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Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Food and Nutrition Service, USDA.
Interim final rule; approval of information collection request.
The Food and Nutrition Service published an interim final rule entitled “Certification of Compliance with Meal Requirements for the National School Lunch Program under the Healthy, Hunger-Free Kids Act of 2010” on April 27, 2012. The Office of Management and Budget (OMB) cleared the associated information collection requirements (ICR) on June 20, 2012. This document announces approval of the ICR.
The ICR associated with the interim final rule published in the
Requests for additional information or copies of this information collection should be directed to Jon Garcia, Program Analysis and Monitoring Branch, Child Nutrition Division, 3101 Park Center Drive, Alexandria, VA 22302.
The April 2012 interim final rule amended National School Lunch Program regulations to conform to requirements contained in the Healthy, Hunger-Free Kids Act of 2010 regarding performance-based cash assistance for school food authorities (SFA) certified compliant with meal patterns and nutrition standards. The interim final rule requires State agencies to certify participating SFAs that are in compliance with meal pattern and nutrition standard requirements as eligible to receive performance-based cash assistance for each reimbursable lunch served (an additional six cents per lunch available beginning October 1, 2012 and adjusted annually thereafter). This rule also requires State agencies to disburse performance-based cash assistance to certified SFAs, and withhold the performance-based cash assistance if the SFA is determined to be out of compliance with meal pattern or nutrition standards during a subsequent administrative review. Comments on the associated ICR interim final rule were accepted until June 26, 2012. This document announces OMB's approval of the ICR under OMB Control Number 0584-0567.
Coast Guard, DHS.
Final rule.
This rule makes non-substantive changes throughout Title 33 of the Code of Federal Regulations. The purpose of this rule is to make conforming amendments and technical corrections to Coast Guard navigation and navigable waters regulations. These changes will have no substantive effect on the regulated public. This rule is provided to coincide with the annual recodification of Title 33 on July 1, 2013.
This final rule is effective July 1, 2013.
Documents mentioned in this preamble as being available in the docket are part of docket USCG-2013-0397 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
If you have questions on this rule, call or email Mr. Paul Crissy, Coast Guard; telephone 202-372-1093, email
We did not publish a notice of proposed rulemaking for this rule. Under 5 U.S.C. 553(b)(A), the Coast Guard finds this rule is exempt from notice and comment rulemaking requirements because these changes involve rules of agency organization, procedure, or practice. In addition, the Coast Guard finds notice and comment procedures are unnecessary under 5 U.S.C. 553(b)(B) as this rule consists only of corrections and editorial, organizational, and conforming amendments and these changes will have no substantive effect on the public. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective upon publication in the
Each year, the printed edition of Title 33 of the Code of Federal Regulations (CFR) is recodified on July 1. This rule, which is effective July 1, 2013, makes technical and editorial corrections throughout Title 33. This rule does not create any substantive requirements. This rule is issued under the authority of 5 U.S.C. 552, 553, App. 2; 14 U.S.C. 2, 631, 632, and 633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; Department of Homeland Security Delegation No. 0170.1.
This rule amends § 1.05(j) to reflect changes in agency organization by correctly identifying District Bridge Managers by their appropriate title. Specifically, this change replaces the term “Bridge Program Chief”, which is no longer used in the Coast Guard, with “District Bridge Manager.”
Additionally, this rule updates § 1.05-10 to reflect changes in agency organization, noting that District Bridge Managers also have the authority to issue rules of local applicability with regard to temporary deviations to drawbridge operating schedules. This rule also edits the section by correcting a non-substantive typographical error in the first sentence, replacing a comma with a period.
This rule amends 33 CFR part 3 to reflect changes in agency organization by creating and defining Coast Guard sectors that exercise specific Search and Rescue Mission Coordinator authority over a designated portion of an encompassing sector's area of responsibility. Revisions to this part also accommodate these newly-designated Search and Rescue Coordinator Zones in parts that discuss sector authorities and divisions. Specifically, in § 3.55-25, the Coast Guard established a Search and Rescue Missions Coordinator Zone for an area near Humboldt Bay in California. Additionally, the Coast Guard established the same authority for a new sector in North Bend, Oregon.
This rule amends § 6.01-3 to make the regulation defining a Captain of the Port gender neutral. The new language indicates that a Captain of the Port may be male or female, replacing outdated language referring to Captains of the Port using only male gender designations.
This rule amends § 13.01-15(d) to correct a reference to an outdated publication. In § 13.01-15, the regulation previously referenced a
This rule amends 33 CFR part 72 in order to correctly state the means by which the Coast Guard issues the
Additionally, this rule amends § 72.01-10(b), (c), and Note to reflect the updated language in the
Further, this rule amends § 72.01-25 to update ways in which readers can access, purchase, and download navigational aids referenced within this part. This rule removes a reference to the Government Printing Office in paragraph (b), which no longer sells Radio Navigational Aids, but replaces it with a link where readers can purchase the Aids. This rule also updates links in paragraph (c) to indicate where readers can purchase the
This rule removes § 72.01-35 because it is no longer relevant or applicable. Because the
This rule also amends § 72.01-40(c) to reflect the new title of the National Geospatial-Intelligence Agency. This section previously referred to that agency by its outdated agency title, the National Imagery and Mapping Agency.
This rule amends the Note to § 72.05-5 to update the Government Printing Office address from which readers may order volumes of the
This rule revises the Note to § 72.05-10 to provide an updated link to access the Coast Guard
This rule amends § 80.110(b) and § 80.115(b) to correct non-substantive typographical errors in latitude positions. For consistency, this rule inserts a comma after the latitude coordinates. This rule does not change the coordinates themselves in either of the two sections.
This rule amends § 80.120(b) to make a non-substantive update and grammatical correction. The title of the lighthouse referenced in this paragraph has been updated to reflect the current, correct title for the lighthouse used as a reference point. Additionally, this rule inserts a comma after the latitude coordinates. This rule does not change the coordinates themselves.
This rule amends §§ 80.145, 80.501(d), and 80.505(c) to correct non-substantive typographical errors in latitude positions. Specifically, for consistency, this rule inserts a comma after the latitude coordinates in each particular paragraph. This rule does not change the coordinates themselves in any of these sections.
This rule corrects § 80.520(a) to reflect the correct latitude and longitude of the Hatteras Inlet Lookout Tower. The previous language in this paragraph erroneously identified the coordinates for the Hatteras Inlet Lookout Tower. The text has been updated with the correct latitude and longitude coordinates as follows: “latitude 35°11.85′ N., longitude 75°43.9′ W. 255° true to the eastern end of Ocracoke Island.”
This rule amends § 80.520 paragraphs (a) and (b) to correct a non-substantive typographical error. Specifically, for consistency, this rule inserts a comma after the latitude coordinates in each particular paragraph. This rule does not change the coordinates themselves.
This rule amends § 80.525(c) and (d) to correct a non-substantive typographical error. Specifically, for consistency, this rule inserts a comma after the latitude coordinates in each particular paragraph. This rule does not change the coordinates themselves.
This rule removes latitude and longitude points in § 80.525(e) and replaces them with more precise reference points. The reference points previously noted with coordinates have eroded, causing many of the points to disappear. The new reference language is general enough to provide a meaningful reference point while adapting to areas where erosion has noticeably affected the shoreline.
This rule amends § 80.530(a) to correct a non-substantive typographical error in latitude position. Specifically, for consistency, this rule inserts a comma after the latitude coordinate. This rule does not change the coordinate itself.
This rule amends § 80.703(f) to clarify a COLREGS demarcation line because the previous description refers to a line of longitude that no longer depicts a point of land easily discernible to mariners. This paragraph now refers to the demarcation line based on points that rely upon the physical body of land itself, and that no longer reference a particular line of longitude.
This rule amends § 80.707(a) to correct a reference point that is misleading due to shoaling in the area. Because shoaling affected the shoreline referenced in this paragraph, the bearing previously cited is no longer useful. The new text uses reference points that rely on the land itself instead of directional references.
This rule also amends § 80.707(b) to correct and update references mentioned in this paragraph. Particularly, Sandy Point is no longer a viable reference point as shoaling has affected it. As such, the rule extends the demarcation line accordingly.
This rule amends § 80.712 to remove an outdated reference to an aid to navigation and to correct a non-substantive typographical error. The language in § 80.712(a) is updated to remove reference to an aid to navigation that has been removed.
This rule amends § 80.712(f) to correct non-substantive typographical errors in the latitude positions. Specifically, for consistency, this rule inserts a comma after the latitude coordinates in this paragraph. This rule does not change the coordinates themselves.
This rule amends § 80.715 to update the name of a lighthouse and correct non-substantive typographical errors. The “Tybee Range Rear Light” is now called the “Tybee Light.” For grammatical consistency, this rule inserts a comma after the latitude coordinates. This rule does not change the coordinates themselves. Also, this rule removes excess space between the “N” in the latitude position and the period that follows it.
This rule makes a non-substantive correction to a reference point in § 80.717(c). Previously, “Wassaw Island” was misspelled. This rule updates this paragraph to reflect the correct spelling of this island, which serves as a geographical point of reference in this paragraph.
This rule amends § 80.717(d) to correct a non-substantive typographical error in the longitude position. Previously, a zero was omitted from the minutes section of the longitude. The longitude should now read “81°08.4′ W.” This rule does not change the location that the coordinates reference.
This rule amends § 80.720(a) and (b) to correct non-substantive typographical errors in latitude positions. Specifically, for consistency, this rule inserts a comma after the latitude coordinates. This rule does not change the coordinates themselves.
This rule amends § 80.735(a) and (f) to correct a non-substantive typographical errors in latitude position. Specifically, for consistency, this rule inserts a comma after the latitude coordinates. This rule does not change the coordinates themselves.
This rule amends § 80.738(b) to convert the minutes and seconds in the coordinates to minutes and decimals for consistency with the other sections of this part. The Coast Guard seeks to standardize its coordinates in order to provide uniform and predictable reference points for those looking at regulations. This rule also corrects a non-substantive typographical error by inserting periods after the “N” and “W” for readability and consistency. This rule does not change the location that the coordinates reference.
This rule amends § 80.740 and paragraphs (a) and (c) of § 80.745 to correct non-substantive typographical errors in the latitude positions. Specifically, this correction inserts commas after the “N” and “W” for consistency. This rule does not change the coordinates themselves.
This rule amends § 80.748(d) to correct a non-substantive typographical error in the latitude position. Specifically, for consistency, this correction inserts a comma after the “N” in the latitude coordinate. This rule does not change the location that the coordinates reference.
This rule amends § 80.757(g) to correct non-substantive typographical errors in the latitude position. Specifically, this correction inserts commas after the “N” and “W” for consistency. This rule does not change the location that the coordinates reference.
This rule amends § 80.757(h) to update the name of a lighthouse listed as a reference point. The lights previously referred to as the “Suwannee River Wadley Pass Channel Daybeacons 30 and 31” are now referred to as the “Suwannee River Mcgriff Pass Daybeacons 30 and 31.” The name change reflects the updated names in the
This rule amends § 80.805(d) to update a COLREGS demarcation line. The line previously described did not intersect Turkey Light Point 2, a referenced aid to navigation. Instead, this demarcation line is updated to correctly identify the demarcation line by removing that reference and instead using a fixed extremity of land as a point of reference. Additionally, this rule corrects non-substantive typographical errors in the longitude position. Specifically, for consistency, this correction inserts a comma after the “W.” This grammatical change does not change the location that this line references.
This rule amends § 80.830(a) to remove a reference to an aid to navigation that has been removed. A reference to the “West Bay light” was replaced by a reference to the “westernmost point near Pass du Bois,” as the previous point of reference is an aid to navigation that was removed. Additionally, this rule corrects non-substantive typographical errors in the latitudes referenced in this paragraph. Specifically, for consistency, this rule adds a comma after the letter “N” in the latitude coordinates. This grammatical
This rule amends § 80.835 to update a reference to the name of an aid to navigation, removes a navigational reference point that no longer exists, and corrects non-substantive typographical errors in latitude and longitude coordinates. The aid to navigation previously referred to as “Point Au Fer Reef Light 33” is now correctly referred to as the “Atchafalaya Channel Light 33,” reflecting a recent name change. Further, the reference point known as “Pipeline Light D” no longer exists, and any reference to it has been removed. Additionally, this rule adds commas after the “N” and “W” in the latitude and longitude coordinates listed in this regulation. This grammatical change is done for consistency and does not change the location that the coordinates reference.
This rule amends § 80.1110 to update the numbers for the lights referenced. The light previously referred to as “Dana Point Jetty Light 6” has since been renamed to “Dana Point Jetty Light 4” and the light previously referred to as “Dana Point Breakwater Light 5” is now known as “Dana Point Breakwater Light 3.”
This rule amends § 83.10(l) to make a non-substantive grammatical change. This rule capitalizes the “R” in “rule” for clarity and consistency. This capitalization indicates to the reader that the word “rule” refers to the requirements of Rule 10, the rule in which paragraph (l) is located.
This rule amends § 83.38(d)(5) to add a word for clarity. Previously, this paragraph had a sentence that read, “The restructuring of all lights to meet the prescriptions of Annex I to these, until. . .” This rule adds the word “Rules” to clarify that the prescriptions of Annex I come from the previously discussed Rules.
This rule amends § 83.38(d)(6) to make a non-substantive grammatical change. Specifically, this rule inserts a hyphen into the phrase “all-round” for clarity and consistency.
This rule amends § 101.105 to make a non-substantive update to correct a Web site referenced in the text. The Web site is now located at
This rule amends § 101.115(a) to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard has implemented its DCO 3.0 policy that changes office titles and internal organizational structure. The office reference in this paragraph has changed from “CG-54” to “CG-5P.” This section has been updated to reflect the new office designation as CG-5P.
This rule amends § 101.120(b) to make non-substantive changes for clarification. This paragraph makes reference to Alternative Security Programs that owners and operators of vessels may comply with. This rule changes the language from “may meet an Alternative Security Program” to “may meet the requirements of an Alternative Security Program.” This section always intended that the requirements of the Alternative Security Programs be met; a clause is being added to clarify that point.
This rule amends § 101.120 paragraphs (b), (c), (d)(2), and (f), and the introduction to § 101.125 to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard implemented its DCO 3.0 policy that changed office titles and internal organizational structure. The office references in these paragraphs have changed from “CG-54” to “CG-5P.” This section has been updated to reflect the new office designation as CG-5P.
This rule removes § 101.125 in order to avoid confusion about Alternative Security Programs. Previously in this section, the Coast Guard kept a list of approved Alternative Security Programs. However, the programs and organizations that issue them change so frequently that it is difficult for the Coast Guard to maintain an updated list in the CFR. The list contained within the regulation was never exhaustive and Alternative Security Programs continue to be regulated under subchapter H and approved according to the existing provisions. The Coast Guard maintains an up-to-date list, which can be found under the “MTSA” link located on the Coast Guard Homeport Web site(
This rule amends § 101.130(a) to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard implemented its DCO 3.0 policy that changed office titles and internal organizational structure. The office reference in this paragraph changed from “CG-54” to “CG-5P.” This section has been updated to reflect the new office designation as CG-5P.
This rule amends § 101.200 paragraphs (c) and (d) to remove outdated references to a threat advisory system and replaces those references with updated, corrected references. Previously, under § 101.200, the Commandant would adjust the Maritime Security (MARSEC) levels in conjunction with the Homeland Security Alignment System (HSAS). The HSAS was replaced by the National Terrorism Advisory System (NTAS), which now serves as the consulted system in adjusting the MARSEC levels.
This rule removes and reserves § 101.205, because it references an outdated advisory system. Because the HSAS was replaced by the NTAS, this section is no longer relevant and may cause confusion to the reader.
This rule amends § 101.420 to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard implemented its DCO 3.0 policy that changed office titles and internal organizational structure. The office references in these paragraphs have changed from “CG-54” to “CG-5P” and from “CG-543” to “CG-CVC.” This section has been updated to reflect the new office designations as CG-5P and CG-CVC.
This rule also amends § 101.510(a) to update a reference to reflect the current version of a document. The updated document is “NVIC 9-02 change 3,” which replaces “NVIC 9-02 change 2.”
This rule amends § 104.130 to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard implemented its DCO 3.0 policy that changed office titles and internal organizational structure. The office reference in this paragraph changed from “CG-54” to “CG-5P.” This section has been updated to reflect the new office designation as CG-5P.
This rule amends § 104.200(b)(7) to remove a reference to a Web site that is no longer valid. In § 104.200(b)(7), the text refers to a link in which the Maritime Administration supplies the text of the treaties referred to in the paragraph. This Web site and the preceding sentence referring readers to the Web site are being removed because the Web site no longer exists.
This rule amends § 104.205(b)(1) to make a non-substantive change to update an email address to contact the Captain of the Port. The updated email address now reads “
This rule also amends § 104.205(b)(3) to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard implemented its DCO 3.0 policy that changed office titles and internal organizational structure. The office reference in this paragraph changed from “CG-54” to “CG-5P.” This section has been updated to reflect the new office designation as CG-5P.
This rule amends § 104.267(b)(2) to correct a non-substantive typographical error in the parentheses. The CFR shows an extra space inserted around the left
This rule amends § 104.410(a)(2) by making a non-substantive revision clarifying the security programs that the paragraph refers to. Previously, this paragraph omitted the word “Alternative,” which is used consistently in Subpart D. This paragraph is updated to refer to alternative options as “Approved Alternative Security Programs.”
This rule also amends § 105.130 to reflect changes in internal agency organization by updating Coast Guard office titles. The Coast Guard implemented its DCO 3.0 policy that changes office titles and internal organizational structure. The office reference in this paragraph has changed from “CG-54” to “CG-5P.” This section has been updated to reflect the new office designation as CG-5P.
This rule amends § 105.200(b)(9) to remove a reference to a Web site that is no longer valid. In § 105.200(b)(9), the text refers to a link in which the Maritime Administration supplies the text of the treaties referred to in the paragraph. This Web site and the preceding sentence referring readers to the Web site are being removed because the Web site no longer exists.
This rule amends the introductory paragraph to § 105.400 to make a non-substantive update to correct a Web site referenced in the text. The previous link no longer contains the information referenced. The new link provides information about how to submit a Facility Security Plan electronically as previously referenced in this section.
This rule amends § 104.510(a)(2) by making a non-substantive revision clarifying the security programs that the paragraph refers to. Previously, this paragraph omitted the word “Alternative,” which is used consistently in subpart H. This paragraph is updated to refer to alternative options as “Approved Alternative Security Programs.”
This rule amends § 106.410(a)(2) by making a non-substantive revision clarifying the security programs that the paragraph refers to. Previously, this paragraph omitted the word “Alternative,” which is used consistently in subpart H. This paragraph is updated to refer to alternative options as “Approved Alternative Security Programs.”
This rule adds two paragraphs to § 110.155 that were incorrectly removed during a previous revision. These two paragraphs describe anchorage grounds that were incorrectly removed in a 2008 technical amendment to Title 33 (73 FR 34998). In that rule, this paragraph was amended to accurately identify coordinates using NAD 83. However, in processing this rule, the two anchorages that are the subject of this correction were incorrectly stricken. This rule adds those anchorages—Anchorage No. 38 and 39 back to § 110.115. Despite their incorrect removal from this section, these anchorages have remained in active use by mariners. These anchorages also remain charted in other publications.
This rule amends § 114.01(b) by making non-substantive changes to accurately reflect the description of the regulations in the subchapter. Specifically, this rule removes text that says a description of forms exists in the subchapter. There are no forms associated with § 114.01, thus this rule removes the reference to forms in this section.
This rule amends § 114.10 to make a non-substantive clarification to the text of this paragraph. The text in § 114.10 previously referenced bridge laws listed in § 114.01, however, that section does not identify bridge laws; it generally mentions them but goes no further. That reference to § 114.01 is being replaced with a reference to the authority section for part 114, where the relevant statutes and regulations are identified for the section.
This rule amends §§ 114.25, 114.50, 115.60, and 115.70 by removing a superfluous citation. The previously-cited statute, 49 U.S.C. 1655(g), references a transfer of power from the U.S. Army to the Department of Transportation. Because the Coast Guard moved from the Department of Transportation to the Department of Homeland Security, this delegation is no longer relevant. The delegation of authority to the Department of Homeland Security and the Coast Guard is now transferred through another statute.
This rule amends §§ 116.10(c); 116.15 paragraphs (c) and (d); 116.20 paragraphs (a) and (b); 116.25(a); 116.30 table of contents and title, paragraphs (a), (d), (e), and (g); 116.35(c); 116.40 paragraphs (a), (b), and (c); 116.45(a); and 116.55 paragraphs (a) and (b) to reflect changes to rules of agency organization. The title “Administrator, Office of Bridge Programs” changed to “Chief, Office of Bridge Programs.” This rule updates this reference in the sections mentioned above.
This rule amends § 117.35 to reflect changes to rules of agency organization, procedure, or practice. The language in this paragraph referring to the title of
This rule amends § 117.393 to make a non-substantive change by updating addresses in this section. The Elgin, Joliet, and Eastern Railway bridge is now operated out of a location in Homewood, Illinois. This section is being updated to reflect that change of address.
This rule amends § 117.425 to make a non-substantive change by updating the name of the bridge referenced in this paragraph. The bridge formerly known as the U.S. 90 bridge is now known as the U.S. 182 bridge. This section is being updated to reflect that name change.
This rule amends § 117.585(a) to make a non-substantive change by updating the name of the bridge referenced in this paragraph. The bridge in this section is now known as the New Bedford-Fairhaven RT. 6 Bridge, mile 0.0. This section is being updated to reflect that name change.
This rule amends § 117.997(c)(2)(ii) to correct a phone number. The phone number for the Gilmerton Bridge is now 757-485-5567.
This rule amends §§ 133.5(c) and 136.9 to update citations within the regulation text. Previously, these paragraphs referred to Department of Transportation regulations in regard to regulations that apply to funds and sanctions. This rule updates those references to Department of Homeland Security regulations to correctly state the applicable regulations. These changes do not impose new regulations upon those affected by these sections.
This rule amends § 138.45 to update contact phone numbers at the National Pollution Funds Center. These new phone numbers are being corrected to reflect a change in location of the National Pollution Funds Center.
This rule amends portions of parts 148, 149, and 150 to correct non-substantive typographical errors and it makes changes to reflect updated rules of agency organization, procedure, or practice. The Coast Guard implemented its DCO 3.0 policy that changes office titles and internal organizational structure. The office references in these parts have been updated to reflect that (1) CG-5, CG-522, and CG-PSO are now known as CG-5P; and (2) CG-PSE is now known as CG-ENG. Additionally, the citations for statutes and regulations have been formatted for consistency within these parts. This rule also updates references to agencies that have
This rule amends § 151.05 to make non-substantive edits to the text to remove a superfluous reference and provide order and consistency. The word “oily mixture” appears twice in the text, so the second reference is being removed. These definitions are being unified to avoid the confusion of duplicative definitions.
This rule amends § 164.03 to update the address listed in the text. The address in the incorporation by reference section for the Radio Technical Commission for Maritime Services has changed. This rule updates the address to reflect the new address for the Commission.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on these statutes or E.O.s.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Two additional executive orders were recently published to promote the goals of E.O. 13563: E.O. 13609 (“Promoting International Regulatory Cooperation”) and E.O. 13610 (“Identifying and Reducing Regulatory Burdens”). Executive Order 13609 targets international regulatory cooperation to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. Executive Order 13610 aims to modernize the regulatory systems and to reduce unjustified regulatory burdens and costs on the public.
This rule is not a significant regulatory action under section 3(f) of E.O. 12866 as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866. The Office of Management and Budget (OMB) has not reviewed it under E.O. 12866. Because this rule involves non-substantive changes and internal agency practices and procedures, it will not impose any additional costs on the public.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), rules exempt from the notice and comment requirements of the Administrative Procedure Act are not required to examine the impact of the rule on small entities. Nevertheless, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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.
There is no cost to this rule and we do not expect it to have an impact on small entities because the provisions of this rule are technical and non-substantive. It will have no substantive effect on the public and will impose no additional costs. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Paul Crissy by phone at 202-372-1093 or via email at
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132 (“Federalism”) if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under E.O. 13132 and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630, (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, (“Civil Justice Reform”), to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under E.O. 13045, (“Protection of Children from Environmental Health Risks and Safety Risks”). This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under E.O. 13175, (“Consultation and Coordination with Indian Tribal Governments”), because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a) and (b) of the Instruction. This rule involves regulations that are editorial, procedural, or concern internal agency functions or organizations. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Penalties.
Organization and functions (Government agencies).
Harbors, Security measures, Vessels.
Decorations, medals, awards.
Government publications, Navigation (water).
Navigation (water), Treaties, Waterways.
Navigation (water), Waterways, Vessels, Marine safety, Traffic regulation.
Harbors, Incorporation by reference, Maritime Security, Reporting and recordkeeping requirements, Security measures, Vessels, Waterways.
Harbors, Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels, Waterways.
Maritime security, Reporting and recordkeeping requirements, Security measures, Vessels.
Maritime security, Reporting and recordkeeping requirements, Security measures.
Continental shelf, Maritime security, Reporting and recordkeeping requirements, Security measures.
Anchorage grounds.
Bridges.
Administrative practice and procedure, Bridges, Reporting and recordkeeping requirements.
Bridges, Incorporation by reference.
Intergovernmental relations, Oil pollution, Reporting and recordkeeping requirements.
Administrative practice and procedure, Advertising, Claims, Oil pollution, Penalties, Reporting and recordkeeping requirements.
Hazardous materials transportation, Insurance, Oil pollution, Reporting and recordkeeping requirements, Water pollution control.
Administrative practice and procedure, Environmental protection, Harbors, Petroleum.
Fire prevention, Harbors, Marine safety, Navigation (water), Occupational safety and health, Oil pollution.
