; these changes are similar to the changes made to the table in final paragraph (a). As previously discussed, BSEE revised introductory paragraph (b) to refer to “design documents” instead of “diagrams.” BSEE is revising some of the details in the table in final paragraph (b) from the proposed paragraph (b). BSEE is combining the cable schedule that was referenced in proposed paragraph (b)(1)(ii) into final paragraph (b)(1)(i); as an example of the information that needs to be provided with the cable tray/conduit routing plan. Proposed paragraph (b)(1)(iii) will become paragraph (b)(1)(ii) in the final rule and has been revised to state that the panel board/junction box location plan needs to be included with the additional electrical system information only if it “is not shown on the area classification diagram required in § 250.842(a)(3).” BSEE is also removing the requirement in paragraph (b)(2) for the diagram to include “the method and frequency of calibration” for the fire and gas detection systems. As previously discussed, the operator will still be required to develop and maintain all of the supporting diagrams in final paragraph (b) and provide them to BSEE upon request. BSEE is revising final paragraph (b)(3) was revised to be consistent with the final language in paragraph (a)(4), addressing “revised piping and instrumentation diagrams,” including “a detailed flow diagram.” However, as was proposed, these diagrams will no longer require review, approval, and stamping by an appropriate registered PE. This change will reduce the burden on operators by no longer requiring a PE to certify as many diagrams and drawings. Operators are still required to develop these diagrams and drawings and provide them to BSEE upon request. The operators are also still required to maintain them and to ensure they accurately reflect the current production system.
BSEE is revising final paragraph (c) from proposed paragraph (c). In final paragraph (c)(1), BSEE changed “electrical installations” to “electrical systems.” Final paragraph (c)(2) includes a number of revisions pertaining to the requirements regarding the involvement of the professional engineer. BSEE changed “reviewed, approved, and stamped by an appropriate registered professional engineer” to “sealed by a licensed professional engineer.” Paragraph (c)(2) of the final rule clarifies that only the modifications are required to be sealed by a licensed professional engineer. BSEE made this change in response to comments and recognizes that PEs can only stamp or seal those documents that were developed under their direct supervision; therefore, a PE would not be able to stamp or seal diagrams that were previously developed by someone else. Paragraph (c)(3) is finalized as proposed.
Final paragraph (c) continues to require operators to certify that: (1) All electrical systems were designed according to API RP 14F or API RP 14FZ, as applicable; (2) that a licensed professional engineer seal the design documents for the mechanical and electrical systems that operators are required to submit under paragraph (a) of this section. For modified systems, a licensed professional engineer(s) is required to seal only the modifications. The professional engineer must be licensed in a State or Territory of the United States and have sufficient expertise and experience to perform the duties; and (3) a hazards analysis was performed in accordance with § 250.1911 and API RP 14J (incorporated by reference in § 250.198); and that the operator has a hazards analysis program in place to assess potential hazards during the operation of the facility. The final rule adopts the proposal to revise redesignated paragraph (c)(2) of § 250.842 to state that a licensed professional engineer must seal the design documents for the mechanical and electrical systems that the operator is required to submit under paragraph (a) of this section.
BSEE revised final paragraph (d) from the proposed rule. The final rule will provide operators “90 days after placing new or modified production safety systems in service” to submit the as-built diagrams required in this section to the District Manager. The existing regulations and the proposed regulatory text provide 60 days for submitting these diagrams. BSEE also clarified that this time period applies “after placing new or modified production safety systems in service” instead of 60 days after “production commences,” as in the current regulations and proposed rule.
Under the existing paragraphs (d) and (e), operators are required to certify that the as-built diagrams are on file and stamped by a PE and to submit the as-built diagrams for the new or modified production safety systems to BSEE. The proposed rule would have modified paragraph (d) to continue to require that operators submit PE-stamped as-built diagrams, while removing the requirement of a separate certification. Based on comments, BSEE is revising the final rule from the proposed in several respects. First, paragraph (d) in the final rule changes the timing of the submittal of the as-built diagrams from 60 to 90 days. Second, BSEE is revising the final paragraph (d) from the proposed to require that the operator must submit a letter to the District Manager certifying that the as-built diagrams were reviewed for compliance with applicable regulations and accurately represent the new or modified system as installed. BSEE intends that this requirement for a certification from the operator will serve the same function as the existing and proposed rule's requirement to have the as-built diagrams PE-stamped. Moreover, it will preserve the intent of the current rule to make the operator responsible for submitting reliable, accurate as-built diagrams. Third, and related, the final rule removes the requirement to have as-built diagrams PE-stamped. This is one of a number of provisions in this final rule that recognize the limitations of a PE's ability to stamp or seal documents. The existing regulations required stamping of the “as-built” diagrams. As-built diagrams show the final system that actually was constructed. Per PE licensing requirements, the PE would need to be present during the entire building/construction process to stamp those documents. Since the PE is not present for all the work that goes into building and installing production
As proposed, BSEE is redesignating the existing paragraph (f) as paragraph (e), since the requirements from existing paragraph (e) were moved to new paragraph (d). Although BSEE did not propose any changes to the substance of existing paragraph (f), BSEE revised the text in final paragraph (e), based on comments, to clarify requirements related to maintaining the documents required under § 250.842(a) and (b) and how to make those documents available to BSEE. In the final rule, BSEE revised final paragraph (e) to specifically reference the “approved and supporting design documents” required under” § 250.842(a) and (b), instead of referencing “information concerning the approved designs and installation features.” This is a clarification and ensures the operator maintains the appropriate required documents, including copies of the documents submitted to BSEE under paragraph (a) and the additional documents the operator is required to develop and make available to BSEE upon request in paragraph (b). The requirement for the operator to maintain these documents at the “offshore field office nearest the OCS facility or at other locations conveniently available to the District Manager” did not change. This allows the operator to determine the appropriate location to store these documents. In the final rule, BSEE is removing the provision specifically requiring operators to maintain the as-built piping and instrumentation diagrams at a secure onshore location and the requirement to have those documents readily available offshore. Piping and instrumentation diagrams are now included within the storage requirements of the revised first sentence of the paragraph, as they are required in paragraphs (a) and (b) of this section. The provisions requiring that these documents must be made available to BSEE upon request and must be retained for the life of the facility did not change. The provision that all “approvals” are subject to field verifications (
Additional details on these changes are discussed in the following comments and responses.
