| Page Range | 19157-19426 | |
| FR Document |
| Page and Subject | |
|---|---|
| 83 FR 19425 - National Small Business Week, 2018 | |
| 83 FR 19157 - Certification for Certain Records Related to the Assassination of President John F. Kennedy | |
| 83 FR 19284 - Farm Credit Administration Board; Sunshine Act Meeting | |
| 83 FR 19289 - Statement of Organization, Functions, and Delegations of Authority; Office of the National Coordinator for Health Information Technology | |
| 83 FR 19301 - Sunshine Act Meetings; National Science Board | |
| 83 FR 19176 - Airworthiness Directives; CFM International S.A. Turbofan Engines | |
| 83 FR 19284 - Incentive Auction Task Force and Media Bureau Extend Post Incentive Auction Special Displacement Window Through June 1, 2018 | |
| 83 FR 19288 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 83 FR 19261 - Agency Information Collection Activities; Comment Request; National Household Education Survey 2019 (NHES:2019) | |
| 83 FR 19179 - Special Local Regulation; Atlantic City International Triathlon, Atlantic City, NJ | |
| 83 FR 19188 - Affordable Housing Program Amendments; Correction, Extension of Comment Period, and Further Request for Comment | |
| 83 FR 19284 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request | |
| 83 FR 19285 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request | |
| 83 FR 19195 - Approval and Promulgation of State Plans for Designated Facilities and Pollutants; United States Virgin Islands; Commercial and Industrial Solid Waste Incineration Units | |
| 83 FR 19282 - Ecology Control Industries, Inc. Removal Site, Torrance, CA; Notice of Proposed Settlement Agreement and Order on Consent | |
| 83 FR 19281 - Final 2016 Effluent Guidelines Program Plan | |
| 83 FR 19191 - Air Plan Approval; Alaska; Interstate Transport Requirements for the 2012 PM2.5 | |
| 83 FR 19194 - Air Plan Approval; Indiana; Air Quality Standards Update for the 2015 Ozone Standard | |
| 83 FR 19281 - Re-issuance of a General NPDES Permit (GP) for Small Suction Dredges in Idaho | |
| 83 FR 19180 - Civil Monetary Penalty Inflation Adjustment Rule | |
| 83 FR 19261 - Proposed Collection; Comment Request | |
| 83 FR 19220 - Utility Scale Wind Towers From the People's Republic of China and the Socialist Republic of Vietnam: Final Results of Expedited First Sunset Reviews of Antidumping Duty Orders | |
| 83 FR 19215 - Initiation of Antidumping and Countervailing Duty Administrative Reviews | |
| 83 FR 19222 - Large Residential Washers From the Republic of Korea: Final Results of Expedited First Sunset Review of the Countervailing Duty Order | |
| 83 FR 19223 - Carbon and Certain Alloy Steel Wire Rod From Mexico: Notice of Correction to Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2015-2016 | |
| 83 FR 19214 - Potassium Permanganate From People's Republic of China: Rescission of 2017 Antidumping Duty Administrative Review | |
| 83 FR 19283 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery | |
| 83 FR 19310 - Excepted Service; Consolidated Listing of Schedules A, B, and C Exceptions | |
| 83 FR 19340 - Excepted Service; Consolidated Listing of Schedules A, B, and C Exceptions | |
| 83 FR 19300 - Agency Information Collection Activities; Comment Request; Proposed Revision; Information Collections: Employment Information Form | |
| 83 FR 19403 - Notice of OFAC Sanctions Actions | |
| 83 FR 19298 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection Identification Markings Placed on Firearms | |
| 83 FR 19298 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection; Identification of Imported Explosives Materials | |
| 83 FR 19297 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection; FFL Out of Business Records Request-ATF F 5300.3A | |
| 83 FR 19211 - Notice of Intent To Revise a Currently Approved Information Collection | |
| 83 FR 19179 - Defense Nuclear Agency (DNA) Freedom of Information Act Program | |
| 83 FR 19186 - Elimination of Main Studio Rule; Petition for Partial Reconsideration | |
| 83 FR 19299 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Mental Health Parity and Addiction Equity Act Notices | |
| 83 FR 19395 - Application From the State of California To Participate in the Surface Transportation Project Delivery Program for Certain Railroad Projects | |
| 83 FR 19293 - Notice of Issuance of Final Determination Concerning Gyrocompasses | |
| 83 FR 19296 - Accreditation and Approval of Saybolt LP (St. Rose, LA) as a Commercial Gauger | |
| 83 FR 19292 - Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs Duties | |
| 83 FR 19393 - Determination Pursuant to the Foreign Missions Act | |
| 83 FR 19219 - Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2014-2015 | |
| 83 FR 19214 - Approval of Subzone Status; International Converter, Inc.; Caldwell, Ohio | |
| 83 FR 19405 - Proposed Collections; Comment Requests | |
| 83 FR 19212 - Census Scientific Advisory Committee Charter Renewal | |
| 83 FR 19211 - National Advisory Committee | |
| 83 FR 19304 - Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4 | |
| 83 FR 19386 - Submission for OMB Review; Comment Request | |
| 83 FR 19393 - Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid Construction | |
| 83 FR 19212 - Submission for OMB Review; Comment Request | |
| 83 FR 19213 - Submission for OMB Review; Comment Request | |
| 83 FR 19402 - Notice of Information Collection and Request for Public Comment | |
| 83 FR 19370 - Submission for OMB Review; Comment Request | |
| 83 FR 19176 - Special Conditions: VT DRB Aviation Consultants, Boeing Model 777-200 Airplanes; Installation of an Airbag System in Shoulder Belts | |
| 83 FR 19402 - Agency Information Collection Activities; Comment Requested; Renewal Without Change to the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 Reporting Requirements Under Section 104(e) | |
| 83 FR 19221 - North American Free Trade Agreement (NAFTA), Article 1904 Binational Panel Review: Notice of Request for Panel Review | |
| 83 FR 19371 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt New NYSE Arca Rule 8.900-E and To List and Trade Shares of the Royce Pennsylvania ETF; Royce Premier ETF; and Royce Total Return ETF Under Proposed NYSE Arca Rule 8.900-E | |
| 83 FR 19367 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Introduce the ATR Protection for Orders that are Routed to Away Markets | |
| 83 FR 19369 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Introduce the ATR Protection for Orders That Are Routed to Away Markets | |
| 83 FR 19382 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Section 902.11 of the Exchange's Listed Company Manual Concerning Fees Applicable to Acquisition Companies for Shares Issued Contingent on the Consummation of a Business Combination | |
| 83 FR 19369 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Introduce the ATR Protection for Orders That Are Routed to Away Markets | |
| 83 FR 19384 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Certain Rules of the Rule 7000A Series To Make Conforming and Technical Changes | |
| 83 FR 19387 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To List and Trade Shares of the Cboe Vest S&P 500® Premium Income ETF Under Rule 14.11(c)(4) | |
| 83 FR 19376 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Adopt Transaction Fees In Connection with the Exchange's Trading of UTP Securities on Pillar | |
| 83 FR 19365 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 24.6, Days and Hours of Business | |
| 83 FR 19279 - Combined Notice of Filings #1 | |
| 83 FR 19278 - Transmission Planning Within the California Independent System Operator Corporation; California Public Utilities Commission, Northern California Power Agency, City and County of San Francisco, State Water Contractors, Transmission Agency of Northern California v. Pacific Gas and Electric Company; Southern California Edison Company; Second Supplemental Notice of Technical Conference | |
| 83 FR 19277 - Notice of Draft License Application (DLA) and Draft Preliminary Draft Environmental Assessment (PDEA) and Request for Preliminary Terms and Conditions: Oregon State University | |
| 83 FR 19277 - Loup River Public Power District; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests | |
| 83 FR 19273 - Commission Information Collection Activities (FERC-582); Comment Request; Extension | |
| 83 FR 19276 - Notice of Revocation of Market-Based Rate Authority and Termination of Electric Market-Based Rate Tariff | |
| 83 FR 19273 - Combined Notice of Filings #1 | |
| 83 FR 19275 - Brainerd Public Utilities; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests | |
| 83 FR 19279 - Steel Reef Pipelines US LLC; Notice of Schedule for Environmental Review of the Saskatchewan Pipeline Project | |
| 83 FR 19279 - Combined Notice of Filings | |
| 83 FR 19276 - Combined Notice of Filings | |
| 83 FR 19159 - Federal Mortgage Disclosure Requirements Under the Truth in Lending Act (Regulation Z) | |
| 83 FR 19224 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Cook Inlet Pipeline Cross Inlet Extension Project | |
| 83 FR 19365 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service Agreement | |
| 83 FR 19254 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California | |
| 83 FR 19236 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Shorebird Research and Monitoring in Massachusetts | |
| 83 FR 19243 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Astoria Waterfront Bridge Replacement Project | |
| 83 FR 19260 - NTIA 2018 Spectrum Policy Symposium | |
| 83 FR 19306 - Duke Energy Florida, LLC; Levy Nuclear Plant, Units 1 and 2 | |
| 83 FR 19189 - Safety Zone; Fireworks, Delaware River, Philadelphia, PA | |
| 83 FR 19367 - Redwood Investment Management, LLC and Two Roads Shared Trust | |
| 83 FR 19308 - In the Matter of Qal-Tek Associates, LLC | |
| 83 FR 19400 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel WIND; Invitation for Public Comments | |
| 83 FR 19401 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel WILDCAT TOO; Invitation for Public Comments | |
| 83 FR 19401 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel NEGOSEATOR; Invitation for Public Comments | |
| 83 FR 19397 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel METANI; Invitation for Public Comments | |
| 83 FR 19398 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LUCKY BASTARD; Invitation for Public Comments | |
| 83 FR 19399 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LIMERICK; Invitation for Public Comments | |
| 83 FR 19398 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel DULCINEA; Invitation for Public Comments | |
| 83 FR 19396 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CHAINED UP; Invitation for Public Comments | |
| 83 FR 19399 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BLUE ISLAND DREAMER; Invitation for Public Comments | |
| 83 FR 19288 - Appraisal Subcommittee; Notice of Meeting | |
| 83 FR 19414 - Freedom of Information Act Regulations | |
| 83 FR 19302 - Exelon Generation Company, LLC | |
| 83 FR 19408 - Privacy Act Regulations | |
| 83 FR 19280 - The National Drinking Water Advisory Council: Request for Nominations | |
| 83 FR 19184 - Delegation of Authority to North Carolina and the Western North Carolina Regional Air Quality Agency of Federal Plan for Existing Sewage Sludge Incineration Units | |
| 83 FR 19381 - Proposed Collection; Comment Request | |
| 83 FR 19196 - Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs | |
| 83 FR 19262 - Proposed Revised Rules of Procedure and Opportunity for Public Review and Comment | |
| 83 FR 19213 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance |
National Institute of Food and Agriculture
Census Bureau
Economic Development Administration
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Army Department
Engineers Corps
Bonneville Power Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Coast Guard
U.S. Customs and Border Protection
Alcohol, Tobacco, Firearms, and Explosives Bureau
Wage and Hour Division
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Maritime Administration
Community Development Financial Institutions Fund
Financial Crimes Enforcement Network
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Bureau of Consumer Financial Protection.
Final rule; official interpretation.
The Bureau of Consumer Financial Protection (Bureau) is amending Federal mortgage disclosure requirements under the Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA) that are implemented in Regulation Z. The amendments relate to when a creditor may compare charges paid by or imposed on the consumer to amounts disclosed on a Closing Disclosure, instead of a Loan Estimate, to determine if an estimated closing cost was disclosed in good faith.
The final rule is effective June 1, 2018.
Shaakira Gold-Ramirez, Paralegal Specialist, Pedro De Oliveira, David Friend, and Priscilla Walton-Fein, Senior Counsels, Office of Regulations, Bureau of Consumer Financial Protection, at 202-435-7700 or
The TILA-RESPA Rule
The Bureau understands that these circumstances have led to uncertainty in the market and created implementation challenges that may have consequences for both consumers and creditors. If creditors cannot pass increased costs to consumers in the specific transactions where the costs arise, creditors may spread the costs across all consumers by pricing their loan products with added margins. The Bureau also understands that some creditors may be denying applications, even after providing the Closing Disclosure, in some circumstances where the creditor cannot pass otherwise permissible cost increases directly to affected consumers, which can have negative effects for those consumers. For these reasons, in July 2017, the Bureau proposed to address the issue by specifically providing that creditors may use Closing Disclosures to reflect changes in costs for purposes of determining if an estimated closing cost was disclosed in good faith, regardless of when the Closing Disclosure is provided relative to consummation (2017 Proposal or “the proposal”).
In Dodd-Frank Act sections 1032(f), 1098, and 1100A, Congress directed the Bureau to integrate certain mortgage loan disclosures under TILA and RESPA.
The Bureau has provided resources to support implementation of the TILA-RESPA Rule.
The Bureau issued the 2017 Proposal on July 6, 2017, and it was published in the
The Bureau is issuing this final rule pursuant to its authority under TILA, RESPA, and the Dodd-Frank Act, including the authorities discussed below. In general, the provisions of Regulation Z that this final rule amends were previously adopted by the Bureau in the TILA-RESPA Rule. In doing so, the Bureau relied on one or more of the authorities discussed below, as well as other authority. The Bureau is issuing this final rule in reliance on the same authority and for the same reasons relied on in adopting the relevant provisions of the TILA-RESPA Rule, which are described in detail in the Legal Authority and Section-by-Section Analysis parts of the 2013 TILA-RESPA Final Rule and January 2015 Amendments, respectively.
Section 1032(f) of the Dodd-Frank Act required the Bureau to propose, for public comment, rules and model disclosures combining the disclosures required under TILA and sections 4 and 5 of RESPA into a single, integrated disclosure for mortgage loan transactions covered by those laws, unless the Bureau determined that any proposal issued by the Board of Governors of the Federal Reserve System (Board) and the Department of Housing and Urban Development (HUD) carried out the same purpose.
Section 19(a) of RESPA authorizes the Bureau to prescribe such rules and regulations and to make such interpretations and grant such reasonable exemptions for classes of transactions as may be necessary to achieve the purposes of RESPA.
The Bureau finalizes these amendments pursuant to its authority under Dodd-Frank Act section 1032(a). For the reasons discussed below and in the TILA-RESPA Rule, the Bureau believes that the final rule is consistent with Dodd-Frank Act section 1032(a) because it promotes full, accurate, and effective disclosure of the features of consumer credit transactions secured by real property in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.
The 2013 TILA-RESPA Final Rule combined certain disclosures that consumers receive in connection with applying for and closing on a mortgage loan into two new, integrated forms. The first new form, the Loan Estimate, replaced the RESPA Good Faith Estimate and the early Truth in Lending disclosure. The rule requires creditors to deliver or place in the mail the Loan Estimate no later than three business days after the consumer submits a loan application.
Section 1026.19(e)(1)(i) of the 2013 TILA-RESPA Final Rule requires creditors to provide consumers with good faith estimates of the disclosures required in § 1026.37, which describes the loan terms and closing costs required to be disclosed on the Loan Estimate. Under § 1026.19(e)(3)(i), an estimated closing cost is disclosed in good faith if the charge paid by or imposed on the consumer does not exceed the amount originally disclosed, except as otherwise provided in § 1026.19(e)(3)(ii) through (iv). Section 1026.19(e)(3)(ii) provides that estimates for certain third-party services and recording fees are in good faith if the sum of all such charges paid by or imposed on the consumer does not exceed the sum of all such charges disclosed on the Loan Estimate by more
Section 1026.19(e)(3)(iv) permits creditors, in certain limited circumstances, to use revised estimates of charges, instead of the estimate of charges originally disclosed to the consumer, to compare to the charges actually paid by or imposed on the consumer for purposes of determining whether an estimated closing cost was disclosed in good faith pursuant to § 1026.19(e)(3)(i) and (ii) (
Section 1026.19(e)(4) contains rules for the provision and receipt of revised estimates used to reset tolerances. Section 1026.19(e)(4)(i) provides the general rule that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate to determine good faith (
Regulation Z therefore limits creditors' ability to provide revised Loan Estimates relative to the provision of the Closing Disclosure and to consummation. In issuing the 2013 TILA-RESPA Final Rule, the Bureau explained that it was aware of cases where creditors provided revised RESPA Good Faith Estimates at the real estate closing, along with the HUD-1 settlement statement.
Comment 19(e)(4)(ii)-1 clarifies when creditors may reset tolerances with a Closing Disclosure instead of with a revised Loan Estimate. Specifically, the comment explains that if there are fewer than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) (
Although the Bureau originally proposed commentary in 2012 that would have stated that creditors may reflect the revised disclosures on the Closing Disclosure, without regard to the timing of consummation, the 2013 TILA-RESPA Final Rule contained the four-business day limit.
This situation can arise because of the intersection of various timing rules regarding the provision of revised estimates to reset tolerances. As noted, § 1026.19(e)(4)(ii) prohibits creditors from providing Loan Estimates on or after the date on which the creditor provides the Closing Disclosure. In many cases, this limitation would not create issues for creditors because current comment 19(e)(4)(ii)-1 explains that creditors may reflect revised estimates on a Closing Disclosure to reset tolerances if there are less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. But there is no similar provision that explicitly provides that creditors may use a Closing Disclosure to reflect the revised estimates if there are four or more business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation.
On July 28, 2016, the Bureau proposed clarifications and technical amendments to the TILA-RESPA Rule, along with several proposed substantive changes (2016 Proposal).
However, some commenters to the 2016 Proposal interpreted proposed comment 19(e)(4)(ii)-2 as allowing creditors to use corrected Closing Disclosures to reset tolerances regardless of when consummation is expected to occur, as long as the creditor provides the corrected Closing Disclosure within three business days of receiving information sufficient to establish a reason for revision applies pursuant to § 1029.19(e)(4)(i). Under this interpretation, the four-business day limit would still apply to resetting tolerances with the initial Closing Disclosure, but would not apply to resetting tolerances with a corrected Closing Disclosure. Commenters were not uniform in their interpretation of proposed comment 19(e)(4)(ii)-2. Commenters who interpreted proposed comment 19(e)(4)(ii)-2 as removing the four-business day limit as it applies to corrected Closing Disclosures were generally supportive, citing uncertainty about the proper interpretation of current rules and stating that the timing rules regarding resetting tolerances with a Closing Disclosure are unworkable. Many commenters perceived that proposed comment 19(e)(4)(ii)-2 would resolve these issues because they interpreted it as allowing creditors to use corrected Closing Disclosures to reset tolerances even if there are four or more business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. Some commenters who interpreted the proposed comment in this way supported it, but also cautioned about unintended consequences. For example, some commenters stated that eliminating the four-business day limit for corrected Closing Disclosures might remove a disincentive that currently exists under the rule from providing the initial Closing Disclosure extremely early in the mortgage origination process, which these commenters stated would not be consistent with the Bureau's intent that the Closing Disclosure be a statement of actual costs.
The Bureau did not finalize proposed comment 19(e)(4)(ii)-2 as part of the July 2017 Amendments. Instead, the Bureau issued the 2017 Proposal to amend § 1026.19(e)(4) and associated commentary to expressly remove the four-business day limit for providing Closing Disclosures for purposes of resetting tolerances and determining if an estimated closing cost was disclosed in good faith. The Bureau issued the 2017 Proposal in light of comments received in response to the 2016 Proposal and prior outreach indicating that timing rules regarding resetting tolerances with Closing Disclosures have led to uncertainty in the market and created implementation challenges that could have unintended consequences for both consumers and creditors, as explained above.
Consistent with current comment 19(e)(4)(ii)-1, the proposal would have allowed creditors to reset tolerances by providing a Closing Disclosure (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) within three business days of receiving information sufficient to establish that a reason for revision applies. Unlike current comment 19(e)(4)(ii)-1, however, the proposal would not have restricted the creditor's ability to reset tolerances with a Closing Disclosure to the period of less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation.
In the proposal, the Bureau explained that it believes that, in most cases in which a creditor learns about cost increases that are a permissible reason to reset tolerances, the creditor will not yet have provided a Closing Disclosure to the consumer. The proposal explained that, to the extent there is a cost increase of a type that would allow tolerances to be reset, the Bureau expects that creditors will typically provide a revised Loan Estimate (and not a Closing Disclosure) for the purpose of resetting tolerances and that these revised Loan Estimates will be used in determining good faith under § 1026.19(e)(3)(i) and (ii). However, there are circumstances in which creditors will instead reset tolerances with a Closing Disclosure. For example, the proposal noted that events that can affect closing costs may occur close to the time of consummation, even after the initial Closing Disclosure has been provided to the consumer. The proposal also noted that events may result in consummation being delayed past the time that was expected when the creditor provided the Closing Disclosure to the consumer. Some events can both affect closing costs and lead to a delay in consummation. These events may be outside the control of the creditor and, in some cases, requested by the consumer. The proposal cited as examples weather-related events that delay closing and lead to additional appraisal or inspection costs or illness by a buyer or seller that could delay closing and lead to the imposition of
For these reasons, the Bureau proposed to allow creditors to reset tolerances using a Closing Disclosure without regard to the four-business day limit. Under the proposal, as under the current rule, to reset tolerances with a Closing Disclosure, creditors would have been required to provide the Closing Disclosure to the consumer within three business days of receiving information sufficient to establish that a reason for revision applies. Further, as under the current rule, creditors would have been allowed to reset tolerances only under the limited circumstances described in § 1026.19(e)(3)(iv).
The proposal would have removed the four-business day limit for resetting tolerances with both initial and corrected Closing Disclosures. The proposal cited two reasons for this approach. First, the proposal noted a concern that applying the four-business day limit to initial Closing Disclosures but not corrected Closing Disclosures could incentivize creditors to provide consumers with initial Closing Disclosures very early in the lending process, which in some circumstances might be inconsistent with the description of the Closing Disclosure as a “statement of the final loan terms and closing costs,”
Accordingly, the Bureau proposed to amend § 1026.19(e)(4)(i) to provide that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) or the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) reflecting the revised estimate within three business days of receiving information sufficient to establish that one of the reasons for revision applies.
The Bureau also proposed to amend comment 19(e)(4)(ii)-1 to remove the reference to the four-business day limit, for consistency with the proposed amendments to § 1026.19(e)(4)(i). In addition, the proposal would have amended the comment to provide two additional examples that further clarify how creditors may provide revised estimates on Closing Disclosures in lieu of Loan Estimates for purposes of determining good faith. The Bureau also proposed conforming amendments to the heading of § 1026.19(e)(4)(ii) and to comments 19(e)(1)(ii)-1 and 19(e)(4)(i)-1 in light of these proposed amendments.
Finally, the proposal would have made several changes to § 1026.19(e)(4) and its commentary to reflect amendments to the rule made by the January 2015 Amendments regarding interest rate dependent charges. Section 1026.19(e)(3)(iv)(D), as adopted by the 2013 TILA-RESPA Final Rule, previously required creditors to provide the consumer with a revised disclosure with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms on the date the interest rate is locked. The January 2015 Amendments changed § 1026.19(e)(3)(iv)(D) to provide creditors with more time (three business days) to provide the revised disclosures. This amendment harmonized the timing requirement in § 1026.19(e)(3)(iv)(D) with other timing requirements for providing a revised Loan Estimate adopted in the 2013 TILA-RESPA Final Rule and addressed operational challenges associated with the prior requirement that gave creditors less time to provide revised disclosures regarding interest rate dependent charges. To implement this change, the Bureau revised § 1026.19(e)(3)(iv)(D) to state that, no later than three business days after the date the interest rate is locked, the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) to the consumer with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms. In the January 2015 Amendments, the Bureau also adopted modified versions of proposed comments 19(e)(3)(iv)(D)-1 and 19(e)(4)(i)-2 to reflect that change. To further reflect the changes made by the January 2015 Amendments to § 1026.19(e)(3)(iv)(D), the Bureau proposed to amend § 1026.19(e)(4)(i) and comment 19(e)(4)(i)-1. The Bureau also proposed to remove existing comment 19(e)(4)(i)-2, regarding the relationship to § 1026.19(e)(3)(iv)(D), which the proposal stated may no longer be necessary.
The Bureau solicited comment on several specific issues related to the proposal, including on the extent to which the four-business day limit has caused situations where creditors cannot provide either a revised Loan Estimate or Closing Disclosure to reset tolerances even if a reason for revision under § 1026.19(e)(3)(iv) would otherwise permit the creditor to reset tolerances. The Bureau requested information on the frequency and the cause of such occurrences and on the average costs and the nature of such costs associated with such occurrences.
The Bureau also requested information that would assist in evaluating potential consequences of the proposal. In particular, some commenters in response to the 2016 Proposal expressed concern that removal of the four-business day limit could result in some creditors providing Closing Disclosures very early in the lending process and that doing so could have negative effects on some consumers. The proposal noted the Bureau's understanding that some creditors currently provide the Closing Disclosure to consumers so early in the process that the terms and costs are nearly certain to be revised. Commenters stated in response to the 2016 Proposal that eliminating the four-business day limit for resetting tolerances with a Closing Disclosure could remove a disincentive to providing Closing Disclosures before final terms and costs are reliably available (
The Bureau also requested comment on other potential consequences that might result from removing the four-business day limit that applies to resetting tolerances with a Closing Disclosure. For example, compared to current rules, the proposed changes could allow creditors to pass more costs on to consumers. The Bureau solicited comment on whether the circumstances for resetting tolerances in § 1026.19(e)(3)(iv) provide sufficient protection against potential consumer harm or whether additional limitations are appropriate for resetting tolerances after the issuance of a Closing Disclosure. For example, the Bureau requested comment on whether it would be appropriate to allow creditors to reset tolerances with a corrected Closing Disclosure in circumstances that are more limited than those described in § 1026.19(e)(3)(iv) (for example, only when the increased costs result from a consumer request or unforeseeable event, such as a natural disaster). The Bureau also requested comment on whether the rule should be more restrictive with respect to resetting tolerances with a corrected Closing Disclosure for certain third-party costs (such as appraisal fees) and creditor fees (such as interest rate lock extension fees) and the types of costs and fees that might be subject to any more restrictive rules. The Bureau also requested comment on whether removing the four-business day limit might result in confusion or information overload to the consumer as a result of receiving more corrected Closing Disclosures. The Bureau requested comment on additional consumer protections that might be appropriate to promote the purposes of the disclosures or prevent circumvention or evasion and additional potential consumer harms the Bureau had not identified.
The Bureau received 43 unique comments from industry commenters (including trade associations, creditors, and industry representatives), a consumer advocate group, and others. Most industry commenters supported the proposal to remove the four-business day limit. These commenters generally stated that the four-business day limit arbitrarily leads to situations where creditors must absorb costs that could otherwise be passed to consumers through resetting tolerances, and that those costs are passed to all consumers in the form of an increased cost of credit. Industry commenters also noted legal and compliance risks associated with the uncertainty around current rules, and stated that this uncertainty has had an adverse impact on the cost of credit. These commenters supported the proposal because it would address these issues by expressly permitting creditors to use either initial or corrected Closing Disclosures to reflect changes in costs for purposes of determining if an estimated closing cost was disclosed in good faith, regardless of when the Closing Disclosure is provided relative to consummation. Other industry commenters, while generally supportive of the proposal, expressed concerns about unintended consequences and some suggested additional parameters or guidance around the timing or accuracy rules that apply to Closing Disclosures. These comments are discussed more fully below.
Only one consumer advocate group commented on the proposal. That commenter urged the Bureau not to adopt the proposal, primarily citing concerns about consumer confusion and information overload. That commenter suggested that the proposal would lead to consumers receiving an increased number of disclosures, which the commenter believes would undermine the purpose of the Closing Disclosure and overwhelm consumers. The consumer advocate group commenter also stated that the proposal would remove the disincentive from providing Closing Disclosures to consumers very early, which the commenter believes would undermine the distinction between the Loan Estimate and the Closing Disclosure. Instead of finalizing the proposal, that commenter urged the Bureau to amend the rule to provide that a Closing Disclosure can only be given three business days before consummation, with redisclosure permitted thereafter only under the circumstances in § 1026.19(f)(2)(i) and (ii).
One individual commenter expressed opposition to the proposal and urged the Bureau to increase the four-business day limit to a seven-business day limit, rather than eliminating it altogether, so as to retain a deterrent against early Closing Disclosures. An industry commenter opposed such an approach, stating that simply extending the four-business day limit to a larger number of days would not fully address current issues.
Numerous commenters responded to the Bureau's specific requests for comment on issues related to the four-business day limit and the potential effects of the proposal. These comments are discussed below.
As noted above, the proposal requested information on the extent to which the four-business day limit has created situations where creditors cannot provide either a revised Loan Estimate or a corrected Closing Disclosure to reset tolerances. The proposal requested information on the frequency and the cause of such occurrences and on the average costs and the nature of such costs associated with such occurrences.
Industry commenters generally stated that the four-business day limit has created compliance problems and imposed costs on creditors. One industry trade association commenter noted that a large creditor had reported tolerance cures of $60,000 in one month attributable to issues with the four-business day limit. That same commenter noted that a mid-sized creditor had reported that between 13 and 37 percent of its tolerance cures each month during a five-month period were attributable to the four-business day limit. The commenter also noted that absorbing such costs is more difficult for small creditors. Another commenter estimated costs incurred by creditors for some common events associated with the four-business day limit: $825 per affected loan for lock extension fees and a minimum of $150 per affected loan for property inspections due to weather events.
Other commenters provided specific examples of problems created by the four-business day limit. For example, one industry commenter described a delay in the final construction of a home and a corresponding rate lock extension fee being incurred after the initial Closing Disclosure had been sent to the consumer six days before the originally scheduled consummation date. That
An industry trade association commenter noted that its member banks did not report the frequent need to reset tolerances in close proximity to consummation, but said that its members reported isolated situations of absorbing costs from valid changed circumstances, denying requests for changes to loan terms, or starting the loan process over rather than accommodating the change. Another industry commenter stated that it typically works with the same title companies and other service providers and does not price its loans to absorb costs associated with the four-business day limit. That commenter has not denied applications because of the inability to reset tolerances, but stated that it has heard reports of such occurrences at other creditors from potential customers, including that some consumers have lost home purchase contracts where applications are denied late in the process. Another industry commenter stated that it believes most lenders absorb the additional costs associated with the four-business day limit, rather than denying applications, due to concerns about customer service and the risk of delay.
While not citing specific instances of problems with the four-business day limit, numerous other industry commenters stated that costs will frequently change after a Closing Disclosure has been provided to the consumer for reasons outside of the creditor's control, or due to consumer requests, even if the initial Closing Disclosure is provided close to the anticipated time of consummation. Rate lock extension fees were the fee type most frequently cited as being associated with such cost changes. Several industry commenters also noted that consumers may request changes to interest rates and lender credits or points after the initial Closing Disclosure has been provided to the consumer. Another commenter noted that the four-business day limit is especially problematic in new construction transactions when consumers submit change order requests to their builder that increase the loan amount. Commenters also noted that delays in anticipated closing dates frequently occur. These commenters cited numerous reasons that closings might be delayed, even close to the time of the initially scheduled closing, including home inspection issues that require correction, storm damage, title issues, late appraisals, and consumer requests for closing delays. The consumer advocate group that commented on the proposal did not comment on this aspect of it.
The proposal also requested comment on the extent to which creditors are providing Closing Disclosures to consumers so that they are received substantially before the required three business days prior to consummation with terms and costs that are nearly certain to be revised (and, if so, the number of days before consummation). In addition, the proposal requested comment on the extent to which creditors might change their practices regarding provision of the Closing Disclosure if the proposal is finalized.
Numerous industry commenters responded to the Bureau's requests for comment related to Closing Disclosure timing. Several commenters noted that there are inconsistent approaches to Closing Disclosure timing across the industry, with some issuing the Closing Disclosure at an early point in the process and others waiting until closer to the time of consummation when final amounts are more likely to be known. Some commenters who noted this difference in approach also noted that providing Closing Disclosures very early does not seem consistent with the Bureau's intent that the Closing Disclosure act as a statement of final loan terms and closing costs. One industry commenter stated that it would be possible for a creditor to set up a process that would allow it to issue a Closing Disclosure earlier, while still containing accurate loan terms. That commenter suggested holding creditors responsible for having adequate policies and procedures to ensure that the disclosure is representative of the loan terms and actual costs known at the time of delivery.
Some commenters, including both industry commenters and the consumer advocate group commenter, expressed concern that the proposal could incentivize creditors to provide Closing Disclosures earlier in the process. One industry commenter stated that creditors who do provide Closing Disclosures very early may be at a competitive advantage to those that do not. Another industry commenter stated a concern that some creditors might issue Closing Disclosures very early to appear more efficient than their competitors. Another industry commenter indicated that some creditors issue Closing Disclosures very early to provide more flexibility with scheduling closing, and noted that the four-business day limit provides a disincentive against the practice. As discussed below, some commenters who stated that the proposal could incentivize creditors to provide Closing Disclosures earlier also expressed concern that such a practice could have a detrimental effect on consumer understanding of the transaction.
One industry commenter stated that it currently provides the Closing Disclosure three business days before consummation, but noted that it would likely provide the first Closing Disclosure a week earlier if the proposal is finalized. This commenter asserted that such a practice would give consumers additional time to review the Closing Disclosure and ask questions. Some commenters noted that they provide Closing Disclosures close to the time of consummation and did not express that their practices would change. Other industry commenters generally stated that concerns that removing the four-business day limit would incentivize creditors to provide Closing Disclosures early are unfounded because early provision of the Closing Disclosure would be difficult to accomplish while meeting the requirements to act in good faith and exercise due diligence, and would create additional work for creditors and cause confusion for consumers. One industry trade association commenter noted that some of its member banks had expressed that providing Closing Disclosures early does not provide any advantage, because there is a high likelihood that the disclosure will undergo revisions.
The Bureau requested comment on potential harms to consumers when creditors provide Closing Disclosures so that they are received more than the required three business days prior to consummation with terms and costs that are nearly certain to be revised, including potential confusion or information overload to the consumer as a result of receiving more corrected Closing Disclosures. The Bureau also requested comment on whether it should consider adopting measures to prevent such harms in a future rulemaking.
Some commenters stated that the proposal could result in consumer confusion because it would remove the current disincentive to providing Closing Disclosures well before the required three business days prior to consummation, which they assert would result in earlier, and therefore more frequent, Closing Disclosures. For example, the consumer advocate group commenter expressed concern that the proposal would encourage creditors to provide Closing Disclosures very early in the lending process, which would result in more Closing Disclosures and be confusing for consumers. That commenter explained that creditors are permitted to issue multiple Loan Estimates, including Loan Estimates that do not reset tolerances. The commenter expressed concern that the proposal could increase consumer confusion by encouraging multiple Closing Disclosures, and that consumers will not know which versions of the disclosures to compare. The consumer advocate group commenter also stated that consumers may become desensitized to the need to read disclosures carefully if they receive frequent Closing Disclosures. The commenter stated that increases in costs may eventually exceed what the consumer is willing to pay, which would cause them to shop with other lenders. However, if consumers are desensitized to changes, the commenter argued that consumers will be less likely to withdraw from the transaction. The consumer advocate group commenter further stated that the proposal would encourage creditors to provide Closing Disclosures that are not intended to reset tolerances, which the commenter asserted will be confusing for consumers.
Several industry commenters also stated that the proposal could potentially increase consumer confusion by incentivizing earlier, and therefore more frequent, Closing Disclosures. Several commenters, including an industry trade association commenter, similarly stated that too many disclosure updates could work against consumer understanding, because consumers might ignore the disclosures and would not know which ones to use for comparison purposes.
An industry commenter stated that consumers would be confused when receiving a Closing Disclosure very early and that consumers could be confused by a Closing Disclosure that purports to be a statement of final loan terms and closing costs, but is only an estimate of costs. That commenter noted that not all changes to the loan will require creditors to reset tolerances and that consumers who receive Closing Disclosures very early may not receive corrected Closing Disclosures until consummation if there are no changes that occur that would cause the creditor to reset tolerances (or one of the triggering events in § 1026.19(f)(2)(ii) occurs, which would require a new disclosure and three-day waiting period). The commenter stated that this would be contrary to the purpose of the requirement to receive the Closing Disclosure three business days before consummation.
Other commenters stated that the proposal would not create consumer confusion. Some industry commenters stated that the proposal would not diminish consumer understanding because creditors would remain able to reset tolerances only as permitted under § 1026.19(e)(3)(iv) and that there would not be a large increase in the number of Closing Disclosures. One industry commenter stated that consumers should not experience confusion or information overload, as it would be no different from consumers receiving revised Loan Estimates. That commenter also stated that it expects lenders to communicate with consumers to address any confusion. Another industry commenter similarly suggested that consumers might benefit from earlier Closing Disclosures and the creditor's flexibility to issue corrected Closing Disclosures because it would facilitate a more transparent process. Some industry commenters asserted that consumers could benefit from receiving Closing Disclosures earlier in the process because they would have additional time to review the information that does not appear on the Loan Estimate.
With respect to additional protections to avoid potential consumer harms associated with removing the four-business day limit, several commenters who supported the proposal also suggested that the Bureau address Closing Disclosure timing or accuracy rules, because of concerns about potential effects of the proposed rule or to address uncertainty about current rules. With respect to timing, an industry commenter requested clarification as to whether creditors can reset tolerances using a Closing Disclosure after issuing an initial Loan Estimate but without ever issuing any revised Loan Estimate. To maintain the disincentive against providing Closing Disclosures very early, an individual commenter suggested that the Bureau expand the window of time prior to consummation during which a creditor can reset tolerances with a Closing Disclosure from four business days to seven business days. Another commenter noted that merely expanding that time window by a limited number of days would only partially address the problems discussed in the proposal, and did not favor that approach. The consumer advocate group commenter suggested that the rule should provide that the Closing Disclosure can only be given no more than three business days before consummation. An anonymous commenter advised that, in addition to removing the four-business day limit for resetting tolerances with a Closing Disclosure, the Bureau should also adopt a new prohibition on providing Closing Disclosures unless the creditor reasonably anticipates that the transaction will close within ten business days. An industry commenter stated that the Bureau's supervision process could emphasize scrutiny of potentially unnecessary iterations of corrected Closing Disclosures. The commenter suggested that, as an alternative, the Bureau create a new timing requirement for resetting tolerances with a corrected Closing Disclosure, whereby any and all changes to the Closing Disclosure for resetting tolerances would be made at only one specific point in time during a transaction. Meanwhile, several commenters supported removing the timing restriction on resetting tolerances with a Closing Disclosure and stated that the Bureau should not place new timing limitations on providing Closing Disclosures. One commenter noted that the rule's current accuracy standard is already a deterrent against providing very early Closing Disclosures because it requires that the creditor, acting in good faith, exercise due diligence in obtaining the information.
With respect to Closing Disclosure accuracy, one industry commenter stated that, in addition to removing the time limit for resetting tolerances with a Closing Disclosure, the Bureau should either apply a stricter accuracy standard to the Closing Disclosure or clarify the current accuracy standard to avoid very early Closing Disclosures. That commenter expressed concern that some creditors are providing initial Closing Disclosures to consumers using price quotes automatically generated by software vendors rather than requesting more accurate information from the settlement agent involved in the transaction. Another industry commenter similarly expressed concern about the adequacy of current accuracy standards and advised that the Bureau provide some specific expectation regarding Closing Disclosure timing in order to discern whether a creditor has
The Bureau requested comment on whether the rule should allow creditors to reset tolerances with a Closing Disclosure in circumstances that are more limited than those that apply under the current rule (§ 1026.19(e)(3)(iv)) or whether the rule should be more restrictive with respect to resetting tolerances with a corrected Closing Disclosure for certain third-party costs and creditor fees. Most commenters who addressed this aspect of the proposal did not support applying a more restrictive set of circumstances or fees resetting tolerances with a Closing Disclosure. Specifically, one individual commenter and several industry commenters requested that the rule not restrict resetting tolerances with a Closing Disclosure in circumstances more limited than for a revised Loan Estimate. However, one individual commenter stated that interest rate lock fees should not be allowed for resetting tolerances with either revised Loan Estimates or Closing Disclosures unless the fee is clearly attributable to a consumer delay or exceptional event, such as a weather event. One industry commenter stated that two provisions under the current rule are inapplicable to resetting tolerances with a Closing Disclosure. Specifically, that commenter stated that the provisions that allow creditors to reset tolerances where a Loan Estimate expires (§ 1026.19(e)(3)(iv)(E)) and in a transaction involving a construction loan where closings are delayed (§ 1026.19(e)(3)(iv)(F)) are inapplicable to resetting tolerances with a Closing Disclosure.
For the reasons discussed below, the Bureau is finalizing the amendments to § 1026.19(e)(4)(i) and (ii) as proposed. The Bureau is also finalizing the proposed changes to comment 19(e)(1)(ii)-1, including a minor technical revision for clarity, and to comments 19(e)(4)(i)-1 and -2. The Bureau is republishing comment 19(e)(1)(ii)-2 with no changes. In addition, the Bureau is finalizing the changes to comment 19(e)(4)(ii)-1 substantially as proposed, including minor technical and conforming revisions, and providing an additional example in response to commenter requests for further clarification.
The final rule removes the four-business day limit and permits creditors to reset tolerances with either an initial or corrected Closing Disclosure regardless of when the Closing Disclosure is provided relative to consummation. The Bureau finds that this change will benefit both consumers and creditors and facilitate compliance with the TILA-RESPA Rule and that it is appropriate under the legal authorities described in part IV above.
As noted above, once the creditor provides the initial Closing Disclosure to the consumer, the TILA-RESPA Rule distinguishes between cost increases that can be passed on to consumers and those that cannot be passed on based on when the creditor learns about the cost increase relative to consummation. As noted by numerous commenters, this aspect of the TILA-RESPA Rule imposes on the creditor the cost of unanticipated changes to the loan that could otherwise be passed to the specific consumer incurring the increased fee through resetting tolerances. However, the four-business day limit can also have negative effects on consumers. Costs that cannot be passed to the specific consumers who incur them are generally passed on to all consumers over time through an overall increase in the cost of credit. Further, some creditors may choose to deny applications to avoid absorbing the increased costs, which can have negative effects for the consumer even if the consumer immediately reapplies for credit (
As finalized, § 1026.19(e)(4)(i) provides that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) or the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) reflecting the revised estimate within three business days of receiving information sufficient to establish that one of the reasons for revision applies.
The Bureau considered concerns discussed in the proposal and expressed by some commenters about the potential effects of the proposal on the Closing Disclosure timing. As noted above, the timing restriction on resetting tolerances creates a disincentive to providing consumers with Closing Disclosures very early in the lending process. Once a creditor has provided a Closing Disclosure, it can reset tolerances only if there are less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) (
In particular, the four-business day limit is problematic where a scheduled closing date is delayed and additional costs are incurred after an initial Closing Disclosure has been provided to the consumer. As noted by numerous commenters, this situation can arise even when the initial Closing Disclosure is provided to the consumer very close to the time of the initially-scheduled consummation date, as closing dates can move at the last minute for a variety of reasons. The Bureau believes that the TILA-RESPA Rule should accommodate changes that occur as a result of delayed closings. Retaining the restriction on resetting tolerances with a Closing Disclosure would not accomplish that goal. In addition, while the Bureau agrees that the very early provision of
The Bureau also considered comments that suggested additional protections might be necessary to avoid consumer harm from removing the restriction on resetting tolerances with a Closing Disclosure. However, the Bureau is not adopting any additional substantive changes to the TILA-RESPA Rule's existing Closing Disclosure timing or accuracy provisions at this time. The Bureau concludes that the rule's existing provisions should prevent creditors from sending Closing Disclosures very early in the process before engaging in due diligence.
With respect to the accuracy standard that applies to the Closing Disclosure, the Bureau concludes that substantive changes to the TILA-RESPA Rule's existing provisions are not necessary to prevent creditors from sending Closing Disclosures very early in the process before engaging in due diligence. The Bureau believes the existing Closing Disclosure accuracy standard already accomplishes that objective. Existing § 1026.19(f)(1)(i) and comment 19(f)(1)(i)-1 require creditors to disclose on the Closing Disclosure the actual terms of the credit transaction. Existing comment 19(f)(1)(i)-2 also permits creditors to estimate disclosures on the Closing Disclosure using the best information reasonably available when the actual term is not reasonably available to the creditor at the time the disclosures are made. Comment 19(f)(1)(i)-2 provides that the “reasonably available” standard requires that the creditor, acting in good faith, exercise due diligence in obtaining the information. Further, comment 19(f)(1)(i)-2.i.A provides an example illustrating the “reasonably available” standard for purposes of § 1026.19(f)(1)(i). Specifically, comment 19(f)(1)(i)-2.i.A assumes that a creditor provides the Closing Disclosure for a transaction in which the title insurance company that is providing the title insurance policy is acting as the settlement agent in connection with the transaction, but the creditor does not request the actual cost of the lender's title insurance policy that the consumer is purchasing from the title insurance company and instead discloses an estimate based on information from a different transaction. Comment 19(f)(1)(i)-2.i.A provides that the creditor in the example has not exercised due diligence in obtaining the information about the cost of the lender's title insurance policy required under the “reasonably available” standard in connection with the estimate disclosed for the lender's title insurance policy. Regarding a commenter's request for clarification as to whether creditors can reset tolerances using a Closing Disclosure after issuing an initial Loan Estimate but without ever issuing any revised Loan Estimate, the rule does not prohibit creditors from doing so but creditors must otherwise comply with the rule, including its Closing Disclosure accuracy standard. The Bureau will continue to monitor the market for practices that do not comply with the rule's Closing Disclosure accuracy standard.
With respect to the timing of the Closing Disclosure, the Bureau is not adopting any substantive changes to the TILA-RESPA Rule's existing Closing Disclosure timing provisions, other than removing the four-business day limit as discussed above. For example, the Bureau considered a commenter's suggestion that the Bureau expand the window of time prior to consummation during which a creditor can reset tolerances with a Closing Disclosure (from four business days to seven business days). The commenter's suggested approach would mean that a creditor could reset tolerances with a Closing Disclosure when consummation is reasonably expected to occur no more than ten business days after the creditor learns about the valid justification (
Similarly, the Bureau declines to set a new, specific timing requirement for Closing Disclosures. For example, the Bureau declines to place new limitations on providing Closing Disclosures such that an initial Closing Disclosure could only be given no more than three business days before consummation, as a consumer advocate group commenter advised. Such a new limitation would exacerbate rather than alleviate problems associated with the current rule. The Bureau also declines to follow the suggestion to adopt a new prohibition on providing Closing Disclosures unless the creditor reasonably anticipates that the transaction will close within 10 business days. The Bureau does not believe that there is an appropriate basis at this time for creating such a prohibition, including setting any such cutoff at 10 business days or any other particular number of days.
The Bureau also considered the commenter suggestion that the Bureau create a new timing requirement for resetting tolerances with a corrected Closing Disclosure, whereby any and all changes to the Closing Disclosure for resetting tolerances would be made at only one specific point in time during a transaction. The Bureau declines to adopt such a timing requirement because doing so would be inconsistent with the purpose articulated by the Bureau when it adopted the § 1026.19(e)(4)(i) timing requirements for resetting tolerances. Specifically, current § 1026.19(e)(4)(i) generally provides that, to reset tolerances, the creditor must provide revised disclosures within three business days of receiving information sufficient to establish a valid justification. In the 2013 TILA-RESPA Final Rule, the Bureau stated its view “that intermittent redisclosure of the integrated Loan Estimate is necessary under RESPA because settlement service provider costs typically fluctuate during the mortgage loan origination process” and “intermittent redisclosure is consistent with the purposes of TILA because it promotes the informed use of credit by keeping the consumer apprised of changes in costs.”
The Bureau also declines to adopt changes to the rule that would restrict creditors' ability to reset tolerances with a Closing Disclosure to circumstances that are more limited than those that apply under § 1026.19(e)(3)(iv) or that would be more restrictive with respect to resetting tolerances with a Closing Disclosure for certain third-party costs and creditor fees. As noted above, most commenters who addressed this aspect of the proposal did not support applying a more restrictive set of circumstances or fees when resetting tolerances with a Closing Disclosure. The Bureau believes that the circumstances identified under § 1026.19(e)(3)(iv) are adequate to balance flexibility for creditors to reset tolerances due to unforeseen circumstances while also providing constraints to avoid arbitrary increases in costs to consumers in relation to revised Loan Estimates, and that those circumstances are also adequate with respect to resetting tolerances with a Closing Disclosure.
One individual commenter stated that interest rate lock extension fees should not be allowed for resetting tolerances with either revised Loan Estimates or Closing Disclosures unless the fee is clearly attributable to a consumer delay or exceptional event, such as a weather event. The Bureau does not believe that different treatment of interest rate lock extension fees with respect to resetting tolerances is warranted. Currently, when the consumer enters into a rate lock agreement for a previously floating interest rate, the creditor is required to provide a revised Loan Estimate that updates the interest-rate related charges, credits, and terms pursuant to § 1026.19(e)(3)(iv)(D).
The Bureau does not believe it is appropriate to treat rate lock extension fees differently than other fees under the rule with respect to resetting tolerances. The Bureau does not believe that rate lock extension fees are fundamentally different from other creditor costs. Extending rate locks for consumers can create opportunity costs to creditors based on secondary market conditions for the delivery of the loans, or direct costs by requiring the renegotiation or acquisition of interest-rate swaps used to offset interest-rate risk. Further, the Bureau is concerned that treating rate lock extension fees differently in this regard would make it less likely that creditors would offer rate lock extensions, which could have unintended effects that could distort interest rate pricing and the mortgage market generally. The Bureau will monitor industry practices related to interest rate lock extensions to determine if additional rulemaking in this area is warranted in the future.
The Bureau also considered the comment that noted that the provisions that allow creditors to reset tolerances when a Loan Estimate expires and in transactions involving construction loans where closings are delayed are inapplicable to resetting tolerances with a Closing Disclosure. Although the Bureau agrees that those provisions are generally inapplicable to resetting tolerances with a Closing Disclosure, the Bureau does not believe it is necessary to amend the rule further to address the issue expressly.
The Bureau is also finalizing changes to the commentary to § 1026.19(e)(4). Consistent with the revisions to § 1026.19(e)(4)(i), the Bureau is finalizing the proposed changes to comment 19(e)(4)(ii)-1, which removes the reference to the four-business day limit, including a minor technical revision for clarity. As amended, comment 19(e)(4)(ii)-1 expressly states that, if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), § 1026.19(e)(4)(i) permits the creditor to provide the revised estimate in the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)). In addition, and as explained below, the Bureau is: Making conforming revisions to existing comments 19(e)(4)(ii)-1.i and .ii; adopting proposed comment 19(e)(4)(ii)-1.iii with conforming and clarifying revisions; and adopting proposed comment 19(e)(4)(ii)-1.iv with conforming revisions and renumbering it as comment 19(e)(4)(ii)-1.v. The conforming revisions to final comments 19(e)(4)(ii)-1.i, .ii, .iii, and .v reflect the illustrative June dates used elsewhere in existing comments 19(e)(1)(iii)-2, 19(e)(1)(v)-2, 19(f)(1)(i)-1, and 19(f)(2)(ii)-1. Final comment 19(e)(4)(ii)-1.iii also includes a clarifying reference to existing § 1026.19(f)(2)(i) and its requirement that the creditor provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The Bureau is also adding new comment 19(e)(4)(ii)-1.iv to provide an additional illustrative example in response to commenters' requests for additional clarification.
Specifically, some industry commenters requested that the Bureau provide examples that illustrate the use of mail and electronic delivery of disclosures. One industry commenter requested that the Bureau provide an example of a situation where creditors may use a Closing Disclosure to reset tolerances when the consumer requests a rate lock extension. Several industry commenters recommended that the Bureau provide an example in which a Closing Disclosure is provided to the consumer and then a reason for revision under § 1026.19(e)(3)(iv) occurs more than four business days before consummation—and thus highlight the requirement in § 1026.19(e)(4)(i) that the creditor provide revised disclosures within three business days of receiving
The new example in final comment 19(e)(4)(ii)-1.iv addresses these requests for clarification. Specifically, the new example in final comment 19(e)(4)(ii)-1.iv assumes consummation is originally scheduled for Wednesday, June 10. The example provides that the creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5. On Monday, June 8, the consumer reschedules consummation for Wednesday, June 17. Also on Monday, June 8, the consumer requests a rate lock extension that would result in a revised disclosure pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). The example clarifies that the creditor complies with the requirements of § 1026.19(e)(4) by delivering or placing in the mail the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 11. The example references existing § 1026.19(f)(2)(i) and its requirement that the creditor provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The example clarifies that the creditor complies with § 1026.19(f)(2)(i) by hand delivering the disclosures on Thursday, June 11. The example further clarifies that, alternatively, the creditor complies with § 1026.19(f)(2)(i) by providing the disclosures to the consumer by mail, including by electronic mail, on Thursday, June 11, because the consumer is considered to have received the corrected disclosures on Monday, June 15 (unless the creditor relies on evidence that the consumer received the corrected disclosures earlier). The example refers to § 1026.19(f)(1)(iii) and comments 19(f)(1)(iii)-1 and -2 regarding receipt of disclosures that are not provided to the consumer in person. The example also refers to § 1026.38(t)(3) and comment 19(f)(1)(iii)-2 regarding providing disclosures in electronic form.
An industry commenter requested clarification regarding the § 1026.19(e)(4)(i) timing requirement where a reason for revision under § 1026.19(e)(3)(iv) occurs within three business days of consummation. Another industry commenter requested clarification that providing a Closing Disclosure to reset tolerances under § 1026.19(e)(4) does not necessarily require a new waiting period pursuant to § 1026.19(f)(2)(ii). The example in final comment 19(e)(4)(ii)-1.iii addresses these requests for clarification. Specifically, the example in final comment 19(e)(4)(ii)-1.iii assumes consummation is scheduled for Thursday, June 4. The example provides that the creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1, and, on Tuesday, June 2, the consumer requests a change to the loan that would result in a revised disclosure pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). The example references existing § 1026.19(f)(2)(i) and its requirement that the creditor provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The example clarifies that the creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 4.
The Bureau is finalizing proposed comment 19(e)(4)(ii)-1.iv with conforming revisions and renumbering it as comment 19(e)(4)(ii)-1.v. As finalized comment 19(e)(4)(ii)-1.v assumes that consummation is originally scheduled for Wednesday, June 10. The comment provides that the creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5, and the APR becomes inaccurate on Monday, June 8, such that the creditor is required to delay consummation and provide corrected disclosures, including any other changed terms, so that the consumer receives them at least three business days before consummation under § 1026.19(f)(2)(ii). Consummation is rescheduled for Friday, June 12. The comment clarifies that the creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(ii) reflecting the revised APR and any other changed terms to the consumer on Tuesday, June 9. The comment references § 1026.19(f)(2)(ii) and associated commentary regarding changes before consummation requiring a new waiting period. The comment also references comment 19(e)(4)(i)-1 for further guidance on when sufficient information has been received to establish an event has occurred.
The Bureau notes that some commenters requested that the final rule incorporate other clarifications and examples. For example, an industry commenter requested clarification as to whether § 1026.19(e)(4)(ii) requires consumers to receive a Closing Disclosure not later than four business days prior to consummation. The commenter also requested that the Bureau permit creditors to reset tolerances after consummation when settlement occurs after consummation. Another industry commenter broadly requested clarification regarding how to reset tolerances with a Closing Disclosure under various scenarios, including when different communication channels are used for providing Loan Estimates and Closing Disclosures, there is a non-borrowing spouse, or there are multiple changed circumstances. The Bureau declines to make specific changes to the rule in response to these comments, because the existing regulation and commentary address these issues as outlined below.
Regarding a commenter's request for clarification as to whether § 1026.19(e)(4)(ii) requires consumers to receive a Closing Disclosure not later than four business days prior to consummation, the Bureau notes that § 1026.19(e)(4)(ii) provides that the consumer must receive any revised version of the disclosures required under § 1026.19(e)(1)(i) (
Regarding a commenter's request to allow creditors to reset tolerances after consummation when settlement occurs after consummation, the Bureau declines to adopt this change because existing § 1026.2(a)(13) provides that, once consummation occurs, the consumer is already contractually obligated on the credit transaction. The Bureau also declines to further amend the rule in response to a commenter's broad request for clarification regarding how to reset tolerances with a Closing Disclosure under various scenarios, including when different communication channels are used for providing Loan Estimates and Closing Disclosures, there is a non-borrowing spouse, or there are multiple changed circumstances. The Bureau believes that the TILA-RESPA Rule already provides sufficient guidance on the topics identified by the commenter. Specifically, guidance for resetting tolerances with a Closing Disclosure can be found in § 1026.19(e)(4) and its associated commentary, as amended by this final rule. Guidance as to providing disclosures via different communication channels can be found in § 1026.19(e)(1)(iv) and § 1026.19(f)(1)(iii) and the associated commentary. Guidance as to providing disclosures for a non-borrowing spouse can be found in § 1026.17(d) and associated commentary. Guidance as to
Finally, the Bureau notes that it is adopting as proposed the changes to § 1026.19(e)(4) and its commentary to reflect amendments to the TILA-RESPA Rule made by the January 2015 Amendments regarding interest rate dependent charges, for the reasons noted above in the discussion of the 2017 Proposal. Specifically, the Bureau is finalizing the amendments to § 1026.19(e)(4)(i) and comment 19(e)(4)(i)-1, and removing existing comment 19(e)(4)(i)-2, regarding the relationship to § 1026.19(e)(3)(iv)(D).