Harbors, Marine safety, Navigation (water), Occupational safety and health, Oil pollution, Reporting and recordkeeping requirements.
Administrative practice and procedure, Oil pollution, Penalties, Reporting and recordkeeping requirements, Water pollution control.
Harbors, Navigation (water), Reporting and recordkeeping requirements, Vessels, Waterways.
Incorporation by reference, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 1, 3, 6, 13, 72, 80, 83, 101, 103, 104, 105, 106, 110, 114, 115, 116, 117, 118, 133, 136, 138, 148, 149, 150, 151, 161, 164, and 165 as follows:
5 U.S.C. 552, 553, App. 2; 14 U.S.C. 2, 631, 632, and 633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; Department of Homeland Security Delegation No. 0170.1.
14 U.S.C. 92; Pub. L. 107-296, 116 Stat. 2135; Department of Homeland Security Delegation No. 0170.1, para. 2(23).
(d) * * *
(3) Some specified sectors exercise Search and Rescue Mission Coordinator (SMC) authority over a designated portion of an encompassing sector's area of responsibility. In such cases, SMC authority is exercised by the encompassed sector, not the encompassing sector. The encompassing sector retains all other authorities (as listed in 33 CFR 3.01-1(d)(1)) over the designated area.
The Sector Humboldt Bay office is located in McKinleyville, CA. The boundaries of Sector Humboldt Bay's Search and Rescue Mission Coordinator Zone start in the north by a line bearing 264T from the coastal point of the Oregon-California border (42°00.0′ N./124°13.0′ W.), on the south by a line bearing 270T from the coastal point of the Mendecino-Sonoma County, CA, border (38°47.0′ N./123°30.0′ W.), and on the west by the outermost extent of the exclusive economic zone (EEZ). The inland Area of Responsibility (AOR) includes the entirety of the following California counties: Del Norte, Humboldt, Mendecino, Siskiyou, Trinity, Shasta, Tehama, Glenn, Lake, Colusa, Butte, Plumas, Lassen, and Modoc.
The Sector North Bend office is located in North Bend, OR. The boundaries of Sector North Bend's Search and Rescue Mission Coordinator Zone start at a point 45°12.0′ N. latitude, 123°18.0′ W. longitude and proceeds southward along the 123°18.0′ W. longitude, to a point 42°00.0′ N. latitude, 123°18.0′ W. longitude; thence westerly along 42°0.00′ N. latitude to the sea. The offshore boundary is bounded on the south by the southern boundary of the 13th Coast Guard District, which is described in § 3.65-10, to the outermost extent of the EEZ; thence northerly along the outermost extent of the EEZ to 45°12.0′ N. latitude; thence easterly along 45°12.0′ N. latitude to a point 45°12.0′ N. latitude, 123°18.0′ W. longitude. Sector North Bend's search and rescue mission coordination responsibilities extend from its eastern most boundary seaward to 50 nautical miles west of the coastline.
40 Stat. 220, as amended; 50 U.S.C. 191.
Secs. 500, 633, 63 Stat. 536, 545, sec. 6(b)(1), 80 Stat. 938; 14 U.S.C. 500, 633; 49 U.S.C. 1655(b); 49 CFR 1.4 (a)(2) and (f).
14 U.S.C. 85, 633; 43 U.S.C. 1333; Department of Homeland Security Delegation No. 0170.1.
(b) “Local Notice to Mariners” is published weekly by each Coast Guard district or more often if there is a need to notify mariners of local waterway information. Local Notice to Mariners is available for viewing on the Coast Guard Navigation Center Web site (
(c) Any person may apply to the Coast Guard Navigation Center to receive automatic notices via email when new editions of the Local Notice to Mariners are available. Register at
(b) “Notice to Mariners” is published weekly by the National Geospatial-
(1) Coast Guard;
(2) National Ocean Service; and
(3) National Geospatial-Intelligence Agency.
(c) This notice may be accessed through the National Geospatial-Intelligence Agency's Web site (
(b) Any person may view or download “Radio Navigational Aids” from the National Geospatial-Intelligence Agency's Web site (
(c) Any person may purchase
14 U.S.C. 2; 14 U.S.C. 633; 33 U.S.C. 151(a).
(a) A line drawn from Hatteras Inlet Lookout Tower at latitude 35°11.85′ N., longitude 75°43.9′ W. 255° true to the eastern end of Ocracoke Island.
(b) A line drawn from the westernmost extremity of Ocracoke Island at latitude 35°04.0′ N., longitude 76°00.8′ W. to the northeasternmost extremity of Portsmouth Island at latitude 35°03.7′ N., longitude 76°02.3′ W.
(c) A line drawn across Drum Inlet parallel with the general trend of the highwater shoreline.
(d) A line drawn from the easternmost extremity on the southern side of New River Inlet at latitude 34°31.5′ N., longitude 77°20.6′ W., to the seaward tangent of the shoreline on the northeast side on New River Inlet.
(e) A line drawn across New Topsail Inlet between the closest extremities of the shore on either side of the inlet parallel with the general trend of the highwater shoreline.
(f) A north-south line drawn from the northernmost extremity of Cape Island Point to Murphy Island.
(a) A line drawn from the westernmost point on Cape Romain to the southeasternmost point on Raccoon Key.
(b) A line drawn from the westernmost extremity of Raccoon Key to the northernmost extremity of Northeast Point.
(a) A straight line drawn from the seaward tangent of Folly Island through across Stono River to the shoreline of Sandy Point.
(f) A line drawn from the westernmost extremity of Bull Point on Capers Island to Port Royal Sound Channel Range Rear Light, latitude 32°13.7′ N., longitude 80°36.0′ W.; thence 259° true to the easternmost extremity of Hilton Head at latitude 32°13.0′ N., longitude 80°40.1′ W.
A line drawn from the southernmost tank on Hilton Head Island charted in approximate position latitude 32°06.7′ N., longitude 80°49.3′ W., to Bloody Point Range Rear Light; thence to Tybee Light.
(b) A line drawn from the southernmost tank on Jekyll Island charted in approximate position latitude 31°01.6′ N., longitude 81°25.2′ W., to coordinate latitude 30°59.4′ N., longitude 81°23.7′ W. (0.5 nautical mile east of the charted position of St. Andrew Sound Lighted Buoy 32); thence to the abandoned lighthouse tower on the north end of Little Cumberland Island charted in approximate position latitude 30°58.5′ N., longitude 81°24.8′ W.
(a) A line drawn from the southernmost extremity of Fisher Island 212° true to the point latitude 25°45.0′ N., longitude 80°08.6′ W., on Virginia Key.
(f) A line drawn on the centerline of the Overseas Highway (U.S. 1) and bridges from latitude 25°19.3′ N., longitude 80°16.0′ W., at Little Angelfish Creek to the radar dome charted on Long Key at approximate position latitude 24°49.3′ N., longitude 80°49.2′ W.
A line drawn from the microwave tower charted on Long Key at approximate position latitude 24°48.8′ N., longitude 80°49.6′ W., to Long Key Light 1; thence to Arsenic Bank Light 2; thence to Sprigger Bank Light 5; thence to Schooner Bank Light 6; thence to Oxfoot Bank Light 10; thence to East Cape Light 2; thence through East Cape Daybeacon 1A to the shoreline at East Cape.
(g) A line drawn from position latitude 29°16.6′ N., longitude 83°06.7′ W., 300° true to the shoreline of Hog Island.
(h) A north-south line drawn through Suwannee River Mcgriff Pass Daybeacons 30 and 31 across the Suwannee River.
(d) A line drawn from the south shore of Southwest Cape at longitude 84°22.7′ W., to Dog Island Reef East Light 1; thence a straight line to the easternmost extremity of Dog Island.
(a) A line drawn from the seaward extremity of the Southwest Pass West Jetty located at coordinate latitude 28°54.5′ N., longitude 89°26.1′ W.; thence following the general trend of the seaward, highwater jetty and shoreline in a north, northeasterly direction to Old Tower latitude 28°58.8′ N., longitude 89°23.3′ W.; thence to westernmost point near Pass du Bois; thence to coordinate latitude 29°05.2′ N., longitude 89°24.3′ W.; thence a curved line following the general trend of the highwater shoreline to Point Au Fer Island except as otherwise described in this section.
(a) A line drawn from Point Au Fer to Atchafalaya Channel Light 34; thence to Atchafalaya Channel Light 33; thence to latitude 29°25.0′ N., longitude 91°31.7′ W.; thence to Atchafalaya Bay Light 1 latitude 29°25.3′ N., longitude 91°35.8′ W.; thence to South Point.
(f) A line drawn from the radio tower charted in approximate position latitude 29°45.7′ N., longitude 93°06.3′ W., 115° true across Mermentau Pass.
Sec. 303, Pub. L. 108-293, 118 Stat. 1028 (33 U.S.C. 2001); Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1.
In § 101.130(a), remove the text “(CG-54)” wherever it appears, and add, in its place, the text “(CG-5P)”.
(c) The Commandant will set (raise or lower) the MARSEC Level commensurate with risk, and in consideration of any maritime nexus to any active National Terrorism Advisory System (NTAS) alerts. Notwithstanding the NTAS, the Commandant retains discretion to adjust the MARSEC Level when necessary to address any particular security concerns or circumstances related to the maritime elements of the national transportation system.
(d) The COTP may raise the MARSEC Level for the port, a specific marine operation within the port, or a specific industry within the port, when necessary to address an exigent circumstance immediately affecting the security of the maritime elements of the transportation in his/her area of responsibility. Application of this delegated authority will be pursuant to policies and procedures specified by the Commandant.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No. 0170.1.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department Of Homeland Security Delegation No. 0170.1.
33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(h) * * *
(5)
(6)
33 U.S.C. 401, 406, 491, 494, 495, 499, 502, 511, 513, 514, 516, 517, 519, 521, 522, 523, 525, 528, 530, 533, and 535(c), (e), and (h); 14 U.S.C. 633; 49 U.S.C. 1655(g); Pub. L. 107-296, 116 Stat. 2135; 33 CFR 1.05-1 and 1.01-60, Department of Homeland Security Delegation Number 0170.1.
c. 425, sec. 9, 30 Stat. 1151 (33 U.S.C. 401); c. 1130, sec. 1, 34 Stat. 84 (33 U.S.C. 491); sec. 5, 28 Stat. 362, as amended (33 U.S.C. 499); sec. 11, 54 Stat. 501, as amended (33 U.S.C. 521); c. 753, Title V, sec. 502, 60 Stat. 847, as amended (33 U.S.C. 525); 86 Stat. 732 (33 U.S.C. 535); 14 U.S.C. 633.
33 U.S.C. 401, 521.
33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1.
(a) The New Bedford-Fairhaven RT-6 Bridge, mile 0.0, will open promptly, provided proper signal is given, on the following schedule:
33 U.S.C. 494; 14 U.S.C. 85, 633; Department of Homeland Security Delegation No. 0170.1.
100. The authority citation for part 133 continues to read as follows:
33 U.S.C. 2712(a)(1)(B), 2712(d) and 2712(e); Sec. 1512 of the Homeland Security Act of 2002, Pub. L. 107-296, Title XV, Nov. 25, 2002, 116 Stat. 2310 (6 U.S.C. 552(d)); E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, 68 FR 10619, 3 CFR, 2004 Comp., p. 166; Department of Homeland Security Delegation No. 0170.1, para. 2(80).
(c) The Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C. 6301-6308), 2 CFR part 3000, 6 CFR part 9, and 49 CFR parts 18 and 90, apply to Fund monies obligated for payment under this part.
33 U.S.C. 2713(e) and 2714; Sec. 1512 of the Homeland Security Act of 2002, Pub. L. 107-296, Title XV, Nov. 25, 2002, 116 Stat. 2310 (6 U.S.C. 552(d)); E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, 68 FR 10619, 3 CFR, 2004 Comp., p.166; Department of Homeland Security Delegation No. 0170.1, para. 2(80).
33 U.S.C. 2704; 33 U.S.C. 2716, 2716a; 42 U.S.C. 9608, 9609; Sec. 1512 of the Homeland Security Act of 2002, Public Law 107-296, Title XV, Nov. 25, 2002, 116 Stat. 2310 (6 U.S.C. 552(d)); E.O. 12580, Sec. 7(b), 3 CFR, 1987 Comp., p. 198; E.O. 12777, Sec. 5, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, 68 FR 10619, 3 CFR, 2004 Comp., p.166; Department of Homeland Security Delegation Nos. 0170.1 and 5110. Section 138.30 also issued under the authority of 46 U.S.C. 2103 and 14302.
33 U.S.C. 1504; Department of Homeland Security Delegation No. 0170.1 (75).
(3) Is designated as an Adjacent Coastal State by MARAD under 33 U.S.C. 1508(a)(2).
(4) Must be considered a “new source” for purposes of the Clean Air Act, as amended (codified at 42 U.S.C. 7401
(m) * * *
(1) * * *
(ii) Recommended ships' routing measures and proposed vessel traffic patterns in the deepwater port area, including aids to navigation; and
(o)
(x)
Federal agencies, the Adjacent Coastal States, and the owner of the deepwater port may consult with the Commandant (CG-5P) and MARAD on the conditions of the license being developed under 33 U.S.C. 1503(e).
Within 2 years of deepwater port decommissioning, the licensee must initiate removal procedures. The Commandant (CG-5P) will advise and coordinate with appropriate Federal agencies and the States concerning activities covered by this section.
33 U.S.C. 1504; Department of Homeland Security Delegation No. 0170.1 (75).
Where equipment in this subchapter must be of an approved type, the equipment must be specifically approved by the Commandant (CG-5P) and the Coast Guard Marine Safety Center. A list of approved equipment, including all of the approval series, is available at:
(a) Each deepwater port must have a facility response plan that meets the requirements outlined in part 154, subpart F, of this chapter, and be approved by the cognizant Sector Commander, or MSU Commander with COTP and OCMI authority.
For each person on duty in a location where the lifejacket required by § 149.317 of this part is not readily accessible, an additional lifejacket must be stowed so as to be readily accessible to that location.
33 U.S.C. 1231, 1321(j)(1)(C), (j)(5), (j)(6), (m)(2); 33 U.S.C. 1509(a); E.O. 12777, sec. 2; E.O. 13286, sec. 34, 68 FR 10619; Department of Homeland Security Delegation No. 0170.1(70), (73), (75), (80).
The operations manual required by § 150.10 of this part must identify the deepwater port and include the information required in this section.
(b) A physical description of the deepwater port.
(c) Engineering and construction information, including all defined codes and standards used for the deepwater port structure and systems. The operator must include schematics of all applicable systems. Schematics must show the location of valves, gauges, system working pressure, relief settings, monitoring systems, and other pertinent information.
(g) The size, type, number, and simultaneous operations of tankers that the deepwater port can handle.
(i) * * *
(2) The speed limits proposed for tankers in the safety zone and area to be avoided around the deepwater port.
(4) * * *
(v) Advisories to each tanker underway in the safety zone regarding the vessel's position, deepwater port conditions, and status of adjacent vessel traffic;
(vi) Notices that must be made, as outlined in § 150.325 of this part, by the tanker master regarding the vessel's characteristics and status; and
(7) * * *
(iii) Prohibition on mooring at the deepwater port or SPM; and
(iv) Shutdown of all deepwater port operations and evacuation of the deepwater port.
(j)
(6) Deepwater port security.
(k) The personnel assigned to supervisory positions must be designated, in writing, by the licensee and have the appropriate experience and training to satisfactorily perform their duties. The Commandant (CG-5P) will review and approve the qualifications for all proposed supervisory positions.
(1) * * *
(2) * * *
(vi) Supervision by a deepwater port person in charge.
(4) The duties, title, qualifications, and training of personnel of the deepwater port designated as the person in charge and responsible for managing cargo transfers, including ballasting operations if applicable to the deepwater port, in accordance with subpart D of part 154 for oil, and subpart B (Operations) of part 127 for natural gas, respectively, of this chapter.
(o) A waste management plan comparable to § 151.57 of this chapter.
(p)
(16) Initial and periodic training and certification to be documented for each deepwater port employee and for visitors, where appropriate; for example, safety orientation training.
(q) * * *
(1) Names and numbers of key deepwater port personnel;
(3) Names and numbers of persons in charge of any Outer Continental Shelf facility that, due to close proximity, could be affected by an incident at the deepwater port.
(t) Deepwater port response procedures for:
(4) Terrorist activity, as described in the deepwater port security plan.
(v) Designation of and assignment of deepwater port personnel to response teams for specific contingencies.
(x) * * *
(2) Monitoring and alerting of vessels that approach or enter the deepwater port's security zone;
(4) Internal and external notification and response requirements in the event of a perceived threat or an attack on the deepwater port;
(5) Designation of the deepwater port security officer;
(y) * * *
(6) Contingency response for events that could affect nearby existing Outer Continental Shelf oil and gas facilities, such as explosions, fires, or product spills.
(aa) * * *
(2) A routine re-examination, not less than once every 5 years, of the physical, chemical, and biological factors contained in the deepwater port's environmental impact analysis and baseline study submitted with the license application; and
(a) An Adjacent Coastal State connected by pipeline to the deepwater port may petition the cognizant Sector Commander, or MSU Commander, with COTP and OCMI authority to amend the operations manual. The petition must include sufficient information to allow the Sector Commander, or MSU Commander, with COTP and OCMI authority to reach a decision concerning the proposed amendment.
(b) After the Sector Commander, or MSU Commander, with COTP and OCMI authority receives a petition, the Sector Commander, or MSU Commander, with COTP and OCMI authority requests comments from the licensee.
(c) After reviewing the petition and comments, and considering the costs and benefits involved, the Sector Commander, or MSU Commander, with COTP and OCMI authority may approve the petition if the proposed amendment will provide equivalent or improved protection and safety. The Adjacent Coastal State may petition the Commandant (CG-5P) to review the decision. Petitions must be made in writing and presented to the Sector Commander, or MSU Commander, with COTP and OCMI authority for forwarding to the Commandant (CG-5P) via the District Commander.
The master of any tanker calling at an unmanned deepwater port is responsible for the safe navigation of the vessel to and from the deepwater port, and for the required notifications in § 150.325 of this part. Once the tanker is connected to the unmanned deepwater port, the master must maintain radar surveillance in compliance with the requirements of § 150.310 of this part.
(a) In case of emergency, the Sector Commander, or MSU Commander, with COTP and OCMI authority may order the suspension of cargo transfers at a deepwater port to prevent the discharge, or threat of discharge, of oil or natural gas, or to protect the safety of life and property.
(a) In addition to the notice of casualty under § 150.815 of this part, the owner, operator, or person in charge of a deepwater port must submit a written report of the event to the nearest Sector Commander, or the nearest MSU Commander, with COTP and OCMI authority within 5 days of the casualty notice. The report may be on Form 2692, Report of Marine Accident, Injury, or Death, or in narrative form if it contains all of the applicable information requested in Form 2692. Copies of Form 2692 are available from the Sector Commander, or from the MSU Commander, with COTP and OCMI authority.
(d) The operator will ensure that the written report is provided to the nearest Bureau of Ocean Energy Management (BOEM) office when the deepwater port is co-located with a BOEM-regulated facility.
33 U.S.C. 1321, 1902, 1903, 1908; 46 U.S.C. 6101; Pub. L. 104-227 (110 Stat. 3034); Pub. L. 108-293 (118 Stat. 1063), § 623; E.O. 12777, 3 CFR, 1991 Comp. p. 351; DHS Delegation No. 0170.1, sec. 2(77).
(1) Slops from bilges;
(2) Slops from oil cargoes (such as cargo tank washings, oily waste, and oily refuse);
(3) Oil residue (sludge); and
(4) Oily ballast water from cargo or fuel oil tanks.
33 U.S.C. 1222(5), 1223, 1231; 46 U.S.C. 2103, 3703; Department of Homeland Security Delegation No. 0170.1 (75). Sec. 164.13 also issued under 46 U.S.C. 8502. Sec. 164.61 also issued under 46 U.S.C. 6101.
Office of the Secretary, Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA or Agency) of the Department of Health and Human Services (HHS or Department) is exempting a system of records from certain requirements of the Privacy Act to protect the integrity of FDA's scientific research misconduct proceedings and to protect the identity of confidential sources in such proceedings.
This rule is effective July 31, 2013.
Frederick Sadler, Division of Freedom of Information, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-8975,
HHS/FDA is exempting a system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC,” under subsections (k)(2) and (k)(5) of the Privacy Act (5 U.S.C. 552a) from notification, access, accounting, and amendment provisions of the Privacy Act.
The purpose of this system of records is to implement FDA's responsibilities under the Public Health Service (PHS) Policies on Research Misconduct (42 CFR part 93) for research performed by persons who are FDA employees, agents of the Agency, or who are affiliated with the Agency by contract or agreement. The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” (42 CFR 93.100(a)).
Under the Privacy Act, individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Privacy Act permits certain types of systems to be exempt from some of the Privacy Act requirements. For example, section 552a(k)(2) of the Privacy Act allows Agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the record access provision is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would otherwise be entitled to by Federal law, the individual must be granted access to the material except to the extent that the access would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence. In addition, section (k)(5) of the Privacy Act permits an Agency to exempt investigatory material from certain Privacy Act provisions where such material is compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. This exemption is also limited as it will be applied only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise of confidentiality.
FDA may take administrative action in response to a research misconduct proceeding and, where there is a reasonable indication that a civil or criminal fraud may have taken place, will refer the matter to the appropriate investigative body. As such, FDA's records related to research misconduct proceedings are compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of records. Moreover, where records related to research misconduct proceedings are compiled solely for the purpose of making determinations as to the suitability for appointment as special Government employees or eligibility for Federal contracts from PHS Agencies, the subsection (k)(5) exemption is applicable.
On August 28, 2012, HHS/FDA published a system of records notice (SORN) for this system (77 FR 52036). On the same date, HHS/FDA also published a proposed rule (77 FR 51949) and, anticipating no significant adverse comment, a direct final rule (77 FR 51910) to exempt this system of records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act. The comment period was open through November 13, 2012. The Agency received three comments regarding the exemptions. One comment was positive and in favor of the exemptions. Another comment appears to have misunderstood the scope and applicability of the exceptions, because it assumed that the purpose of the rule was to exempt these records from access by the general public. The third comment broadly opposed the exemptions as a governmental over-reach restricting citizens' ability to maintain awareness of the actions of regulatory bodies. FDA construed this last comment as sufficiently adverse to merit withdrawal of the direct final rule on January 10, 2013 (78 FR 2892; January 15, 2013). HHS/FDA now publishes this final rule under the
After considering the comments, HHS/FDA believes the exemptions at issue are necessary to fulfill the Agency's responsibilities for addressing research misconduct. The exemptions are essential in order for FDA to protect the confidentiality of sources who provide information relevant to a research misconduct proceeding and to guard against the premature disclosure of research misconduct records that might obstruct or compromise proceedings. The exemptions will thereby enable FDA to maintain the integrity and effectiveness of research misconduct proceedings.
Failure to adopt the exemptions would jeopardize the integrity and effectiveness of FDA's research misconduct proceedings. FDA's new system of records is modeled after the system of records maintained by HHS' Office of Research Integrity (ORI) entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OS/ORI” System No. 09-37-0021 (59 FR 36776, July 19, 1994; revised most recently at 74 FR 44847, August 31, 2009). ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act, to ensure that these records will not be disclosed inappropriately (59 FR 36717). Likewise, HHS/FDA believes that exempting the new FDA system from the same Privacy Act provisions is essential to ensure that material in FDA's files related to research misconduct proceedings is not disclosed inappropriately.
Subject to its obligations under the PHS Policies on Research Misconduct, 42 CFR Part 93, and other applicable law, HHS/FDA is therefore exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, and amendment provisions of the Privacy Act (subsections (c)(3), (d)(1) to (d)(4), (e)(4)(G) and (e)(4)(H), and (f)). The specific rationales for applying each of the exemptions are as follows:
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To avoid the unnecessary application of the exemptions, FDA will give case-by-case consideration to requests for notification, access, and amendment submitted to FDA's Research Integrity Officer (System Manager) or Privacy Act Coordinator. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/FDA from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed. The request submission process is described in the SORN previously published for this system (77 FR 52036) and available online at
HHS/FDA has examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this final rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the Agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $139 million, using the most current (2011) Implicit Price Deflator for the Gross Domestic Product. HHS/FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
Privacy.
Privacy.
Therefore, the Department of Health and Human Services is amending 21 CFR part 21 and 45 CFR part 5b to read as follows:
21 U.S.C. 371; 5 U.S.C. 552, 552a.
(d) Records in the following Food and Drug Administration Privacy Act Records Systems are exempt under 5 U.S.C. 552a(k)(2) and (k)(5) from the provisions enumerated in paragraph (a)(1) through paragraph (a)(3) of this section: FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09-10-0020.
5 U.S.C. 301, 5 U.S.C. 552a.
(b) * * *
(2) * * *
(vii) * * *
(C) FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09-10-0020.
Final rule.
The Department of Health and Human Services (HHS or Department), through the National Institutes of Health (NIH), is exempting a system of records from certain requirements of the Privacy Act to protect the integrity of NIH research misconduct proceedings and to protect the identity of confidential sources in such proceedings.
Jerry Moore, NIH Regulations Officer, Office of Management Assessment, Division of Management Support, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, MD 20852-7669; telephone 301-496-4607; fax 301-402-0169; email
HHS/NIH is exempting a system of records, 09-25-0223, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH,” under subsections (k)(2) and (k)(5) of the Privacy Act (5 U.S.C. 552a) from notification, access, accounting, and amendment provisions of the Privacy Act.