BSEE agrees with the commenter's other suggested revision to consistently use a single term to refer to the documents that are required under this section. BSEE replaced the words “information” and “diagram” with “design documents” in paragraphs (a) and (b) of the final rule. This consistent use of the more inclusive term adds clarity and reduces potential confusion.
OCS Order number 8, Platforms, Structures, and Associated Equipment (effective October 1, 1976), included requirements for electrical system information, including certification by the operator “that the mechanical and electrical systems of the facility will be designed and installed under the supervision of appropriate registered professional engineers.” (OCS Order number 8, section 3. paragraph B(2)).
Out of date electrical drawings pose a major safety risk. The primary substantive change made in the 2016 rulemaking was the addition of the requirement for submission of a PE stamped diagram. Since 2016, BSEE has granted some departures to allow operators additional time to comply. BSEE did not propose to change the current requirements with respect to whether or not existing facilities need to submit or maintain electrical design documents, and therefore BSEE believes the commenter's recommendation is beyond the scope of this rulemaking. Moreover, operators have had enough time to come into compliance with this requirement.
Another commenter also requested that BSEE revise the required time period in which an operator must submit “as-built” diagrams from 60 days to 90 days to allow operators time to perform a thorough verification of the diagrams.
BSEE understands the importance of the
All items required by paragraph (a) of this section must be submitted to BSEE. The diagrams required in paragraph (b) of this section are not required to be submitted to BSEE, however, they must be available to BSEE upon request. The operator will still be required to develop and maintain these diagrams to accurately document any changes made to the production systems.
Regarding the commenter's concern that BSEE is eliminating the requirement for a PE to review and stamp drawings on existing facilities; per PE licensing requirements, a licensed PE cannot stamp design drawings that were not developed under their direct supervision. If the documents for an existing facility were not sealed by a licensed PE or are no longer available, BSEE cannot require a PE to certify that the existing facility was built according to the applicable requirements without the PE violating the terms of the PE license. A PE can seal documents related to modifications of an existing facility, but only for those modifications that were developed under that PE's direct supervision.
As for the commenter's assertion that the proposal lacked any specification for training or qualification requirements for those who would prepare the documents listed in paragraph (b), BSEE does not think that such specification is necessary. As previously explained, a PE is still required to direct and certify the design of all the production safety systems. The documents in paragraph (b) include specific details related to the same systems that are described in documents required under paragraph (a). This rulemaking is not changing the basic fact that all of these systems must be designed under the oversight of a PE. Rather, this rulemaking is reducing the number of documents that the PE must stamp and that the operator must submit to BSEE with a PE's stamp.
However, requiring operators to submit documents that are stamped by a licensed PE for existing facilities is often not possible. Per PE licensing requirements, a licensed PE cannot stamp design drawings that were not developed under his or her direct supervision. If a licensed PE did not seal the documents for an existing facility or if they are no longer available, BSEE cannot require a PE to certify that the existing facility was built according to the applicable requirements without the PE violating the terms of the PE license. A PE can seal documents related to modifications of an existing facility, but only for those modifications that were designed under that PE's direct supervision.
The commenter cited a BP Oil Spill Commission report recommendation that agencies adopt “risk assessment and risk management practices.” This commenter further offered third-party audits and certifications as examples of those practices. Those recommendations are part of that report, however, the third-party audit and certification recommendation was made specifically in reference to SEMS. SEMS programs are required by BSEE regulations under 30 CFR part 250, subpart S, and represent performance based approach for all offshore oil and natural gas operations. The use of a PE is not a risk-based approach. The engineer is verifying compliance with various regulations, codes, and standards; this does not necessarily involve a risk assessment or analysis. As discussed previously, BSEE is implementing other risk-based approaches in its oversight of offshore oil and gas operations.
The commenter noted that PEs have specific experience, qualifications, and education that enables them to provide the critical engineering expertise to identify potential safety and environmental risks. The existing rules were implemented to ensure that PEs utilize their engineering skills to achieve compliance and incorporate the necessary safety measures that will mitigate the likelihood of future disasters like the
This commenter strongly urged BSEE to retain all of the requirements for PEs in its revised rulemaking.
The commenter raised concerns regarding the proposed changes to requirements for PE stamping of design documents. As noted in a previous response, BSEE is moving the information that is required by the current regulations for P&IDs to the SFD under this rulemaking, and the SFD will still require the PE seal. BSEE did remove requirements for a PE to stamp or seal certain design documents when modifying existing facilities. Some of those requirements would require a PE to seal work that was not performed under that engineer's direct supervision, which would violate the terms of the professional engineer's license.
BSEE will no longer require that certain documents for new facilities or modifications must be stamped or sealed by a professional engineer. The drawings that will no longer require the PE seal are not critical to personnel safety or the environment, but are supporting documents, providing additional information related to the safety critical design documents that will continue to be required to carry a PE seal.
As proposed, the final rule removes from this section references to compliance dates that have now passed—
As initially proposed, BSEE is changing the references in § 250.852(e)(1) and (4) from “API Spec. 17J” to “ANSI/API Spec. 17J,” which is the proper title of the standard as incorporated in the existing regulation. BSEE did not receive any comments on this section of the proposed rule.
As proposed, this section will be revised in the final rule to add a new paragraph (d) that requires that operators equip all level sensors to permit testing through an external bridle on all new vessel installations, where possible, depending on the type of vessel for which the level sensor is used. This change was originally proposed in the 2013 Notice of Proposed Rulemaking that led to the 2016 PSSR. However, it was not included in the final rule, based on concerns raised in public comments. The preamble of the 2016 final rule stated that BSEE removed proposed paragraph (d) from the final rule because BSEE can address level sensors adequately using existing regulatory processes, such as DWOPs and we do not need to specify uses and conditions of such sensors in the regulations.