The Bureau proposed an effective date of 30 days after publication in the
The Bureau received several comments addressing the proposed effective date. One industry commenter agreed with the Bureau's proposed effective date of 30 days after publication. That commenter, as well as another industry commenter, noted that the proposed provisions would not impose new burdens on creditors. One commenter noted that a creditor would not be out of compliance if it continued to follow the current rule after the proposed changes take effect. Another industry commenter requested that the final rule become effective no sooner than 90 days after publication in the
The amendments in the final rule will become effective 30 days after publication in the
In developing this final rule, the Bureau has considered the potential benefits, costs, and impacts.
This final rule makes a substantive change to the current TILA-RESPA Rule, by allowing creditors to reset tolerances with a Closing Disclosure (both initial and corrected), irrespective of the date of consummation. This new provision is restricted to circumstances where the TILA-RESPA Rule currently allows creditors to reset tolerances, such as changes in costs resulting from changed circumstances; new information regarding eligibility of the borrower; and borrower-requested change (for instance, rate lock extension). The potential benefits and costs of the provisions contained in the final rule are evaluated relative to the baseline where the current provisions of the TILA-RESPA Rule remain in place. Under the TILA-RESPA Rule, there is no specific provision that allows creditors to use a Closing Disclosure to reset tolerances if there are four or more days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. Consequently, a creditor may not be allowed to reset tolerances if it has already provided the Closing Disclosure to the consumer when it learns about the increase in cost. In such cases, some creditors, faced with the prospect of absorbing cost increases, may choose to deny the application.
The proposal solicited data that could inform the analysis of benefits, costs, and impacts of the proposal, but the Bureau did not receive any such data in response. In particular, the Bureau requested information on the extent to which the current rule has caused situations in which creditors cannot reset tolerances despite a valid changed circumstance. While some commenters reported such occurrences, none provided data to quantitatively assess the frequency of such occurrences or the associated costs and benefits. Since operational data at a level of detail to capture the date of the Closing Disclosure and the consummation date, or the application denial date, is not available for purchase or gathered in routine regulatory collections, the Bureau does not have, and is not aware of, data currently available that would allow it to quantify the frequency of instances of creditors being unable to issue Closing Disclosures to reset tolerances. As a result, this discussion of the potential benefits, costs, and impacts on consumers and covered persons, which takes the existing statutory and regulatory framework as the baseline, is largely qualitative.
The Bureau believes the final rule will benefit creditors by providing them with an option of resetting tolerances in situations where they currently do not have that option. The Bureau does not believe there would be any increased
The Bureau believes consumers will generally benefit from this final rule. It is helpful to consider benefits and costs to consumers separately in the following scenarios.
First, there may be cases where an initial Closing Disclosure has been provided to the consumer well in advance of consummation where the creditor subsequently learns about a change in cost that would be a cause to reset tolerances. The creditor may be unable to reset tolerances currently due to the four-business day limit and may choose to absorb extra costs rather than deny the application. In these cases, this final rule will create costs for consumers because now any changes in costs due to unexpected events would in these cases likely be passed on to consumers. However, in some situations, such as cost increases due to a borrower-requested change, these extra costs might be avoidable. In addition, to the extent that creditors are currently pricing in the risk of having to absorb unexpected cost increases, this final rule will remove this extra layer of risk adjustment and create a benefit to consumers in the form of lower cost of credit.
Second, there may be cases where an initial Closing Disclosure already has been provided to the consumer well in advance of consummation and the creditor subsequently learns about a change in cost that would be a cause to reset tolerances. The creditor may be unable to reset tolerances currently due to the four-business day limit and may choose to deny the application for this reason. In such cases, this final rule will benefit borrowers by giving them an option of paying extra costs instead of having their applications denied; the Bureau believes that some borrowers may prefer to pay extra costs rather than have their applications denied.
Third, there are hypothetically situations where a creditor would prefer to provide the initial Closing Disclosure earlier, but is deterred from doing so by the risk of not being able to reset tolerances in case an unexpected change occurs. In such cases, the proposed change may result in more situations where the initial Closing Disclosure is provided well in advance of consummation; this may affect the accuracy of the disclosure if unexpected cost changes occur between the issuance and the consummation. The Bureau believes creditors themselves may generally prefer to provide the initial Closing Disclosure closer to the consummation date because it is a good customer service.
As discussed previously, the Bureau believes this final rule will not create costs for creditors, including those with no more than $10 billion in assets.
The Bureau does not believe this final rule will have a negative effect on access to credit. On the contrary, the Bureau believes it may have a beneficial effect on access to credit. This may occur to the extent that the current restrictions on resetting tolerances using a Closing Disclosure are reflected in credit pricing, and to the extent that removing such restrictions would result in creditors reducing prices accordingly. Furthermore, this final rule will provide an option to consumers in situations where the creditor is unwilling to absorb the cost increase, and would have denied the application in the absence of this final rule.
The Bureau does not believe this final rule will have an adverse impact on consumers in rural areas.
The Regulatory Flexibility Act (the RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small nonprofit organizations. The RFA defines a “small business” as a business that meets the size standard developed by the Small Business Administration pursuant to the Small Business Act.
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.
The Bureau believes this final rule will not create a significant economic impact on a substantial number of small entities. As described above, this final rule would reduce burden in a specific set of circumstances that an individual small entity would not frequently encounter. Therefore, a FRFA is not required.
Accordingly, the undersigned certifies that this final rule would not have a significant economic impact on a substantial number of small entities.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The Bureau has determined that this final rule does not contain any information collection requirements as defined by the PRA.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Advertising, Appraisal, Appraiser, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.
For the reasons set forth above, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:
12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
(e) * * *
(4) * * *
(i)
(ii)
The revisions read as follows:
1.
2.
1.
i. Assume a creditor requires a pest inspection. The unaffiliated pest inspection company informs the creditor on Monday that the subject property contains evidence of termite damage, requiring a further inspection, the cost of which will cause an increase in estimated settlement charges subject to § 1026.19(e)(3)(ii) by more than 10 percent. The creditor must provide revised disclosures by Thursday to comply with § 1026.19(e)(4)(i).
ii. Assume a creditor receives information on Monday that, because of a changed circumstance under § 1026.19(e)(3)(iv)(A), the title fees will increase by an amount totaling six percent of the originally estimated settlement charges subject to § 1026.19(e)(3)(ii). The creditor had
iii. Assume a creditor requires an appraisal. The creditor receives the appraisal report, which indicates that the value of the home is significantly lower than expected. However, the creditor has reason to doubt the validity of the appraisal report. A reason for revision has not been established because the creditor reasonably believes that the appraisal report is incorrect. The creditor then chooses to send a different appraiser for a second opinion, but the second appraiser returns a similar report. At this point, the creditor has received information sufficient to establish that a reason for revision has, in fact, occurred, and must provide corrected disclosures within three business days of receiving the second appraisal report. In this example, in order to comply with §§ 1026.19(e)(3)(iv) and 1026.25, the creditor must maintain records documenting the creditor's doubts regarding the validity of the appraisal to demonstrate that the reason for revision did not occur upon receipt of the first appraisal report.
1.
i. If the creditor is scheduled to meet with the consumer and provide the disclosures required by § 1026.19(f)(1)(i) on Wednesday, June 3, and the APR becomes inaccurate on Tuesday, June 2, the creditor complies with the requirements of § 1026.19(e)(4) by providing the disclosures required under § 1026.19(f)(1)(i) reflecting the revised APR on Wednesday, June 3. However, the creditor does not comply with the requirements of § 1026.19(e)(4) if it provides both a revised version of the disclosures required under § 1026.19(e)(1)(i) reflecting the revised APR on Wednesday, June 3, and also provides the disclosures required under § 1026.19(f)(1)(i) on Wednesday, June 3.
ii. If the creditor is scheduled to email the disclosures required under § 1026.19(f)(1)(i) to the consumer on Wednesday, June 3, and the consumer requests a change to the loan that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) on Tuesday, June 2, the creditor complies with the requirements of § 1026.19(e)(4) by providing the disclosures required under § 1026.19(f)(1)(i) reflecting the consumer-requested changes on Wednesday, June 3. However, the creditor does not comply with the requirements of § 1026.19(e)(4) if it provides disclosures reflecting the consumer-requested changes using both the revised version of the disclosures required under § 1026.19(e)(1)(i) on Wednesday, June 3, and also the disclosures required under § 1026.19(f)(1)(i) on Wednesday, June 3.
iii. Consummation is scheduled for Thursday, June 4. The creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1, and, on Tuesday, June 2, the consumer requests a change to the loan that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). Under § 1026.19(f)(2)(i), the creditor is required to provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 4.
iv. Consummation is originally scheduled for Wednesday, June 10. The creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5. On Monday, June 8, the consumer reschedules consummation for Wednesday, June 17. Also on Monday, June 8, the consumer requests a rate lock extension that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). The creditor complies with the requirements of § 1026.19(e)(4) by delivering or placing in the mail the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 11. Under § 1026.19(f)(2)(i), the creditor is required to provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The creditor complies with § 1026.19(f)(2)(i) by hand delivering the disclosures on Thursday, June 11. Alternatively, the creditor complies with § 1026.19(f)(2)(i) by providing the disclosures to the consumer by mail, including by electronic mail, on Thursday, June 11, because the consumer is considered to have received the corrected disclosures on Monday, June 15 (unless the creditor relies on evidence that the consumer received the corrected disclosures earlier). See § 1026.19(f)(1)(iii) and comments 19(f)(1)(iii)-1 and -2. See also § 1026.38(t)(3) and comment 19(f)(1)(iii)-2 regarding providing the disclosures required by § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) in electronic form.
v. Consummation is originally scheduled for Wednesday, June 10. The creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5, and the APR becomes inaccurate on Monday, June 8, such that the creditor is required to delay consummation and provide corrected disclosures, including any other changed terms, so that the consumer receives them at least three business days before consummation under § 1026.19(f)(2)(ii). Consummation is rescheduled for Friday, June 12. The creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(ii) reflecting the revised APR and any other changed terms to the consumer on Tuesday, June 9. See § 1026.19(f)(2)(ii) and associated
Federal Aviation Administration (FAA), DOT.
Final special conditions; correction.
This document corrects an error that appeared in docket no. FAA-2017-0126, Special Conditions No. 25-654-SC, which was published in the
John Shelden, FAA, Airframe and Cabin Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 South 216th St., Des Moines, Washington 98198; telephone 206-231-3214; facsimile 206-231-3398.
On April 7, 2017, the
In the final special conditions document FR Doc. 2017-06930, published on April 7, 2017 (82 FR 16893), make the following correction:
On
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all CFM International S.A. (CFM) Model CFM56-7B engines. This AD requires initial and repetitive inspections of the concave and convex sides of the fan blade dovetail to detect cracking and replacement of any blades found cracked. This AD was prompted by a recent engine failure due to a fractured fan blade, that resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. We are issuing this AD to address the unsafe condition on these products.
This AD is effective May 14, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 14, 2018.
We must receive comments on this AD by June 18, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email:
You may examine the AD docket on the internet at
Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
A recent event involving an engine failure due to a fractured fan blade resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. One passenger fatality occurred as a result. In response to this event, the FAA issued Emergency
Since the issuance of AD 2018-09-51, the FAA has been working closely with CFM to develop an additional compliance plan to address the risk of fan blade failure for the entire CFM56-7B fleet. This AD addresses the unsafe condition affecting CFM56-7B engines by requiring initial and repetitive inspections of fan blades based on accumulated fan blade cycles. This condition, if not addressed, could result in fan blade failure due to cracking, which could lead to in an engine in-flight shutdown (IFSD), uncontained release of debris, damage to the airplane, and possible airplane decompression. We are issuing this AD to address the unsafe condition on these products.
We reviewed CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, dated April 20, 2018, and Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B Engine Shop Manual (ESM), Revision 57, dated January 15, 2018. CFM SB CFM56-7B S/B 72-1033 describes procedures for performing a USI of the affected fan blades. Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B ESM, describes procedures for performing an eddy current inspection (ECI) of the affected fan blades. 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 also reviewed CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017, and Revision 1, dated June 13, 2017; CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; and General Electric Field Support Technology (FST) procedure 2370, dated December 9, 2016. These SBs and the FST procedure provide information on performing the USI inspection.
The FAA previously issued a Notice of Proposed Rulemaking (see Docket No. FAA-2017-0313 at
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 initial and repetitive USIs or ECIs of certain fan blades and, if they fail the inspection, their replacement with parts eligible for installation.
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 certain fan blades must be inspected, and, if needed, replaced before further flight. Failure to inspect and replace these parts within the required compliance times could lead to failure of the fan blades, engine IFSD, uncontained release of debris, damage to the airplane, and possible airplane decompression. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons 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 3,716 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective May 14, 2018.
None.
This AD applies to CFM International S.A. (CFM) CFM56-7B20, CFM56-7B22, CFM56-7B22/B1, CFM56-7B24, CFM56-7B24/B1, CFM56-7B26, CFM56-7B26/B2, CFM56-7B27, CFM56-7B27A, CFM56-7B26/B1, CFM56-7B27/B1, CFM56-7B27/B3, CFM56-7B20/2, CFM56-7B22/2, CFM56-7B24/2, CFM56-7B26/2, CFM56-7B27/2, CFM56-7B20/3, CFM56-7B22/3, CFM56-7B22/3B1, CFM56-7B24/3, CFM56-7B24/3B1, CFM56-7B26/3, CFM56-7B26/3B1, CFM56-7B26/3B2, CFM56-7B27/3, CFM56-7B27/3B1, CFM56-7B27/3B3, CFM56-7B27A/3, CFM56-7B26/3F, CFM56-7B26/3B2F, CFM56-7B27/3F, CFM56-7B27/3B1F, CFM56-7B20E, CFM56-7B22E, CFM56-7B22E/B1, CFM56-7B24E, CFM56-7B24E/B1, CFM56-7B26E, CFM56-7B26E/B1, CFM56-7B26E/B2, CFM56-7B27AE, CFM56-7B27E, CFM56-7B27E/B1, CFM56-7B27E/B3, CFM56-7B26E/F, CFM56-7B26E/B2F, CFM56-7B27E/F, and CFM56-7B27E/B1F engine models.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by a recent engine failure due to a fan blade fracture that resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. We are issuing this AD to prevent failure of the fan blade. The unsafe condition, if not addressed, could result in failure of the fan blade, the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent.
Comply with this AD within the compliance times specified, unless already done.
(1) Perform an ultrasonic inspection (USI) or eddy current inspection (ECI) of the concave and convex sides of the fan blade dovetail as follows:
(i) Perform an initial inspection on each fan blade before the fan blade accumulates 20,000 cycles since new, or within 113 days from the effective date of this AD, whichever occurs later.
(ii) If cycles since new on a fan blade is unknown, perform an initial inspection within 113 days from the effective date of this AD.
(iii) Thereafter, repeat this inspection no later than 3,000 cycles since the last inspection.
(iv) Use the Accomplishment Instructions, paragraphs 3.A.(3)(a) through (i), of CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, dated April 20, 2018, to perform a USI or use the instructions in subtask 72-21-01-220-091, of task 72-21-01-200-001, from CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018, to perform an ECI.
(2) If any unserviceable indication, as specified in the applicable service information in paragraph (g)(1)(iv) of this AD, is found during the inspections required by paragraph (g) of this AD, replace the fan blade before further flight with a part eligible for installation.
Do not install any replacement fan blade unless it meets one of the following criteria:
(1) The replacement fan blade has fewer than 20,000 cycles since new, or;
(2) The replacement fan blade has been inspected within the last 300 cycles in accordance with paragraph (g) of this AD.
For the purpose of this AD, a “replacement fan blade” is a fan blade that is being installed into an engine from which it was not previously removed. Removing and reinstalling a fan blade for the purpose of relubrication is not subject to the Installation Prohibition of this AD.
(1) You may take credit for the USI required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017; or Revision 1, dated June 13, 2017; or CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; or General Electric Field Support Technology procedure 2370, dated December 9, 2016.
(2) You may take credit for the ECI required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the instructions in subtask 72-21-01-220-091, of task 72-21-01-200-001, from CFM56-7B Engine Shop Manual, earlier than Revision 57, dated January 15, 2018.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) CFM International, S.A. (CFM) Service Bulletin CFM56-7B S/B 72-1033, dated April 20, 2018.
(ii) Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018.
(3) For CFM service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email:
(4) You may view this service information at the FAA, Engine and Propeller Standards Branch, Policy and Innovation Division, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Defense Nuclear Agency, DoD.
Final rule.
This final rule removes DoD's regulation concerning the Defense Threat Reduction Agency (DTRA), formerly the Defense Nuclear Agency (DNA) Freedom of Information Act program. On February 6, 2018, the DoD published a revised FOIA program rule as a result of the FOIA Improvement Act of 2016. When the DoD FOIA program rule was revised, it included DoD component information and removed the requirement for component supplementary rules. The DoD now has one DoD-level rule for the FOIA program at 32 CFR part 286 that contains all the codified information required for the Department. Therefore, this part can be removed from the CFR.
This rule is effective on May 2, 2018.
Pam Andrews at 703-767-6325.
It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's website.
DTRA internal guidance concerning the implementation of the FOIA within DTRA will continue to be published in DTRA Instruction 5400.7 (available at
This rule is one of 14 separate DoD FOIA rules. With the finalization of the DoD-level FOIA rule at 32 CFR part 286, the Department is eliminating the need for this separate FOIA rule and reducing costs to the public as explained in the preamble of the DoD-level FOIA rule published at 83 FR 5196-5197.
This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.
Freedom of information.
Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 291 is removed.
Coast Guard, DHS.
Notice of enforcement of regulation; change of enforcement date.
The Coast Guard will enforce the special local regulation on the waters of the New Jersey Intracoastal Waterway (ICW), near Atlantic City, New Jersey, from 6 a.m. to 8 p.m. on August 11, 2018. This action is necessary to ensure safety of life on the navigable waters of the United States during a triathlon event. The purpose of this notice is to announce a change in the date in which the event is being held.
The regulations in 33 CFR 100.501 will be enforced from 6 a.m. to 8 p.m. on August 11, 2018, for the special local regulation listed as (a.)12 in the Table to § 100.501.
If you have questions about this notice of enforcement, you may call or email Petty Officer Edmund Ofalt, Waterways Management Branch, U.S. Coast Guard Sector Delaware Bay; telephone (215) 271-4814, email
From 6 a.m. to 8 p.m. on August 11, 2018, the Coast Guard will enforce the special local regulation at 33 CFR 100.501, table to § 100.501(a.)12 for the regulated area located in the New Jersey ICW in Atlantic City, NJ. The published enforcement periods for this event include “Aug—2nd or 3rd Sunday.” We are announcing a change of enforcement date for this year's event with this
Coast Guard regulations for recurring marine events and regattas within Captain of the Port Delaware Bay Zone, appear in § 100.501, Coast Guard Sector Delaware Bay, COTP Zone which specifies the location of the regulated area for this regulated area as all waters of the New Jersey ICW bounded by a line connecting the following points: Latitude 39°21′20″ N, longitude 074°27′18″ W, thence northeast to latitude 39°21′27.47″ N, longitude 074°27′10.31″ W, thence northeast to latitude 39°21′33″ N, longitude 074°26′57″ W, thence northwest to latitude 39°21′37″ N, longitude 074°27′03″ W, thence southwest to latitude 39°21′29.88″ N, longitude 074°27′14.31″ W, thence south to latitude 39°21′19″ N, longitude 074°27′22″ W, thence east to latitude 39°21′18.14″ N, longitude 074°27′19.25″ W, thence north to point of origin, near Atlantic City, NJ.
The Captain of the Port, Delaware Bay will be enforcing the Special Local Regulation as specified in § 100.501(c).
This notice of enforcement is issued under authority of 33 CFR 100.501 and 33 U.S.C. 1233. The Coast Guard will provide the maritime community with advanced notice of enforcement of regulation by Broadcast Notice to Mariners (BNM), Local Notice to Mariners and on-scene notice by designated representative.
U.S. Army Corps of Engineers, Department of Defense.
Final rule.
The U.S. Army Corps of Engineers (Corps) is issuing this final rule to adjust its civil monetary penalties under the Clean Water Act (CWA) and the National Fishing Enhancement Act to account for inflation. This action is mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), which requires agencies to adjust the levels of civil monetary penalties with an initial “catch-up” adjustment followed by annual adjustments for inflation. The Inflation Adjustment Act prescribes a formula for adjusting statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law. Using the adjustment criteria provided in the December 15, 2017, Office of Management and Budget Memorandum regarding the “Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015”, the 2018 annual adjustment for inflation will increase the Class I civil penalty under Section 309 of the Clean Water Act to $21,394 per violation, and the maximum civil penalty increases to $53,484. The judicial civil penalty under Section 404(s) of the Clean Water Act increases to $53,484 per day for each violation. Under the National Fishing Enhancement Act, the Class I civil penalty increases to $23,426 per violation.
This final rule is effective on May 2, 2018.
Ms. Stacey M. Jensen at 202-761-5856 or by email at
The Corps is publishing this final rule to adjust its civil monetary penalties for inflation pursuant to the Inflation Adjustment Act. This law requires the Corps to publish annual adjustments for inflation. The purpose of the Inflation Adjustment Act is to maintain the deterrent effect of civil penalties by translating originally enacted statutory civil penalty amounts to today's dollars and rounding statutory civil penalties to the nearest dollar. The Inflation Adjustment Act required agencies to publish annual adjustments beginning no later than January 15 of each calendar year. Accordingly, the Corps is providing the second annual adjustment effective May 2, 2018, in this final rule. The rule will apply prospectively, to penalty assessments beginning on its effective date. Subsequently, the Corps intends to continue to publish annual adjustments as required by the Inflation Adjustment Act, no later than January 15 of each calendar year.
The Inflation Adjustment Act does not require agencies to implement the required adjustments through a notice and comment process unless proposing an adjustment of less than the amount otherwise required, and the Corps is not exercising any discretion it may have to make a lesser adjustment. For the annual adjustments, the Inflation Adjustment Act provides a clear formula for adjustment of the civil penalties, and the Corps has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. The Inflation Adjustment Act further provides that the increased penalty levels apply to penalties assessed after the effective date of the increase. For these reasons, the Corps finds that notice and comment would be impracticable and unnecessary in this situation and contrary to the language of the Inflation Adjustment Act.
Section 4 of the Inflation Adjustment Act directs federal agencies to publish annual penalty inflation adjustments. In accordance with Section 553 of the Administrative Procedures Act (APA), most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the
On August 3, 2011, the Deputy Secretary of Defense delegated to the Secretary of the Army the authority and responsibility to adjust penalties administered by the U.S. Army Corps of Engineers. On August 29, 2011, the Secretary of the Army delegated that authority and responsibility to the Assistant Secretary of the Army for Civil Works.
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, 701 (Inflation Adjustment Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act (DCIA; collectively, “prior inflation adjustment Acts”), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The Inflation Adjustment Act requires agencies to do the following: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment, through a final rule to be published by July 1, 2016; and (2) beginning no later than January 15, 2017, make subsequent annual adjustments for inflation. The Inflation Adjustment Act does not alter an agency's statutory authority, to the extent it exists, to assess penalties below the maximum level. The final rule implementing the initial “catch-up” adjustment mandated by the Inflation Adjustment Act as well as the 2017 annual inflation adjustment mandated by the Act was effective on December 12, 2017. This final rule fulfills the requirement for the 2018 annual inflation adjustment and is effective on May 2, 2018.
The Inflation Adjustment Act amends prior inflation adjustment Acts by substantially revising the method of calculating inflation adjustments. Prior inflation adjustment Acts required adjustments to civil penalties to be rounded significantly. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that agencies often would not increase penalties at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent, which meant that longer periods without an inflation adjustment could cause a penalty to rapidly lose value in real terms. Over time, this formula caused agency civil penalties to lose value relative to total inflation, thereby undermining Congress' original purpose in enacting statutory civil monetary penalties to be a deterrent and to promote compliance with the law. The Inflation Adjustment Act has removed these rounding rules. Penalties now are simply rounded to the nearest dollar. This rounding ensures that penalties will be increased each year to more effectively keep up with inflation.
The Inflation Adjustment Act required a “catch-up” adjustment that reset the inflation calculations by excluding prior inflationary adjustments under prior inflation adjustment Acts, and subsequent, annual adjustments to all civil penalties under the laws implemented by that agency. With this rule, the new statutory maximum penalty levels listed in Table 1 will apply to all statutory civil penalties assessed on or after the effective date of this rule.
Table 1 shows the calculation of the 2018 annual inflation adjustment based on the guidance provided by OMB (see December 15, 2017, Memorandum for the Heads of Executive Departments and Agencies, from Mick Mulvaney, Director, OMB, Subject: Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). The OMB provided to agencies the cost-of-living adjustment multiplier for 2018, based on the CPI-U for the month of October 2017, not seasonally adjusted, which is 1.02041. Agencies are to adjust “the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment.” For 2018, agencies multiply each applicable penalty by the multiplier, 1.02041, and round to the nearest dollar. The multiplier should be applied to the most recent penalty amount,
In summary, under this final rule the minimum Class I civil penalty for violations under CWA Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)A), will increase from $20,966 per violation to $21,394, and the maximum penalty will increase from $52,414 per violation to $53,484. Judicially-imposed civil penalties under CWA Section 404(s)(4), 33 U.S.C. 1344(s)(4), will increase from a maximum of $52,414 per day for each violation to $53,484. Finally, the Class I civil penalty for violations of Section 205(e) of the National Fishing Enhancement Act, 33 U.S.C. 2104(e), will increase from a maximum of $22,957 per violation to $23,426.
This rule will not result in any additional costs to implement the Corps Regulatory Program because the Class I civil penalties and judicial civil penalties have been in effect since 1990 when the Corps first promulgated regulations regarding such penalties (Class I civil penalties were first established by statute in 1987). This rule merely adjusts the value of current statutory civil penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted, as required by the Inflation Adjustment Act. This rule will result in additional costs to members of the regulated public who do not comply with the terms and conditions of issued Department of the Army permits and either receive a final Class I civil administrative penalty order from a District Engineer or are subject to a
In compliance with the principles in the President's Memorandum of June 1, 1998, regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps and the use of “you” refers to the reader. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.
This final rule will not impose any new information collection burden under the provisions of the Paperwork Production Act (44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. For the Corps regulatory program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003). However, there are no new approval or application processes required as a result of this rulemaking that necessitate a new Information Collection Request (ICR). The regulation would not impose reporting or recordkeeping requirements. Therefore, this action is not subject to the Paperwork Reduction Act.
The OMB has not designated this final rule a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has not reviewed this rule. Moreover, this final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the Inflation Adjustment Act and OMB guidance. The Corps, therefore, did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule. To the extent this rule increases civil monetary penalties, it would result in an increase in transfers from persons or entities assessed a civil monetary penalty to the government.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” The phrase “policies that have Federalism implications” is defined in the Executive Order to include regulations that 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 rule does not have Federalism implications. This nondiscretionary action is required by the Inflation Adjustment Act and will have no substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, Executive Order 13132 does not apply to this rule.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.
The Regulatory Flexibility Act applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553, or any other statute. See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule because a notice-and-comment rulemaking process is not required for the reasons stated above.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the Corps to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before the Corps establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, they must have developed under Section 203 of the UMRA a small
We have determined that this final rule does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, this final rule is not subject to the requirements of Section 203 of UMRA. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not involve technical standards. Therefore, we did not consider the use of any voluntary consensus standards.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.
This rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This rule does not have tribal implications. The rule imposes no new substantive obligations on tribal governments but instead merely adjusts the value of current statutory civil monetary penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute and OMB guidance, and the Corps has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Therefore, Executive Order 13175 does not apply to this rule.
The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this rule. This final rule does not constitute a major Federal action significantly affecting the quality of the human environment because it merely increases the value of statutory civil monetary penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute and OMB guidance, and the Corps has no discretion to vary the amount of the adjustment.
Appropriate environmental documentation has been, or will be, prepared for each permit action that is subject to the civil penalty process. Therefore, environmental documentation under the National Environmental Policy Act (NEPA) is not required for this final rule.
The Congressional Review Act, 5 U.S.C. 801
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin. This rule is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities. This rule relates solely to the adjustments to civil penalties to account for inflation.
This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply,
Administrative practice and procedure, Intergovernmental relations, Investigations, Law enforcement, Navigation (water), Water pollution control, Waterways.
For the reasons set forth in the preamble, the Corps amends 33 CFR part 326 as follows:
33 U.S.C. 401
(a)
Environmental Protection Agency (EPA).
Final rule.
The EPA is providing notice of and is codifying its prior approval of requests submitted by the North Carolina Department of Environmental Quality (NCDEQ), through its Division of Air Quality, and the Western North Carolina Regional Air Quality Agency (WNCRAQA) for delegation of authority to implement and enforce the Federal plan for existing affected Sewage Sludge Incineration (SSI) units. The Federal plan establishes emission limits and monitoring, operating, and recordkeeping requirements for SSI units constructed on or before October 14, 2010. NCDEQ and WNCRAQA representatives have signed separate but similar Memoranda of Agreement (MOAs), each of which constitutes the mechanism for the transfer of authority from the EPA to each respective air pollution control agency. The MOAs and the corresponding delegations of authority were effective upon signature by the Regional Administrator on April 2, 2018. The MOAs delineate policies, responsibilities, and procedures by which the Federal plan will be administered and enforced by the NCDEQ and WNCRAQA, respectively, as well as the authorities retained by the EPA.
This rule is effective on June 1, 2018.
The EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2018-0119. The index to the docket for this action is available electronically at
Mark Bloeth, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street SW, Atlanta, Georgia, 30303-8960. Mr. Bloeth can be reached via telephone at (404) 562-9013 and via electronic mail at
Section 129 of the Clean Air Act (the “CAA” or “Act”), titled “Solid Waste Combustion,” requires the EPA to develop and adopt standards for solid waste incineration units pursuant to sections 111(d) and 129 of the Act. On March 21, 2011, the EPA promulgated new source performance standards (NSPS) and emissions guidelines (EG) for SSI units located at wastewater treatment facilities designed to treat domestic sewage sludge.
CAA section 129 also requires each state in which SSI units are operating to submit a plan to implement and enforce the EG with respect to such units. State plan requirements must be “at least as protective” as the EG and become federally enforceable upon approval by
On April 29, 2016, the EPA finalized a Federal plan that implements the EG in states that do not have an approved state plan. 81 FR 26040. EPA implementation and enforcement of the Federal plan is viewed as an interim measure until states assume their role as the preferred implementers of the EG requirements stipulated in the Federal plan. Accordingly, the EPA encourages states to either develop their own plan (the EG model rule or the Federal plan can be used as a template to reduce the effort needed to develop a plan), or to request delegation of the Federal plan, as the NCDEQ and WNCRAQA have done. State plans and requests for delegations of authority that have been approved by EPA are reflected in the Code of Federal Regulations at 40 CFR part 62, subparts B through DDD.
On December 9, 2016, and February 7, 2017, the NCDEQ and WNCRAQA, respectively, requested delegation of authority from EPA to implement and enforce the Federal plan for existing SSI units, codified at 40 CFR part 62 subpart LLL. The scope of the request from the NCDEQ included all affected facilities within the State of North Carolina, except Buncombe County and the City of Asheville. The WNCRAQA submitted a separate delegation request which included all affected facilities within Buncombe County and the City of Asheville. The delegation of authority does not apply to sources located in Indian Country.
The EPA evaluates requests for delegation of the SSI Federal plan pursuant to the provisions of the SSI Federal plan and the EPA's Delegations Manual. Pursuant to the SSI Federal plan, a state may meet its CAA section 111(d)/129 obligations by submitting an acceptable written request for delegation of the Federal plan that includes the following elements: (1) A demonstration of adequate resources and legal authority to administer and enforce the Federal plan; (2) an inventory of affected SSI units, an inventory of emissions from affected SSI units, and provisions for state progress reports (see items under 40 CFR 60.5015(a)(1), (2) and (7) from the SSI EG); (3) certification that the hearing on the state delegation request, similar to the hearing for a state plan submittal, was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission; and (4) a commitment to enter into a MOA with the Regional Administrator that sets forth the terms, conditions, and effective date of the delegation and that serves as the mechanism for the transfer of authority. 40 CFR 62.15865;
Pursuant to the EPA's Delegations Manual, item 7-139,
In this action, EPA is notifying the public of and is codifying its delegation of authority to implement and enforce the Federal plan to the NCDEQ and WNCRAQA. The Code of Federal Regulations is being amended as indicated below.
Section 553(b) of the Administrative Procedure Act (APA) requires publication of notice of proposed rulemaking and specifies what the notice shall include.
The EPA has found good cause for making today's action final without prior proposal and opportunity for comment because this ministerial action merely codifies EPA's delegation of authority to implement and enforce the SSI Federal plan to the NCDEQ and the WNCRAQA. This action does not alter the universe of sources regulated under the Federal plan, nor does it change the regulatory requirements applicable to those sources. In these circumstances, notice and comment procedures are unnecessary.
Under the CAA, the Administrator has the authority to delegate the authority to implement a Federal 111(d)/129 plan that complies with the provisions of the CAA and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); and
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001).
This action does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. As such, it does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Manufacturing, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal.
42 U.S.C. 7401
40 CFR part 62 is amended as follows:
42 U.S.C. 7401
(a)
(b)
(c)
(a)
(b)
(c)
Federal Communications Commission.
Dismissal and denial of petition for partial reconsideration.
This document dismisses and otherwise denies the Petition for Reconsideration filed by De La Hunt Broadcasting Corp. The Commission's rules provide that a petition for reconsideration which relies on facts or arguments not previously presented to the Commission will only be granted if one of three circumstances is present, and the Media Bureau concludes that none of the specified circumstances is present here. Because this is a fact-specific inquiry, and not an issue of general applicability, a waiver request is the proper means for considering this issue, and De La Hunt states that it has already requested such a waiver from the Media Bureau.
May 2, 2018.
Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.
Diana Sokolow,
This is a summary of the Commission's Memorandum Opinion and Order, MB Docket No. 17-106, adopted and released on April 2, 2018. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554. This document will also be available via ECFS at
Federal Housing Finance Agency.
Proposed rule; correction, extension of comment period, and further request for comment.
The Federal Housing Finance Agency (FHFA) is correcting an inadvertent error in the calculation of a proposed regulatory outcome requirement in the proposed rule published in the
The comment period for the proposed rule, published at 83 FR 11344 (March 14, 2018), is extended to June 12, 2018. Written comments must be received on or before this date.
You may submit your comments, identified by Regulatory Information Number (RIN) 2590-AA83, by any one of the following methods:
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•
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Ted Wartell, Manager, Office of Housing and Community Investment, 202-649-3157,
FHFA invites comments on all aspects of the March 2018 proposed rule, including any new or supplemental comments on the corrected calculation of the proposed regulatory outcome requirement, and will take all comments into consideration before issuing a final rule including those filed prior to this notice. Copies of all comments will be posted without change, including any personal information you provide such as your name, address, email address, and telephone number, on the FHFA website at
On March 14, 2018, FHFA published in the
Under proposed § 1291.48(d), as drafted in the proposed rule, any AHP funds awarded to a household participating in a Homeownership Set-Aside Program would not count towards fulfillment of the outcome requirement. Therefore, were a Bank to allocate the maximum amount permitted under the proposed rule to its Homeownership Set-Aside Program(s)—40 percent of its required annual AHP contribution—it would be required to ensure that nearly 92 percent of its remaining annual contribution be awarded to projects that satisfy, in the aggregate, two of the three identified regulatory priorities.
While not all subsidies awarded under a Homeownership Set-Aside Program will meet one of the prioritized housing needs identified under the regulatory priorities in proposed § 1291.48(d), some will, and FHFA believes that this should be reflected in the applicable outcome requirement.
Proposed § 1291.48(d), related rule text, and preamble discussions, therefore, should have included awards to households under a Bank's Homeownership Set-Aside Programs, if any, along with awards under the
Accordingly, in the proposed rule FR Doc. 2018-04745, on page 11386, in the issue of March 14, 2018, in the left column, in paragraph (d) of § 1291.48, the correction should correctly read: “Each year, each Bank shall ensure that at least 55 percent of the Bank's required annual AHP contribution is awarded under the Bank's General Fund and any Bank Targeted Funds
FHFA specifically requests comments on whether the calculation, as corrected, would provide the Banks sufficient flexibility to provide AHP funds to the housing needs in their districts. FHFA further requests comments on whether other changes to the outcome calculation would be appropriate, such as decreasing the percentage of the Bank's annual AHP contribution required to meet the regulatory priorities to less than 55 percent, provided that at least a majority of the Bank's annual AHP contribution is awarded to certain regulatory priorities established by FHFA.
The comment period for the proposed rule was originally set to expire on May 14, 2018. FHFA has received a number of requests from commenters for an extension of the comment period of varying lengths, with commenters citing the complexity and length of the proposed rule, the important issues addressed, and the high level of interest. In light of these requests, and FHFA's additional request for comment on the correction to the proposed outcome requirement calculation, FHFA is extending the comment period by an additional 30 days. This will result in a total comment period on the proposed rule of 90 days, expiring June 12, 2018.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for multiple fireworks events launched in the vicinity of Penn's Landing, Philadelphia, Pennsylvania, for waters of the Delaware River, Philadelphia, PA. Establishment of this safety zone is necessary to enhance safety of life on navigable waters immediately prior to, during, and immediately after these fireworks events. During the enforcement periods, no vessel may enter in or transit this regulated area without approval from 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 May 9, 2018.
You may submit comments identified by docket number USCG-2018-0286 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Petty Officer Edmund Ofalt, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215) 271-4814, email
On March 1, 2018, the Coast Guard was notified of fireworks events planned for May 24, 25, 26, and 27, 2018. Hazards from fireworks displays include accidental discharge, dangerous projectiles and falling hot embers or other debris. The COTP Delaware Bay has determined that a temporary safety zone is necessary to provide safety on the navigable waters of the Delaware River during these fireworks events, and to enhance safety of the public, spectators, and vessels.
The purpose of this rulemaking is to ensure the safety of vessels and navigable waters immediately prior to, during, and immediately after these fireworks events. The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231.
The COTP Delaware Bay proposes to establish a safety zone on the Delaware River adjacent to Penns Landing in Philadelphia, PA, May 24, 2018, through May 27, 2018. The safety zone will be enforced from approximately 8 p.m. to 11 p.m. on nights on which fireworks are being displayed from a barge in the Delaware River. These fireworks displays may be held on May 24th, 25th, 26th, and 27th, or on only some of these dates. Notification of enforcement dates and times will be published in the Coast Guard District 5 Local Notice to Mariners and broadcast via Broadcast Notice to Mariners. The safety zone will include all navigable waters of Delaware River, adjacent to Penns Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline connecting at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence westward to latitude 39°56′29″.1 N, longitude 075°07′56.5″ W, and bounded on the north by the southern edge of the Benjamin Franklin Bridge where it crosses the Delaware River.
Access to this safety zone will be restricted during the specified
The regulatory text we are proposing can be found 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. The proposed safety zone will impact waters affected by this rule on May 24, 25, 26, and 27, 2018 from 8 p.m. to 11 p.m. During this time of day commercial and recreational traffic is normally low. Notifications of enforcement dates and times will be made to the maritime community via Broadcast Notice to Mariners and Local Notice to Mariners so that plans may be adjusted accordingly. Notifications will be updated as necessary, to keep the maritime community informed of the status of the safety 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 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 that will only be enforced for a short duration and excludes vessels from entry into or remaining within a specified area on the Delaware River. 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 seek permission to enter or remain in the zone, contact the COTP or the COTP's representative via VHF-FM channel 16 or 215-271-4807. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(3) No vessel may take on bunkers or conduct lightering operations within the safety zone during its enforcement period(s).
(4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.
(d)
(e)
Environmental Protection Agency (EPA).
Proposed rule.
The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. On March 10, 2016, the State of Alaska made a submission to the Environmental Protection Agency (EPA) to address these requirements. The EPA is proposing to approve the submission as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 annual fine particulate matter (PM
Comments must be received on or before June 1, 2018.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2017-0745 at
Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address:
Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:
This rulemaking addresses a submission from the Alaska Department of Environmental Conservation (ADEC), describing its infrastructure SIP for the 2012 annual PM
The EPA highlighted the statutory requirement to submit infrastructure SIPs within 3 years of promulgation of a new NAAQS in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM
The memorandum also provides states and the EPA Regional offices with future year annual PM
Based on this approach, the potential receptors are outlined in the memorandum. Most of the potential receptors are in California, located in the San Joaquin Valley or South Coast nonattainment areas. However, there is also one potential receptor in Shoshone County, Idaho, and one potential receptor in Allegheny County, Pennsylvania. The memorandum also indicates that for certain states with incomplete ambient monitoring data, additional information including the latest available data, should be analyzed to determine whether there are potential downwind air quality problems that may be impacted by transported emissions.
This rulemaking considers analysis in Alaska's submission, as well as additional analysis conducted by the EPA during review of its submission. For more information on how we conducted our analysis, please see the technical support document (TSD) included in the docket for this action.
This rulemaking proposes action on the portion of Alaska's March 10, 2016, SIP submission addressing the good neighbor provision requirements of CAA section 110(a)(2)(D)(i)(I). State plans must address specific requirements of the good neighbor provisions (commonly referred to as “prongs”), including:
The EPA has developed a consistent framework for addressing the prong one and two interstate transport requirements with respect to the PM
ADEC's submission focused mainly on emissions inventories, geographic factors, and prevailing meteorological conditions to demonstrate that sources in Alaska are unlikely to significantly contribute to nonattainment or interfere with maintenance of the NAAQS in other states. ADEC evaluated emissions inventories by source category for direct PM
Alaska developed and submitted its technical analysis before March 17, 2016, when, as discussed earlier, the EPA released a memorandum with updated modeling projections for 2017 and 2025 annual PM
In our evaluation, potential downwind nonattainment and maintenance receptors were identified in other states. EPA evaluated these potential receptors to determine first if, based on review of relevant data and other information, there would be downwind nonattainment or maintenance problems, and if so, whether Alaska is likely to contribute to such problems in these areas. After reviewing air quality reports, modeling results, designation letters, designation technical support documents, attainment plans and other information for these areas, we are proposing to approve the Alaska SIP as meeting CAA section 110(a)(2)(i)(I) interstate transport requirements for the 2012 PM
The EPA is proposing to approve a portion of Alaska's March 10, 2016, submission certifying that the current Alaska SIP is sufficient to meet the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above. The EPA is requesting comments on the proposed approval.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a September 7, 2017, request by the Indiana Department of Environmental Management (IDEM) to revise the Indiana state implementation plan (SIP) for ozone. IDEM revised its ozone standard in order to be consistent with EPA's 2015 revisions to the 8-hour national ambient air quality standards (NAAQS). IDEM also revised the references to the monitoring test methods in its rules to the current EPA test methods. EPA is also proposing to approve administrative revisions to regulations addressing other ambient air quality standards.
Comments must be received on or before June 1, 2018.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0535 at
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On October 26, 2015 (80 FR 65291), EPA revised the primary and secondary ozone NAAQS from 0.075 to 0.070 parts per million (ppm), daily maximum 8-hour concentration, codified at 40 CFR 50.19. The ozone NAAQS continues to use an 8-hour averaging time, calculated as the fourth-highest daily maximum averaged across three consecutive years. IDEM revised its ambient air quality primary and secondary standards for ozone to be consistent with EPA's 2015 revision, and codified that revision at 326 Indiana Administrative Code (IAC) 1-3-4, Ambient Air Quality Standards.
On October 26, 2015 (80 FR 65291), EPA also revised the monitoring test methods for ozone, which are codified at 40 CFR part 50 appendices D and U, and at 40 CFR part 53. IDEM revised 326 IAC 1-3-4(4)(B) to update its references to those Federal monitoring test methods.
Indiana also made administrative revisions throughout 326 IAC 1-3-4 for ambient air quality standards other than ozone. This includes changing “shall represent” to “represents” and “shall” to “must.”
IDEM posted notice by March 3, 2017, for the Environmental Rules Board meeting on April 12, 2017, at which public comment was taken on the ambient air quality standard revisions. There were no public comments. On September 7, 2017, IDEM requested approval of 326 IAC 1-3-4 into the Indiana SIP.
IDEM's revisions to 326 IAC 1-3-4(4) make its ambient air quality standards consistent with the federal 2015 8-hour ozone NAAQS. Aligning the ambient air quality standards ensures consistency between EPA's and IDEM's ozone standards. IDEM's updates to the monitoring test methods for ozone keep the state's test methods consistent with the federal test methods. EPA also finds that the administrative revisions made in 326 IAC 1-3-4 are minor and do not alter the state's ambient air quality standards, which remain consistent with the NAAQS.
EPA is proposing to approve revisions to Indiana's ambient air quality standards in 326 IAC 1-3-4 into the Indiana SIP. The revisions to 326 IAC 1-3-4 include aligning both IDEM's ozone standard with the 2015 8-hour ozone NAAQS as codified at 40 CFR part 50 and the monitoring test methods for ozone as codified at 40 CFR part 50 and 40 CFR part 53. Further, administrative revisions were made to IDEM's other ambient air quality standards in 326 IAC 1-3-4. This SIP revision request was submitted on September 7, 2017.
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference 326 IAC 1-3-4, effective August 11, 2017. EPA has made, and will continue to make, these documents generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the Clean Air Act (CAA) section 111(d)/129 negative declaration for the United States Virgin Islands, for Commercial and Industrial Solid Waste Incineration (CISWI) units. This negative declaration certifies that CISWI units subject to sections 111(d) and 129 of the CAA do not exist within the jurisdiction of the United States Virgin Islands. The EPA is accepting the negative declaration in accordance with the requirements of the CAA.
Comments must be received on or before June 1, 2018.
Submit your comments, identified by Docket ID No. EPA-R02-OAR-2017-0712, at
The EPA will generally not consider comments or comment contents located outside of the primary submission (
Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, New York 10007-1866 at 212-637-3764 or by email at
Throughout this document “we,” “us,” or “our” refer to the EPA. This section provides additional information by addressing the following:
The Clean Air Act (CAA) requires that state
The general provisions for the submittal and approval of state plans are codified in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A. Section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants. Section 129 requires emission guidelines to be promulgated for all categories of solid waste incineration units, including commercial and industrial solid waste incineration (CISWI) units. A CISWI unit is defined, in general, as “any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined at 40 CFR 241.” See 40 CFR 60.2875. Section 129 mandates that all plan requirements be at least as protective as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and Title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the emission guidelines and compliance times.
States have options other than submitting a state plan in order to fulfill their obligations under CAA sections 111(d) and 129. If a state does not have any existing CISWI units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the state (
On March 21, 2011 (76 FR 15704), the EPA established emission guidelines and compliance times for existing
In order to fulfill obligations under CAA sections 111(d) and 129, the Department of Planning and Natural Resources of the Government of the United States Virgin Islands submitted a negative declaration letter to the EPA on August 17, 2016. The submittal of this declaration exempts the United States Virgin Islands from the requirement to submit a state plan for existing CISWI units.
In this proposed rule the EPA proposes to amend 40 CFR part 62 to reflect receipt of the negative declaration letter from the United States Virgin Islands, certifying that there are no existing CISWI units subject to 40 CFR part 60, subpart DDDD, in accordance with section 111(d) of the CAA.
Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the Act and applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 111(d)/129 plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA.
Accordingly, this action, if finalized, would merely approve state law as meeting Federal requirements and would not impose additional requirements beyond those imposed by state law.
For that reason, this action, if finalized:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed approval does not have tribal implications as specified by Executive Order 13175 because the United States Virgin Islands' section 111(d)/129 submittal is not approved to apply in Indian country located in the in the United States Virgin Islands and, if finalized, would not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this proposed approval.
Environmental protection, Administrative practice and procedure, Air pollution control, Commercial and industrial solid waste incineration units, Intergovernmental relations, Reporting and recordkeeping requirements.
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) proposes and seeks comment on a targeted rule to ensure that Universal Service Fund (USF) funding is not spent on equipment or services from suppliers that pose a national security threat to the integrity of communications networks or the communications supply chain.
Comments are due on or before June 1, 2018, and reply comments are due on or before July 2, 2018.
You may submit comments, identified by WC Docket No. 18-89, by any of the following methods:
John Visclosky, Competition Policy Division, Wireline Competition Bureau, at (202) 418-0825,
This is a summary of the Commission's Notice of Proposed Rulemaking in WC Docket No. 18-89; FCC 18-42, adopted on April 17, 2018 and released on April 18, 2018. The full text of this document is available at
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1. A critical element of our national security is the security of America's communications networks. Therefore, threats to the security of our nation's communications networks posed by certain communications equipment providers have long been a matter of concern in the Executive Branch and Congress. And as the supply chain for our nation's communications networks increasingly reaches far beyond U.S. borders, the need to address these threats has become more pressing.
2. The Federal Communications Commission has a specific, but an important, supporting role to play in these efforts. In keeping with our obligation to be responsible stewards of the public funds used in the Universal Service Fund (USF or the Fund) programs, we propose and seek comment on a rule to prohibit, going forward, the use of USF funds to purchase equipment or services from any communications equipment or service providers identified as posing a national security risk to communications networks or the communications supply chain. Our action today is intended to ensure that universal service funds are not used in a way that undermines or poses a threat to our national security.
3.
4.
5. On December 20, 2017, a group of 18 Senators and Representatives reiterated these concerns in a letter to Chairman Pai, which highlighted the 2012 HPSCI report's finding that “Huawei . . . cannot be trusted to be free of foreign state influence and thus poses a security threat to the United States and to our systems.” They also echoed the report's recommendation that “the United States . . . view with suspicion the continued penetration of the U.S. telecommunications market by Chinese telecommunications companies,” and that U.S. government systems and contractors “should not include Huawei or ZTE equipment.”
6. In response to continuing concerns over the purchase and use of communications equipment from certain foreign entities, Congress passed the National Defense Authorization Act for Fiscal Year 2018 (NDAA), which, among other things, bars the Department of Defense from using “[t]elecommunications equipment [or] services produced . . . [or] provided by Huawei Technologies Company or ZTE
7.
8. The Commission also considers “national security, law enforcement, [and] foreign policy” concerns in the course of reviewing applications under Section 214, under the Submarine Cable Landing License Act, and under Section 310(b) when an applicant has reportable foreign ownership. Recognizing that certain Executive Branch agencies have specific expertise in these areas, the Commission seeks input on these applications from Executive Branch agencies that have established an interest in their review. The agencies include the Department of Homeland Security, the Department of Justice (including the Federal Bureau of Investigations), the Department of Defense, the Department of State, the Department of Commerce and the National Telecommunications and Information Administration (NTIA), the United States Trade Representative, and the Office of Science and Technology Policy. After the agencies review the application, they may file comments requesting that the Commission condition grant of the application on compliance with a mitigation agreement or deny the application. The mitigation agreements often include a requirement that applicants submit a list of principal equipment they plan to use to the agencies for approval.
9. Further, the Commission has established the Communications Security, Reliability and Interoperability Council (CSRIC), which is charged with providing recommendations to ensure the security and reliability of the nation's communications systems, including telecommunications, media, and public safety networks. The Commission chartered CSRIC VI on March 19, 2017. This latest iteration of the CSRIC includes a working group whose mission is to recommend mechanisms to reduce risks to network reliability and security, including mechanisms to best design and deploy 5G networks to mitigate risks to network reliability and security posed by, among other things, vulnerable supply chains.
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11. The Commission has designated the Universal Service Administrative Company (USAC) as the entity responsible for administering the universal service support programs under the Commission's oversight. The Commission oversees the Fund consistent with the “[u]niversal service principles” set forth in Section 254(b), as well as “other principles” that we “determine are necessary and appropriate for the protection of the public interest, convenience, and necessity and are consistent with” the Communications Act of 1934, as amended.
12. Given the Commission's oversight role with respect to the Fund and increasing concerns about ensuring communications supply chain integrity, we propose to take targeted action to ensure that USF funds are not used in a way that undermines or poses a threat to our national security. We seek comment on how best to implement such a rule, including the costs and benefits of doing so, as well as on alternative approaches and any other steps we should consider taking.
13. We propose to adopt a rule that, going forward, no USF support may be used to purchase or obtain any equipment or services produced or provided by a company posing a national security threat to the integrity of communications networks or the communications supply chain. We believe we have a responsibility to ensure that the public funds used in the USF are not spent on equipment or services from companies that present a risk to the supply chain. We believe that this targeted action is therefore necessary. We seek comment on this view, on our proposal generally, and on any potential alternatives.
14. We also seek comment on whether other federal agencies have rules that we should follow as a model for limiting USF recipients' purchase of equipment or services from companies that trigger national security concerns. Do other civilian agencies that regulate or provide grants, loans or other financial assistance for key components of the nation's infrastructure, such as the Federal Energy Regulatory Commission,
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19. We seek comment on how to identify companies that pose a national security threat to the integrity of communications networks or the communications supply chain for purposes of our proposed rule. How should we define the universe of companies covered by our proposed rule (
20. One approach is for the Commission to establish the criteria for identifying a covered company. How should the Commission determine such criteria? One possible option would be to draw from the Spectrum Act of 2012, the NDAA, and pending legislation, and define a company covered by our proposed rule as (1) any company that has been prohibited from bidding on a contract, participating in an auction, or receiving a grant by any agency of the Federal Government, for reasons of national security, or (2) any company
21. Another possible approach is for the Commission to rely on existing statutes listing companies barred from providing certain equipment or services to federal agencies for national security reasons. Under such an approach, for example, we could define covered companies as those specifically barred by the National Defense Authorization Act from providing a substantial or essential component, or critical technology, of any system, to any federal agency or component thereof. We note that the 2018 Act includes such a prohibition for certain entities. Or we could define covered companies as those that the National Defense Authorization Act specifically bars from developing or providing equipment or services, of any kind listed in the NDAA, to be used, obtained, or procured by any federal agency or component thereof. What are the advantages and disadvantages of relying on the terms of an existing statute rather than using an approach that necessitates a list of covered companies that may change over time? Does one approach entail lower compliance costs for recipients of USF funds, either in terms of effort or actual dollars spent? Which approach is best suited to ensuring that USF funds are not spent on equipment or services supplied by entities that pose a threat to the integrity of communications networks or the communications supply chain? Which approach best balances that goal with our mission to ensure that all Americans have access to communications services and our desire to minimize compliance costs for recipients of USF support?
22. Another potential approach to identifying the universe of companies covered by our proposed rule is for a federal agency other than the Commission to maintain a list of communications equipment or service providers that raise national security concerns regarding the integrity of communications networks or the communications supply chain. We seek comment on whether a list specifying the companies that should be covered under our proposed rule is already available to the public. If not, we seek comment on which agency or agencies should develop and maintain a publicly available list of such suppliers. For example, should a federal agency within the Executive Branch that regularly deals with national security risks create and maintain such a list? As an alternative, should the Commission or USAC, under the direction of the Commission, do so? What are the benefits and drawbacks of the Commission or another federal agency creating and maintaining such a list?
23. We note that it is not uncommon for federal agencies to maintain a list of prohibited providers. For example, the General Services Administration maintains a public System for Award Management (SAM) database, although it does not include some of the foreign telecommunications equipment providers that Congress has identified as potential threats to national security, and also includes companies barred from federal contracting for reasons other than national security. And while other agencies, including the State Department, the Commerce Department, and the Treasury Department, maintain publicly-accessible databases which may be more focused than the SAM on companies identified as threats to national security, the databases are generally designed for export controls, rather than for domestic considerations. Therefore, are there other sources that would be instructive here?
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26. We seek comment on how to enforce our proposed rule. We expect that USF recipients would comply with the rule and that USAC, through periodic audits, would be able to confirm such compliance. We also note that all USF recipients are required to maintain records demonstrating that they use the support in the manner in which it is intended to be used. If a recipient of USF support is found to have violated our proposed rule, what steps should we take in response? Are there any mitigating factors we should consider when taking such responsive steps?