This system of records is part of NIH's implementation of its responsibilities under the Public Health Service (PHS) Policies on Research Misconduct, 42 CFR Part 93, and applies to alleged or actual research misconduct involving research in the NIH Intramural Research Program (IRP): (1) Carried out in NIH facilities by any person; (2) funded by the NIH IRP in any location; or (3) undertaken by an NIH employee or trainee as part of his or her official NIH duties or NIH training activities, regardless of location. Subject to NIH IRP policy, a person who, at the time of the alleged or actual research misconduct, was employed by, was an agent of, or was affiliated by contract, agreement, or other arrangement with NIH is covered by the system.
The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “[r]esearch misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds” 42 CFR 93.100(a).
Under the Privacy Act, individuals have a right of access to information pertaining to them that is contained in a system of records. At the same time, the Privacy Act permits certain types of systems to be exempt from some of the Privacy Act requirements. For example, section (k)(2) of the Privacy Act allows Agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the record access provision is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would otherwise be entitled to by federal law, the individual must be granted access to the material except to the extent that the access would reveal the identity of a source who furnished information to the government under an express promise that the identity of the source would be held in confidence. In addition, section (k)(5) of the Privacy Act permits an Agency to exempt investigatory material from certain Privacy Act provisions where such material is compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information. This exemption is also limited as it will be applied only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the government under an express promise of confidentiality.
The NIH may take administrative action in response to a research misconduct proceeding and, where there is a reasonable indication that a civil or criminal fraud may have taken place, will refer the matter to the appropriate investigative body. As such, the NIH's records related to research misconduct proceedings are compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of records. Moreover, where records related to research misconduct proceedings are compiled solely for the purpose of making determinations as to the suitability for appointment as special government employees or eligibility for federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
On August 28, 2012, HHS/NIH published a System of Records Notice (SORN) for this system (77 FR 52043). On the same date, HHS/NIH also published a proposed rule (77 FR 51954) and, anticipating no significant adverse comment, a direct final rule (77 FR 51933) to exempt this system of records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act. The comment period was open through November 13, 2012. The Agency received two comments during the rulemaking comment period. One comment, which questioned the privacy interest of scientists who receive grant money and are accused of misconduct, appears to have misunderstood the scope and applicability of the exceptions. The system of records in question pertains to research misconduct proceedings involving the NIH IRP. Thus, NIH grant funding to extramural scientists is unlikely to be involved. Moreover, the exception would not interfere with the public disclosure of findings of research misconduct by HHS' Office of Research Integrity (ORI) on behalf of the agency, including findings that may involve NIH IRP scientists or trainees found to have committed research misconduct. The other comment expressed a general concern about a loss of privacy and appeared to seek a reconsideration of the agency's approach, which was construed as sufficiently adverse to merit withdrawal of the direct final rule on January 10, 2013. HHS/NIH now publishes this final rule under the standard notice and comment rulemaking process.
After considering the comments, HHS/NIH believes the exemptions at issue are necessary to fulfill the Agency's responsibilities for addressing research misconduct. The exemptions are essential for NIH to protect the confidentiality of sources who provide information relevant to a research misconduct proceeding and to guard against the premature disclosure of research misconduct records that might obstruct or compromise proceedings. The exemptions will thereby enable the NIH to maintain the integrity and effectiveness of research misconduct proceedings.
Failure to adopt the exemptions would jeopardize the integrity and effectiveness of the NIH's research misconduct proceedings. The NIH's new system of records is modeled after the system of records maintained by the ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 74 FR 44847, August 31, 2009). The ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act to ensure that these records will not be disclosed inappropriately (59 FR 36717, July 19, 1994). Likewise, HHS/NIH believes that exempting the new NIH system from the same Privacy Act provisions is essential to ensure that material in the NIH's files related to research misconduct proceedings is not disclosed inappropriately.
Subject to its obligations under the PHS Policies on Research Misconduct, 42 CFR Part 93, and other applicable law, HHS/NIH is therefore exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, and amendment provisions of the Act (subsections (c)(3), (d)(1) to (d)(4), (e)(4)(G) and (e)(4)(H), and (f)). The specific rationales for applying each of the exemptions are as follows:
• Subsection (c)(3). An exemption from the requirement to provide an accounting of disclosures is needed during the pendency of a research misconduct proceeding. Release of an accounting of disclosures to an individual who is the subject of a pending research misconduct assessment, inquiry, or investigation could prematurely reveal the nature and scope of the assessment, inquiry, or investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (d)(1). An exemption from the access requirement is needed both during and after a research misconduct proceeding to avoid revealing the identity of any source who was expressly promised confidentiality. Only material that would reveal a confidential source will be exempt from access. Protecting the identity of a source is necessary when the source is unwilling to report possible research misconduct because of fear of retaliation (e.g., from an employer or coworkers).
• Subsections (d)(2) through (d)(4). An exemption from the amendment provisions is necessary while one or more related research misconduct proceedings is pending. Allowing amendment of investigative records in a pending proceeding could interfere with that proceeding. Even after that proceeding is concluded, an amendment could interfere with other pending or prospective research misconduct proceedings or could significantly delay inquiries or investigations in an attempt to resolve questions of accuracy, relevance, timeliness, and completeness.
• Subsection (e)(4)(G) and (e)(4)(H). An exemption from the Privacy Act notification provisions is necessary during the pendency of a research misconduct proceeding because notifying an individual who is the subject of an assessment, inquiry, or investigation of the fact of such proceedings could prematurely reveal the nature and scope of the proceedings and result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding. This exemption does not alter NIH's obligations to provide notice to the respondent in a research misconduct proceeding as described in the PHS Policies on Research Misconduct, 42 CFR Part 93.
• Subsection (f). An exemption from the requirement to establish procedures for notification, access to records, amendment of records, or appeals of denials of access to records is appropriate because the procedures would serve no purpose in light of the other exemptions, to the extent that those exemptions apply.
To avoid the unnecessary application of the exemptions, the NIH will give case-by-case consideration to requests for notification, access, and amendment submitted to the NIH Agency Intramural Research Integrity Officer (System Manager) or NIH Privacy Act Officer. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/NIH from granting respondents' access requests consistent with the PHS Policies on Research Misconduct, 42 CFR part 93, including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed. The request submission process is described in the SORN previously published for this system (77 FR 52043) and available online at
HHS/NIH has examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the Agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. HHS/NIH does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
Privacy.
For the reasons set out in the preamble, the Department of Health and Human Services is amending 45 CFR part 5b Subtitle A to read as follows:
5 U.S.C. 301, 5 U.S.C. 552a.
(b) * * *
(2) * * *
(vii) * * *
(D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09-25-0223.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) for commercial gray triggerfish in the exclusive economic zone (EEZ) of the South Atlantic. Commercial landings for gray triggerfish, as estimated by the Science and Research Director (SRD), are projected to reach the commercial annual catch limit (ACL) on July 7, 2013. Therefore, NMFS closes the commercial sector for gray triggerfish in the South Atlantic EEZ on July 7, 2013, and it will remain closed until the start of the next fishing season, January 1, 2014. This closure is necessary to protect the gray triggerfish resource.
This rule is effective 12:01 a.m., local time, July 7, 2013, until 12:01 a.m., local time, January 1, 2014.
Catherine Hayslip, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes gray triggerfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622.
The commercial ACL for gray triggerfish in the South Atlantic is 305,262 lb (138,465 kg), round weight, for the current fishing year, January 1 through December 31, 2013, as specified in 50 CFR 622.193(q)(1)(i).
Under 50 CFR 622.193(q)(1), NMFS is required to close the commercial sector for gray triggerfish when the commercial ACL is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial ACL for South Atlantic gray triggerfish will have been reached by July 7, 2013. Accordingly, the commercial sector for South Atlantic gray triggerfish is closed effective 12:01 a.m., local time, July 7, 2013, until 12:01 a.m., local time, January 1, 2014.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having gray triggerfish onboard must have landed and bartered, traded, or sold such gray triggerfish prior to 12:01 a.m., local time, July 7, 2013. During the closure, the bag limit specified in 50 CFR 622.187(b)(8), applies to all harvest or possession of gray triggerfish in or from the South Atlantic EEZ. During the closure, the possession limits specified in 50 CFR 622.187(c), apply to all harvest or possession of gray triggerfish in or from the South Atlantic EEZ. During the closure, the sale or purchase of gray triggerfish taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of gray triggerfish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, July 7, 2013, and were held in cold storage by a dealer or processor.
For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limit provisions of the commercial closure for gray triggerfish would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.193(q)(1)(i).
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of gray triggerfish and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.
This action is taken under 50 CFR 622.193(q)(1) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued
This action responds to the best available scientific information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the commercial sector for gray triggerfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure.
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect gray triggerfish since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Nuclear Regulatory Commission.
Regulatory basis.
The U.S. Nuclear Regulatory Commission (NRC) is making available the regulatory basis for the ongoing proposed rulemaking effort to amend its regulations regarding drug testing requirements in NRC licensees' fitness for duty programs. The regulatory basis documents the reasoning upon which the NRC determined rulemaking was the appropriate course of action. In this regulatory basis, the NRC recommends developing a proposed rule that would enhance the ability of NRC licensees to detect and deter drug use and the alignment of the NRC's regulations with select drug testing provisions in the U.S. Department of Health and Human Services' “Mandatory Guidelines for Federal Workplace Drug Testing Programs” issued in 2008.
At this time, the NRC is not soliciting formal public comments on the materials identified in this document. There will be an opportunity for formal public comment on the proposed rule when it is published in the
Please refer to Docket ID NRC-2009-0225 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, using any of the following methods:
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Scott C. Sloan, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1619; email:
As the NRC continues its ongoing proposed rulemaking effort to amend the drug testing requirements of part 26 of Title 10 of the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A318, A319, A320, and A321 series airplanes. This proposed AD was prompted by a determination that certain special washers used in the retraction jack anchorage fitting bearing installation in the main landing gear (MLG) were incorrectly manufactured. This proposed AD would require an inspection of the left-hand (LH) and right-hand (RH) MLG retraction jack anchorage fitting bearing assemblies to verify that the special washer is seated correctly, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct
We must receive comments on this proposed AD by August 15, 2013.
You may send comments by any of the following methods:
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•
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For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227-1405; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0223, dated October 23, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Airbus identified a batch of special washers, Part Number (P/N) D5725260120000 and P/N D5725664320000, which were incorrectly manufactured and delivered as spares from the supplier between October 2006 and January 2010. As a result of these manufacturing defects, the affected washers differ geometrically from the design specifications. The results of further analyses on Airbus A318, A319, A320 and A321 aeroplanes demonstrate that the affected washers could be seated incorrectly when installed on aeroplanes, which could affect the main landing gear (MLG) retraction jack anchorage fitting bearing installation.
This condition, if not detected and corrected, could lead to a local stress concentration which may reduce the fatigue life of the jack fitting, possibly reducing the structural integrity of the affected MLG.
For the reasons described above, this [EASA] AD requires a one-time detailed visual inspection of the left-hand (LH) and right-hand (RH) MLG retraction jack anchorage fitting bearing assemblies to verify that the special washer is seated correctly and, depending on findings, the accomplishment of applicable [related investigative action and] corrective actions.
Airbus has issued Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012, and the following tasks in Subject 57-26-13, Attachment—Main Landing Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 Aircraft Maintenance Manual (AMM), Revision 50, dated November 1, 2012.
• Task 57-26-13-400-001-A, Installation of the Bearing Assembly of the Forward Pintle Pin.
• Task 57-26-13-400-002-A, Installation of the Bearing Assembly of the MLG Actuator Attachment.
• Task 57-26-13-400-004-A, Installation of the Bearing Seals of the MLG Actuator Bearing Assembly.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA (or its delegated agent).
Based on the service information, we estimate that this proposed AD would affect about 851 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by August 15, 2013.
None.
This AD applies to the Airbus airplanes listed in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD, certificated in any category, all manufacturer serial numbers.
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Model A320-111, -211, -212, -214, -231, -232, and -233 airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a determination that certain special washers used in retraction jack anchorage fitting bearing installation in the main landing gear (MLG) were incorrectly manufactured. We are issuing this AD to detect and correct installation of incorrectly manufactured special washers, which could lead to a local stress concentration resulting in possible reduction of the fatigue life of the jack fitting, and consequent reduction of the structural integrity of the affected MLG.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 21,300 flight cycles after August 1, 2006, or within 30 days after the effective date of this AD, whichever occurs later: Do a detailed inspection of the left-hand (LH) and right-hand (RH) MLG retraction jack anchorage fitting bearing assemblies for correct installation, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012, except as specified in paragraphs (i)(1) and (i)(2) of this AD.
The affected special washers having part numbers (P/N) D5725260120000 and P/N D5725664320000 were manufactured between October 2006 and January 2010.
If any special washer is found incorrectly seated during the inspection specified in paragraph (g) of this AD: Before further flight, do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012, except as specified in paragraph (i)(3) of this AD.
(1) Airplanes on which Airbus modification 39730 or Airbus modification 150311 has been embodied in production, or on which Airbus Service Bulletin A320-57-1157 has been embodied in service, do not have to be inspected as required by paragraph (g) of this AD, unless a special washer having P/N D5725260120000 or P/N D5725664320000 has been installed since the airplane's first flight, or since modification as specified in Airbus Service Bulletin A320-57-1157, as applicable. A review of airplane maintenance records is acceptable to make this determination if the part numbers of the special washers and modification status can be conclusively determined from that review.
(2) MLG retraction jack anchorage fitting bearing assemblies on which no special washer replacement has been accomplished after August 1, 2006; and MLG retraction jack anchorage fitting bearing assemblies on which a special washer replacement has been accomplished as specified in Task 57-26-13-400-001-A, Installation of the Bearing Assembly of the Forward Pintle Pin; Task 57-26-13-400-002-A, Installation of the Bearing Assembly of the MLG Actuator Attachment; and Task 57-26-13-400-004-A Installation of the Bearing Seals of the MLG Actuator Bearing Assembly; of Subject 57-26-13, Attachment—Main Landing Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 Aircraft Maintenance Manual (AMM), Revision 50, dated November 1, 2012; do not have to be inspected as required by paragraph (g) of this AD. A review of airplane maintenance records is acceptable to make this determination if the status can be conclusively determined from that review.
(3) Where Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012, specifies to contact Airbus and apply corrective action defined by Airbus: Before further flight, repair the jack anchorage fitting using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent).
As of the effective date of this AD, no person may install, on any airplane, a special washer having P/N D5725260120000 or P/N D5725664320000, unless it is installed in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012; or in accordance with the instructions specified in the tasks identified in paragraphs (j)(1), (j)(2), and (j)(3) of this AD.
(1) Task 57-26-13-400-001-A, Installation of the Bearing Assembly of the Forward Pintle Pin, in Subject 57-26-13, Attachment—Main Landing Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 Aircraft Maintenance Manual (AMM), Revision 50, dated November 1, 2012.
(2) Task 57-26-13-400-002-A, Installation of the Bearing Assembly of the MLG Actuator Attachment, in Subject 57-26-13, Attachment—Main Landing Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 AMM, Revision 50, dated November 1, 2012.
(3) Task 57-26-13-400-004-A Installation of the Bearing Seals of the MLG Actuator Bearing Assembly, in Subject 57-26-13, Attachment—Main Landing Gear, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 AMM, Revision 50, dated November 1, 2012.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-57-1169, dated January 10, 2012, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2012-0223, dated October 23, 2012; Airbus Service Bulletin A320-57-1169, Revision 01, dated September 18, 2012; and the following tasks specified in Subject 57-26-13, of Chapter 57, Wings, of the Airbus A318/A319/A320/A321 AMM, Revision 50, dated November 1, 2012; for related information.
(i) Task 57-26-13-400-001-A, Installation of the Bearing Assembly of the Forward Pintle Pin.
(ii) Task 57-26-13-400-002-A, Installation of the Bearing Assembly of the MLG Actuator Attachment.
(iii) Task 57-26-13-400-004-A, Installation of the Bearing Seals of the MLG Actuator Bearing Assembly.
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The existing AD currently requires repetitive inspections for discrepancies of each carriage spindle of the outboard mid-flaps; repetitive gap checks of the inboard and outboard carriages of the outboard mid-flaps to detect fractured carriage spindles; measuring to ensure that any new or serviceable carriage spindle meets minimum allowable diameter measurements taken at three locations; repetitive inspections, measurements, and overhaul of the carriage spindles; replacement of any carriage spindle when it has reached its maximum life limit; and corrective actions if necessary. Since we issued that AD, we received a report of failure of both flap carriages. This proposed AD would require reducing the life limit of the carriages, reducing the repetitive interval for certain inspections and gap checks for certain carriages. This proposed AD would also add an option, for certain replacements, of doing an inspection, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct cracked, corroded, or fractured carriage spindles, which could lead to severe flap asymmetry, and could result in reduced control or loss of controllability of the airplane.
We must receive comments on this proposed AD by August 15, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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•
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For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: (425) 917-6440; fax: (425)917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On July 14, 2010, we issued AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), for all Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That AD requires repetitive inspections to find discrepancies (cracks, fractures, and corrosion) of each carriage spindle of the left and right outboard mid-flaps; repetitive gap checks of the inboard and outboard carriages of the outboard mid-flaps to detect fractured carriage spindles; measuring to ensure that any new or serviceable carriage spindle meets minimum allowable diameter measurements taken at three locations; repetitive inspections, measurements, and overhaul of the carriages; replacement of any carriage when it has reached its maximum life limit; and corrective actions if necessary. That AD resulted from reports of fractures that resulted from stress corrosion and pitting along the length of the carriage spindle and spindle diameter. We issued that AD to detect and correct cracked, corroded, or fractured carriage spindles, and to prevent severe flap asymmetry, which could result in reduced control or loss of controllability of the airplane.
Since we issued AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), we received a report of failure of both flap carriages on an outboard flap of a Model 737 airplane, which indicates that life limits and certain repetitive inspection intervals of the carriages mandated by existing AD 2010-15-08 should be reduced.
AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), referred to Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; and Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009; as the appropriate sources of service information for the required actions. Boeing has since revised these service bulletins.
We reviewed Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, which describes reduced repetitive intervals for the non-destructive test (NDT) ultrasonic inspection and general visual inspection of the carriage spindle, and gap check measurements of the inboard and outboard carriages.
The related investigative actions of Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, include removing the carriage from service and performing a detailed inspection for corrosion, cracking, or a severed spindle; determining if there is damage that would cause the midflap to move away from the carriage.
Corrective actions of Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, include installing a new or serviceable inboard or outboard carriage of the outboard mid-flaps.
We also reviewed Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011, which shortens the life limit and compliance time for the replacement of spindles from 48,000 total flight cycles to 40,000 total accumulated flight cycles.
The related investigative actions of Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011, include performing a detailed inspection for corrosion and pitting, performing a magnetic particle inspection for cracking, and measuring for minimum allowable spindle diameter. Corrective actions of Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011, include installing a new or serviceable inboard and outboard carriage of the outboard mid-flaps; overhauling carriages to remove corrosion or repair damage; and replacing any carriage that has cracking, or damage beyond the repair limits for minimum allowable spindle diameters, or reached its life limit.
Paragraphs (i) and (k) of existing AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), require installing a new or serviceable carriage spindle if certain conditions are found. In this proposed AD, when these certain conditions are found, rather than installing a new or serviceable carriage spindle, operators now have the option to first do a detailed inspection to determine if there is corrosion, cracking, or a severed spindle, and do related investigative and corrective actions if necessary. Therefore, we revised paragraphs (i) and (k) of this proposed AD, to include these optional actions. We have also added an exception to paragraph (i) of this proposed AD to specify that actions in that paragraph are not necessary for carriage spindles on which an ultrasonic inspection of the spindle has been done and the spindle has been confirmed not to be severed.
We have revised paragraph (m) of this AD to remove the reference to Chapter 20-42-09, Electrodeposited Nickel Plating, of the Boeing (737) Standard Overhaul Practices Manual, and we removed the reference that as of August 31, 2010, the effective date of AD 2010-15-08, Amendment 39, 16374 (75 FR 438003) to use only Boeing (737) Standard Overhaul Practices Manual, Revision 25, dated July 1, 2009.
Instead, application of nickel plating done in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA, is acceptable for compliance with the actions required by paragraph (m) of this AD. We added Note 1 to paragraph (m) of this AD to specify that guidance on the application of nickel plating can be found in Chapter 20-42-09, Electrodeposited Nickel Plating, of the Boeing (737) Standard Overhaul Practices Manual, Revision 25, dated July 1, 2009.
We have also added paragraph (m)(3) to prohibit the application of any plating to the carriage using any high velocity oxygen fuel (HVOF) thermal spray process.
We have also clarified the compliance time for the repetitive actions specified in paragraph (n) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010).
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would retain all requirements of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010). This proposed AD also would require accomplishing the actions specified in the service information described previously. This proposed AD would also shorten certain compliance times.
We estimate that this proposed AD affects 652 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
The new requirements of this proposed AD add no additional economic burden.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by August 15, 2013.
This AD supersedes AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010).
This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57: Wings.
This AD was prompted by reports of fractures that resulted from stress corrosion and pitting along the length of the spindle and spindle diameter, and a subsequent report of failure of both flap carriages. We are issuing this AD to detect and correct cracked, corroded, or fractured carriage spindles, which could lead to severe flap asymmetry, and could result in reduced control or loss of controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information that shortens the compliance times for certain inspections. The tables in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; and Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012; specify the compliance times for paragraphs (g) through (k) of this AD. For carriage spindles that have accumulated the number of flight cycles or years in service specified in the “Threshold” column of the tables in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, accomplish the gap check, nondestructive test (NDT) inspection, and general visual inspection specified in paragraphs (h) and (j) of this AD within the corresponding interval after December 4, 2003 (the effective date AD 2003-24-08, Amendment 39-16337 (68 FR 67027, December 1, 2003)), as specified in the “Interval” column of the tables in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, except as specified in paragraphs (g)(1) and (g)(2) of this AD. Repeat the gap check, NDT, and general visual inspections at the intervals specified in the “Interval” column of the tables in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, except as specified in paragraph (g)(1) and (g)(2) of this AD. As of the effective date of this AD, accomplish the gap check, NDT inspection, and general visual inspections specified in paragraphs (h) and (j) of this AD within the corresponding interval as specified in the “Interval” column of the tables in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, and thereafter at the intervals specified in Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, except as specified in paragraphs (g)(1) and (g)(2) of this AD. Repeat the gap check, NDT, and general visual inspections thereafter at the intervals specified in the “Interval” column of the tables in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, except as specified in paragraphs (g)(1) and (g)(2) of this AD.
(1) The gap check does not have to be done at the same time as an NDT inspection; after doing an NDT inspection, the interval for doing the next gap check may be measured from the NDT inspection.
(2) As carriage spindles gain flight cycles or years in service and move from one category in the “Threshold” column to another, they are subject to the repetitive inspection intervals corresponding to the new threshold category.
This paragraph restates the requirements of paragraph (h) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information. Perform a gap check of the inboard and outboard carriage of the left and right outboard mid-flaps to determine if there is a positive indication of a severed carriage spindle, in accordance with Work Package 2 of paragraph 3.B., “Work Instructions,” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; or Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, may be used to perform the actions specified in this paragraph.
This paragraph restates the requirements of paragraph (i) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information and new optional actions and exception. If there is a positive indication of a severed carriage spindle during the gap check required by paragraph (h) of this AD, before further flight, do the actions specified in paragraph (i)(1) or (i)(2) of this AD, except for carriage spindles on which an ultrasonic inspection has been done in accordance with the “Work Instructions” of Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012; and the spindle has been confirmed not to be severed, no further actions are required by this paragraph for that carriage spindle.
(1) Remove the carriage spindle and install a new or serviceable carriage spindle, in accordance with the “Work Instructions” of any service bulletin specified in paragraph (i)(1)(i), (i)(1)(ii), (i)(1)(iii), or (i)(1)(iv) of this AD. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, may be used to perform the actions specified in this paragraph.
(i) Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003.
(ii) Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012.
(iii) Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009.
(iv) Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011
(2) Do a detailed inspection of the spindle to determine if there is corrosion, cracking, or a severed spindle, and, before further flight, do all related investigative and corrective actions, in accordance with the “Work Instructions” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; or Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012. If, during the detailed inspection described in paragraph 4.b. of Work Package 2 of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, or Revision 3, dated May 16, 2012, a carriage spindle is found not to be severed, and no corrosion and no cracking is present, it can be reinstalled on the outboard mid-flap, in accordance with any service bulletin specified in paragraph (i)(2)(i), (i)(2)(ii), (i)(2)(iii), or (i)(2)(iv) of this AD. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, may be used to perform the actions specified in this paragraph.
(i) Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003.
(ii) Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012.
(iii) Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009.
(iv) Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011
This paragraph restates the requirements of paragraph (j) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information. Perform an NDT (ultrasonic) inspection and general visual inspection for each carriage spindle of the left and right outboard mid-flaps to detect cracks, corrosion, or severed carriage spindles, in accordance with “Work Package 1” of the “Work Instructions” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; or Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, may be used to perform the actions specified in this paragraph.
This paragraph restates the requirements of paragraph (k) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information and new optional action. If any corroded, cracked, or severed carriage spindle is found during any inspection required by paragraph (j) of this AD: Before further flight, do the actions specified in paragraph (k)(1) or (k)(2) of this AD.
(1) Remove the carriage spindle and install a new or serviceable carriage spindle, in accordance any service bulletin identified in paragraph (k)(1)(i), (k)(1)(ii), (k)(1)(iii), or (k)(1)(iv) of this AD. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, may be used to perform the actions specified in this paragraph.
(i) Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003.
(ii) Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012.
(iii) Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009.
(iv) Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011
(2) Do a detailed inspection of the spindle to determine if there is corrosion, cracking, or a severed spindle, in accordance with the “Work Instructions” of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; or Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012. If any corrosion, cracking, or a severed spindle is found, before further flight, install a new or serviceable carriage spindle, in accordance any service bulletin identified in paragraph (k)(1)(i), (k)(1)(ii), (k)(1)(iii), or (k)(1)(iv) of this AD. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, may be used to perform the actions specified in this paragraph.