Since the 2016 PSSR, BSEE has reconsidered this provision and determined that including this requirement in the regulations is important, because it clearly states the expectation to have an external bridle to permit testing. This ensures that, where possible, operators make the sensor accessible for testing, which is the accepted approach at this time. A comment on the proposed 2016 PSSR rulemaking asserted that certain sensor testing technologies (
As proposed, the final rule is revising paragraph (a) of this section to require District Manager approval of safety systems and safety devices associated with temporary quarters prior to installation. This applies to all temporary quarters to be installed on OCS production facilities. Existing regulations specify that the operator must receive approval for temporary quarters “. . . installed in production processing areas or other classified areas on OCS facilities.” The revisions will require approval of the safety systems and safety devices, instead of approval of the actual temporary quarters, regardless of where the temporary quarters are located. This change recognizes that risk of a hazard occurring related to production is not restricted to the production areas or classified areas. This change ensures that temporary quarters have the proper safety systems and devices installed to protect individuals in the temporary quarters, regardless of where they are located on the facility.
BSEE recognizes the authority of the United States Coast Guard (USCG) as the lead agency for living quarters on the OCS in two Memoranda of Agreement (MOA) between BSEE and USCG related to oil and gas production facilities: MOA OCS-09, Fixed OCS Facilities, dated September 19, 2014 and MOA OCS-04, Floating OCS Facilities, dated January 28, 2016. MOA OCS-09 establishes BSEE as the lead for safety systems, specifically for emergency shutdown systems and gas detection on fixed OCS facilities. MOA OCS-04 establishes BSEE as the lead for emergency shutdown systems and components on floating OCS facilities. The existing requirement that operators equip temporary quarters with all safety devices required by API RP 14C (Appendix C) will not change. This paragraph ensures that operators will install the proper safety devices on or in temporary quarters, including fire and gas detection equipment and emergency shut down stations addressed in API RP 14C.
As proposed, BSEE is also adding a new paragraph (d) to § 250.867 of the final rule that states that operators must receive District Manager approval before installing temporary generators that would require a change to the electrical one-line diagram required under § 250.842(a).
The final rule is revising the requirement in paragraph (a) of this section regarding the use of Class B, Class C, or Class B/C logic. This section currently states that the operator “may apply any or all of the industry standard Class B, Class C, or Class B/C logic to all applicable PSL sensors installed on process equipment, as long as the time delay does not exceed 45 seconds.” As proposed, BSEE is deleting the phrase “any or all of the” from that sentence in the final rule, as it is not needed. We will no longer require the operator to seek approval from BSEE for alternate procedures under § 250.141 to use a PSL sensor with a time delay that is greater than 45 seconds. Instead, the revised section states that if the device may be bypassed for greater than 45 seconds, the operator must monitor the bypassed devices in accordance with § 250.869(a). The alternate procedure approval is not needed, since monitoring bypassed devices is authorized in the current § 250.869(a).
BSEE proposed to revise paragraph (a) to require that atmospheric vessels connected to the process system and that contain a Class I liquid must be reflected on the corresponding drawings, along with the associated pumps. In addition, BSEE proposed to revise § 250.198 by updating the reference to API RP 14C, as used in § 250.872 and elsewhere, from the Seventh Edition to the Eighth Edition. BSEE proposed to revise paragraph (b) in order to (i) emphasize that operators or manufacturers must design LSH sensors on atmospheric vessels to prevent pollution (per § 250.300(b)(3) and (4)); and (ii) limit the existing requirement applicable to LSH sensors on vessels with oil buckets to newly-installed vessels only. BSEE also proposed to eliminate paragraph (c) as unnecessary and redundant with § 250.800. Based on consideration of public comments on this section of the proposed rule, BSEE made some revisions to the proposed text in this final rule to clarify the requirements for LSH sensors on vessels with oil buckets and to provide consistency with other parts of the regulations.
As was proposed, BSEE is revising paragraph (a) of this section to state that the operator must include on the design documents atmospheric vessels connected to the process system that contains a Class I liquid and the associated pumps, as required in § 250.842(a)(1) through (4) and (b)(3).
In the final rule, BSEE is also revising the existing provisions for oil LSH sensors in paragraph (b). The proposed provision stated that operators must design and install LSH sensors to prevent pollution. In the final rule, BSEE removed this provision from paragraph (b) and moved it to final paragraph (c), with revisions. In addition, the final rule, unlike the proposed rule, removes the provision from existing paragraph (b) that specifies that, for newly installed atmospheric vessels with oil buckets, operators must install the LSH sensor to sense the level in the oil bucket. This requirement regarding LSH sensors on oil buckets was overly prescriptive and too narrow, however new paragraph (c) preserves the intent of the existing requirement.
As proposed, BSEE is deleting existing paragraph (c) in the final rule. The existing paragraph added maintenance of flame arrestors and duplicates § 250.880(c)(3)(viii). BSEE is adding a new paragraph (c) to specifically address the design requirements for atmospheric vessels. The new provision in final paragraph (c) requires operators to design, install, and maintain all atmospheric vessels to prevent pollution, as required under § 250.300(b)(3) and (4). BSEE added this language, which was not in the proposed rule, to clarify that the pollution prevention requirements of those paragraphs apply to all atmospheric vessels, including atmospheric vessels that have oil buckets. It reflects existing requirements and does not constitute a substantive change.
With respect to limiting paragraph (b) to new vessels installed at least one year after the effective date, BSEE notes that the basic requirement of paragraph (b) regarding proper working conditions for LSH sensors was added to § 250.872 by the 2016 PSSR; thus, operators have had ample time to comply or to address compliance issues. BSEE also notes that operators with vessels that were designed, but not installed, prior to the effective date of the 2016 PSSR may submit a departure request under § 250.142.
As proposed, the final rule revises the table in paragraph (b) of this section to replace multiple references to API Spec. 6A with ANSI/API Spec. 6A.
BSEE proposed to revise paragraph (g)(2) of this section to replace the references to API Spec. 6A with ANSI/API Spec. 6A. BSEE received no comments on this proposed revision, and the final rule implements the revision as proposed.