27. We seek comment on how USAC should recover funds disbursed in violation of the proposed rule. While under the High-Cost, Lifeline, and Rural Health Care programs funds are always disbursed to service providers, support disbursed under the E-Rate program may be distributed to either a service provider or to an eligible school or library. When USAC determines that E-Rate funding has been improperly disbursed and should be recovered, USAC must consider which party was in a better position to prevent a violation of E-Rate program rules, and which party committed the act or omission that forms the basis for the violation. For some rule violations, the beneficiary and service provider may share responsibility. We seek comment on which party, in the E-Rate context, is in the best position to anticipate and prevent violations of our proposed rule, and thus, which party should be held liable for the recovery of disbursed funds should such a violation occur. Should providers be held liable for the recovery of disbursed funds in
28. Upon finding a violation, are there additional penalties we should impose beyond loss of funding and potential forfeitures under Section 503 of the Act? What form would such penalties take? For instance, should parties who are found to have violated our proposed rule be suspended or permanently barred from receiving USF support? What other considerations should we take into account in the context of enforcing our proposed rule?
29. Notwithstanding these safeguards, we seek comment on any other steps we should take to ensure compliance with our proposed rule. For example, should we make changes to any of the relevant forms submitted by USF applicants or recipients (
30. We also seek comment on how potential bidders complied with the national security certification required by the Spectrum Act and the Commission's implementing regulations. While those provisions do not apply here, the experience of potential bidders may nevertheless be instructive. Are there practical lessons to be learned from that process? How did the certification requirement affect smaller and first-time bidders? Should we require a certification by USF recipients that they are not using USF support to pay for services or equipment from covered sources, analogous to the Commission's certification requirements for bidders in the broadcast incentive auction?
31. We also seek comment on other steps we should consider taking to the extent we identify companies that pose a national security threat to the integrity of communications networks or the communications supply chain. Should we consider actions targeted not only at the USF-funded equipment or services of those companies, but also non USF-funded equipment or services produced or provided by those companies that might pose the same or similar national security threats to the nation's communications networks? Should we consider actions in addition or as an alternative to restricting the use of USF support? For instance, do commenters believe that there are testing regimes, showings, or steps concerning the removal or prospective deployment of equipment that we should consider? If so, we seek comment on the scope and extent of our legal authority to take any such actions to address national security threats to the integrity of communications networks and the communications supply chain.
32. We seek comment on whether and how applicants for USF support may seek a waiver of our proposed rule. In general, the Commission's rules may be waived for “good cause.” Should we establish a separate process from our general waiver provision for waivers of our proposed rule? If we provide such a waiver process, how should it function? Should we require a higher standard than good cause for granting waivers, such as “extraordinary circumstances?” The Commission has required a higher standard for waiver in certain circumstances. For example, the E-Rate program invoicing rules may only be waived “in extraordinary circumstances.” Who should have the authority to grant a waiver, and under what circumstances?
33. We seek comment on the costs and benefits of our proposed rule. Does our proposed rule promote our goals of ensuring that USF funds are used consistently with our national security interests while simultaneously continuing our universal service mission of making communications services available to all Americans? Does this proposed rule improve our ability to safeguard the country's telecommunications networks from potential security risks? How can we quantify any such benefit to national security? Are there alternative approaches that would better protect the security of the nation's communications networks at a lower cost?
34. What are the potential costs associated with our proposed rule to USF recipients, the Fund, end users, consumers, the public safety and law enforcement community, the Commission, or other federal agencies? Does this proposed rule affect our continuing goal of ensuring that all Americans have access to communications services? If so, how? How do covered companies' equipment and services perform relative to equipment and services of companies unaffected by the proposed rule? What is the cost difference to USF recipients between equipment and services that may be covered by the proposed rule and those that are not? How many USF recipients purchase equipment or services from companies that pose a threat to our national security? Do the potential benefits of our proposal to national security outweigh any possible costs? How can we achieve our goal of addressing national security threats to communications networks and the communications supply chain while minimizing the impact on carriers seeking to deploy broadband to unserved or underserved areas? Specifically, we seek comment on the impact of our proposed rule on small businesses, as well as any modifications or alternatives that might ease the burden of this proposed rule on small businesses. We seek comment on the impact of our proposed rule on small and rural carriers in particular. Commenters should discuss the effectiveness of the proposed rule or any alternative and provide any quantitative or qualitative data to demonstrate the potential impact of the proposed rule or any alternative on network deployment and services offered by small and rural carriers and on their subscribers. Additionally, one important element of our cost-benefit analysis is understanding how widely the equipment and services that may be covered by our proposed rule are deployed. Therefore, we seek comment on this issue. For example, to what extent have small and rural carriers relied on equipment or services from companies that may be covered by our proposed rule? If so, we seek comment on specific instances and details on the use of equipment or services from such companies.
35. We believe that Sections 201(b) and 254 of the Act provide ample legal authority for the rule we propose today. Section 201(b) gives the Commission the authority to promulgate “such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.” And Section 254 requires that USF recipients “shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” In the
36. We believe that the promotion of national security is consistent with the public interest, and that USF funds should be used to deploy infrastructure and provide services that do not undermine our national security. Indeed, Congress similarly determined that promoting the national defense is an important public interest in Section 1 of the Act, which describes the development of a “Nation-wide . . . wire and radio communication service, for the purpose of the national defense” as one of the reasons for establishing the Commission. Would adopting our proposed rule be equivalent to establishing a new definition of the “evolving level of telecommunications services” that are supported by USF mechanisms under Section 254(c)(1)? Are there other statutory provisions that affect USF recipients' obligations with respect to the security of their networks, or other sources of legal authority on which we should rely?
37. 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 the Notice of Proposed Rulemaking (NPRM). 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 NPRM provided in the
38. Consistent with our obligation to be responsible stewards of the public funds used in the Universal Service Fund (USF) programs and increasing concern about ensuring communications supply chain integrity, the NPRM proposes and seeks comment on a rule designed to ensure that USF support is not spent on equipment or services from companies that pose a national security threat to communications networks or the communications supply chain.
39. The proposed action is authorized under Sections 1-4, 201(b), and 254 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201(b), and 254.
40. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
41.
42. 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 Aug. 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
43. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, 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 indicates 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 we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
44. Small entities potentially affected by the proposals herein include eligible schools and libraries, eligible rural non-profit and public health care providers, and the eligible service providers offering them services, including telecommunications service providers, internet Service Providers (ISPs), and vendors of the services and equipment used for telecommunications and broadband networks.
45. As noted, “small entity” includes non-profit and small government entities. Under the schools and libraries universal service support mechanism, which provides support for elementary and secondary schools and libraries, an elementary school is generally “a non-profit institutional day or residential school, that provides elementary education, as determined under state
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79. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
80.
81. In addition, in the
82. Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service, 291 carriers reported that they were engaged in the provision of “paging and messaging” services. Of these, an estimated 289 have 1,500 or fewer employees and two have more than 1,500 employees. We estimate that the majority of common carrier paging
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84.
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92. The NPRM proposes a rule that no universal service support may be used to purchase or obtain any equipment or services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain. We seek comment on this proposal, and its likely costs and benefits, as well as on alternative approaches and any other steps we should consider taking. The NPRM also seeks comment on how broadly this proposed rule should apply, and how it should be implemented. We seek comment on how to enforce the proposed rule, including who should be held liable for the recovery of disbursed funds, and whether and how applicants for USF support may seek a waiver to purchase or continue to use equipment or services provided by a covered entity. Lastly, we seek comment on whether Sections 201(b) and 254 provide legal authority for the proposed rule.
93. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
94. In this NPRM, we propose to adopt a rule that no universal service support may be used to purchase or obtain any equipment or services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain.
95. The NPRM specifically seeks comment on the impact of such a rule on small entities, particularly small and rural carriers. The NPRM also seeks comment on whether there are any compliance issues we should consider, particularly for smaller USF recipients. The NPRM seeks comment on whether, as a practical matter, USF recipients will be able to purchase equipment and services from non-covered companies that can interoperate with any existing, installed equipment from covered companies.
96. As the Spectrum Act and its implementing regulations included similar provisions, the NPRM seeks comment on how small businesses complied with those regulations in the context of spectrum auctions administered by the Commission.
97. The NPRM asks whether there are modifications to our proposed rules that would achieve similar national security objectives, while reducing burdens on small entities. For example, the NPRM asks whether there should be a later effective date for the rule as applied to smaller recipients of USF support. We seek comment on any potential modifications and alternatives that would ease the burden of our proposed rules on small entities.
98. We expect to take into account the economic impact on small entities, as identified in comments filed in response to the NPRM and this IRFA, in reaching our final conclusions and promulgating rules in this proceeding.
99. None.
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104. Accordingly,
105.
Communications common carriers, Reporting and recordkeeping requirements, Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 54 as follows:
47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.
No universal service support may be used to purchase or obtain any equipment or services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain.
National Institute of Food and Agriculture, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, this notice announces the National Institute of Food and Agriculture's (NIFA's) intention to request approval for an extension of the currently approved information collection for the NIFA proposal review process.
Written comments on this notice must be received by July 2, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email:
Robert Martin, eGovernment Program Leader; Email:
Once collected, the information would be stored in a secure data base and referenced when recruiting panelists to ensure panels meet diversity requirements as stated in 7 CFR 3430.33. The information would also be aggregated for use in an annual report on the demographics of NIFA's applicants and panelists to ensure compliance and referenced as needed in cases of a discrimination complaint. The data would remain strictly confidential and would only be available to NIFA staff.
All responses to this notice will be summarized and included in the request to OMB for approval. All comments will become a matter of public record.
Bureau of the Census, Department of Commerce.
Notice of Advisory Committee charter renewal.
The Bureau of the Census (U.S. Census Bureau) hereby gives notice that the Secretary of the U.S. Department of Commerce has determined that the charter renewal of the National Advisory Committee on Racial, Ethnic, and Other Populations (NAC) is necessary and in the public interest. The renewed charter can be found on the Census Advisory Committee website at the following URL link:
Tara Dunlop Jackson, Chief, Advisory Committee Branch, U.S. Census Bureau, 4600 Silver Hill Road, Room 8H177, Washington, DC 20233, 301-763-5222,
The NAC advises the Census Bureau's Director on the full range of Census Bureau programs and activities. The NAC provides expertise from the following disciplines: Economic, housing, demographic, socioeconomic, linguistic, technological, methodological, geographic, and behavioral and operational variables affecting the cost, accuracy, and implementation of Census Bureau programs and surveys, including the decennial census.
The NAC will function solely as an advisory body and in compliance with provisions of the Federal Advisory Committee Act. Pursuant to subsection 9(c) of the Federal Advisory Committee Act, 5 U.S.C., App., as amended, copies of this charter were furnished to the Library of Congress and to the following committees of Congress:
• Senate Committee on Appropriations;
• Senate Committee on Commerce, Science and Transportation;
• Senate Committee on Finance;
• Senate Committee on Homeland Security and Governmental Affairs;
• House Committee on Appropriations; and,
• House Committee on Oversight and Government Reform.
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 survey collects the value of quarterly production, the value of production that could be achieved if operating under “full production” capability, and the value of production that could be achieved if operating under “emergency production” capability. The ratio of the actual to the full is the basis of the estimates for full capacity utilization rates and similarly, the actual to the emergency for the emergency capacity utilization rates. The survey also collects information by shift, on work patterns at the actual production level.
The FRB is the primary user of the current QPC data and expressed the need for these quarterly data. FRB publishes measures of industrial production (IP), capacity, and capacity utilization in its G.17 statistical release, which has been designated by the federal government as a Principal Federal Economic Indicator. Utilization rates from the QPC survey are a principle source for the measures of capacity and capacity utilization. The indexes of IP are either estimated from physical product data or estimated from monthly data on inputs to the production process, specifically production worker hours and an indicator of capital input. For many years, data on electric power use was used as the indicator of industry capital input. The deregulation of electricity markets led to the deterioration in the coverage and quality of the electricity data. As a result, in November 2005, the FRB discontinued its use of the industrial electric power data in the current estimates of IP. In order to maintain the quality of the IP index, the collection of these quarterly data, including the utilization rate data and the workweek of capital, is critical to the indicators of capital input use and industry output.
The FRB uses these data in several ways. First, the QPC data are the primary source of information for the capacity indexes and utilization rates published by the FRB. Second, the QPC utilization rate data are used as indicators of output for some industries in the estimation of monthly IP. Third, the QPC utilization rate data and the workweek data are used to improve the projections of labor productivity that are used to align IP with comprehensive benchmark information from the Economic Census covering the Manufacturing sector and the Annual Survey of Manufactures. Finally, utilization rate data will assist in the assessment of recent changes in IP, as most of the high-frequency movement in utilization rates reflect production changes rather than capacity changes.
The DLA uses the data to assess industrial base readiness and ramp-up time to meet demand for goods under selected national emergency scenarios.
In addition to the FRB and DLA uses, these data are published on the Census Bureau's website,
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 the Census, Department of Commerce.
Notice of Advisory Committee charter renewal.
The Bureau of the Census (U.S. Census Bureau) hereby gives notice that the Secretary of the U.S. Department of Commerce has
Tara Dunlop Jackson, Chief, Advisory Committee Branch, U.S. Census Bureau, 4600 Silver Hill Road, Room 8H177, Washington, DC 20233, 301-763-5222,
The CSAC advises the Census Bureau's Director on the full range of Census Bureau programs and activities. The CSAC provides scientific and technical expertise from the following disciplines: Demography, economics, geography, psychology, statistics, survey methodology, social and behavioral sciences, information technology and computing, marketing, and other fields of expertise, as appropriate, to address Census Bureau program needs and objectives.
The CSAC will function solely as an advisory body and in compliance with provisions of the Federal Advisory Committee Act. Pursuant to subsection 9(c) of the Federal Advisory Committee Act, 5 U.S.C., App., as amended, copies of this charter were furnished to the Library of Congress and to the following committees of Congress:
• Senate Committee on Appropriations;
• Senate Committee on Commerce, Science and Transportation;
• Senate Committee on Finance;
• Senate Committee on Homeland Security and Governmental Affairs;
• House Committee on Appropriations; and,
• House Committee on Oversight and Government Reform.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
MBDA must collect two kinds of information to make award nominations: (a) Information identifying the nominee and nominator; and (b) information explaining why the nominee should be given the award. The information will be used to determine those applicants that best meet the preannounced selection criteria. Participation in the MED Week Awards program is voluntary and the awards are strictly honorary.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Economic Development Administration, U.S. Department of Commerce.
Notice and opportunity for public comment.
The Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of the firms contributed importantly to the total or partial separation of the firms' workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
On March 7, 2018, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the Columbus Regional Airport Authority, grantee of FTZ 138, requesting subzone status subject to the existing activation limit of FTZ 138, on behalf of International Converter, Inc., in Caldwell, Ohio.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on potassium permanganate from the People's Republic of China (China) for the period of review (POR) January 1, 2017, through December 31, 2017.
Applicable May 2, 2018.
Trenton Duncan or Annathea Cook, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3539 or (202) 482-0250, respectively.
On January 2, 2018, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication date of the notice of initiation of the requested review. The petitioner withdrew its request for review within the 90-day deadline. Because Commerce received no other requests for review of the above-referenced companies, and no other requests were made for a review
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of potassium permanganate from China during the POR at rates equal to the cash deposit rate for estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the
This notice serves as the only reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates. In accordance with Commerce's regulations, we are initiating those administrative reviews.
Applicable May 2, 2018.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify Commerce within 30 days of publication of this notice in the
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce has found that determinations concerning whether particular companies should be “collapsed” (
The respondent selection procedures outlined in the February 23, 2018 notice initiating the sixth administrative review of the antidumping duty order on multilayered wood flooring (MLWF) from the People's Republic of China (China) covering the period 12/01/2016-11/30/2017,
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when Commerce will exercise its discretion to extend this 90-day deadline, interested parties are advised that Commerce does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than March 31, 2019.
During any
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (
Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
Parties may request an extension of time limits before a time limit established under Part 351 expires, or as otherwise specified by the Secretary.
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is amending the final results of the countervailing duty administrative review of certain passenger vehicle and light truck tires (passenger tires) from the People's Republic of China (China) to correct ministerial errors. The period of review (POR) is December 1, 2014, through December 31, 2015.
Applicable May 2, 2018.
Andrew Huston, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-4261.
In accordance with section 751(a)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.221(b)(5), on March 16, 2018, Commerce published its final results of the countervailing duty administrative review of passenger tires from China.
The products covered by the order are certain passenger vehicle and light truck tires from China. A full description of the scope of the order is contained in the Ministerial Errors Memorandum.
Section 751(h) of the Act and 19 CFR 351.224(f) define a “ministerial error” as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial. As discussed in Commerce's Ministerial Error Memorandum, Commerce finds that the error alleged by Shandong Shuangwang and certain errors alleged by GITI constitute ministerial errors within the meaning of 19 CFR 351.224(f).
With regard to Shandong Shuangwang, in the
With regard to GITI, we made ministerial errors with regard to calculating the sales denominator for GITI Tire (China) Investment Co., Ltd., calculating government grants, and applying the Adverse Facts Available Rate to the Export Buyer's Credits program.
In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the
As result of correcting the ministerial errors, we determine that that the countervailable subsidy rates for the producers/exporters under review to be as follows:
Commerce intends to issue assessment instructions to U.S. Customs and Border Protection (CBP) 15 days after the date of publication of these amended final results of review, to liquidate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption, on or after December 1, 2014, through December 31, 2015, at the
Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for the companies listed above on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after March 16, 2018, the date of publication of the
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We intend to disclose the calculations performed for these amended final results to interested parties within five business days of the date of the publication of this notice in accordance with 19 CFR 351.224(b).
We are issuing and publishing these results in accordance with sections 751(h) and 777(i)(1) of the Act, and 19 CFR 351.224(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty orders on utility scale wind towers (wind towers) from the People's Republic of China (China) and the Socialist Republic of Vietnam (Vietnam) would be likely to lead to continuation or recurrence of dumping at the level identified in the “Final Results of Review” section of this notice.
Applicable May 2, 2018.
Ariela Garvett, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3609.
On February 15, 2013, Commerce published the antidumping duty orders on wind towers from China and Vietnam.
The merchandise covered by these orders is certain wind towers, whether or not tapered, and sections thereof. Certain wind towers are designed to support the nacelle and rotor blades in a wind turbine with a minimum rated electrical power generation capacity in excess of 100 kilowatts and with a minimum height of 50 meters measured from the base of the tower to the bottom of the nacelle (
A wind tower section consists of, at a minimum, multiple steel plates rolled into cylindrical or conical shapes and welded together (or otherwise attached) to form a steel shell, regardless of coating, end-finish, painting, treatment, or method of manufacture, and with or without flanges, doors, or internal or external components (
Wind towers and sections thereof are included within the scope whether or not they are joined with nonsubject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise.
Specifically excluded from the scope are nacelles and roto blades, regardless of whether they are attached to the wind tower. Also excluded are any internal or external components which are not attached to the wind towers or sections thereof.
Merchandise covered by the orders is currently classified in the Harmonized Tariff System of the United States (HTSUS) under subheadings 7308.20.0020
A complete discussion of all issues raised in these reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation of the
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, 19 CFR 351.218, and 19 CFR 351.221(c)(5)(ii).
United States Section, NAFTA Secretariat, International Trade Administration, Department of Commerce.
Notice of NAFTA Request for Panel Review in the matter of Large Residential Washers from Mexico: Final results of antidumping duty administrative review (Secretariat File Number: USA-MEX-2018-1904-04).
A Request for Panel Review was filed on behalf of Electrolux Home Products, Inc., Electrolux Home Products Corp. N.V., and Electrolux Home Products de Mexico, S.A. de C.V. (collectively “Electrolux”) with the
Paul E. Morris, United States Secretary, NAFTA Secretariat, Room 2061, 1401 Constitution Avenue NW, Washington, DC 20230, (202) 482-5438.
Chapter 19 of Article 1904 of NAFTA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to review the trade remedy determination being challenged and issue a binding Panel Decision. There are established NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews, which were adopted by the three governments for panels requested pursuant to Article 1904(2) of NAFTA which requires Requests for Panel Review to be published in accordance with Rule 35. For the complete Rules, please see
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is May 18, 2018);
(b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is June 4, 2018); and
(c) The panel review shall be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on large residential washers (washing machines) from the Republic of Korea (Korea) would be likely to lead to continuation or recurrence of countervailable subsidies at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable May 2, 2018.
Kaitlin Wojnar at (202) 482-3857, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
Commerce published the CVD order on washing machines from Korea on February 15, 2013.
Commerce received an adequate and timely substantive response from the petitioner on February 5, 2018.
The product covered by the
All issues raised in this review are addressed in the accompanying Issues and Decision Memorandum.
Pursuant to sections 752(b)(1) and (3) of the Act, we determine that revocation of the
This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
Commerce is issuing and publishing these final results in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.
The products covered by this order are all large residential washers and certain subassemblies thereof from Korea.
For purposes of this order, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, except as noted below, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).
Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:
(1) (a) It contains payment system electronics;
(2) (a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
Also excluded from the scope are automatic clothes washing machines with a vertical rotational axis and a rated capacity of less than 3.70 cubic feet, as certified to the U.S. Department of Energy pursuant to 10 CFR 429.12 and 10 CFR 429.20, and in accordance with the test procedures established in 10 CFR part 430.
The products subject to this order are currently classifiable under subheading 8450.20.0090 of the Harmonized Tariff System of the United States (HTSUS). Products subject to this order may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5139.
On April 17, 2018, the Department of Commerce (Commerce) published the final results of the 2015-2016 antidumping duty administrative review of carbon and certain alloy steel wire rod from Mexico.
This correction to the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Harvest Alaska, LLC (Harvest), to incidentally take, by Level B harassment, eight species of marine mammals incidental to oil and gas pipeline installation activities associated with the Cook Inlet Pipeline Cross Inlet Extension Project (CIPL), Cook Inlet, Alaska.
The IHA is valid from April 25, 2018, through April 24, 2019.
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS prepared an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA and, on April 25, 2018, issued an associated Finding of No Significant Impact. NMFS' EA and FONSI are available at
The proposed CIPL project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet. Work includes moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 108 days. The installation of the subsea pipelines, specifically presence of and noise generated from work vessels, has the potential to take marine mammals by harassment. NMFS has authorized Harvest to take small numbers of eight species of marine mammals incidental to the project.
The CIPL project will take place for approximately 108 days if able to work without interruption (
Cook Inlet is a complex Gulf of Alaska estuary (as described in BOEM 2016) that covers roughly 7,700 square miles (mi
The project area is located a few km north of the village of Tyonek between Ladd Landing and the Tyonek Platform (see Figure 1-2 of Harvest's application). On April 11, 2011, NMFS designated beluga whale (
A complete description of the specified activity may be found in our notice of the proposed IHA (83 FR 8437; February 27, 2018) and a summary is provided below. No changes to the proposed project have occurred since publication of that notice.
The project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet: A 10-inch (in) nominal diameter gas pipeline (Tyonek W 10) between the Tyonek Platform and the Beluga Pipeline (BPL) Junction, and the 8-in nominal diameter oil pipeline (Tyonek W 8) between the existing Tyonek Platform and Ladd Landing. Pipelines installation activities would be conducted in phases and include moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. The barge would be relocated approximately two to three times per day. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 108 days. Table 1 contains construction scenarios during the phased project and associated use duration.
A notice of proposed IHA was published in the
NMFS has made the necessary findings to issue the IHA to Harvest for take of marine mammals incidental to their pipeline installation activities. Nonetheless, NMFS agrees that caution is appropriate in the management of impacts on this small resident beluga population with declining abundance and constricted range. Accordingly, NMFS is requiring that Harvest submit weekly and monthly reports on their daily marine mammal monitoring efforts. Consistent with our implementing regulations, if NMFS determines that the level of taking is having or may have a more than negligible impact on a species or stock, NMFS may suspend or modify an LOA, as appropriate, following notice and comment.
In the
In summary, eight marine mammal species, including five cetaceans and three pinnipeds, may be found within Cook Inlet during the project (Table 2). These are the Cook Inlet beluga whale, humpback whale, gray whale, killer whale, harbor porpoise, harbor seal, Steller sea lion and California sea lion. We refer the reader to the
Each spring, the Eastern North Pacific stock of gray whale migrates 8,000 km (5,000 mi) northward from breeding lagoons in Baja California to feeding grounds in the Bering and Chukchi seas, reversing their travel again in the fall (Rice and Wolman, 1971). Their migration route is for the most part coastal until they reach the feeding grounds. A small portion of whales do not annually complete the full circuit, as small numbers can be found in the summer feeding along the Oregon, Washington, British Columbia, and Alaskan coasts (Rice
Most gray whales migrate past the mouth of Cook Inlet to and from northern feeding grounds. However, small numbers of summering gray whales have been observed within Cook Inlet, mostly in the lower inlet (
Threats to this species include ship strike, entanglement in fishing gear, and increased human use of more northern latitudes as ice melts (Caretta
California sea lions (
California sea lions are very rare in Cook Inlet and typically are not observed farther north than southeast Alaska. However, NMFS' anecdotal sighting database contains four California sea lion sightings in Seward and Kachemak Bay (pers. comm., Kate Savage, NMFS, March 27, 2018). In addition, an industry survey report contains a sighting of two California sea lions in lower Cook Inlet; however, it is unclear if these animals were indeed California sea lions or a mis-identified Steller sea lions (SAE, 2012). Regardless, in an abundance of caution, we have included take for California sea lions in the final IHA.
Threats to this species include incidental catch and entanglement in fishing gear, such as gillnets; biotoxins, as a result of harmful algal blooms; and gunshot wounds and other human-caused injuries, as California sea lions are sometimes viewed as a nuisance by commercial fishermen (NOAA 2016).
In the “Potential Effects of the Specified Activity on Marine Mammals and Their Habitat” section of the notice of proposed IHA (83 FR 8437, February 27, 2018), NMFS included a qualitative discussion of the different ways that Harvest's pipelines installation activities may potentially affect marine mammals. The information contained in the notice has not changed. Please refer to that notice for the full discussion. Below we provide a summary.
The CIPL project has the potential to harass marine mammals from exposure to noise from working vessels (
We anticipate effects of the project to be limited to masking and behavioral disturbance (
This section provides the number of incidental takes authorized through the IHA, which informed both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns individual marine mammals resulting from exposure to multiple working vessels and construction activities in a concentrated area. For reasons described in the
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the authorized take estimate.
Using the best available science, NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
Harvest's activity includes the use of multiple continuous sources and activities (
Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2016b) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Harvest's activity includes the use of non-impulsive (
These thresholds are provided in the Table 3. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.
When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced will typically be overestimates of some degree, which will result in some degree of overestimate of Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available. NMFS will continue to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. Although vessels are mobile, we are considering them stationary for purposes of this project due to the confined area of work. For stationary sources, NMFS' User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet and the resulting isopleths are reported below.
The sources and activities involved with the CIPL project are relatively low compared to other activities for which NMFS typically authorizes take (
Each construction phase involves multiple pieces of equipment that provide physical and acoustic sources of disturbance. For this project, we anticipate the ensonified area to shift as the project progresses along the pipeline corridor. That is, at the onset of the project, work will be concentrated in the intertidal zone close to shore and, as work continues, moving offshore towards the Tyonek platform. We also anticipate that the sound field generated by the combination of several sources will expand and contract as various construction related activities are occurring. For example, pushing the barge may require tugs to use increased thruster power, which would likely result in greater distances to the 120 dB re 1 μPa threshold in comparison to general movement around the area. Therefore, calculating an ensonified area for the entire pipeline corridor would be a gross overestimate and we offer an alternative here.
Because we consider the potential for take from the combination of multiple sources (and not any given single source), we estimate the ensonified area to be a rectangle centered along the pipeline corridor which encompasses all in-water equipment and a buffer around the outside of the cluster of activities constituting the distance calculated to the 120 dB threshold from one tug (
Although vessels and equipment (
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
There are eight marine mammal species that have the potential to occur within the action area from April through October. The NMFS National Marine Mammal Laboratory (NMML) maintains a database of Cook Inlet marine mammal observations collected by NOAA and U.S. Coast Guard personnel, fisheries observers, fisheries personnel, ferry operators, tourists, or other private boat operators. NMFS also collects anecdotal accounts of marine mammal sightings and strandings in Alaska from fishing vessels, charter boat operators, aircraft pilots, NMFS enforcement officers, Federal and state scientists, environmental monitoring programs, and the general public. These data were used to inform take estimates.
Empirical estimates of beluga density in Cook Inlet are difficult to produce. One of the most robust is the Goetz
Harvest provided density estimates for all other species with likely occurrence in the action area in their IHA application; however, data used to generate those densities do not incorporate survey efforts beyond 2011. Therefore, we developed new density estimates based on data collected during NMFS aerial surveys conducted from 2001 to 2016 (Rugh
The method for calculating take was described in the
Cook Inlet beluga whales are expected to be transiting through the action area in group sizes ranging from 3 to 14 animals with an average of 8 animals/group. These group sizes are based on NMFS aerial surveys and anecdotal reports near Tyonek from April through October (pers comm. K Sheldon, January 25, 2018). Harvest requested take for up to 29 beluga whales in anticipation that one group of 8 animals may pass through the action area once per month for the duration of the project (
We also considered group size for other cetaceans. Killer whales have the potential to travel through the project area in groups exceeding the take calculated based on density. Because sighting data indicates killer whales are not common in the Upper Inlet, we anticipated one group to pass through the project area in the proposed IHA but have increased this to two groups for a total authorized take of 10 killer whales. For harbor porpoise, we considered the density-based take calculation to be great enough to encompass their small group size (n=8); however, harbor porpoise sightings in the mid- to upper inlet have increased in recent years. Despite them typically occurring in the lower inlet, we have increased the authorized amount of take to 100 individuals, which is approximately 50 percent of the individuals observed during the 2012 industry survey (n = 190). We did not authorize the same amount of individuals observed considering the industry survey area was much larger than the harassment zone for the CIPL project and extended lower in the inlet where harbor porpoise are more common.
Harbor seals and Steller sea lions are expected to occur as solitary animals or in small groups and may linger in the action area moreso than transiting cetaceans. Harbor seal takes estimates based on density reflect a likely occurrence, so we did not adjust authorized take levels. However, Steller sea lion density calculations produce an estimated take of one animal during the entire project. While Steller sea lions are rare in the action area, this species may not be solitary and may also remain in the action area for multiple days. In 2009, a Steller sea lion was observed three times during Port of Anchorage construction (ICRC 2009). During seismic survey marine mammal monitoring, Steller sea lions were observed in groups of one to two animals during two of three years of monitoring (Lomac-MacNair 2013, 2015). Therefore, we increased the amount of take to six Steller sea lions to account for up to two animals to be observed over the course of three days (
Harvest did not request, and we did not propose, take for any other species in our proposed IHA notice. However, we have included take for gray whales and California sea lions in the final IHA. It is unlikely these species would come within the project area; however, in the
The availability of the affected marine mammal stocks or species for subsistence uses may be impacted by this activity. The subsistence uses that may be affected and the potential impacts of the activity on those uses are described below. Measures included in this IHA to reduce the impacts of the activity on subsistence uses are described in the Mitigation section. The information from this section and the Mitigation section is analyzed to determine whether the necessary findings may be made in the Unmitigable Adverse Impact Analysis and Determination section.
The villages of Tyonek, Ninilchik, Anchor Point, and Kenai use the upper Cook Inlet area for subsistence activities. These villages regularly harvest harbor seals (Wolfe
Cook Inlet beluga subsistence harvest has been placed under a series of moratoriums beginning 1999. Only five beluga whales have been harvested since 1999. Future subsistence harvests are not planned until after the 5-year population average has grown to at least 350 whales. Based on the most recent population estimates, no beluga harvest will be authorized in 2018.
Harvest's proposed pipeline construction activities would not impact the availability of marine mammals for subsistence harvest in Cook Inlet due to the proximity of harvest locations to the project (for harbor seals) and the general lack of Steller sea lion harvest. Beluga subsistence harvest is currently under moratorium. Further, animals that are harassed from the project are expected to elicit behavioral changes that are short-term, mild, and localized.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned) and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the
NMFS anticipates the project will create an acoustic footprint above baseline of approximately 24 km
Harvest will establish a 2,200 m safety zone from working vessels and along the pipeline corridor and employ NMFS-approved protected species observers (PSOs) to conduct marine mammal monitoring for the duration of the project. Prior to commencing activities for the day or if there is a 30-minute lapse in operational activities, the PSO will monitor the safety zone for marine mammals for 30 minutes. If no marine mammals are observed, operations may commence. If a marine mammal(s) is observed within the safety zone during the clearing, the PSO will continue to watch until either: (1) The animal(s) is outside of and on a path away from the safety zone; or (2) 15 minutes have elapsed. Once the PSO has determined one of those conditions are met, operations may commence.
Should a marine mammal be observed during pipe-pulling, the PSO will monitor and carefully record any reactions observed until the pipe is secure. No new operational activities would be started until the animal leaves the area. PSOs will also collect behavioral information on marine mammals beyond the safety zone.
Other measures to minimize the acoustic footprint of the project include: The dive boat, sonar boat, work boat, and crew boat will be tied to the barge or anchored with engines off when practicable; all vessel engines will be placed in idle when not working if they cannot be tied up to the barge or anchored with engines off; and all sonar equipment will operate at or above 200 kHz.
Finally, Harvest would abide by NMFS marine mammal viewing guidelines while operating vessels or land-based personnel (for hauled-out pinnipeds); including not actively approaching marine mammals within 100 yards (in-water or on land) and slowing vessels to the minimum speed necessary. NMFS Alaska Marine Mammal Viewing Guidelines may be found at
The mitigation measures are designed to minimize Level B harassment by avoiding starting work while marine mammals are in the project area, lowering noise levels released into the environment through vessel operation protocol (
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Harvest will abide by all monitoring and reporting measures contained within their Marine Mammal Monitoring and Mitigation Plan, dated March 15, 2018, with the additional condition described below regarding number and location of observers. This plan was revised from the original that was available for public comment. During the public comment period, Harvest found that there was limited space on the vessels and safety issues prevented a PSO from being placed on the barge. In the revised plan, Harvest moved the PSO from vessel-based to land- or Tyonek Platform- based. Harvest proposed that during the beginning of the project when activities are occurring close to shore, a PSO will be positioned on a 100-foot high bluff at Ladd Landing, which provides a marine mammal sighting distance of approximately 3 mi. As work progresses toward the Tyonek Platform, the PSO shall be stationed on the Tyonek platform which also provides for an approximately 100-foot high observation point. The elevation of both these observation points provides advantages than working aboard a single vessel. However, NMFS determined that a single land-based observer was not sufficient and is therefore requiring monitoring based on where along the
In recognition of the status of Cook Inlet beluga whales, Harvest is required to submit weekly reports to NMFS documenting marine mammal observations, behavior, and ability to detect marine mammals within the monitoring zone. If Harvest fails to abide by the mitigation, monitoring and/or reporting conditions contained within the IHA or NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, NMFS may modify the mitigation or monitoring measures if doing so creates a reasonable likelihood of more mitigation and monitoring leading to reduced impacts. Possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures include: results from Harvest's marine mammal monitoring report, information from beluga whale researchers, and information from subsistence users or local community residents.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Marine mammal habitat may be impacted by elevated sound levels, but these impacts would be temporary. In addition to being temporary and short in overall duration, the acoustic footprint of the pipeline installation activities is small relative to the overall distribution of the animals in the area and their use of the area. Feeding behavior is not likely to be significantly impacted, as no areas of biological significance for marine mammal feeding are known to exist in the survey area. For beluga whales, there are no major river outfalls which provide prey within the action area.
The proposed project would create an acoustic footprint around the project area for an extended period time (3.6 months) from April through September. Noise levels within the footprint would reach or exceed 120 dB rms. We anticipate the 120 dB footprint to be limited to 20km
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized;
• The project does not involve noise sources capable of inducing PTS and no injury is anticipated or authorized;
• Exposure would likely be brief given transiting behavior of marine mammals in the action area, resulting in, at most, temporary avoidance and modification to vocalization behavior, and diverting around the project area;
• The project area does not contain concentrated foraging, mating, or breeding habitat;
• Marine mammal densities are low in the project area and the number of marine mammals potentially taken is small compared to the population size; and
• Harvest would monitor for marine mammals daily and minimize exposure to operational activities as required in the IHA.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an
Table 7 provides the quantitative analysis informing our small numbers determination. For most species, the amount of take proposed is less than 3.5 percent of all stocks except beluga whales. For beluga whales, the amount of take proposed represents 12.8 percent of the population.
Based on the analysis contained herein of the proposed activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
In order to issue an IHA, NMFS must find that the specified activity will not have an “unmitigable adverse impact” on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.
The village of Tyonek engages in subsistence harvests; however, these efforts are concentrated in areas such as the Susitna Delta where marine mammals are known to occur in greater abundance. Harbor seals are the only species taken by Alaska Natives that may also be harassed by the proposed project. However, any harassment to harbor seals is anticipated to be short-term, mild, and not result in any abandonment or behaviors that would make the animals unavailable to Alaska Natives.
Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the mitigation and monitoring measures, NMFS has determined there will not be an unmitigable adverse impact on subsistence uses from Harvest's proposed activities.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
On April 25, 2018, NMFS Alaska Region issued a Biological Opinion to NMFS Office of Protected Resources which concluded Harvest's CIPL project is not likely to jeopardize the continued existence of Cook Inlet beluga whales, the WDPS Steller sea lions, or Mexico and Western North Pacific humpback whales DPSs or destroy or adversely modify critical habitat.
NMFS has issued an IHA to Harvest for the harassment of small numbers of eight marine mammal species incidental to pipeline installation activities in Cook Inlet, provided the previously mentioned mitigation, monitoring and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Fish and Wildlife Service (USFWS) to incidentally harass, by Level B harassment only, marine mammals during survey activities associated with the seabird and shorebird monitoring project at the Eastern Massachusetts National Wildlife Refuge Complex (Complex).
This authorization is effective from April 1, 2018 through March 31, 2019.
Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.
On December 5, 2017, NMFS received a request from the USFWS for an IHA to take marine mammals incidental to seabird and shorebird monitoring and research activities within the Complex. NMFS determined the application adequate and complete on December 18, 2017. The USFWS's request was for take of gray seals and harbor seals by Level B harassment only. Neither the USFWS nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to the USFWS for similar work (82 FR 12342, March 2, 2017). The USFWS complied with all the requirements (
The USFWS plans to conduct biological tasks for refuge purposes at Monomoy National Wildlife Refuge (NWR), Nantucket NWR, and Nomans Land Island NWR in Massachusetts. These three refuges are managed through the Complex as part of the NWR System of the USFWS. Complex staff census and monitor the presence and productivity of breeding and migrating shorebirds using the beaches of Monomoy, Nantucket, and Nomans Land Island NWRs from April 1-November 30, annually. Monitoring activities occur daily (on Monomoy and Nantucket) from April-August and are necessary to document the productivity (number of chicks fledged per pair) and population of protected shorebird and seabird species. Monomoy NWR also participates in several less frequent, but equally important, high priority conservation tasks to monitor for threatened and endangered species, including censusing northeastern beach tiger beetles (
A detailed description of the planned monitoring and research project is provided in the
A notice of NMFS's proposal to issue an IHA to the USFWS was published in the
A detailed description of the species likely to be affected by the research and monitoring project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
NMFS does not expect acoustic stimuli to result from human presence, and will therefore not have the potential to harass marine mammals, incidental to the conduct of the activities. One activity (cannon nets) may have an acoustic component, but we believe take from this activity can be avoided.
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (µPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 µPa for underwater, and the units for SPLs are dB re: 1 µPa. The commonly used reference pressure is 20 µPa for in air, and the units for SPLs are dB re: 20 µPa.
SPL is an instantaneous measurement expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the root mean square unless otherwise noted. SPL does not take into account the duration of a sound.
Activities that may have an acoustic component (
The effects of airborne noise and visual disturbance from monitoring and research activities for the USFWS's project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to USFWS research and monitoring surveys. NMFS expects that the presence of the USFWS personnel could disturb animals hauled out on beaches near research activities and that the animals may alter their behavior or attempt to move away from the USFWS personnel. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.
As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Behavior of seals is recorded on a three point scale (1 = alert reaction, not considered harassment; 2 = moving at least two body lengths, or change in direction >90 degrees; and 3 = flushing) (Table 2). Only levels 2 and 3 are considered take.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Take estimates are based on historical marine mammal observations at each site from previous USFWS survey activities.
The greatest disturbance to gray seals is expected to occur during the beach nesting bird breeding season from April to August. During April and May, when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying widths, between 30 m and 300 m. In narrower areas, all of the seals may be disturbed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact on the hauled out seals. USFWS staff conduct research and monitoring work outside of the season of highest gray seal numbers.
Here we describe how the information provided above is brought together to produce a quantitative take estimate. As discussed earlier, NMFS assumes that pinnipeds that move greater than two body lengths or make longer retreats over the beach, or if already moving, make a change of direction of greater than 90 degrees or flush into the water in response to the presence of surveyors, are behaviorally harassed, and thus subject to Level B taking. Take estimation is based on the number of seals observed in past research years that have been flushed during research activities.
This estimate is based on the number of seals observed in past research years that have been flushed during research activities. USFWS used their knowledge of the number of seals that use the haulouts near their research activities, and how many of these may be taken (Levels 2 and 3 on the disturbance scale). The majority of takes will occur on Monomoy NWR, which is one of the main haulouts for gray seals in the country. While the average number of gray seals present (in regards to Monomoy NWR) is less than observed counts (B. Josephson, NOAA, pers. comm.), not every hauled-out seal on the beach is impacted from each activity and not all seals are impacted from every activity event. This is especially true for Monomoy NWR because the seal haulout stretches across over four miles of beach. For example, the gray seal counts on Monomoy NWR are very high, but the beaches are very large, and most of the work takes place on the upper berm close to the dune (farther away from seals). During April and May when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying width, between 30 m and 300 m. In narrower areas, all of the seals may be flushed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact at all on the hauled out seals. Also, the amount of disturbance to seals may vary based on staff activities (
The take numbers for gray seals is thought to be conservative, and likely an overestimate. USFWS staff believe these estimates are realistic and do not expect to exceed the take numbers.
It is unclear exactly how many harbor seals occur at the Complex, therefore it is difficult to determine how many takes occur since harbor seals are mainly present during the off season when research and monitoring is limited. Harbor seals are not present at all gray seal haulouts but at haulouts where both species are present, USFWS staff estimate that gray seal haulouts during the summer are comprised of 5 percent or less harbor seals. Due to the lack of available data on presence, harbor seal takes are not broken down by activity or site. Rather, the number of harbor seal Level B takes requested was calculated by taking 5 percent of the total gray seal take estimate. USFWS is requesting 1,964 Level B takes of harbor seals incidental to research and monitoring activities.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Researchers, USFWS staff, and volunteers shall be properly informed about the MMPA take prohibitions, and shall educate the public on the importance of not disturbing marine mammals, when applicable. Staff at Nantucket NWR shall remain present on the beaches utilized by pinnipeds to prevent anthropogenic disturbance during times of high public use (late spring to early fall). Staff at Monomoy NWR shall also be present on beaches utilized by seals during the same time of year, and will inform the public to keep a distance from haulouts if an issue is noticed. Similar to the USFWS, the NPS also takes precautionary mitigation to help prevent seal take by the public. In August and on the weekends in September, staff and volunteers are present on the National Seashore beaches to share with the public the importance of preventing disturbance to seals by keeping people at a proper viewing distance of at least 50 yards.
The presence/proximity of seal haulouts and the loud sound created by the firing of cannon nets are taken into consideration when selecting trapping sites for the Red Knot Stopover Study. Trapping sites are decided based on the presence of red knots, the number of juveniles located within roosts, and the observation of birds with attached geolocators and flags. Sites are not trapped on if there is a strong possibility of disturbing seals (
The mitigation measures are designed to minimize the potential for behavioral harassment of pinnipeds hauled out near the survey sites. The research and monitoring surveys occur outside of the period of highest seal abundance at the Complex. While the survey timing overlaps with harbor seal pupping season, pupping is not known to occur at the Complex. Gray seal pupping has been documented at the Complex but generally occurs between December and February, when USFWS staff will not be conducting surveys. We believe the previously stated mitigation measures are practicable for the applicant to implement.
Based on our evaluation of the applicant's planned measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
The USFWS shall conduct marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and satisfy the monitoring requirements of the IHA. These include:
Monitoring seals as project activities are being conducted. Monitoring requirements in relation to the USFWS's activities include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the research activities, including location, date, and time of the event. In addition, the USFWS shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out. Behavior of seals shall be recorded on a three point scale: (1) Alert reaction, not considered harassment; (2) moving at least two body lengths, or change in direction greater than 90 degrees; (3) flushing (Table 2). USFWS staff shall also record and report all observations of sick, injured, or entangled marine mammals to the Greater Atlantic Regional Stranding Coordinator. Tagged or marked marine mammals shall also be recorded and reported to the appropriate research organization or Federal agency, as well as any rare or unusual species of marine mammal. Photographs shall be taken when possible. This information shall be incorporated into a report for NMFS at the end of the season. The USFWS shall also coordinate with any university, state, or Federal researchers to attain additional data or observations that may be useful for monitoring marine mammal usage at the activity sites.
If at any time injury, serious injury, or mortality of the species for which take
The USFWS shall submit a draft report to NMFS Office of Protected Resources no later than 90 days after the conclusion of research and monitoring activities in the 2018 season. The report shall include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. The USFWS shall submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the USFWS receives no comments from NMFS on the draft report, NMFS will consider the draft report to be the final report.
The report shall describe the operations conducted and sightings of marine mammals near the project. The report shall provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report shall provide:
1. A summary and table of the dates, times, and weather during all research activities;
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities;
3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the USFWS's activities; and
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The USFWS shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the USFWS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The USFWS may not resume their activities until notified by us via letter, email, or telephone.
In the event that the USFWS discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of injury or death is unknown and the death is relatively recent (
In the event that the USFWS discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Although the USFWS's survey activities may disturb a small number of marine mammals hauled out on beaches in the Complex, NMFS expects those impacts to occur to a localized group of animals. Marine mammals would likely become alert or, at most, flush into the water in reaction to the presence of the USFWS personnel during the activities. Much of the disturbance will be limited to a short duration, allowing marine mammals to reoccupy haulouts within a short amount of time. Thus, the action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the research activities.
The USFWS's activities would occur during the least sensitive time (
Moreover, the USFWS's mitigation measures regarding vessel approaches and procedures that attempt to minimize the potential to harass the seals would minimize the potential for flushing and large-scale movements. Thus, the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No injury (Level A harassment) or serious injury is anticipated or authorized;
• No mortality is anticipated or authorized;
• Impacts will occur to a localized group of animals;
• Disturbance will be limited to a short duration, allowing marine mammals to reoccupy haulouts within a short amount of time;
• Activities will occur during the least sensitive time (
• The USFWS's mitigation measures regarding visual and acoustic disturbance to hauled out pinnipeds would minimize the potential for flushing and large-scale movements, therefore the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low;
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
These incidental harassment take numbers represent less than three percent of the affected stocks of harbor seals.
Under the 2017 draft SARs, the take number of gray seals exceeds the stock abundance estimate in U.S. waters. However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities. The number of individual seals taken is also assumed to be less than the take estimate since these species show high philopatry (Waring
Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these determinations, NMFS has issued an IHA to the USFWS for the harassment of small numbers of gray and harbor seals incidental to seabird and shorebird research activities at the Eastern Massachusetts National Wildlife Refuge Complex, Massachusetts, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Issuance of an Incidental Harassment Authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the City of Astoria, Oregon, to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with a waterfront bridges replacement project in Astoria, Oregon.
This authorization is effective from October 1, 2018 through September 30, 2019.
Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.
On October 17, 2017, NMFS received a request from the City of Astoria (City), Oregon, for an IHA to take marine mammals incidental to replacement of bridges in downtown Astoria along the Columbia River. The application was considered adequate and complete on January 17, 2018. The City's request was for take of California sea lions (
The City of Astoria is planning to replace three bridges connecting city streets to waterfront piers in the Columbia River. The bridges are currently supported by deteriorated timber piles, which will be removed and replaced with steel piles. Bridge replacement is scheduled to begin with above-water work to remove the superstructures of the bridges in October 2018. In-water pile removal and installation will occur over 80 days between November 1, 2018 and February 28, 2019. Vibratory removal of 255 timber piles is expected to take 26 days while impact driving of 74 permanent steel piles and installation and subsequent removal of 10 temporary steel piles is expected to take 42 days. The remaining 12 days of in-water work will be used to remove concrete footings and a concrete retaining wall along the riverbank. Additional above-water construction to replace the bridge superstructures will occur in March and April 2019.
A detailed description of the planned bridge replacement project is provided in the
A notice of NMFS' proposal to issue an IHA was published in the
A detailed description of the species likely to be affected by the City's actions, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, are provided in the City's application and the
The effects of underwater noise from vibratory and impact pile driving and airborne noise from superstructure construction for the bridge replacement project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The
The main impact associated with the bridge replacement project would be exposure to temporarily elevated sound levels and the associated direct effects on marine mammals (
This section provides an estimate of the number of incidental takes authorized by this IHA, which informs both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, for individual marine mammals resulting from exposure to pile driving and construction activities. Based on the nature of the activity and
Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed.
The City's activities include the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) are applicable.
These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.
Although some piles may potentially be driven or removed in the dry due to tidal conditions, the City assumed all pile driving and removal will occur in water. The Level B harassment zone for in-water pile driving and removal is greater than the airborne Level B harassment zone so no airborne harassment is requested from pile driving or removal. All harassment due to pile driving and removal is assumed to be in-water.
Washington State Department of Transportation (WSDOT) monitored underwater noise during the removal of three 12-in timber dolphin piles at Port Townsend (Laughlin 2011a). Most of the timber piles to be removed in this project are 12-in but some may be up to 14-in. Average noise levels during vibratory removal of the wood piles were measured at 150 dB (rms) at 16 m from the source. The Practical Spreading Loss Model (15logR) was used to calculate the in-water Level B harassment zone during vibratory pile removal. Using a measurement of 150dB at 16 m, a 1,600 m Level B harassment zone (120 dB rms threshold) is expected for vibratory pile removal activities. Based on the contours of the shoreline and 1,600 m Level B harassment zone, a total of 4.5 square kilometers (km
Based on the most recent WSDOT data, the unmitigated sound pressure level associated with impact pile driving 24-in steel piles is 194 dB RMS at 10 m (WSDOT 2016). The contractor will be required to use a bubble curtain device during impact pile driving in compliance with the Federal Aid Highway Program (FAHP) Programmatic Biological Opinion, which will be utilized for ESA coverage for listed salmonids. Use of a bubble curtain device was assumed to decrease initial sound levels by 10 dB (Reyff, 2007), resulting in an initial sound pressure level (SPL) of 184 dB RMS at 10 m from the source. Using the values from WSDOT in the Practical Spreading Loss Model (15logR), the distance to the 160 dB behavioral disturbance threshold is calculated to be 398 m from the pile when a noise attenuation device is used (Table 3) as opposed to 1,848 m when a device is not used. The use of a noise attenuation device would shrink the distance at which noise exceeds the thresholds by approximately 80 percent, resulting in a significantly smaller area of potential impact. With a 398 m Level B harassment zone, a total of 0.40 km
When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or
The resulting small PTS isopleths assume an animal would remain stationary at that distance for the duration of the activity. Given the extended durations and due to the relatively small distances to PTS onset from each activity, and the mitigation measures (See “Mitigation”) proposed by the City, Level A take is neither expected nor authorized.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
In the
Aerial surveys of the East Mooring Basin in Astoria from 2011 to 2017 were used to calculate take of California sea lions. Maximum daily counts of California sea lions at the East Mooring Basin ranged from 3 in July 2016 to 3,834 in March 2016. In addition to ODFW aerial surveys, the City conducted opportunistic surveys of pinnipeds at the bridge sites in December 2017. A maximum of four California sea lions were observed in the water surrounding the bridges and piers. Additional California sea lions were heard vocalizing from the riverbanks under the bridges but the number of sea lions could not be determined. A conservative estimate of 16 California sea lions per day may be hauled out on the riverbanks and subject to harassment from above-water construction work.
Counts of Steller sea lions at the East Mooring Basin typically numbered in the single digits (B. Wright, pers. comm., March 2018). However, there are typically dozens of Steller sea lions at the Bonneville Dam and a few individuals at Willamette Falls. While the sea lions observed at Bonneville and Willamette are often the same individuals seen daily, these animals must transit past Astoria at some point in their travels from the Pacific to the
Numbers of harbor seals hauled out at Desdemona Sands have been reported to reach into the thousands (Profita 2015) but specific counts were unavailable. Without counts of harbor seals closer to the project site, the maximum average count of harbor seals at the South Jetty (57 seals; WDFW 2014) is used to calculate take.
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
In the
Although three species of pinniped occur in the vicinity of the project, they do not occur in equal numbers. Harbor seals and Steller sea lions do not haul-out near the project area and would only be harassed if they are transiting through the in-water Level B harassment zone (1,600 m for vibratory pile removal, 398 m for impact pile driving) at the time of pile driving. Because harbor seals and Steller sea lions do not have the potential to be harassed when hauled-out (in-air), they would only be harassed during the in-water work period (November through February).
California sea lions are the most commonly observed marine mammal in the area, and are known to haul out on the riverbanks and structures near the bridges. California sea lions may be harassed by underwater sound resulting from vibratory pile removal and impact pile driving (at the distances listed above) as well as airborne sound resulting from roadway and railway demolition and construction. As such, California sea lions may be subject to both in-water and in-air sources of harassment (October through April).
Using the highest sound source (concrete saw, 93 dB
While harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February), California sea lions may be harassed over the entire duration of the project (October through April). To determine the estimated exposure and take of harbor seals, the maximum average daily count of harbor seals at the South Jetty (57 seals) was multiplied by planned days of in-water work (80 days). Similarly, the maximum number of Steller sea lions observed at the Bonneville Dam (63; USACE 2017) and Willamette Falls (4; ODFW 2017) were multiplied by 80 days of in-water work to account for the maximum number of Steller sea lions likely to be in the Columbia River transiting past Astoria each day (Table 8).
Take of California sea lions was calculated by multiplying the average maximum daily count per month by the days of activity in each month (Table 9).
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
• All work below the highest measured tide shall be completed during the ODFW prescribed in-water work period of November 1 through February 28;
• All work shall be performed according to the requirements and conditions of the regulatory permits issued by federal, state, and local governments. Seasonal restrictions,
• The City shall have an inspector onsite during construction. The role of the inspector is to ensure compliance with the construction contract and other permits and regulations. The onsite inspector shall also perform marine mammal monitoring duties when protected species observers (PSOs) are not onsite (See Proposed Monitoring section);
• To ensure no contaminants enter the water, mobile heavy equipment shall be stored in a staging area at least 150 ft from the river or in an isolated hard zone. Equipment shall be inspected daily for fluid leaks before leaving the staging area. Stationary equipment operated within 150 ft of the river shall be maintained and protected to prevent leaks and spills. Erosion and sediment control BMPs shall be installed prior to initiating and construction activities; and
• The contractor shall be responsible for the preparation of a Pollution Control Plan (PCP). The PCP shall designate a professional on-call spill response team, and identify all contractor activities, hazardous substances used, and wastes generated. The PCP shall describe how hazardous substances and wastes will be stored, used, contained, monitored, disposed of, and documented.
• An air bubble system shall be employed during impact installation unless the piles are driven on dry areas;
• The contractor shall implement a soft-start procedure for impact pile driving activities. The objective of a soft-start is to provide a warning and/or give animals in close proximity to pile driving a chance to leave the area prior to an impact driver operating at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. A soft-start procedure shall be used at the beginning of each day that pile installation activities are conducted (
• Monitoring of marine mammals shall take place starting 30 minutes before construction begins until 30 minutes after construction ends (See
• Before beginning vibratory pile removal activities, the City shall establish a 15 m shutdown zone to protect marine mammals from Level A harassment;
• Before beginning impact pile driving activities, the City shall establish a 55 m shutdown zone to protect marine mammals from Level A harassment;
• Before beginning any in-water work (not including pile driving/removal) and any above-water construction activities, the City shall establish a 10 m Level A shutdown zone to prevent injury from physical interaction with construction equipment;
• The City shall shut down operations if a marine mammal is sighted within or approaching the shutdown zone until the marine mammal is sighted moving away from the shutdown zone, or if not sighted for 15 minutes after the shutdown;
• If a species for which authorization has been not been granted or for which authorization has been granted but the take limit has been met approaches or enters the Level B harassment zone, construction activity must cease and the City shall contact the Office of Protected Resources, NMFS;
• If the shutdown zone is obscured by poor lighting conditions, pile driving shall not be initiated until the entire zone is visible; and
• In-water work shall only commence once observers have declared the shutdown zone clear of marine mammals.
Based on our evaluation of the applicant's proposed measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance and to ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
The following marine mammal monitoring measures are included in the IHA.