This paragraph restates the requirements of paragraph (l) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010). Except as provided in paragraph (i) of this AD: As of December 4, 2003 (the effective date AD 2003-24-08, Amendment 39-16337 (68 FR 67027, December 1, 2003), no person may install on any airplane a carriage spindle that has been removed as required by paragraph (i) or (k) of this AD, unless it has been overhauled in accordance with the “Work Instructions” of the applicable service bulletin identified in paragraph (l)(1), (l)(2), (l)(3), or (l)(4) of this AD. As of the effective date of this AD, only Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012; or Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011; may be used to perform the actions specified in this paragraph. To be eligible for installation under this paragraph, the carriage spindle must have been overhauled in accordance with the requirements of paragraph (m) of this AD.
(1) Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003.
(2) Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012.
(3) Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009.
(4) Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011.
This paragraph restates the requirements of paragraph (m) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010) with revised plating application procedures. As of the effective date of this AD, during accomplishment of any overhaul specified in paragraph (l) or (o) of this AD, follow the requirements specified in paragraphs (m)(1), (m)(2), and (m)(3) of this AD during application of the plating to the carriage spindle, in accordance with a method approved by the Manager, Seattle, Aircraft Certification Office (ACO), FAA. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) The maximum deposition rate of the nickel plating in any one plating/baking cycle must not exceed 0.002-inch-per-hour.
(2) Begin the hydrogen embrittlement relief bake within 10 hours after application of the nickel plating, or less than 24 hours after the current was first applied to the part, whichever is first.
(3) The carriage must not be plated using any high velocity oxygen fuel (HVOF) thermal spray process.
Guidance on the application of nickel plating can be found in Chapter 20-42-09, Electrodeposited Nickel Plating, of the Boeing (737) Standard Overhaul Practices Manual, Revision 25, dated July 1, 2009.
This paragraph restates the provisions of paragraph (n) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information. Although Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003; and Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012; recommend that operators report inspection findings to the manufacturer, this AD does not require reporting.
This paragraph restates the requirements of paragraph (o) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010) with clarification of overhaul restrictions. At the applicable times specified in paragraphs (o)(1) and (o)(2) of this AD: Do the detailed inspection for corrosion, pitting, and cracking of the carriage spindle; magnetic particle inspection for cracking of the carriage spindle; measurements of the spindle to determine if it meets the allowable minimum diameter; overhauls of the carriage spindle; and applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009; or Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011. As of the effective date of this AD, only Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011, may be used to perform the actions specified in this paragraph. The applicable corrective actions must be done before further flight. Repeat these actions thereafter at intervals not to exceed every 12,000 flight cycles on the carriage spindle or every 8 years since first installation of the carriage spindle on the airplane, whichever comes first. As of the effective date of this AD: For any overhaul required by this paragraph, the carriage spindle must be overhauled in accordance with the requirements of paragraph (m) of this AD.
(1) For Model 737-100, -200, -200C series airplanes: At the later of the times specified in paragraphs (o)(1)(i) and (o)(1)(ii) of this AD.
(i) Before the accumulation of 12,000 total flight cycles on the carriage spindle since new or overhauled, or within 8 years after the installation of the new or overhauled part, whichever comes first.
(ii) Within 1 year after August 31, 2010 (the effective date of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010)).
(2) For Model -300, -400, and -500 series airplanes: At the later of the times specified in paragraphs (o)(2)(i) and (o)(2)(ii) of this AD.
(i) Before the accumulation of 12,000 total flight cycles on the carriage spindle since new or overhauled, or within 8 years after the installation of the new or overhauled part, whichever comes first.
(ii) Within 2 years after August 31, 2010 (the effective date of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010)).
This paragraph restates the requirements of paragraph (p) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information and a shortened compliance time. For Model 737-100, -200, -200C series airplanes: Replace the carriage spindle with a new or documented (for which the service life, in total flight cycles, is known) carriage spindle, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1218, Revision 5, dated February 9, 2009; or Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011; at the earlier of the times specified in paragraphs (p)(1) and (p)(2) of this AD, except as required by paragraph (r) of this AD. As of the effective date of this AD, only Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011, may be used to perform the replacement. Overhauling the carriage spindles does not zero-out the flight cycles. Total flight cycles accumulate since new.
(1) At the later of the times specified in paragraphs (p)(1)(i) and (p)(1)(ii) of this AD.
(i) Before the accumulation of 48,000 total flight cycles on the new or overhauled carriage.
(ii) Within 3 years or 7,500 flight cycles after August 31, 2010 (the effective date of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010)), whichever occurs first.
(2) Before the accumulation of 40,000 total flight cycles on the new or overhauled carriage or 6 months after the effective date of this AD, whichever occurs later.
This paragraph restates the requirements of paragraph (q) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised service information and a shortened compliance time. For Model 737-300, -400, and -500 series airplanes: Replace the carriage spindle with a new or documented (for which the service life, in flight cycles, is known) carriage spindle, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin
(1) Before the accumulation of 40,000 total flight cycles on the new or overhauled carriage.
(2) Within 6 years or 15,000 flight cycles after August 31, 2010 (the effective date of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010)), whichever occurs first.
This paragraph restates the requirements of paragraph (r) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010). For airplanes with an undocumented carriage: Do the applicable actions specified in paragraph (p) or (q) of this AD at the applicable time specified in paragraph (r)(1) or (r)(2) of this AD.
(1) For Model 737-100, -200, -200C series airplanes: Do the actions specified in paragraph (p) of this AD at the time specified in paragraph (p)(1)(ii) of this AD.
(2) For Model -300, -400, and -500 series airplanes: Do the actions specified in paragraph (q) of this AD at the time specified in paragraph (q)(2) of this AD.
This paragraph restates the requirements of paragraph (s) of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), with revised compliance times.
(1) For airplanes on which the actions required by paragraph (p) or (q) of this AD, as applicable, have been done as of the effective date of this AD: Repeat the replacement of the carriage spindle specified by paragraph (p) or (q) of this AD, as applicable, one time at the later of the times specified in paragraphs (s)(1)(i) and (s)(1)(ii) of this AD, and thereafter at intervals not to exceed 40,000 total flight cycles on the new or overhauled carriage spindle.
(i) Before the accumulation of 40,000 total flight cycles on the new or overhauled carriage.
(ii) Within 6 years or 15,000 flight cycles after August 31, 2010 (the effective date of AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010)), whichever occurs first.
(2) For airplanes on which the actions required by paragraph (p) or (q) of this AD, as applicable, have not been done as of the effective date of this AD: Repeat the replacement of the carriage spindle specified by paragraph (p) or (q) of this AD, as applicable, thereafter at intervals not to exceed 40,000 total flight cycles on the new or overhauled carriage spindle.
Where Boeing Service Bulletin 737-57A1277, Revision 3, dated May 16, 2012, and Boeing Alert Service Bulletin 737-57A1218, Revision 6, dated June 9, 2011, specify a compliance time after the dates of those service bulletins, this AD requires compliance within the specified compliance time after the effective date of this AD.
This paragraph provides credit for actions required by paragraphs (g) through (s) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 737-57A1277, Revision 2, dated June 9, 2011, which is not incorporated by reference in this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), 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 ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs previously approved in accordance with AD 2003-24-08, Amendment 39-13377 (68 FR 67027, December 1, 2003), or AD 2010-15-08, Amendment 39-16374 (75 FR 43803, July 27, 2010), are approved as AMOCs for individual repairs are acceptable for compliance with the corresponding provisions of this AD. All other existing AMOCs are not acceptable.
(1) For more information about this AD, contact Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: (425) 917-6440; fax: (425) 917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; email
U.S. Army Corps of Engineers, DoD.
Notice of proposed rulemaking and request for comments.
The Corps of Engineers is proposing to amend an existing danger zone in waters of the Pacific Ocean off the Pacific Missile Range Facility at Barking Sands, Island of Kauai, Hawaii. The U.S. Navy conducts missile defense activities, test missile launches, and training activities at the Pacific Missile Range Facility. The proposed amendment is necessary to protect the public from hazards associated with missile launch operations, training activities, and increased threat conditions. The proposed amendment would expand the existing danger zone and would prohibit any activity by the public within the danger zone without first obtaining permission from the Commanding Officer, Pacific Missile Range Facility, to ensure public safety and/or installation good order during range operations, weapon system testing, training activities, increases in force protection and other mission essential evolutions. The expanded danger zone would extend along approximately seven miles of shoreline adjacent to the Pacific Missile Range Facility, with its seaward extent ranging between 2.96 and 4.16 nautical miles offshore.
Written comments must be submitted on or before July 31, 2013.
You may submit comments, identified by docket number COE-2013-0007, by any of the following methods:
Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Mr. Farley Watanabe, Corps of Engineers, Honolulu District, Regulatory Branch, at 808-835-4305 or by email at
The purpose of this regulatory action is to amend the danger zone in waters of the Pacific Ocean off the Pacific Missile Range Facility at Barking Sands, Island of Kauai, Hawaii by increasing the water area historically noted on nautical charts as 334.1390.
The Corps authority to amend this danger zone is Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3).
Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing to amend the regulations at 33 CFR Part 334 by amending the existing permanent danger zone in the waters of the Pacific Ocean off the Pacific Missile Range Facility at Barking Sands, Island of Kauai, Hawaii.
The U.S. Navy conducts missile defense activities, test missile launches, and training activities at the Pacific Missile Range Facility. The proposed amendment is necessary to protect the public from hazards associated with missile launch operations, training activities, and increased threat conditions. The proposed amendment would expand the existing danger zone and would prohibit any activity by the public within the danger zone without first obtaining permission from the Commanding Officer, Pacific Missile Range Facility, to ensure public safety and/or installation good order during range operations, weapon system testing, training activities, increases in force protection and other mission essential evolutions. The expanded danger zone would extend along approximately seven miles of shoreline adjacent to the Pacific Missile Range Facility, with its seaward extent ranging between 2.96 and 4.16 nautical miles offshore.
This proposed rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.
This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities (i.e., small businesses and small governments). Unless information is obtained to the contrary during the public notice comment period, the Corps expects that the amendment of this danger zone would have practically no economic impact on the public, no anticipated navigational hazard, or interference with existing waterway traffic. This proposed rule, if adopted, will have no significant economic impact on small entities.
Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered. After it is prepared, it may be reviewed at the District office listed at the end of the
This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.
Danger zones, Marine safety, Navigation (water), Restricted areas, Waterways.
For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:
40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).
(a)
(b)
(2) All persons, boats, vessels, or other craft are prohibited from entering, transiting, or remaining within the danger zone during range operations, test and training activities, or increases in force protection that pose a hazard to the general public, as determined by the enforcing agency. The enforcing agency's determination of the necessity of closing the danger zone due to increases in force protection will be based on the Department of Defense Force Protection Condition (FPCON) System. From the lowest security level to the highest, FPCON levels are titled Normal, Alpha, Bravo, Charlie and Delta.
(3) Closure of the danger zone will be indicated by Notice to Mariners, the presence of Pacific Missile Range Facility range boats, beach markings including beach signs along the north and south beach borders alerting shoreline foot traffic, security patrols, and radio transmissions on common ocean frequencies to include Marine band channel 6 (156.300 MHz), Marine band channel 16 (156.800 MHz), and CB channel 22. The enforcing agency will post the danger zone closure schedule on its official Navy Web site,
(4) The enforcing agency will authorize the use of some, or all, of the danger zone for civilian waterborne activities when mission-essential evolutions such as range operations, test and training operations, or increases in force protections levels permit it. Such activities include fishing, sightseeing, shelling, surfing, and transit.
(c)
Approved:
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking; correction.
The U.S. Copyright Office published a notice of proposed rulemaking in the
Comments must be received in the Copyright Office no later than 5 p.m. Eastern Standard Time (EST) on July 26, 2013. Reply comments must be received in the Copyright Office no later than 5 p.m. Eastern Standard Time (e.s.t.) on August 26, 2013.
Andrea Zizzi, Office of the General Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366.
In the
Federal Communications Commission.
Proposed rule.
This document proposes to make spectrum allocation proposals for three different space related purposes. The Commission makes two alternative proposals to modify the Allocation Table to provide interference protection for Fixed-Satellite Service (FSS) and Mobile-Satellite Service (MSS) earth stations operated by Federal agencies under authorizations granted by the National Telecommunications and Information Administration (NTIA) in certain frequency bands. The Commission also proposes to amend a footnote to the Allocation Table to permit a Federal MSS system to operate in the 399.9-400.05 MHz band; also makes alternative proposals to modify the Allocation Table to provide access to spectrum on an interference protected basis to Commission licensees for use during the launch of launch vehicles (i.e. rockets). The Commission also seeks comment broadly on the future spectrum needs of the commercial space sector. The Commission expects that, if adopted, these proposals would advance the commercial space industry and the important role it will play in our nation's economy and technological innovation now and in the future.
Comments must be filed on or before August 30, 2013, and reply comments must be filed on or before September 30, 2013.
Nicholas Oros, Office of Engineering and Technology, 202-418-0636,
You may submit comments, identified by ET Docket No. 13-115, RM-11341, by any of the following methods:
This is a summary of the Commission's
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
1. The National Space Policy recognizes that “[a] robust and competitive commercial space sector is vital to continued progress in space.” In the Notice of Proposed Rulemaking (NPRM) the Commission addresses the spectrum needs of two separate, but closely related portions of the commercial space sector: the commercial communications satellite industry and the commercial space launch industry. It is our expectation that, if adopted, these proposals would advance the commercial space industry and the important role it will play in our nation's economy and technological innovation now and in the future.
2. To advance the goals of the National Space Policy, the Commission presents two alternative proposals in the NPRM to provide Federal earth stations that communicate with non-Federal Fixed-Satellite Service (FSS) and Mobile-Satellite Service (MSS) space stations interference protection identical to that afforded to non-Federal earth stations communicating with the same FSS and MSS space stations. Under the first proposal the Commission proposes to modify the Allocation Table in Section 2.106 of the rules to add a Federal allocation for the FSS bands, along with a footnote restricting Federal use to earth stations communicating with non-Federal space stations. In the second proposal it proposes to place a footnote in the Allocation Table in the FSS bands that provides that Federal earth stations that communicate with non-Federal FSS and MSS space stations would receive interference protection identical to that afforded to non-Federal earth stations communicating with the same FSS and MSS space stations.
3. The Commission also proposes in the NPRM to amend a footnote to the Allocation Table to permit a Federal MSS system to operate in the 399.9-400.05 MHz MSS band. This action would allow traffic to be migrated from Argos, the existing Federal MSS system, to a new Federal satellite system, thereby resulting in less interference and improved service and reliability for users of both the existing and new Federal MSS systems. No Federal or non-Federal MSS systems have been deployed in this band since it was allocated for MSS in 1993, and this proposed Federal allocation will permit long-vacant spectrum to be put to an important use.
4. Finally, in the NPRM the Commission proposes several alternatives for providing spectrum for use during commercial space launches, thereby providing launch vehicles with interference protection. During launches, spectrum in the 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz bands is typically used to send a self-destruct signal to the launch vehicle (if needed) and information from the launch vehicle to controllers on ground, as well as to track the launch vehicle by radar. Because these frequency bands are allocated only to Federal use for these purposes, the Commission may not issue licenses for these bands that provide interference protection to commercial space launch operators. The Commission seeks comment on two possible options to support commercial space launches by either adding a co-primary non-Federal allocation to these bands or by providing an Allocation Table footnote to allow non-Federal use of these bands to provide commercial entities access to these important spectrum resources. The Commission also seeks comment on ways to ensure the long term sustainability of the commercial launch industry by exploring other alternatives to use of these bands as more commercial
5. In August 2006, the National Telecommunications and Information Administration (NTIA) filed a petition requesting that the Commission initiate a rulemaking to permit Federal earth stations that are authorized by NTIA and that operate with non-Federal satellites to have primary status in a number of frequency bands currently allocated for non-Federal FSS and non-Federal MSS on a primary basis. Earth stations authorized by NTIA must now operate on a non-interference basis. Alternatively, Federal agencies may lease services from a licensee of an FCC-authorized earth station to operate with interference protection. NTIA requests that the Federal Table be modified to add a primary FSS allocation along with a footnote that would restrict primary Federal use of these bands to Federal earth stations accessing non-Federal satellites. The NTIA petition outlines a means for Federal agencies to deploy their own earth stations to overcome the uncertainties associated with operating on a non-interference basis and the limitations of leasing services through a third party operator. Such a modification would turn certain exclusive non-Federal use frequency bands into shared Federal/non-Federal spectrum, although use of these bands by Federal agencies would be limited by the terms of the footnote. The allocation and footnote that NTIA requests would mirror an existing Federal allocation for a number of MSS bands. These MSS bands have co-primary Federal and non-Federal allocations along with footnote US319, which restricts Federal MSS earth stations in the bands to operating with non-Federal space stations.
6. NTIA's petition identifies 13.275 gigahertz of spectrum in ten frequency bands for which it seeks primary status. As background, spectrum used for satellite communications is divided into different frequency bands which are referred to with letter designations, such as the C-band, Ku-band, or Ka-band. The spectrum which the NTIA petition identifies falls into parts of four of these lettered satellite bands: 3.6-4.2 GHz and 5.85-6.725 GHz (in the C-band); 10.7-12.2 GHz, 12.7-13.25 GHz, and 13.75-14.5 GHz (in the Ku-band); 18.3-19.3 GHz, 19.7-20.2 GHz, and 27.5-30 GHz (in the Ka-band); and 37.5-39.5 GHz and 47.2-50.2 GHz (in the V-band). The Commission notes that all of the bands addressed in the NTIA petition are allocated for the FSS. In the FSS, earth stations in stationary locations communicate with space stations (
7. Comments received in response to NTIA's petition were generally supportive but did express a number of specific reservations. For example, the Satellite Industry Association (SIA) stated that non-Federal commercial and experimental license applicants should not face delays because of the need for the Commission to coordinate applications with NTIA. The Fixed Wireless Communications Coalition commented that Federal earth stations should be required to conduct coordination with terrestrial stations sharing the same band prior to applying for a license as is required for non-Federal earth station applicants. SIA, Hispasat, and Lockheed Martin believe that Federal earth stations should be subject to the Commission's technical and enforcement rules, which is not normally the case for Federal agencies.
8. The Commission seeks comments generally on the benefits of greater Federal use of commercial satellite networks. For example, would Federal agencies increase their use of commercial satellite networks to accomplish their missions with greater efficiency and reduced costs while meeting the national policy objective requiring the use of commercial satellite systems? Would increased Federal use of commercial satellites serve to strengthen the commercial satellite industry—a vital component of the economy and an important driver of United States productivity?
9. The FSS has operated under a regulatory framework in which the Commission establishes the technical and licensing rules for space stations and earth stations operating as integrated systems, thereby enabling many earth stations to be authorized and operate independently of each other with little risk of interference even if they communicate with the same space station. NTIA requests that Federal earth stations it authorizes be allowed to operate with the same regulatory status as non-Federal earth stations in the same frequency band. In order to accomplish this objective, it requests a modification of the Federal Table to include a co-primary FSS allocation in certain frequency bands for Federal earth stations communicating with commercial satellites. This allocation approach would increase uncertainty over who is the regulator of the satellite systems that operate in these bands. NTIA states that the Commission would not be required to consult with NTIA or other Federal agencies regarding these bands any more than they currently coordinate, NTIA would utilize the current FCC processes as much as possible, and the current FCC process would remain as it is today for non-Federal earth station applications.
10. Based on the Commission's experience in spectrum management in conjunction with NTIA, and in consideration of the goals of the National Space Policy as well as the comments it received in response to the Public Notice that the Commission issued subsequent to receiving NTIA's petition, the Commission recognizes that a policy guiding Federal use of commercial satellite networks can be successful only if it provides a clear method for establishing and enforcing operational rights and responsibilities that can be applied consistently regardless of whether the user is licensed by the Commission or authorized by NTIA. The Commission has identified and seeks comment on the following four key objectives, which it believe best express this intent:
• To ensure parity between Federal and non-Federal earth stations;
• To provide certainty that the Commission retains regulatory oversight of the satellite network and the FSS even though the Commission would license non-Federal earth stations, and NTIA would authorize Federal earth stations;
• To ensure that the rules and procedures do not hinder the Commission's rulemaking processes or delay the issuance of Commission licenses and coordination in the affected bands; and
• To establish procedures to ensure that both Federal and non-Federal earth stations comply with the Commission's rules for operating in the frequency bands.
11. The Commission seeks comment on the means by which it can provide interference protection to Federal earth stations used to access commercial satellite networks. First, the Commission addressed the commercial satellite frequency bands where NTIA has requested that it should place Federal earth stations on an equal footing with non-Federal earth stations. The Commission then outlined two proposals for providing Federal agencies with interference-protected access to these frequency bands. The first proposal follows NTIA's suggested approach by adding a co-primary Federal FSS and MSS allocation to the
12. The Commission proposes to modify the U.S. Table using one of the approaches discussed to provide Federal earth stations interference protection in the frequency bands proposed by NTIA, with the exception of 3600-3700 MHz Band for which it tentatively concluded not to change the Allocation Table because the Commission has recently initiated a proceeding to make the band available for wireless broadband. The Commission seeks comment generally on this proposal. It recognizes that use of some of these bands for commercial satellite services has evolved since the NTIA petition was filed, that Federal agency use of the commercial satellite services may vary among the different frequency bands, and that in some bands Federal access may not be needed at all. The Commission thus seeks comment on whether Federal access should be added for those frequency bands discussed that are most likely to meet the needs of Federal earth station users.
13. In a number of the NTIA requested bands, the FSS shares spectrum with terrestrial services. These include the C-band and the extended Ku-band. In bands shared between terrestrial and satellite users, coordination between terrestrial licensees and earth stations is required to prevent interference. Should the complexity that this coordination adds to licensing of earth stations in these bands affect our decision to add a co-primary Federal allocation to these bands? In addition, portions of the Ka-band and V-band have been designated for terrestrial use. Should the Commission consider modifying the Allocation Table to provide protection to Federal earth stations in the portions of these bands designated for terrestrial services?
14.
15. Successful implementation of the allocation approach will require agreement by NTIA and the Commission on coordination procedures that Federal agencies would follow for authorizing Federal earth stations. The Commission proposes that Federal users would follow a process similar to that used by Commission applicants to obtain approval to use earth stations in the FSS bands. This process is especially important for preventing interference where the FSS shares the band with terrestrial services, such as the C-band and extended Ku-band. Interference between earth stations communicating with different space stations is largely avoided because the Commission's rules require that earth stations use directional antennas and that space stations are separated by 2 degrees in the orbital arc. To avoid interference between terrestrial stations and earth stations sharing the same band, the Commission's rules rely on coordination between operators of these stations prior to issuance of a license. The Commission's rules require an applicant for an FSS earth station license in bands shared with terrestrial services to conduct a frequency coordination analysis prior to filing an application. This frequency coordination analysis requires the applicant to perform an interference analysis for each “close by” terrestrial station for which a license or construction permit has been granted or an application has been filed. The applicant must provide the interference analysis and technical information about the earth station to each of these terrestrial station licensees, permittees, or applicants. The terrestrial station licensee, permittee, or applicant then responds to the earth station applicant if it has an interference concern. The parties may resolve potential interference by an agreement that is filed with the application. Applicants for fixed point-to-point microwave licenses in bands shared with the FSS must coordinate their proposed links with nearby earth stations prior to filing their applications using a similar process. In addition to the coordination requirements for terrestrial stations, the Commission's rules also impose coordination requirements on earth stations with antennas that do not meet specified off-axis EIRP envelopes. These earth stations, called non-conforming earth stations, must be coordinated with satellites within a 6 degree orbital separation of the satellite the earth station will be communicating with. A statement that this coordination has been conducted must be included in the application for the earth station.
16. The Commission proposes the following procedures to be agreed iupon and followed by the Commission and NTIA to ensure parity between Federal and non-Federal earth stations. The Federal agency would request approval from NTIA to deploy and operate an earth station. In bands shared with terrestrial users such as the C-band and extended Ku-band, either NTIA or the Federal agency would coordinate with terrestrial stations as required by the Commission's rules. For non-conforming earth stations in any satellite band, either NTIA or the Federal agency would coordinate the proposed earth stations with other satellites as required by the Commission's rules. After such coordination, NTIA would send the request to the Commission, providing all technical information that would be provided by a non-Federal applicant, such as station location and basic technical characteristics. The Commission would process the request in the same way as it would process applications for Commission licenses. The Commission would place the request on public notice. Following the public notice period, if the Commission determines that the request meets all technical criteria for licensing (
17. Under the proposed allocation approach, these FSS bands would be shared Federal/non-Federal FSS bands. Under existing coordination procedures the Commission routinely coordinates license applications for bands shared with Federal stations with NTIA. The Commission believes that the addition of the Federal earth stations should not require any additional coordination procedures for non-Federal applicants. Accordingly, the Commission proposes that applications for Commission licenses using frequencies currently allocated for exclusive non-Federal use not be coordinated with NTIA. To enable protection of government FSS earth station operations in these new bands, the Commission proposes that the Federal agencies or NTIA monitor Commission public notices regarding filed earth station applications to determine whether proposed non-Federal terrestrial stations raise any interference concerns to existing Federal earth stations. If a proposed non-Federal station will cause interference to an existing Federal earth station, NTIA could file an opposition to the earth station application in accordance with established Commission procedure. The Commission will consider any such opposition in the same manner as oppositions filed by other parties. The Commission seeks comment on these proposals, as well as any other considerations that may impact the process currently used by FCC and NTIA for frequency coordination. For parties proposing additional coordination approaches, the Commission ask that they also include an analysis on timing and cost of such an approach.