The existing regulations require that an operator use a qualified third party to remove and inspect the fire tubes of tube-type heaters every five years. Although BSEE did not propose to change this requirement, based on comments BSEE received, BSEE revised the final rule to allow the use of “qualified third-party.”
As proposed, BSEE is clarifying language in paragraph (a)(1) of the final rule to state that the operator must notify BSEE at least 72 hours before commencing “initial” production on a facility. The existing language states that the operator must notify BSEE “at least 72 hours before commencing production.” It did not specify that this notification was for initial production, leading to possible confusion as to whether the operator must notify BSEE anytime production on a facility has been shut in and the operator is ready to resume production. This was not BSEE's intent. BSEE is also rewording the paragraph and adding a cross-reference to § 250.800(a)(2) for clarity.
As proposed, BSEE is also revising paragraphs (c)(2)(iv) and (c)(4)(iii) of the final rule to replace the incorporation by reference of API RP 14H, which was withdrawn by API, with API STD 6AV2. Similarly, BSEE is revising § 250.880(c) of the final rule to replace the incorporation by reference of API RP 14B with ANSI/API RP 14B.
In the proposed rule, BSEE solicited comments on a number of issues related to 30 CFR part 250 for which BSEE did not propose any specific revisions to the existing regulations but which BSEE might have addressed in this final rule or might address in possible future rulemakings.
With respect to whether the definition of BAST in § 250.107(c), as revised in the 2016 PSSR, properly reflects BSEE's statutory mandate concerning the use of BAST, BSEE received one comment from industry that suggested language for revising § 250.107(c) in a way that would prevent the Director from making a new BAST determination without going through a prior notice and comment rulemaking process. That same concept was addressed and rejected by BSEE in the 2016 final PSS rulemaking, and BSEE does not believe that the current industry comment on that issue provides any basis for revising § 250.107(c) at this time. Another commenter suggested that BSEE should consider modifying the language of § 250.107(c)(2) to encourage the submission of applications to BSEE to make BAST determinations. BSEE will take that suggestion under advisement.
With respect to comments submitted regarding potential problems with implementation of the specific proposed requirements, BSEE has either addressed those concerns in response to the comments on those specific requirements elsewhere in this final rule or has otherwise considered those comments in developing its plans for implementing the final rule.
With respect to potential non-substantive changes to § 250.198, for the purposes of reorganizing and revising that section, one commenter stated that meaningful comments on possible non-substantive changes would not be practical until after BSEE proposes
With respect to the other issues on which BSEE solicited comments (failure analysis conditions under § 250.802; timeframe for initial PSV testing under § 250.880; and recommendations from the 2014 West Delta Block investigation), BSEE received a number of specific comments and is not implementing any changes based on those comments in this final rule. However, BSEE will consider those comments and decide at a later date whether to propose any additional revisions to the regulations.
E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) will review all significant rules. OIRA has reviewed this final rule and determined that it is significant because it raises novel legal or policy issues. After reviewing the requirements of this rule, BSEE has determined that it will not have an annual effect on the economy of $100 million or more nor adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, public health or safety, the environment, or state, local, or tribal governments or communities.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
E.O. 13771 requires Federal agencies to take proactive measures to reduce the costs associated with complying with Federal regulations. BSEE has evaluated this rulemaking based on the requirements of E.O. 13771. Details on the estimated cost savings of this proposed rule are found in the final rule's economic analyses, available in the public docket for this rulemaking. Important aspects of this rule (
This rule primarily revises sections of 30 CFR part 250, subpart H, and updates standards referenced therein. BSEE has reassessed a number of the provisions in the existing regulations and determined that some provisions should be written as performance-based standards rather than prescriptive requirements. Other proposed revisions reduce or eliminate parts of the paperwork burden of the existing regulations, while ensuring continued safety and environmental protection. BSEE has reexamined the economic analysis for the 2016 PSSR and now believes that it may have underestimated some compliance costs. BSEE is therefore revising some of the compliance cost assumptions in the economic analysis for this rulemaking. The underestimation of compliance costs in the 2016 analysis was primarily related to (1) the burden for obtaining PE review and stamping of all drawings on a facility if any production equipment modifications are proposed and (2) duplicative independent third party equipment certifications that will no longer be required under this rule (but are incorporated in the baseline). BSEE underestimated both the cost and number of PE reviews required under proposed § 250.842. The cost of independent third party testing and certifications required under proposed § 250.802(c)(1) was also underestimated by BSEE in 2016.
BSEE expects this final rule to reduce the regulatory burden on industry. Regulatory compliance cost savings are a result of changes in the rule that will reduce burden hours, PE stamping for production safety system components, and independent third party equipment certifications. BSEE estimates this final rule will reduce industry compliance burdens by $13 million annually. Over 10 years, BSEE estimates the reduced compliance burdens and cost savings will be $112 million discounted at 3 percent or $92 million discounted at 7 percent.
The cost savings for revised provisions on PE stamping of production safety system modification documents (§ 250.842) are the single largest cost savings resulting from this rule. The additional PE certifications and stamping will no longer be required for all production safety system documents in an application, but will be required only for the documents for those components being modified. BSEE estimates the net regulatory cost savings for the § 250.842 changes will be $5.7 million in the first year and $40 million over 10 years discounted at 7 percent. The other provision providing substantial regulatory relief is the elimination of the third party reviews and certifications for select SPPE. Compliance with the various required standards (including ANSI/API Spec. Q1, ANSI/API Spec. 14A, ANSI/API RP 14B, ANSI/API Spec. 6A, and API Spec. 6AV1) ensures that each device will function in the conditions for which it was designed. The table below summarizes BSEE's estimate of the 10-year final rule compliance cost savings. Additional information on the compliance costs, savings, and benefits can be found in the final Regulatory Impact Analysis (RIA) posted in the public docket for this final rule.