(1) Protected Species Observers: The City shall employ two qualified PSOs to monitor the extent of the Region of Activity for marine mammals. Qualifications for marine mammal observers include:
a. Visual acuity in both eyes (correction is permissible) sufficient for discerning moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars is necessary to correctly identify the target;
b. Advanced education (at least some college level course work) in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is preferred but not required);
c. Experience or training in the field identification of marine mammals (cetaceans and pinnipeds);
d. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
e. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary;
f. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience); and
g. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined Region of Activity.
(2) Monitoring Schedule: PSOs shall be present onsite during IWW construction activities as follows:
a. During vibratory pile removal activities:
i. Two NMFS qualified observers shall be onsite the first day of removal at each bridge, one NMFS qualified observer shall be onsite every third day thereafter.
ii. One NMFS qualified observer shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance zone, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance zone.
iii. When PSOs are not onsite, the contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile removal activities to ensure that no species enter the 15 m shutdown zone.
b. During pile driving activities:
i. Two NMFS qualified observers shall be onsite the first two days of pile driving at each bridge, and every third day thereafter.
ii. One NMFS observer shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance and exclusion zones, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance and exclusion zones.
iii. When PSOs are not onsite, the contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile driving activities to ensure that no species enter the shutdown zone.
c. During in-water substructure demolition activities (not including pile driving/removal) and above-water superstructure demolition and construction activities:
i. One NMFS qualified observer shall be onsite once a week to monitor the shutdown zone within 10 m of the construction site.
ii. When PSO is not on-site, the contractor's inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all construction activities to ensure that no species enter the 10 m shutdown zone during superstructure demolition and construction activities.
(3) Monitoring Protocols: PSOs shall monitor marine mammal presence within the shutdown zone and Level B harassment zones per the following protocols:
a. A range finder or hand-held global positioning system device shall be used by PSOs to ensure that the defined shutdown zones are fully monitored and the Level B ZOIs monitored to the best extent practicable.
b. A 30-minute pre-construction marine mammal monitoring period shall be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring period shall be required after the last pile driving or pile removal of the day. If the contractor's personnel take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring shall be required before the next start-up of pile driving or pile removal.
c. If marine mammals are observed, the following information shall be documented:
i. Species of observed marine mammals;
ii. Number of observed marine mammal individuals;
iii. Life stages of marine mammals observed;
iv. Behavioral habits, including feeding, of observed marine mammals, in both presence and absence of activities;
v. Location within the Region of Activity; and
vi. Animals' reaction (if any) to pile driving activities or other construction-related stressors including:
1. Impacts to the long-term fitness of the individual animal, if any
2. Long-term impacts to the population, species, or stock (
vii. Overall effectiveness of mitigation measures
d. During vibratory pule removal and impact driving, qualified PSOs shall monitor the Level B harassment zones from the best practicable land-based vantage point to observe the downstream and upstream portions of the disturbance zone according to the above schedule.
e. PSOs shall use binoculars to monitor the Level B harassment zone.
f. PSOs shall keep a running tally of takes of each marine mammal species authorized by extrapolating the observed takes to the days when monitoring did not occur. The City shall notify the Office of Protected Resources, NMFS if takes of any species come with five percent of the take limits established in the IHA.
(1) The City shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.
(2) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.
(3) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by the NMFS authorization, such as an injury, serious injury, or mortality), the City shall immediately cease all operations and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, and the West Coast Regional Stranding Coordinator, (206) 526-4747. The report must include the following information:
a. Time, date, and location (latitude/longitude) of the incident;
b. Description of the incident;
c. Status of all sound source use in the 24 hours preceding the incident;
d. Environmental conditions (
e. Description of marine mammal observations in the 24 hours preceding the incident;
f. Species identification or description of the animal(s) involved, including life stage and the fate of the animal(s); and
g. Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the City to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Activities may not be resumed until notified by NMFS via letter, email, or telephone.
(4) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the cause of injury or death is unknown and the death is relatively recent (
(5) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies to all three species authorized to be taken by this project (California sea lion, Steller sea lion, and harbor seal), given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.
Authorized takes are expected to be limited to short-term Level B harassment. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (
Impacts to pinnipeds are expected to be minor and temporary. The area likely impacted by the construction is relatively small compared to the available habitat in the river. Pinnipeds in the vicinity are likely habituated to high levels of human activity as the Astoria waterfront is a highly developed area. Exposures to elevated sound levels produced during pile driving and removal activities may cause behavioral responses by an animal, but they are expected to be minor and temporary. Animals may become alert, avoid the area, leave the area, or show no observable response. Given the short daily duration of noise-generating activities and the limited season of in-water work, any harassment would be temporary. For California and Steller sea lions, sub-adult and adult males could be harassed during construction activities. For harbor seals, sub-adult and adult males and/or females could be harassed during construction activities. The project occurs outside of known pupping periods for all species, and there are no known rookeries within the region of activity. Therefore, no pups or breeding adults are expected to be affected by the project activities.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No injury is anticipated or authorized;
• No serious injury or mortality is anticipated or authorized;
• In-water work is limited to a four-month period, and likely only 80 days within that time;
• No permanent effects to marine mammal habitat or prey is expected;
• Marine mammals are currently exposed to high human use area and are likely habituated to disturbance;
• Any impacts from the project are expected to result in short-term, mild behavioral reactions such as avoidance or flushing;
• There are no known important feeding, pupping, or other areas of biological significance in the project area; and
• The project affects only a small percentage of each stock of marine mammal affected, and only in a limited portion of their overall range.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The number of instances of take of each stock proposed to be taken as a result of this project is less than 20 percent of the total stock (Table 10). Additionally, the number of takes requested is based on the number of estimated exposures, not necessarily the number of individuals exposed. Pinnipeds may remain in the general area of the project sites and the same individuals may be harassed multiple times over multiple days, rather than numerous individuals harassed once. Therefore, the percent of stock may be less since the numbers represented in Table 10 assume distinct individuals.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these determinations, NMFS has issued an IHA to the City for the harassment of small numbers of California sea lions, Steller sea lions, and Pacific harbor seals incidental to construction activities related to bridge replacements in Astoria, Oregon, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the St. George Reef Lighthouse Preservation Society (Society) to incidentally harass, by Level B harassment only, marine mammals during aircraft operations, lighthouse renovations, and tour operations associated with preservation of the St. George Reef Lighthouse Station on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean.
This authorization is effective from February 19, 2018 through February 18, 2019.
Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On October 18, 2017, NMFS received a request from the Society for an IHA to take marine mammals incidental to restoration, maintenance, and tour operations at St. George Reef Lighthouse (Station) located on Northwest Seal Rock (NWSR) offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application adequate and complete on January 17, 2018. The Society's request was for take of California sea lions (
NMFS has previously issued seven IHA's to the Society for similar work between 2010 and 2017 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR 71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440, February 23, 2016; and 82 FR 11005, February 17, 2017). The Society complied with all the requirements (
The Station, listed in the National Park Service's National Register of Historic Places, is located on NWSR offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse, to conduct tours, and to conduct annual and emergency maintenance on the Station's optical light system.
The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The Society's activity will occur on a monthly basis over one weekend, November through April. The following specific aspects of the activities will likely result in the take of marine mammals: Acoustic and visual stimuli from (1) helicopter landings/takeoffs; (2) noise generated during restoration activities (
A detailed description of the planned activities is provided in the
A notice of NMFS's proposal to issue an IHA was published in the
A detailed description of the species likely to be affected by the planned activities, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effect of stressors associated with the specified activities (
NMFS described potential impacts to marine mammal habitat in detail in our
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS's consideration of
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes will be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to aircraft operations and lighthouse maintenance activities. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.
NMFS assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking (Table 2).
Below we describe how the take is estimated.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
For the 2010 season, the Society reported that no Steller sea lions were present in the vicinity of NWSR during restoration activities (SGRLPS 2010). Based on the monitoring report for the 2011 season, the maximum numbers of Steller sea lions present during the April and November 2011, work sessions were 2 and 155 animals, respectively (SGRLPS 2012). During the 2012 season, the Society did not observe any Steller sea lions present on NWSR during restoration activities. The Society did not conduct any operations for the 2013-2014, 2014-2015, and 2015-2016 seasons. The Society reported no Steller sea lions observed in the 2016-2017 and 2017-2018 work seasons (T. McNamara, pers. comm., 2018).
Based on the monitoring report for the 2011 season, the maximum numbers of California sea lions present during the April and November, 2011 work sessions were 2 and 160 animals, respectively (SGRLPS 2012). There were no California sea lions present during the March, 2012 work session (SGRLPS 2012). The Society reported 16 California sea lions observed in March 2017 and no California sea lions present in April 2017. The Society also reported that 16 California sea lions were observed in November 2017 (Terry McNamara, pers. comm., 2018).
For the 2010, 2011, and 2012 work seasons, the Society did not observe any northern fur seals present on NWSR during restoration activities (SGRLPS 2010; 2011; 2012). No northern fur seals were observed during the 2016-2017 and 2017-2018 work seasons (Terry McNamara, pers. comm., 2018).
For the 2010 and 2011 seasons, the Society did not observe any Pacific harbor seals present on NWSR during restoration activities (SGRLPS 2010; 2011). During the 2012 season, the Society reported sighting a total of two harbor seals present on NWSR (SGRLPS 2012). No harbor seals were observed during the 2016-2017 and 2017-2018 work seasons (Terry McNamara, pers. comm., 2018).
Here we describe how the information provided above is brought together to produce a quantitative take estimate.
Based on the Society's previous monitoring reports, NMFS estimates that approximately 2,880 California sea lions (calculated by multiplying the maximum single-day count of California sea lions present on NWSR (160) by 18 days of the restoration, maintenance, and touring activities), 2,790 Steller sea lions (calculated by multiplying the maximum single-day count of Steller sea lions that could be present (155) by 18 days of the restoration, maintenance, and touring activities), 36 Pacific harbor seals (calculated by multiplying the maximum single-day count of harbor seals present on NWSR (2) by 18 days), and 18 Northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 18 days) could be potentially affected by Level B behavioral harassment over the course of the IHA (Table 3). NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 75 hours of aircraft operations over the course of the 18 days of activity.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
NMFS has determined that the above mentioned mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance and to ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS will contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
As part of its IHA application, the Society shall sponsor marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the IHA. These requirements include:
• A NMFS approved, experienced biologist will be present on the first flight of each day of the activity. This observer must be able to identify all species of pinnipeds expected to use the island, and qualified to determine age and sex classes when viewing conditions allow. The observer shall record data including species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the activities, including location, date, and time of the event. In addition, the Society shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out; and
• Aerial photographic surveys to provide an accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society shall complete aerial photo coverage from the same helicopter used to transport the Society's personnel to the island during restoration trips. The Society shall take photographs of all marine mammals hauled out on the island from an altitude greater than 300 m (984 ft) by a skilled photographer, on the first flight of each day of activities. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see
As detailed above, the monitoring requirements in relation to the Society's activities include species counts, numbers of observed disturbances, and
By completing the requirements mentioned above, the Society will add to the knowledge of pinnipeds in the action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, enabling appropriate personnel to conduct future follow-up research; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
If at any time injury, serious injury, or mortality of the species for which take is authorized occurs, or if take of any other kind of marine mammal occurs, and such action is believed to be a result of the Society's activities, the Society shall suspend restoration and tour activities and contact NMFS immediately. NMFS will then determine how best to proceed to ensure another injury or death does not occur and to guarantee the applicant remains in compliance with the MMPA.
Monitoring requirements in relation to the Society's restoration activities shall include observations made by the Society. Information recorded shall include species counts (with age/sex classes when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the helicopter operations, including relative location, date, and time of the event. For consistency, any reactions by pinnipeds to researchers shall be recorded according to the three-point scale shown in Table 2. Note that only observations of disturbance Levels 2 and 3 should be recorded as takes.
A draft final report must be submitted to NMFS Office of Protected Resources within 90 days of conclusion of restoration activities in April. The report must include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. The Society must submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the Society receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.
The report must describe the operations conducted and sightings of marine mammals near the project. The report must provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report must provide:
1. A summary and table of the dates, times, and weather during all activities.
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.
3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available)
The Society shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Society shall not resume their activities until notified by us via letter, email, or telephone.
In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Although the Society's survey activities may disturb a small number of marine mammals hauled out on NWSR, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (
With the exception of emergency repairs, which are unlikely to occur, the Society's activities occur during the least sensitive time (
Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious, injury, or mortality is low.
Any noise attributed to the Society's helicopter operations on NWSR will be short-term (approximately six minutes per trip). We expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter lands and takes off from the station, sound levels are below the thresholds for airborne pinniped disturbance at the landing pad which is 15 m (48 ft) above the rocks. Additionally, the pinnipeds will likely flush before the helicopter approached NWSR, further increasing the distance between the pinnipeds and the received sound levels on NWSR.
If pinnipeds are present on NWSR, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of the Station into the sea due to the noise and appearance of a helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on NWSR will depart the rock and slowly move into the water upon initial helicopter approaches. The movement to the water will likely be gradual due to the required controlled helicopter approaches (see
Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrivals/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or Northern fur seals.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• The impacts to animals present will be of limited duration (
• The impacts will be of limited intensity (
• No injury or mortality is anticipated or authorized.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
As mentioned previously, NMFS estimates that the Society's activities could potentially affect, by Level B harassment only, four species of marine mammals under our jurisdiction. For each species, these estimates are small numbers (less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than seven percent of the stock of Steller sea lions) relative to the population size (Table 3). However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities.
Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
As a result of these determinations, we have issued an IHA to the Society for conducting the described activities related to lighthouse station restoration, maintenance, and tours from February 19, 2018 through February 18, 2019 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of public meeting.
The National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce, will host a symposium on June 12, 2018, focusing on the development and implementation of national spectrum policies to support continuing U.S. leadership and innovation in wireless telecommunications and other spectrum-dependent technologies.
The symposium will be held on June 12, 2018, from 8:30 a.m. to 11:00 a.m., Eastern Daylight Time (EDT).
The symposium will be held at The National Press Club, 529 14th Street NW, 13th Floor, Washington, DC 20045.
John Alden, Telecommunications Specialist, Office of Spectrum Management, NTIA, at (202) 482-8046 or
NTIA serves as the President's principal adviser on telecommunications policies pertaining to the Nation's economic and technological advancement and establishes policies concerning use of the radio spectrum by federal agencies. NTIA is hosting a symposium that will focus on developing, implementing and maintaining spectrum management policies that enable the United States to strengthen its global leadership role in the introduction of wireless telecommunications technology, services, and innovation, while also supporting the expansion of existing technologies and the Nation's homeland security, national defense, and other critical government missions.
The keynote address will be delivered by David J. Redl, Assistant Secretary of Commerce for Communications and Information and NTIA Administrator. Additional speakers from Congress and the Executive Office of the President have been invited. Policy panel sessions are expected to include participants from the Federal Communications Commission, other federal agencies, and private sector and other non-government organizations. Prior to the event, NTIA will post a detailed agenda on its website at:
The symposium is open to the public and members of the press. Pre-registration is requested due to limited seating capacity. Registration will be accepted on a first come, first served basis. NTIA asks registrants to provide their first and last names, email addresses, and their organization (optional) for both registration purposes and to receive updates on the symposium. Registration information, the agenda, and meeting updates, if any, and other relevant documents will be available on NTIA's website at
The meeting will be physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, should notify Mr. Alden at the contact information listed above at least ten (10) business days before the event.
Department of the Army Corps of Engineers, DoD.
Information collection notice.
In compliance with s the
Consideration will be given to all comments received by July 2, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314-1000, Attn: CECW-CO-R, or call the Department of the Army Reports clearance officer at (703) 428-6440.
The Corps of Engineers is required by three federal laws, passed by Congress, to regulate construction-related activities in waters of the United States. This is accomplished through the review of applications for permits to do this work. There are five types of permits that may be used. The ENG 4345 form used for standard permit applications has been in use since the 1970s and the request to extend the expiration date is being provided in this notice. In addition, the Corps is now proposing a form specific to their nationwide permit program. Nationwide Permits (NWPs) are one type of permit authorization that involves a streamlined review process to ensure that no more than minimal individual or cumulative adverse environmental effect result from construction of the proposed activity. NWPs authorize discharges of dredged or fill material into waters of the United States pursuant to Section 404 of the Clean Water Act and structures or work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899.
This form is optional, but allows the Corps to collect the information needed to evaluate the applicants' proposal to determine eligibility for authorization. The Corps will provide outreach materials to guide the public in which of the forms should be used and how using the form and providing the information requested can reduce the time it takes to review whether an application is complete.
Department of Education (ED), National Center for Education Statistics (NCES)
Notice
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before July 2, 2018.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela, 202-245-7377.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an
Bonneville Power Administration (BPA or Bonneville), Department of Energy (DOE).
Notice of proposed revised rules of procedure.
Bonneville is proposing to revise the rules of procedure that govern its hearings conducted pursuant to section 7(i) of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. 839e(i).
Anyone wishing to comment on the proposed revised rules of procedure must file such comments no later than 5:00 p.m. PDT on June 4, 2018.
Comments should be submitted through Bonneville's website at
Heidi Helwig, DKE-7, BPA Communications, Bonneville Power Administration, P.O. Box 3621, Portland, Oregon 97208; by phone toll free at 1-800-622-4520; or by email to
The Northwest Power Act provides that Bonneville must establish and periodically review and revise its rates so that they recover, in accordance with sound business principles, the costs associated with the acquisition, conservation, and transmission of electric power, including amortization of the Federal investment in the Federal Columbia River Power System over a reasonable number of years, and Bonneville's other costs and expenses. 16 U.S.C. 839e(a)(1). Section 7(i) of the Northwest Power Act, 16 U.S.C. 839e(i), requires that Bonneville's rates be established according to certain procedures, including notice of the proposed rates; one or more hearings conducted as expeditiously as practicable by a hearing officer; opportunity for both oral presentation and written submission of views, data, questions, and arguments related to the proposed rates; and a decision by the Administrator based on the record.
In addition, section 212(i)(2)(A) of the Federal Power Act, 16 U.S.C. 824k(i)(2)(A), provides in part that the Administrator may conduct a section 7(i) hearing to determine the terms and conditions for transmission service on the Federal Columbia River Transmission System under certain circumstances. Such a hearing must adhere to the procedural requirements of paragraphs (1) through (3) of section 7(i) of the Northwest Power Act, except that the hearing officer makes a recommended decision to the Administrator before the Administrator's final decision.
Bonneville last revised its procedures to govern hearings under section 7(i) of the Northwest Power Act in 1986.
In order to encourage public involvement and assist Bonneville in the development of the proposed revised procedures, Bonneville met with customers and other interested parties on February 13, 2018, in Portland, Oregon, to discuss how the current rules might be revised. Bonneville also solicited written comments over a two-week period ending February 28, 2018. After reviewing the comments, Bonneville incorporated a number of revisions to its proposed rules.
Although rules of agency procedure are exempt from notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), Bonneville is nevertheless publishing notice of the proposed revisions to its procedural rules in the
The statements below provide general summaries of some of the proposed revisions in each section of the rules.
• The proposed revisions specify that the rules apply to wholesale power and transmission rate case proceedings and section 212 proceedings.
• A provision has been added to clarify that the rules do not establish substantive standards for the Administrator's final decisions.
• Various definitions were added or revised in this section.
• A provision has been added to clarify that parties should contact the hearing clerk with procedural questions rather than Bonneville counsel or rates staff.
• A provision has been added to recognize that the hearing officer can establish special rules of practice that are consistent with the proposed rules.
• A provision has been added to require the
• A provision has been added to require the
• A provision has been added to require the
• Proposed revisions more clearly prohibit
• A provision has been added to clarify that communications between the hearing officer and the hearing clerk (or other staff providing administrative support to the hearing officer) are not
• The procedures for addressing
• The procedures for intervention were modified to provide prospective intervenors access to the secure website before filing a petition to intervene. Once access has been granted, a petition to intervene can be filed through the secure website.
• A provision has been added to encourage parties with similar interests to establish joint parties and describes how to form joint parties.
• A provision has been added to describe the manner in which members of the general public, who are not parties, can submit comments.
• A provision has been added to recognize that the hearing officer will hold a prehearing conference to adopt a procedural schedule and any special rules of practice that are consistent with the proposed rules.
• Provisions have been added to require that litigants file all documents through the secure website and that such filings will constitute service on all parties.
• Provisions were added to specify the types of pleadings, establish format and content requirements, and clarify rights and procedures for filing responsive pleadings.
• Procedures have been added to govern interlocutory appeal of an order of the hearing officer to the Administrator.
• The scope of permissible data requests has been revised. Data requests must seek information that is relevant to an issue in the proceeding and proportional to the needs of the case according to a variety of factors listed in the rule.
• Provisions have been added to require litigants to be reasonable in the number and breadth of data requests.
• Provisions have been added to govern the treatment of information that is privileged, commercially sensitive, or pertains to critical electric infrastructure.
• Provisions have been added to govern the process for filing and responding to motions to compel. In deciding a motion to compel, the hearing officer will consider a variety of factors, including the potential impact of the decision on completing the proceeding according to the procedural schedule.
• The proposed revisions establish format and content requirements for prefiled testimony and exhibits and specify that litigants will have the opportunity to rebut the direct testimony of other litigants.
• The proposed revisions clarify that materials incorporated into prefiled testimony by reference or by providing a link to a website will not be considered part of the record even if the prefiled testimony is accepted into the record. Any materials that a litigant wants included in the record should be submitted as an exhibit and subsequently moved in to evidence.
• The proposed revisions specify that prefiled testimony and exhibits are not part of the record until they have been admitted into evidence by the hearing officer and provide procedures for moving those materials into the record.
• The proposed revisions specify the procedures for filing cross-examination
• The proposed revisions clarify that witnesses are not required to perform calculations on the stand or answer questions about calculations that they did not perform.
• Friendly cross-examination is prohibited, except that counsel for a litigant with a position that is not adverse to the witnesses may seek leave from the hearing officer to ask limited follow-up questions of a witness after any redirect testimony. Any follow-up questions are limited to the scope of the cross-examination.
• The proposed revisions broadly define cross-examination exhibits and require litigants to file all cross-examination exhibits for a witness two business days before the witness is scheduled to appear.
• Litigants must provide physical copies of cross-examination exhibits at the beginning of cross-examination.
• A provision has been added to provide that the hearing officer may admit into evidence stipulations on any issue of fact.
• A provision has been added to recognize that the hearing officer or the Administrator may take official notice of certain matters, and provides guidelines for litigants requesting official notice.
• The proposed revisions include a standard outline and format for briefs in order to help Bonneville identify parties' specific issues and recommendations and prepare the records of decision in a more orderly manner.
• The briefing provisions specify that Bonneville may file briefs in section 212 proceedings and that the Administrator may allow additional briefing opportunities in such proceedings.
• Provisions have been added to permit oral argument and establish procedures for providing notice of intent to present oral argument.
• A provision has been added to provide guidelines for telephone conferences.
• A provision has been added to address the hearing officer's recommended decision in section 212 proceedings.
• A provision has been added to note that the Administrator will issue a Final Record of Decision in all ratemaking and section 212 proceedings.
• Expedited proceedings are defined as extending 90-120 days from the date the
(a) General rule of applicability. These rules apply to all proceedings conducted under the procedural requirements contained in Section 7(i) of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. 839e(i), for the purpose of:
(1) Revising or establishing rates under Section 7 of the Northwest Power Act;
(2) revising or establishing terms and conditions of general applicability for transmission service on the Federal Columbia River Transmission System pursuant to Section 212(i)(2)(A) of the Federal Power Act, 16 U.S.C. 824k(i)(2)(A); or
(3) addressing other matters the Administrator determines are appropriate for such rules.
(b) Exceptions to general rule of applicability. These rules do not apply to:
(1) Proceedings regarding implementation of rates or formulae previously adopted by the Administrator and approved, on either an interim or final basis, by the Federal Energy Regulatory Commission;
(2) Proceedings required by statute or by contract, in which the Administrator does not propose either (a) a new rate, formula rate, discount, credit, surcharge or other rate change, or (b) any new terms and conditions of transmission service or revisions thereto; or
(3) Contract negotiations unless otherwise provided by paragraph (a) of this section.
(c) Effective date. These rules will become effective 30 days after publication of the final rules in the
(d) Scope of rules. These rules are intended to establish procedures and
(e) Waiver. To the extent permitted by law, the Administrator may waive any section of these rules or prescribe any alternative procedures the Administrator determines to be appropriate.
(f) Computation of time. Except as otherwise required by law, any period of time specified in these rules or by order of the Hearing Officer is computed to exclude the day of the event from which the time period begins to run and any day that is not a Business Day. The last day of any time period is included in the time period, unless it is not a Business Day. If the last day of any time period is not a Business Day, the period does not end until the close of business on the next Business Day.
Capitalized terms not otherwise defined in these rules have the meaning specified below.
(a) “Administrator” means the BPA Administrator or the acting Administrator.
(b) “Bonneville” or “BPA” means the Bonneville Power Administration.
(c) “Business Day” means any day that is not a Saturday, Sunday, day on which Bonneville closes and does not reopen prior to its official close of business, or legal public holiday as designated in 5 U.S.C. 6103.
(d) “Commercially Sensitive Information” means information in the possession of a Litigant (including its officers, employees, agents, or experts) that is not otherwise publicly available and has economic value or could cause economic harm if disclosed, including but not limited to information that is copyrighted, licensed, proprietary, subject to a confidentiality obligation, or contains trade secrets or similar information that could provide a risk of competitive disadvantage or other business injury.
(e) “Counsel” means any member in good standing of the bar of the highest court of any state, commonwealth, possession, territory, or the District of Columbia. Counsel appearing in a proceeding must conform to the standards of ethical conduct required of practitioners in the Federal courts of the United States.
(f) “Critical Energy/Electric Infrastructure Information” or “CEII” means information related to (1) a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters; or (2) specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that (i) relates details about the production, generation, transportation, transmission, or distribution of energy; (ii) could be useful to a person in planning an attack on critical infrastructure; (iii) is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and (iv) does not simply give the general location of the critical infrastructure.
(g) “Cross-examination Exhibit” means any document or other material to be presented to a witness for any purpose on cross-examination.
(h) “Data Request(s)” means a written request for information in any form, including documents, or an admission submitted in accordance with Section 1010.12(b).
(i) “Draft Record of Decision” means the document that sets forth the Administrator's proposed decision on each issue in the pending proceeding.
(j) “
(k) “Evidence” means any material admitted into the Record by the Hearing Officer.
(l) “
(m) “Final Record of Decision” means the document that sets forth the Administrator's final decision on each issue in the pending proceeding.
(n) “Hearing Clerk” means the individual(s) assisting the Hearing Officer as designated in the
(o) “Hearing Officer” means the official designated by the Administrator to conduct a proceeding under these rules.
(p) “Hearing Officer's Recommended Decision” means the document that sets forth the Hearing Officer's recommendation to the Administrator on each issue in a proceeding pursuant to Section 1010.1(a)(2).
(q) “Litigant(s)” means Bonneville and all Parties to the pending proceeding.
(r) “Participant” means any Person who is not a Party and who submits oral or written comments pursuant to Section 1010.8.
(s) “Party” means any Person whose intervention is effective under Section 1010.6. A Party may be represented by its Counsel or other qualified representative, provided that such representative conforms to the ethical standards prescribed in Section 1010.2(e).
(t) “Person” means an individual; partnership; corporation; limited liability company; association; an organized group of persons; municipality, including a city, county, or any other political subdivision of a state; state, including any agency, department, or instrumentality of a state; a province, including any agency, department, or instrumentality of a province; the United States or other nation, or any officer, or agent of any of the foregoing acting in the course of his or her employment or agency.
(u) “Prefiled Testimony and Exhibits” means any testimony, exhibits, studies, documentation, or other materials in a Litigant's direct or rebuttal case submitted in accordance with the procedural schedule. Prefiled Testimony and Exhibits do not include pleadings, briefs, or Cross-examination Exhibits.
(v) “Rate” means the monetary charge, discount, credit, surcharge, pricing formula, or pricing algorithm for any electric power or transmission service provided by Bonneville, including charges for capacity and energy. The term excludes, but such exclusions are not limited to, transmission line losses, leasing fees or charges from Bonneville for operation and maintenance of customer-owned facilities. A rate may be set forth in a contract; however, other portions of a contract do not thereby become part of the rate for purposes of these rules.
(w) “Record” means (1) Evidence; (2) transcripts, notices, briefs, pleadings, and orders from the proceeding; (3) comments submitted by Participants; (4) the Hearing Officer's Recommended Decision, if applicable; (5) the Draft Record of Decision, if any; and (6) such other materials and information as may have been submitted to, or developed by, the Administrator.
(x) “Secure website” means the website established and maintained by Bonneville for proceedings under these rules.
(a) The Hearing Officer is responsible for conducting the proceeding, managing the development of the Record, and resolving procedural matters. In addition, in a proceeding pursuant to Section 1010.1(a)(2), the Hearing Officer is responsible for
(b) The Hearing Officer shall not expand the scope of the proceeding beyond the scope established in the
(c) The Hearing Officer may, in his or her discretion, issue special rules of practice to implement these rules, provided that such special rules are consistent with these rules.
(d) Except as provided in Section 1010.12(c), the Hearing Officer may issue protective orders or make other arrangements for the review of information requested in a Data Request.
(e) The Hearing Officer may reject or exclude all or part of any document or materials not submitted in accordance with these rules or order a Litigant to conform such document or materials to the requirements of these rules.
(f) Litigants shall direct communications regarding procedural issues to the Hearing Clerk. The Hearing Clerk's contact information will be provided in the
(a) Any proceeding conducted under these rules will be initiated on the day a notice of Bonneville's initial proposal is published in the
(b) The
(1) State, as applicable, the proposed rates and/or the proposed new or revised terms and conditions of transmission service, a statement of the justification and reasons supporting such proposals, and any additional information required by law;
(2) State the procedures for requesting access to the Secure website for purposes of filing petitions to intervene and the deadline for filing such petitions;
(3) State the deadline and the procedures for Participants to submit comments;
(4) If applicable, state that the proceeding is an expedited proceeding under Section 1010.22 and explain the reasons for the expedited proceeding;
(5) State the date on which the Hearing Officer will conduct the prehearing conference;
(6) In a proceeding pursuant to Section 1010.1(a)(2), state the date on which the Hearing Officer will issue the Hearing Officer's Recommended Decision, which date shall be used by the Hearing Officer in establishing the procedural schedule for the proceeding;
(7) State the date(s) on which the Administrator expects to issue the Draft Record of Decision, if any, and the Final Record of Decision, which date(s) shall be used by the Hearing Officer in establishing the procedural schedule for the proceeding;
(8) Define the scope of the proceeding and specify:
(i) Issues that are not within the scope of the proceeding;
(ii) That only Bonneville may prescribe or revise the scope of the proceeding;
(iii) That Bonneville may revise the scope of the proceeding to include new issues that arise as a result of circumstances or events occurring outside the proceeding that are substantially related to the rates or terms and conditions under consideration in the proceeding; and
(iv) That, if Bonneville revises the scope of the proceeding to include new issues, Bonneville will provide public notice, a reasonable opportunity to intervene, testimony or other information regarding such issues, and an opportunity for Parties to respond to Bonneville's testimony or other information.
(9) Provide other information that is pertinent to the proceeding.
(a)
(b)
(1) Relating to matters of procedure only;
(2) If otherwise authorized by law or other portions of these rules;
(3) From or to the Federal Energy Regulatory Commission;
(4) Which all Litigants agree may be made on an
(5) Relating to communications in the ordinary course of business, information required to be exchanged pursuant to contracts, or information that Bonneville provides in response to a Freedom of Information Act request;
(6) Relating to a request for supplemental information necessary for an understanding of factual materials contained in documents filed in a proceeding under these rules and which is made after coordination with Counsel for Bonneville;
(7) Relating to a topic that is only secondarily the object of a proceeding, for which Bonneville is statutorily responsible under provisions other than Northwest Power Act Section 7, or which is eventually decided other than through a Section 7(i) proceeding; or
(8) Between the Hearing Officer and Hearing Clerk or other staff supporting the Hearing Officer.
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(c) Time.
(1) Petitions must be filed by the deadline specified in the
(2) Late interventions are strongly disfavored. Granting an untimely petition to intervene must not be a basis for delaying or deferring any procedural schedule. A late intervenor must accept the Record developed prior to its intervention. In acting on an untimely petition, the Hearing Officer shall consider whether:
(i) The petitioner has a good reason for filing out of time;
(ii) Any disruption of the proceeding might result from granting a late intervention;
(iii) The petitioner's interest is adequately represented by existing Parties; and
(iv) Any prejudice to, or extra burdens on, existing Parties might result from permitting the intervention.
(d)
(a) Parties with common interests or positions in a pending proceeding are encouraged to form a Joint Party for purposes of filing pleadings, Prefiled Testimony and Exhibits, and briefs and for conducting cross-examination. Such grouping will be without derogation to the right of any Party to represent a separate point of view where its position differs from that of the Joint Party in which it is participating.
(b) To form a Joint Party, one member of the proposed Joint Party must email a list of proposed Joint Party members to the Hearing Clerk and to Counsel for each proposed member and represent that all of the named members are in concurrence with the formation of the Joint Party. The Hearing Clerk will form the Joint Party, assign a Joint Party code, and email notice to all Litigants, stating the Joint Party code and listing the Joint Party members.
(a) Any Participant may submit written comments for the Record or present oral comments in legislative-style hearings, if any, for the purpose of receiving such comments. The
(b) The Hearing Officer may allow reasonable questioning of a Participant by Counsel for any Litigant if the Participant presents oral comments at a legislative-style hearing.
(c) Participants do not have the rights of Parties. The procedures in Sections 1010.6, 1010.7, and 1010.9 through 1010.19 are not available to Participants.
(d) Parties may not submit Participant comments. Employees of organizations that have intervened may submit Participant comments as private individuals (that is, not speaking for their organizations) but may not use the comment procedures to further promote specific issues raised by their intervenor organizations.
A prehearing conference will be held on the date specified in the
(a) Unless otherwise specified, a Litigant shall make any filing provided for by these rules with the Hearing Officer through the Secure website. Such filing will constitute service on all Litigants. If the Secure website is unavailable for filing, a Litigant shall serve the document to be filed on the Hearing Officer, Hearing Clerk, and all Litigants through email and thereafter file the document on the Secure website as soon as practicable when the Secure website becomes available.
(b) In addition to Parties whose petitions to intervene are granted by the Hearing Officer, the Administrator may designate additional Persons upon whom service will be made.
(c) Except as provided in paragraph (b) of this section, service will not be made upon Participants.
(d) Submission of Data Requests and responses to such requests is governed by Section 1010.12(b), except that paragraph (e) of this section governs the timing of such requests and responses.
(e) All filings provided for by these rules must be made, and Data Requests and responses must be submitted, on Business Days no later than 4:30 p.m., Pacific Time, in accordance with the procedural schedule adopted by the Hearing Officer. Filings made outside of these times are deemed to have been filed on the next Business Day and, if such day is after an applicable deadline, may be rejected by the Hearing Officer.
(a)
(b)
(c)
(d)
(e)
(f)
(1) The order terminates a Party's participation in the proceeding and the Party's inability to participate thereafter could cause it substantial and irreparable harm;
(2) Review is necessary to prevent substantial prejudice to a Litigant; or
(3) Review could save the Administrator, Bonneville, and the Parties substantial effort or expense, or some other factor is present that outweighs the costs in time and delay of exercising review.
The Administrator may accept or reject the Hearing Officer's certification of a ruling at his or her discretion. An answer to a motion for interlocutory appeal must be filed in accordance with paragraph (d) of this section.
(a)
(1) The Hearing Officer may schedule one or more informal clarification sessions for the purpose of allowing Litigants to question witnesses about the contents of their Prefiled Testimony and Exhibits and the derivation of their recommendations and conclusions. The Hearing Officer will not attend the clarification sessions. Clarification sessions will not be used to conduct cross-examination, and discussions in clarification sessions will not be transcribed or become part of the Record. Litigants may participate in clarification sessions by phone or other technology made available by Bonneville.
(2) If a Litigant does not make any witness available for a clarification session, the witness's Prefiled Testimony and Exhibits may be subject to a motion to strike.
(b)
(1)
(i) Each Litigant shall be reasonable in the number and breadth of its Data Requests in consideration of the factors listed in paragraph (b)(1) of this section. A Litigant that believes it has received one or more unreasonable Data Request(s) from another Litigant may object to the request(s) on that basis. Any dispute over such an objection will be resolved in accordance with the procedures in paragraph (e) of this section.
(ii) A Litigant shall not be required to perform any new study or analysis, but a Litigant may, in its sole discretion and without waiving any objection to any Data Request, agree to perform such study or analysis.
(iii) A Litigant shall not be required to produce publicly available information.
(iv) A Litigant shall not be required to produce information that is unduly burdensome to provide or produce the same information multiple times in response to cumulative or duplicative Data Requests.
(v) A Litigant shall not be required to produce any information that is protected from disclosure by the attorney-client privilege or attorney work product doctrine.
(vi) Bonneville shall not be required to produce documents that, in the opinion of Counsel for Bonneville, may be exempt from production under the Freedom of Information Act, 5 U.S.C. 552, or the Trade Secrets Act, 18 U.S.C. 1905.
(2)
(i) A Data Request must identify the Prefiled Testimony and Exhibits (page and line numbers) or other material addressed in the request.
(ii) A Litigant shall not submit a Data Request seeking the response to another Data Request.
(iii) During the period established in the procedural schedule for submitting Data Requests immediately following the filing of Bonneville's Initial Proposal, Parties may submit Data Requests only to Bonneville.
(iv) A multi-part Data Request must include a reasonably limited number of subparts, and all subparts must address only one section or other discrete portion of a Litigant's Prefiled Testimony and Exhibits. Each subpart of a multi-part Data Request will be considered a separate Data Request for purposes of this Section 1010.12(b).
(3)
(i) Except as otherwise provided by the Hearing Officer, a Litigant must provide a response to each Data Request no later than five Business Days after the day that the Data Request is submitted through the Secure website. The Hearing Officer may specify exceptions to this rule and establish alternative deadlines, for example, for periods spanning holidays.
(ii) An objection to a data request will be considered a response for purposes of this Section 1010.12(b). In any response that includes one or more objections, the Litigant must state the grounds for the objection(s) and why any
(iii) As soon as a Responding Litigant estimates that it will not be able to respond to one or more Data Requests by the due dates because of the volume of or other burden caused by the request(s), the Responding Litigant shall contact the Requesting Litigant and confer about a possible delay in the due date. If the Litigants have not resolved the matter by the due date, the Responding Litigant shall file an objection on the due date and supplement the objection with a response in good faith as soon as possible thereafter. Any dispute over such an objection will be resolved in accordance with the procedures in paragraph (e) of this section.
(c) Information that is attorney-client privileged or attorney work product. If a Responding Litigant withholds information from a response to a Data Request on the basis of attorney-client privilege or the attorney work product doctrine, it must object and so state in its response. Upon written request by Counsel for the Requesting Litigant, the Responding Litigant must submit a supplemental response to the Data Request that includes a declaration made by Counsel for such Litigant in accordance with 28 U.S.C. 1746 stating that the information withheld is protected from disclosure by attorney-client privilege or the attorney work product doctrine, and identifying, without revealing information that itself is privileged or protected, the information withheld. The Hearing Officer may not order in camera review or release of information that a Litigant has withheld from a response to a Data Request on the basis of attorney-client privilege or the attorney work product doctrine.
(d) Commercially Sensitive Information and CEII.
(1) When a Responding Litigant has determined that responding to a Data Request will require it to produce Commercially Sensitive Information or CEII that is otherwise discoverable, the Litigant shall notify and confer with the Requesting Litigant to attempt to agree to the terms of a proposed protective order, including a non-disclosure certificate, to govern exchange and use of the Commercially Sensitive Information or CEII. If the conferring Litigants agree to the terms of a proposed protective order, they must file the proposed order with the Hearing Officer along with a motion seeking adoption of the order. If the conferring Litigants are unable to agree to the terms of a protective order within three Business Days of starting to confer, each Litigant shall file a proposed protective order, and the Hearing Officer shall enter an order adopting a protective order to govern the exchange and use of Commercially Sensitive Information or CEII. Such protective order may be, but is not required to be, based upon the proposed protective orders filed by the Litigants and must be consistent with the requirements in paragraph (d)(2) of this section. Once the Hearing Officer has adopted a protective order, and the Requesting Litigant has filed its signed non-disclosure certificate(s), the Responding Litigant must provide the Commercially Sensitive Information or CEII to the Requesting Litigant within three Business Days.
(2) Any protective order proposed by a Litigant or adopted by the Hearing Officer must be consistent with the following requirements but is not limited to these requirements:
(i) Prior to receiving any Commercially Sensitive Information or CEII, a Litigant that wants access to such information must file on the Secure website signed non-disclosure certificate(s) for any individual that the Litigant intends to have access to such information.
(ii) Any documents or other materials that include Commercially Sensitive Information or CEII, including any copies or notes of such documents, must be plainly marked on each page with the following text: “Commercially Sensitive Information [or CEII]—Subject to Protective Order No. _____.” Any electronic files must include the same text in the file name. The requirements of this paragraph do not preclude any additional marking required by law.
(iii) Responses to Data Requests that contain Commercially Sensitive Information or CEII must not be submitted via the Secure website. The protective order must prescribe a secure manner for providing such a response to any Litigant that files a signed non-disclosure certificate(s).
(iv) Any Prefiled Testimony and Exhibits, Cross-examination Exhibits, briefs, or other documents that include Commercially Sensitive Information or CEII must not be filed via the Secure website. The protective order must prescribe a secure manner for making such a filing directly with the Hearing Officer such as via encrypted email or on physical media (CD, USB stick, etc.) and for simultaneously serving the document on all Litigants that have filed signed non-disclosure certificates. Any Litigant that makes a filing with Commercially Sensitive Information or CEII must simultaneously file a redacted or public version of the document via the Secure website.
(v) The protective order must authorize Bonneville to file or otherwise submit any Commercially Sensitive Information or CEII from a proceeding under these rules with the Federal Energy Regulatory Commission or any other administrative or judicial body in accordance with any applicable requirements of that body.
(vi) The protective order must authorize Bonneville to retain any Commercially Sensitive Information or CEII from a proceeding under these rules until the decision in the proceeding is no longer subject to judicial review.
(vii) The protective order must include provisions that govern the return or destruction of Commercially Sensitive Information and CEII.
(viii) A protective order may include a “Highly Confidential” designation for Commercially Sensitive Information or CEII that is of such a sensitive nature that the producing Litigant is able to justify a heightened level of protection. The Hearing Officer shall determine the appropriate level or means of protection for such information, including the possible withholding of such information altogether.
(3) Notwithstanding the requirement in paragraph (d)(2)(iv) of this section that a protective order must provide a secure manner of filing documents that include Commercially Sensitive Information or CEII, Litigants are discouraged from making filings with such information because of the administrative burden that would result from the inclusion of such information in the Record. A Litigant should not file a document with such information unless it believes in good faith that its ability to present its argument would be significantly hindered by the absence of the information from the Record. Instead, Litigants are encouraged to summarize, describe, or aggregate Commercially Sensitive Information or CEII in filings in a manner that does not result in the inclusion of the information itself or otherwise effectively disclose the information.
(4) The rules governing CEII in this Section 1010.12(b) do not preclude the application of any federal regulations regarding CEII that apply to Bonneville and are adopted after the effective date of these rules.
(e)
(1)
(2)
(3)
(4)
(f)
(1) Striking the Prefiled Testimony and Exhibits to which the Data Request relates;
(2) Limiting Data Requests or cross-examination by the Litigant refusing to comply with the order; or
(3) Recommending to the Administrator that an appropriate adverse inference be drawn against the Litigant refusing to comply with the order.
(g)
(a)
(1) All Prefiled Testimony and Exhibits must identify the witness(es) sponsoring the testimony and exhibits. Each Litigant that submits Prefiled Testimony and Exhibits must separately file a qualification statement for each witness sponsoring the testimony and exhibits. The qualification statement must describe the witness's education and professional experience as it relates to the subject matter of the Prefiled Testimony and Exhibits.
(2) Except as otherwise allowed by the Hearing Officer, all prefiled testimony must be in written form and conform to the format of pleadings in Section 1010.11(c). Each section of prefiled testimony must include a heading setting forth its subject matter. Prefiled testimony must include line numbers in the left-hand margin of each page.
(3) If prefiled testimony is based on the witness's understanding of the law, the witness shall so state in the testimony and, in order to provide context for the testimony, describe the witness's understanding of the law as it applies to the witness's position. In all other cases, legal arguments and opinions must not be included in Prefiled Testimony and Exhibits.
(4) A witness qualified as an expert may testify in the form of an opinion. Any conclusions by the witness should, if applicable, be supported by data and explanation.
(5) Litigants shall be provided an adequate opportunity to offer refutation or rebuttal of any material submitted by any other Party or by Bonneville. Any rebuttal to Bonneville's direct case must be included in a Party's direct testimony, along with any affirmative case that Party wishes to present. Any subsequent rebuttal testimony must be limited to rebuttal of the Parties' direct cases. New affirmative material may be submitted in rebuttal testimony only if in reply to another Party's direct case. No other new affirmative material may be introduced in rebuttal testimony. Rebuttal testimony must refer to the specific material being addressed (pages, lines, topic).
(6) For documents or materials of excessive length that a Litigant wants to include in its Prefiled Testimony and Exhibits, the Litigant should create and include an excerpt of the document or materials that excludes irrelevant or redundant material.
(b)
(c)
(d)
(a) Except as otherwise provided by the Hearing Officer, witnesses generally shall be cross-examined as a panel for Prefiled Testimony and Exhibits that they co-sponsor, provided that each panel member (1) has submitted a qualification statement, and (2) is under oath.
(b) At the time specified in the procedural schedule, a Litigant intending to cross-examine a witness shall file a cross-examination statement. The statement shall:
(1) Identify the witnesses the Litigant intends to cross-examine and the Prefiled Testimony and Exhibits sponsored by the witnesses that will be the subject of the cross-examination;
(2) Briefly describe the subject matter and portions of the Prefiled Testimony and Exhibits for cross-examination;
(3) Specify the amount of time requested for cross-examination of each witness; and
(4) Provide any other information required in an order issued by the Hearing Officer.
(c) A Litigant waives cross-examination for any witnesses not listed in its cross-examination statement, except that any Litigant may ask follow-up questions of witnesses appearing at the request of another Litigant.
(d) After the Litigants file cross-examination statements, the Hearing Officer shall issue a schedule setting forth the order of witnesses to be cross-examined.
(e) Cross-examination is limited to issues relevant to the Prefiled Testimony and Exhibits that (1) are identified in the Litigant's cross-examination statement, or (2) arise in the course of the cross-examination.
(f) Witnesses are not required to perform calculations on the stand or answer questions about calculations that they did not perform. Witnesses appearing as a panel shall determine in good faith which witness will respond to a cross-examination question.
(g) A Litigant may only cross-examine witnesses whose position is adverse to the Litigant seeking to cross-examine. Notwithstanding the preceding sentence, a Litigant whose position is not adverse to the witnesses subject to cross-examination may, immediately following any redirect testimony by those witnesses, seek leave from the Hearing Officer to ask limited follow-up questions of the witnesses. Any such follow-up questions allowed by the Hearing Officer must be limited to the scope of the cross-examination of the witnesses.
(h) Only a Litigant's Counsel may conduct cross-examination. Only Counsel for the witnesses being cross-examined may object to questions asked during cross-examination, except that Counsel for any Litigant may object to friendly cross-examination.
(i) To avoid duplicative cross-examination, the Hearing Officer may impose reasonable limitations if the Litigants conducting cross-examination have substantially similar positions.
(j) The Hearing Officer may impose reasonable time limitations on the cross-examination of any witness.
(k)
(1) A Litigant must file each Cross-examination Exhibit to be presented to a witness for any purpose two Business Days before the witness is scheduled to appear. For example, for a witness appearing on a Monday, the due date for documents is the preceding Thursday at 4:30 p.m.
(2) A Litigant must provide physical copies of each Cross-examination Exhibit to the Hearing Officer, the Hearing Clerk, each panel witness, witness's Counsel, and the court reporter at the beginning of cross-examination on the day the witness is scheduled to appear.
(3) A Cross-examination Exhibit must be limited to material the Litigant intends to introduce into Evidence.
(4) If a document is introduced into Evidence during cross-examination, and only part of the document is admitted into Evidence, the document must be conformed by the Litigant to include only that part of the document admitted into Evidence. The conformed document must be filed through the Secure website.
(l) All other matters relating to conduct of cross-examination are left to the Hearing Officer's discretion.
The Hearing Officer may admit into Evidence stipulations on any issue of fact.
The Administrator or the Hearing Officer may take official notice of any matter that may be judicially noticed by federal courts or any matter about which Bonneville is an expert. A Litigant requesting official notice shall provide a precise citation for the material for which official notice is requested and file the material on the Secure Website at the time the request is granted or as soon as practicable thereafter. The Hearing Officer may afford any Litigant making a timely request an opportunity to show the contrary of an officially noticed fact.
(a)
(b)
(c)
(d) Additional briefing rule for proceedings pursuant to Section 1010.1(a)(2). In a proceeding pursuant to Section 1010.1(a)(2), Bonneville is considered a Party for purposes of filing briefs in accordance with this Section 1010.17, except that Section 1010.17(f) does not apply to Bonneville. In addition, in such a proceeding, the Hearing Officer or the Administrator may provide Litigants with additional briefing opportunities not otherwise set forth in these rules. Such additional briefing opportunities may include briefs on exceptions in addition to those set forth in Section 1010.17(c), above.
(e)
(f)
(a) An opportunity for each Litigant to present oral argument will be provided in proceedings conducted under these rules.
(b) At the time specified in the procedural schedule, each Litigant that intends to present oral argument shall file a notice of intent to present oral argument. The notice must identify the speaker(s), a brief description of the subject matter to be addressed, and the amount of time requested.
(c) After Litigants file notices of intent to present oral argument, the Hearing Officer shall issue an order setting forth the schedule of oral argument.
Telephone conferences may be permitted in appropriate circumstances, provided that: (1) There is a proposed agenda for the conference concerning the points to be considered and the relief, if any, to be requested during the conference; and (2) Litigants are provided notice and given an opportunity to be represented on the line. If the Hearing Officer schedules a telephone conference, the Hearing Officer may require that a court reporter be present on the line.
In a proceeding pursuant to Section 1010.1(a)(2), the Hearing Officer shall, unless he or she becomes unavailable, issue the Hearing Officer's Recommended Decision stating the Hearing Officer's findings and conclusions, and the reasons or basis thereof, on all material issues of fact, law, or discretion.
(a) The Administrator will make a decision adopting final proposed rates for submission to the Federal Energy Regulatory Commission for confirmation and approval based on the Record.
(b) In a proceeding pursuant to Section 1010.1(a)(2), the Administrator will make a determination in a Final Record of Decision on any terms and conditions of transmission service, or revisions thereto, at issue in the proceeding.
(c) Any Final Record of Decision will be uploaded to the Secure Website and made available to Participants through Bonneville's external website.
(a)
(b)
A brief statement summarizing the party's position.
[For example: Bonneville staff's forecast of energy prices for secondary sales is too conservative. The record demonstrates that the trend in market prices is upward. The Administrator should revise the forecast for the price of secondary energy upward consistent with Party X's proposal.]
Statements of argument, including citations to the record.
A brief description of the requested action or decision the party wants the Administrator to make.
[For example: The projection of energy prices for Bonneville's secondary sales should be revised consistent with Party's X's proposal.]
[For example: Bonneville's surplus power sales forecast is flawed because it does not account for extraregional power sales.]
Statements of argument, including citations to the record.
[For example: Bonneville's surplus power sales forecast should be increased to reflect extraregional power sales.]
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:
Federal Energy Regulatory Commission, Department of Energy.
Notice of information collection and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-582 (Electric Fees, Annual Charges, Waivers, and Exemptions) and submitting the information collection to the Office of Management and Budget (OMB) for review. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission published a 60-day Notice in the
Comments on the collection of information are due June 1, 2018.
Comments filed with OMB, identified by OMB Control No. 1902-0132, should be sent via email to the
A copy of the comments should also be sent to the Commission, in Docket No. IC18-4-000 by either of the following methods:
•
•
Ellen Brown may be reached by email at
The Commission uses the FERC-582 to implement the statutory provisions of the Independent Offices Appropriation Act of 1952 (IOAA)
To comply with the FERC-582, respondents submit to the Commission the sum of the megawatt-hours (MWh) of all unbundled transmission (including MWh delivered in wheeling transactions and MWh delivered in exchange transactions) and the megawatt-hours of all bundled wholesale power sales (to the extent the bundled wholesale power sales were not separately reported as unbundled transmission). The data collected in the FERC-582 are drawn directly from the FERC Form 1
Respondents file requests for waivers and exemptions of fees and charges
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l. With this notice, we are designating Brainerd Public Utilities as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
m. Brainerd Public Utilities filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
Register online at
o. With this notice, we are soliciting comments on the PAD and Commission's staff Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.
The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at
p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this meeting will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the time and place noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
Scoping Document 1 (SD1), which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The potential applicant and Commission staff will conduct an Environmental Site Review of the project on Wednesday, May 16, 2018, starting at 10:00 a.m. All participants should meet at Brainerd Industrial Center, 1801 Mill Ave., Brainerd, MN 56401. Participants will be met at the entrance gate prior to entering the property. Participants must wear closed toe shoes and be 16 years or older. Please notify Adele Braun at (952) 842-3703, or
At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.
The meetings will be recorded by a stenographer and will be placed in the public records of the project.
Take notice that the Commission 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:
On March 19, 2018, the Commission issued an order announcing its intent to revoke the market-based rate authority of the public utilities listed in the caption of that order, which included the companies listed in the caption above, which had failed to file their required Electric Quarterly Reports.
The time period for compliance with the March 19 Order has elapsed. The above-captioned companies failed to file their delinquent Electric Quarterly Reports. The Commission hereby revokes, effective as of the date of issuance of this notice, the market-based rate authority and terminates the electric market-based rate tariff of each of the companies who are named in the caption of this order.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests, is 30 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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o.
Take notice that the following Draft License Application (DLA) and Draft Preliminary Draft Environmental Assessment (PDEA) have been filed with the Commission and are available for public inspection.
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All comments on the draft PDEA and DLA should be sent to the addresses noted above in Item (h), and filed with FERC.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
All comments must bear the heading Preliminary Comments, Preliminary Recommendations, Preliminary Terms and Conditions, or Preliminary Prescriptions.
l. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Register online at
Oregon State University has mailed a copy of the draft PDEA and DLA to interested entities and parties. Copies of these documents are available for review at Oregon State University, 370 Strand Agricultural Hall, Corvallis, OR 97331-5503.
m. With this notice, we are initiating consultation with the OREGON STATE HISTORIC PRESERVATION OFFICER (SHPO), as required by section 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
As announced in the Notice of Technical Conference issued on March 23, 2018, and the Supplemental Notice of Technical Conference issued on April 10, 2018 (April 10 Supplemental Notice), the Federal Energy Regulatory Commission staff will hold a technical conference on May 1, 2018, at the Commission's headquarters at 888 First Street NE, Washington, DC 20426, between 9:00 a.m. and 4:00 p.m. (Eastern Time).
The April 10 Supplemental Notice provided a list of questions that Commission staff intends to use to guide the discussion at the conference. These questions are narrowly focused on the processes used by participating transmission owners in the California Independent System Operator Corporation (CAISO) to determine which transmission-related maintenance and compliance activities/facilities, including, but not limited to, transmission-related capital additions, are subject to the CAISO Transmission Planning Process. We note that discussions at the conference may involve issues raised in proceedings that are currently pending before the Commission. These proceedings include, but are not limited to:
California Public Utilities Commission, Transmission Agency of Northern California, Sacramento Municipal Utility District, M-S-R Public Power Agency, City of Santa Clara, California, State Water Contractors, Modesto Irrigation District, and Northern California Power Agency v. Pacific Gas and Electric Company, Docket No. EL17-95-000;
Joint California Complainants v. Pacific Gas and Electric Company, Docket No. EL17-59-001;
Pacific Gas and Electric Company, Docket Nos. ER16-2320-000, -002, -003;
Pacific Gas and Electric Company, Docket No. ER17-2154-000, -001; and
Southern California Edison Company, Docket Nos. ER18-169-000, -001 and EL18-44-000, -001.