18. Under our existing procedures under the MOU, the Commission and NTIA coordinate proposed actions that could potentially cause interference to Federal operations, including changes to our technical or service rules in shared Federal/non-Federal bands. The Commission's
19. The Commission believes that under an allocation approach, it would need to include in the footnote that we propose to add to the Federal Table a requirement that Federal earth stations in these bands comply with part 25 of the Commission's rules. Are there other ways that the Commission could ensure that Federal agencies exercise only the same rights and obligations that are afforded similarly situated non-Federal entities? For example, if Federal agencies are not required to follow the Commission's technical rules, including coordination procedures, what rules should they follow? The Commission also seeks comment on how to treat Federal agencies operating under a direct allocation but that are not in compliance with the footnote. If interference occurs between Federal earth stations and non-Federal stations, how should it be resolved?
20. The Commission's part 25 rules permit operation of Vehicle Mounted Earth Stations (VMES), Earth Stations on Vessels (ESV), and Earth Stations Aboard Aircraft (ESAA) in a number of FSS bands. VMES, ESV, and ESAA may have either primary or secondary status depending on the particular FSS band or on whether the ESV or VMES is in motion. The Commission notes that under the allocation approach NTIA would be able to authorize Federal agencies to operate VMES, ESV, and ESAA in the bands to which we are adding a Federal FSS allocation to the same extent and with the same restrictions as Commission licensees. Federal agencies would be expected to comply with all of the part 25 rules pertaining to VMES, ESV, and ESAA and with the footnotes to the Allocation Table regarding VMES, ESV, and ESAA. The Commission seeks comment on this proposal.
21. Under the allocation approach, the Commission proposes to amend the Federal Table by adding the following primary allocations: (1) “FIXED-SATELLITE (space-to-Earth)” to the 3700-4200 MHz, 10.7-12.2 GHz, and 37.5-39.5 GHz bands; (2) “FIXED-SATELLITE (Earth-to-space)” to the 5850-6725 MHz, 12.7-13.25 GHz, 13.75-14.5 GHz, 27.5-30 GHz, and 47.2-48.2 GHz bands; (3) “MOBILE-SATELLITE (space-to-Earth)” to the 19.7-20.2 GHz band; and (4) “MOBILE-SATELLITE (Earth-to-space)” to the 29.5-30 GHz band. It also proposes to add new footnote US107 to the Allocation Table that would restrict Federal stations in the FSS to earth stations operating with non-Federal space stations in these ten frequency bands, with the exception of Federal earth stations in three locations that operate in the 18.3-19.3 GHz and 19.7-20.2 GHz bands. In addition, the Commission proposes to amend US319 by adding the 19.7-20.2 GHz (space-to-Earth) and 29.5-30 GHz (Earth-to-space) bands, thereby restricting Federal MSS stations in those bands to earth stations operating with non-Federal space stations. It also takes this opportunity to propose to revise the text of US319 so that it parallels the text of proposed footnote US107 and to renumber footnote US319 in frequency order as footnote US46. The Commission seeks comment on these proposals.
22. Further, if the Commission adopts the allocation approach, it proposes to reclassify all non-Federal footnotes that apply to the non-Federal FSS allocations in the proposed frequency bands (NG52, NG53, NG54, NG55, NG143, NG164, NG165, NG166, NG180, NG181, NG183, NG185, NG187) as U.S. footnotes. In particular, the Commission notes that seven of these non-Federal footnotes (NG52, NG54, NG55, NG180, NG181, NG183, NG187) authorize mobile applications (
23. Finally, the Commission proposes to add all international and U.S. footnotes that apply to the non-Federal FSS and MSS allocations in the requested bands to the Federal Table. It request comment on this proposal.
24. In seeking comment on our proposal to add a primary Federal allocation to the Allocation Table for these satellite bands, the Commission urges commenters to discuss how implementation of the allocation approach can satisfy the four key objectives that it has defined. The Commission likewise seeks comment on the process it proposes for Federal users to obtain approval to operate earth stations in these satellite bands. Can the allocation approach sufficiently protect the interests of non-Federal licensees in both the FSS and other services operating in these bands? Would the approach provide the flexibility needed for Federal users to effectively make use of the commercial satellite services? Are there additional steps we should take to
25.
USxxx The following provisions shall apply to Federal earth stations that operate with non-Federal space stations in the fixed-satellite service (FSS), and in the bands 19.7-20.2 GHz and 29.5-30 GHz, the mobile-satellite service (MSS), in accordance with the Commission's rules and regulations (see in particular the technical requirements of 47 CFR part 25) and that are authorized by NTIA:
(a) Federal earth stations that receive signals in the bands 3700-4200 MHz, 10.7-12.2 GHz, and 37.5-39.5 GHz can claim protection from harmful interference from non-Federal stations to which these frequencies are assigned at a later date even though there are no Federal FSS or MSS allocations in these bands.
(b) Federal earth stations that receive signals in the bands 18.3-19.3 GHz and 19.7-20.2 GHz from non-Federal space stations in the FSS can claim protection from harmful interference from non-Federal stations to which these frequencies are assigned at a later date.
(c) Non-Federal stations cannot claim protection from harmful interference from Federal earth stations to which frequencies in the bands 5850-6725 MHz, 12.7-13.25 GHz, 13.75-14.5 GHz, 27.5-30 GHz, and 47.2-48.2 GHz have previously been assigned even though there are no Federal FSS or MSS allocations in these bands.
(d)
26. Under this proposal the Commission would not place Federal FSS and MSS allocations in the Federal Table as shown in Appendix A of the NPRM. The footnote it proposes to add to the Table of Allocations under this approach (the “interference protection approach”) would permit Federal earth stations in communication with non-Federal space stations to receive interference protection equivalent to that afforded non-Federal earth stations in the commercial satellite bands requested by NTIA. In addition to restricting Federal earth stations to operating with non-Federal satellites as the allocation approach does, this footnote would provide interference protection to the Federal earth stations under the condition that they comply with the Commission's technical rules. Under the interference protection approach the bands will not contain a Federal FSS or MSS allocation in the Federal Table and would not be considered shared Federal/non-Federal bands. Federal agencies authorized by NTIA to operate earth stations in these bands would operate on the same basis as Commission-licensed non-Federal earth stations, so long as the Federal agency's operations are consistent with part 25 of the Commission's rules. Federal agencies would, for example, have interference protection against later-entering FCC licensees that they do not currently enjoy. The interference protection approach would entail coordination procedures similar to those proposed under the allocation approach but, under either approach, the Commission seeks to ensure parity in the context of future rulemaking proceedings affecting these bands. It seeks comment on those aspects of the proposed approaches.
27. As with the allocation approach described, successful implementation of the interference protection approach will require agreement by NTIA and the Commission on coordination procedures that Federal agencies would follow for authorizing Federal earth stations. The Commission seeks comment on whether the process described with regard to the allocation approach should be followed for Federal agencies to obtain approval to use an earth station in these bands. This process would require Federal agencies to request approval from NTIA to set up an earth station, NTIA or the Federal agency to coordinate the earth station in bands shared with terrestrial users and for non-conforming earth stations, NTIA to send the request to the Commission, and the Commission to place the request on public notice. The Commission seeks comment on the use of these procedures in association with the interference protection approach.
28. While the Commission recognizes that the interference protection approach differs from the plan suggested in the NTIA petition, it also believes that it will meet the objective of the NTIA petition—to provide interference protection to Federal earth stations and to place Federal earth stations on an equal footing with earth stations licensed by the Commission. Moreover, the Commission believes that the interference protection approach is well suited to meeting the four objectives it believes are necessary for the success of any policy guiding Federal use of commercial satellite networks and we seek comment on this tentative conclusion.
29. Because Federal and non-Federal earth station operators will be communicating with the same Commission-approved space stations, the Commission seeks to ensure parity between Federal and non-Federal earth stations. The technical and coordination requirements contained in part 25 of the Commission's rules are designed to prevent interference between users of the satellite bands and should apply to all earth station users, both Federal and non-Federal. To facilitate the harmonious sharing of the bands among all users, the proposed footnote explicitly conditions protected operation of Federal earth stations in these bands on the earth stations complying with part 25 of the Commission's rules. The Commission seeks comment on this approach.
30. Under the interference protection approach, no Federal allocation would be added to the satellite bands, and thus those satellite frequency bands that are currently exclusively non-Federal would not become shared Federal/non-Federal spectrum. Because the Federal and non-Federal earth stations both communicate with the same commercial satellites, it is important that the satellite network as a whole remain under the Commission's oversight, even when the authority to operate the Federal and non-Federal earth stations is granted by different entities. This approach would continue to ensure the effective regulation by the Commission of the space and earth segments provided by commercial space stations. The Commission seeks comment on this view.
31. As discussed, under our
32. The interference protection approach would avoid subjecting non-Federal earth station applicants to new licensing procedures, such as additional approval and coordination requirements. As discussed, license applications in bands shared with Federal users are, in general, coordinated with NTIA. Under the interference protection approach, the satellite bands that are exclusively non-Federal would not acquire a Federal allocation and therefore will not become shared Federal/non-Federal bands. As a result, the Commission proposes not to coordinate license applications with NTIA in these bands. Rather, it proposes that Federal earth stations listed in the Commission's publicly-available database will be protected from interference in the same manner as non-Federal stations. The Commission seeks comment on this approach.
33. There are a number of bands allocated for the FSS included in the NTIA petition that have Federal allocations. For example, the 13.75-14 GHz portion of the extended Ku-band is shared with Federal radars and NASA's Tracking and Data Relay Satellite System. The Ka-band downlink has a Federal co-primary FSS allocation that is restricted to use at three earth station locations. The 48.2-50.2 GHz portion of the V-band has a primary Federal FSS allocation. The Commission is not proposing under the interference protection approach to change the application of the coordination process with NTIA with regard to these and other shared bands with Federal and non-Federal allocations.
34. The Commission believes that the interference protection approach can provide assurance that the Commission's rules and practices will be applied in a consistent manner regardless of whether the applicant is a Federal agency or a non-Federal entity that owns and operates the earth station communicating with a non-Federal space station. Our proposed footnote would condition protected operation of Federal earth stations in these bands on conformance with part 25 of the Commission's rules. If a Federal agency obtains approval from NTIA to operate an earth station in these bands and the earth station does not operate in conformance with our rules, the Commission would remove it from our database. These non-compliant stations would operate on a non-interference basis and would have to accept any interference from non-Federal stations—just as is the case today. This will provide an incentive for Federal earth stations to comply with the Commission's rules to mitigate the interference potential to both Federal and non-Federal stations. The Commission seeks comment on additional actions the Commission can take to provide assurance that Federal agencies will comply with the Commission's rules when using earth stations in these bands.
35. As mentioned, the Commission's part 25 rules permit operation of VMES, ESV, and ESAA in a number of FSS bands. The footnote it proposes under the interference protection approach would allow Federal agencies to operate VMES, ESV, and ESAA on an interference protected basis to the same extent as non-Federal licensees. Federal agencies would be expected to comply with all of the part 25 rules pertaining to VMES, ESV and ESAA and with the footnotes to the Allocation Table regarding VMES, ESV, and ESAA. The Commission seeks comment on this proposal.
36. The Commission seeks comment on the costs and benefits of the interference protection approach. Do commenters agree with our observation that this interference protection approach would satisfy the four key objectives we believe are necessary to the establishment of a successful policy guiding Federal use of commercial satellite networks? Would this approach meet the needs of Federal users for protected access to the commercial satellite bands? The Commission likewise seeks comment on the process it proposes for Federal users to obtain approval to operate earth stations in these satellite bands. Would the process sufficiently protect the interest of non-Federal licensees in both the FSS and other services operating in these bands? Would the process provide the flexibility needed for Federal users to effectively make use of the commercial satellite services? Should the Commission take additional steps to ensure that non-Federal users are protected from harmful interference from Federal earth stations? Are there economic costs associated with the interference protection approach which should be considered?
37. NTIA has requested that the Commission modify footnote US319 of the Allocation Table to allow Federal space stations (
38. The Commission proposes to modify US319 and to renumber this footnote in frequency order as US46. No MSS systems have been deployed or authorized in the 399.9-400.05 MHz band since the allocation was made almost twenty years ago and there are no pending applications or other proposed uses for this band. Given that the band has only a 150 kilohertz bandwidth, the band is not suitable for mobile broadband or most other applications. Rather than have the band lie fallow, the Commission tentatively concludes that the public interest is best served by allowing a Federal satellite system to be operated in this band so that the spectrum does not lay fallow. The Commission seeks comment on this proposal.
39. The Commission seeks comment on the cost and benefits of making this amendment to US319. While no MSS systems currently operate in the 399.9-400.05 MHz band, other parties may have interest in operating satellite systems in this band in the future. Given this possibility, the Commission seeks comment on whether operation of a Federal MSS system in this band would preclude operation of non-Federal MSS systems in the band in the future. It also recognizes that interference may occur from a Federal MSS system operating in 399.9-400.05 MHz to other nearby frequency bands. The 400.15-401 MHz band is also allocated for MSS while the 335.4-399.9 MHz band has a Federal fixed and mobile allocation. NTIA would be responsible for ensuring that any new Federal space stations
40. Three frequency bands are commonly used by Federal agencies for communications with and tracking of space launch vehicles: 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz. These bands currently have Federal, but no non-Federal, allocations supporting launches. Non-Federal use of these bands has been possible by granting Special Temporary Authorizations (STAs) for use of these bands when launches occur at Federal facilities. In this NPRM the Commission broadly seeks comment on the spectrum requirements to support development of the commercial launch sector. It is noted that the Commission has long regulated communication involving satellites. For purposes of this portion of the NPRM, however, our scope is limited to spectrum used during launches.
41. The Commission could take a number of different regulatory approaches to address the spectrum requirements of the commercial space sector. For example, it could modify the Allocation Table to include a non-Federal co-primary allocation for the 2200-2290 MHz and 5650-5925 MHz bands with a footnote providing for coordination with Federal operations in these bands for communications and tracking during launches. Alternatively, it could add a footnote to the Allocation Table to allow non-Federal use of certain Federal bands when supporting Federal launch missions or when conducting launches from Federal facilities. The Commission could also look to the 2360-2395 MHz band to satisfy the commercial launch sector spectrum requirements as this spectrum is currently shared on a co-equal basis for Federal and non-Federal aeronautical mobile telemetry uses. It seeks comment on the relative merits of each of these approaches. It also seeks comment on whether a non-Federal allocation in the 420-430 MHz band is necessary to support commercial launches. The Commission believes this action is necessary to support the forecasted increase in the number of commercial launches in the future. It seeks comment on these views.
42. Anticipating the need for non-Federal spectrum for communications for commercial launches, the Commission in 1990 set aside spectrum in the 2310-2390 MHz band for telemetry and telecommand use during commercial launches. In the intervening years the Commission has not authorized use of this spectrum for launches. Instead, commercial launches in the United States have continued to rely on Federal spectrum authorized by NTIA.
43. Recently, two launch vehicle manufacturers have applied to the Commission for access to Federal spectrum during commercial launches. The Commission is able to grant special temporary authority (STA) under the part 5 experimental licensing rules to commercial entities to operate in these Federal bands on a non-interference basis for a maximum of six months. This means that the experimental STA grantees are not allowed to cause interference to and must accept interference from Federal users of the band that are operating with authorizations. Because these bands have a Federal allocation, the Commission coordinates these experimental STAs with NTIA. Once these STAs have been coordinated with NTIA, the potential for interference to or from Federal systems to commercial launch operations is minimized.
44. Given the expected increase in commercial space flights, the continued use of experimental STAs for the radio spectrum needed for launches may create uncertainty. Because there is no non-Federal allocation allowing the use of these frequencies, each request to operate on these frequencies must be evaluated on a case-by-case basis, with no guarantee that one can be granted for any given launch. Given that a single launch can cost millions of dollars, commercial launch providers should not have to assume the risk that launches may have to be postponed or cancelled if an experimental STA is not timely granted. Even if an experimental STA is granted, the grantee must contend with the uncertainty of non-interference status. Communications links that operate on a non-interference basis are not likely to be acceptable from a safety standpoint for future manned spaceflights. The experimental STA process also increases the burden on commercial launch providers' time and expense, since each is evaluated on a case by case basis. Allocation status for commercial launch providers would enable the Commission to develop service rules for issuing authorizations using well-defined application and coordination processes. The Commission seeks comment on these tentative conclusions as well as the cost to the space launch industry of not having a non-Federal allocation in these bands. Consequently, it is proposing, and seeking comment, on adding non-Federal allocations to these three bands to allow Commission licensees to operate in these bands on an interference protected basis. The Commission seeks comment on possible approaches it could take to provide non-Federal entities with interference protection in these bands, such as adding a non-Federal allocation to the bands or the addition of a footnote to the Allocation Table that provides non-Federal entities with interference protection. The Commission notes that even these approaches require coordination with the Federal incumbents in the band.
45. The Commission recognizes that identifying the non-Federal spectrum needs associated with launch of a launch vehicle necessarily raises larger questions about the respective roles of the FCC and NTIA in future launch scenarios. At the most basic level, whether access to spectrum for use during a launch requires authorization from NTIA or a license from the Commission will depend on whether the radio transmitters belong to and are operated by the U.S. government. Making this determination is not always straightforward. As a practical matter, all launch vehicles launched in the past several decades have been built with substantial private company involvement. All regular commercial launches within the United States have been conducted from launch facilities owned by the Federal Government. Payloads launched from Federal launch facilities have included commercial communications satellites and satellites owned and operated by Federal agencies such as the Department of Defense and NOAA. Because multiple satellites can be launched into space on a single launch vehicle, both government and non-government payloads have been included on the same launch. There have also been several instances of Federal Government-owned equipment or sensors on commercial communications satellites. Given that Federal agencies are required to use commercial space services where possible, the Commission believes that there will be increasing Federal reliance on non-Federal operations.
46. The Commission seeks comment on how to determine whether a given launch is non-Federal or Federal for purposes of licensing spectrum for use
47. Making non-governmental allocations within the 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz bands would be a first step to issuing licenses to commercial operators for use during launches. After the allocations are adopted, the Commission would have to open a proceeding to create service rules for non-Federal launches. It recognizes the critical nature of some of the Federal operations performed using these frequency bands, and realized that service rules would have to be carefully crafted to ensure that the commercial space launch operations do not interfere with the important Federal operations in these bands, particularly as the commercial launch sector expands. Accordingly, any service rules would be developed in close coordination with NTIA and the Department of Defense to assure the continued certainty that this spectrum remains available for priority use by critical systems. The FCC is committed to ensuring that our rules would require technical specifications, eligibility requirements, and coordination procedures necessary to preserve the nation's defense capabilities. Adoption of these service rules will allow the Commission to issue licenses to commercial launch operators for spectrum for use during launches without the uncertainty of operating on a non-interference basis. Because the bands would be shared Federal/non-Federal bands, use of spectrum for commercial space launches would be coordinated with the NTIA. In the short term, because the commercial launches will occur at relatively few locations and will not be an everyday occurrence, we believe that service rules and coordination procedures can be adopted that will prevent harmful interference from occurring to the Federal services in these bands or the commercial launch operators. In adopting service and licensing rules for these bands we must make sure that Federal operations are protected. The Commission seeks comment on these assumptions. Furthermore, it seeks comment on whether the existing Federal bands are able to sustain the anticipated growth of the commercial launch sector. Are there alternatives to use of these bands that may satisfy the commercial launch requirements?
48. What would be the costs and benefits of providing non-governmental access within the 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz bands? Would having access to portions of these bands meet the needs of commercial launch operators? What costs would be imposed on Federal agencies to coordinate use of the spectrum with commercial launch operators? Would having access to portions of these bands allow commercial launch operators to incur lower development costs because they will be able to use the same communications systems for both Federal and non-Federal launches? How would the costs and benefits of having access to portions of these bands compare with other spectrum bands that could be used instead of these bands? How can we best ensure that the anticipated growth of the commercial launch industry is sustained in the longer term?
49. The 420-430 MHz band is used to transmit a self-destruct signal from ground controllers to a launch vehicle during launch. This signal causes the launch vehicle to self-destruct if it goes off course and would pose a danger to a populated area. For safety reasons this communications link must be extremely reliable. NTIA has authorized a number of frequencies throughout the 420-430 MHz band for self-destruct signals at different Federal launch facilities.
50. Because the only non-Federal allocation for the 420-430 MHz band is for secondary amateur operations, the Commission cannot issue licenses that provide interference protection to commercial entities to use this band for self-destruct signals during launches. Commercial entities have not requested experimental STAs or licenses from the Commission for self-destruct signals in the 420-430 MHz band to date. In this regard, the Commission seeks comment on the requirements associated with command and destruct communications for commercial launch vehicles and whether access to the 420-430 MHz band is necessary. The commercial launch vehicle has only a receiver for the self-destruct signal and therefore does not require a license to transmit. If the self-destruct signal is being transmitted from a government owned facility using equipment under the control of Federal Government employees, no license from the Commission would be required. Instead, an authorization from NTIA would be needed.
51. The Commission seeks comment on whether it should make a co-primary non-Federal aeronautical mobile allocation for the 420-430 MHz band for use for self-destruct signals during commercial launches. In addition, it seeks comment on whether we should add a footnote to the Allocation Table restricting use of this non-Federal allocation to self-destruct signals during launches. Given that no one has requested an experimental STA from the Commission for this band for self-destruct signals, is there a need for access to the 420-430 MHz band for self-destruct signals and would the current STA process be sufficient to satisfy this need? As private spaceports are developed, use of Federal authorizations for this purpose may no longer be sufficient. Even when launches are conducted from Federal facilities, commercial entities conducting launches may want to use their own equipment for the self-destruct communications link and therefore would need a license from the Commission. Given the necessity of a reliable self-destruct communications link for the safety of the public, the use of a non-interference basis experimental STA would be problematic. The Commission acknowledges that use of this band for non-Federal space activities will require coordination with NTIA and Federal users of the band. The Commission proposes that any non-Federal use of the allocation should be limited to commercial launch activities. It seeks comment on this proposal as well as alternative bands that may be used for this purpose by the commercial launch sector.
52. The 2200-2290 MHz band is used for launch telemetry—
53. Because the 2200-2290 MHz band has no non-Federal allocation, the Commission does not license frequencies except on a non-interference basis. The primary Federal space operation service allocation enables NTIA to assign frequencies in the 2200-2290 MHz band to Federal agencies for telemetry during launches.
54. The 2200-2290 MHz band is heavily used by Federal agencies. The Commission seeks comment on whether there is sufficient spectrum available in this band for use during commercial launches, and, in particular, whether the use of this band could sustain the anticipated growth of the commercial launch sector. Using the same frequencies for Federal and non-Federal launches has distinct advantages for the commercial space industry. The equipment used for communications during launches has been developed and is reliable. Launch communications have successfully shared this band with the other services present for numerous launches through coordination of the various operations. Many commercial launches will occur from facilities co-located with Federal launch sites such as Cape Canaveral or Vandenberg Air Force Base where this sharing has been accomplished. In the future, the same companies will likely conduct launches for both Federal agencies and private entities and eventually likely transition to commercial space ports that are completely independent of Federal operations. The Commission seeks comment on whether requiring industry to have the capability to conduct communications in different bands depending on whether the launch is considered Federal or non-Federal would place an expensive burden on these companies. Providing access to spectrum that can sustain the short and long term needs of the commercial launch industry is in accordance with the policy of the United States government to develop a vibrant commercial space industry.
55. In both of the alternative proposals the Commission proposes that non-Federal use of the bands for space launches be limited to the 2207-2219 MHz, 2270.5-2274.5 MHz, and 2285-2290 MHz portions of the band. It has proposed this limitation based on our understanding of current usage. The Commission seeks comment on limiting non-Federal use to these portions of the band for space launches. Can limiting non-Federal use to this portion of the band support the expected growth of the commercial launch industry? It has also proposed to limit non-Federal use of these bands to communication channels with bandwidths of less than 5 megahertz based on our understanding of current usage. The Commission seeks comment on this limitation. In addition, it has proposed to limit non-Federal use of this band for space launches to pre-launch testing and for launches conducted at Federal ranges. The Commission proposes this restriction to limit the potential for interference to Federal operations to a few locations. As the commercial space ports are established that are independent of Federal operations would this restriction unduly limit the future growth of the commercial space launch industry?
56. As mentioned, in 1990 the Commission made six frequencies in the 2310-2390 MHz band available for both Federal and non-Federal use for telemetry and telecommand of launch and reentry vehicles. The Commission later reduced these to three frequencies in the 2360-2395 MHz band. The 2360-2395 MHz band is primarily used for aeronautical telemetry and telecommand operations for flight testing of aircraft and missiles. The Commission seeks comment generally on the use of these frequencies as an alternative to the heavily used 2200-2290 MHz band for communications during launches. In the time since the Commission made this spectrum available for launch telemetry, the intensity of use of this band for aeronautical telemetry for flight testing may have significantly changed. Does the current and expected future use of the 2360-2395 MHz band for aeronautical telemetry for flight testing make it unsuitable for communications associated with launch activity? What are the impediments to use of this band for commercial launches in the future? What are the spectrum requirements of the commercial launch sector in the short and long term and are the available frequencies in this band sufficient to meet, at least in part, these requirements? Because the number of frequencies available for launch vehicle telemetry and telecommand has been halved, would the needed data capacity be available for telemetry and telecommand during commercial launches? Should the Commission make the entire 2360-2395 MHz band available for telemetry and telecommand during commercial launches? Will the development of communications equipment for use on launch vehicles for this band place a significant economic burden on the commercial space industry? Prior to the Commission making frequencies in the 2310-2395 MHz band available for space launch telemetry, several commenters stated that it would be more cost efficient to use the same frequencies for both Federal and non-Federal launches and that the band should not be used until all Federal launch facilities had transitioned to the band. The Commission seeks comment on whether these concerns are still valid. Are there other reasons why the 2360-2395 MHz band is not a viable alternative to the 2200-2290 MHz band for telemetry during launches?