BSEE has developed this final rule consistently with the requirements of E.O. 12866, E.O. 13563, and E.O. 13771. This rule revises various provisions in the current regulations with performance-based requirements based upon the best reasonably obtainable safety, technical, economic, and other information. BSEE has provided industry with more flexibility to meet the safety or equipment standards rather than specifying the compliance method when practical. Based on a consideration of the qualitative and quantitative safety and environmental factors related to the rule, BSEE's assessment is that its promulgation is consistent with the requirements of the applicable E.O.s and of OCSLA and that this rulemaking will reduce unnecessary burdens on stakeholders while ensuring safety and environmental protection for OCS production operations.
This final rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
• Will not have an annual effect on the economy of $100 million or more. This rule will revise the requirements for oil and gas production safety systems. The changes will not have any negative impact on the economy or any economic sector, productivity, jobs, the environment, or other units of government. The requirements primarily relate to the incorporated industry standards, to SPPE certification, and to PE stamping and will not add time to development and production processes.
• Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
• Will 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. The requirements will apply to all entities operating on the OCS.
The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires agencies to analyze the economic impact of regulations when a significant economic impact on a substantial number of small entities is likely and to consider regulatory alternatives that will achieve the agency's goals while minimizing the burden on small entities. The Regulatory Flexibility Analysis (RFA), which assesses the impact of this rule on small entities, is found in the RIA within the public docket for this rule.
As defined by the Small Business Administration (SBA), a small entity is one that is “independently owned and operated and which is not dominant in its field of operation.” What characterizes a small business varies from industry to industry in order to properly reflect industry size differences. This rule would affect lease operators that are conducting OCS production operations. BSEE's analysis shows this will include about 69 companies with active operations. Of the 69 companies, 21 (30 percent) are large and 48 (70 percent) are small. Entities that will operate under this rule primarily fall under the SBA's North American Industry Classification System (NAICS) codes 211120 (Crude Petroleum Extraction) and 211130 (Natural Gas Extraction). For NAICS classifications 211120 and 211130, SBA defines a small business as one with fewer than 1,251 employees.
BSEE considers that a rule will have an impact on a “substantial number of small entities” when the total number of small entities impacted by the rule is equal to or exceeds 10 percent of the relevant universe of small entities in a given industry. BSEE's analysis shows that there are 48 small companies with active operations on the OCS. All of the operating businesses meeting the SBA classification are potentially impacted; therefore, BSEE expects that the final rule will affect a substantial number of small entities.
This rule is a deregulatory action, and BSEE has estimated the overall associated cost savings. BSEE has estimated the annualized cost savings and allocated those savings to small or large entities based on the number of active or idle OCS production facilities. Using the share of small and large companies' production facilities, we estimate that small companies will realize 87 percent (~$11.4 million) of the annualized cost savings from this rule and large companies 13 percent (~$1.7 million). Additional information can be found in the RFA in the docket for this final rule.
This final rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by Unfunded Mandates Reform Act (2 U.S.C. 1531
This final rule does not effect a taking of private property or otherwise have taking implications under E.O. 12630. A Takings Implications Assessment is not required.
Under the criteria in section 1 of E.O. 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule will not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this rule will not affect that role. A federalism summary impact statement is not required.
The BSEE has the authority to regulate offshore oil and gas production. State governments do not have authority over offshore production on the OCS. None of the changes in this rule will affect areas that are under the
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors, 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. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.
This final rule contains a collection of information that has been submitted to OMB for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Changes to the information collection due to this rulemaking are as follows:
BSEE proposed removing the independent third party certification requirements in § 250.802(c)(1) altogether, however a number commenters were concerned that there would be no way to ensure that operators are using SPPE that is designed for the conditions in which it will operate. To address these concerns, BSEE preserved certain independent third party certifications, and otherwise created a requirement to maintain documentation of how operators ensured the device being used is designed to function in the environment to which it will be exposed.
• Section 250.802(c)(1) is being rewritten and will add 250 burden hours for developing and maintaining the description of process; as well as make available to BSEE upon request. The revisions to this section will also cause a reduction in third party certification non-hour costs burdens by -$460,000.
• § 250.842(c) is being eliminated, which will cause a reduction in hour burden by −192 hours.
Between the proposed rule and this final rule, BSEE ran a query to get a more accurate number of modifications submitted under § 250.842 due to decommissioning activities and found we have been receiving fewer modifications than currently approved.
• Section 250.842 will reduce the hour burden by −2,670.
• During the 2016 rulemaking (the 2016 PSSR), BSEE inadvertently omitted costs for Professional Engineers required to stamp documents in § 250.842. This revision to the collection requests approval of an additional $5,790,215 non-hour costs (PE Costs). We are adding this category of costs in this rulemaking but note that this rulemaking reduces the amount of information a PE must stamp from the 2016 rule.
An agency 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. The public may comment, at any time, on the accuracy of the IC burden in this rule and may submit any comments to DOI/BSEE; ATTN: Regulations and Standards Branch; VAE-ORP; 45600 Woodland Road, Sterling, VA 20166; email
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because we reached a Finding of No Significant Impact. This finding and the accompanying environmental assessment was placed in the file for BSEE's Administrative Record for the rule at the address specified in the
In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C sec. 515, 114 Stat. 2763, 2763A-153-154). BSEE received one comment on the Data Quality Act, also known as the Information Quality Act (IQA). The commenter asserted that the draft EA under NEPA seems to be subject to the IQA and, therefore, should have been made available to the public to aid comment. Contrary to the commenter's assertion, however, BSEE did make the draft EA publicly available for review and public input during the proposed rulemaking by placing that document in the public docket along with the proposed rule.
This final rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required. The final rule is an E.O. 13771 deregulatory action and does not add any new regulatory compliance requirements that would lead to adverse effects on the nation's energy supply, distribution, or use. Rather, the regulatory changes will help to reduce compliance burdens on the oil and gas industry that may hinder the development or use of domestically produced energy resources, while still ensuring safety and environmental protection.
If a court holds any provisions of this rule or their applicability to any person or circumstances invalid, the remainder of the provisions and their applicability to other people or circumstances will not be affected.
Administrative practice and procedure, Continental shelf, Continental Shelf—mineral resources, Continental Shelf—rights-of-way, Environmental impact statements, Environmental protection, Government contracts, Incorporation by reference, Investigations, Oil and gas exploration, Penalties, Pipelines, Reporting and recordkeeping requirements, Sulfur.