For Further Information, Please Contact Individuals Identified for Each Topic:
Technical Information: Laura Switzer, Office of Energy Markets Regulation, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6231,
Legal Information for Docket Nos. AD18-12-000 and EL17-45-000: Linda Kizuka, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8773,
Legal Information for Docket Nos. AD18-12-000 and ER18-370-000: Susanna Ehrlich, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6260,
Logistical Information: Sarah McKinley, Office of External Affairs, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8368,
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 rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On December 8, 2017, Steel Reef Pipelines US LLC (Steel Reef) filed an application in Docket No. CP18-24-000 requesting permission pursuant to Section 3 of the Natural Gas Act to construct, operate, and maintain certain natural gas pipeline border crossing facilities to export natural gas from the
On November 20, 2017, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
Steel Reef's proposed Project includes border crossing facilities consisting of a 250-foot-long, 10.75-inch-diameter pipeline, a meter station, and associated appurtenant aboveground facilities. The Project would transport up to 30 million standard cubic feet per day of sour natural gas gathered from existing oil wells owned and operated by Petro Harvester Oil & Gas, LLC in Burke County, North Dakota.
On January 11, 2018, the Commission issued a
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Environmental Protection Agency (EPA).
Request for nominations.
The Environmental Protection Agency (EPA) invites nominations of qualified candidates to be considered for a three-year appointment to the National Drinking Water Advisory Council (NDWAC or Council). The 15-member Council was established by the Safe Drinking Water Act (SDWA) to provide practical and independent advice, consultation, and recommendations to the EPA Administrator on the activities, functions, policies, and regulations required by the SDWA. This notice solicits nominations to fill four vacancies from August 2018 through December 2020 and five vacancies from December 2018 through December 2021. To maintain the representation required by statute, nominees will be selected to represent state and local agencies concerned with water hygiene and public water supply (two vacancies); private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply (two vacancies)—of which one such member shall be associated with small, rural public water systems; and the general public (five vacancies).
Nominations should be submitted on or before May 31, 2018.
Submit nominations to Tracey M. Ward, Designated Federal Officer (DFO), The National Drinking Water Advisory Council, U.S. Environmental Protection Agency, Office of Ground Water and Drinking Water, Mail Code 4601-M, 1200 Pennsylvania Avenue NW, Washington, DC, 20460. You may also email nominations, with the subject line: “NDWAC Resume 2018,” to
Email your questions to Tracey Ward at
The Council will meet in person once each year and may hold a second meeting, either in person or by video/teleconference, during the year. These meetings generally occur in the spring and fall. Additionally, members may be asked to participate in ad hoc workgroups to develop policy
In an effort to obtain nominations of diverse candidates, the Agency encourages nominations of women and men of all racial and ethnic groups.
All nominations will be fully considered, but applicants need to be aware of the specific representation required by the SDWA for the upcoming vacancies: State and local agencies concerned with water hygiene and public water supply (two vacancies); private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply (two vacancies)—of which one such member shall be associated with small, rural public water systems; and the general public (five vacancies). Other criteria used to evaluate nominees will include:
• Demonstrated experience with drinking water issues at the national, state, or local level;
• Excellent interpersonal, oral, and written communication and consensus-building skills;
• Willingness to commit time to the Council and demonstrated ability to work constructively on committees;
• Absence of financial conflicts of interest;
• Absence of appearance of a lack of impartiality; and
• Background and experience that would help members contribute to the diversity of perspectives on the Council,
Nominations must include a resume, which provides the nominee's background, experience, and educational qualifications, as well as a brief statement (one page or less) describing the nominee's interest in serving on the Council and addressing the other criteria previously described. Nominees are encouraged to provide any additional information that they think would be useful for consideration, such as: Availability to participate as a member of the Council; how the nominee's background, skills, and experience would contribute to the diversity of the Council; and any concerns the nominee has regarding membership. Nominees should be identified by name, occupation, position, current business address, email, and telephone number. Interested candidates may self-nominate. The DFO will acknowledge receipt of nominations.
Persons selected for membership will receive compensation for travel and a nominal, daily compensation (if appropriate) while attending meetings. Additionally, all selected candidates will be designated as Special Government Employees (SGEs) and will be required to submit the “Confidential Financial Disclosure Form for Environmental Protection Agency Special Government Employees” (EPA Form 3110-48). This confidential form provides information to the EPA's ethics officials, to determine whether there is a conflict between the SGE' s public duties and their private interests, including an appearance of a loss of impartiality as defined by federal laws and regulations. The form may be viewed and downloaded through the “Ethics Requirements” link on the EPA's NDWAC website at
Other sources, in addition to this
Environmental Protection Agency, Region 10.
Final reissuance of a general permit.
The EPA is reissuing a National Pollutant Discharge Elimination System (NPDES) General Permit (IDG370000) for small suction dredge operations in Idaho (intake nozzle size of 5 inches in diameter or a diametric equivalent or less and with equipment rated at 15 horsepower or less). EPA provided a public comment period from December 13, 2017, through January 29, 2018. EPA received many comments suggesting that the requirements of the GP are not stringent enough to meet the State of Idaho's WQS while other comments challenged EPA's authority to issue a permit for this activity. Additional comments questioned the meaning of some permit requirements. A Response to Comments document was prepared to address the comments received and explains any changes made to the draft to produce the final permit.
The final CWA § 401 Certification from the Idaho Department of Environmental Quality is dated April 11, 2018.
The GP will be effective May 2, 2018.
Copies of the general permit, Fact Sheet and Response to Comments are available upon request. Written requests may be submitted to EPA, Region 10, 1200 Sixth Avenue, Suite 155, OWW-191, Seattle, WA 98101.
The above documents may be found on the EPA Region 10 website at
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the availability of the Environmental Protection Agency's (EPA) Final 2016 Effluent Guidelines Program Plan (Final 2016 Plan). Section 304(m) of the Clean Water Act (CWA) requires the EPA to biennially publish a plan for new and revised effluent limitations guidelines, after public review and comment. The Final 2016 Plan identifies any new or
Phillip Flanders, Engineering and Analysis Division, Office of Water, 4303T, U.S. EPA, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-8323; fax number: (202) 566-1053; email address:
B.
1. Docket. The EPA has established official public dockets for these actions under Docket ID No. EPA-HQ-OW-2015-0665. The official public docket is the collection of materials that are available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20460.
2. Electronic access. You can access this
3. Internet access. Copies of the supporting documents are available at
The outline of this notice follows.
This notice is published under the authority of the CWA, 33 U.S.C. 1251,
The EPA prepared the Final 2016 Plan pursuant to CWA section 304(m). The Final 2016 Plan provides a summary of the EPA's review of effluent guidelines and pretreatment standards, consistent with CWA sections 301(d), 304(b), 304(g), 304(m), and 307(b). From these reviews and considering public comment, the Final 2016 Plan identifies any new or existing industrial categories selected for effluent guidelines or pretreatment standards rulemakings, and provides a schedule for such rulemakings. In addition, the Final 2016 Plan presents any new or existing categories of industry selected for further review and analysis.
The Final 2016 Plan identifies one new rulemaking (and the associated schedule) for the Steam Electric Power Generating Point Source Category. The EPA has concluded that no additional industries warrant new or revised effluent guidelines at this time. The Final 2016 Plan also announces that the EPA is initiating a new study to look holistically at the management of oil and gas extraction wastewater from onshore facilities. The focus of this study is not to look specifically at any one existing effluent guideline. Rather, the EPA intends to engage with stakeholders to evaluate approaches to manage both conventional and unconventional oil and gas extraction wastewater from onshore facilities including, but not limited to, an assessment of technologies for facilities that treat and discharge oil and gas extraction wastewater. Lastly, the Final 2016 Plan announces that the EPA is initiating a new study of the Electrical and Electronic Components Point Source Category. The focus of this study will be on changes within the industry since the 1983 rulemaking, particularly as these changes pertain to wastewater characteristics and wastewater treatment technologies.
The Final 2016 Plan and the 2015 and 2016 Annual Effluent Guidelines Review Reports can be found at
Environmental Protection Agency (EPA).
Notice of proposed settlement.
This notice announces the availability for review and comment of a proposed administrative settlement agreement under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), between the U.S. Environmental Protection Agency (“EPA”), and Bridge Point South Bay II, LLC (“Bridge Point LLC”), regarding the Ecology Control Industries, Inc. Removal Site (“ECI Site”) in Torrance, California. The Settlement Agreement requires the purchaser to conduct a removal action to address soil contamination at the ECI Site.
Comments must be received on or before June 1, 2018.
Submit your comments, identified by Docket ID No. EPA-R09-SFUND-2018-07, to the
Xiao Zhang, Assistant Regional Counsel, Office of Regional Counsel (ORC-3), Environmental Protection Agency,
Bridge Point LLC is agreeing to perform a removal action to address soils contaminated with the pesticide dichlorodiphenyl-trichloroethane (DDT). The removal action will reduce the risk to future users of the property and the surrounding community from exposure to contamination primarily caused by historical DDT manufacturing operations at a nearby plant. Under the terms of the settlement, Bridge Point LLC will complete the removal action and pay EPA's costs for oversight of the cleanup activities. In exchange, Bridge Point LLC will receive a covenant not to sue from the United States. EPA will consider all comments submitted by the date set forth above and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate the proposed settlement is inappropriate, improper, or inadequate.
Export-Import Bank of the United States.
Notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, Export-Import Bank of the United States has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be received on or before June 1, 2018 to be assured of consideration.
Comments may be submitted electronically on
To request additional information, please contact Mia Johnson,
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. 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 non-controversial 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;
• Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
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, and other matters that are commonly considered private.
The Agency received no comments in response to the 60-day notice published in the
Below we provide projected average estimates for the next three years:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Farm Credit Administration.
Notice, regular meeting.
Notice is hereby given, pursuant to the Government in the Sunshine Act, of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on May 10, 2018, from 9:00 a.m. until such time as the Board concludes its business.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090. Submit attendance requests via email to
Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056,
Parts of this meeting of the Board will be open to the public (limited space available) and parts will be closed to the public. Please send an email to
Federal Communications Commission.
Notice.
The Federal Communications Commission's Incentive Auction Task Force and Media Bureau announce that the displacement application filing window for low power television, TV translator, and analog-to-digital replacement translator stations that were displaced by the incentive auction and repacking process (Special Displacement Window).
The Special Displacement Window opened April 10, 2018 and will close on June 1, 2018 at 11:59 p.m. EDT.
Shaun Maher, Video Division, Media Bureau, Federal Communications Commission,
The Incentive Auction Task Force and the Media Bureau hereby announce that the displacement application filing window for low power television, TV translator, and analog-to-digital replacement translator stations that were displaced by the incentive auction and repacking process (Special Displacement Window), currently scheduled to close May 15, 2018, is hereby extended to June 1, 2018 at 11:59 p.m. EDT. This brief extension of the Special Displacement Window will allow applicants further time to analyze data and other information and to prepare or make changes to their applications accordingly.
For additional information or questions, please contact Hossein Hashemzadeh (technical),
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). Currently, the FDIC is soliciting comment on renewal of the information collection described below.
Comments must be submitted on or before July 2, 2018.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to OMB control number 3064-0124. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Manny Cabeza, Counsel, 202-898-3767,
Proposal to renew the following currently approved collection of information:
There is no change in the methodology or substance of this information collection. The number of certifications submitted under this information collection is closely related to the number of insured depository institutions that are acquired by another depository institution through mergers or as a result of the closing of the institution by its chartering authority. The number of depositor notifications is driven by the number of institutions that elect to voluntarily terminate its insured status without having its deposits assumed by another insured depository institution. The change in burden is due to economic fluctuation reflected in a lower number of certifications following mergers or closures and a reduction in the number of notifications due to voluntary terminations of insured status.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). Currently, the FDIC is soliciting comment on renewal of the information collection described below.
Comments must be submitted on or before July 2, 2018.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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Manny Cabeza, Counsel, 202-898-3767,
Section 323.11(b) requires each participating State to impose requirements on AMCs not regulated by a Federal financial institutions regulatory agency nor owned and controlled by an insured depository institution to: (i) Register with and be subject to supervision by a State appraiser certifying and licensing agency in each State in which the AMC operates; (ii) use only State-certified or State-licensed appraisers for Federally-regulated transactions in conformity with any Federally-regulated transaction regulations; (iii) establish and comply with processes and controls reasonably designed to ensure that the AMC, in engaging an appraiser, selects an appraiser who is independent of the transaction and who has the requisite education, expertise, and experience necessary to competently complete the appraisal assignment for the particular market and property type; (iv) direct the appraiser to perform the assignment in accordance with the Uniform Standards of Professional Appraisal Practice; and (v) establish and comply with processes and controls reasonably designed to ensure that the AMC conducts its appraisal management services in accordance with section 129E(a)-(i) of the Truth-in-Lending Act.
There is no change in the methodology or substance of this information collection. For the information collections described above, the general methodology is to compute the industry wide burden hours for States and appraisal management companies (AMCs) and then assign a share of the burden hours to each of the regulatory agencies for each information collection. The Agencies are revising their burden estimates based on the following assumptions:
The frequency of response is estimated as the number of states that do not have an AMC registration program in which the average AMC operates.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the 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; and (d) ways to minimize the
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of meeting.
If you plan to attend the ASC Meeting in person, we ask that you send an email to
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by July 2, 2018.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
CMS created a Health Equity Technical Assistance (TA) email (
Part A, Office of the Secretary, Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services, Chapter AR, Office of the National Coordinator for Health Information Technology (ONC), as last amended at 79 FR 31941 (June 3, 2014), 77 FR 29349-50 (May 17, 2012), 76 FR 65196 (Oct. 20, 2011), 76 FR 6795 (Feb. 8, 2011), 75 FR 49494 (Aug. 13, 2010), 74 FR 62785-86 (Dec. 1, 2009), 70 FR 48718-20 (Aug. 19, 2005) is amended as follows:
I. Under AR.10, Organization, delete all of components and replace with the following:
II. Delete AR.20, Functions, in its entirety and replace with the following:
Section AR.20, Functions.
A.
The Deputy National Coordinator, a part of the IO/ONC, works with and reports directly to the National Coordinator, and is responsible for supporting the National Coordinator in day-to-day operations and strategy for ONC, and for management of such ONC staff that report to the Deputy or as requested by the National Coordinator. The Deputy, in conjunction with the National Coordinator, provides executive oversight for the activities of ONC offices.
The Deputy National Coordinator for Operations works with, and reports directly to, the National Coordinator and is responsible for day-to-day operations and strategy for ONC agency-wide support functions as well as providing executive oversight in conjunction with the National Coordinator.
The Chief Privacy Officer, a part of the IO/ONC, advises the National Coordinator on privacy, security, and data stewardship of electronic health information and coordinates with other Federal agencies, with State and regional efforts, and with foreign countries with regard to the privacy, security, and data stewardship of electronic individually identifiable health information.
B.
C.
D.
(1) Managing enterprise risk and formulating solutions to ensure ONC has the resources to achieve its mission and goals; (2) ensuring fiscal integrity and adherence to Federal laws and regulations; (3) providing centralized, agency-wide strategy and services including: Budget and financial management; full lifecycle grants management; procurement management; human capital; information technology; facilities management; ethics; and records management.
III. Delegation of Authority.
Pending further delegation, directives or orders by the Secretary or by the National Coordinator for Health Information Technology, all delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This notice advises the public that the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties will increase from the previous quarter. For the calendar quarter beginning April 1, 2018, the interest rates for overpayments will be 4 percent for corporations and 5 percent for non-corporations, and the interest rate for underpayments will be 5 percent for both corporations and non-corporations. This notice is published for the convenience of the importing public and U.S. Customs and Border Protection personnel.
The rates announced in this notice are applicable as of April 1, 2018.
Bruce W. Ingalls, Revenue Division, Collection and Refunds Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 298-1107.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the
The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2018-07, the IRS determined the rates of interest for the calendar quarter beginning April 1, 2018, and ending on June 30, 2018. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%) for both corporations and non-corporations. For corporate overpayments, the rate is the Federal short-term rate (2%) plus two percentage points (2%) for a total of four percent (4%). For overpayments made by non-corporations, the rate is the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%). These interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties are the same from the previous quarter. These interest rates are subject to change for the calendar quarter beginning July 1, 2018, and ending September 30, 2018.
For the convenience of the importing public and U.S. Customs and Border Protection personnel the following list of IRS interest rates used, covering the period from July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of certain gyrocompasses. Based upon the facts presented, CBP has concluded that the country of origin of the gyrocompasses is the United States for purposes of U.S. Government procurement.
This final determination was issued on April 24, 2018. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination within June 1, 2018.
Ross M. Cunningham, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade, (202) 325-0034.
Notice is hereby given that on April 24, 2018, pursuant to subpart B of Part 177, U.S. Customs and Border Protection Regulations (19 CFR part 177, subpart B), CBP issued one final determination concerning the country of origin of certain gyrocompasses, which may be offered to the U.S. Government under an undesignated government procurement contract. This final determination (HQ H287851) was issued under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In the final determination, CBP concluded that the processing in the United States will result in a substantial transformation. Therefore, the country of origin for purposes of U.S. Government procurement of the gyrocompasses is the United States.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that a notice of final determination shall be published in the
This is in response to your letter dated June 12, 2017, requesting a final determination on behalf of [ ] (“ the Manufacturer”) pursuant to subpart B of Part 177 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. Part 177). A meeting was held in our office on December 18, 2018, during which you and your client explained how the product functions and the assembly process. A follow-up submission dated January 4, 2018, was also provided.
This final determination concerns the country of origin of a gyrocompass that will be assembled in the United States. As a U.S. importer, [the Manufacturer] is a party-at-interest within the meaning of 19 C.F.R. § 177.22(d)(1) and is entitled to request this final determination.
You have asked that certain information submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets in this ruling or in the attachments to this ruling request, forwarded to our office, will not be released to the public and will be withheld from published versions of this ruling.
[The Manufacturer] is incorporated in [ ] and has its principal place of business in [ ]. It is a wholly-owned subsidiary of [ ] (“the Parent Company”] a [ ] entity. [The Parent Company] develops gyrocompasses and advanced inertial navigational systems for navigation on land, at sea, in the air, and in space.
The subject merchandise is a “surface gyrocompass and attitude reference system” sold under the name [ ]. The technical offer documentation provided describes the merchandise as a “small size, low weight, low power consumption, IMO-certified, solid-state Fiber-Optic gyrocompass providing all necessary data for demanding navigation and control applications: True-North heading, roll, pitch and rates of return.” The merchandise transmits these data to onboard navigational and control systems to control a ship's movement at sea.
Five main components comprise the merchandise:
1. Inertial Sensor Assembly (“ISA”)—Manufactured in France from French (or possibly U.S.) parts, the ISA contains interferometric fiber-optic gyroscopes (“FOGs”) and accelerometers. The FOGs incorporate fiber-optic coils connected to integrated optical circuits to create the interferometers that provide the actual place of gyroscopic measurement. Three FOGs are combined into a single component structure along with three accelerometers to form the ISA. The capability of the ISA is limited to measuring raw accelerations and rotation rates. After testing in France, the ISA will be shipped to the United States.
2. Digital Signal Processing (“DSP”) Board—Manufactured in the United States from U.S. parts, the DSP Board acquires the measurements from the ISA, compensates for various kinds of potential measurement errors, computes an angular position using algorithms, and sends the computed parameters to a dual-access memory unit. It is comprised of 46 different components including capacitors, resistors, connectors, inductors, an oscillator, a flash memory unit, and others.
3. Interface Board—Manufactured in the United States from U.S. parts (other than the connectors on the interface board, which are sourced in Germany “as per the standard for connectors of this purpose”), the Interface Board contains the connections for the components necessary for communication between the product and the ship's other hardware (e.g., panel mounted receptacle connectors, serial link drivers, and Ethernet LAN transformer). Thus, the Interface Board allows the gyroscope to communicate with the ship's other navigational equipment, and vice versa. It is comprised of 56 different components including connectors, capacitors, inductors, diodes, digital isolators, a filter, and Ethernet transformer, and others.
4. Processor Board—Manufactured in the United States from U.S. parts, the Processor Board contains a microcontroller that serves as the intelligence of the merchandise. It also contains micro and flash memory that are necessary for the functioning of the merchandise. It is comprised of 61 different components including resistors, oscillators, connectors, diodes, LEDs, a DC power converter, a flash memory unit, and others.
5. Customized Housing—Machined in the United States from U.S. parts, the customized housing consists of a metal baseplate and top cover that enclose and protect the other components.
The U.S. assembly processes described in [the Manufacturer's] submission begin when a subcontractor
Once the boards and housing have been completed, they are ready to be integrated with the French-origin ISAs to produce the final product. Although the ISAs generate raw data such as angular rates and linear acceleration, these measurements “lack the accuracy and proper frame of reference needed to compute the relevant parameters for navigation or to transmit these data into a functional format for the ship's navigation and control” (i.e., heading, roll, pitch, and heave). You state that that the DSP board, interface board, and processor board are essential in processing and converting the “raw” signal that the ISA generates into a signal that can be used by the ship's navigational and control systems. For example, according to the information provided, the processor board serves as the “intelligence” of the product and contains firmware and the user interface that allows a ship's crew to control the product. The interface board serves as the electrical link between the ship's electrical equipment and the product, and the DSP board processes the raw data generated by the ISA into a format that is compatible with navigational equipment. Thus, you state that the U.S. processor board, interface board, and DSP board are essential to the capabilities and functioning of the product.
The final assembly of the [ ] product in the United States will take approximately seven and a half hours and will begin when the ISA is mounted to the baseplate of the housing, which involves placing a gasket, affixing heat-sink compound, and fastening screws. Technicians will then combine the interface board, processor board, and DSP Board to form “electronic clusters.” This process will involve soldering connectors, attaching flexible cables, and screwing components together. The processor board and the DSP board will then each be loaded with software developed in France.
After this process is complete, the electronic clusters will be connected to the ISA through the mounting of cables that permit electronic exchange between the ISA and the electronic cluster. You state that this integration in the United States will produce an Inertial Measurement Unit (“IMU”) that has the capacity of recording and collecting raw navigational data, as well as generating and transmitting those data in a format that related nautical systems can use.
In order to make the IMUs ready for installation, however, calibration testing must be conducted. In this stage of the production process, a motion tester and software tester will be used to ensure smooth integration with a ship's navigation systems. [The Manufacturer] states that the calibration testing will take up to 24 hours. Once this testing is completed, the finished gyrocompass will be ready for use in the field.
What is the country of origin of the gyrocompasses for purposes of U.S. Government procurement?
CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or practice for products offered for sale to the U.S. Government, pursuant to subpart B of Part 177, 19 C.F.R. § 177.21
Under the rule of origin set forth under 19 U.S.C. § 2518(4)(B):
An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
In rendering advisory rulings and final determinations for purposes of U.S. Government procurement, CBP applies the provisions of subpart B of Part 177 consistent with Federal Acquisition Regulations.
. . . an article that is mined, produced, or manufactured in the United States or that is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed.
48 C.F.R. § 25.003.
In order to determine whether a substantial transformation occurs when components of various origins are assembled into completed products, the extent of operations performed and whether the parts lose their identity and become an integral part of the new article are considered.
In HQ 558919, dated March 20, 1995, U.S. Customs (now U.S. Customs and Border Protection) held that an extruder assembly manufactured in England was substantially transformed in the United States when it was combined with U.S. components (a drive unit, an electric control panel, and an extruder screw) to create a vertical extruder. Assembly operations in the United States included “the complete wiring of the motor and control panel to the subassembly, followed by a complete set up and testing program to insure that the vertical extruder is operating within its design parameters.” In reaching the decision that a substantial transformation had occurred, Customs emphasized the importance of the U.S. components to the functioning of the final product. Based on the extent of the assembly operations and the importance of the U.S. components, Customs held that the country of origin of the vertical extruder was the United States.
By contrast, assembly operations that are minimal or simple will generally not result in a substantial transformation. For example, in HQ 734050, dated June 17, 1991, CBP held that Japanese-origin printer components were not substantially transformed in China when assembled to form finished printers. Three components, the circuit, power source, and outer case units, were entirely assembled or molded in Japan. Two components, the head and mechanical units, were made in Japan, but exported to China in an unassembled state. In China, the head and mechanical units were assembled with screws and screwdrivers. Thereafter, the head, mechanism,
Here, as in HQ 558919, the merchandise contains many U.S. materials that are important components of the final product. With the exception of the French-origin ISA, which may in some cases contain U.S. parts, and some German-origin connectors on one subassembly, all the materials used in the gyroscope are of U.S.-origin. These U.S.-origin parts are essential to the functionality of the finished gyrocompass. As noted above, the processor board serves as the “intelligence” of the product and contains firmware and the user interface that allows a ship's crew to control the product. The interface board serves as the electrical link between the ship's electrical equipment and the product, and the DSP board processes the raw data generated by the ISA into a format that is compatible with navigational equipment. Without the U.S.-origin components, the ISA's functionality would be limited to measuring raw accelerations and rotation rates and would not be capable of producing the output expected from a navigational gyrocompass including heading, roll, pitch, and heave.
In addition, the assembly processes that will occur in the United States are complex and time-consuming. Each of the electronic boards contains dozens of electrical components that must be properly mounted to the surface of the board and soldered into place. This process takes 4.2 hours, while the customized metal housing takes about ten hours to manufacture. Next, these components will be combined with the ISA in a process that includes placing a gasket, affixing a heat-sink compound, soldering connectors, attaching cables, fastening screws, and loading software. This process will take an additional seven and a half hours. Finally, significant post-assembly testing procedures, which will calibrate the merchandise and ensure smooth communication with the ship's navigational equipment, will be carried out in the United States. [The Manufacturer] states that the calibration testing will take up to 24 hours. Consistent with previous CBP decisions, the large number of individual components, the 4.2 hours that will be spent assembling the boards, the ten hours that will be spent manufacturing the metal housing, the seven and a half hours that will be spent on final assembly, and the time spent on final calibration testing (up to 24 hours) are evidence of complex and meaningful assembly operations in the United States.
In addition, we find that the French-origin ISAs will undergo a change in name, character, and use when they are assembled into finished gyrocompasses in the United States. Although a change in a product's name is the weakest evidence of a substantial transformation,
The country of origin of the gyrocompasses for purposes of U.S. Government procurement will be the United States.
Notice of this final determination will be given in the
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Saybolt LP (St. Rose, LA), as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that Saybolt LP (St. Rose, LA), has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of June 13, 2017.
Saybolt LP (St. Rose, LA) was approved and accredited as a commercial gauger and laboratory as of June 13, 2017. The next triennial inspection date will be scheduled for June 2020.
Christopher J. Mocella, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that Saybolt LP, 190 James Drive East, Suite 110, St. Rose, LA 70087, has been approved to gauge petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. Saybolt LP (St. Rose, LA), is approved for the following gauging procedures for petroleum and certain petroleum products from the American Petroleum Institute (API):
Anyone wishing to employ this entity to conduct gauger services should
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit 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 collection OMB 1140-0036 (FFL Out of Business Records Request—ATF F 5300.3A) is being revised due to minor changes to ATF F 5300.3A, as well as an increase in the in respondents, burden hours, and cost since the last renewal in 2016. The proposed information collection is also being published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until July 2, 2018.
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any additional information, please contact Kris Howard, Program Manager, National Tracing Center Division, either by mail at 244 Needy Road, Martinsburg, WV 25405, by email at
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:
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Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit 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 OMB 1140-0062 (Identification of Imported Explosives Materials) is being revised due to a change in burden, since there is an increase in the number of respondents, responses, and total burden hours since the last renewal in 2015. The proposed information collection is also being published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until July 2, 2018.
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any additional information, please contact Anita Scheddel, Program Analyst, Explosives Industry Programs Branch, either by mail 99 New York Ave. NE, Washington, DC 20226, or by email at
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.
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If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit 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 OMB 1140-0050 (Identification Markings Placed on Firearms) is being revised due to a change in burden, since there is an increase in the number of respondents, although there is a reduction in responses and total burden hours from the previous renewal in 2015, due to less firearms being imported. The proposed information collection is also being published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until July 2, 2018.
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any additional information,
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:
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2.
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Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) revision titled, “Mental Health Parity and Addiction Equity Act Notices,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before June 22, 2018.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064 (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA for revisions to the Mental Health Parity and Addiction Equity Act (MHPAEA) Notices information collection. The MHPAEA generally requires that the financial requirements and treatment limitations imposed on mental health and substance use disorder (MH/SUD) benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. The MHPAEA and its implementing regulations at 29 CFR 2590.712(d)(2) provide that a plan or issuer must disclose the criteria for medical necessity determinations with respect to MH/SUD benefits to any current or potential participant, beneficiary, or contracting provider upon request and must disclose the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits to the participant or
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Wage and Hour Division, Department of Labor.
Notice.
The Department of Labor (DOL) is soliciting comments concerning a proposed revision of the information collection request (ICR) titled, “Employment Information Form.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. A copy of the proposed information request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the
You may submit comments identified by Control Number 1235-0021, by either one of the following methods:
Robert Waterman, Compliance Specialist, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this notice may be obtained in alternative formats (Large Print, Braille, Audio Tape, or Disc), upon request, by calling (202) 693-0023 (not a toll-free number). TTY/TTD callers may dial toll-free (877) 889-5627 to obtain information or request materials in alternative formats.
I.
Other Federal laws the WHD administers provide similar authority. These Acts include the: Walsh-Healey Public Contracts Act (41 U.S.C. 38); McNamara-O'Hara Service Contract Act (41 U.S.C. 353(a)); Davis-Bacon Act (40 U.S.C. 3141
WHD staff use Form WH-3 as a guide for obtaining optional information from complainants (
The Wage and Hour Division (WHD) uses this information to determine whether covered employers have complied with various legal requirements of the laws administered by the Wage and Hour Division. The WHD seeks a revision to this collection associated with the new pilot self-audit program titled: Payroll Audit Independent Determination (PAID). Under the PAID program, employers are encouraged to conduct audits and, if they discover minimum wage or overtime violations, to self-report and correct their mistakes. This ICR is being submitted as a revision for approval for the addition of the PAID pilot program.
II.
• 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;
• Enhance the quality, utility, and clarity of the information to be collected;
• 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;
• 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,
III.
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended, (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of a revision to an announcement of meetings for the transaction of National Science Board business.
83 FR 18351-53, published on April 26, 2018.
Brad Gutierrez,
Nuclear Regulatory Commission.
Director's decision under 10 CFR 2.206; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a director's decision in response to a petition dated February 8, 2017, filed by Mr. Barry Quigley (the petitioner), requesting that the NRC take action with regard to Exelon Generation Company, LLC (Exelon or the licensee). The petitioner's requests and the director's decision are included in the
The director's decision was issued on April 24, 2018.
Please refer to Docket ID NRC-2018-0081 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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Joel Wiebe, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, telephone: 301-415-6606; e-mail:
The text of the director's decision is attached.
For the Nuclear Regulatory Commission.
By e-mail to Mr. Victor M. McCree, Executive Director for Operations, dated February 8, 2017 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML17061A127), Mr. Barry Quigley filed a petition under Title 10, “Energy,” of the
1. Issue a violation under 10 CFR Part 50, “Domestic Licensing of Production and Utilization Facilities,” Appendix B, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants,” Criterion III, “Design Control,” for deficiencies in the analysis of record (AOR) for the main steam isolation valve (MSIV) room pressurization following a high-energy line break (HELB).
2. Issue a violation under 10 CFR Part 50, Appendix B, Criterion XVI, “Corrective Action,” for failure to update the AOR in a timely manner.
3. Require Exelon to show that the consequences of the secondary missiles resulting from MSIV room pressurization do not have adverse consequences.
4. Issue a Demand for Information under 10 CFR 2.204, “Demand for Information,” to compare and contrast the behavior of Exelon management as described in the petition with the NRC's policy statement on the attributes of a safety-conscious work environment (SCWE).
5. Use Exelon's response to Item 4 above as a basis on which to determine whether to issue a “chilling effects” letter.
As the basis for the request, the petitioner stated the following:
1. (a)—Break enthalpies used in the MSIV room pressurization AOR are actually the thermodynamic internal energy of the steam, not the enthalpy. Because, in the range of interest, the internal energy is about 13 percent less than the enthalpy, the energy flow to the areas of concern is nonconservative.
(b)—Steam flow from secondary piping is neglected.
2. Corrective actions to resolve an issue in the AOR are long overdue (8 years) and improperly tracked.
3. A proposed revision to the AOR shows that the MSIV room roof slabs will be ejected by the high pressures in the MSIV rooms becoming potential missiles.
4. Management dismissed information in the updated final safety evaluation report (UFSAR) that supported the concerns about the AOR as “excessive detail” and directed personnel to remove the information. Management dismissed UFSAR internal inconsistency related to the “Break Exclusion Zone” without discussion or review and stated that the information supporting the concern could be deleted as an UFSAR cleanup item. Recently, there was an operability concern for which engineering management maintained a position of operability in the face of conflicting information. The information that engineering management relied on to support operability was demonstrably irrelevant.
The petitioner met with the Office of Nuclear Reactor Regulation (NRR) Petition Review Board (PRB) on April 13, 2017, to clarify the basis for the petition. The NRC is treating the transcript of this meeting (ADAMS Accession No. ML17111A774) as a supplement to the petition. In its acknowledgement letter dated July 17, 2017 (ADAMS Accession No. ML17125A245), the NRC informed the petitioner that Items 1, 2, 4, and 5 were accepted for review under 10
By letter dated July 26, 2017 (ADAMS Accession No. ML17166A362), the NRC requested that Exelon provide a voluntary response to the petition. By letter dated September 1, 2017 (ADAMS Accession No. ML17255A824), Exelon provided its voluntary response.
1. Issue a violation under 10 CFR Part 50, Appendix B, Criterion III, for deficiencies in the AOR for the MSIV room pressurization following an HELB.
The petitioner's basis and the licensee's September 1, 2017, voluntary response letter both identify errors in calculation 3C8-0282-001, Revision 3. The licensee stated in its voluntary response letter that calculation 3C8-0282-001 is the design-basis analysis for the structural design of the MSIV house and the main steam tunnel. The regulation under 10 CFR Part 50, Appendix B, Criterion III, “Design Control,” requires, in part, that the licensee provide for verifying or checking the adequacy of design, such as by the performance of design reviews, by the use of alternate or simplified calculational methods, or by the performance of a suitable testing program. The NRC Region III staff conducted inspections at the Byron and Braidwood Stations between October 30 and November 16, 2017. The inspectors identified that as of October 22, 1996, and continuing through the date of the NRC inspections, the licensee failed to verify that Design Analysis 3C8-0282-001, Revision 3, which was the AOR addressing a postulated HELB in the safety-related main steam safety valve (MSSV) rooms [the petitioner and the licensee used the label MSIV house or room], would not cause a structural failure since it failed to apply worst-case environmental loading. The NRC Inspection Reports 05000454/455-2017-010 for Byron Station and 05000456/457-2017-008 for Braidwood Station, dated December 15, 2017 (ADAMS Accession Nos. ML17349A917 and ML17349A894, respectively), each identify a non-cited violation (NCV) of 10 CFR Part 50, Appendix B, Criterion III, “Design Control.”
2. Issue a violation under 10 CFR Part 50, Appendix B, Criterion XVI, for failure to update the AOR in a timely manner.
The petitioner's basis states that although the errors regarding the wrong break enthalpies in calculation 3C8-0282-001, Revision 3, were documented on June 30, 2008, in Issue Report 792213, “MSLB Calc[ulation] Energy Release Error,” the analysis still contains the nonconservative break enthalpies 8 years later. Exelon's voluntary response letter agrees that Issue Report 792213 for Byron Station and the related Issue Report 792215 for Braidwood Station were documented on June 30, 2008. Exelon's voluntary response letter shows that it issued a contract with a vendor to revise calculation 3C8-0282-001, Revision 3, in February 2013; 5 years after identification of the error. In November 2013, the vendor provided a draft copy of a revision to calculation 3C8-0282-001 to Exelon for review. Currently, Exelon still has the analysis and proposed plant modifications under review to correct the analysis.
The regulation under 10 CFR 50, Appendix B, Criterion XVI, “Corrective Action,” requires, in part, that measures shall be established to assure that conditions adverse to quality, such as non-conformances, are promptly identified and corrected. The NRC Region III staff conducted inspections at the Byron and Braidwood Stations between October 30 and November 16, 2017. The inspectors identified that as of the dates of NRC inspections at Byron and Braidwood Stations, the licensee failed to promptly correct errors in Design Analysis 3C8-0282-001, Revision 3, for a main steam line break in the safety-related MSSV rooms [the petitioner and the licensee used the label MSIV house or room] and steam tunnels that were identified on June 30, 2008. The NRC Inspection Reports 05000454/455-2017-010 for Byron Station and 05000456/457-2017-008 for Braidwood Station, dated December 15, 2017, each identify a NCV of 10 CFR Part 50, Appendix B, Criterion XVI, “Corrective Action.”
3. Require Exelon to show that the consequences of the secondary missiles resulting from MSIV room pressurization do not have adverse consequences.
The July 17, 2017, acknowledgement letter informed the petitioner that this item did not meet the criteria for review under 10 CFR 2.206 because it does not request enforcement action, as specified in Management Directive 8.11, “Review Process for 10 CFR 2.206 Petitions” (MD 8.11). However, the licensee and NRC have taken action that addresses the issue raised by the petitioner. In September 2017, the licensee initiated operability evaluations (Operability Evaluation 17-002, Revision 0, for Braidwood Station and Operability Evaluation 17-001, Revision 0, for Byron Station) to address the consequences of secondary missiles from the MSIV room pressurization and has determined that no equipment safety functions are affected by potential missiles. During inspections conducted at Byron Station (Inspection Reports 05000454/455-2017-003 (ADAMS Accession No. ML17306A639) and 05000454/455-2017-010) and Braidwood Station (Inspection Reports 05000456/457-2017-003 (ADAMS Accession No. ML17306A664) and 05000456/457-2017-008), the NRC reviewed the licensee's revisions to the applicable operability evaluations and did not identify any concerns, but did identify NCVs of 10 CFR part 50, Appendix B, Criterion III, “Design Control,” for the failure to identify design deficiencies involving secondary missiles from the MSSV room pressurization and NCVs of 10 CFR part 50, Appendix B, Criterion XVI, “Corrective Action,” for the failure to correct the design deficiencies.
4. Issue a “Demand for Information” under 10 CFR 2.204, to compare and contrast the behavior of Exelon management as described in the petition with the NRC's policy statement on the attributes of an SCWE.
As described in the NRC Enforcement Manual (ADAMS Accession No. ML102630150), a demand for information (DFI) is a formal request made to a licensee or applicant to obtain information for the NRC staff to determine whether an Order should be issued to modify, suspend, or revoke the license, or whether to take other enforcement action. The PRB determined that issuance of a DFI in this circumstance was not necessary to evaluate the SCWE concerns expressed in the petition. Consistent with MD 8.11, the NRC's letter dated July 26, 2017, requested that Exelon provide a voluntary response to the concerns raised in the petition. Exelon's September 1, 2017, response, in part, provided the results of its evaluation of the SCWE at Byron Station. Exelon's evaluation included interviews with Braidwood Station personnel that were involved with the activities that the petitioner described in the petition. The evaluation concluded that the actions taken and behaviors demonstrated by Exelon management in response to the issues and activities cited in the petition dated February 8, 2017, demonstrate a healthy SCWE.
The NRC conducted an inspection at Byron Station that ended on August 25, 2017 (Inspection Report 05000454/455-2017-007 (ADAMS Accession No. ML17276B174) that, in part, assessed the licensee's SCWE at Byron Station. Information obtained from interviews and focus groups (including with engineering personnel) indicated that an environment was established where licensee personnel felt free to raise nuclear safety issues without fear of retaliation. Licensee personnel were generally aware of and familiar with the corrective action program (CAP) and other processes, including the Employee Concerns Program (ECP) and the NRC's allegation process, through which concerns could be raised. In addition, a review of the types of issues in the ECP indicated that the licensee's staff members were appropriately using the CAP and ECP to identify issues. The inspection did not identify any examples where there was retaliation for raising nuclear safety issues. Documents regarding surveys and monitoring of the safety culture and SCWE generally supported the conclusions from the interviews. The inspection did not identify any chilling effect or impediment to the establishment of an SCWE at Byron Station.
5. Use Exelon's response to Item 4 above as a basis on which to determine whether to issue a “chilling effects” letter.
A chilling effect letter is a regulatory tool identified in the NRC Allegations Manual (ADAMS Accession No. ML17003A227) that the NRC uses to ensure that licensees are taking appropriate actions to foster a workplace environment that encourages employees to raise safety concerns and to feel free to do so without fear of retaliation, referred to as an SCWE. A chilling effect letter may be appropriate when there are indications of a chilled work environment, but no discrimination concern has been substantiated. Neither Exelon's voluntary response nor NRC's inspection at Byron Station, as discussed in Item 4, identified
The NRC staff conducted inspections at the Byron Station and Braidwood Station that assessed the licensee's compliance with the regulations under 10 CFR part 50, Appendix B, Criterion III, “Design Control,” and Criterion XVI, “Corrective Action,” related to the adequacy of the AOR for the structural design of the MSIV house and the main steam tunnel, and took enforcement action as outlined in the inspection reports identified above. The NRC staff requested that the licensee evaluate the SCWE concerns expressed in the petition, and conducted an inspection that assessed the licensee's SCWE at Byron Station. Based on the licensee's voluntary response and the results of the inspection, the NRC staff did not identify challenges to the licensee's SCWE or evidence of a chilled environment at the Byron Station and, therefore, determined that issuance of a chilling effect letter was not warranted. Because these actions address the underlying concerns raised in requests 1, 2, 4, and 5 of the petition, the petition is granted in part.
As provided in 10 CFR 2.206(c), a copy of this director's decision will be filed with the Secretary of the Commission for review. As provided by this regulation, the decision will constitute the final action of the Commission 25 days after the date of the decision unless the Commission, on its own motion, institutes a review of the decision within that time.
Dated at Rockville, Maryland, this 24th day of April, 2018.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License renewal application; opportunity to request a hearing and to petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering an application for the subsequent license renewal of Renewed Facility Operating License Nos. DPR-31 and DPR-41, which authorize Florida Power & Light Company (FPL or the applicant) to operate Turkey Point Nuclear Generating Unit Nos. 3 and 4 (Turkey Point). The renewed licenses would authorize the applicant to operate Turkey Point for an additional 20 years beyond the period specified in each of the current renewed licenses. The current renewed operating licenses for Turkey Point expire as follows: Unit No. 3 on July 19, 2032, and Unit No. 4 on April 10, 2033.
A request for a hearing or petition for leave to intervene must be filed July 2, 2018.
Please refer to Docket ID NRC-2018-0074 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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Lois M. James, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3306, email:
By letters dated January 30, 2018 (ADAMS Package Accession No. ML18037A812); February 9, 2018 (ADAMS Accession No. ML18044A653); February 16, 2018 (ADAMS Package Accession No. ML18053A123); March 1, 2018 (ADAMS Package Accession No. ML18072A224), and April 10, 2018 (ADAMS Package Accession No. ML18102A521 and Accession No. ML18113A132), the NRC received an application from FPL, filed pursuant to Section 103 of the Atomic Energy Act of 1954, as amended (the Act), and part 54 of title 10 of the
The NRC staff has determined that FPL has submitted sufficient information in accordance with 10 CFR 54.19, 54.21, 54.22, 54.23, 51.45, and 51.53(c), to enable the staff to undertake a review of the application, and that the application is, therefore, acceptable for docketing. The current Docket Nos. 50-250 and 50-251 for Renewed Facility Operating License Nos. DPR-31 and DPR-41, respectively, will be retained. The determination to accept the SLRA for docketing does not constitute a determination that a subsequent renewed license should be issued, and does not preclude the NRC staff from requesting additional information as the review proceeds.
Before issuance of the requested subsequent renewed licenses, the NRC will have made the findings required by the Act, and the Commission's rules and regulations. In accordance with 10 CFR 54.29, the NRC may issue a subsequent renewed license on the basis of its review if it finds that actions have been identified and have been or will be taken with respect to: (1) Managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified as requiring aging management review; and (2) time-limited aging analyses that have been identified as requiring review, such that there is reasonable assurance that the activities authorized by the renewed licenses will continue to be conducted in accordance with the current licensing basis and that any changes made to the plant's current licensing basis will comply with the Act and the Commission's regulations.
Additionally, in accordance with 10 CFR 51.95(c), the NRC will prepare an environmental impact statement as a supplement to the Commission's NUREG-1437, “Generic Environmental Impact Statement for License Renewal
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309, a petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submission (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC's website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted a request for exemption from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Detailed information about the subsequent license renewal process can be found under the Nuclear Reactors icon at
The NRC staff has verified that a copy of the SLRA is also available for inspection near the site at the Homestead Branch Library, 700 North Homestead Boulevard, Homestead, Florida 33030; South Dade Regional Library, 10750 SW 211th Street, Miami, Florida 33189; Naranja Branch Library, 14850 SW 280 St., Homestead, Florida 33032; and Main Library, 101 West Flagler St., Miami, Florida 33130.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Termination of licenses.
The U.S. Nuclear Regulatory Commission (NRC) is terminating the Levy Nuclear Plant (LNP) Units 1 and 2 Combined Licenses (COLs) designated as NPF-99 and NPF-100 and their included licenses to manufacture, produce, transfer, receive, acquire, own, possess, or use byproduct material. By letter dated January 25, 2018, Duke Energy Florida, LLC (Duke) requested that the NRC terminate the LNP COLs. Construction was not initiated for LNP Units 1 and 2, and nuclear materials were never procured or possessed under these licenses. Consequently, the LNP site is approved for unrestricted use.
The termination was issued on April 26, 2018.
Please refer to Docket ID NRC-2008-0558 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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Brian Hughes, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6582; email:
The NRC issued COLs NPF-99 and NPF-100 to Duke for LNP Units 1 and 2 on October 26, 2016 (ADAMS Accession No. ML16176A200). Since issuance of the licenses, Duke has not begun construction or procured nuclear materials for use on the site. In Duke's letter dated November 6, 2017 (ADAMS Accession No. ML17313A290), Duke informed the NRC that it no longer plans to move forward with building LNP Units 1 and 2 and would consequently submit an application for termination of the licenses. By subsequent letter dated January 25, 2018 (ADAMS Accession No. ML18029A117), Duke requested termination of LNP COLs NPF-99 and NPF-100 and their included title 10 of the
Termination of COLs issued under 10 CFR part 52 is controlled by 10 CFR 52.110, “Termination of license.” As discussed in “Current NRC Staff Views on Applying the 1987 Policy Statement on Deferred Plants” (ADAMS Accession No. ML18065B257), the NRC staff does not apply the requirements for termination in 10 CFR 52.110 to plants that have not begun operation. Regardless, the staff finds that Duke's license termination application dated January 25, 2018, demonstrates that the criteria of 10 CFR 52.110 are met. Requirements for termination of the included licenses under sections 30.36, 40.42, and 70.38 of 10 CFR include the submission of NRC Form 314 or equivalent information. The staff finds that Duke met these requirements through the information provided as part of its January 25, 2018, submission.
Further, as there was no construction on the LNP site and nuclear materials have never been procured or possessed under these licenses, there is no need for a site radiation survey to be conducted under 10 CFR parts 30, 40, or 70. With no radiological contamination associated with the licenses, the LNP site may be released for unrestricted use pursuant to 10 CFR 20.1402.
Duke seeks to terminate the LNP Units 1 and 2 COLs for which construction never commenced and nuclear material was never procured or brought onsite. Terminating a COL is a licensing action that would ordinarily require an environmental assessment under 10 CFR 51.21, unless a categorical exclusion in 10 CFR 51.22(c) applies and no special circumstances under 10 CFR 51.22(b) exist. Actions listed in 10 CFR 51.22(c) were previously found by the Commission to be part of a category of actions that “does not individually or cumulatively have a significant effect on the human environment.”
The categorical exclusion identified in 51.22(c)(20) includes:
Decommissioning of sites where licensed operations have been limited to the use of—
(i) Small quantities of short-lived radioactive materials;
(ii) Radioactive materials in sealed sources, provided there is no evidence of leakage of radioactive material from these sealed sources; or
(iii) Radioactive materials in such a manner that a decommissioning plan is not required by 10 CFR 30.36(g)(1), 40.42(g)(1), or 70.38(g)(1) and the NRC has determined that the facility meets the radiological criteria for unrestricted use in 10 CFR 20.1402 without further remediation or analysis.
This categorical exclusion captures decommissioning activities at sites where contamination from radioactive material is determined to be nominal. In the case of LNP Units 1 and 2, no associated radiological contamination exists because construction never commenced and nuclear material was never procured or brought on site. As a result, a decommissioning plan for this site is not required by 10 CFR 30.36(g)(1), 40.42(g)(1), or 70.38(g)(1), and the site meets the radiological criteria for unrestricted use in 10 CFR 20.1402 without further remediation or analysis. Further, no special circumstances under 10 CFR 51.22(b) apply. The factors listed in 10 CFR 51.22(c)(20) are consistent with the circumstances here because there is no environmental impact associated with the LNP COLs, which is even less than the nominal impacts anticipated by the categorical exclusion. Therefore, application of the categorical exclusion to the termination of the LNP COLs is warranted. Consequently, in accordance with 10 CFR 51.21, an environmental assessment is not required for the termination of COLs NPF-99 and NPF-100 and their included 10 CFR parts 30, 40, and 70 licenses.
As discussed above, the Commission has determined that the LNP COL termination request meets the categorical exclusion criteria set forth in 10 CFR 51.22(c)(20) and that the unrestricted use criteria pursuant to 10 CFR 20.1402 are met. The Commission grants Duke's request to terminate the COLs designated as NPF-99 and NPF-100 and their included 10 CFR parts 30, 40, and 70 licenses for LNP Units 1 and 2. This license termination was effective upon Duke's receipt of NRC's termination letter, dated April 26, 2018 (ADAMS Accession No. ML18107A111).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order imposing civil monetary penalty; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an Order imposing civil monetary penalty of $22,400 to Qal-Tek Associates, LLC. After consideration of the licensee's request for mitigation of the proposed civil penalty amount, the NRC staff determined that the violations occurred and that adequate basis did not exist for mitigation of the civil penalty amount of $22,400.
This Order was effective March 29, 2018.
Please refer to Docket ID NRC-2018-0083 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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G. Michael Vasquez, Region IV, telephone: 817-200-1182; email
The text of the Order is attached.
For the Nuclear Regulatory Commission.
Qal-Tek Associates, LLC (Qal-Tek or the Licensee) is the holder of Materials License No. 11-27610-01 issued on December 28, 1998, by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to part 30 of title 10 of the
The NRC conducted an inspection of the Licensee's activities on April 24-25, 2017. The results of this inspection indicated that the Licensee had not conducted its activities in compliance with the NRC's requirements associated with packaging radioactive material to ensure that radiation levels do not exceed regulatory limits. A written Notice of Violation and Proposed Imposition of Civil Penalty (Notice) was served upon the Licensee by letter dated December 12, 2017. The Notice states the nature of the violations, the provisions of the NRC's requirements that the Licensee violated, and the amount of the civil penalty proposed for the violations.
The Licensee responded to the Notice in a letter dated January 11, 2018. In its response, the Licensee did not dispute the violations or their severity, but requested mitigation of the proposed civil penalty amount.
After consideration of the Licensee's response and the statements of fact, explanation, and argument for mitigation contained therein, the NRC staff has determined as set forth in the Appendix to this Order that the violations occurred as stated and that adequate basis does not exist for mitigation of the civil penalty amount. Therefore, a civil penalty in the amount of $22,400 should be imposed.
In view of the foregoing and pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, IT IS HEREBY ORDERED THAT:
The Licensee pay a civil penalty in the amount of $22,400 within 30 days of the issuance date of this Order, in accordance with NUREG/BR-0254 “Payment Methods” (http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures/br0254/). In addition, at the time payment is made, the Licensee shall submit a statement indicating when and by what method payment was made, to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington DC 20555.
In accordance with 10 CFR 2.202, the Licensee and any other person adversely affected by this Order may request a hearing on this Order within 30 days of the issuance date of this Order. Where good cause is shown, consideration will be given to extending the time to answer or request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington DC 20555, and include a statement of good cause for the extension.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene (hereinafter “petition”), and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007, as amended by 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by e-mail at [email protected], or by telephone at 301-415-1677, to (1) request a digital identification (ID) certificate, which allows the participant (or its counsel or representative) to digitally sign submissions and access the E-Filing system for any proceeding in which it is participating; and (2) advise the Secretary that the participant will be submitting a request or petition for hearing (even in instances in which the participant, or its counsel or representative, already holds an NRC-issued digital ID certificate). Based upon this information, the Secretary will establish an electronic docket for the hearing in this proceeding if the Secretary has not already established an electronic docket.
Information about applying for a digital ID certificate is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-
The E-Filing system also distributes an e-mail notice that provides access to the document to the NRC Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system.
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Electronic Filing Help Desk through the “Contact Us” link located on the NRC's web site at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at [email protected], or by a toll-free call at 866-672-7640. The NRC Electronic Filing Help Desk is available between 9 a.m. and 6 p.m., Eastern Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) first class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff.
Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at https://adams.nrc.gov/ehd, unless excluded pursuant to an order of the Commission or the presiding officer. If you do not have an NRC-issued digital ID certificate as described above, click “Cancel” when the link requests certificates and you will be automatically directed to the NRC's electronic hearing dockets where you will be able to access any publicly available documents in a particular hearing docket. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or personal phone numbers in their filings, unless an NRC regulation or other law requires submission of such information. For example, in some instances, individuals provide home addresses in order to demonstrate proximity to a facility or site. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission.
The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the
If a person (other than Qal-Tek) requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), Qal-Tek or any other person adversely affected by this Order, may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing or alternative dispute resolution (ADR), or written approval of an extension of time in which to request a hearing or ADR, the provisions specified in Section IV above shall be final 30 days from the issuance date of this Order without further order or proceedings. If an extension of time for requesting a hearing or ADR has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing or ADR request has not been received. If ADR is requested, the provisions specified in Section IV shall be final upon termination of an ADR process that did not result in issuance of an order.
For the Nuclear Regulatory Commission.
Dated this 29th day of March 2018
On December 12, 2017, the U.S. Nuclear Regulatory Commission (NRC) issued a Notice of Violation and Proposed Imposition of Civil Penalty (Notice) for violations identified during an NRC inspection. Qal-Tek Associates, LLC (Qal-Tek or Licensee) responded to the Notice on January 11, 2018. The Licensee did not dispute the violations or severity, however, the Licensee requested mitigation of the proposed civil penalty amount. The NRC's evaluation and conclusion regarding the Licensee's request is as follows:
The Licensee stated that the problem was identified by the Licensee because of their self-monitoring effort of proper package receiving operations. The Licensee stated that it implemented timely actions to identify the root cause of the problem and develop corrective actions. Also, the Licensee stated that it discontinued transporting similar types of packages until corrective actions were implemented.
The NRC Enforcement Policy, Section 2.3.4.b.2(b), states, in part, that when a problem requiring corrective action is identified through an event (i.e., the problem is self-revealing), the decision as to whether to give the Licensee credit for actions related to identification normally should consider the ease of discovery, whether the event occurred as a result of a Licensee's self-monitoring effort (i.e., whether the Licensee was “looking for the problem”), the degree of Licensee initiative in identifying the problem, and whether prior opportunities existed to identify the problem. Any of these considerations may be overriding if particularly noteworthy or particularly egregious.
In this case, the Licensee discovered the problem because the Licensee was following the requirements for package receipt per 10 CFR 20.1906, “Procedures for receiving and opening packages.” Specifically, this regulation requires Licensees to monitor the external surfaces of packages for radioactive contamination and radiation levels as soon as practical after receipt of the package. But for its adherence to these requirements, there is no indication that the Licensee would have otherwise discovered the problem.
In addition, the NRC determined that identification credit should be withheld due to two prior opportunities that existed for the Licensee to identify the problem prior to the event. The first opportunity involved the preparation of the package from Idaho Falls, Idaho, to New York City. A Qal-Tek radiation safety officer, who was under schedule
As documented in the NRC Inspection Report 030-34866/2017-001, dated October 11, 2017 (NRC's Agencywide Documents Access and Management System (ADAMS) Accession ML17236A425), the NRC concluded that both radiation safety officers lacked a questioning attitude. Specifically, both individuals recognized that the containment system did not have a positive fastening device and neither raised the concern to their management. Rather, both individuals used a wooden board as an incorrect method to secure the lid of the containment system.
Based on its evaluation, the NRC has concluded that these violations occurred as stated and that the Licensee did not provide an adequate basis for mitigation of the proposed civil penalty. Therefore, the NRC will impose a civil penalty in the amount of $22,400.
Office of Personnel Management.
Notice.
This provides the consolidated notice of all agency-specific excepted authorities, approved by the Office of Personnel Management (OPM), under Schedule A, B, and C, as of June 30, 2016, as required by Civil Service Rule VI, Exceptions from the Competitive Service.
Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
Civil Service Rule VI (5 CFR 6.1) requires the Office of Personnel Management (OPM) to publish notice of exceptions granted under Schedule A, B, and C. Under 5 CFR 213.103(a) it is required that all Schedule A, B, and C appointing authorities available for use by all agencies to be published as regulations in the Federal Register (FR) and the Code of Federal Regulations (CFR). Excepted appointing authorities established solely for use by one specific agency do not meet the standard of general applicability prescribed by the Federal Register Act for regulations published in either the FR or the CFR. Therefore, 5 CFR 213.103(b) requires monthly publication, in the Notices section of the
When making appointments under an agency-specific authority, agencies should first list the appropriate Schedule A, B, or C, followed by the applicable number, for example: Schedule A, 213.3104(x)(x). Agencies are reminded that all excepted authorities are subject to the provisions of 5 CFR part 302 unless specifically exempted by OPM at the time of approval.
OPM maintains continuing information on the status of all Schedule A, B, and C appointing authorities. Interested parties needing information about specific authorities during the year may obtain information by writing to the Senior Executive Resources Services, Office of Personnel Management, 1900 E Street NW, Room 7412, Washington, DC 20415, or by calling 202-606-2246.
The following exceptions are current as of June 30, 2016.
(a) Office of Administration—
(1) Not to exceed 75 positions to provide administrative services and support to the White House Office.
(b) Office of Management and Budget—
(1) Not to exceed 20 positions at grades GS-5/15.
(2) Not to exceed 85 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of the Smarter Information Technology Delivery Initiative. This authority may be used to make permanent, time-limited and temporary appointments to Digital Services Expert positions (GS-0301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-14/15 level. No new appointments may be made under this authority after September 30, 2017.
(c) Council on Environmental Quality—
(1) Professional and technical positions in grades GS-9/15 on the staff of the Council.
(d)-(f) (Reserved)
(g) National Security Council—
(1) All positions on the staff of the Council.
(h) Office of Science and Technology Policy—
(1) Thirty positions of Senior Policy Analyst, GS-15; Policy Analyst, GS-11 through 14; and Policy Research Assistant, GS-9, for employment of anyone not to exceed five years on projects of a high priority nature.
(i) Office of National Drug Control Policy—
(1) Not to exceed 18 positions, GS-15 and below, of senior policy analysts and other personnel with expertise in drug-related issues and/or technical knowledge to aid in anti-drug abuse efforts.
(a) Office of the Secretary—
(1) All positions, GS-15 and below, on the staff of the Family Liaison Office, Director General of the Foreign Service and the Director of Personnel, Office of the Under Secretary for Management.
(2) (Reserved)
(b)-(f) (Reserved)
(g) Bureau of Population, Refugees, and Migration—
(1) Not to exceed 10 positions at grades GS-5/11 on the staff of the Bureau.
(h) Bureau of Administration—
(1) (Reserved)
(2) One position of the Director, Art in Embassies Program, GM-1001-15.
(3) (Reserved)
(a) Office of the Secretary—
(1) Not to exceed 20 positions at the equivalent of GS-13/15 or Senior Level (SL) to supplement permanent staff in the study of complex problems relating to international financial, economic,
(2) Covering no more than 100 positions supplementing permanent staff studying domestic economic and financial policy, with employment not to exceed four years.
(3) Not to exceed 100 positions in the Office of the Under Secretary for Terrorism and Financial Intelligence.
(4) Up to 35 temporary or time-limited positions at the GS-9/15 grade levels to support the organization, design, and stand-up activities for the Consumer Financial Protection Bureau (CFPB), as mandated by P.L. 111-203. This authority may be used for the following series: GS-0201, GS-0501, GS-0560, GS-1035, GS-1102, GS-1150, GS-1720, GS-1801, and GS-2210. No new appointments may be made under this authority after July 21, 2011, the designated transfer date of the CFPB.
(b)-(d) (Reserved)
(e) Internal Revenue Service—
(1) Twenty positions of investigator for special assignments.
(f) (Reserved)
(g) (Reserved, moved to DOJ)
(h) Office of Financial Stability—
(1) Positions needed to perform investment, risk, financial, compliance, and asset management requiring unique qualifications currently not established by OPM. Positions will be in the Office of Financial Stability and the General Schedule (GS) grade levels 12/15 or Senior Level (SL), for initial employment not to exceed four years. No new appointments may be made under this authority after December 31, 2012.
(a) Office of the Secretary—
(1)-(5) (Reserved)
(6) One Executive Secretary, US-USSR Standing Consultative Commission and Staff Analyst (SALT), Office of the Assistant Secretary of Defense (International Security Affairs).
(b) Entire Department (including the Office of the Secretary of Defense and the Departments of the Army, Navy, and Air Force)—
(1) Dependent School Systems overseas—Professional positions in Military Dependent School systems overseas.
(2) Positions in Attaché 1 systems overseas, including all professional and scientific positions in the Naval Research Branch Office in London.
(3) Positions of clerk-translator, translator, and interpreter overseas.
(4) Positions of Educational Specialist the incumbents of which will serve as Director of Religious Education on the staffs of the chaplains in the military services.
(5) Positions under the program for utilization of alien scientists, approved under pertinent directives administered by the Director of Defense Research and Engineering of the Department of Defense (DOD), when occupied by alien scientists initially employed under the program including those who have acquired United States citizenship during such employment.
(6) Positions in overseas installations of the DOD when filled by dependents of military or civilian employees of the U.S. Government residing in the area. Employment under this authority may not extend longer than two months following the transfer from the area or separation of a dependent's sponsor: Provided that
(i) A school employee may be permitted to complete the school year; and
(ii) An employee other than a school employee may be permitted to serve up to one additional year when the military department concerned finds that the additional employment is in the interest of management.
(7) Twenty secretarial and staff support positions at GS-12 or below on the White House Support Group.
(8) Positions in DOD research and development activities occupied by participants in the DOD Science and Engineering Apprenticeship Program for High School Students. Persons employed under this authority shall be bona fide high school students, at least 14 years old, pursuing courses related to the position occupied and limited to 1,040 working hours a year. Children of DOD employees may be appointed to these positions, notwithstanding the sons and daughters restriction, if the positions are in field activities at remote locations. Appointments under this authority may be made only to positions for which qualification standards established under 5 CFR part 302 are consistent with the education and experience standards established for comparable positions in the competitive service. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.
(9) (Reserved)
(10) Temporary or time-limited positions in direct support of U.S. Government efforts to rebuild and create an independent, free and secure Iraq and Afghanistan, when no other appropriate appointing authority applies. Positions will generally be located in Iraq or Afghanistan, but may be in other locations, including the United States, when directly supporting operations in Iraq or in Afghanistan. No new appointments may be made under this authority after September 30, 2014.
(11) Not to exceed 3,000 positions that require unique cyber security skills and knowledge to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, investigation, investigative analysis and cyber-related infrastructure inter-dependency analysis. This authority may be used to make permanent, time-limited and temporary appointments in the following occupational series: Security (GS-0080), computer engineers (GS-0854), electronic engineers (GS-0855), computer scientists (GS-1550), operations research (GS-1515), criminal investigators (GS-1811), telecommunications (GS-0391), and IT specialists (GS-2210). Within the scope of this authority, the U.S. Cyber Command is also authorized to hire miscellaneous administrative and program (GS-0301) series when those positions require unique cyber security skills and knowledge. All positions will be at the General Schedule (GS) grade levels 9/15 or equivalent. No new appointments may be made under this authority after December 31, 2017.
(c) (Reserved)
(d) General—
(1) Positions concerned with advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information, including scientific and technical positions in the intelligence function; and positions involved in the planning, programming, and management of intelligence resources when, in the opinion of OPM, it is impracticable to examine. This authority does not apply to positions assigned to cryptologic and communications intelligence activities/functions.
(2) Positions involved in intelligence-related work of the cryptologic intelligence activities of the military departments. This includes all positions of intelligence research specialist, and similar positions in the intelligence classification series; all scientific and technical positions involving the applications of engineering, physical, or
(e) Uniformed Services University of the Health Sciences—
(1) Positions of President, Vice Presidents, Assistant Vice Presidents, Deans, Deputy Deans, Associate Deans, Assistant Deans, Assistants to the President, Assistants to the Vice Presidents, Assistants to the Deans, Professors, Associate Professors, Assistant Professors, Instructors, Visiting Scientists, Research Associates, Senior Research Associates, and Postdoctoral Fellows.
(2) Positions established to perform work on projects funded from grants.
(f) National Defense University—
(1) Not to exceed 16 positions of senior policy analyst, GS-15, at the Strategic Concepts Development Center. Initial appointments to these positions may not exceed six years, but may be extended thereafter in 1-, 2-, or 3-year increments, indefinitely.
(g) Defense Communications Agency—
(1) Not to exceed 10 positions at grades GS-10/15 to staff and support the Crisis Management Center at the White House.
(h) Defense Acquisition University—
(1) The Provost and professors.
(i) George C. Marshall European Center for Security Studies, Garmisch, Germany—
(1) The Director, Deputy Director, and positions of professor, instructor, and lecturer at the George C. Marshall European Center for Security Studies, Garmisch, Germany, for initial employment not to exceed three years, which may be renewed in increments from one to two years thereafter.
(j) Asia-Pacific Center for Security Studies, Honolulu, Hawaii—
(1) The Director, Deputy Director, Dean of Academics, Director of College, deputy department chairs, and senior positions of professor, associate professor, and research fellow within the Asia Pacific Center. Appointments may be made not to exceed three years and may be extended for periods not to exceed three years.
(k) Business Transformation Agency—
(1) Fifty temporary or time-limited (not to exceed four years) positions, at grades GS-11/15. The authority will be used to appoint persons in the following series: Management and Program Analysis, GS-0343: Logistics Management, GS-0346; Financial Management Programs, GS-0501; Accounting, GS-0510; Computer Engineering, GS-0854; Business and Industry, GS-1101; Operations Research, GS-1515; Computer Science, GS-1550; General Supply, GS-2001; Supply Program Management, GS-2003; Inventory Management, GS-2010; and Information Technology, GS-2210.
(l) Special Inspector General for Afghanistan—
(1) Positions needed to establish the Special Inspector General for Afghanistan Reconstruction. These positions provide for the independent and objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated and otherwise made available for the reconstruction of Afghanistan. These positions are established at General Schedule (GS) grade levels for initial employment not to exceed three years and may, with prior approval of OPM, be extended for an additional period of two years. No new appointments may be made under this authority after January 31, 2011.
(a)-(c) (Reserved)
(d) U.S. Military Academy, West Point, New York—
(1) Civilian professors, instructors, teachers (except teachers at the Children's School), Cadet Social Activities Coordinator, Chapel Organist and Choir-Master, Director of Intercollegiate Athletics, Associate Director of Intercollegiate Athletics, Coaches, Facility Manager, Building Manager, three Physical Therapists (Athletic Trainers), Associate Director of Admissions for Plans and Programs, Deputy Director of Alumni Affairs; and Librarian when filled by an officer of the Regular Army retired from active service, and the Military Secretary to the Superintendent when filled by a U.S. Military Academy graduate retired as a regular commissioned officer for disability.
(e)-(f) (Reserved)
(g) Defense Language Institute—
(1) All positions (professors, instructors, lecturers) which require proficiency in a foreign language or knowledge of foreign language teaching methods.
(h) Army War College, Carlisle Barracks, PA—
(1) Positions of professor, instructor, or lecturer associated with courses of instruction of at least 10 months duration for employment not to exceed five years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(i) (Reserved)
(j) U.S. Military Academy Preparatory School, Fort Monmouth, New Jersey—
(1) Positions of Academic Director, Department Head, and Instructor.
(k) U.S. Army Command and General Staff College, Fort Leavenworth, Kansas—
(1) Positions of professor, associate professor, assistant professor, and instructor associated with courses of instruction of at least 10 months duration, for employment not to exceed up to five years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(a) General—
(1)-(14) (Reserved)
(15) Marine positions assigned to a coastal or seagoing vessel operated by a naval activity for research or training purposes.
(16) All positions necessary for the administration and maintenance of the official residence of the Vice President.
(b) Naval Academy, Naval Postgraduate School, and Naval War College—
(1) Professors, Instructors, and Teachers; the Director of Academic Planning, Naval Postgraduate School; and the Librarian, Organist-Choirmaster, Registrar, the Dean of Admissions, and Social Counselors at the Naval Academy.
(c) Chief of Naval Operations—
(1) One position at grade GS-12 or above that will provide technical, managerial, or administrative support on highly classified functions to the Deputy Chief of Naval Operations (Plans, Policy, and Operations).
(d) Military Sealift Command
(1) All positions on vessels operated by the Military Sealift Command.
(e)-(f) (Reserved)
(g) Office of Naval Research—
(1) Scientific and technical positions, GS-13/15, in the Office of Naval Research International Field Office which covers satellite offices within the Far East, Africa, Europe, Latin America, and the South Pacific. Positions are to be filled by personnel having specialized experience in scientific and/or technical disciplines of current interest to the Department of the Navy.
(a) Office of the Secretary—
(1) One Special Assistant in the Office of the Secretary of the Air Force. This position has advisory rather than operating duties except as operating or administrative responsibilities may be exercised in connection with the pilot studies.
(b) General—
(1) Professional, technical, managerial and administrative positions supporting space activities, when approved by the Secretary of the Air Force.
(2) Two hundred positions, serviced by Hill Air Force Base, Utah, engaged in interdepartmental activities in support of national defense projects involving scientific and technical evaluations.
(c) Norton and McClellan Air Force Bases, California—
(1) Not to exceed 20 professional positions, GS-11/15, in Detachments 6 and 51, SM-ALC, Norton and McClellan Air Force Bases, California, which will provide logistic support management to specialized research and development projects.
(d) U.S. Air Force Academy, Colorado—
(1) (Reserved)
(2) Positions of Professor, Associate Professor, Assistant Professor, and Instructor, in the Dean of Faculty, Commandant of Cadets, Director of Athletics, and Preparatory School of the United States Air Force Academy.
(e) (Reserved)
(f) Air Force Office of Special Investigations—
(1) Positions of Criminal Investigators/Intelligence Research Specialists, GS-5/15, in the Air Force Office of Special Investigations.
(g) Wright-Patterson Air Force Base, Ohio—
(1) Not to exceed eight positions, GS-12/15, in Headquarters Air Force Logistics Command, DCS Material Management, Office of Special Activities, Wright-Patterson Air Force Base, Ohio, which will provide logistic support management staff guidance to classified research and development projects.
(h) Air University, Maxwell Air Force Base, Alabama—
(1) Positions of Professor, Instructor, or Lecturer.
(i) Air Force Institute of Technology, Wright-Patterson Air Force Base, Ohio—
(1) Civilian deans and professors.
(j) Air Force Logistics Command—
(1) One Supervisory Logistics Management Specialist, GM-346-14, in Detachment 2, 2762 Logistics Management Squadron (Special), Greenville, Texas.
(k) Wright-Patterson AFB, Ohio—
(1) One position of Supervisory Logistics Management Specialist, GS-346-15, in the 2762nd Logistics Squadron (Special), at Wright-Patterson Air Force Base, Ohio.
(l) Air National Guard Readiness Center—
(1) One position of Commander, Air National Guard Readiness Center, Andrews Air Force Base, Maryland.
(a) General—
(1) Deputy U.S. Marshals employed on an hourly basis for intermittent service.
(2) Positions at GS-15 and below on the staff of an office of a special counsel.
(3)-(5) (Reserved)
(6) Positions of Program Manager and Assistant Program Manager supporting the International Criminal Investigative Training Assistance Program in foreign countries. Initial appointments under this authority may not exceed two years, but may be extended in 1-year increments for the duration of the in-country program.
(7) Positions necessary throughout DOJ, for the excepted service transfer of NDIC employees hired under Schedule A, 213.3110(d). Authority expires September 30, 2012.
(b) (Reserved)
(c) Drug Enforcement Administration—
(1) (Reserved)
(2) Four hundred positions of Intelligence Research Agent and/or Intelligence Operation Specialist in the GS-132 series, grades GS-9/15.
(3) Not to exceed 200 positions of Criminal Investigator (Special Agent). New appointments may be made under this authority only at grades GS-7/11.
(d) (Reserved, moved to Justice)
(e) Bureau of Alcohol, Tobacco, and Firearms—
(1) One hundred positions of Criminal Investigator for special assignments.
(2) One non-permanent Senior Level (SL) Criminal Investigator to serve as a senior advisor to the Assistant Director (Firearms, Explosives, and Arson).
(a) (Revoked 11/19/2009)
(b) Law Enforcement Policy—
(1) Ten positions for oversight policy and direction of sensitive law enforcement activities.
(c) Homeland Security Labor Relations Board/Homeland Security Mandatory Removal Board—
(1) Up to 15 Senior Level and General Schedule (or equivalent) positions.
(d) General—
(1) Not to exceed 1,000 positions to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, intelligence analysis, investigation, investigative analysis and cyber-related infrastructure interdependency analysis requiring unique qualifications currently not established by OPM. Positions will be at the General Schedule (GS) grade levels 9/15. No new appointments may be made under this authority after March 31, 2017.
(e) Papago Indian Agency—Not to exceed 25 positions of Immigration and Customs Enforcement (ICE) Tactical Officers (Shadow Wolves) in the Papago Indian Agency in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood. (Formerly 213.3105(b)(9))
(f) U.S. Citizenship and Immigration Services
(1) Reserved. (Formerly 213.3110(b)(1))
(2) Not to exceed 500 positions of interpreters and language specialists, GS-1040-5/9. (Formerly 213.3110(b)(2))
(3) Reserved. (Formerly 213.3110(b)(3))
(g) U.S. Immigration and Customs Enforcement—
(1) Not to exceed 200 staff positions, GS-15 and below, for an emergency staff to provide health related services to foreign entrants. (Formerly 213.3116(b)(16))
(h) Federal Emergency Management Agency—
(1) Field positions at grades GS-15 and below, or equivalent, which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency. Persons may not be employed under this authority for long-term duties or for work not directly necessitated by the emergency response effort. (Formerly 213.3195(a))
(2) Not to exceed 30 positions at grades GS-15 and below in the Offices of Executive Administration, General Counsel, Inspector General, Comptroller, Public Affairs, Personnel, Acquisition Management, and the State and Local Program and Support Directorate which are engaged in work
(3) Not to exceed 350 professional and technical positions at grades GS-5/15, or equivalent, in Mobile Emergency Response Support Detachments (MERS). (Formerly 213.3195(c))
(i) U.S. Coast Guard—
(1) Reserved. (Formerly 213.3194(a))
(2) Lamplighters. (Formerly 213.3194(b))
(3) Professors, Associate Professors, Assistant Professors, Instructors, one Principal Librarian, one Cadet Hostess, and one Psychologist (Counseling) at the Coast Guard Academy, New London, Connecticut. (Formerly 213.3194(c))
(a) General—
(1) Technical, maintenance, and clerical positions at or below grades GS-7, WG-10, or equivalent, in the field service of the Department of the Interior, when filled by the appointment of persons who are certified as maintaining a permanent and exclusive residence within, or contiguous to, a field activity or district, and as being dependent for livelihood primarily upon employment available within the field activity of the Department.
(2) All positions on Government-owned ships or vessels operated by the Department of the Interior.
(3) Temporary or seasonal caretakers at temporarily closed camps or improved areas to maintain grounds, buildings, or other structures and prevent damages or theft of Government property. Such appointments shall not extend beyond 130 working days a year without the prior approval of OPM.
(4) Temporary, intermittent, or seasonal field assistants at GS-7, or its equivalent, and below in such areas as forestry, range management, soils, engineering, fishery and wildlife management, and with surveying parties. Employment under this authority may not exceed 180 working days a year.
(5) Temporary positions established in the field service of the Department for emergency forest and range fire prevention or suppression and blister rust control for not to exceed 180 working days a year: Provided, that an employee may work as many as 220 working days a year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property.
(6) Persons employed in field positions, the work of which is financed jointly by the Department of the Interior and cooperating persons or organizations outside the Federal service.
(7) All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of the Interior is responsible for defining the term “Indian.”
(8) Temporary, intermittent, or seasonal positions at GS-7 or below in Alaska, as follows: Positions in nonprofessional mining activities, such as those of drillers, miners, caterpillar operators, and samplers. Employment under this authority shall not exceed 180 working days a year and shall be appropriate only when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(9) Temporary, part-time, or intermittent employment of mechanics, skilled laborers, equipment operators, and tradesmen on construction, repair, or maintenance work not to exceed 180 working days a year in Alaska, when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(10) Seasonal airplane pilots and airplane mechanics in Alaska, not to exceed 180 working days a year.
(11) Temporary staff positions in the Youth Conservation Corps Centers operated by the Department of the Interior. Employment under this authority shall not exceed 11 weeks a year except with prior approval of OPM.
(12) Positions in the Youth Conservation Corps for which pay is fixed at the Federal minimum wage rate. Employment under this authority may not exceed 10 weeks.
(b) (Reserved)
(c) Indian Arts and Crafts Board—
(1) The Executive Director
(d) (Reserved)
(e) Office of the Assistant Secretary, Territorial and International Affairs—
(1) (Reserved)
(2) Not to exceed four positions of Territorial Management Interns, grades GS-5, GS-7, or GS-9, when filled by territorial residents who are U.S. citizens from the Virgin Islands or Guam; U.S. nationals from American Samoa; or in the case of the Northern Marianas, will become U.S. citizens upon termination of the U.S. trusteeship. Employment under this authority may not exceed six months.
(3) (Reserved)
(4) Special Assistants to the Governor of American Samoa who perform specialized administrative, professional, technical, and scientific duties as members of his or her immediate staff.
(f) National Park Service—
(1) (Reserved)
(2) Positions established for the administration of Kalaupapa National Historic Park, Molokai, Hawaii, when filled by appointment of qualified patients and Native Hawaiians, as provided by Public Law 95-565.
(3) Seven full-time permanent and 31 temporary, part-time, or intermittent positions in the Redwood National Park, California, which are needed for rehabilitation of the park, as provided by Public Law 95-250.
(4) One Special Representative of the Director.
(5) All positions in the Grand Portage National Monument, Minnesota, when filled by the appointment of recognized members of the Minnesota Chippewa Tribe.
(g) Bureau of Reclamation—
(1) Appraisers and examiners employed on a temporary, intermittent, or part-time basis on special valuation or prospective-entrymen-review projects where knowledge of local values on conditions or other specialized qualifications not possessed by regular Bureau employees are required for successful results. Employment under this provision shall not exceed 130 working days a year in any individual case: Provided, that such employment may, with prior approval of OPM, be extended for not to exceed an additional 50 working days in any single year.
(h) Office of the Deputy Assistant Secretary for Territorial Affairs—
(1) Positions of Territorial Management Interns, GS-5, when filled by persons selected by the Government of the Trust Territory of the Pacific Islands. No appointment may extend beyond one year.
(a) General—
(1) Agents employed in field positions the work of which is financed jointly by the Department and cooperating persons, organizations, or governmental agencies outside the Federal service. Except for positions for which selection
(2)-(4) (Reserved)
(5) Temporary, intermittent, or seasonal employment in the field service of the Department in positions at and below GS-7 and WG-10 in the following types of positions: Field assistants for sub professional services; agricultural helpers, helper-leaders, and workers in the Agricultural Research Service and the Animal and Plant Health Inspection Service; and subject to prior OPM approval granted in the calendar year in which the appointment is to be made, other clerical, trades, crafts, and manual labor positions. Total employment under this subparagraph may not exceed 180 working days in a service year: Provided, that an employee may work as many as 220 working days in a service year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property. This paragraph does not cover trades, crafts, and manual labor positions covered by paragraph (i) of Sec. 213.3102 or positions within the Forest Service.
(6)-(7) (Reserved)
(b)-(c) (Reserved)
(d) Farm Service Agency—
(1) (Reserved)
(2) Members of State Committees: Provided, that employment under this authority shall be limited to temporary intermittent (WAE) positions whose principal duties involve administering farm programs within the State consistent with legislative and Departmental requirements and reviewing national procedures and policies for adaptation at State and local levels within established parameters. Individual appointments under this authority are for one year and may be extended only by the Secretary of Agriculture or his designee. Members of State Committees serve at the pleasure of the Secretary.
(e) Rural Development—
(1) (Reserved)
(2) County committeemen to consider, recommend, and advise with respect to the Rural Development program.
(3)-(5) (Reserved)
(6) Professional and clerical positions in the Trust Territory of the Pacific Islands when occupied by indigenous residents of the Territory to provide financial assistance pursuant to current authorizing statutes.
(f) Agricultural Marketing Service—
(1) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-9 and below in the tobacco, dairy, and poultry commodities; Meat Acceptance Specialists, GS-11 and below; Clerks, Office Automation Clerks, and Computer Clerks at GS-5 and below; Clerk-Typists at grades GS-4 and below; and Laborers under the Wage System. Employment under this authority is limited to either 1,280 hours or 180 days in a service year.
(2) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-11 and below in the cotton, raisin, peanut, and processed and fresh fruit and vegetable commodities and the following positions in support of these commodities: Clerks, Office Automation Clerks, and Computer Clerks and Operators at GS-5 and below; Clerk-Typists at grades GS-4 and below; and, under the Federal Wage System, High Volume Instrumentation (HVI) Operators and HVI Operator Leaders at WG/WL-2 and below, respectively, Instrument Mechanics/Workers/Helpers at WG-10 and below, and Laborers. Employment under this authority may not exceed 180 days in a service year. In unforeseen situations such as bad weather or crop conditions, unanticipated plant demands, or increased imports, employees may work up to 240 days in a service year. Cotton Agricultural Commodity Graders, GS-5, may be employed as trainees for the first appointment for an initial period of six months for training without regard to the service year limitation.
(3) Milk Market Administrators
(4) All positions on the staffs of the Milk Market Administrators.
(g)-(k) (Reserved)
(l) Food Safety and Inspection Service—
(1)-(2) (Reserved)
(3) Positions of Meat and Poultry Inspectors (Veterinarians at GS-11 and below and non-Veterinarians at appropriate grades below GS-11) for employment on a temporary, intermittent, or seasonal basis, not to exceed 1,280 hours a year.
(m) Grain Inspection, Packers and Stockyards Administration—
(1) One hundred and fifty positions of Agricultural Commodity Aid (Grain), GS-2/4; 100 positions of Agricultural Commodity Technician (Grain), GS-4/7; and 60 positions of Agricultural Commodity Grader (Grain), GS-5/9, for temporary employment on a part-time, intermittent, or seasonal basis not to exceed 1,280 hours in a service year.
(n) Alternative Agricultural Research and Commercialization Corporation—
(1) Executive Director
(a) General—
(1)-(2) (Reserved)
(3) Not to exceed 50 scientific and technical positions whose duties are performed primarily in the Antarctic. Incumbents of these positions may be stationed in the continental United States for periods of orientation, training, analysis of data, and report writing.
(b)-(c) (Reserved)
(d) Bureau of the Census—
(1) Managers, supervisors, technicians, clerks, interviewers, and enumerators in the field service, for time-limited employment to conduct a census.
(2) Current Program Interviewers employed in the field service.
(e)-(h) (Reserved)
(i) Office of the Under Secretary for International Trade—
(1) Fifteen positions at GS-12 and above in specialized fields relating to international trade or commerce in units under the jurisdiction of the Under Secretary for International Trade. Incumbents will be assigned to advisory rather than to operating duties, except as operating and administrative responsibility may be required for the conduct of pilot studies or special projects. Employment under this authority will not exceed two years for an individual appointee.
(2) (Reserved)
(3) Not to exceed 15 positions in grades GS-12/15, to be filled by persons qualified as industrial or marketing specialists; who possess specialized knowledge and experience in industrial production, industrial operations and related problems, market structure and trends, retail and wholesale trade practices, distribution channels and costs, or business financing and credit procedures applicable to one or more of the current segments of U.S. industry served by the Under Secretary for International Trade, and the subordinate components of his organization which are involved in Domestic Business matters. Appointments under this authority may be made for a period not to exceed two years and may, with prior
(j) National Oceanic and Atmospheric Administration—
(1)-(2) (Reserved)
(3) All civilian positions on vessels operated by the National Ocean Service.
(4) Temporary positions required in connection with the surveying operations of the field service of the National Ocean Service. Appointment to such positions shall not exceed eight months in any one calendar year.
(k) (Reserved)
(l) National Telecommunication and Information Administration—
(1) Thirty-eight professional positions in grades GS-13/15.
(a) Office of the Secretary—
(1) Chairman and five members, Employees' Compensation Appeals Board.
(2) Chairman and eight members, Benefits Review Board.
(b)-(c) (Reserved)
(d) Employment and Training Administration—
(1) Not to exceed 10 positions of Supervisory Manpower Development Specialist and Manpower Development Specialist, GS-7/15, in the Division of Indian and Native American Programs, when filled by the appointment of persons of one-fourth or more Indian blood. These positions require direct contact with Indian tribes and communities for the development and administration of comprehensive employment and training programs.
(a) General—
(1) Intermittent positions, at GS-15 and below and WG-10 and below, on teams under the National Disaster Medical System including Disaster Medical Assistance Teams and specialty teams, to respond to disasters, emergencies, and incidents/events involving medical, mortuary and public health needs.
(b) Public Health Service—
(1) (Reserved)
(2) Positions at Government sanatoria when filled by patients during treatment or convalescence.
(3) (Reserved)
(4) Positions concerned with problems in preventive medicine financed or participated in by the Department of Health and Human Services and a cooperating State, county, municipality, incorporated organization, or an individual in which at least one-half of the expense is contributed by the participating agency either in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(5)-(6) (Reserved)
(7) Not to exceed 50 positions associated with health screening programs for refugees.
(8) All positions in the Public Health Service and other positions in the Department of Health and Human Services directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of Health and Human Services is responsible for defining the term “Indian.”
(9) (Reserved)
(10) Health care positions of the National Health Service Corps for employment of any one individual not to exceed four years of service in health manpower shortage areas.
(11)-(15) (Reserved)
(c)-(e) (Reserved)
(f) The President's Council on Physical Fitness—
(1) Four staff assistants.
(a) Positions concerned with problems in education financed and participated in by the Department of Education and a cooperating State educational agency, or university or college, in which there is joint responsibility for selection and supervision of employees, and at least one-half of the expense is contributed by the cooperating agency in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(a) All positions
(a) Construction Division—
(1) Temporary construction workers paid from “purchase and hire” funds and appointed for not to exceed the duration of a construction project.
(b) Alcoholism Treatment Units and Drug Dependence Treatment Centers—
(1) Not to exceed 400 positions of rehabilitation counselors, GS-3 through GS-11, in Alcoholism Treatment Units and Drug Dependence Treatment Centers, when filled by former patients.
(c) Board of Veterans' Appeals—
(1) Positions, GS-15, when filled by a member of the Board. Except as provided by section 201(d) of Public Law 100-687, appointments under this authority shall be for a term of nine years, and may be renewed.
(2) Positions, GS-15, when filled by a non-member of the Board who is awaiting Presidential approval for appointment as a Board member.
(d) Vietnam Era Veterans Readjustment Counseling Service—
(1) Not to exceed 600 positions at grades GS-3/11, involved in the Department's Vietnam Era Veterans Readjustment Counseling Service.
(e) Not to exceed 75 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of the Smarter Information Technology Delivery Initiative. This authority may be used to make permanent, time-limited and temporary appointments to non-supervisory Digital Services Expert positions (GS-0301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-15 level. No new appointments may be made under this authority after September 30, 2017.
(a) When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in the area under the Small Business Act, as amended. Service under this authority may not exceed four years, and no more than two years may be spent on a single disaster. Exception to this time limit may only be made with prior Office of Personnel Management approval. Appointments under this authority may not be used to extend the 2-year service limit contained below. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(b) When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in that area under the Small Business Act, as amended. No one may serve under this authority for more than an aggregate of two years without a break in service of at least six months. Persons who have had more than two years of service under paragraph (a) of this section must have a break in service of at least eight months following such service before
(a)-(b) (Reserved)
(c) Temporary or time-limited positions that are directly related with resolving failing insured depository institutions; financial companies; or brokers and dealers; covered by the Dodd-Frank Wall Street Reform and Consumer Protection Act, including but not limited to, the marketing and sale of institutions and any associated assets; paying insured depositors; and managing receivership estates and all associated receivership management activities, up to termination. Time limited appointments under this authority may not exceed seven years.
(a) (Reserved)
(b) Positions when filled by member-residents of the Home.
(a) Not to exceed 203 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of the Smarter Information Technology Delivery Initiative. This authority may be used nationwide to make permanent, time-limited and temporary appointments to Digital Services Expert positions (GS-301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-11t o 15. No new appointments may be made under this authority after September 30, 2017.
(a) State Directors
(a) One hundred and fifty alien scientists having special qualifications in the fields of aeronautical and space research where such employment is deemed by the Administrator of the National Aeronautics and Space Administration to be necessary in the public interest.
(a) Arizona District Offices—
(1) Six positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(b) New Mexico—
(1) Seven positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of New Mexico when filled by the appointment of persons of one-fourth or more Indian blood.
(c) Alaska—
(1) Two positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Alaska when filled by the appointments of persons of one-fourth or more Alaskan Native blood (Eskimos, Indians, or Aleuts).
(a) (Reserved)
(a) (Reserved)
(b) (Reserved)
(a) (Reserved, expired 3/31/2004)
(a) (Reserved, expired 9/30/2007)
(b)
(1) Positions of Resident Country Directors and Deputy Resident Country Directors. The length of appointments will correspond to the length or term of the compact agreements made between the MCC and the country in which the MCC will work, plus one additional year to cover pre- and post-compact agreement related activities.
(a) (Reserved)
(b) Smithsonian Tropical Research Institute—All positions located in Panama which are part of or which support the Smithsonian Tropical Research Institute.
(c) National Museum of the American Indian—Positions at GS-15 and below requiring knowledge of, and experience in, tribal customs and culture. Such positions comprise approximately 10 percent of the Museum's positions and, generally, do not include secretarial, clerical, administrative, or program support positions.
(a) One Asian Studies Program Administrator, one International Security Studies Program Administrator, one Latin American Program Administrator, one Russian Studies Program Administrator, two Social Science Program Administrators, one Middle East Studies Program Administrator, one African Studies Program Administrator, one Global Sustainability and Resilience Program Administrator, one Canadian Studies Program Administrator; one China Studies Program Administrator, and one Science, Technology and Innovation Program Administrator.
(a) (Reserved, expired 9/23/1998)
(a) Executive Director
(a) National Endowment for the Arts—
(1) Artistic and related positions at grades GS-13/15 engaged in the review, evaluation and administration of applications and grants supporting the arts, related research and assessment, policy and program development, arts education, access programs and advocacy, or evaluation of critical arts projects and outreach programs. Duties require artistic stature, in-depth knowledge of arts disciplines and/or artistic-related leadership qualities.
(a) One Enterprise Development Fund Manager. Appointment is limited to four years unless extended by OPM.
(a)-(c) (Reserved)
(d) Part-time and intermittent positions of test examiners at grades GS-8 and below.
(a)-(d) (Reserved)
(e) Maritime Administration—
(1)-(2) (Reserved)
(3) All positions on Government-owned vessels or those bareboats chartered to the Government and operated by or for the Maritime Administration.
(4)-(5) (Reserved)
(6) U.S. Merchant Marine Academy, positions of: Professors, Instructors, and
(7) U.S. Merchant Marine Academy positions of: Associate Dean; Registrar; Director of Admissions; Assistant Director of Admissions; Director, Office of External Affairs; Placement Officer; Administrative Librarian; Shipboard Training Assistant; three Academy Training Representatives; and one Education Program Assistant.
(f) Up to 40 positions at the GS-13/15 grade levels and within authorized SL allocations necessary to support the following credit agency programs of the Department: The Federal Highway Administration's Transportation Infrastructure Finance and Innovation Act Program, the Federal Railroad Administration's Railroad Rehabilitation and Improvement Financing Program, the Federal Maritime Administration's Title XI Program, and the Office of the Secretary's Office of Budget and Programs Credit Staff. This authority may be used to make temporary, time-limited, or permanent appointments, as the DOT deems appropriate, in the following occupational series: Director or Deputy Director SL-301/340, Origination Team Lead SL-301, Deputy Director/Senior Financial Analyst GS-1160, Origination Financial Policy Advisor GS-0301, Credit Budgeting Team Lead GS-1160, Credit Budgeting Financial Analysts GS-1160, Portfolio Monitoring Lead SL-1160, Portfolio Monitoring Financial Analyst GS-1160, Financial Analyst GS-1160. No new appointments may be made under this authority after December 31, 2014.
(a) (Reserved)
(b) Office of the Special Representative for Trade Negotiations—
(1) Seventeen positions of economist at grades GS-12/15.
(a) (1) One non-permanent senior level position to serve as Science and Technology Advisor to the Secretary.
(b)-(c) (Reserved)
(d) Seventeen positions on the household staff of the President's Guest House (Blair and Blair-Lee Houses).
(e) (Reserved)
(f) Scientific, professional, and technical positions at grades GS-12/15 when filled by persons having special qualifications in foreign policy matters. Total employment under this authority may not exceed four years.
(a) Positions of Deputy Comptroller of the Currency, Chief National Bank Examiner, Assistant Chief National Bank Examiner, Regional Administrator of National Banks, Deputy Regional Administrator of National Banks, Assistant to the Comptroller of the Currency, National Bank Examiner, Associate National Bank Examiner, and Assistant National Bank Examiner, whose salaries are paid from assessments against national banks and other financial institutions.
(b)-(c) (Reserved)
(d) (Reserved) Transferred to 213.3211(b)
(e) (Reserved) Transferred to 213.3210(f)
(a) Office of the Secretary—
(1) (Reserved)
(2) Professional positions at GS-11/15 involving systems, costs, and economic analysis functions in the Office of the Assistant Secretary (Program Analysis and Evaluation); and in the Office of the Deputy Assistant Secretary (Systems Policy and Information) in the Office of the Assistant Secretary (Comptroller).
(3)-(4) (Reserved)
(5) Four Net Assessment Analysts.
(b) Interdepartmental activities—
(1) Seven positions to provide general administration, general art and information, photography, and/or visual information support to the White House Photographic Service.
(2) Eight positions, GS-15 or below, in the White House Military Office, providing support for airlift operations, special events, security, and/or administrative services to the Office of the President.
(c) National Defense University—
(1) Sixty-one positions of Professor, GS-13/15, for employment of any one individual on an initial appointment not to exceed three years, which may be renewed in any increment from one to six years indefinitely thereafter.
(d) General—
(1) One position of Law Enforcement Liaison Officer (Drugs), GS-0301-15, U.S. European Command.
(2) Acquisition positions at grades GS-5/11, whose incumbents have successfully completed the required course of education as participants in the Department of Defense scholarship program authorized under 10 U.S.C. 1744.
(e) Office of the Inspector General—
(1) Positions of Criminal Investigator, GS-1811-5/15.
(f) Department of Defense Polygraph Institute, Fort McClellan, Alabama—
(1) One Director, GM-15.
(g) Defense Security Assistance Agency—
All faculty members with instructor and research duties at the Defense Institute of Security Assistance Management, Wright Patterson Air Force Base, Dayton, Ohio. Individual appointments under this authority will be for an initial 3-year period, which may be followed by an appointment of indefinite duration.
(a) U.S. Army Command and General Staff College—
(1) Seven positions of professors, instructors, and education specialists. Total employment of any individual under this authority may not exceed four years.
(a) Naval Underwater Systems Center, New London, Connecticut—
(1) One position of Oceanographer, grade GS-14, to function as project director and manager for research in the weapons systems applications of ocean eddies.
(b) Armed Forces Staff College, Norfolk, Virginia—All civilian faculty positions of professors, instructors, and teachers on the staff of the Armed Forces Staff College, Norfolk, Virginia.
(c) Defense Personnel Security Research and Education Center—One Director and four Research Psychologists at the professor or GS-15 level.
(d) Marine Corps Command and Staff College—All civilian professor positions.
(e) Executive Dining facilities at the Pentagon—One position of Staff Assistant, GS-0301, whose incumbent will manage the Navy's Executive Dining facilities at the Pentagon.
(f) (Reserved)
(a) Air Research Institute at the Air University, Maxwell Air Force Base, Alabama—Not to exceed four
(b)-(c) (Reserved)
(d) Air University—Positions of Instructor or professional academic staff at the Air University associated with courses of instruction of varying durations, for employment not to exceed three years, which may be renewed for an indefinite period thereafter.
(e) U.S. Air Force Academy, Colorado—One position of Director of Development and Alumni Programs, GS-0301-13.
(a) Drug Enforcement Administration—
Criminal Investigator (Special Agent) positions in the Drug Enforcement Administration. New appointments may be made under this authority only at grades GS-5/11. Service under the authority may not exceed four years. Appointments made under this authority may be converted to career or career-conditional appointments under the provisions of Executive Order 12230, subject to conditions agreed upon between the Department and OPM.
(b) (Reserved)
(c) Not to exceed 400 positions at grades GS-5/15 assigned to regional task forces established to conduct special investigations to combat drug trafficking and organized crime.
(d) (Reserved)
(e) United States Trustees—Positions, other than secretarial, GS-6/15, requiring knowledge of the bankruptcy process, on the staff of the offices of United States Trustees or the Executive Office for U.S. Trustees.
(f) Bureau of Alcohol, Tobacco, and Firearms
(1) Positions, grades GS-5/12 (or equivalent), of Criminal Investigator. Service under this authority may not exceed three years and 120 days.
(a) Coast Guard.
(1) (Reserved)
(b) Secret Service—Positions concerned with the protection of the life and safety of the President and members of his immediate family, or other persons for whom similar protective services are prescribed by law, when filled in accordance with special appointment procedures approved by OPM. Service under this authority may not exceed:
(1) a total of four years; or
(2) 120 days following completion of the service required for conversion under Executive Order 11203.
(a) Foreign Agricultural Service—
(1) Positions of a project nature involved in international technical assistance activities. Service under this authority may not exceed five years on a single project for any individual unless delayed completion of a project justifies an extension up to but not exceeding two years.
(b) General—
(1) Temporary positions of professional Research Scientists, GS-15 or below, in the Agricultural Research Service, Economic Research Service, and the Forest Service, when such positions are established to support the Research Associateship Program and are filled by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and the agency. Appointments are limited to proposals approved by the appropriate Administrator. Appointments may be made for initial periods not to exceed two years and may be extended for up to two additional years. Extensions beyond four years, up to a maximum of two additional years, may be granted, but only in very rare and unusual circumstances, as determined by the Human Resources Officer for the Research, Education, and Economics Mission Area, or the Human Resources Officer, Forest Service.
(2) Not to exceed 55 Executive Director positions, GM-0301-14/15, with the State Rural Development Councils in support of the Presidential Rural Development Initiative.
(a) Bureau of the Census—
(1) (Reserved)
(2) Not to exceed 50 Community Services Specialist positions at the equivalent of GS-5/12.
(b)-(c) (Reserved)
(d) National Telecommunications and Information Administration—
(1) Not to exceed 10 Telecommunications Policy Analysts, grades GS-11/15. Employment under this authority may not exceed two years.
(a) Administrative Review Board—Chair and a maximum of four additional Members.
(b) (Reserved)
(c) Bureau of International Labor Affairs—
(1) Positions in the Office of Foreign Relations, which are paid by outside funding sources under contracts for specific international labor market technical assistance projects. Appointments under this authority may not be extended beyond the expiration date of the project.
(a) Seventy-five positions, not to exceed GS-13, of a professional or analytical nature when filled by persons, other than college faculty members or candidates working toward college degrees, who are participating in mid-career development programs authorized by Federal statute or regulation, or sponsored by private nonprofit organizations, when a period of work experience is a requirement for completion of an organized study program. Employment under this authority shall not exceed one year.
(b) Fifty positions, GS-7/11, concerned with advising on education policies, practices, and procedures under unusual and abnormal conditions. Persons employed under this provision must be bona fide elementary school and high school teachers. Appointments under this authority may be made for a period of not to exceed one year, and may, with the prior approval of the Office of Personnel Management, be extended for an additional period of one year.
(a) Not to exceed 800 principal investigatory, scientific, professional, and technical positions at grades GS-11 and above in the medical research program.
(b) Not to exceed 25 Criminal Investigator (Undercover) positions, GS-1811-5/12, conducting undercover investigations in the Veterans Health Administration (VA) supervised by the VA, Office of Inspector General. Initial appointments shall be greater than one year, but not to exceed four years and may be extended indefinitely in 1-year increments.
(a) International Broadcasting Bureau—
(1) Not to exceed 200 positions at grades GS-15 and below in the Office of Cuba Broadcasting. Appointments may not be made under this authority to administrative, clerical, and technical support positions.
(a) (Reserved)
(b) Director, Health Care Services; Director, Member Services; Director, Logistics; and Director, Plans and Programs.
(a) Executive Director, National Historical Publications and Records Commission.
(a) Not to exceed 40 positions of Astronaut Candidates at grades GS-11/15. Employment under this authority may not exceed three years.
(a) One position of Deputy Director; and one position of Associate Director of the Division of Supervision, Enforcement, and Fair Lending.
(a) (Reserved)
(a) (Reserved)
(b) Freer Gallery of Art—
(1) Not to exceed four Oriental Art Restoration Specialists at grades GS-9/15.
(a) Two Program Coordinators.
(a) Naval Home, Gulfport, Mississippi—
(1) One Resource Management Officer position and one Public Works Officer position, GS/GM-15 and below.
(a) (Reserved)
(b) National Endowment for the Humanities—
(1) Professional positions at grades GS-11/15 engaged in the review, evaluation, and administration of grants supporting scholarship, education, and public programs in the humanities, the duties of which require in-depth knowledge of a discipline of the humanities.
(a) Not to exceed eight positions of Associate Director at the Executive Seminar Centers at grades GS-13/14. Appointments may be made for any period up to three years and may be extended without prior approval for any individual. Not more than half of the authorized faculty positions at any one Executive Seminar Center may be filled under this authority.
(b) Federal Executive Institute—No more than 57 positions of faculty members at grades GS-13/15. Initial appointments under this authority may be made for any period up to three years and may be extended in 1, 2, or 3 year increments.
5 U.S.C. 3301 and 3302; E.O.10577, 3 CFR, 1954-1958 Comp., p.218.
Office of Personnel Management.
Notice.
This provides the consolidated notice of all agency specific excepted authorities, approved by the Office of Personnel Management (OPM), under Schedule A, B, and C, as of June 30, 2017, as required by Civil Service Rule VI, Exceptions from the Competitive Service.
Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
Civil Service Rule VI (5 CFR 6.1) requires the Office of Personnel Management (OPM) to publish notice of exceptions granted under Schedule A, B, and C. Under 5 CFR 213.103(a) it is required that all Schedule A, B, and C appointing authorities available for use by all agencies to be published as regulations in the
When making appointments under an agency-specific authority, agencies should first list the appropriate Schedule A, B, or C, followed by the applicable number, for example: Schedule A, 213.3104(x)(x). Agencies are reminded that all excepted authorities are subject to the provisions of 5 CFR part 302 unless specifically exempted by OPM at the time of approval.
OPM maintains continuing information on the status of all Schedule A, B, and C appointing authorities. Interested parties needing information about specific authorities during the year may obtain information by writing to the Senior Executive Resources Services, Office of Personnel Management, 1900 E Street NW, Room 7412, Washington, DC 20415, or by calling (202) 606-2246.
The following exceptions are current as of June 30, 2017
(a)
(1) Not to exceed 75 positions to provide administrative services and support to the White House Office.
(b)
(1) Not to exceed 20 positions at grades GS-5/15.
(2) Not to Exceed 34 positions that require unique technical skills needed for the re-designing and re-building of digital interfaces between citizens, businesses, and government as a part of Smarter Information Technology Delivery Initiative. This authority may be used to make permanent, time-limited and temporary appointments to Digital Services Expert positions (GS-301) directly related to the implementation of the Smarter Information Technology Delivery Initiative at the GS-14 to 15 level. No new appointments may be made under this authority after September 30, 2017.
(c)
(1) Professional and technical positions in grades GS-9 through 15 on the staff of the Council.
(1) All positions on the staff of the Council.
(1) Thirty positions of Senior Policy Analyst, GS-15; Policy Analyst, GS-11/14; and Policy Research Assistant, GS-9, for employment of anyone not to exceed 5 years on projects of a high priority nature.
(1) Not to exceed 18 positions, GS-15 and below, of senior policy analysts and other personnel with expertise in drug-related issues and/or technical knowledge to aid in anti-drug abuse efforts.
(1) All positions, GS-15 and below, on the staff of the Family Liaison Office, Director General of the Foreign Service and the Director of Personnel, Office of the Under Secretary for Management.
(2) (Reserved)
(1) Not to exceed 10 positions at grades GS-5 through 11 on the staff of the Bureau.
(1) (Reserved)
(2) One position of the Director, Art in Embassies Program, GM-1001-15.
(3) (Reserved)
(1) Not to exceed 20 positions at the equivalent of GS-13 through GS-15 or Senior Level (SL) to supplement permanent staff in the study of complex problems relating to international financial, economic, trade, and energy policies and programs of the Government, when filled by individuals with special qualifications for the particular study being undertaken. Employment under this authority may not exceed 4 years.
(2) Covering no more than 100 positions supplementing permanent staff studying domestic economic and financial policy, with employment not to exceed 4 years.
(3) Not to exceed 100 positions in the Office of the Under Secretary for Terrorism and Financial Intelligence.
(4) Up to 35 temporary or time-limited positions at the GS-9 through 15 grade levels to support the organization, design, and stand-up activities for the Consumer Financial Protection Bureau (CFPB), as mandated by P.L. 111-203. This authority may be used for the following series: GS-201, GS-501, GS-560, GS-1035, GS-1102, GS-1150, GS-1720, GS-1801, and GS-2210. No new appointments may be made under this authority after July 21, 2011, the designated transfer date of the CFPB.
(1) Twenty positions of investigator for special assignments.
(1) Positions needed to perform investment, risk, financial, compliance, and asset management requiring unique qualifications currently not established by OPM. Positions will be in the Office of Financial Stability and the General Schedule (GS) grade levels 12-15 or Senior Level (SL), for initial employment not to exceed 4 years. No new appointments may be made under this authority after December 31, 2012.
(1)-(5) (Reserved)
(6) One Executive Secretary, U.S.-USSR Standing Consultative Commission and Staff Analyst (SALT), Office of the Assistant Secretary of Defense (International Security Affairs).
(1) Dependent School Systems overseas—Professional positions in Military Dependent School systems overseas.
(2) Positions in Attaché 1 systems overseas, including all professional and scientific positions in the Naval Research Branch Office in London.
(3) Positions of clerk-translator, translator, and interpreter overseas.
(4) Positions of Educational Specialist the incumbents of which will serve as Director of Religious Education on the staffs of the chaplains in the military services.
(5) Positions under the program for utilization of alien scientists, approved under pertinent directives administered by the Director of Defense Research and Engineering of the Department of Defense, when occupied by alien scientists initially employed under the program including those who have acquired United States citizenship during such employment.
(6) Positions in overseas installations of the DOD when filled by dependents of military or civilian employees of the U.S. Government residing in the area. Employment under this authority may not extend longer than 2 months following the transfer from the area or separation of a dependent's sponsor: Provided that
(i) A school employee may be permitted to complete the school year; and
(ii) An employee other than a school employee may be permitted to serve up to 1 additional year when the military department concerned finds that the additional employment is in the interest of management.
(7) Twenty secretarial and staff support positions at GS-12 or below on the White House Support Group.
(8) Positions in DOD research and development activities occupied by participants in the DOD Science and Engineering Apprenticeship Program for High School Students. Persons employed under this authority shall be bona fide high school students, at least 14 years old, pursuing courses related to the position occupied and limited to 1,040 working hours a year. Children of DOD employees may be appointed to these positions, notwithstanding the sons and daughters restriction, if the positions are in field activities at remote locations. Appointments under this authority may be made only to positions for which qualification standards established under 5 CFR part 302 are consistent with the education and experience standards established for comparable positions in the competitive service. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.
(9) (Reserved)
(10) Temporary or time-limited positions in direct support of U.S. Government efforts to rebuild and create an independent, free and secure Iraq and Afghanistan, when no other appropriate appointing authority applies. Positions will generally be located in Iraq or Afghanistan, but may be in other locations, including the United States, when directly supporting operations in Iraq or in Afghanistan. No new appointments may be made under this authority after September 30, 2014.
(11) Not to exceed 3,000 positions that require unique cyber security skills and knowledge to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, investigation, investigative analysis and cyber-related infrastructure inter-dependency analysis. This authority may be used to make permanent, time-limited and temporary appointments in the following occupational series: Security (GS-0080), computer engineers (GS-0854), electronic engineers (GS-0855), computer scientists (GS-1550), operations research (GS-1515), criminal investigators (GS-1811), telecommunications (GS-0391), and IT specialists (GS-2210). Within the scope of this authority, the U.S. Cyber Command is also authorized to hire miscellaneous administrative and program (GS-0301) series when those positions require unique cyber security skills and knowledge. All positions will be at the General Schedule (GS) grade levels 09-15 or equivalent. No new appointments may be made under this authority after December 31, 2017.
(1) Positions concerned with advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information, including scientific and technical positions in the intelligence function; and positions involved in the planning, programming, and management of intelligence resources when, in the opinion of OPM, it is impracticable to examine. This authority does not apply to positions assigned to cryptologic and communications intelligence activities/functions.
(2) Positions involved in intelligence-related work of the cryptologic intelligence activities of the military departments. This includes all positions of intelligence research specialist, and similar positions in the intelligence classification series; all scientific and technical positions involving the applications of engineering, physical, or technical sciences to intelligence work; and professional as well as intelligence technician positions in which a majority of the incumbent's time is spent in advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information or in the planning, programming, and management of intelligence resources.
(1) Positions of President, Vice Presidents, Assistant Vice Presidents, Deans, Deputy Deans, Associate Deans, Assistant Deans, Assistants to the President, Assistants to the Vice Presidents, Assistants to the Deans, Professors, Associate Professors, Assistant Professors, Instructors, Visiting Scientists, Research Associates, Senior Research Associates, and Postdoctoral Fellows.
(2) Positions established to perform work on projects funded from grants.
(1) Not to exceed 16 positions of senior policy analyst, GS-15, at the Strategic Concepts Development Center.
(1) Not to exceed 10 positions at grades GS-10/15 to staff and support the Crisis Management Center at the White House.
(1) The Provost and professors.
(1) The Director, Deputy Director, and positions of professor, instructor, and lecturer at the George C. Marshall European Center for Security Studies, Garmisch, Germany, for initial employment not to exceed 3 years, which may be renewed in increments from 1 to 2 years thereafter.
(1) The Director, Deputy Director, Dean of Academics, Director of College, deputy department chairs, and senior positions of professor, associate professor, and research fellow within the Asia Pacific Center. Appointments may be made not to exceed 3 years and may be extended for periods not to exceed 3 years.
(1) Fifty temporary or time-limited (not to exceed four years) positions, at grades GS-11 through GS-15. The authority will be used to appoint persons in the following series: Management and Program Analysis, GS-343: Logistics Management, GS-346; Financial Management Programs, GS-501; Accounting, GS-510; Computer Engineering, GS-854; Business and Industry, GS-1101; Operations Research, GS-1515; Computer Science, GS-1550; General Supply, GS-2001; Supply Program Management, GS-2003; Inventory Management, GS-2010; and Information Technology, GS-2210.
(1) Positions needed to establish the Special Inspector General for Afghanistan Reconstruction. These positions provide for the independent and objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated and otherwise made available for the reconstruction of Afghanistan. These positions are established at General Schedule (GS) grade levels for initial employment not to exceed 3 years and may, with prior approval of OPM, be extended for an additional period of 2 years. No new appointments may be made under this authority after January 31, 2011.
(1) Civilian professors, instructors, teachers (except teachers at the Children's School), Cadet Social Activities Coordinator, Chapel Organist and Choir-Master, Director of Intercollegiate Athletics, Associate Director of Intercollegiate Athletics, Coaches, Facility Manager, Building Manager, three Physical Therapists (Athletic Trainers), Associate Director of Admissions for Plans and Programs, Deputy Director of Alumni Affairs; and Librarian when filled by an officer of the Regular Army retired from active service, and the Military Secretary to the Superintendent when filled by a U.S. Military Academy graduate retired as a regular commissioned officer for disability.
(1) All positions (professors, instructors, lecturers) which require proficiency in a foreign language or knowledge of foreign language teaching methods.
(1) Positions of professor, instructor, or lecturer associated with courses of instruction of at least 10 months duration for employment not to exceed 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(i) (Reserved)
(1) Positions of Academic Director, Department Head, and Instructor.
(1) Positions of professor, associate professor, assistant professor, and instructor associated with courses of instruction of at least 10 months duration, for employment not to exceed up to 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(1)-(14) (Reserved)
(15) Marine positions assigned to a coastal or seagoing vessel operated by a naval activity for research or training purposes.
(16) All positions necessary for the administration and maintenance of the official residence of the Vice President.
(1) Professors, Instructors, and Teachers; the Director of Academic Planning, Naval Postgraduate School; and the Librarian, Organist-Choirmaster, Registrar, the Dean of Admissions, and Social Counselors at the Naval Academy.