57. Looking beyond the 2360-2395 MHz band, the Commission seeks comment on alternatives to the use of the 2200-2290 MHz band for launch communications. It realizes that as the demand for spectrum increases, finding spectrum for new applications has become more difficult. That is especially the case for an application such as the space operation service, which involves transmitting high powered signals from high altitudes that may result in interference over a large area. Because these communications will take place from space, must the spectrum used be internationally allocated to the space operation service (space-to-Earth)? There is meager spectrum allocated for this purpose. Assuming that another suitable frequency band could be identified, would obtaining an international space allocation be a long process with uncertain success?
58. The 5650-5925 MHz band is used for radar tracking of a launch vehicle during launch. Because the radiolocation allocation in the 5650-5925 MHz band is Federal, the Commission can only license commercial entities to use the band to track launch vehicles on a non-interference basis. Federal radar facilities are able to track launches from government owned launch facilities
59. While the commercial space operations portion of the NPRM has focused on use of the 420-430 MHz, 2200-2290 MHz, and 5650-5925 MHz bands during launches, the Commission understands that the commercial space industry may have additional needs for spectrum in the future. In this
60. While previous commercial launches have been conventional rockets, several companies plan to take passengers on suborbital spaceflights using spacecraft that have more in common with planes than rockets. For example, Virgin Galactic's spacecraft will be carried aloft suspended from a plane. The spacecraft will then be released by the plane and a rocket engine will be fired to propel it into space. The spacecraft will then glide back to earth for an unpowered landing in the same manner as NASA's space shuttle. XCOR Aerospace's spacecraft will take off on a horizontal runway like a plane, fire a rocket engine to propel it into space, and then glide back to earth for a horizontal landing. The spacecraft are only expected to reach altitudes of 100 km as compared to orbits of over 300 km for low earth orbit satellites and space stations. Given the airplane-like qualities of these spacecraft and their lower maximum altitudes, they may have different communications needs than conventional launches. Because the spacecraft will glide back to earth will their frequency use have to be coordinated over a much larger area than conventional launches and reentries? Will access to the spectrum used by commercial aviation under the part 87 Aviation Services be more appropriate for all or part of the spacecraft's flight? Would the Commission need to initiate a proceeding to modify part 87 to meet the needs of these commercial spacecraft? The Commission seeks comment generally on the communication needs of these spacecraft.
61. Bigelow Aerospace has announced plans to have a commercial space station in orbit as early as 2016. Presumably, a space station with human habitation will need reliable communications with earth based ground stations. The Commission seeks comment generally on the communications needs of such a space station. Will additional allocations of spectrum be necessary to support a commercial space station? What modifications to the Commission's rules will be needed to support the communication needs of the space station?
62. As required by the Regulatory Flexibility Act (RFA),
63. The United States government and commercial entities have filled distinct roles in regard to activities in space. However, in recent years the roles of the Federal Government and private sector have become blurred. Federal policy directs agencies to use commercial satellite services unless specific mission requirements cannot be met, and many Federal agencies now rely on commercial communication satellites for service. NASA has contracted with commercial entities to carry cargo to the International Space Station (ISS), and in the future commercial spacecraft are expected to carry crew members to the ISS. Also, several privately owned spaceports have been licensed for future
64. The NPRM makes two alternative proposals to modify the Allocation Table to provide interference protection for Fixed-Satellite Service (FSS) and Mobile-Satellite Service (MSS) earth stations operated by Federal agencies under authorizations granted by the National Telecommunications and Information Administration (NTIA) in certain frequency bands. These frequency bands which are used to provide commercial satellite service are: 3.6-4.2 GHz, 5.85-6.725 GHz, 10.7-12.2 GHz, 12.7-13.25 GHz, 13.75-14.5 GHz, 18.3-19.3 GHz, 19.7-20.2 GHz, 27.5-30.0 GHz, 37.5-39.5 GHz and 47.2-50.2 GHz. Federal agencies are not, for the most part, currently able to operate their own earth stations on an interference-protected basis in these bands to use commercial satellite services. Under a first proposal, the Commission would add a co-primary Federal FSS or Federal MSS allocation in the Allocation Table for these frequency bands. In conjunction with this modification of the Allocation Table, we would add a footnote to the Allocation Table restricting primary use of Federal earth stations in these bands to communication with non-Federal satellites. A second alternative proposal would modify the Allocation Table by adding a footnote that gives Federal earth stations communicating with non-Federal satellites in these frequency bands interference protection equivalent to that afforded to non-Federal earth stations. The Federal earth stations will receive interference protection only if they operate in accordance with the Commission's rules. Either of these proposals would allow Federal agencies to obtain the same rights to interference protection accorded to Commission licensees when using earth stations to communicate with commercial satellite networks.
65. The NPRM also proposes to amend a footnote to the Allocation Table to permit a Federal MSS system to operate in the 399.9-400.05 MHz band. Deployment of this Federal system will allow traffic to be migrated from the existing Argos Federal MSS system, thereby resulting in less interference and improved service and reliability for users of both the existing Argos and the new Federal MSS systems. No Federal or non-Federal MSS systems have been deployed in this band since it was allocated in 1993. This proposed allocation will permit long vacant spectrum to be put to an important use.
66. The NPRM also makes alternative proposals to modify the Allocation Table to provide access to spectrum on an interference protected basis to Commission licensees for use during the launch of launch vehicles (
67. The proposed action is authorized under Sections 4(i), 301, 303(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 303(c), 303(f), and 303(r).
68. 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.
69.
70. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”
71. The second category,
72.
73. The FCC believes that the following business entities are the principle entities currently comprising the commercial space transportation launch operator industry in the United States: The Boeing Company, Lockheed Martin Corporation, Space Exploration Technologies, Orbital Sciences Corporation, and Sea Launch Company, L.L.C. In addition, Virgin Galactic and XCOR Aerospace have announced plans for suborbital manned space flights.
74. The NPRM proposes no reporting and recordkeeping requirements.
75. The RFA requires an agency to describe any significant 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 or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
76. In a first of two alternative proposals, the NPRM proposes to add a co-primary Federal FSS or Federal MSS allocation in the Table of Frequency Allocations in § 2.106 of our rules (Allocation Table) for a number of spectrum bands used for commercial satellite service. In conjunction with this modification of the Allocation Table, we will add a footnote to the Allocation Table restricting primary use of Federal earth stations in these bands to communication with non-Federal satellites. This will not directly change the regulatory burdens on Commission licensees. Commission licensees will continue to follow the same licensing procedures and be subject to the existing technical rules when operating in these bands. Because the bands will have a co-primary Federal allocation, under existing coordination procedures the Commission would be expected to coordinate license applications in these bands with NTIA. This will result in increased processing time for applications for Commission licenses for these bands. We are not able to quantify the economic impact this increased processing time will have on small entities applying for Commission licenses.
77. Alternatively, the NPRM proposes to modify the Allocation Table by adding a footnote that gives Federal earth stations communicating with non-Federal satellites in a number of bands used for commercial satellite service interference protection equivalent to that afforded to non-Federal earth stations. The Federal earth stations will receive interference protection only if they operate in accordance with the Commission's rules. This proposal does not change the regulatory burdens on Commission licensees. Commission licensees will continue to follow the same licensing procedures and be subject to the existing technical rules when operating in these bands. Unlike the first proposal, a Federal allocation will not be added to these bands and there will be no new requirement to coordinate Commission licenses with NTIA. This alternate proposal should have no significant economic impact on small entities.
78. The NPRM also proposes to amend a footnote to the Allocation Table to permit a Federal MSS system to operate in the 399.9-400.05 MHz band. Although this band currently has
79. The final section of the NPRM makes several proposals to amend the Allocation Table to provide interference protected access to spectrum for Commission licensees for the launch of launch vehicles (
80. None.
81. Pursuant to Sections 4(i), 301, 303(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 303(c), 303(f), and 303(r), this Notice of Proposed Rulemaking and Notice of Inquiry
82. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
83. The National Telecommunications and Infrastructure Administration's Petition for Rulemaking is
Communications equipment, Disaster assistance, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 2 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
The revisions and additions read as follows:
US46 In the bands 137-138 MHz, 148-150.05 MHz, 400.15-401 MHz, 1610-1626.5 MHz, 2483.5-2500 MHz, 19.7-20.2 GHz, and 29.5-30 GHz, Federal stations in the mobile-satellite service shall be restricted to earth stations operating with non-Federal space stations and that comply with Part 25 of the Commission's rules.
US107 In the bands 3700-4200 MHz, 5850-6725 MHz, 10.7-12.2 GHz, 12.7-13.25 GHz, 13.75-14.5 GHz, 18.3-19.3 GHz (except as provided for in US334), 19.7-20.2 GHz (except as provided for in US334), 27.5-30 GHz, 37.5-39.5 GHz, and 47.2-48.2 GHz, Federal stations in the fixed-satellite service shall be restricted to earth stations operating with non-Federal space stations and that comply with Part 25 of the Commission's rules.
USyyy In the band 2200-2290 MHz, non-Federal stations in the space operation service may also be authorized on a primary basis and such use shall be:
(a) Restricted to transmissions in the sub-bands 2207-2219 MHz, 2270.5-2274.5 MHz, and 2285-2290 MHz (necessary bandwidth shall be contained within these ranges);
(b) limited to no greater than 5 MHz necessary bandwidth per channel by launch vehicles during pre-launch testing and launches at Federal ranges; and
(c) subject to successful coordination of the assignment and use with Federal operations through NTIA.
USzzz In the band 5650-5925 MHz, non-Federal stations operating in the radiolocation service may also be authorized on a primary basis and such use shall be:
(a) Restricted to use in the tracking of launch vehicles during launches and pre-launch testing of launch vehicles subject to; and
(b) subject to successful coordination of the assignment and use with federal operations through NTIA.
Federal Communications Commission.
Petition for reconsideration.
In this document, Petitions for Reconsideration have been filed in the Commission's Rulemaking proceeding by Michael J. Marcus on behalf of Marcus Spectrum Solutions LLC, by Charles S. Farlow on behalf of Medtronic, Inc., and by James S. Blitz on behalf Sirius XM Radio Inc., and EchoStar Technologies Inc.
Oppositions to the Petitions must be filed on or before July 16, 2013. Replies to an opposition must be filed on or before July 26, 2013.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Rodney Small, Office of Engineering and Technology, 202-418-2452,
This is a summary of Commission's document, Report No. 2982, released June 7, 2013. The full text of Report No. 2982 is available for viewing and copying in Room CY-B402, 445 12th Street SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). The Commission will not send a copy of this
Federal Communications Commission.
Petition for reconsideration.
In this document, a Petition for Reconsideration (Petition) has been filed in the Commission's Rulemaking proceeding by Glenn S. Richards, on behalf of the Voice on the Net (VON) Coalition.
Oppositions to the Petition must be filed on or before July 16, 2013. Replies to an opposition must be filed on or before July 26, 2013.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
David Krech (202) 418-7443 or John Copes (202) 418-1478, Policy Division, International Bureau.
This is a summary of Commission's document, Report No. 2981, released June 5, 2013. The full text of Report No. 2981 is available for viewing and copying in Room CY-B402, 445 12th Street SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). The Commission will not send a copy of this Notice pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this Notice does not have an impact on any rules of particular applicability.
Federal Communications Commission.
Further notice of proposed rulemaking.
In this Further Notice of Proposed Rulemaking (Further Notice), the Federal Communications Commission (Commission) seeks comment on how to streamline or eliminate legacy regulations contained in the Computer Inquiry proceedings and that are applicable to the Bell Operating Companies (BOCs). The FNPRM: Seeks data on the changing market for narrowband enhanced services, in particular, the extent to which enhanced service providers (ESPs) continue to need access to the BOCs' basic network transmission services offered through comparably efficient interconnection (CEI) and open network architecture (ONA) services; proposes eliminating CEI requirements and seeks comment on whether to retain only limited ONA inputs that ESPs require in areas where there are no competitive alternatives; and seeks comment on the need for the continuing application of the All-Carrier Rule that requires non-BOC incumbent local exchange carriers (LECs) to offer non-discriminatory access to basic network services for unaffiliated ESPs.
Comments are due July 31, 2013, and reply comments are due August 30, 2013. Written comments on the paperwork Reduction Act proposed or modified information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before [date].
Interested parties may submit comments, identified by CC Docket No. 00-175, by any of the following methods:
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Jodie May, WCB, CPD, (202) 418-1580 or
This is a summary of the Commission's Further Notice in CC Docket Nos. 95-20, 98-10; FCC 13-69, released on May 17, 2013. The full text of this document, which is part of the Commission's
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. All pleadings are to reference CC Docket Nos. 95-20, 98-10; FCC 13-69. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
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• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
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1. In its
2. The BOCs' CEI plans detail how they provide unaffiliated ESPs with interconnection to basic transmission services on the same terms and conditions that the BOCs use for their own enhanced services offerings. The BOCs' ONA plans, based on the architecture of the BOCs' networks as they existed in the late 1980s, offer ESPs unbundled, tariffed access to basic transmission services regardless of whether the BOCs' affiliated enhanced services offerings use the same components.
3. The Commission has had in place a long-standing examination of the substantive
4. Since 1998, the Commission has modified or eliminated many of the
5. In order to determine how we may streamline or eliminate the remaining legacy
6. The Commission made clear when it adopted the
7. We propose to eliminate the requirement that BOCs maintain and post their CEI plans on the Internet. CEI plans were always intended to be an interim measure, designed to bridge the gap between the Commission's decision to lift structural separation in
8. We seek current information on whether ONA offerings continue to be an effective means of providing competitive ESPs with access to unbundled network services they need to structure efficient service offerings. To the extent that the requirements or offerings are ineffective, we request that commenters cite to specific instances to support their claims. The Commission is now examining the technological transition of legacy networks and protocols toward modern networks and services in several contexts.
9. We seek comment on the extent to which the BOCs themselves continue to provide narrowband enhanced services and whether there are sufficient alternatives such that the BOCs are prevented, at least in some areas, from engaging in harmful discrimination against unaffiliated ESPs. We seek data on the alternatives available and the specific markets in which such alternatives are available. Do ESPs still rely primarily on narrowband ONA services, or do they use other means to obtain services? We are interested in whether enhanced service competitors use a combination of inputs from different providers.
10. The Commission originally required the BOCs to maintain a sufficient level of uniformity among their ONA services, in part so that ESPs could market national offerings. Is this requirement still necessary today for narrowband offerings or do ESPs seek more tailored arrangements based on their customer base? Commenters should identify what other network platforms, such as cable or broadband, offer viable options for re-structuring existing enhanced services that customers still use and whether ESPs would have access to those options in the areas in which their customers are located, including in rural areas. If alternatives are available, do they enable functionalities that ESPs require for specific narrowband products, such as alarm monitoring services or voice mail? Commenters should explain whether ESPs use ONA offerings for any public safety related offerings. In addition, we seek comment on whether ESPs obtain from the BOCs unbundled network elements under section 251 of the Act, 47 U.S.C. 251, if the providers are also telecommunications carriers or if they can obtain basic services from competitive telecommunications providers.
11. The ONA framework consists of multiple requirements in addition to the tariffing of basic service offerings. These include the ONA amendment process under which a BOC that seeks to offer an enhanced service that uses a new basic service element, or otherwise uses different configurations of underlying basic services than those in its approved ONA plan, must amend its ONA plan at least 90 days before it offers the new enhanced service. In addition, an ESP can request a new ONA basic service from the BOC and must receive a response from the BOC within 120 days regarding whether the BOC will provide the service. The BOC must evaluate and justify its response using specific factors, including market area demand, utility to ESPs as perceived by the providers themselves, and cost and technical feasibility. We are interested in obtaining information about how often the BOCs received a request under the 120 day process, including the date of the most recent request, and the outcome of the request. The BOCs should also address the last time they amended their ONA plans. ESPs should address whether the 120 day process continues to be of value and whether they contemplate using it in the future. We seek comment on the extent to which the narrowband ONA obligations may increase the BOCs' costs of providing enhanced services. Commenters should identify costs with specificity wherever possible. We also ask commenters to address whether there are continuing benefits associated with the obligations that justify the costs.
12. At the beginning of the ONA implementation process, the Commission found that it would not be reasonable for BOCs to withdraw any services listed in their approved ONA plans and that it would not look favorably on requests for withdrawal. It did, however, outline a process for BOCs to withdraw ONA services. It stated that, once an ONA service element was federally tariffed, the BOC must request and receive advance approval in writing before filing tariff revisions to discontinue offering of that service.
13. We seek comment on what type of process would be most efficient for us to review requests to reduce or eliminate ONA service offerings that are included in the BOCs' ONA plans and tariffs. Because the elimination of basic narrowband service elements currently available under the ONA plans could impact ESPs that have limited alternatives for these services, we seek comment on adopting a discontinuance process that allows for comments, a notice period, and affirmative action by the Commission. This would allow more time for ESPs to transition to other arrangements whether from the BOCs, themselves, or alternative providers. We seek comment on adopting a process
A BOC that seeks to withdraw and discontinue narrowband Open Network Architecture (ONA)-related services shall be subject to the following procedures:
The BOC shall notify all affected customers of the planned withdrawal and discontinuance in writing. The notification shall include the name and address of the carrier, date of planned service withdrawal and discontinuance, points of geographic areas of service affected, and a brief description of the type of service affected. The notification shall also include a statement to customers as follows:
The FCC will normally authorize this proposed withdrawal and discontinuance of service unless it is shown that customers would be unable to receive service or a reasonable substitute from another carrier or that the public convenience and necessity is otherwise adversely affected. If you wish to object, file your comments as soon as possible, but no later than 30 days after the Commission releases public notice of the proposed withdrawal or discontinuance. Comments should include specific information about the impact of this proposed withdrawal and discontinuance on you or your company, including any inability to acquire reasonable substitute service. Comments must be filed electronically using the Internet through the Commission's Electronic Comment Filing System (ECFS) and reference the proceeding number on the public notice. ECFS is accessible at
The BOC shall file with this Commission, on or after the date on which it has given notice to all affected customers, an application which shall contain the name and address of the carrier, date of planned service withdrawal and discontinuance, points of geographic areas of service affected, brief description of the type of service affected, brief description of the dates and methods of notice to all affected customers, or a statement that no customers are currently using the service, and any other supplemental information the Commission may require.
The application to withdraw and discontinue ONA services shall be automatically granted on the 60th day after its filing with the Commission without any notification to the applicant unless the Commission has notified the applicant that the grant will not be automatically effective. For purposes of this section, an application will be deemed filed on the date the Commission releases public notice of the filing.
14. Such a process would set a threshold showing for a BOC to withdraw an ONA service and allow ESPs an orderly notice and comment process to object to the withdrawal. We seek comment on whether we should permit BOCs to include multiple services in a single notice for a particular geographic area. The process would also allow affected ESPs the opportunity to address whether they would be unable to serve customers without access to the service.
15. Because we propose to eliminate CEI and seek comment on streamlining or eliminating ONA requirements, it is important for ESPs to have sufficient detail to understand the impact of any possible reduction in availability. BOCs should comment on what types of transition arrangements might be possible to ensure that ESPs can still serve their narrowband customers. We seek comment on whether BOCs would continue to make CEI and ONA service offerings and network functionalities available through alternative means, including through the use of other tariffed services. Would they be available through a transition to unbundled network elements or resold services? We seek information from the BOCs on whether grandfathering arrangements would be available based on existing prices, terms, and conditions. Should we require BOCs to grandfather existing customers for a period of time (
16. Non-BOC facilities-based common carriers must provide the basic transmission services underlying their enhanced services on a nondiscriminatory basis pursuant to tariffs under the All-Carrier Rule. Computer II Final Decision, 77 FCC 2d at 474-75, para. 231. The rule requires common carriers to provide basic transmission services at the same prices, terms, and conditions to all ESPs, including themselves. We seek comment on the extent to which ESPs continue to rely on these tariffed transmission services to provide narrowband services to customers and whether there are alternative providers available. In particular, we seek comment on whether we should retain network access requirements under the All-Carrier Rule beyond the time that CEI and ONA may sunset. Would ESPs, including those offering certain services such as alarm monitoring, continue to require access to incumbent LEC networks in non-BOC territory because there are more limited alternatives in those areas, or do cable, wireless, and VoIP platforms offer ESPs viable alternatives? We also seek comment on whether the incumbent carriers themselves continue to provide narrowband enhanced services such that is important to retain the All-Carrier Rule to prevent discriminatory conduct against unaffiliated ESPs.
17. This Further Notice seeks comment on a potential new or revised information collection requirements. If the Commission adopts any new or revised information collection requirement, the Commission will publish a separate notice in the
18. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 601(6). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). SBA defines small telecommunications entities as those with 1,500 or fewer
19. The Commission will send a copy of the Notice, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. This initial certification will also be published in the
20. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
21.
22.
Fish and Wildlife Service, Interior.
Revised proposed rule; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the August 20, 2012, proposed designation of critical habitat for the jaguar (
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Fish and Wildlife Office, 2321 West Royal Palm Drive, Suite 103, Phoenix, AZ 85021; by telephone (602-242-0210); or by facsimile (602-242-2513). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We are reopening the comment period for our proposed critical habitat designation for the jaguar that was published in the
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(2) Specific information on:
(a) The amount and distribution of jaguar habitat;
(b) What areas occupied at the time of listing (1972) (or currently occupied) that contain features essential to the conservation of the species we should include in the designation and why;
(c) What period of time surrounding the time of listing (1972) should be used to determine occupancy and why, and whether or not data from 1982 to the present should be used in this determination;
(d) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change;
(e) What areas not occupied at the time of listing (and that do not contain all of the primary constituent elements comprising proposed jaguar critical habitat) are essential for the conservation of the species and why; and
(f) If an area is essential but was not occupied at the time of listing, what are the habitat features that are essential, and which of these features are the most important?
(3) Land-use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of climate change on the jaguar and proposed critical habitat.
(5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas from the proposed designation that exhibit these impacts.
(6) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate and the description of the environmental impacts in the draft environmental assessment is complete and accurate.
(7) If lands owned and managed by Fort Huachuca (Fort) should be considered for exemption because the integrated natural resources management plan for the Fort currently benefits the jaguar, whether or not management activities specifically address the species.
(8) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
(9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
If you submitted comments or information on the proposed rule (77 FR 50214; August 20, 2012) during the initial comment period from August 20, 2012, to October 19, 2012, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final rule. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments and other relevant information, we may, during the development of our final determination on the proposed critical habitat designation, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the revised proposed rule, draft economic analysis, or draft environmental assessment by one of the methods listed in the
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the revised proposed rule, draft economic analysis, and draft environmental assessment, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the designation of critical habitat for jaguar in this document. For more information on the species, the species' habitat, and
On August 20, 2012, we published a proposed rule to designate critical habitat for the jaguar (77 FR 50214). In that proposed rule, we proposed to designate approximately 838,232 acres (ac) (339,220 hectares (ha)) as critical habitat in six units located in Pima, Santa Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico. That proposal had a 60-day comment period, ending October 19, 2012. We received requests for a public hearing; therefore, a public hearing will be held (see
In 2013, we received a report from the Jaguar Recovery Team that included a revised habitat model for jaguar in the proposed Northwestern Recovery Unit (Sanderson and Fisher 2013, entire). This report recommended defining habitat patches of less than 100 square kilometers (km) (38.6 square miles (mi)) in size as unsuitable for jaguars; therefore, we incorporated this information into the physical and biological feature for the jaguar, which formerly described areas of less than 84 square km (32.4 square mi) as unsuitable. Additionally, the report recommended slight changes to some of the habitat features we used to describe the primary constituent elements (PCEs) comprising jaguar critical habitat (see Changes from Previously Proposed Critical Habitat, below). The revised physical and biological feature and PCEs resulted in changes to the boundaries of our original proposed critical habitat, and we are revising our proposal for jaguar critical habitat in this document. In this revised rule, we propose to designate approximately 858,137 ac (347,277 ha) as critical habitat in six units located in Pima, Santa Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico.
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
On August 20, 2012, we published in the
Since then, the Jaguar Recovery Team continued to revise and refine these habitat features, resulting in a habitat model that we received in 2013. The changes included: (1) Defining habitat patches of less than 100 square km (38.6 square mi) in size as unsuitable (the physical and biological feature formerly described areas of less than 84 square km (32.4 square mi) as unsuitable); (2) delineating areas 2,000 meters (6,562 feet) and higher as unsuitable (previously there was no PCE related to an upper-elevation limit); (3) including a canopy cover from greater than 1 to 50 percent as suitable (PCE 4 formerly included a range of 3 to 40 percent canopy cover); and (4) slightly diminishing the level of human influence tolerated by jaguars in the northern part of the proposed Northwestern Recovery Unit (PCE 6). When combined, these changes added some new areas containing all of the PCEs, while other areas no longer contained all of the PCEs, and therefore were removed. An increase in area was usually due to the increased range in canopy cover (from greater than 1 to 50 percent, instead of 3 to 40 percent), while a decrease in area was usually due to the upper elevation limit of 2,000 meters (6,562 feet).
In addition to the changes described above, recent photos (October 2012 through January 2013) have been taken of a jaguar in the Santa Rita Mountains. While our understanding of the habitat features did not change drastically between 2012 and 2013, the combination of a slightly different physical and biological feature and several PCEs (as described above) and the new jaguar sightings have resulted in the proposed revisions to our August 20, 2012, proposed critical habitat rule for the jaguar that are described in this document.
Based on our current knowledge of the physical or biological feature and habitat characteristics required to sustain the jaguar's vital life-history functions in the Northwestern Recovery Unit and the United States, we determine that the primary constituent elements specific to jaguars are: Expansive open spaces in the southwestern United States of at least 100 square km (38.6 square mi) in size which:
(1) Provide connectivity to Mexico;
(2) Contain adequate levels of native prey species, including deer and javelina, as well as medium-sized prey such as coatis, skunks, raccoons, or jackrabbits;
(3) Include surface water sources available within 20 km (12.4 mi) of each other;
(4) Contain from greater than 1 to 50 percent canopy cover within Madrean evergreen woodland, generally recognized by a mixture of oak, juniper, and pine trees on the landscape, or semidesert grassland vegetation communities, usually characterized by
(5) Are characterized by intermediately, moderately, or highly rugged terrain;
(6) Are characterized by minimal to no human population density, no major roads, or no stable nighttime lighting over any 1-square-km (0.4-square-mi) area; and
(7) Are below 2,000 m (6,562 feet) in elevation.