For the reasons stated in the preamble, the Bureau of Safety and Environmental Enforcement (BSEE) amends 30 CFR part 250 as follows:
30 U.S.C. 1751, 31 U.S.C. 9701, 33 U.S.C. 1321(j)(1)(C), 43 U.S.C. 1334.
The revisions and additions read as follows:
(g) American Society of Mechanical Engineers (ASME), 22 Law Drive, P.O. Box 2900, Fairfield, NJ 07007-2900;
(1) 2017 ASME Boiler and Pressure Vessel Code (BPVC), Section I, Rules for Construction of Power Boilers, 2017 Edition, July 1, 2017 incorporated by reference at §§ 250.851(a) and 250.1629(b).
(2) 2017 ASME Boiler and Pressure Vessel Code, Section IV, Rules for Construction of Heating Boilers, 2017 Edition, July 1, 2017 incorporated by reference at §§ 250.851(a) and 250.1629(b).
(3) 2017 ASME Boiler and Pressure Vessel Code, Section VIII, Rules for Construction of Pressure Vessels; Division 1, 2017 Edition; July 1, 2017 incorporated by reference at §§ 250.851(a) and 250.1629(b).
(4) 2017 ASME Boiler and Pressure Vessel Code, Section VIII, Rules for Construction of Pressure Vessels; Division 2: Alternative Rules, 2017 Edition, July 1, 2017 incorporated by reference at §§ 250.851(a) and 250.1629(b).
(5) 2017 ASME Boiler and Pressure Vessel Code, Section VIII, Rules for Construction Pressure Vessels; Division 3: Alternative Rules for Construction of High Pressure Vessels, 2017 Edition, July 1, 2017 incorporated by reference at §§ 250.851(a) and 250.1629(b).
(h) * * *
(1) API 510, Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration, Tenth Edition, May 2014; Addendum 1, May 2017; incorporated by reference at §§ 250.851(a) and 250.1629(b);
(52) API RP 2SK, Design and Analysis of Stationkeeping Systems for Floating Structures, Third Edition, October 2005, Addendum, May 2008, Reaffirmed June 2015; incorporated by reference at §§ 250.800(c) and 250.901(a) and (d);
(55) ANSI/API RP 14B, Design, Installation, Operation, Test, and Redress of Subsurface Safety Valve Systems, Sixth Edition, September 2015; incorporated by reference at §§ 250.802(b), 250.803(a), 250.814(d), 250.828(c), and 250.880(c);
(59) API RP 14FZ, Recommended Practice for Design, Installation, and Maintenance of Electrical Systems for Fixed and Floating Offshore Petroleum Facilities for Unclassified and Class I, Zone 0, Zone 1 and Zone 2 Locations, Second Edition, May 2013; incorporated by reference at §§ 250.114(c), 250.842(c), 250.862(e), and 250.1629(b);
(60) API RP 14G, Recommended Practice for Fire Prevention and Control on Fixed Open-type Offshore Production Platforms, Fourth Edition, April 2007: Reaffirmed, January 2013; incorporated by reference at §§ 250.859(a), 250.862(e), 250.880(c), and 250.1629(b);
(61) API STD 6AV2, Installation, Maintenance, and Repair of Surface Safety Valves and Underwater Safety Valves Offshore; First Edition, March 2014; Errata 1, August 2014; incorporated by reference at §§ 250.820, 250.834, 250.836, and 250.880(c);
(65) API RP 500, Recommended Practice for Classification of Locations for Electrical Installations at Petroleum Facilities Classified as Class I, Division 1 and Division 2, Third Edition, December 2012; Errata January 2014; incorporated by reference at §§ 250.114(a), 250.459, 250.842(a), 250.862(a) and (e), 250.872(a), 250.1628(b) and (d), and 250.1629(b);
(68) ANSI/API Spec. Q1, Specification for Quality Management System Requirements for Manufacturing Organizations for the Petroleum and Natural Gas Industry, Ninth Edition, June 2013; Errata, February 2014; Errata 2, March 2014; Addendum 1, June 2016; incorporated by reference at §§ 250.730 and 250.801(b) and (c);
(70) ANSI/API Spec. 6A, Specification for Wellhead and Christmas Tree Equipment, Twentieth Edition, October 2010; Addendum 1, November 2011; Errata 2, November 2011; Addendum 2, November 2012; Addendum 3, March 2013; Errata 3, June 2013; Errata 4, August 2013; Errata 5, November 2013; Errata 6, March 2014; Errata 7, December 2014; Errata 8, February 2016; Addendum 4, June 2016; Errata 9, June 2016; Errata 10, August 2016; incorporated by reference at §§ 250.730, 250.802(a), 250.803(a), 250.833, 250.873(b), 250.874(g), and 250.1002(b);
(71) API Spec. 6AV1, Specification for Verification Test of Wellhead Surface Safety Valves and Underwater Safety Valves for Offshore Service, Second Edition, February 2013; incorporated by reference at §§ 250.802(a), 250.833, 250.873(b), and 250.874(g);
(96) API 570, Piping Inspection Code: In-service Inspection, Rating, Repair, and Alteration of Piping Systems, Fourth Edition, February 2016; Addendum, May 2017; incorporated by reference at § 250.841(b).
(o) American National Standards Institute (ANSI),
(1) ANSI Z88.2-1992, American National Standard for Respiratory Protection, incorporated by reference at § 250.490.
(2) [Reserved]
(a) You must design, install, use, maintain, and test production safety equipment in a manner to ensure the safety and protection of the human, marine, and coastal environments. For production safety systems operated in subfreezing climates, you must use equipment and procedures that account for floating ice, icing, and other extreme environmental conditions that may occur in the area. Before you commence production on a new production facility:
(1) BSEE must approve your production safety system application, as required in § 250.842.
(2) You must request a preproduction inspection by notifying the District Manager at least 72 hours before you plan to commence initial production, as required under § 250.880(a)(1).