(1) One position at grade GS-12 or above that will provide technical, managerial, or administrative support on highly classified functions to the Deputy Chief of Naval Operations (Plans, Policy, and Operations).
(1) All positions on vessels operated by the Military Sealift Command.
(1) Scientific and technical positions, GS-13/15, in the Office of Naval Research International Field Office which covers satellite offices within the Far East, Africa, Europe, Latin America, and the South Pacific. Positions are to be filled by personnel having specialized experience in scientific and/or technical disciplines of current interest to the Department of the Navy.
(1) One Special Assistant in the Office of the Secretary of the Air Force. This position has advisory rather than operating duties except as operating or administrative responsibilities may be exercised in connection with the pilot studies.
(1) Professional, technical, managerial and administrative positions supporting space activities, when approved by the Secretary of the Air Force.
(2) Two hundred positions, serviced by Hill Air Force Base, Utah, engaged in interdepartmental activities in support of national defense projects involving scientific and technical evaluations.
(1) Not to exceed 20 professional positions, GS-11 through GS-15, in Detachments 6 and 51, SM-ALC, Norton and McClellan Air Force Bases, California, which will provide logistic support management to specialized research and development projects.
(1) (Reserved)
(2) Positions of Professor, Associate Professor, Assistant Professor, and
(1) Positions of Criminal Investigators/Intelligence Research Specialists, GS-5 through GS-15, in the Air Force Office of Special Investigations.
(1) Not to exceed eight positions, GS-12 through 15, in Headquarters Air Force Logistics Command, DCS Material Management, Office of Special Activities, Wright-Patterson Air Force Base, Ohio, which will provide logistic support management staff guidance to classified research and development projects.
(1) Positions of Professor, Instructor, or Lecturer.
(1) Civilian deans and professors.
(1) One Supervisory Logistics Management Specialist, GM-346-14, in Detachment 2, 2762 Logistics Management Squadron (Special), Greenville, Texas.
(1) One position of Supervisory Logistics Management Specialist, GS-346-15, in the 2762nd Logistics Squadron (Special), at Wright-Patterson Air Force Base, Ohio.
(1) One position of Commander, Air National Guard Readiness Center, Andrews Air Force Base, Maryland.
(1) Deputy U.S. Marshals employed on an hourly basis for intermittent service.
(2) Positions at GS-15 and below on the staff of an office of a special counsel.
(3)-(5) (Reserved)
(6) Positions of Program Manager and Assistant Program Manager supporting the International Criminal Investigative Training Assistance Program in foreign countries. Initial appointments under this authority may not exceed 2 years, but may be extended in 1-year increments for the duration of the in-country program.
(7) Positions necessary throughout DOJ, for the excepted service transfer of NDIC employees hired under Schedule A, 213.3110(d). Authority expires September 30, 2012.
(1) (Reserved)
(2) Four hundred positions of Intelligence Research Agent and/or Intelligence Operation Specialist in the GS-132 series, grades GS-9 through GS-15.
(3) Not to exceed 200 positions of Criminal Investigator (Special Agent). New appointments may be made under this authority only at grades GS-7/11.
(1) One hundred positions of Criminal Investigator for special assignments.
(2) One non-permanent Senior Level (SL) Criminal Investigator to serve as a senior advisor to the Assistant Director (Firearms, Explosives, and Arson).
(1) Ten positions for oversight policy and direction of sensitive law enforcement activities.
(1) Up to 15 Senior Level and General Schedule (or equivalent) positions.
(1) Not to exceed 1,000 positions to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, intelligence analysis, investigation, investigative analysis and cyber-related infrastructure interdependency analysis requiring unique qualifications currently not established by OPM. Positions will be at the General Schedule (GS) grade levels 09-15. No new appointments may be made under this authority after the completion of regulations implementing the Border Patrol Agency Pay Reform Act of 2014 or January 15, 2019.
(1) Reserved. (Formerly 213.3110(b)(1))
(2) Not to exceed 500 positions of interpreters and language specialists, GS-1040-5/9. (Formerly 213.3110(b)(2))
(3) Reserved. (Formerly 213.3110(b)(3))
(1) Not to exceed 200 staff positions, GS-15 and below for an emergency staff to provide health related services to foreign entrants. (Formerly 213.3116(b)(16))
(1) Field positions at grades GS-15 and below, or equivalent, which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency. Persons may not be employed under this authority for long-term duties or for work not directly necessitated by the emergency response effort. (Formerly 213.3195(a))
(2) Not to exceed 30 positions at grades GS-15 and below in the Offices of Executive Administration, General Counsel, Inspector General, Comptroller, Public Affairs, Personnel, Acquisition Management, and the State and Local Program and Support Directorate which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency, or for long-term duties or work not directly necessitated by the emergency response effort. No one may be reappointed under this authority for service in connection with a different emergency unless at least 6 months have elapsed since the individual's latest appointment under this authority. (Formerly 213.3195(b))
(3) Not to exceed 350 professional and technical positions at grades GS-5 through GS-15, or equivalent, in Mobile Emergency Response Support Detachments (MERS). (Formerly 213.3195(c))
(1) Reserved. (Formerly 213.3194(a))
(2) Lamplighters. (Formerly 213.3194(b))
(3) Professors, Associate Professors, Assistant Professors, Instructors, one Principal Librarian, one Cadet Hostess, and one Psychologist (Counseling) at the
(1) Technical, maintenance, and clerical positions at or below grades GS-7, WG-10, or equivalent, in the field service of the Department of the Interior, when filled by the appointment of persons who are certified as maintaining a permanent and exclusive residence within, or contiguous to, a field activity or district, and as being dependent for livelihood primarily upon employment available within the field activity of the Department.
(2) All positions on Government-owned ships or vessels operated by the Department of the Interior.
(3) Temporary or seasonal caretakers at temporarily closed camps or improved areas to maintain grounds, buildings, or other structures and prevent damages or theft of Government property. Such appointments shall not extend beyond 130 working days a year without the prior approval of OPM.
(4) Temporary, intermittent, or seasonal field assistants at GS-7, or its equivalent, and below in such areas as forestry, range management, soils, engineering, fishery and wildlife management, and with surveying parties. Employment under this authority may not exceed 180 working days a year.
(5) Temporary positions established in the field service of the Department for emergency forest and range fire prevention or suppression and blister rust control for not to exceed 180 working days a year: Provided, that an employee may work as many as 220 working days a year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property.
(6) Persons employed in field positions, the work of which is financed jointly by the Department of the Interior and cooperating persons or organizations outside the Federal service.
(7) All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of the Interior is responsible for defining the term “Indian.”
(8) Temporary, intermittent, or seasonal positions at GS-7 or below in Alaska, as follows: Positions in nonprofessional mining activities, such as those of drillers, miners, caterpillar operators, and samplers. Employment under this authority shall not exceed 180 working days a year and shall be appropriate only when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(9) Temporary, part-time, or intermittent employment of mechanics, skilled laborers, equipment operators, and tradesmen on construction, repair, or maintenance work not to exceed 180 working days a year in Alaska, when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(10) Seasonal airplane pilots and airplane mechanics in Alaska, not to exceed 180 working days a year.
(11) Temporary staff positions in the Youth Conservation Corps Centers operated by the Department of the Interior. Employment under this authority shall not exceed 11 weeks a year except with prior approval of OPM.
(12) Positions in the Youth Conservation Corps for which pay is fixed at the Federal minimum wage rate. Employment under this authority may not exceed 10 weeks.
(1) The Executive Director
(1) (Reserved)
(2) Not to exceed four positions of Territorial Management Interns, grades GS-5, GS-7, or GS-9, when filled by territorial residents who are U.S. citizens from the Virgin Islands or Guam; U.S. nationals from American Samoa; or in the case of the Northern Marianas, will become U.S. citizens upon termination of the U.S. trusteeship. Employment under this authority may not exceed 6 months.
(3) (Reserved)
(4) Special Assistants to the Governor of American Samoa who perform specialized administrative, professional, technical, and scientific duties as members of his or her immediate staff.
(1) (Reserved)
(2) Positions established for the administration of Kalaupapa National Historic Park, Molokai, Hawaii, when filled by appointment of qualified patients and Native Hawaiians, as provided by Public Law 95-565.
(3) Seven full-time permanent and 31 temporary, part-time, or intermittent positions in the Redwood National Park, California, which are needed for rehabilitation of the park, as provided by Public Law 95-250.
(4) One Special Representative of the Director.
(5) All positions in the Grand Portage National Monument, Minnesota, when filled by the appointment of recognized members of the Minnesota Chippewa Tribe.
(1) Appraisers and examiners employed on a temporary, intermittent, or part-time basis on special valuation or prospective-entrymen-review projects where knowledge of local values on conditions or other specialized qualifications not possessed by regular Bureau employees are required for successful results. Employment under this provision shall not exceed 130 working days a year in any individual case: Provided, that such employment may, with prior approval of OPM, be extended for not to exceed an additional 50 working days in any single year.
(1) Positions of Territorial Management Interns, GS-5, when filled by persons selected by the Government of the Trust Territory of the Pacific Islands. No appointment may extend beyond 1 year.
(1) Agents employed in field positions the work of which is financed jointly by the Department and cooperating persons, organizations, or governmental agencies outside the Federal service. Except for positions for which selection is jointly made by the Department and the cooperating organization, this authority is not applicable to positions in the Agricultural Research Service or the National Agricultural Statistics Service. This authority is not applicable to the following positions in the Agricultural Marketing Service: Agricultural commodity grader (grain) and (meat), (poultry), and (dairy), agricultural commodity aid (grain), and tobacco inspection positions.
(2)-(4) (Reserved)
(5) Temporary, intermittent, or seasonal employment in the field service of the Department in positions at and below GS-7 and WG-10 in the following types of positions: Field assistants for sub professional services; agricultural helpers, helper-leaders, and workers in the Agricultural Research Service and the Animal and Plant Health Inspection Service; and subject to prior OPM approval granted in the calendar year in which the appointment is to be made, other clerical, trades, crafts, and manual labor positions. Total employment under this subparagraph
(6)-(7) (Reserved)
(1) (Reserved)
(2) Members of State Committees: Provided, that employment under this authority shall be limited to temporary intermittent (WAE) positions whose principal duties involve administering farm programs within the State consistent with legislative and Departmental requirements and reviewing national procedures and policies for adaptation at State and local levels within established parameters. Individual appointments under this authority are for 1 year and may be extended only by the Secretary of Agriculture or his designee. Members of State Committees serve at the pleasure of the Secretary.
(1) (Reserved)
(2) County committeemen to consider, recommend, and advise with respect to the Rural Development program.
(3)-(5) (Reserved)
(6) Professional and clerical positions in the Trust Territory of the Pacific Islands when occupied by indigenous residents of the Territory to provide financial assistance pursuant to current authorizing statutes.
(1) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-9 and below in the tobacco, dairy, and poultry commodities; Meat Acceptance Specialists, GS-11 and below; Clerks, Office Automation Clerks, and Computer Clerks at GS-5 and below; Clerk-Typists at grades GS-4 and below; and Laborers under the Wage System. Employment under this authority is limited to either 1,280 hours or 180 days in a service year.
(2) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-11 and below in the cotton, raisin, peanut, and processed and fresh fruit and vegetable commodities and the following positions in support of these commodities: Clerks, Office Automation Clerks, and Computer Clerks and Operators at GS-5 and below; Clerk-Typists at grades GS-4 and below; and, under the Federal Wage System, High Volume Instrumentation (HVI) Operators and HVI Operator Leaders at WG/WL-2 and below, respectively, Instrument Mechanics/Workers/Helpers at WG-10 and below, and Laborers. Employment under this authority may not exceed 180 days in a service year. In unforeseen situations such as bad weather or crop conditions, unanticipated plant demands, or increased imports, employees may work up to 240 days in a service year. Cotton Agricultural Commodity Graders, GS-5, may be employed as trainees for the first appointment for an initial period of 6 months for training without regard to the service year limitation.
(3) Milk Market Administrators
(4) All positions on the staffs of the Milk Market Administrators.
(1)-(2) (Reserved)
(3) Positions of Meat and Poultry Inspectors (Veterinarians at GS-11 and below and non-Veterinarians at appropriate grades below GS-11) for employment on a temporary, intermittent, or seasonal basis, not to exceed 1,280 hours a year.
(1) One hundred and fifty positions of Agricultural Commodity Aid (Grain), GS-2/4; 100 positions of Agricultural Commodity Technician (Grain), GS-4/7; and 60 positions of Agricultural Commodity Grader (Grain), GS-5/9, for temporary employment on a part-time, intermittent, or seasonal basis not to exceed 1,280 hours in a service year.
(1) Executive Director
(1)-(2) (Reserved)
(3) Not to exceed 50 scientific and technical positions whose duties are performed primarily in the Antarctic. Incumbents of these positions may be stationed in the continental United States for periods of orientation, training, analysis of data, and report writing.
(1) Managers, supervisors, technicians, clerks, interviewers, and enumerators in the field service, for time-limited employment to conduct a census.
(2) Current Program Interviewers employed in the field service.
(1) Fifteen positions at GS-12 and above in specialized fields relating to international trade or commerce in units under the jurisdiction of the Under Secretary for International Trade. Incumbents will be assigned to advisory rather than to operating duties, except as operating and administrative responsibility may be required for the conduct of pilot studies or special projects. Employment under this authority will not exceed 2 years for an individual appointee.
(2) (Reserved)
(3) Not to exceed 15 positions in grades GS-12 through GS-15, to be filled by persons qualified as industrial or marketing specialists; who possess specialized knowledge and experience in industrial production, industrial operations and related problems, market structure and trends, retail and wholesale trade practices, distribution channels and costs, or business financing and credit procedures applicable to one or more of the current segments of U.S. industry served by the Under Secretary for International Trade, and the subordinate components of his organization which are involved in Domestic Business matters. Appointments under this authority may be made for a period not to exceed 2 years and may, with prior OPM approval, be extended for an additional 2 years.
(1)-(2) (Reserved)
(3) All civilian positions on vessels operated by the National Ocean Service.
(4) Temporary positions required in connection with the surveying operations of the field service of the National Ocean Service. Appointment to such positions shall not exceed 8 months in any 1 calendar year.
(1) Thirty-eight professional positions in grades GS-13 through GS-15.
(1) Chairman and five members, Employees' Compensation Appeals Board.
(2) Chairman and eight members, Benefits Review Board.
(1) Not to exceed 10 positions of Supervisory Manpower Development Specialist and Manpower Development Specialist, GS-7/15, in the Division of Indian and Native American Programs, when filled by the appointment of persons of one-fourth or more Indian blood. These positions require direct contact with Indian tribes and communities for the development and administration of comprehensive employment and training programs.
(1) Intermittent positions, at GS-15 and below and WG-10 and below, on teams under the National Disaster Medical System including Disaster Medical Assistance Teams and specialty teams, to respond to disasters, emergencies, and incidents/events involving medical, mortuary and public health needs.
(1) (Reserved)
(2) Positions at Government sanatoria when filled by patients during treatment or convalescence.
(3) (Reserved)
(4) Positions concerned with problems in preventive medicine financed or participated in by the Department of Health and Human Services and a cooperating State, county, municipality, incorporated organization, or an individual in which at least one-half of the expense is contributed by the participating agency either in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(5)-(6) (Reserved)
(7) Not to exceed 50 positions associated with health screening programs for refugees.
(8) All positions in the Public Health Service and other positions in the Department of Health and Human Services directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of Health and Human Services is responsible for defining the term “Indian.”
(9) (Reserved)
(10) Health care positions of the National Health Service Corps for employment of any one individual not to exceed 4 years of service in health manpower shortage areas.
(11)-(15) (Reserved)
(f) The President's Council on Physical Fitness—
(1) Four staff assistants.
(1) Temporary construction workers paid from “purchase and hire” funds and appointed for not to exceed the duration of a construction project.
(1) Not to exceed 400 positions of rehabilitation counselors, GS-3 through GS-11, in Alcoholism Treatment Units and Drug Dependence Treatment Centers, when filled by former patients.
(1) Positions, GS-15, when filled by a member of the Board. Except as provided by section 201(d) of Public Law 100-687, appointments under this authority shall be for a term of 9 years, and may be renewed.
(2) Positions, GS-15, when filled by a non-member of the Board who is awaiting Presidential approval for appointment as a Board member.
(1) Not to exceed 600 positions at grades GS-3 through GS-11, involved in the Department's Vietnam Era Veterans Readjustment Counseling Service.
(1) Six positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(1) Seven positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of New Mexico when filled by the appointment of persons of one-fourth or more Indian blood.
(1) Two positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Alaska when filled by the appointments of persons of one-fourth or more Alaskan Native blood (Eskimos, Indians, or Aleuts).
(1) Positions of Resident Country Directors and Deputy Resident Country Directors. The length of appointments will correspond to the length or term of the compact agreements made between the MCC and the country in which the MCC will work, plus one additional year to cover pre- and post-compact agreement related activities.
(a) (Reserved, expired 9/23/1998)
(1) Artistic and related positions at grades GS-13 through GS-15 engaged in the review, evaluation and administration of applications and grants supporting the arts, related research and assessment, policy and program development, arts education, access programs and advocacy, or evaluation of critical arts projects and outreach programs. Duties require artistic stature, in-depth knowledge of arts disciplines and/or artistic-related leadership qualities.
(1)-(2) (Reserved)
(3) All positions on Government-owned vessels or those bareboats chartered to the Government and operated by or for the Maritime Administration.
(4)-(5) (Reserved)
(6) U.S. Merchant Marine Academy, positions of: Professors, Instructors, and Teachers, including heads of Departments of Physical Education and Athletics, Humanities, Mathematics and Science, Maritime Law and Economics, Nautical Science, and Engineering; Coordinator of Shipboard Training; the Commandant of Midshipmen, the Assistant Commandant of Midshipmen; Director of Music; three Battalion Officers; three Regimental Affairs Officers; and one Training Administrator.
(7) U.S. Merchant Marine Academy positions of: Associate Dean; Registrar; Director of Admissions; Assistant Director of Admissions; Director, Office of External Affairs; Placement Officer; Administrative Librarian; Shipboard Training Assistant; three Academy Training Representatives; and one Education Program Assistant.
(1) Seventeen positions of economist at grades GS-12 through GS-15.
(1) (Reserved)
(2) Professional positions at GS-11 through GS-15 involving systems, costs, and economic analysis functions in the Office of the Assistant Secretary (Program Analysis and Evaluation); and in the Office of the Deputy Assistant Secretary (Systems Policy and Information) in the Office of the Assistant Secretary (Comptroller).
(3)-(4) (Reserved)
(5) Four Net Assessment Analysts.
(1) Seven positions to provide general administration, general art and information, photography, and/or visual information support to the White House Photographic Service.
(2) Eight positions, GS-15 or below, in the White House Military Office, providing support for airlift operations, special events, security, and/or administrative services to the Office of the President.
(1) Sixty-one positions of Professor, GS-13/15, for employment of any one individual on an initial appointment not to exceed 3 years, which may be renewed in any increment from 1 to 6 years indefinitely thereafter.
(1) One position of Law Enforcement Liaison Officer (Drugs), GS-301-15, U.S. European Command.
(2) Acquisition positions at grades GS-5 through GS-11, whose incumbents have successfully completed the required course of education as participants in the Department of Defense scholarship program authorized under 10 U.S.C. 1744.
(1) Positions of Criminal Investigator, GS-1811-5/15.
(1) One Director, GM-15.
All faculty members with instructor and research duties at the Defense Institute of Security Assistance Management, Wright Patterson Air Force Base, Dayton, Ohio. Individual appointments under this authority will be for an initial 3-year period, which may be followed by an appointment of indefinite duration.
(1) Seven positions of professors, instructors, and education specialists. Total employment of any individual under this authority may not exceed 4 years.
(1) One position of Oceanographer, grade GS-14, to function as project director and manager for research in the weapons systems applications of ocean eddies.
Criminal Investigator (Special Agent) positions in the Drug Enforcement Administration. New appointments may be made under this authority only at grades GS-5 through 11. Service under the authority may not exceed 4 years. Appointments made under this authority may be converted to career or career-conditional appointments under the provisions of Executive Order 12230, subject to conditions agreed upon between the Department and OPM.
(1) Positions, grades GS-5 through GS-12 (or equivalent), of Criminal Investigator. Service under this authority may not exceed 3 years and 120 days.
(1) (Reserved)
(1) a total of 4 years; or
(2) 120 days following completion of the service required for conversion under Executive Order 11203.
(1) Positions of a project nature involved in international technical assistance activities. Service under this authority may not exceed 5 years on a single project for any individual unless delayed completion of a project justifies an extension up to but not exceeding 2 years.
(1) Temporary positions of professional Research Scientists, GS-15 or below, in the Agricultural Research Service, Economic Research Service, and the Forest Service, when such positions are established to support the Research Associateship Program and are filled by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and the agency. Appointments are limited to proposals approved by the appropriate Administrator. Appointments may be made for initial periods not to exceed 2 years and may be extended for up to 2 additional years. Extensions beyond 4 years, up to a maximum of 2 additional years, may be granted, but only in very rare and unusual circumstances, as determined by the Human Resources Officer for the Research, Education, and Economics Mission Area, or the Human Resources Officer, Forest Service.
(2) Not to exceed 55 Executive Director positions, GM-301-14/15, with the State Rural Development Councils in support of the Presidential Rural Development Initiative.
(1) (Reserved)
(2) Not to exceed 50 Community Services Specialist positions at the equivalent of GS-5 through 12.
(1) Not to exceed 10 Telecommunications Policy Analysts, grades GS-11 through 15. Employment under this authority may not exceed 2 years.
(1) Positions in the Office of Foreign Relations, which are paid by outside funding sources under contracts for specific international labor market technical assistance projects. Appointments under this authority may not be extended beyond the expiration date of the project.
(1) Not to exceed 200 positions at grades GS-15 and below in the Office of Cuba Broadcasting. Appointments may not be made under this authority to administrative, clerical, and technical support positions.
(1) Not to exceed four Oriental Art Restoration Specialists at grades GS-9 through GS-15.
(1) One Resource Management Officer position and one Public Works Officer position, GS/GM-15 and below.
(1) Professional positions at grades GS-11 through GS-15 engaged in the review, evaluation, and administration of grants supporting scholarship, education, and public programs in the humanities, the duties of which require in-depth knowledge of a discipline of the humanities.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p.218.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on April 26, 2018, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Rule 24.6.
(additions are
(a) (No change).
(b) Transactions in the following index options may be effected on the Exchange during the Regular Trading Hours of 8:30 a.m. Chicago time to 3:00 p.m. Chicago time:
. . .
.01-.06 (No change).
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Recently, the Exchange proposed to amend certain rules in connection with the Exchange's plans to list and trade ten S&P Select Sector Index options. Each S&P Select Sector Index (“Sector Index”)
Currently, pursuant to Rule 24.6(a), options on the Sector Indexes may trade on the Exchange from 8:30 a.m. until 3:15 p.m. Chicago time. In connection with the listing of options on the Sector Indexes,
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, closing trading in the Select Sector Index options at the same time the stocks end regular trading will ensure investors have access to robust pricing of the underlying stock components they use to price the options, which protects investors by reducing their price risk. Various other index options, including narrow-based index options, may trade from 8:30 a.m. to 3:00 p.m. Chicago time.
Cboe Options does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. All market participants will be able to trade options on the Sector Indexes during the same trading hours. Various other index options, including narrow-based index options, may trade from 8:30 a.m. to 3:00 p.m. Chicago time.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 23, 2018, Nasdaq ISE, LLC (“Exchange”) 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 is extending the 45-day time period for Commission action on the proposed rule change. 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 and take action on the Exchange's proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would permit (a) index-based series of certain open-end management investment companies (“Funds”) to issue shares redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Fund shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of shares for redemption; (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the
Redwood Investment Management, LLC (the “Initial Adviser”), a California limited liability company that is registered as an investment adviser under the Investment Advisers Act of 1940 and Two Roads Shared Trust (the “Trust”), a Delaware statutory trust registered under the Act as a series open-end management investment company.
The application was filed on January 25, 2018.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 18, 2018, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090; Applicants: The Initial Adviser, 1117 S. Robertson Boulevard, Los Angeles, CA 90035; and the Trust, 17605 Wright Street, Omaha, NE 68130.
Bruce R. MacNeil, Senior Counsel, at (202) 551-6817, or Kaitlin C. Bottock, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order that would allow Funds to operate as index exchange traded funds (“ETFs”).
2. Each Fund will hold investment positions selected to correspond generally to the performance of an Underlying Index. In the case of Self-Indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of the Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will compile, create, sponsor or maintain the Underlying Index.
3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.
4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units only.
5. Applicants also request an exemption from section 22(d) of the Act and rule 22c-1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.
6. With respect to Funds that effect creations and redemptions of Creation Units in kind and that are based on certain Underlying Indexes that include foreign securities, applicants request relief from the requirement imposed by section 22(e) in order to allow such Funds to pay redemption proceeds within fifteen calendar days following the tender of Creation Units for redemption. Applicants assert that the requested relief would not be inconsistent with the spirit and intent of section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds.
7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii)
8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act to permit persons that are Affiliated Persons, or Second Tier Affiliates, of the Funds, solely by virtue of certain ownership interests, to effectuate purchases and redemptions in-kind. The deposit procedures for in-kind purchases of Creation Units and the redemption procedures for in-kind redemptions of Creation Units will be the same for all purchases and redemptions and Deposit Instruments and Redemption Instruments will be valued in the same manner as those investment positions currently held by the Funds. Applicants also seek relief from the prohibitions on affiliated transactions in section 17(a) to permit a Fund to sell its shares to and redeem its shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
9. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
On February 23, 2018, Nasdaq MRX, LLC (“Exchange”) 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 is extending the 45-day time period for Commission action on the proposed rule change. 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 and take action on the Exchange's proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 26, 2018, Nasdaq GEMX, LLC (“Exchange”) 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 is extending the 45-day time period for Commission action on the proposed rule change. 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 and take action on the Exchange's proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Under the Exchange Act of 1934 (15 U.S.C. 78a
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.
The public may view the background documentation for this information collection at the following website,
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17g-7 requires nationally recognized statistical rating organizations (“NRSROs”) to include in any report accompanying a credit rating with respect to an asset-backed security (“ABS”) (as that term is defined in Section 3(a)(77) of the Exchange Act) a description of the representations, warranties and enforcement mechanisms available to investors and a description of how they differ from the representations, warranties and enforcement mechanisms in issuances of similar securities. Rule 17g-7 potentially applies to each of the 10 NRSROs currently registered with the Commission.
Commission staff estimates that the 10 currently-registered NRSROs would each spend an average of approximately 100 hours per year reviewing and updating benchmarks for various types of securities for purposes of comparing representations, warranties, and enforcement mechanisms, resulting in an annual industry-wide reporting burden of 1,000 hours (10 respondents × 100 hours/respondent). On a deal-by-deal basis, Commission staff estimates that it would take each NRSRO an average of approximately: (i) One hour to review each ABS transaction to review the relevant disclosures prepared by an issuer, which an NRSRO would review as part of the rating process, and convert those disclosures into a format suitable for inclusion in any report to be issued by an NRSRO, and (ii) 10 hours per ABS transaction to compare the terms of the current deal to those of similar securities. When the Commission adopted Rule 17g-7, it estimated the average annual number of ABS offerings to be 2,067 and the average number of credit ratings per issuance of ABS to be four, resulting in 8,268 annual responses.
Compliance with Rule 17g-7 is mandatory. Responses to the information collection will not be kept confidential and there is no mandatory retention period for the collection of information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
On January 8, 2018, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Exchange proposes to adopt new NYSE Arca Rule 8.900-E, which would govern the listing and trading of Managed Portfolio Shares.
The portfolio for each Fund will consist of long and/or short positions in U.S.-listed securities and shares issued
Under normal market conditions,
Under normal market conditions, the Royce Premier ETF will invest at least 80% of its net assets in a limited number of U.S. exchange-listed equity securities of primarily small-cap companies with market capitalizations from $1 billion to $3 billion at the time of investment. The Fund may invest in U.S. exchange-listed ETFs. The Fund may sell securities to, among other things, secure gains, limit losses, re-deploy assets into what Royce deems to be more promising opportunities, and/or manage cash levels in the Fund's portfolio.
Under normal market conditions, the Royce Total Return ETF will invest at least 65% of its assets in dividend-paying U.S.-listed securities of small-cap companies with market capitalizations up to $3 billion that Royce believes are trading below its estimate of their current worth. The Fund may invest in U.S. exchange-listed ETFs. The Fund may sell securities to, among other things, secure gains, limit losses, re-deploy assets into what Royce deems to be more promising opportunities, and/or manage cash levels in the Fund's portfolio.
While each Fund, under normal market conditions, will invest primarily in U.S.-listed equity securities, as described above, each Fund may invest its remaining assets in other securities and financial instruments as follows: (i) U.S. exchange-listed warrants, rights, and options (limited to 5% of total assets); (ii) cash or cash equivalents;
The Funds will not invest in futures, forwards, or swaps. Further, each Fund's investments will be consistent with its investment objective and will not be used to enhance leverage. While the Funds may invest in inverse ETFs, they will not invest in leveraged (
According to the Exchange, while Investment Companies issuing Managed Portfolio Shares would be actively-managed, and in that respect would be similar to those issuing Managed Fund Shares,
• First, issues of Managed Fund Shares are required to disseminate their “Disclosed Portfolio” at least once daily.
• Second, in connection with the creation of shares in “Creation Unit” size or the redemption of shares in “Redemption Unit” size, the delivery or receipt of any portfolio securities in kind would be effected through an agent (“AP Representative”) in a Confidential Account established for the benefit of the creating or redeeming authorized participant without disclosing the identity of the securities to the authorized participant.
• Third, for each series of Managed Portfolio Shares, a Verified Intraday Indicative Value (“VIIV”) would be disseminated by the Reporting Authority (as defined in proposed NYSE Arca Rule 8.900-E(c)(5)) and/or by one or more major market-data vendors every second during the Exchange's Core Trading Session (normally, 9:30 a.m. to 4:00 p.m., Eastern Time (“E.T.”)).
The Exchange asserts that market makers will be able to make efficient and liquid markets in the Shares priced near the VIIV as long as the VIIV is disseminated every second and market makers employ market making techniques such as “statistical arbitrage,” including correlation hedging, beta hedging, and dispersion trading, which the Exchange represents is currently used throughout the
Similarly, according to the Exchange, an authorized participant could buy the Shares and instruct the AP Representative to redeem them and then sell the underlying portfolio securities from its Confidential Account in an attempt to profit when the Shares trade at a discount to the portfolio securities. According to the Exchange, the authorized participant's purchase of the Shares in the secondary market, combined with the sale of the portfolio securities from its Confidential Account, may create upward pressure on the price of the Shares and/or downward pressure on the price of portfolio securities, driving the market price of the Shares and the value of the Fund's portfolio securities closer together. The Exchange states that, according to Precidian Funds LLC, the investment adviser to the Trust (“Adviser”), this process is identical to how many authorized participants currently arbitrage existing, traditional ETFs, except for the use of the Confidential Account.
The Exchange states that, generally, the Shares will be purchased and redeemed on an in-kind basis, so that, except where the purchase or redemption would include cash under the circumstances described in the applicable Fund's registration statement, purchasers will be required to purchase “Creation Units” by making an in-kind deposit of specified instruments (“Deposit Instruments”), and authorized participants redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”) in their Confidential Account through an AP Representative. On any given business day, the names and quantities of the instruments that constitute the Deposit Instruments and the names and quantities of the instruments that constitute the Redemption Instruments will be identical, and these instruments may be referred to, in the case of either a purchase or redemption, as the “Creation Basket.”
In the case of a redemption, a Fund's custodian (“Custodian”) will typically deliver securities to the Confidential Account on a
In the case of a creation, the authorized participant will enter into an irrevocable creation order with the Fund and then direct the AP Representative to purchase the necessary basket of portfolio securities. The AP Representative will then purchase the necessary securities in the Confidential Account. Once the necessary basket of securities has been acquired, the purchased securities held in the Confidential Account will be contributed in-kind to the Fund.
The Exchange states that, in purchasing the necessary securities for creation purposes, and, conversely, in selling the portfolio securities for redemption purposes, the AP Representative will be required, by the terms of the Confidential Account agreement, to obfuscate the trades by use of tactics such as breaking the trades into multiple purchases or sales and transacting in multiple marketplaces.
Each Fund will be required to file with the Commission its complete portfolio schedules for the second and fourth fiscal quarters on Form N-CSR under the 1940 Act, and to file its complete portfolio schedules for the first and third fiscal quarters on Form N-Q under the 1940 Act, within 60 days of the end of the quarter. Form N-Q requires funds to file the same schedules of investments that are required in annual and semi-annual reports to shareholders. The Trust's SAI and each Fund's shareholder reports will be available free upon request from the Trust. These documents and forms may be viewed on-screen or downloaded from the Commission's website at
In addition, the VIIV will be widely disseminated by the Reporting Authority and/or one or more major market-data vendors at least every second during the Exchange's Core Trading Session. According to the
For purposes of the VIIV, securities held by a Fund will be valued throughout the day based on the mid-point between the disseminated current national best bid and offer. According to the Exchange, by utilizing the mid-point pricing for purposes of VIIV calculation, stale prices are eliminated and a more accurate representation of the real-time value of the underlying securities is provided to the market. Specifically, according to the Exchange, quotations based on the mid-point of bid/ask spreads more accurately reflect current market sentiment by providing real time information on where market participants are willing to buy or sell securities at that point in time. The Exchange also believes that the use of quotations will dampen the impact of any momentary spikes in the price of a portfolio security.
According to the Exchange, each Fund will utilize two separate pricing feeds to provide two separate, independent sources of pricing information. Each Fund will also utilize a “Pricing Verification Agent” and establish a computer-based protocol that will permit the Pricing Verification Agent to continuously compare the two data streams on a real time basis.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
The Exchange represents that the Adviser will make available daily to FINRA and the Exchange the portfolio holdings of each Fund in order to facilitate the performance of the surveillances referred to above. In addition, the Exchange states that it has a general policy prohibiting the distribution of material, non-public information by its employees.
The Commission has received five comment letters on the proposed rule change, each of which expresses opposition to the proposed rule change.
A.
• Under the proposal, market participants will not be able to engage in bona fide arbitrage or efficient statistical arbitrage to keep the price of Shares close to a Fund's NAV;
• Funds can be reverse engineered to determine the composition of the portfolio securities, which will make the Funds susceptible to front-running;
• The proposed fund structure will result in asymmetric disclosure of confidential portfolio information to selected parties;
• Details regarding the VIIV generation process, as well as calculation engine verification procedures, are inadequate for market participants and market makers;
• One second dissemination of VIIVs in a high frequency trading environment is inadequate for authorized participants and market makers and not of value to retail investors; and
• Requiring AP Representatives to obfuscate trades for creation and redemption purposes in an effort to keep portfolio composition confidential will delay execution and increase costs for authorized participants.
B.
C.
• Selective disclosure of confidential portfolio information to AP Representatives to trade on behalf of authorized participants violates federal securities policy and facilitates illegal insider trading;
• The portfolio holdings can be reverse engineered and result in harm to the Funds' shareholders; and
• Because authorized participants cannot engage in bona fide arbitrage, the Shares will not trade efficiently.
D.
• Selective disclosure of portfolio information to AP Representatives, and the use of such information by AP Representatives to engage in creations and redemptions, may violate Section 10(b) of the Exchange Act and Rule 10b-5 thereunder;
• The proposal does not address how the Funds will ensure that AP Representatives comply with representations and contractual agreements to keep the Funds' portfolio securities confidential;
• Because AP Representatives will be required to obfuscate the sale and purchase of portfolio securities for creations and redemptions, they will be less likely to uphold their best execution obligations to authorized participants;
• Any failure of best execution will frustrate efficient market-making and arbitrage, leading to reduced liquidity in the Shares; and
• AP Representative services will likely be costly and, due to compliance constraints, few may offer such services, which will lead to higher expenses for the Funds and reduced liquidity for the Shares.
E.
• The filing and other related documents are “riddled with demonstrably false statements of fact, unsubstantiated and misleading expressions of opinion, and omissions of critical analysis and disclosure.. . .”;
• The portfolio holdings information can be uncovered by (1) time-series analysis of the VIIV or other publicly disseminated Fund information (reverse engineering), (2) observations of Confidential Account trading, (3) misuse or misappropriation of Fund holdings information communicated to AP Representatives, or (4) loss or theft of confidential Fund holdings information communicated to AP Representatives;
• By not assuring the protection of the Funds' proprietary investment strategies, the proposal
• The proposal violates the requirements for selective disclosure in the 2004 adopting release to the N1-A Amendments and as well as the principles of Regulation FD;
• The proposed disclosure of the Funds' portfolio holdings on a daily basis to AP Representatives, Fund service providers, and oversight authorities, and the lack of a surveillance or monitoring program to ensure that the Funds' confidential information is protected and not misused, facilitate illegal insider trading in the Funds' portfolio securities to the detriment of the Funds' shareholders;
• The proposed Fund structure raises impediments to the successful arbitrage of, and market making in, the Shares, especially during volatile or stressed markets, because of: (1) The deficiencies of VIIVs as intraday price signals, (2) market makers' forced reliance on statistical arbitrage and related correlation-based hedging techniques to manage their intraday exposures, and (3) the higher costs and loss of execution control over transactions in Creation Basket securities effected through the Confidential Accounts;
• The Shares will be more susceptible to trading halts because even a minimal level of quote disruption in the portfolio holdings will halt the Shares, which in turn will harm the Shares' liquidity and trading efficiency;
• Fund shareholders will incur significant new costs, liabilities, and risks in connection with the calculation and public dissemination of the VIIVs and the selective private disclosure of the Funds' confidential portfolio holdings information;
• The Shares will not trade efficiently because the Funds will invest in small-cap stocks, illiquid assets, and ETFs potentially holding foreign equities and/or less-liquid fixed income instruments;
• Information to investors is inadequate, and the Funds should provide publicly available, enhanced real-time VIIVs, daily closing market price and premium/discount based on the NAV, daily intraday estimated premiums/discounts, and daily purchase and redemption transaction fees; and
• (1) Widespread dissemination of the Funds' confidential portfolio holdings on a daily basis and “the absence of a discernible program” to protect the Funds' confidential information, and (2) the “high likelihood” that the Shares will trade at wider bid-ask spreads and more variable premiums/discounts than existing active ETFs, render the proposal inconsistent with the Section 6(b)(5) requirements that Exchange rules must be designed to prevent fraudulent and manipulative acts and practices, protect investors and the public interest, and not to permit unfair discrimination among customers, issuers, brokers and dealers.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Exchange Act
Pursuant to Section 19(b)(2)(B) of the Exchange Act,
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 Exchange 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 May 23, 2018. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by June 6, 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.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt transaction fees in connection with the Exchange's trading of UTP Securities on Pillar, the Exchange's new trading technology platform. The Exchange proposes to implement these changes to its Price List effective April 17, 2018.
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
On April 9, 2018, the Exchange will introduce trading of UTP Securities on the Exchange on the Pillar trading platform.
In connection with the offering of trading in UTP Securities, the Exchange proposes to amend its Price List to adopt a new pricing for trading UTP Securities on the Pillar platform.
The proposed changes would apply to transactions executed in securities priced at or above and below $1.00.
The Exchange proposes to implement these changes effective April 17, 2018.
The Exchange proposes the following transaction fees for UTP trading on its Pillar trading platform.
The Exchange proposes to add the following heading immediately after the crossing session fees and credits in the current fee schedule: “Transaction Fees and Credits For Securities Traded Pursuant to Unlisted Trading Privileges (Tapes B and C) on the Pillar Trading Platform.” The Exchange believes that the proposed legend would clarify which fees and credits in the current fee schedule would be applicable to trading UTP Securities on the Pillar platform, and thus add clarity and promote transparency.
Immediately below this proposed heading, the Exchange proposes a second heading titled “Fees and Credits applicable to Market Participants.”
The Exchange proposes to summarize general information applicable to fees for trading UTP Securities on the Pillar trading platform in two bullets under the second heading in the proposed Price List.
The first bullet would provide that rebates are indicated by parentheses.
The second bullet would provide that, for purposes of determining transaction fees and credits based on requirements based on quoting levels, average daily volume (“ADV”), and consolidated ADV (“CADV”), the Exchange may exclude shares traded any day that (1) the Exchange is not open for the entire trading day and/or (2) a disruption affects an Exchange system that lasts for more than 60 minutes during regular trading hours. The second proposed bullet would reproduce the language in footnote 6 of the current Price List.
The Exchange proposes the following fees and credits for all transactions in UTP Securities:
The Exchange does not propose to charge a fee for UTP executions on the Exchange of non-displayed orders
The Exchange also does not propose to charge a fee for UTP executions on the Exchange of non-displayed orders that add liquidity to the Exchange in securities priced below $1.00.
For securities priced at or above $1.00, the Exchange proposes a rebate of $0.0020 per share for UTP executions on the Exchange of displayed orders that add liquidity to the Exchange.
For UTP executions on the Exchange of displayed orders that add liquidity to the Exchange by Floor brokers, the Exchange proposes a rebate of $0.0026 per share.
The Exchange does not propose to charge a fee for UTP executions on the Exchange of displayed orders that add liquidity to the Exchange in securities priced below $1.00.
For securities priced at or above $1.00, the Exchange proposes a credit of $0.0010 per share for UTP executions in each tape for MPL orders that add liquidity to the Exchange, unless a specific credit for SLP Provide Tiers or Adding Tiers applies.
For securities priced at or above $1.00, the Exchange proposes a rebate of $0.0006 per share for cross trades
For UTP executions on the Exchange that remove liquidity from the Exchange, the Exchange proposes to charge $0.0030 per share for securities priced at or above $1.00, including MPL Orders, unless the Floor broker fee applies, and to charge 0.3% of the total dollar value of the transaction for securities priced below $1.00.
For Floor broker UTP executions that remove liquidity from the Exchange, the Exchange proposes a fee $0.0026 per share for securities priced at or above $1.00.
The Exchange proposes tiered adding requirements for displayed orders in securities priced at or above $1.00, as follows.
Under the proposed Tier 1 Adding Credit, the Exchange would offer a per tape credit of $0.0026 per share ($0.0025 if an MPL order) on a per tape basis for transactions in stocks with a per share price of $1.00 or more when adding liquidity to the Exchange if the member organization has at least 0.05% of Adding CADV in Tape B or C. For purposes of qualifying for this tier, the 0.05% of Adding CADV could include shares of both an SLP-Prop and an SLMM
Under the proposed Tier 2 Adding Credit, the Exchange would offer a per tape credit of $0.0023 per share for transactions in stocks with a per share price of $1.00 or more when adding liquidity to the Exchange if the member organization has at least 0.01% of Adding CADV in Tape B or C. For purposes of qualifying for this tier, the 0.01% of Adding CADV could include shares of both an SLP-Prop and an SLMM of the same or an affiliated member organization.
Finally, for UTP Securities, the Exchange proposes to charge a per tape fee of $0.0028 per share to remove liquidity from the Exchange for member organizations with an Adding ADV
The Exchange proposes tiered and non-tiered rates for displayed and non-displayed orders by SLPs that add liquidity to the Exchange in UTP Securities priced at or above $1.00, as follows:
For displayed orders in UTP Securities that add liquidity to the Exchange, the Exchange proposes a non-tiered credit of $0.0026 per share per tape in an assigned UTP Security where the SLP meets the 10% average or more quoting requirement in an assigned security pursuant to Rule 107B.
Proposed Tier 2 would provide a $0.0029 per share credit per tape in an assigned UTP Security for SLPs adding displayed liquidity to the Exchange if the SLP (1) adds liquidity for all assigned UTP Securities in the aggregate of an CADV of at least 0.01% per tape, and meets the 10% average or more quoting requirement in 250 or more assigned UTP Securities in Tapes B and C combined pursuant to Rule 107B, and (2) meets the 10% average or more quoting requirement in an assigned UTP Security pursuant to Rule 107B.
Proposed Tier 2 would provide a $0.0011 per share credit per tape in an assigned UTP Security for SLPs adding non-displayed liquidity to the Exchange if the SLP meets the 10% average or more quoting requirement in an assigned UTP Security pursuant to Rule 107B.
Proposed Tier 1 would provide a $0.0032 per share credit per tape in an assigned UTP Security for SLPs adding displayed liquidity to the Exchange if the SLP (1) adds liquidity for all assigned UTP Securities in the aggregate of an CADV of at least 0.05% per tape, and (2) meets the 10% average or more quoting requirement in 500 or more assigned UTP Securities in Tapes B and C combined pursuant to Rule 107B, and (2) meets the 10% average or more quoting requirement in an assigned UTP Security pursuant to Rule 107B.
Proposed Tier 1 would provide a $0.0014 per share credit per tape for SLPs adding non-displayed liquidity to the Exchange, and a $0.0025 per share credit for MPL Orders adding liquidity, in an assigned UTP Security if the SLP meets the 10% average or more quoting requirement in an assigned UTP Security pursuant to Rule 107B.
The proposed Tape A Tier would provide a $0.00005 per share in an assigned UTP Security in addition to the Tape A SLP credit in Tape A assigned securities for SLPs adding displayed liquidity to the Exchange if the SLP (1) qualifies for the SLP Tier 1 provide rate in both Tape B and C or quotes in excess of the 10% average quoting requirement in 300 or more assigned securities separately in Tapes B and Tape C pursuant to Rule 107B, and (2) where the SLP meets the 10% average quoting requirement pursuant to Rule 107B.
Finally, the Exchange proposes to waive the provide volume component of the SLP Tier requirements until June 1, 2018, which would be reflected in footnote **.
Under a new heading titled “Routing Fees,” the Exchange proposes the following fees for routing, which would be applicable to all orders in UTP Securities that are routed.
For executions in securities with a price at or above $1.00 that route to and execute in an auction on the Exchange's affiliate NYSE American, the Exchange proposes to charge a fee of $0.0005 per share. For executions in securities with a price at or above $1.00 that route to and execute in an auction on an Away Market
For securities priced below $1.00 that route to and execute on an Away Market, the Exchange proposes to charge a fee of 0.30% of the total dollar value of the transaction for executions in an Away Market auction as well as all other executions.
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that not charging a fee for liquidity adding non-displayed orders in UTP Securities is reasonable, equitable and not unfairly discriminatory because it is designed to facilitate execution of, and enhance trading opportunities for, non-displayable orders, thereby further incentivizing entry of non-displayed orders on the Exchange. The Exchange notes that other markets charge fees for non-displayed orders.
The Exchange believes that rebates of $0.0020 per share for UTP executions on the Exchange of displayed orders that add liquidity to the Exchange (unless another credit applies) and $0.0026 per share for UTP executions on the Exchange of displayed orders that add liquidity to the Exchange by Floor brokers are reasonable, equitable and not unfairly discriminatory because it will encourage submission of additional displayed liquidity to a public exchange, thereby promoting price discovery and transparency.
The Exchange further believes the proposed rebate for Floor brokers is equitable and not unfairly discriminatory because it would continue to encourage member organizations to send orders to the trading Floor for execution, thereby contributing to robust levels of liquidity on the trading Floor, which benefits all market participants. Further, the proposed Floor broker credit is also equitable and not unfairly discriminatory because those member organizations that make significant contributions to market quality and that contribute to price discovery by providing higher volumes of liquidity would be allocated a higher credit. The Exchange believes that any member organizations that would qualify for the proposed $0.0020 per share for UTP executions that add liquidity could qualify for the higher rate based on the levels of activity sent to Floor brokers. For the same reasons, the Exchange believes the proposed credits for MPL orders and cross trades in UTP Securities that add liquidity to the Exchange are reasonable and not unfairly discriminatory.
The Exchange believes that not charging UTP executions on the Exchange of displayed orders that add liquidity to the Exchange in securities priced below $1.00 would encourage price discovery and enhance market quality by encouraging more competitive pricing of displayed orders in low-priced UTP Securities. The Exchange believes that not charging a fee for liquidity adding displayed orders is equitable and not unfairly discriminatory because it is designed to facilitate execution of, and enhance trading opportunities for, displayable orders, thereby further incentivizing entry of displayed orders on the Exchange.
The Exchange believes that charging $0.0030 per share for securities priced at or above $1.00, including MPL Orders unless the Floor broker fee applies, and 0.3% of the total dollar value of the transaction for securities priced below $1.00 for executions on the Exchange in UTP Securities that remove liquidity is reasonable and consistent with the Act. The Exchange notes that the proposed fees are in line with the fees the Exchange currently charges for removing liquidity from the Exchange in Tape A securities.
The Exchange believes that that the proposed tiered adding requirements for displayed orders in securities priced at or above $1.00 are reasonable, equitable and not unfairly discriminatory, as follows.
The proposed Tier 1 ($0.0026 per share, $0.0025 if an MPL order) and Tier 2 ($0.0023 per share) Adding Credits per share for transactions in UTP Securities with a per share stock price of $1.00 or more when adding liquidity are reasonable because it would further contribute to incenting member organizations to provide additional amounts of liquidity on the Exchange. The Exchange believes that the proposed Tier 1 and Tier 2 Adding Credits are reasonable, equitable and not unfairly discriminatory because all member organizations would benefit from such increased levels of liquidity. In addition, the Tier 1 and Tier 2 Adding Credits would provide a higher credit to member organizations that is reasonably related to the value to the Exchange's market quality associated with higher volumes of liquidity. In addition, the Exchange believes that the proposed Tier 1 and Tier 2 Adding Credits are equitable and not unfairly discriminatory as all similarly situated market participants will be subject to the same credits on an equal and non-discriminatory basis.
Further, the Exchange believes that proposed Tier 1 charge of $0.0028 per share in UTP Securities for member organizations with an Adding ADV of at least 50,000 shares that removes liquidity from the Exchange is reasonable, equitable and not unfairly discriminatory because the proposed fees are in line with the fees the Exchange currently charges for removing liquidity from the Exchange in Tape A securities.
Finally, the Exchange believes it is reasonable and not unfairly discriminatory to waive the Tier 1 requirements until June 1, 2018, because the proposed credits and fees will apply to all similarly situated member organizations.
The Exchange believes that higher rebates for SLPs discussed below are reasonable, equitable and not unfairly discriminatory because SLPs have monthly quoting requirements that non-SLP market participants do not have. As discussed below, the Exchange believes that the proposed rebates for SLPs are commensurate with the SLP's quoting requirement, are consistent with rebates charged on other markets, and will encourage the SLPs to add liquidity to the market in UTP Securities, thereby providing customers with a higher quality venue for price discovery, liquidity, competitive quotes and price improvement.
The Exchange believes that the proposed non-tiered credit of $0.0026 per share for displayed orders, and the proposed non-tiered credit of $0.0008 per share for non-displayed orders, for SLPs that add liquidity to the Exchange are reasonable, equitable and not unfairly discriminatory because, although slightly higher than the non-tiered SLP rates applicable to Tape A securities, would encourage submission of additional liquidity to a public
The Exchange believes the proposed credits for SLPs adding displayed liquidity to the Exchange (proposed Tier 2 credit of $0.0029 per share and Tier 1 credit of $0.0032 per share) and non-displayed liquidity to the Exchange (proposed Tier 2 credit of $0.0011 per share, Tier 1 credit of $0.0014 per share credit, and $0.0025 per share credit for MPL Orders), are reasonable, equitable and not unfairly discriminatory because the proposed credits are in line with the fees the Exchange currently charges SLPs for adding displayed and non-displayed liquidity in Tape A securities.
The Exchange believes that proposed SLP Tier A Tier is reasonable because it would provide SLPs with an additional way to qualify for a rebate, thereby providing SLPs with greater flexibility and creating an added incentive for SLPs to bring additional order flow to a public market in UTP Securities.
Finally, the Exchange believes it is reasonable and not unfairly discriminatory to waive the provide volume component of the SLP Tier requirements until June 1, 2018, because the proposed credits and fees will apply to all similarly situated SLPs.
The Exchange believes that its proposed routing fees are a reasonable, equitable and not an unfairly discriminatory allocation of fees because the fee would be applicable to all member organizations in an equivalent manner. Moreover, the proposed fees for routing shares are also reasonable, equitable and not unfairly discriminatory because they are consistent with fees charged on other exchanges. In particular, the Exchange's proposal to charge a fee of $0.0005 per share for executions that route to and execute on an NYSE American auction in securities priced at or above $1.00 is the same as the fee charged by the Exchange's affiliate NYSE Arca, Inc. (“NYSE Arca”), to route orders to NYSE American auctions.
The proposal to charge $0.0010 per share for executions that route to and execute on Away Market auctions other than NYSE American in securities priced at or above $1.00 is reasonable and not unfairly discriminatory because it is consistent with fees charged on other exchanges. The Exchange notes that the proposed fee is the same, and in some cases lower than, the fees charged on other exchanges.
The proposal to charge $0.0030 for all other executions in securities priced at or above $1.00 that route to and execute on Away Market auctions is reasonable, equitable and not unfairly discriminatory because it is consistent with fees charged on other exchanges.
Further, the proposal to charge a fee of 0.30% of total dollar value for transactions in securities with a price under $1.00 are reasonable, equitable and not unfairly discriminatory because it is consistent with fees charged on other exchanges.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees and rebates to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed changes will impair the ability of member organizations or competing order execution venues to maintain their competitive standing in the financial markets.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees and rebates to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a-5(c) generally requires broker-dealers who carry customer accounts to provide statements of the broker-dealer's financial condition to their customers. Paragraph (c)(5) of Rule 17a-5 provides a conditional exemption from this requirement. A broker-dealer that elects to take advantage of the exemption must publish its statements on its website in a prescribed manner, and must maintain a toll-free number that customers can call to request a copy of the statements.
The purpose of the Rule is to ensure that customers of broker-dealers are provided with information concerning the financial condition of the firm that may be holding the customers' cash and securities. The Commission, when adopting the Rule in 1972, stated that the goal was to “directly” send a customer essential information so that the customer could “judge whether his broker or dealer is financially sound.” The Commission adopted the Rule in response to the failure of several broker-dealers holding customer funds and securities in the period between 1968 and 1971.
The Commission estimates that approximately 162 broker-dealer respondents carrying approximately 132 million public customer accounts incur a burden of approximately 161,037 hours per year to comply with the Rule.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE, Washington, DC 20549, or send an email to:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 902.11. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Section 102.06 of the Manual provides for the listing of companies (“Acquisition Companies” or “ACs”) with no prior operating history that conduct an initial public offering of which at least 90% of the proceeds, together with the proceeds of any other concurrent sales of the AC's equity securities, will be held in a trust account controlled by an independent custodian until consummation of a business combination. The business combination can be in the form of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more operating businesses or assets (a “Business Combination”) with a fair market value equal to at least 80% of the net assets held in trust (net of amounts disbursed to management for working capital purposes and excluding the amount of any deferred underwriting discount held in trust). A listed AC may remain listed upon consummation of its Business Combination, provided it meets the criteria specified in Section 802.01B of the Manual.
In the experience of the Exchange, an AC will frequently reconsider its listing venue in connection with the consummation of its Business Combination.
The market for the retention or transfer to another exchange of these companies is very competitive and a number of transfers to a new listing venue have occurred in recent times in connection with the completion of an AC's Business Combination. The listing rules of the Exchange,
The Exchange has identified another anomaly in the fees payable by an AC if it chooses to remain on the NYSE at the time of its Business Combination rather than transfer to another exchange.
The Exchange does not expect the revenues it forgoes as a result of the proposed waiver to negatively affect its ability to conduct its regulatory program.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is consistent with Sections 6(b)(4) and 6(b)(5) of the Act in that it represents an equitable allocation of fees and does not unfairly discriminate among listed companies. In particular, the Exchange notes that the proposed amendment is not unfairly discriminatory as it will result in an AC that remains listed on the Exchange after its Business Combination being treated the same as an AC that transfers to the Exchange from another listing venue. The Exchange also believes the proposed rule change is not discriminatory with respect to listed operating companies, as operating companies generally do not have an event in their life cycle parallel to the Business Combination for an AC which would normally give rise to a reconsideration of the company's listing venue.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The proposed rule change does not impose any burden on competition, as it will have the effect of treating an AC that remains listed on the Exchange after its Business Combination the same for fee purposes as an AC that transfers to the Exchange from another listing venue or transfers to another listing venue at that time.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
April 26, 2018.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend certain rules of the Rule 7000A Series concerning the Order Audit Trail System to make conforming and technical changes.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to make the following three changes to the Rule 7000A Order Audit Trail Series: (1) Amend Rule 7410A(o)(1)(A) to harmonize the rule with FINRA Rule 7410(o)(1)(A); (2) correct rule citations in Rules 7430A and 7450A; and (3) delete the rule text under Rule 7470A, which lapsed in 2015.