We are proposing six units as critical habitat for the jaguar. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the jaguar. The six units we propose as critical habitat are: (1) Baboquivari Unit divided into subunits (1a) Baboquivari-Coyote Subunit, including the Northern Baboquivari, Saucito, Quinlan, and Coyote Mountains, and (1b) the Southern Baboquivari Subunit; (2) Atascosa Unit, including the Pajarito, Atascosa, and
The approximate area of each proposed critical habitat unit is shown in Table 2.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for jaguar, below.
Subunit 1a consists of 37,689 ha (93,130 ac) in the northern Baboquivari, Saucito, Quinlan, and Coyote Mountains in Pima County, Arizona. This subunit is generally bounded by the eastern side of the Baboquivari Valley to the west, State Highway 86 to the north, the western side of the Altar Valley to the east, and up to and including Leyvas and Bear Canyons to
The primary land uses within Subunit 1a include ranching, grazing, border-related activities, Federal land management activities, and recreational activities throughout the year, including, but not limited to, hiking, birding, horseback riding, and hunting. Special management considerations or protections needed within the subunit would need to address threats presented by increased human disturbances in remote locations through construction of impermeable fences and widening or construction of roadways, power lines, or pipelines.
Subunit 1b consists of 19,453 ha (48,070 ac) in the southern Baboquivari Mountains in Pima County, Arizona. This subunit is generally bounded by the eastern side of the Baboquivari Valley to the west, up to but not including Leyvas and Bear Canyons to the north, the western side of the Altar Valley to the east, and the U.S.-Mexico border to the south. Land ownership within the unit includes approximately 624 ha (1,543 ac) of Federal lands; 10,829 ha (26,759 ac) of Tohono O'odham Nation lands; 6,157 ha (15,213 ac) of Arizona State lands; and 1,843 ha (4,555 ac) of private lands. The Federal land is administered by the Service and Bureau of Land Management. The Southern Baboquivari Subunit provides connectivity to Mexico and was not occupied at the time of listing, but is essential to the conservation of the jaguar because it contributes to the species' persistence by providing connectivity to occupied areas.
The primary land uses within Subunit 1b include ranching, grazing, border-related activities, Federal land management activities, and recreational activities throughout the year, including, but not limited to, hiking, birding, horseback riding, and hunting.
Unit 2 consists of 58,625 ha (144,864 ac) in the Pajarito, Atascosa, and Tumacacori Mountains in Pima and Santa Cruz Counties, Arizona. Unit 2 is generally bounded by the eastern side of San Luis Mountains (Arizona) to the west, roughly 4 km (2.5 mi) south of Arivaca Road to the north, Interstate 19 to the east, and the U.S.-Mexico border to the south. Land ownership within the unit includes approximately 53,807 ha (132,961 ac) of Federal lands; 2,296 ha (5,672 ac) of Arizona State lands; and 2,522 ha (6,231 ac) of private lands. The Federal land is administered by the Coronado National Forest and Bureau of Land Management. We consider the Atascosa Unit occupied at the time of listing (37 FR 6476; March 30, 1972) (see “Occupied Area at the Time of Listing” in our August 20, 2012, proposed rule (77 FR 50214)), and it may be currently occupied based on multiple photos of two, or possibly three, jaguars from 2001-2008. It contains all elements of the physical or biological feature essential to the conservation of the jaguar.
The primary land uses within Unit 2 include Federal land management activities, border-related activities, grazing, and recreational activities throughout the year, including, but not limited to, hiking, camping, birding, horseback riding, picnicking, sightseeing, and hunting. Special management considerations or protections needed within the unit would need to address threats posed by increased human disturbances into remote locations through construction of impermeable fences and widening or construction of roadways, power lines, or pipelines.
Unit 3 consists of 148,364 ha (366,615 ac) in the Patagonia, Santa Rita, Empire, and Huachuca Mountains, as well as the Canelo and Grosvenor Hills, in Pima, Santa Cruz, and Cochise Counties, Arizona. Unit 3 is generally bounded by a line running roughly 3 km (1.9 mi) east of Interstate 19 to the west; a line running roughly 6 km (3.7 mi) south of Interstate 10 to the north; Cienega Creek and Highways 83, 90, and 92 to the east, including the eastern slopes of the Empire Mountains; and the U.S.-Mexico border to the south. Land ownership within the unit includes approximately 107,471 ha (265,566 ac) of Federal lands; 11,847 ha (29,274 ac) of Arizona State lands; and 29,046 ha (71,775 ac) of private lands. The Federal land is administered by the Coronado National Forest, Bureau of Land Management, National Park Service, and Fort Huachuca. We consider the Patagonia Unit occupied at the time of listing (37 FR 6476; March 30, 1972) based on the 1965 record from the Patagonia Mountains (see “Occupied Area at the Time of Listing” in our August 20, 2012, proposed rule (77 FR 50214)) and currently occupied based on photos taken from October 2012, through January 2013, of a male jaguar in the Santa Rita Mountains. The mountain ranges within this unit contain all elements of the physical or biological feature essential to the conservation of the jaguar.
The primary land uses within Unit 3 include military activities associated with Fort Huachuca, as well as Federal land management activities, border-related activities, grazing, and recreational activities throughout the year, including, but not limited to, hiking, camping, birding, horseback riding, picnicking, sightseeing, and hunting. Special management considerations or protections needed within the unit would need to address threats posed by human disturbances through such activities as military ground maneuvers and increased human presence in remote locations through mining and development activities, construction of impermeable fences, and widening or construction of roadways, power lines, or pipelines.
Subunit 4a consists of 25,284 ha (62,478 ac) in the Whetstone Mountains in Pima, Santa Cruz, and Cochise Counties, Arizona. Subunit 4a is generally bounded by a line running roughly 4 km (2.5 mi) east of Cienega Creek to the west, a line running roughly 6 km (3.7 mi) south of Interstate 10 to the north, Highway 90 to the east, and Highway 82 to the south. Land ownership within the subunit includes approximately 16,066 ha (39,699 ac) of Federal lands; 5,445 ha (13,455 ac) of Arizona State lands; and 3,774 ha (9,325 ac) of private lands. The Federal land is administered by the Coronado National Forest and Bureau of Land Management. We consider the Whetstone Subunit occupied at the time of listing (37 FR 6476; March 30, 1972) (see “Occupied Area at the Time of Listing” in our August 20, 2012, proposed rule (77 FR 50214)), and, based on photographs taken in 2011, it may be currently occupied. The mountain range within this subunit contains all elements of the physical or biological feature essential to the conservation of the jaguar, except for connectivity to Mexico.
The primary land uses within Subunit 4a include Federal land management activities, grazing, and recreational activities throughout the year, including, but not limited to, hiking, camping, birding, horseback riding, picnicking, sightseeing, and hunting. Special management considerations or protections needed within the subunit would need to address threats posed by increased human disturbances as a result of development activities, and widening or construction of roadways, power lines, or pipelines.
Subunit 4b consists of 5,143 ha (12,710 ac) between the Empire Mountains and northern extent of the Whetstone Mountains in Pima County, Arizona. Subunit 4b is generally bounded by (but does not include): The eastern slopes of the Empire Mountains to the west, a line running roughly 6 km (3.7 mi) south of Interstate 10 to the north, the western slopes of the Whetstone Mountains to the east, and Stevenson Canyon to the south. Land ownership within the subunit includes approximately 532 ha (1,313 ac) of Federal lands and 4,612 ha (11,396 ac) of Arizona State lands. The Whetstone-Santa Rita Subunit provides connectivity from the Whetstone Mountains to Mexico and was not occupied at the time of listing, but is essential to the conservation of the jaguar because it contributes to the species' persistence by providing connectivity to occupied areas.
The primary land uses within Subunit 4b include grazing and recreational activities throughout the year, including, but not limited to, hiking, camping, birding, horseback riding, picnicking, sightseeing, and hunting.
Subunit 4c consists of 8,026 ha (19,832 ac) between the Huachuca Mountains and southern extent of the Whetstone Mountains in Santa Cruz and Cochise Counties, Arizona. Subunit 4c is generally bounded by Highway 83, Elgin-Canelo Road, and Upper Elgin Road to the west; Highway 82 to the north; a line running roughly 4 km (2.5 mi) west of Highway 90 to the east; and up to but not including the Huachuca Mountains to the south. Land ownership within the subunit includes approximately 1,654 ha (4,088 ac) of Federal lands; 2,981 ha (7,366 ac) of Arizona State lands; and 3,391 ha (8,379 ac) of private lands. The Federal land is administered by the Coronado National Forest, Bureau of Land Management, and Fort Huachuca. The Whetstone-Huachuca Subunit provides connectivity from the Whetstone Mountains to Mexico and was not occupied at the time of listing, but is essential to the conservation of the jaguar because it contributes to the species' persistence by providing connectivity to occupied areas.
The primary land uses within Subunit 4c include military activities associated with Fort Huachuca, as well as Federal forest management activities, grazing, and recreational activities throughout the year, including, but not limited to, hiking, camping, birding, horseback riding, picnicking, sightseeing, and hunting.
Unit 5 consists of 41,571 ha (102,723 ac) in the Peloncillo Mountains in Cochise County, Arizona, and Hidalgo County, New Mexico. Unit 5 is generally bounded by the eastern side of the San Bernardino Valley to the west, Skeleton Canyon Road and the northern boundary of the Coronado National Forest to the north, the western side of the Animas Valley to the east, and the U.S.-Mexico border on the south. Land ownership within the unit includes approximately 28,393 ha (70,160 ac) of Federal lands; 7,861 ha (19,426 ac) of Arizona State lands; and 5,317 ha (13,138 ac) of private lands. The Federal land is administered by the Coronado National Forest and Bureau of Land Management. We consider the Peloncillo Unit occupied at the time of listing (37 FR 6476; March 30, 1972) (see “Occupied Area at the Time of Listing” in our August 20, 2012, proposed rule (77 FR 50214)), and it may be currently occupied based on a track documented in 1995 and photographs taken in 1996. It contains all elements of the physical or biological feature essential to the conservation of the jaguar.
The primary land uses within Unit 5 include Federal land management activities, border-related activities, grazing, and recreational activities throughout the year, including, but not limited to, hiking, camping, birding, horseback riding, picnicking, sightseeing, and hunting. Special management considerations or protections needed within the unit would need to address threats posed by increased human disturbances in remote locations through construction of impermeable fences and widening or construction of roadways, power lines, or pipelines.
Unit 6 consists of 3,122 ha (7,714 ac) in the northern extent of the San Luis Mountains in Hidalgo County, New Mexico. Unit 6 is generally bounded by the eastern side of the Animas Valley to the west, a line running roughly 1.5 km (0.9 mi) south of Highway 79 to the north, an elevation line at approximately 1,600 m (5,249 ft) on the east side of the San Luis Mountains, and the U.S.-Mexico border to the south. Land within the unit is entirely privately owned. We consider the San Luis Unit occupied at the time of listing (37 FR 6476; March 30, 1972) (see “Occupied Area at the Time of Listing” in our August 20, 2012, proposed rule (77 FR 50214)), and it may be currently occupied based on photographs taken in 2006. Unit 6 contains almost all elements (PCEs 2-7) of the physical or biological feature essential to the conservation of the jaguar except for PCE 1 (expansive open space). This unit is included because, while by itself it does not provide at least 100 square km (38.6 square mi) of jaguar habitat in the United States, additional habitat can be found immediately adjacent south of the U.S.-Mexico border, and therefore this area represents a small portion of a much larger area of habitat.
The primary land uses within Unit 6 include border-related activities, grazing, and some recreational activities throughout the year, including, but not limited to, hiking, horseback riding, and hunting. Special management considerations or protections needed within the unit would need to address threats posed by increased human disturbances into remote locations through construction of impermeable fences and widening or construction of roadways, power lines, or pipelines.
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. We are considering excluding lands owned and managed by the Tohono O'odham Nation from critical habitat. The Tohono O'odham Nation has indicated that they are preparing a Jaguar Management Plan, which we expect to receive during this comment period. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see
The draft economic analysis describes the economic impacts of all potential conservation efforts for the jaguar; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species.
Most courts have held that the Service only needs to consider the incremental impacts imposed by the critical habitat designation over and above those impacts imposed as a result of listing the species. For example, the Ninth Circuit Court of Appeals reached this conclusion twice within the last few years, and the U.S. Supreme Court declined to hear any further appeal from those rulings (
However, the prevailing court decisions in the Tenth Circuit Court of Appeals do not allow the incremental analysis approach. Instead, the Tenth Circuit requires that the Service consider both the baseline economic impacts imposed due to listing the species and the additional incremental economic impacts imposed by designating critical habitat (
The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the jaguar over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing.
The draft economic analysis quantifies economic impacts of jaguar conservation efforts associated with the following categories of activity: (1) Federal land management; (2) border protection activities; (3) mining; (4) transportation activities; (5) development; (6) military activities; (7) livestock grazing and other activities; and (8) Tohono O'odham Nation activities. Chapter 11 of the draft economic analysis provides the quantification of economic impacts of jaguar conservation efforts.
Given the secretive and transient nature of the jaguar and the fact that Federal land managers already take steps to protect the jaguar even without critical habitat, we do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy of the species, except in cases where an activity could create a situation in which a unit of critical habitat could become inaccessible to jaguars. The loss of one critical habitat unit would not constitute jeopardy to the species, but it may constitute destruction or adverse modification.
Major construction projects (such as new highways, significant widening of existing highways, or construction of large facilities or mines) could sever connectivity within these critical habitat units and subunits, and could constitute adverse modification. However, at this time we are unable to identify the conservation measures that will be requested to avoid adverse modification, and we are therefore unable to quantify these impacts.
Therefore, the total projected incremental costs of administrative efforts resulting from section 7 consultations on the jaguar are approximately $360,000 over 20 years ($31,000 on an annualized basis), assuming a 7 percent discount rate. The analysis estimates future potential administrative impacts based on the historical rate of consultations on the jaguar in areas proposed for critical habitat, as discussed in Chapter 2 of the draft economic analysis.
As stated earlier, we are soliciting data and comments from the public on the draft economic analysis and draft environmental assessment, as well as all aspects of the proposed rule, as revised by this document, and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
The purpose of the draft environmental assessment, prepared pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
As we stated earlier, we are soliciting data and comments from the public on the draft environmental assessment, as well as all aspects of the proposed rule, the draft economic analysis, and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the comment period on the environmental consequences resulting from our proposed designation of critical habitat.
In our August 20, 2012, proposed rule (77 FR 50214), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the draft economic analysis. We have now made use of the draft economic analysis data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Orders (E.O.s) 12866 and 13563 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for the jaguar would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as mining, transportation construction, development, and agriculture and grazing. In order to determine whether it is appropriate for our agency to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. Because the jaguar is listed as an endangered species under the Act, in areas where the jaguar is present, Federal agencies are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
In the draft economic analysis, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the jaguar. The designation of critical habitat for the jaguar is unlikely to directly affect any small entities. The costs associated with the designation are likely to be limited to the incremental impacts associated with administrative costs of section 7 consultations. Small entities may participate in section 7 consultation as a third party (the primary consulting parties being the Service and the Federal action agency). It is therefore possible that the small entities may spend additional time considering critical habitat due to the need for a section 7 consultation for the jaguar. Additional incremental costs of consultation that would be borne by the Federal action agency and the Service are not relevant to this screening analysis as these entities (Federal agencies) are not small. It is uncertain
The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the E.O. regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the jaguar in a proposed takings implications assessment. The economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the jaguar. Based on information contained in the economic analysis and described within this document, it is not likely that economic impacts to a property owner would be of a sufficient magnitude to support a takings action. Therefore, the proposed takings implications assessment concludes that this designation of critical habitat for the jaguar does not pose significant takings implications for lands within or affected by the designation. However, we will further evaluate this issue as we complete our final economic analysis.
On May 16, 2012, we sent a letter to the Tohono O'odham Nation (the one Tribe that owns and manages land within the proposed designation) and Bureau of Indian Affairs notifying them of our intent to propose critical habitat for the jaguar. On August 24, 2012, we notified all Tribes potentially affected by our proposal to designate jaguar critical habitat via email, then followed up by sending a letter to each Tribal leader on September 28, 2012. Potentially affected Tribes include: The Ak Chin Community, Gila River Indian Community, Hope Tribe, Pascua Yaqui Tribe, Salt River Pima Maricopa Indian Tribe, San Carlos Apache Tribe, Tohono O'odham Tribe, and White Mountain Apache Tribe. Additionally, on September 27, 2012, we met with Tohono O'odham Nation staff to discuss the proposed designation.
The primary authors of this notice are the staff members of the Arizona Ecological Services Fish and Wildlife Office, Southwest Region, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended on August 20, 2012, at 77 FR 50214, as set forth below:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(a)
Jaguar (
(2) Within these areas, the primary constituent elements of the physical or biological feature essential to the conservation of jaguar consist of expansive open spaces in the southwestern United States of at least 100 square kilometers (km) (38.6 square miles (mi)) in size which:
(i) Provide connectivity to Mexico;
(ii) Contain adequate levels of native prey species, including deer and javelina, as well as medium-sized prey such as coatis, skunks, raccoons, or jackrabbits;
(iii) Include surface water sources available within 20 km (12.4 mi) of each other;
(iv) Contain from greater than 1 to 50 percent canopy cover within Madrean evergreen woodland, generally recognized by a mixture of oak, juniper, and pine trees on the landscape, or semidesert grassland vegetation communities, usually characterized by
(v) Are characterized by intermediately, moderately, or highly rugged terrain;
(vi) Are characterized by minimal to no human population density, no major roads, or no stable nighttime lighting over any 1-square-km (0.4-square-mi) area; and
(vii) Are below 2,000 meters (6,562 feet) in elevation.
(5) Index map follows:
(6) Units 1, 2, 3, and 4: Baboquivari, Atascosa, Patagonia, and Whetstone Units, Pima, Santa Cruz, and Cochise
(7) Units 5 and 6: Peloncillo and San Luis Units, Cochise County, Arizona, and Hidalgo County, New Mexico. Map of Units 5 and 6 follows:
Forest Service, USDA.
Notice.
The 21st Century Conservation Service Corps (21CSC) National Council is requesting letters of interest from all conservation and youth corps programs that would like to be identified as a 21CSC member organization. We are initiating this outreach in order to catalyze the establishment of a 21st Century Conservation Service Corps (21CSC) to engage young Americans and returning veterans in public lands and water restoration.
This notice seeks to establish the 21CSC by building upon and leveraging the experience and expertise of existing Federal, State, tribal, local and non-profit conservation and youth corps, and veterans programs. This will facilitate conservation and restoration service work on public lands to include all governmental entities of cities, counties, States, and the Federal Government, and encourage a new generation of natural resource managers and environmental stewards.
All principals of interested organizations are invited to submit a letter of interest that outlines the organization's and/or program's criteria. Letters should include the name of your organization; an address and point of contact, including email address; and a description of your organization or program. Organizations that respond to this request may be contacted to provide additional information to support their statements. The 21CSC National Council will oversee the review of all submissions to determine the respondent's alignment with the 21CSC principles. Organizations that are not recognized as 21CSC member organizations in the initial review process may submit new letters of interest.
This notice is being published by the USDA Forest Service on behalf of the National Council; 21CSC member organizations recognized through this process will be acknowledged by all signatories to the National Council MOU.
Submit letters of interest (maximum 5 pages, double-spaced in Times New Roman, 12 point type) before August 1, 2013. An interagency team will review submissions and respond by September 30, 2013. Organizations may submit letters of interest including new and re-submissions up to 1 year after the date of this notice. Letters will be reviewed quarterly and the member organization directory will also be updated quarterly (October, January, April, and July). Organizations may be removed at any time by submitting a written request to the email or mailing address below. Membership will last through the 2014 calendar year; more information regarding membership beyond this period will be forthcoming after August 2014.
Letters of interest may be submitted electronically to
USDA Forest Service, Attn: Merlene Mazyck, 1620 Kent Street, RPC, 4th Floor, Arlington, VA 22209 or
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The implementation of the 21CSC is coordinated by a National Council of representatives from Federal agencies that formalized their mission through the signing a Memorandum of Understanding in January 2013. National Council membership includes leadership from the Departments of the Army, Interior, Agriculture, Commerce, and Labor, Environmental Protection Agency, the President's Council on Environmental Quality, and the Corporation for National and Community Service. The National Council will work to: Support program expansion, including by matching natural resource management needs with 21CSC opportunities and identifying potential sources of funding and other resources; remove barriers and streamline processes for supporting 21CSC programs; support participant pathways to careers; facilitate technical assistance; develop and support partnerships; coordinate messaging; and ensure national representation.
The 21CSC is a bold national effort to put America's youth and veterans to work protecting, restoring, and enhancing America's Great Outdoors. Recognizing the need for job opportunities for youth and returning veterans, for restoration of our natural resources, to connect Americans to the country's lands and waters, to effectively recruit the next generation of public employees, and to develop the next generation of conservation stewards, the Secretary of the Department of the Interior, on behalf of the America's Great Outdoors Council, formed a Federal Advisory Committee (FACA) to develop recommendations for the establishment of the 21CSC. The FACA was comprised of representatives from Federal agencies, the outdoor industry, and non-profit youth and conservation corps. In addition to providing recommendations, the FACA also identified 21 CSC goals and principles, which were slightly modified and adopted by the Federal 21CSC National Council.
1.
2.
3.
21CSC member organizations must be in alignment with the criteria in each of the following 21CSC Principles:
1.
2.
3.
4.
5.
6.
7.
(a) Job skill development to prepare participants to be successful in the 21st century workforce;
(b) Community skill development to help participants acquire an ethic of service to others and learn to become better resource and community stewards; and
(c) A connection, improvement, or restoration of the natural or cultural/urban environment or a greater understanding of our natural, cultural, or historic resources.
8.
Through this “notice of interest” process, all respondents that currently meet each of the criteria listed in all 21CSC principles will be designated as a 21CSC member organization. Designation as a 21CSC member organization is not a commitment of funding or future partnership opportunities; however, this designation may result in the following benefits to and limitations for member organizations and the Federal agencies represented on the 21CSC National Council.
Access to a national network of 21CSC member organizations.
1. Identification on a government Web site as a 21CSC member organization.
2. Ability to utilize the 21CSC logo to promote affiliation as a member organization.
3. Participation and/or acknowledgement in a rollout and launch of 21CSC in the Fall 2013.
4. Career and youth development opportunities with Federal agencies for participants of member organizations, where available.
5. Inclusion with outreach to Public Lands Service Corps programs about Federal partnership and employment opportunities.
6. Opportunities to participate in webinars and other outreach to agency field staff to increase awareness of how agency natural, cultural, or historic resource management needs can be supported or met by youth and veterans conservation corps, where appropriate.
7. Neither this announcement, nor letters of interest submitted in response to this announcement, obligates any Federal agency represented on the 21CSC National Council to enter into a contractual agreement with any respondent.
8. Federal agencies represented on the 21CSC National Council reserve the right to establish a partnership based on organizational priorities and capabilities found by way of this announcement or other searches, if determined to be in the best interest of the government.
9. This Notice does not preclude any Federal agencies from entering into agreements or partnerships with non-21CSC organizations.
Forest Service, USDA.
Notice of meeting.
The Ravalli County Resource Advisory Committee will meet in Hamilton, MT. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to provide information regarding the monitoring of RAC projects.
The meeting will be held July 23, 2013 6:30 p.m.
The meeting will be held at the Bitteroot National Forest Supervisor's Office located at 1801 N. 1st, Hamilton, MT. Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Bitteroot National Forest Supervisor's
Dan Ritter, Stevensville District Ranger at 406-777-5461 or Joni Lubke, Executive Assistant at 406-363-7100. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed For Further Information.
The following business will be conducted: Review status of funded RAC projects and an update on campground beetle projects. Contact Joni Lubke at 406-363-7100 for a full agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before the meeting. Individuals wishing to make an oral statement should request in writing by July 8, 2013 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Joni Lubke at 1801 N. 1st, Hamilton, MT 59840 or by email to
Office of the Secretary, U.S. Department of Commerce.
Notice of Extension of Public Comment Period.
Pursuant to the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf States Act (RESTORE Act), the Secretary of Commerce, as Chair of the Gulf Coast Ecosystem Restoration Council (Council), announces the extension of the public comment period for the Draft Initial Comprehensive Plan (Draft Plan) to restore and protect the Gulf Coast region and the Draft Programmatic Environmental Assessment (Draft PEA) for the Draft Plan. Council Members also have compiled preliminary lists of ecosystem restoration projects that are “authorized but not yet commenced” and the full Council is in the process of evaluating these lists; the Council announces the availability of these preliminary lists. If you previously submitted comments, please do not resubmit them because the Council has already incorporated them into the public record and will fully consider them.
To ensure consideration, we must receive your written comments by July 8, 2013.
You may submit comments on the Draft Plan, the preliminary lists of “authorized but not yet commenced” ecosystem restoration projects, and Draft PEA by either of the following methods:
•
•
The Council can be reached at
On May 29, 2013, we published a
The Council is seeking public and tribal comment on all aspects of the Draft Plan. In particular, the Council seeks public and tribal comment on the following:
(1) The Draft Plan includes restoration Priority Criteria established in the RESTORE Act and applicable to the Council's selection of projects and programs for the first three years after publication of the Initial Comprehensive Plan. The Council is considering further defining these criteria and developing additional criteria for consideration.
a. Should the Council further define the Priority Criteria? If so, how?
b. Should the Council develop additional criteria for consideration now or in the future? If so, what should they be?