(a)
(1) Surface safety valves (SSV) and actuators, including those installed on injection wells capable of natural flow;
(2) Boarding shutdown valves (BSDV) and their actuators. For subsea wells, the BSDV is the surface equivalent of an SSV on a surface well;
(3) Underwater safety valves (USV) and actuators;
(4) Subsurface safety valves (SSSV) and associated safety valve locks and landing nipples; and
(5) Gas lift shutdown valves (GLSDV) and their actuators associated with subsea systems.
(a) All SSVs, BSDVs, USVs, and GLSDVs and their actuators must meet all of the specifications contained in ANSI/API Spec. 6A and API Spec. 6AV1 (both incorporated by reference in § 250.198).
(c) Requirements derived from the documents incorporated in this section for SSVs, BSDVs, SSSVs, USVs, GLSDVs, and their actuators, include, but are not limited to, the following:
(1) You must ensure that each device is designed to function in the conditions to which it may be exposed; including temperature, pressure, flow rates, and environmental conditions.
(i) The device design must be tested by an independent test agency according to the test requirements in the appropriate standard for that device (API Spec. 6AV1 or ANSI/API Spec. 14A), as identified in paragraphs (a) and (b) of this section.
(ii) You must maintain a description of the process you used to ensure the device is designed to function as required in paragraphs (a) and (c)(1) of this section and provide that description to BSEE upon request.
(iii) If you remove any SPPE from service and install the device at a different location, you must have a qualified third party review and certify that each device will function as designed under the conditions to which it may be exposed.
(2) All materials and parts must meet the original equipment manufacturer specifications and acceptance criteria.
(3) The device must pass applicable validation tests and functional tests performed by an API-licensed test agency.
(4) You must have requalification testing performed following manufacture design changes.
(5) You must comply with and document all manufacturing, traceability, quality control, and inspection requirements.
(6) You must follow specified installation, testing, and repair protocols.
(7) You must use only qualified parts, procedures, and personnel to repair or redress equipment.
(d) You must install and use SPPE according to the following table.
(a) You must follow the failure reporting requirements contained in section 10.20.7.4 of ANSI/API Spec. 6A for SSVs, BSDVs, GLSDVs and USVs. You must follow the failure reporting requirements contained in section 7.10 of ANSI/API Spec. 14A and Annex F of ANSI/API RP 14B for SSSVs (all incorporated by reference in § 250.198). Within 30 days after the discovery and identification of the failure, you must provide a written notice of equipment failure to the manufacturer of such equipment and to BSEE through the Chief, Office of Offshore Regulatory Programs, unless BSEE has designated a third party as provided in paragraph (d) of this section. A failure is any condition that prevents the equipment from meeting the functional specification or purpose.
(b) You must ensure that an investigation and a failure analysis are performed within 120 days of the failure to determine the cause of the failure. If the investigation and analyses are performed by an entity other than the manufacturer, you must ensure that the analysis report is submitted to the manufacturer and to BSEE through the Chief, Office of Offshore Regulatory Programs, unless BSEE has designated a third party as provided in paragraph (d) of this section. You must also ensure that the results of the investigation and any corrective action are documented in the analysis report.
(c) If the equipment manufacturer notifies you that it has changed the design of the equipment that failed or if you have changed operating or repair procedures as a result of a failure, then you must, within 30 days of such changes, report the design change or modified procedures in writing to BSEE through the Chief, Office of Offshore Regulatory Programs, unless BSEE has designated a third party as provided in paragraph (d) of this section.
(d) BSEE may designate a third party to receive the data required by paragraphs (a) through (c) of this section
(d) You must design, install, maintain, inspect, repair, and test all SSSVs in accordance with ANSI/API RP 14B (incorporated by reference in § 250.198). For additional SSSV testing requirements, refer to § 250.880.
You must install, maintain, inspect, repair, and test all SSVs in accordance with API STD 6AV2 (incorporated by reference in § 250.198). If any SSV does not operate properly, or if any gas and/or liquid fluid flow is observed during the leakage test as described in § 250.880, then you must shut-in all sources to the SSV and repair or replace the valve before resuming production.
(a) If your facility is impacted or will potentially be impacted by an emergency situation (
(1) Properly install a subsurface safety device on any well that is not yet equipped with a subsurface safety device and that is capable of natural flow, as soon as possible, with due consideration being given to personnel safety.
(c) You must design, install, maintain, inspect, repair, and test all SSSVs in accordance with your Deepwater Operations Plan (DWOP) and ANSI/API RP 14B (incorporated by reference in § 250.198). For additional SSSV testing requirements, refer to § 250.880.
All USVs, including those designated as primary or secondary, and any alternate isolation valve (AIV) that acts as a USV, if applicable, and their actuators, must conform to the requirements specified in §§ 250.801 through 250.803. A production master or wing valve may qualify as a USV under ANSI/API Spec. 6A and API Spec. 6AV1 (both incorporated by reference in § 250.198).
You must install, maintain, inspect, repair, and test any valve designated as the primary USV in accordance with this subpart, your DWOP (as specified in §§ 250.286 through 250.295), and API STD 6AV2 (incorporated by reference in § 250.198). For additional USV testing requirements, refer to § 250.880.
You must install, inspect, maintain, repair, and test all new BSDVs, as well as all BSDVs that you remove from service for remanufacturing or repair, in accordance with API STD 6AV2 (incorporated by reference in § 250.198) for SSVs. If any BSDV does not operate properly or if any gas fluid and/or liquid fluid flow is observed during the leakage test, as described in § 250.880, you must shut-in all sources to the BSDV and immediately repair or replace the valve.
(a) If your facility is impacted or will potentially be impacted by an emergency situation (
(b) When operating a mobile offshore drilling unit (MODU) or other type of workover or intervention vessel in an area with subsea infrastructure, you must:
(1) Suspend production from all wells that could be affected by a dropped object, including upstream wells that flow through the same pipeline; or
(2) Establish direct, real-time communications between the MODU or other type of workover or intervention vessel and the production facility control room and develop a dropped objects plan, as required in § 250.714. If an object is dropped, you must immediately secure the well directly under the MODU or other type of workover or intervention vessel while simultaneously communicating with the platform to shut-in all affected wells. You must also maintain without disruption, and continuously verify, communication between the production facility and the MODU or other type of workover or intervention vessel. If communication is lost between the MODU or other type of workover or intervention vessel and the platform for 20 or more minutes, you must shut-in all wells that could be affected by a dropped object.