The Exchange's Rule 7000A Series imposes an obligation on Exchange members to record in electronic form and report to FINRA on a daily basis certain information with respect to orders originated, received, transmitted, modified, canceled, or executed by members in Nasdaq-listed stocks. FINRA's Order Audit Trail System (“OATS”) captures this order information and integrates it with quote and transaction information to create a time-sequenced record of orders, quotes, and transactions. This information is used by FINRA staff to conduct surveillance and investigations of members for potential violation of Exchange rules, federal securities laws, and FINRA rules.
The Exchange adopted the Rule 7000A Series to copy FINRA OATS rules, where appropriate. As a general principle, the Exchange endeavors to keep its rules corresponding to FINRA rules as closely worded and structured as possible to the FINRA rules on which they are based. In certain instances, such as FINRA Rule 7410(o)(2), which concerns an exception to the definition of a Reporting Member relating to members operating on equities floors, the Exchange has not copied those inapplicable FINRA rules. Generally, the Exchange seeks to keep the Rule 7000 Series consistent with the applicable portions FINRA Rule 7040 Series. The proposed changes will harmonize Nasdaq rules with analogous FINRA rules, which have changed since the Exchange first adopted its rules.
The Exchange is proposing to amend Rule 7410A(o)(1)(A) to harmonize the rule with FINRA Rule 7410(o)(1)(A). Rule 7410A(o) provides the definition of “Reporting Member,” which means a member that receives or originates an order and has an obligation to record and report information under Rules 7440A and 7450A. Rule 7410A(o)(1) provides an exception to the general definition if the member meets four conditions. The first condition the member must meet is that the member engages in a non-discretionary order routing process, pursuant to which it immediately routes, by electronic or other means, all of its orders to a
The Exchange is also proposing to correct rule citations in Rules 7430A and 7450A. Rule 7430A “Synchronization of Member Business Clocks” provides the requirements for synchronizing member business clocks, and states that Nasdaq members shall comply with FINRA Rule 7430 as if such Rule were part of Nasdaq's rules. There is no FINRA Rule 7430, but rather the appropriate FINRA rule to cite to is FINRA Rule 4590 “Synchronization of Member Business Clocks.” Accordingly, the Exchange is correcting the erroneous citation in Rule 7430A.
Rule 7450A “Order Data Transmission Requirements” provides the requirements for order data transmission, and states that, except as provided in paragraph (b), Nasdaq members and persons associated with a member shall comply with FINRA Rule 7450A as if such Rule were part of Nasdaq's rules. There is no FINRA Rule 7450A and FINRA Rule 7450 “Order Data Transmission Requirements” is the appropriate FINRA rule to cite. Accordingly, the Exchange is deleting the erroneous “A” from the citation.
The Exchange is proposing to delete the rule text under Rule 7470A in its entirety, which lapsed in 2015, and to hold the rule [sic] in reserve. Rule 7470A provided an exemption from the order recording and data transmission requirements of Rules 7440A and 7450A OATS rules applicable to manual orders. To qualify for the exemption, a member must have met the following criteria: (1) The member and current control affiliates and associated persons of the member have not been subject within the last five years to any final disciplinary action, and within the last ten years to any disciplinary action involving fraud; (2) the member has annual revenues of less than $2 million; (3) the member does not conduct any market making activities in Nasdaq Stock Market equity securities; (4) the member does not execute principal transactions with its customers (with limited exception for principal transactions executed pursuant to error corrections); and (5) the member does not conduct clearing or carrying activities for other firms. The exemption was limited to a maximum time of two years although a member was able to request an additional exemption prior to the expiration of a grant of existing exemptive relief. The exemptive authority provided by the rule permitted the Exchange to grant relief to members that meet certain criteria in situations where, for example, the reporting of order information would be unduly burdensome for the member or where temporary relief from the OATS Rules, in the form of additional time to achieve compliance, would permit the members to avoid unnecessary expense or hardship. The exemption has not been requested by any Nasdaq member to date and the Exchange does not believe that Nasdaq members are likely to need the exemption, since the vast majority of such members to which the rule applies are electronic proprietary trading firms that would not qualify for the exemption. Thus, the Exchange is proposing to eliminate the rule text under Rule 7470A from its rule book, and to hold the rule [sic] in reserve.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed changes align the Exchange's rules with those of FINRA, which will assist it in its oversight work done pursuant to a regulatory services agreement, and makes technical corrections to the rules. Consequently, the Exchange does not believe that the proposed changes implicate competition at all.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17g-10 contains certain certification requirements for third-party due diligence service providers that are employed by an NRSRO, an issuer, or an underwriter, which must be made on Form ABS Due Diligence—15E. The Commission estimates that the total burden for respondents to comply with Rule 17g-10 is 238 hours.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Background documentation for this information collection may be viewed at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 12f-1 (“Rule”), originally adopted in 1979 pursuant to Sections 12(f) and 23(a) of the Act, and as further modified in 1995 and 2005, sets forth the requirements for filing an exchange application to reinstate unlisted trading privileges (“UTP”) in a security in which UTP has been suspended by the Commission pursuant to Section
The information required by Rule 12f-1 enables the Commission to make the necessary findings under the Act prior to granting applications to reinstate unlisted trading privileges. This information is also made available to members of the public who may wish to comment upon the applications. Without the Rule, the Commission would be unable to fulfill these statutory responsibilities.
There are currently 21 national securities exchanges subject to Rule 12f-1. The burden of complying with Rule 12f-1 arises when a potential respondent seeks to reinstate its ability to extend unlisted trading privileges to any security for which unlisted trading privileges have been suspended by the Commission, pursuant to Section 12(f)(2)(A) of the Act. The staff estimates that each application would require approximately one hour to complete. Thus each potential respondent would incur on average one burden hour in complying with the Rule.
The Commission staff estimates that there could be as many as 21 responses annually for an aggregate hour burden for all respondents of 21 hours (21 responses × 1 hour per response). Each respondent's related internal cost of compliance for Rule 12f-1 would be $221.00, or, the cost of one hour of professional work of a paralegal needed to complete the application. The total annual cost of compliance for all potential respondents, therefore, is $4,641 (21 responses × $221.00 per response).
Compliance with Rule 12f-1 is mandatory. Rule 12f-1 does not have a record retention requirement
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
On January 10, 2018, Cboe BZX Exchange, Inc. (“Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of Cboe Vest S&P 500® Premium Income ETF (the “Fund”) under Rule 14.11(c)(4), which governs the listing and trading of Index Fund Shares based on fixed income
The Shares will be offered by the Trust, which was established as a Delaware statutory trust on February 9, 2012. The Trust is registered with the Commission as an open-end investment company and has filed a registration statement on behalf of the Fund on Form N-1A (“Registration Statement”) with the Commission.
The Exchange is submitting this proposed rule change because the Index for the Fund does not meet the listing requirements of Rule 14.11(c)(4) applicable to an index that consists of Fixed Income Securities,
The Index is a rules-based options index created by the Index Provider, an affiliate of the Adviser, and designed to capture the “volatility risk premium” in standardized options on the S&P 500 Index (“SPX Options”). The “volatility risk premium” in SPX Options is based on the premise that the expected level of volatility of the S&P 500 Index priced into such options (the options' “implied volatility”) is, on average, higher than the volatility actually experienced by the S&P 500 Index (the “realized volatility”).
On the last trading day of each month, the Index (i) writes (sells)
If the S&P 500 Index at the end of the following month is within the range of the strike prices of the Sold SPX Options, the Sold SPX Options expire worthless and the Index's value will have increased for the month by the amount of the premiums from writing such options. If the S&P 500 Index at the end of the month is outside the range of the strike prices of the Sold SPX Options, positively or negatively, the Index will incur a loss proportional to the magnitude by which the S&P 500 Index is outside such range, less the premiums from writing such options. In other words, the Index incurs losses when increases or decreases in the level of the S&P 500 Index during a month exceed those implicitly anticipated by the options market.
The Index will only include SPX Options and Treasury bills. The strike prices for the Sold SPX Options will be “out-of-the-money” (
If the value of the S&P 500 Index rises above the strike price of the put S&P 500 Index Options (the “SPX Puts”) or falls below the strike price of the call S&P 500 Index Options (the “SPX Calls”) sold by the Index, the Sold SPX Options will not be exercised and will expire worthless, resulting in a gain to the Index equal to the premiums received from the Sold SPX Options. If the value of the S&P 500 Index falls below the strike price of the SPX Puts or rises above the strike price of the SPX Calls sold by the Index, the Sold SPX Options will finish “in-the-money” and the Index incurs a loss equal to the difference between the Sold SPX Options' strike price and the value of the S&P 500 Index, less the value of the premiums received from the Sold SPX Options.
If the value of the S&P 500 Index rises above the strike price of the SPX Puts or falls below the strike price of the SPX Calls bought by the Index, the Bought SPX Options will not be exercised and will expire worthless, resulting in a loss to the Index equal to the premiums paid for the Bought SPX Options. If the value of the S&P 500 Index falls below the strike price of the SPX Puts or rises above the strike price of the SPX Calls sold by the Index, the Bought SPX Options will finish “in-the-money” and the Index receives a gain equal to the difference between the Bought SPX Options' strike price and the value of the S&P 500 Index, less the value of the premiums paid for the Bought SPX Options.
The strike prices of the SPX Puts and SPX Calls are calculated such that the Index is equity-market-neutral, meaning that it seeks to earn a total return in most equity market conditions regardless of general market direction as measured by the move in value of the S&P 500 Index. The cash and net option premium proceeds will be invested in short-term Treasury bills which will be rolled at maturity. This makes the Index bond-market-neutral, meaning that as interest rates and the yield for Treasury bills go up or down, the short duration of the Treasury bills will result in minimal effect on the Index.
Under Normal Market Conditions,
The Exchange believes that sufficient protections are in place to protect against market manipulation of the Fund's Shares and SPX Options and Comparable ETF Options for the following reasons: (i) The diversity, liquidity, and market cap of the securities underlying the S&P 500 Index;
Trading in the Shares and the underlying investments will be subject to the federal securities laws and Exchange, Cboe Options, FINRA, and, with respect to the Comparable ETF Options, other U.S. options exchanges' rules and surveillance programs.
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of the Shares through the Exchange will be subject to the
All statements and representations made in this filing regarding the index composition, the description of the portfolio or reference assets, limitations on portfolio holdings or reference assets, dissemination and availability of index, reference asset, and intraday indicative values (as applicable), or the applicability of Exchange listing rules shall constitute continued listing requirements for listing the Shares on the Exchange. The Trust has represented to the Exchange that it will advise the Exchange of any failure by the Fund or Shares to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. If the Fund or Shares are not in compliance with the applicable listing requirements, then, with respect to such Fund or Shares, the Exchange will commence delisting procedures under Exchange Rule 14.12.
The Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and exchange-traded options contracts with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”)
As noted above, SPX Options are among the most liquid options in the world and derive their value from the actively traded S&P 500 Index components. The contracts are cash-settled with no delivery of stocks or ETFs, and trade in competitive auction markets with price and quote transparency. The Exchange believes the highly regulated options markets and the broad base and scope of the S&P 500 Index make securities that derive their value from that index less susceptible to market manipulation in view of market capitalization and liquidity of the S&P 500 Index components, price and quote transparency, and arbitrage opportunities.
The Exchange believes that the liquidity of the markets for S&P 500 Index securities, SPX Options, and other related derivatives is sufficiently great to deter fraudulent or manipulative acts associated with the price of the Shares. The Exchange also believes that such liquidity are sufficient to support the creation and redemption mechanism. Coupled with the surveillance programs of the SROs described above, the Exchange does not believe that trading in the Fund's Shares would present manipulation concerns. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage).
The Exchange represents that, except as described above, the Fund will meet each of the initial and continued listing criteria in BZX Rule 14.11(c)(4) except as it relates to the portion of the Index that consists of SPX Options because Rule 14.11(c)(4) does not provide generic listing criteria for an index or portfolio that includes options. Further to this point, the three-month Treasury bills that compose the entirety of the fixed income portion of the Index will satisfy all requirements of Rule 14.11(c)(4). The Trust is required to comply with Rule 10A-3 under the Act for the initial and continued listing of the Shares of the Fund. A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange. In addition, the Exchange represents that the Shares of the Fund will comply with all other requirements applicable to Index Fund Shares, which includes requirements relating to the dissemination of key information such as the Net Asset Value, Index value, and the Intraday Indicative Value, rules governing the trading of equity securities, trading hours, trading halts, firewalls for the Index Provider and Adviser, surveillance, and the information circular, as set forth in Exchange rules applicable to Index Fund Shares and the orders approving such rules.
Quotation and last sale information for SPX Options and Comparable ETF Options will be available via the Options Price Reporting Authority. The intra-day, closing and settlement prices of exchange-traded options will be readily available from the options exchanges, automated quotation systems, published or other public sources, or online information services such as Bloomberg or Reuters. Price information on Treasury bills and other cash equivalents is available from major broker-dealer firms or market data vendors, as well as from automated quotation systems, published or other public sources, or online information services.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating
The Exchange has in place a surveillance program for transactions in ETFs to ensure the availability of information necessary to detect and deter potential manipulations and other trading abuses, thereby making the Shares less readily susceptible to manipulation. Further, the Exchange believes that because the assets in the Fund's portfolio, which are comprised primarily of S&P 500 Index Options, will be acquired in extremely liquid and highly regulated markets, the Shares are less readily susceptible to manipulation.
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Index Fund Shares. All statements and representations made in this filing regarding the index composition, the description of the portfolio or reference assets, limitations on portfolio holdings or reference assets, dissemination and availability of index, reference asset, and intraday indicative values (as applicable), or the applicability of Exchange listing rules shall constitute continued listing requirements for listing the Shares on the Exchange. The Trust has represented to the Exchange that it will advise the Exchange of any failure by the Fund or Shares to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. If the Fund or Shares are not in compliance with the applicable listing requirements, then, with respect to such Fund or Shares, the Exchange will commence delisting procedures under Exchange Rule 14.12. FINRA conducts certain cross-market surveillances on behalf of the Exchange pursuant to a regulatory services agreement. The Exchange is responsible for FINRA's performance under this regulatory services agreement. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures with respect to such Fund under Exchange Rule 14.12.
The Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and exchange-traded options contracts with other markets and other entities that are members of the ISG and may obtain trading information regarding trading in the Shares and exchange-traded options contracts from such markets and other entities. The Exchange is also able to access, as needed, trade information for certain fixed income instruments reported to TRACE. In addition, the Exchange may obtain information regarding trading in the Shares and exchange-traded options contracts from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
As noted above, SPX Options are among the most liquid options in the world and derive their value from the actively traded S&P 500 Index components. The contracts are cash-settled with no delivery of stocks or ETFs, and trade in competitive auction markets with price and quote transparency. The Exchange believes the highly regulated options markets and the broad base and scope of the S&P 500 Index make securities that derive their value from that index less susceptible to market manipulation in view of market capitalization and liquidity of the S&P 500 Index components, price and quote transparency, and arbitrage opportunities.
The Exchange believes that the liquidity of the markets for S&P 500 Index securities, SPX Options, and other related derivatives is sufficiently great to deter fraudulent or manipulative acts associated with the price of the Shares. The Exchange also believes that such efficiency and liquidity are sufficient to support the creation and redemption mechanism. Coupled with the extensive surveillance programs of the SROs described above, the Exchange does not believe that trading in the Fund's Shares would present manipulation concerns.
The Exchange represents that, except as it relates to the options portion of the Index described above, the Fund will meet and be subject to all other requirements of Rule 14.11(c)(4) related to generic listing standards of the Index and other applicable requirements for such a series of Index Fund Shares under Rule 14.11(c) on an initial and continued listing basis, including those requirements regarding the dissemination of key information such as the Net Asset Value, the Index, and the Intraday Indicative Value, rules governing the trading of equity securities, trading hours, trading halts, surveillance, and the information circular, as set forth in Exchange rules applicable to Index Fund Shares and the orders approving such rules. The Trust is required to comply with Rule 10A-3 under the Act for the initial and continued listing of the Shares of the Fund. Moreover, all of the options contracts held by the Fund will trade on markets that are a member of ISG or affiliated with a member of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance
The Exchange has neither solicited nor received written comments on the proposed rule change.
After careful review, the Commission finds that the Exchange's proposal to list and trade the Shares is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
According to the Exchange, quotation and last-sale information for SPX Options and Comparable ETF Options will be available via the Options Price Reporting Authority.
The Commission also believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. Under BZX Rule 14.11(c)(1)(B)(iv), if the Exchange becomes aware that the NAV or the Disclosed Portfolio is not disseminated to all market participants at the same time, the Exchange is required to halt trading in such series of Index Fund Shares. In addition, the Exchange represents that if the Fund or the related Shares are not in compliance with the applicable listing requirements for Index Fund Shares under BZX Rule 14.11(c)(4), the Exchange will commence delisting procedures under BZX Rule 14.12 (Failure to Meet Listing Standards).
The Shares do not qualify for generic listing because the Index includes SPX Options. The Commission has previously approved listing rules for issues of Index Fund Shares that tracked indexes that included listed options.
In support of this proposal, the Exchange represents that:
(1) The Fund will satisfy, on an initial and continued listing basis, all of the generic listing standards under BZX Rule 14.11(c), except as described above.
(2) The Shares will comply with all requirements applicable to Index Fund Shares under BZX Rule 14.11(c) including, but not limited to the requirements relating to the dissemination of key information such as the NAV, the Index, and the Intraday Indicative Value, rules governing the trading of equities securities, trading hours, trading halts, surveillance, and the information circular, as set forth in Exchange rules applicable to Index Fund Shares and the orders approving such rules.
(3) Trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by Cboe Options and FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
(4) For initial and continued listing, the Fund will be in compliance with Rule 10A-3 under the Act.
(5) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
This approval order is based on all of the Exchange's statements and representations, including those set forth above and in Amendment No. 1.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1 thereto, is consistent with Section 6(b)(5) of the Act
Interested persons are invited to submit written views, data, and arguments concerning whether Amendment No. 1 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 1, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 1 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the authority vested in the Secretary of State under the Foreign Missions Act, 22 U.S.C. 4301
As a result, all persons on the said property are required to depart the premises no later than the date and time stated above.
For purposes of this Determination, 3726 East Madison Street, Seattle, Washington, includes any buildings and/or improvements thereon and the land ancillary thereto.
Access to the property will be subject to terms and conditions set forth by the Office of Foreign Missions.
Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).
Notice—request for comments.
The FHWA is announcing that the Indefinite Delivery and Indefinite Quantity (ID/IQ) method of contracting (including Job Order Contracts) for low-cost construction contracts in the Federal-aid highway program will be allowed, without prior FHWA approval, under certain circumstances.
Comments must be received on or before June 1, 2018. Late comments will be considered to the extent practicable.
You may submit comments, identified by the document number at the top of this document, by any of the following methods:
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For questions about this notice, please contact Mr. John Huyer, FHWA Office of Program Administration, (202) 366-1562, or via email at
This notice announces that contracting agencies no longer need to submit individual requests and work plans pursuant to Special Experimental Project No. 14 (SEP-14) for low-cost contracts that are awarded to the lowest responsive bidder based on an invitation for bids. However, this contracting technique continues to be authorized on an experimental basis while FHWA explores rulemaking to revise FHWA's regulations to accommodate this contracting technique.
The ID/IQ contracts are a method of contracting that allows an indefinite quantity of services for a fixed time. They are used in the Federal Government when agencies cannot determine, above a specified minimum, the precise quantities of supplies or services that the Government will require during the contract period. For construction ID/IQ contracts, contractors bid unit prices for estimated quantities of standard work items and task orders are used to define the location and quantities for specific work. The ID/IQ contracts may be awarded to the lowest responsive bidder based on an invitation for bids or the best-value proposer based on responses to Requests for Proposals. Contracting agencies use other names for these types of contracts including on-call contracts, area-wide contracts, continuing contracts, push-button contracts, and task order contracts. Job Order Contracts (JOCs) are a form of ID/IQ contracts that utilize a construction task catalogue with pre-priced work item descriptions and where contractors bid “mark-up rates.” The contract is awarded to the lowest responsive bidder determined by their rates.
Although ID/IQ contracts have been specifically authorized in the Federal procurement process (48 CFR 16.5) and for the contracting of architecture and engineering (A/E) services in the Federal-aid highway program (FAHP) (23 CFR part 172), the FAHP authorization and procurement laws for construction do not address the possible use of ID/IQ contracts. The FAHP construction procurement statute, 23 U.S.C. 112(b)(1), requires contracts to be awarded by a competitive bidding process to the lowest responsive bidder (traditional design-bid-build project delivery method based upon the premise of a 100 percent-complete design and a well-defined scope of work). The ID/IQ contracts are awarded based upon a general, but not completely defined, scope of work for a geographic area and limited time period (but not specific locations, designs, or quantities) and are often awarded based upon specific evaluation criteria.
The FHWA has used its authority in 23 U.S.C. 502(b)(1) to test the use of ID/IQ contracts for the construction of FAHP projects through the SEP-14 Program for innovative contracting techniques. Under the SEP-14 Program, contracting agencies interested in testing an innovative contracting technique submit project-specific (or programmatic) work plans for their implementation. The FHWA Division Office evaluates the work plan, coordinates with FHWA Headquarters, and, if it finds the work plan to be acceptable, FHWA approves the use of the technique on a temporary basis for a project or group of pilot projects. Over time, FHWA Headquarters staff assess the initiative to determine if it is a technique that should be operationalized for the FAHP on a permanent basis without the need for individual requests, work plans, and evaluation reports. Operationalizing SEP-14 experiments has taken different paths in the past based on the source of the policy warranting innovation and FHWA's risk assessment, such as FHWA-initiated memoranda (for example, cost plus time bidding and lane rental), FHWA-initiated rulemaking (for example, warranty clauses at 23 CFR 635.413), and congressionally initiated statutory amendments (for example, design-build and contractor manager/general contractor under 23 U.S.C. 112(b)(3)-(4)). More information on SEP-14 can be found at
Having evaluated the use of JOCs and ID/IQ contracts for construction in the FAHP for over a decade, FHWA has now determined that they are suitable for operationalization. For more than 10 years, FHWA and State departments of transportation (State DOTs) have experimented with the use of ID/IQ contracts and JOCs for construction. FHWA has approved the use of these contracts under SEP-14 for 16 different State DOTs and 6 local public agencies. Evaluation reports indicate that JOCs and ID/IQ contracts allow for cost-effective contracting for small value contracts and preventive maintenance programs. These evaluation reports can be found at
The FHWA's determination that this contracting technique is suitable for operationalization is consistent with requests in Senate reports for fiscal year 2017 and 2018 appropriations to operationalize JOCs. S. Rept. No. 114-243, 43 (April 21, 2016); S. Rept. No. 115-138, 52 (July 27, 2017).
The FHWA is proceeding with two phases to operationalize ID/IQ contracts and JOCs for construction in the FAHP. The first phase is the issuance of this Notice, and the second phase is the initiation of a rulemaking.
The first phase is the issuance of this Notice describing when contracting agencies may use ID/IQ contracts and JOCs for construction without the need for project-specific work plans from contracting agencies.
The FHWA considers “low-cost contracts” to be 1- or 2-year contracts awarded to the lowest responsive bidder for construction of projects that qualify for FHWA categorical exclusions (CE) under the National Environmental Policy Act (NEPA) of 1969 (23 CFR 771.117) and where the total value of task or work orders does not exceed $2,000,000 per year. Contracting agencies should continue to following existing procedures for contract extensions. The FHWA may allow contract extensions, but the maximum length of the contract period with extensions may not exceed 5 years.
Contracting agencies interested in this contracting method should provide assurances to FHWA, including assurances that the total value of task or work orders will not exceed $2,000,000 per year, that the actions covered will be for projects that qualify for a CE, that the work will comply with applicable Title 23 requirements, and that the contracting agency will comply with applicable Disadvantaged Business Enterprise requirements.
Individual tasks must undergo a complete environmental review prior to their approval (23 CFR 771.113(a)). The FHWA Division Office should determine how individual task orders will be approved. In addition, there are
This contracting technique will continue to be experimental under FHWA's SEP-14 authority because FHWA's regulations and procedures do not accommodate this type of contracting technique; however, contracting agencies will not need to submit individual SEP-14 requests and work plans for low-cost contracts under these conditions. The FHWA would expect contracting agencies to continue to request specific SEP-14 approval for best value awards, multiple-award ID/IQ contracts and JOCs, and contracts that exceed the low-cost threshold or are not otherwise within the limitations of this notice. The FHWA will request its division offices to report annually on different metrics to assess the contracting technique's impact on competition. The FHWA seeks public comments on this approach.
Under the second phase, FHWA intends to initiate rulemaking to address the construction and approval regulations that need amendments in order to allow the contracting technique on a permanent basis. This rulemaking would be published in the
23 U.S.C. 112 and 502; 23 CFR 635.
Federal Railroad Administration (FRA), U.S. Department of Transportation (USDOT).
Notice of receipt of application and request for comments.
This notice announces that FRA has received and reviewed an application from the State of California (State) acting through its California State Transportation Agency (CalSTA) and California High-Speed Rail Authority (Authority) requesting participation in the Surface Transportation Project Delivery Program (Program). Under the Program, FRA may assign, and the State may assume, responsibilities under the National Environmental Policy Act of 1969 (NEPA), and all or part of FRA's responsibilities for environmental review, consultation, or other actions required under Federal environmental laws with respect to one or more railroad projects within the State. FRA invites the public to comment on the State's request, including its application and the draft Memorandum of Understanding (MOU), which outlines how the State would implement the Program, with FRA oversight. The State's application and the draft MOU are available for public inspection in the docket. FRA will use the public comments to inform its decision on whether to approve or deny the State's application.
Please submit comments by June 1, 2018.
You may submit comments, identified by Docket Number FRA-2018-0014, by any of the following methods:
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Ms. Stephanie Perez, Environmental Protection Specialist, Office of Program Delivery, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, telephone: (202) 493-0388, email:
An electronic copy of this notice may be downloaded from the
Anyone can search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Section 327 of title 23, United States Code (23 U.S.C. 327), allows the Secretary of the U.S. Department of Transportation (Secretary) to assign, and a State to assume, responsibility for all or part of the Secretary's responsibilities for environmental review, consultation, or other actions required under NEPA (42 U.S.C. 4321
Under the draft MOU, FRA would assign to the State, acting through CalSTA or the Authority, the responsibility for making decisions under NEPA for railroad projects proposed as part of the California High-Speed Rail system, as further described in the State's application and the draft MOU, with the exception of the following:
(1) Projects that cross state boundaries or that cross or are adjacent to international boundaries are excluded from the railroad projects for which FRA environmental review responsibilities are being assumed by the State. For purposes of the State's application and draft MOU, a project is considered “adjacent to international boundaries” if it requires the issuance of
(2) As provided at 23 U.S.C. 327(a)(2)(D), any railroad project that is not assumed by the State as identified in the State's application and the draft MOU remains the responsibility of the FRA.
Under the draft MOU, the State would also assume the responsibility to conduct the following environmental review, consultation, and other related activities for project delivery:
The draft MOU would allow the State to act in the place of FRA in carrying out the environmental review-related functions described above, except with respect to Government-to-Government consultations with Federally-recognized Indian tribes. The FRA would retain responsibility for conducting formal Government-to-Government consultation with Federally-recognized Indian tribes. The Authority would continue to handle routine consultations with the tribes and understands that a tribe has the right to direct consultation with the FRA upon request. The Authority would also be able to assist FRA with formal consultations, with consent of a tribe, but FRA would remain responsible for the consultation.
In addition, the State would not assume FRA's responsibilities for conformity determinations required under Section 176 of the CAA (42 U.S.C. 7506), or any responsibility under 23 U.S.C. 134 or 135, or under 49 U.S.C. 5303 or 5304.
A copy of the State's application and draft MOU are in the USDOT docket or may be obtained by contacting FRA at the address provided above. A copy also may be viewed on the Authority's website at:
The FRA will consider all substantive comments submitted when making its decision on the State's request. Any final MOU approved by FRA may include changes based on comments and consultations and will be made publicly available.
23 U.S.C. 327; 42 U.S.C. 4331, 4332; 23 CFR 773.109-111; 40 CFR 1507.3; and 49 CFR 264.101.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0065. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel CHAINED UP is:
The complete application is given in DOT docket MARAD-2018-0065 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0059. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel METANI is:
The complete application is given in DOT docket MARAD-2018-0059 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0061. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel DULCINEA is:
The complete application is given in DOT docket MARAD-2018-0061 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0067. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel LUCKY BASTARD is:
The complete application is given in DOT docket MARAD-2018-0067 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0060. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel BLUE ISLAND DREAMER is:
The complete application is given in DOT docket MARAD-2018-0060 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
* * *
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0063. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of
As described by the applicant the intended service of the vessel LIMERICK is:
The complete application is given in DOT docket MARAD-2018-0063 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0064. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel WIND is:
The complete application is given in DOT docket MARAD-2018-0064 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0066. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel NEGOSEATOR is:
The complete application is given in DOT docket MARAD-2018-0066 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 1, 2018.
Comments should refer to docket number MARAD-2018-0062. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel WILDCAT TOO is:
The complete application is given in DOT docket MARAD-2018-0062 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Notice and request for public comment.
The Department of the Treasury, 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. Currently, the Community Development Financial Institutions Fund (CDFI Fund), U.S. Department of the Treasury, is soliciting comments concerning the Community Development Financial Institution CDFI Program (CDFI Program) and Native American CDFI Assistance Program (NACA Program) Annual Compliance Reports. These include the Performance Progress Report, Financial Statement Audit Report (if applicable), and A-133 Audit Report (if applicable), which will be submitted through the Awards Management Information System (AMIS).
Written comments must be received on or before July 2, 2018 to be assured of consideration.
Submit your comments via email to Tanya McInnis, Acting Program Manager for the Office of Certification, Compliance Monitoring and Evaluation, CDFI Fund, at
Tanya McInnis, Acting Program Manager for the Office of Certification, Compliance Monitoring and Evaluation, Community Development Financial Institutions Fund, U.S. Department of the Treasury, 1500 Pennsylvania Ave. NW, Washington DC 20220 or by phone at (202) 653-0300. Other information regarding the CDFI Fund and its programs may be obtained through the CDFI Fund's website at
A CDFI Program or NACA Program recipient must submit Annual Compliance Reports. The specific components that comprise a recipient's Annual Compliance Reports are set forth in the assistance agreement that the recipient enters into with the CDFI Fund in order to receive a CDFI Program or a NACA Program award. The three reports being published for public comment are the: (i) Performance Progress Report (PPR); (ii) Financial Statement Audit Report (if applicable); and (iii) A-133 Audit Report (if applicable). These reporting requirements can be found in the assistance agreement templates located on the CDFI Fund website at
12 U.S.C. 4707
Financial Crimes Enforcement Network (“FinCEN”), U.S. Department of the Treasury.
Notice and request for comments.
FinCEN, a bureau of the U.S. Department of the Treasury (“Treasury”), invites all interested parties to comment on the Bank Secrecy Act (“BSA”) regulations implemented pursuant to section 104(e) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (“CISADA”) and consistent with its statutory mission under 31 U.S.C. 310. FinCEN is proposing to renew this information collection without change. The rule requires a U.S. bank that maintains a correspondent account for a foreign bank to inquire of the foreign bank, and report to FinCEN upon written request, certain information with respect to transactions or other financial services provided by that foreign bank.
Written comments should be received on or before July 2, 2018 to be assured of consideration.
Comments may be submitted by any of the following methods:
•
•
The FinCEN Resource Center at 800-767-2825 or electronically at
The BSA, Titles I and II of Public Law 91-508, as amended, codified at 12 U.S.C. 1829(b), 12 U.S.C.1951-1959, and 31 U.S.C.
The following paragraph applies to the recordkeeping requirements addressed in this notice. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Records required to be retained under the BSA must be retained for five years. Generally, information collected pursuant to the BSA is confidential, but may be shared as provided by law with regulatory and law enforcement authorities.
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
The list of Specially Designated Nationals and Blocked Persons (SDN List) and additional information concerning OFAC sanctions programs are available on OFAC's website (
On April 27, 2018, OFAC determined that the property and interests in property of the following persons are blocked under the relevant sanctions authority listed below.
1. ZARON BIO-TECH (ASIA) LIMITED, 20A, Kiu Fu Commercial Building, 300 Lockhart Road, Wan Chai, Hong Kong, Hong Kong; Business Registration Document # 52153976 (Hong Kong); Company Number 1448837 (Hong Kong) [SDNTK] (Linked To: ZHANG, Jian). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Jian ZHANG.
Departmental Offices, Department of the Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to comment on the revision of an information collection that is proposed for approval by the Office of Management and Budget. The Office of International Affairs within the Department of the Treasury is soliciting comments concerning Treasury International Capital Form D, Report of Holdings of, and Transactions in, Financial Derivatives Contracts with Foreign Residents.
Written comments should be received on or before July 2, 2018 to be assured of consideration.
Direct all written comments to Dwight Wolkow, International Portfolio Investment Data Systems, Department of the Treasury, Room 5422, 1500 Pennsylvania Avenue NW, Washington DC 20220. In view of possible delays in mail delivery, please also notify Mr. Wolkow by email (
Copies of the proposed forms and instructions are available on the Treasury's TIC Forms webpage,
(1) The section I.C “Who Must Report” and sub-section “Consolidation” of the instructions are updated to list out separately Intermediate Holding Companies (IHCs), as defined by Regulation YY, 12 CFR 252, and to clarify that IHCs should follow the same consolidation rules that are applicable to Bank Holding Companies (BHCs), Financial Holding Companies (FHCs), and Savings and Loan Holding Companies. Regulation YY was effective by January 1, 2015, and IHCs are filing TIC reports; this update will formalize their reporting requirements.
(2) The glossaries for all Treasury International Capital (“TIC”) reports are consolidated into a single document which will provide more consistency across the TIC system. As a result, the TIC D reporting instructions will not include a glossary but will point to the separate consolidated TIC Glossary document on the Treasury website. See the March 2018 version and later versions.
(3) Some other clarifications and format changes may be made to improve the instructions.
Form D (1505-0199).
National Commission on Military, National, and Public Service.
Interim final rule; request for comments.
This rule provides guidance and assigns responsibility for the privacy program of the National Commission on Military, National, and Public Service (the “Commission”) pursuant to the Privacy Act of 1974 and applicable Office of Management Budget (OMB) guidance.
This interim final rule is effective on May 2, 2018. Written comments on the interim final rule should be received on or before June 1, 2018.
You may send comments, identified by Regulatory Information Number (RIN) number, by any of the following methods:
•
•
•
All submissions received should include the RIN for this rulemaking. If the Commission cannot read your comment due to technical difficulties and cannot contact you for clarification, the Commission may not be able to consider your comment.
For general inquiries, submission process questions, or any additional information about this interim final regulation, please contact Rachel Rikleen, at (703) 571-3760 or by email at
On December 23, 2016, the President signed into law the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2000 (2016), which created the National Commission on Military, National, and Public Service (the “Commission”). Public Law 114-328, Subtitle F, 130 Stat. at 2130. To establish procedures to facilitate public interaction with the Commission, the agency is issuing interim final regulations under the Privacy Act of 1974.
The authority for this rulemaking is 5 U.S.C. 552a, the Privacy Act of 1974, as amended (the Privacy Act), which requires implementation by Federal agencies. This action ensures that the Commission's collection, use, maintenance, or dissemination of information about individuals for purposes of discharging its statutory responsibilities will be performed in accordance with the Privacy Act and applicable guidance from the Office of Management and Budget (OMB). This rule:
• Establishes rules of conduct for the Commission personnel and contractors involved in the design, development, operation, or maintenance of any system of records.
• Establishes appropriate administrative, technical, and physical safeguards to ensure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity that could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual about whom information is maintained.
• Establishes procedures for inquiring about implementation of the Privacy Act of 1974, acquiring access to records, amending or correcting an individual's record, and appealing a refusal to amend or correct a record.
• Ensures that laws, policies, procedures, and systems for protecting individual privacy rights are implemented throughout the Commission.
This interim final rule parallels the procedures currently used by other agencies to implement the Privacy Act. The Commission has determined that good cause exists under 5 U.S.C. 553(b) and 5 U.S.C. 553(d)(3) to waive the notice and comment and delayed effective requirements of the Administrative Procedure Act to publish this regulation as an interim final rule with a request for comments. The Commission is a temporary, independent establishment with statutorily-defined deadlines and a limited existence. It is the intent of the agency to protect private information. In light of this agency's limited duration, as set forth in its enabling legislation, and the need for timely access, the Commission has decided that full notice and comment rulemaking is impracticable and contrary to public policy. Additionally, the Commission has determined that full notice and comment rulemaking is not necessary as this rule constitutes a rule of agency procedure under 5 U.S.C. 553(b). This is because the rule generally establishes procedures to facilitate requests under the Privacy Act. It does not change the substantive standards by which the agency evaluates such requests. Finally, the Commission has determined that this interim final rule should be issued without a delayed effective date pursuant to 5 U.S.C. 553(d)(3). The 30-day delay in effective date typically allows regulated entities time to revise their policies in light of a regulation that governs those entities' conduct. Here, such a delay is unnecessary because the regulation facilitates requests under the Privacy Act.
This rulemaking is not a significant regulatory action for the purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required. It is also not subject to the requirements found in Executive Order 13771.
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates require State, local, or tribal governments to spend more than $100 million in one year. This rule will not mandate any requirements for State, local or tribal governments, nor will it affect private sector costs.
The Commission certifies this interim rule is not subject to the Regulatory Flexibility Act, 5 U.S.C. 601
It has been determined that this rule does not impose reporting or record keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Administrative practice and procedure, Privacy, Reporting and recordkeeping requirements.
5 U.S.C. 552a(f).
The regulations in this part set forth the Commission's procedures under the Privacy Act, as required by 5 U.S.C. 552a(f), with respect to systems of records maintained by the Commission. The rules in this part apply to all records maintained by the Commission that are retrieved by an individual's name or by some identifying number, symbol, or other identifying particular assigned to the individual. These regulations establish procedures by which an individual may exercise the rights granted by the Privacy Act to determine whether a Commission system of records contains a record pertaining to him or her; to gain access to such records; and to request correction or amendment of such records. These rules should be read together with the Privacy Act, which provides additional information about records maintained on individuals.
The definitions in subsection (a) of the Privacy Act (5 U.S.C. 552a(a)) apply to this part. In addition, as used in this part:
Inquiries about the Commission's systems of records or implementation of the Privacy Act should be sent to the following address: National Commission on Military, National, and Public Service, Office of the General Counsel, 2530 Crystal Drive, Suite 1000, Box No. 63, Arlington, VA 22202.
The following procedures apply to records that are contained in a Commission system:
(a) You may request to be notified if a system of records that you name contains records pertaining to you, and to review any such records, by writing to the Office of the General Counsel (see § 426.103). You also may call the Office of the General Counsel at 703-571-3742 on business days, between the hours of 9 a.m. and 5 p.m., to schedule an appointment to make such a request in person. A request for records should be presented in writing and should identify specifically the Commission system(s) involved. Your request to access records pertaining to you will be treated as a request under both the Privacy Act, as implemented by this part, and the Freedom of Information Act (5 U.S.C. 552), as implemented by subpart B of this part.
(b) Access to the records, or to any other information pertaining to you that is contained in the system, shall be provided if the identification requirements of § 426.105 are satisfied and the records are determined otherwise to be releasable under the Privacy Act and these regulations. The Commission shall provide you an opportunity to have a copy made of any such records about you. Only one copy of each requested record will be supplied, based on the fee schedule in § 426.108.
(c) The Commission will comply promptly with requests made in person at scheduled appointments, if the requirements of this section are met and the records sought are immediately available. The Commission will acknowledge, within 10 business days, mailed requests or personal requests for records that are not immediately available, and the information requested will be provided promptly thereafter.
(d) If you make your request in person at a scheduled appointment, you may, upon your request, be accompanied by a person of your choice to review your records. The Commission may require that you furnish a written statement authorizing discussion of your records in the accompanying person's presence. A record may be disclosed to a representative chosen by you upon your proper written consent.
(e) Medical or psychological records pertaining to you shall be disclosed to you unless, in the judgment of the Commission, access to such records might have an adverse effect upon you. When such a determination has been made, the Commission may refuse to disclose such information directly to you. The Commission will, however, disclose this information to you through a licensed physician designated by you in writing.
(f) If you are unsatisfied with an adverse determination on your request to access records pertaining to you, you may appeal that determination using the procedures set forth in § 426.107(a).
The Commission will require reasonable identification of all individuals who request access to records in a Commission system to ensure that records are disclosed to the proper person.
(a) The amount of personal identification required will of necessity vary with the sensitivity of the record involved. In general, if you request disclosure in person, you will be required to show an identification card, such as a driver's license, containing your photograph and sample signature. However, with regard to records in Commission systems that contain particularly sensitive and/or detailed personal information, the Commission reserves the right to require additional means of identification as are appropriate under the circumstances. These means include, but are not limited to, requiring you to sign a
(b) If you request disclosure by mail, the Commission will request such information as may be necessary to ensure that you are properly identified and for a response to be sent. Authorized means to achieve this goal include, but are not limited to, requiring that a mail request include a signed, notarized statement asserting your identity or a statement signed under oath as described in subsection (a) of this section.
(a) You are entitled to request amendments to or corrections of records pertaining to you that you believe are not accurate, relevant, timely, or complete, pursuant to the provisions of the Privacy Act, including 5 U.S.C. 552a(d)(2). Such a request should be made in writing and addressed to the Office of the General Counsel (see § 426.103).
(b) Your request for amendments or corrections should specify the following:
(1) The particular record that you are seeking to amend or correct;
(2) The Commission system from which the record was retrieved;
(3) The precise correction or amendment you desire, preferably in the form of an edited copy of the record reflecting the desired modification; and
(4) Your reasons for requesting amendment or correction of the record.
(c) The Commission will acknowledge a request for amendment or correction of a record within 10 business days of its receipt, unless the request can be processed and the individual informed of the General Counsel's decision on the request within that 10-day period.
(d) If after receiving and investigating your request, the General Counsel agrees that the record is not accurate, timely, or complete, based on a preponderance of the evidence, then the record will be corrected or amended promptly. The record will be deleted without regard to its accuracy, if the record is not relevant or necessary to accomplish the Commission's function for which the record was provided or is maintained. In either case, you will be informed in writing of the amendment, correction, or deletion. In addition, if accounting was made of prior disclosures of the record, all previous recipients of the record will be informed of the corrective action taken.
(e) If after receiving and investigating your request, the General Counsel does not agree that the record should be amended or corrected, you will be informed promptly in writing of the refusal to amend or correct the record and the reason for this decision. You also will be informed that you may appeal this refusal in accordance with § 426.107.
(f) Requests to amend or correct a record governed by the regulations of another agency will be forwarded to such agency for processing, and you will be informed in writing of this referral.
(a) You may appeal a refusal to amend or correct a record to the Chair of the Commission. Such appeal must be made in writing within 30 business days of your receipt of the initial refusal to amend or correct your record. Your appeal should be sent to the Office of the General Counsel (see § 426.103), should indicate that it is an appeal, and should include the basis for the appeal.
(b) The Chair will review your request to amend or correct the record, the General Counsel's refusal, and any other pertinent material relating to the appeal. No hearing will be held.
(c) The Chair shall render his or her decision on your appeal within 30 business days of its receipt by the Commission, unless the Chair, for good cause shown, extends the 30-day period. Should the Chair extend the appeal period, you will be informed in writing of the extension and the circumstances of the delay.
(d) If the Chair determines that the record that is the subject of the appeal should be amended or corrected, the record will be so modified, and you will be informed in writing of the amendment or correction. Where an accounting was made of prior disclosures of the record, all previous recipients of the record will be informed of the corrective action taken.
(e) If your appeal is denied, you will be informed in writing of the following:
(1) The denial and the reasons for the denial;
(2) That you may submit to the Commission a concise statement setting forth the reasons for your disagreement as to the disputed record. Under the procedures set forth in paragraph (f) of this section, your statement will be disclosed whenever the disputed record is disclosed; and
(3) That you may seek judicial review of the Chair's determination under 5 U.S.C. 552a(g)(1).
(f) Whenever you submit a statement of disagreement to the Commission in accordance with paragraph (e)(2) of this section, the record will be annotated to indicate that it is disputed. In any subsequent disclosure, a copy of your statement of disagreement will be disclosed with the record. If the Commission deems it appropriate, a concise statement of the Chair's reasons for denying your appeal also may be disclosed with the record. While you will have access to this statement of the Chair's reasons for denying your appeal, such statement will not be subject to correction or amendment. Where an accounting was made of prior disclosures of the record, all previous recipients of the record will be provided a copy of your statement of disagreement, as well as any statement of the Chair's reasons for denying your appeal deemed appropriate.
(a) The Commission will charge no fees for search time or for any other time expended by the Commission to review a record. However, the Commission may charge fees where you request that a copy be made of a record to which you have been granted access. Where a copy of the record must be made in order to provide access to the record (
(b) Copies of records made by photocopy or similar process will be charged to you at the rate of $0.12 per page. Where records are not susceptible to photocopying (
(c) Special and additional services provided at your request, such as certification or authentication, postal insurance, and special mailing arrangement costs, will be charged to you at the market rate.
(d) You may request that a copying fee not be charged or, alternatively, be reduced, by submitting a written petition to the Commission's General Counsel (see § 426.103) asserting that you are indigent. If the General Counsel determines, based on the petition, that you are indigent and that the Commission's resources permit a waiver of all or part of the fee, the General
(e) All fees shall be paid before any copying request is undertaken.
(a) The Office of the General Counsel shall maintain a log containing the date, nature, and purpose of each disclosure of a record to any person or to another agency. Such accounting also shall contain the name and address of the person or agency to whom each disclosure was made. This log need not include disclosures made to the Commission's employees in the course of their official duties, or pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552).
(b) The Commission will retain the accounting of each disclosure for at least five years after the disclosure or for the life of the record that was disclosed.
(c) The Commission will make the accounting of disclosures of a record pertaining to you available to you at your request. Such a request should be made in accordance with the procedures set forth in § 426.104. This paragraph (c) does not apply to disclosures made for law enforcement purposes under 5 U.S.C. 552a(b)(7).
National Commission on Military, National, and Public Service.
Interim final rule; request for comments.
The National Commission on Military, National, and Public Service (the “Commission”) is issuing an interim final rule, establishing procedure for the public to obtain information from the Commission under the Freedom of Information Act (FOIA).
This interim final rule is effective on May 2, 2018. Written comments on the interim final rule should be received on or before June 1, 2018.
You may send comments, identified by Regulatory Information Number (RIN), by any of the following methods:
•
•
•
All submissions received must include the RIN for this rulemaking. If the Commission cannot read your comment due to technical difficulties and cannot contact you for clarification, the Commission may not be able to consider your comment.
For general inquiries, submission process questions, or any additional information about this interim final regulation, please contact Rachel Rikleen, at (703) 571-3760 or by email at
On December 23, 2016, the President signed into law the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2000 (2016), which created the National Commission on Military, National, and Public Service (the “Commission”). Public Law 114-328, Subtitle F, 130 Stat. at 2130. To establish procedures to facilitate public interaction with the Commission, the agency is issuing interim final regulations under the Freedom of Information Act (FOIA).
This interim final rule establishes procedures for the Commission necessary to implement the Freedom of Information Act (FOIA), which provides for the disclosure of agency records and information to the public, unless that information is exempted under statutory exemptions or exclusions. The procedures established herein are intended to ensure that the Commission fully satisfies its responsibility to the public. The authority for this rulemaking is 5 U.S.C. 552(a), which was amended by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (2016). It also complies with the policy directives set out in Presidential Memoranda dated January 21, 2009, entitled “Freedom of Information Act” (74 FR 4683, January 26, 2009) and “Transparency and Openness” (74 FR 4685, January 26, 2009), which encourage federal agencies to apply a presumption of disclosure in FOIA decision making.
This interim final rule parallels the procedures currently used by other agencies to implement FOIA. The Commission has determined that good cause exists under 5 U.S.C. 553(b) and 5 U.S.C. 553(d)(3) to waive the notice and comment and delayed effective requirements of the Administrative Procedure Act to publish this regulation as an interim final rule with a request for comments. The Commission is a temporary, independent establishment with statutorily-defined deadlines and a limited existence. It is the intent of the agency to be as transparent as practicable in making information available to the public. This regulation establishes procedures to facilitate the Commission's interactions with the public and the public's access to information about the Commission. In light of this agency's limited duration, as set forth in its enabling legislation, and the need for timely access, the Commission has decided that full notice and comment rulemaking is impracticable and contrary to public policy as the absence of FOIA regulations could impair the public's ability to access information. Additionally, the Commission has determined that full notice and comment rulemaking is not necessary as this regulation constitutes a rule of agency procedure under 5 U.S.C. 553(b). This is because the rule merely establishes procedural requirements for accessing information under FOIA from the Commission. In other words, it outlines
This rulemaking is not a significant regulatory action for the purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required. It is also not subject to the requirements found in Executive Order 13771.
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates require State, local, or tribal governments to spend more than $100 million in one year. This rule will not mandate any requirements for State, local or tribal governments, nor will it affect private sector costs.
The Commission certifies this interim rule is not subject to the Regulatory Flexibility Act, 5 U.S.C. 601
It has been determined that this rule does not impose reporting or record keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Administrative practice and procedure, Reporting and recordkeeping requirements.
Therefore, for reasons discussed in the preamble, the National Commission on Military, National, and Public
5 U.S.C. 552(a)
This subpart contains the regulations of the National Commission on Military, National, and Public Service (the “Commission”) implementing the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, as amended. These regulations set forth procedures for requesting access to records maintained by the Commission. These regulations should be read together with the text of the FOIA, and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Commission's Privacy Act regulations as well as under this subpart.
(a) Records that FOIA requires agencies to make available for public inspection in an electronic format may be accessed through the Commission's website at
(b) The following types of records shall be available routinely on the website, without resort to formal FOIA request procedures, unless such records fall within one of the exemptions listed at 5 U.S.C. 552(b) of the Act:
(1) Any formal report issued by the Commission;
(2) Testimonies and presentations submitted to the Commission;
(3) Schedules for public meetings and hearings of the Commission along with transcripts or notes of such public meetings and hearings;
(4) Press statements;
(5) Substantive rules of general applicability adopted by the Commission, procedural rules governing the Commission's general operations that may affect the public, and statements of general policy or interpretation of general applicability formulated and adopted by the Commission; and
(6) Copies of all records, regardless of form or format, that have been released previously to any person under 5 U.S.C. 552(a)(3), and that the Commission determines have become or are likely to become the subject of subsequent requests for substantially the same records. When the Commission receives three or more requests for substantially the same records, then the Commission shall make the released records available in the Commission's reading room and on the Commission's website.
(c) The Commission shall also maintain a public reading room, at the Commission's offices, containing records available for public inspection that cannot be produced in electronic form. The reading room shall be available for use on workdays during the hours of 9 a.m. to 4 p.m. Requests for appointments to review the materials in the public reading room should be directed to the FOIA Public Liaison.
(d) Based upon applicable exemptions in 5 U.S.C. 552(b), the Commission may redact certain information contained in any matter described in this section before making such information available for inspection or publishing it. The justification for the redaction shall be explained in writing, and the extent of such redaction shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemptions under which the redaction is made. The location of the information deleted must also be indicated on the record, if technically feasible.
(a)
(b)
(c)
(1) The requester's full name, mailing address, a telephone number at which the requester can be reached during normal business hours, and an email address for the requester, if the requester has one;
(2) A description of the records sought in enough detail to allow the records to be located with a reasonable amount of effort. To the extent possible, requesters should include specific information, such as the date, title or name, author, recipient, and subject matter of the records sought. If known, the requester must include any file designations or descriptions for the records requested;
(3) If submitting the request as an educational institution, a non-commercial scientific institution, or a representative of the news media, information to support being placed in that category of requester as they are defined in § 426.210(b);
(4) A fee waiver request, if applicable (see § 426.210(f));
(5) A statement explaining why expedited processing is necessary, if it is being requested (see § 426.205(c)); and
(6) Where the request is making a request for records about himself or herself, verification of the individual's identity (please see the Commission's Privacy Act regulations at 1 CFR, chapter IV, part 426, subpart A).
(d)
(a)
(b)
(c)
(1)
(2)
(3)
(d)
(a)
(1)
(2)
(i) Make one reasonable demand to the requester for clarifying information about the request and toll the 20-day time period while awaiting the clarifying information; or
(ii) Notify the requester of the fee assessment for the request and toll the 20-day time period while awaiting the requester's response.
(3)
(b)
(1)
(2)
(3)
(c)
(1) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to a person's life or physical safety;
(2) With respect to a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public about actual or alleged Federal Government activity; or
(3) A reasonable expectation of an imminent loss of a substantial due process right.
(d)
(a)
(b)
(c)
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the agency in denying the request;
(3) A description of the material withheld, such as the approximate number of pages or some other reasonable form of estimation;
(4) A statement that the denial may be appealed under section 8(a) of this subpart, and a description of the appeal requirements; and
(5) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS.
(d)
(a)
(b)
(c)
(2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, the Commission may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
(d)
(1) The Commission determines that the information is exempt under the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12,600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, the Commission must give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date.
(e)
(2) If a submitter has any objections to disclosure, it should provide the Commission a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.
(3) A submitter who fails to respond within the time period specified in the
(4) The Commission must consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(f)
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of the records as the Commission intends to release them; and
(3) A specified disclosure date, which must be a reasonable time after the notice.
(g)
(h)
(a)
(1) To deny access to records in whole or in part (as provided in § 426.206(c));
(2) To assign a particular fee category to the requester (as provided in § 426.209(d));
(3) To deny a request for a reduction or waiver of fees (as provided in § 426.209(f));
(4) That no records could be located that are responsive to the request (as provided in § 426.206(c)); or
(5) To deny a request for expedited processing (as provided in § 426.205(c)).
(b)
(c)
(d)
(e)
The Commission will preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration. The Commission will not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
(a)
(b)
A request from a professor of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution.
A request from the same professor of geology seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.
A student who makes a request in furtherance of their coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.
(c)
(1)
(2)
(3)
(4)
(5)
(d)
(1)
(2)
(3)
(4)
(e)
(1) A court has determined that exceptional circumstances exist, as defined by the FOIA, then a failure to comply with such time limit shall be excused for the length of time provided by the court order;
(2) The Commission has determined that unusual circumstances, as defined by the FOIA, apply and the Commission provides timely written notice to the requester in accordance with § 426.205(d), then the time limit shall be excused for an additional 10 days; or
(3) The Commission has determined that unusual circumstances apply; more than 5,000 pages are necessary to respond to the request; the Commission has provided a timely written notice to the requester in accordance with § 426.205(d), and the Commission has discussed with the requester via written mail, electronic mail, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request. Then the Commission may charge a requester all applicable fees.
(f)
(2) To determine whether the requester has satisfied the waiver request requirements, the Commission shall consider whether the subject of the requested records has a direct connection to government operations or activities; the disclosable portion of the requested records is meaningfully informative, and is not already in the public domain; the disclosure would contribute to the understanding of a reasonably broad audience, as opposed to the individual requester; and the public's understanding would be significantly enhanced by the disclosure. The Commission shall also consider whether the requester, or any person on whose behalf the requester may be acting, has a commercial interest that would be furthered by the disclosure, and whether the public interest is greater in magnitude than that of any identified commercial interest in disclosure.
(3) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction shall be granted for those records.
(4) The Commission shall notify the requester in writing regarding its determination to reduce or waive fees.
(5) If the Commission denies a request to reduce or waive fees, then the Commission shall advise the requester, in the denial notification letter, that the requester may incur fees as a result of processing the request. In the denial notification letter, the Commission shall advise the requester that the Commission will not proceed to process the request further unless the requester, in writing, directs the Commission to do so and either agrees to pay any fees that may apply to processing the request or specifies an upper limit (of not less than $25) that the requester is willing to pay to process the request. If the Commission does not receive this written direction and agreement within 30 days of the date of the denial notification letter, then the Commission shall deem the FOIA request to be withdrawn.
(6) If the Commission denies a request to reduce or waive fees, then the requester shall have the right to submit an appeal in accordance with § 426.208. The Commission shall communicate this appeal right as part of its denial notification to the requester.
(g)
(2) If the agency notifies the requester that the actual or estimated fees are in excess of $25, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable designate an exact dollar amount the requester is willing to pay. Agencies are not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the Commission estimates that the total fee will exceed that amount, the Commission will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Commission will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) The FOIA Public Liaison will be available to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(h)
(2) When the Commission determines or estimates that a total fee to be charged under this section will exceed $250, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. An agency may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) If a requester previously has failed to pay a fee within 30 calendar days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Commission begins to process a new request.
(4) In cases in which an agency requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the agency's fee determination, the request will be closed.
(i)
(j)
(k)
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
| 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 |