(c) * * *
(5)
(c) If you plan to make a modification to any production safety system that also involves a major modification to the platform structure, you must follow the requirements in § 250.900(b)(2). A major modification to a platform structure is defined in § 250.900(b)(2).
(a) Before you install or modify a production safety system, you must submit a production safety system application to the District Manager. The District Manager must approve your production safety system application before you commence production through or otherwise use the new or modified system. The application must include the design documentation prescribed as follows:
(b) You must develop and maintain the following design documents and make them available to BSEE upon request:
(c) In the production safety system application, you must also certify the following:
(1) That all electrical systems were designed according to API RP 14F or API RP 14FZ, as applicable (incorporated by reference in § 250.198);
(2) That the design documents for the mechanical and electrical systems that you are required to submit under paragraph (a) of this section are sealed by a licensed professional engineer. For modified systems, only the modifications are required to be sealed by a licensed professional engineer(s). The professional engineer must be licensed in a State or Territory of the United States and have sufficient expertise and experience to perform the duties; and
(3) That a hazards analysis was performed in accordance with § 250.1911 and API RP 14J (incorporated by reference in § 250.198), and that you have a hazards analysis program in place to assess potential hazards during the operation of the facility.
(d) Within 90 days after placing new or modified production safety systems in service, you must submit to the District Manager the as-built diagrams for the new or modified production safety systems outlined in paragraphs (a)(1), (2), and (3) of this section. You must certify in an accompanying letter that the as-built design documents have been reviewed for compliance with applicable regulations and accurately represent the new or modified system as installed. The drawings must be clearly marked “as-built.”
(e) You must maintain approved and supporting design documents required under paragraphs (a) and (b) of this section at your offshore field office nearest the OCS facility or at other locations conveniently available to the District Manager. These documents must be made available to BSEE upon request and must be retained for the life of the facility. All approved designs are subject to field verifications.
(a) * * *
(e) * * *
(1) Review the manufacturer's Design Methodology Verification Report and the independent verification agent's (IVA) certificate for the design methodology contained in that report to ensure that the manufacturer has complied with the requirements of ANSI/API Spec. 17J (incorporated by reference in § 250.198);
(4) Submit to the District Manager a statement certifying that the pipe is suitable for its intended use and that the manufacturer has complied with the IVA requirements of ANSI/API Spec. 17J (incorporated by reference in § 250.198).
The addition reads as follows:
(d) All level sensors are equipped to permit testing through an external bridle on all new vessel installations where possible, depending on the type of vessel for which the level sensor is used.
(a) You must equip temporary quarters with all safety devices required by API RP 14C, Appendix C (incorporated by reference as specified in § 250.198). The District Manager must approve the safety system/safety devices associated with the temporary quarters prior to installation.
(d) The District Manager must approve temporary generators that would require a change to the electrical one-line diagram in § 250.842(a).
(a) You may apply industry standard Class B, Class C, or Class B/C logic to applicable PSL sensors installed on process equipment. If the device may be bypassed for greater than 45 seconds, you must monitor the bypassed devices in accordance with § 250.869(a). You must document on your field test records any use of a PSL sensor with a time delay greater than 45 seconds. For purposes of this section, PSL sensors are categorized as follows:
(2) Class C safety devices have logic that allows for the PSL sensors to be bypassed until the component comes into full service (
(a) You must equip atmospheric vessels used to process and/or store
(b) You must ensure that all atmospheric vessels are designed and maintained to ensure the proper working conditions for LSH sensors. The LSH sensor bridle must be designed to prevent different density fluids from impacting sensor functionality.
(c) You must ensure that all atmospheric vessels are designed, installed, and maintained to prevent pollution, including the displacement of oil out of an overboard water outlet, as required by § 250.300(b)(3) and (4).
(g) * * *
(2) If a designated USV on a water injection well fails the applicable test under § 250.880(c)(4)(ii), you must notify the appropriate District Manager and request approval to designate another ANSI/API Spec 6A and API Spec. 6AV1 (both incorporated by reference in § 250.198) certified subsea valve as your USV.
No later than September 7, 2018, and at least once every 5 years thereafter, you must have qualified third-party inspect, and then you must repair or replace, as needed, the fire tube for tube-type heaters that are equipped with either automatically controlled natural or forced draft burners installed in either atmospheric or pressure vessels that heat hydrocarbons and/or glycol. If inspection indicates tube-type heater deficiencies, you must complete and document repairs or replacements. You must document the inspection results, retain such documentation for at least 5 years, and make the documentation available to BSEE upon request.
(a)
(1) Notify the District Manager at least 72 hours before you commence initial production on a facility as required in § 250.800(a)(2), in order for BSEE to conduct the preproduction inspection of the integrated safety system.
(c) * * *
(1) * * *
(2) * * *
(4) * * *
(b)(1) Pipeline valves shall meet the minimum design requirements of ANSI/API Spec 6A (as incorporated by reference in § 250.198), ANSI/API Spec 6D (as incorporated by reference in § 250.198), or the equivalent. A valve may not be used under operating conditions that exceed the applicable pressure-temperature ratings contained in those standards.
(2) Pipeline flanges and flange accessories shall meet the minimum design requirements of ANSI/ASME B16.5, ANSI/API Spec 6A, or the equivalent (as incorporated by reference in § 250.198). Each flange assembly must be able to withstand the maximum pressure at which the pipeline is to be operated and to maintain its physical and chemical properties at any temperature to which it is anticipated that it might be subjected in service.
(4) If you are installing pipelines constructed of unbonded flexible pipe, you must design them according to the standards and procedures of ANSI/API Spec. 17J, as incorporated by reference in § 250.198.
(a) * * *
(4) * * *
(i) * * *
(D) A review by a third-party independent verification agent (IVA) according to ANSI/API Spec. 17J (as incorporated by reference in § 250.198), if applicable.
| 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 |