(2) The “Objectives” section of the Draft Plan describes the broad types of activities the Council envisions funding in order to achieve its ecosystem restoration goals.
a. Should the Council consider other Objectives at this juncture? If not, at what point, if any, should the Council consider additional Objectives? If so, what should they be?
b. Similarly, should the Council eliminate any of the Objectives? If so, what effect will elimination of the Objective(s) have on the Council's ability to ensure a regional ecosystem approach to restoration?
c. How should the Council prioritize its restoration Objectives?
(3) The Council is considering establishing or engaging advisory committees as may be necessary, such as a citizens' advisory committee and/or a science advisory committee, to provide input to the Council in carrying out its responsibilities under the RESTORE Act.
a. Should the Council establish any advisory committees?
b. If so, what type of advisory committees should the Council establish? How should the Council structure such advisory committees? What role should such advisory committees play?
In accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4335, and the Council on Environmental Quality's regulations implementing NEPA, 40 C.F.R. Parts 1500-1507, the Council has prepared a Draft PEA on the Draft Plan. The Council is also seeking public comment on all aspects of the Draft PEA in addition to all aspects of the Draft Plan and the preliminary list of “authorized but not yet commenced” ecosystem restoration projects compiled by Council Members.
Document Availability: Copies of the Draft Plan, the preliminary list of “authorized but not yet commenced” projects and programs, and Draft PEA are available at the following office during regular business hours: Department of Commerce, 1401 Constitution Avenue NW., Room 4077, Washington, DC 20230. Electronic versions of the documents can be viewed and downloaded at
The statutory program authority for the Draft Initial Comprehensive
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Port of Houston Authority, grantee of FTZ 84, requesting authority to expand FTZ 84 to include additional sites in Harris County, Texas. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on June 25, 2013.
FTZ 84 was approved on July 15, 1983 (Board Order 214, 48 FR 34792, 8/1/83). The zone was expanded on December 24, 1991 (Board Order 551, 57 FR 42, 1/2/92), on December 23, 1993 (Board Order 670, 59 FR 61, 1/3/94), on August 24, 2000 (Board Order 1115, 65 FR 54197, 9/7/00), on March 21, 2003 (Board Order 1271, 68 FR 15431, 3/31/03), on May 14, 2003 (Board Order 1277, 68 FR 27987, 5/22/03), and on April 24, 2009 (Board Order 1611, 74 FR 27777-27778, 6/11/09).
FTZ 84 currently consists of 25 sites (2,756.74 acres total) at port facilities, industrial parks and warehouse facilities in Houston and the Harris County area. The sites—which are in Houston unless otherwise stated—are as follows:
The applicant is requesting authority to expand the zone to include the following sites:
In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the Board.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is August 30, 2013. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to September 16, 2013.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
Schering-Plough Products, L.L.C. (Schering-Plough), operator of Subzone 7G, submitted a notification of proposed production activity to the FTZ Board for its facility in Las Piedras, Puerto Rico. The notification conforming to the requirements of the regulations of the
Schering-Plough currently has authority to produce certain pharmaceutical products and their intermediates within Subzone 7G. The current request would add the production of suvorexant pharmaceutical tablets for the treatment of insomnia using a proprietary active ingredient, an orexin receptor antagonist, to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status material and the specific finished product listed in the submitted notification described here and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Schering-Plough from customs duty payments on the foreign status material used in export production. On its domestic sales, Schering-Plough would be able to choose the duty rate during customs entry procedures that applies to the suvorexant tablets (duty-free) for the additional foreign-status active ingredient (duty rate, 6.5%) and for the foreign status inputs in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is August 12, 2013.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
Diane Finver at
Import Administration, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in August 2013 and will appear in that month's Notice of Initiation of Five-Year Sunset Review (“Sunset Review”).
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in the Department's Policy Bulletin 98.3—
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on polyvinyl alcohol (PVA) from Taiwan for the period March 1, 2012, through February 28, 2013.
Bryan Hansen or Minoo Hatten, AD/CVD Operations Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3683 and (202) 482-1690 respectively.
On March 1, 2013, we published a notice of opportunity to request an administrative review of the antidumping duty order on PVA from Taiwan for the period of review March 1, 2012, through February 28, 2013.
On May 24, 2013, CCPC withdrew its request for an administrative review.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” CCPC withdrew its request for review within the 90-day time limit. Because we received no other requests for review of CCPC and no other requests for the review of the order on PVA from Taiwan with respect to other companies subject to the order, we are rescinding the administrative review of the order in full. This rescission is in accordance with 19 CFR 351.213(d)(1).
Accordingly, the Department intends to issue appropriate assessment instructions to U.S. Customs and Border Protection 15 days after publication of this notice.
This notice serves as a final 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 Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under 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 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).
Import Administration, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating five-year reviews (“Sunset Reviews”) of the antidumping and countervailing duty (“AD/CVD”) orders listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
DATES
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping duty orders:
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Internet Web site at the following address: “
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department published
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties to apply for access to proprietary information under administrative protective order (“APO”) immediately following publication in the
Domestic interested parties defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b) wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218 (c).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to National Marine Fisheries Service's Northeast Fisheries Science Center (NEFSC), 166 Water Street, Woods Hole, Massachusetts 02543 [Responsible Party: William Karp; Principal Investigator: Peter Corkeron] to conduct research on marine mammals and sea turtles.
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376;
Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281-9328; fax (978) 281-9394; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824-5312; fax (727) 824-5309.
Kristy Beard or Carrie Hubard, (301) 427-8401.
On September 20, 2012, notice was published in the
A five-year permit was issued to conduct scientific research on 38 species of cetaceans, four species of pinnipeds, and five species of sea turtles in the U.S. EEZ from Florida to Maine and Canadian waters in the Bay of Fundy and Scotian Shelf. Thirteen of the 47 species to be targeted for research are listed as threatened or endangered: blue whale (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Jeffrey Schmid, Ph.D., Conservancy of Southwest Florida, 1450 Merrihue Drive, Naples, FL 34102, has applied in due form for a permit to take Kemp's ridley (
Written, telefaxed, or email comments must be received on or before July 31, 2013.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824-5312; fax (727) 824-5309.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division
• By email to
• By facsimile to (301) 713-0376, or
• At the address listed above.
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Amy Hapeman or Rosa L. González, (301) 427-8401.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant requests a five-year research permit to assess aggregations of marine turtles inhabiting the coastal waters of Charlotte Harbor and the Ten Thousand Islands in southwest Florida. Researchers would capture up to 100 Kemp's ridley, 20 green, 30 loggerhead, and five hawksbill sea turtles annually by strike net and perform the following procedures before release: measure, photograph, flipper and passive integrated transponder tag, weigh, and skin, scute and blood sample. A subset of the Kemp's ridleys would be transported to a facility and held for up to 48 hours for fecal collection for diet analysis prior to release. A subset of Kemp's ridleys and loggerheads also would have a satellite transmitter or radio and sonic transmitters attached to the carapace and would be tracked after release to investigate sea turtle migrations, movements, home range, and habitat associations.
Committee for the Implementation of Textile Agreements (CITA).
Amending the 2013 TPL for Nicaragua.
Dates:
This notice reduces the 2013 TPL for Nicaragua to 98,447,866 square meters equivalent to account for the shortfall in meeting the one-to-one commitment for cotton and man-made fiber woven trousers exported from Nicaragua to the United States
Richard Stetson, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-2582.
Annex 3.28 of the CAFTA-DR; Section 1634(a)(2) and (c)(2) of the Pension Protection Act of 2006 (Pub. L. 109-280); Presidential Proclamation 8111 of February 28, 2007.
In an exchange of letters dated March 24 and 27, 2006, Nicaragua agreed that for each square meter equivalent (SME) of exports of cotton and man-made fiber woven trousers entered under the TPL, Nicaragua would export to the United States an equal amount of cotton and man-made fiber woven trousers made of U.S. formed fabric of U.S. formed yarn. Any shortfall in meeting this commitment that was not rectified by April 1 of the succeeding year would be applied against the TPL for the succeeding year. For 2012, the shortfall in meeting the one-to-one commitment is 1,552,134 square meters equivalent. This amount is being deducted from the 2013 TPL, resulting in a new TPL level for 2013 of 98,447,866 square meters equivalent.
Notice; correction.
This document corrects the heading to a notice published in the
In the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities—State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind Notice inviting applications for new awards for fiscal year (FY) 2013.
Applications Available: July 1, 2013.
Deadline for Transmittal of Applications: August 15, 2013.
This priority is:
The purpose of this priority is to support State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and to support a National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind. The State Technical Assistance Projects will help State educational agencies (SEAs), Part C lead agencies (LAs), local educational agencies (LEAs), early intervention services (EIS) providers, teachers, service providers, and families to address the educational, related services, transitional, and early intervention needs of children who are deaf-blind to ensure that these children will graduate from high school ready for college and a career.
The National Technical Assistance Center will provide technical assistance and support to the State Technical Assistance Projects in addressing these needs, including by working in concert with States' Deaf-Blind Technical Assistance Projects, as appropriate, to provide specialized TA, training, dissemination, and informational services to agencies and organizations, professionals, families, and others involved in providing services to children who are deaf-blind.
The Individuals with Disabilities Education Act (IDEA) requires that the Secretary reserve a portion of IDEA Part D funds each year to address the needs of children with deaf-blindness (see section 682(d)(1)(A) of IDEA, 20 U.S.C. 1482(d)). Authorized activities include providing TA to professionals and others involved in providing services that promote academic achievement and improved results for children who are deaf-blind. The services to be provided include TA on implementing evidence-based practices to schools and agencies serving children who are deaf-blind and their families to improve educational results and functional outcomes. For purposes of this notice, the term “children who are deaf-blind” refers to infants, toddlers, children, youth, and young adults (birth-21) who are deaf-blind.
Children who are deaf-blind are among the most vulnerable, at-risk students because they have varying degrees of hearing and vision loss that is often complicated by other disabilities or health issues. In the early 1970s, children who were deaf-blind were primarily served in segregated programs in residential schools and State institutions.
Today, more than 60 percent of children who are deaf-blind attend local schools rather than separate schools or facilities. Sixty-five percent of elementary school-age children who are deaf-blind spend at least a portion of their day in a regular classroom in their local school (National Consortium on Deaf-Blindness, 2012). As a result, direct, targeted, and intensive TA to staff in LEAs, schools, EIS providers, and classrooms is needed to ensure a free appropriate public education (FAPE) for children who are deaf-blind (Kamenopoulou, 2012).
Through the projects that the Office of Special Education Programs (OSEP) has supported and other research, we know that direct and intensive supports and services are critical in order for children who are deaf-blind to succeed in a general education environment. Although improvements have been made in recent years, many of the approximately 10,000 children who are deaf-blind remain isolated and disconnected from people and activities in their homes, schools, and communities because they are not provided the individualized supports necessary to access visual and auditory information and overcome other barriers to social inclusion and participation (Kamenopoulou, 2012). Without these individualized supports to access visual and auditory information (i.e., environmental information, such as who is present, what is being said, and what activities are occurring), children who are deaf-blind are at greater risk for not attaining age-appropriate milestones in communication and language, social skills, and activities of daily living, which in turn affects their educational outcomes (Emerson & Bishop, 2012). Consequently, children who are deaf-blind often exit school at age 22 without viable postsecondary educational opportunities, employment, or independent living options (Smale, 2010).
Further, because deaf-blindness is a very low-incidence disability, most SEAs, LEAs, LAs, and EIS providers lack the necessary program supports and services, and sufficient personnel with the specialized training, experience, and skills, needed to provide appropriate early intervention, special education, and related services to children who are deaf-blind (Bruce, 2007; National Center on Severe and Sensory Disabilities, 2009; National Center on Low-Incidence Disabilities, 2005). In addition, because children who are deaf-blind are living at home instead of in residential settings, their
Following the enactment of IDEA in 1975, OSEP developed a national TA system comprised of State Deaf-Blind Technical Assistance Projects that was designed to ensure that support was available for children who are deaf-blind and who attended their local schools.
In 2008, the Department funded 51 five-year State Deaf-Blind Technical Assistance Projects to facilitate collaborative partnerships among family members of children who are deaf-blind; early intervention, special and regular education, and related services personnel; and SEAs, LEAs, LAs, and EIS providers to develop and implement individualized supports designed to improve children's educational results and functional outcomes.
In concert with the National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind (National Center), this direct, targeted, and intensive TA provided by State Deaf-Blind Technical Assistance Projects to EIS providers, LEAs, schools, and classrooms has helped to ensure that family members, EIS providers, special and regular education teachers, and related services personnel have access to the specialized training and tools needed to address the early intervention, educational, related services, and secondary transition needs of children who are deaf-blind.
In 2006, the Department funded the National Center to provide specialized TA, training, dissemination, and informational services to State Deaf-Blind Technical Assistance Projects. In 2011, the Secretary extended the grant to the National Center for an additional two years. Working in concert with State Deaf-Blind Technical Assistance Projects, the National Center provides specialized training and other supports for SEAs, LAs, families of children who are deaf-blind, and other agencies and organizations that are responsible for providing early intervention, special education, related services, and secondary transition services for children through age 26 who are deaf-blind (Notice Inviting Applications for New Awards for FY 2006; 70 FR 76040).
The National Center's activities have led to improvements in direct, targeted, and intensive TA services. In cooperation with the Department, the National Center developed training for State Deaf-Blind Technical Assistance Project staff in order to increase their participation in a collaborative network of State deaf-blind TA projects. Using advances in communication and social media, the National Center further facilitated, in collaboration with the State Deaf-Blind Technical Assistance Projects, the delivery of TA and training by providing critical tools for teachers and service providers to use at the classroom level. For further information on the current National Center, go to
This priority seeks to build upon the work of the State Deaf-Blind Technical Assistance Projects and the National Center to further improve services and results for children who are deaf-blind. Specifically, through this priority, our goal is to: Ensure the delivery of high-quality TA and training to personnel in schools, classrooms, and EIS providers where children who are deaf-blind are served to improve their academic and social outcomes; empower children who are deaf-blind to engage in self-advocacy so that they are better positioned for independent living; increase the ability of SEAs, LEAs, LAs, EIS providers, and other agencies to use evidence-based practices to improve outcomes for children who are deaf-blind; increase the ability of SEAs, LEAs, LAs, EIS providers, and other agencies to identify and adopt effective policies and practices to appropriately identify and serve children who are deaf-blind; and ensure that data are gathered and reported to the National Center for the annual National Child Count of children who are deaf-blind.
For the first time, we will also be allowing eligible entities to compete to serve multi-State regions. We hope to improve both the quality of the TA and other services provided through these projects and the efficiency with which the services are provided by giving States the flexibility to apply directly for funding, as they have in the past, to participate as a member of a multi-State consortium, or to participate in a regional TA project.
For the purpose of this competition, we have separated the absolute priority into two focus areas—State and Multi-State Technical Assistance Projects (Focus Area A) and a National Technical Assistance and Dissemination Center (Focus Area B). Applicants must identify whether they are applying under Focus Area A, Focus Area B, or both. As the program and application requirements for the two focus areas are different, applicants must ensure that they have met all applicable requirements.
Under Focus Area A, the Department will fund grants to establish and operate State or multi-State Deaf-Blind Technical Assistance Projects (projects) to improve services and results for children who are deaf-blind. Grants are available to support projects in all States. The District of Columbia, Puerto Rico, the United States Virgin Islands, and the outlying areas and freely associated States are States for purposes of this priority. Because the Bureau of Indian Affairs is not a State, it will not be eligible for a State grant under this priority. Funds awarded under this priority may not be used to provide direct early intervention services under Part C of IDEA, or direct special education and related services under Part B of IDEA.
Projects funded under this priority must, at a minimum: (1) Deliver TA and training necessary to improve outcomes for children who are deaf-blind to personnel in the schools, classrooms, or EIS providers, where a child who is deaf-blind is served; (2) through collaboration with the federally funded Parent Centers (National and Regional Parent Technical Assistance Centers, Parent Training and Information Centers and Community Parent Resource Centers), provide training and supports to families of children who are deaf-blind so that they can successfully advocate on behalf of their children and help ensure that their children are better positioned for independent living; (3) increase the ability of SEAs, LEAs, LAs, EIS providers, and other agencies to use evidence-based practices to improve outcomes for children who are deaf-blind, including ensuring that these children will graduate from high school ready for college and a career; (4) increase the ability of SEAs, LEAs, LAs, EIS providers, and other agencies to develop policies and practices to improve outcomes for children who are deaf-blind; and (5) provide data to the National Center for the annual National Child Count of children who are deaf-blind.
In addition to these programmatic requirements, to be considered for funding under Focus A of this absolute priority, applicants must meet the following application and administrative requirements. We encourage innovative approaches to meet them:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will—
(1) Provide EIS providers; special education teachers; regular education teachers; related services personnel; and SEA, LEA, LA, and EIS provider administrators with the training and information needed to develop and implement individualized supports to ensure that children who are deaf-blind have access to the general education curriculum and will graduate from high school ready for college and a career;
(2) Ensure that family members of children who are deaf-blind have the training and information needed to maintain and improve productive partnerships with service providers.
To address the requirements of paragraphs (1) and (2), the applicant must—
(i) Describe applicable State, regional, or local data (and, in the case of an application for a consortium or region, data for each State that the consortium or region proposes to serve) demonstrating the applicant's knowledge of the training and information needs of EIS providers, special and regular education teachers, related services personnel, and family members identified in paragraphs (1) and (2), taking into account the critical needs of the diverse deaf-blind population and the geographical distribution of children who are deaf-blind;
(ii) Demonstrate knowledge of current educational issues and policy initiatives in educating children who are deaf-blind, including any State-specific policy initiatives and how the applicant will support their implementation; and
(iii) Describe the current state of practice in implementing effective TA for SEAs, LEAs, LAs, and EIS providers and others who provide services that promote academic achievement and improved results for children who are deaf-blind.
(3) Improve educational outcomes for children who are deaf-blind, and the likely magnitude or importance of the outcomes.
(b) Demonstrate, in the narrative section of the application under “Quality of the Project Services,” how the proposed project will—
(1) Identify the TA and training needs of the intended recipients;
(2) Ensure that services meet the needs of the intended recipients and that any products are first approved by the OSEP project officer and then developed in coordination with the National Center;
(3) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measureable intended project outcomes; and
(ii) The theory of action (i.e., logic model) on how the proposed project will achieve its intended outcomes.
(4) Use a conceptual framework to guide the development of project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationship or linkages among these variables, and any empirical support for this framework;
(5) Be based on current research and evidence-based practices. To meet this requirement, the applicant must describe—
(i) The current research and evidence-based practices on ensuring access to the general education curriculum and improving educational results and functional outcomes for children who are deaf-blind, including graduating from high school ready for college and a career;
(ii) How the project will incorporate current research and evidence-based practices on effective training and professional development, and how the project will incorporate the training and TA to the family members and practitioners identified in paragraph (a); and
(iii) The process the proposed project will use to incorporate current research and evidence-based practices in the development and delivery of its products and services.
(6) Develop and provide services that are of sufficient quality, intensity, and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) Its proposed activities to identify or develop a knowledge base of evidence-based practices addressing the early intervention, related services, educational, transitional, and functional needs of children who are deaf-blind;
(ii) Its proposed approach to universal, general TA,
(iii) Its proposed approach to targeted, specialized TA,
(iv) Its proposed approach to intensive, sustained TA,
(A) Its proposed approach to measure the readiness of the SEAs, LEAs, LAs, EIS providers, and Parent Centers to work with the proposed project, including their commitment to the project initiatives, current infrastructure, available resources, ability to build supports for families, and ability to enable SEAs, LEAs, LAs, and EIS providers to provide TA and training to teachers, EIS providers, and other service providers;
(B) Its proposed plan for assisting LEAs and EIS providers to build professional development systems based on the current research and evidence-based practices on effective training and professional development; and
(C) Its proposed plan for working with individuals and entities at each level of the education system (e.g., SEAs, LEAs, LAs, EIS providers, schools, and families) to ensure communication among the different groups and that there are systems in place to support the use of best practices for educating children who are deaf-blind.
(7) Implement services in collaboration with the National Center to maximize effectiveness of the TA within the State(s) served. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the proposed project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration;
(iii) How the proposed project will use non-project resources to achieve the proposed project outcomes; and
(iv) How the applicant will facilitate States' ability to use and benefit from the National Center's initiatives, products, and TA, including those initiatives that cross regional and consortium boundaries.
(c) Demonstrate, in the narrative section of the application under “Quality of the Evaluation Plan,” how—
(1) The proposed project will collect and analyze data on specific and measurable goals, objectives, and outcomes of the project. To address this requirement, the applicant must describe—
(i) The proposed evaluation methodologies, including instruments, data collection methods, and possible analyses;
(ii) The proposed standards or targets for determining effectiveness; and
(iii) The proposed methods for collecting data on implementation supports and fidelity of implementation.
(2) The proposed project will use the evaluation results to examine the effectiveness of the project's implementation strategies and the progress toward achieving intended outcomes; and
(3) The methods of evaluation will produce quantitative and qualitative data that demonstrate whether the project achieved the intended outcomes.
(d) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, linguistic diversity, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as appropriate; and
(ii) Timelines and milestones for accomplishing the project tasks.
(2) Key project personnel, and any consultants and subcontractors, will be allocated to the project and the appropriateness and adequacy of these time allocations to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality;
(4) The proposed project will benefit from a diversity of perspectives, including families, educators, TA providers, researchers, and policy makers, among others, in its development and operation;
(5) If applicable, the members of a consortium or region will receive appropriate services; and
(6) If applicable, the proposed project will ensure that the distribution of resources is equitable within a consortium or region.
(f) In the narrative under “Required Project Assurances” or appendices as directed, meet the following application requirements—
(1) Include in Appendix A a logic model that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project. A logic model communicates how a project will achieve its intended outcomes and provides a framework for both the formative and summative evaluations of the project.
The following Web sites provide more information on logic models:
(2) Include in Appendix A a visual representation of the conceptual framework, if a visual representation is developed;
(3) Include in Appendix A charts and timelines, as appropriate, to illustrate the management plan described in the narrative;
(4) Include in the budget attendance at the following:
(i) A one-day planning meeting preceding the project directors' conference held in Washington, DC, in coordination with the National Center and an annual planning meeting with the OSEP project officer and other relevant staff during each subsequent year of the project period;
(ii) A two and one-half day project directors' conference in Washington, DC, during each year of the project period.
(5) Maintain a Web site that meets government or industry-recognized standards for accessibility.
Any entity applying to provide services for a region is required to propose to serve all of the States in the region. This regional applicant must notify the SEAs in each of the States in the region of its intention to apply for funding, but is not required to obtain approval from all of the SEAs in the region in order to be eligible to apply for funding. A State may choose to be served by the regional applicant in order to participate in the program, or may apply for funding as part of a multi-State consortium or by itself, as discussed in more detail below. Individual States would not have to submit applications if they opted to be served by the regional applicant.
States are also invited to form consortia to apply for funding under Focus Area A of this priority in accordance with EDGAR in 34 CFR 75.127 to 75.129. A consortium may be comprised of any group of States and would not be bound by the previously described predefined regions.
Under Focus Area B, the Department will fund a cooperative agreement to establish and operate a National Center on Deaf-Blindness that must, at a minimum: (1) Increase the ability of State and multi-State deaf-blind projects to assist personnel in SEAs, LEAs, LAs, and EIS providers to use evidence-based practices and products to improve outcomes for children who are deaf-blind; (2) develop evidence-based tools and broadly disseminate evidence-based tools to State or multi-State deaf-blind projects and individuals and entities at each level of the education system to improve outcomes for children who are deaf-blind; (3) in collaboration with the Parent Centers, increase the ability of State or multi-State deaf-blind projects to provide training and supports to families of children who are deaf-blind so that they can successfully advocate on behalf of their children and help ensure that their children are better positioned for independent living; (4) enable State or multi-State deaf-blind projects to develop policies and practices to improve outcomes for children who are deaf-blind; and (5) conduct an annual National Child Count of children who are deaf-blind, ensuring that accurate data to inform practice is presented in a way that is useful to States.
To be considered for funding under Focus B of this absolute priority, applicants must meet the application
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will work collaboratively with the State Technical Assistance Projects to—
(1) Ensure that State and multi-state deaf-blind projects, SEAs, LEAs, LAs, EIS providers, and organizations serving family members of children who are deaf-blind have the training and information needed to enable them to maintain and improve productive partnerships with EIS providers, special education teachers, regular education teachers, and related services personnel; and
(2) Provide State and multi-State deaf-blind projects, SEAs, LEAs, LAs, EIS providers, and organizations serving family members of children who are deaf-blind with the training and information needed to ensure that EIS providers; special education teachers; general education teachers; related services personnel; and SEA, LEA, LA, and EIS provider personnel have the skills to develop and implement individualized supports to ensure children who are deaf-blind have access to the general education curriculum and graduate from high school ready for college and a career.
To address the requirements of paragraphs (1) and (2) the applicant must—
(i) Describe applicable national, State, regional, or local data demonstrating knowledge of the training and information needs of family members and EIS providers, special education teachers, regular education teachers, and related services personnel, taking into account the critical needs of the diverse deaf-blind population, the geographical distribution of children who are deaf-blind, and the placement opportunities for these children in inclusive settings;
(ii) Demonstrate knowledge of current educational issues and policy initiatives in educating children who are deaf-blind; and
(iii) Present information about the state of implementation of effective TA systems in SEAs, LEAs, LAs, and EIS providers serving professionals and others involved in providing services that promote academic achievement and improved results for children who are deaf-blind; and
(3) Result in improved educational outcomes for children who are deaf-blind, and the likely magnitude or importance of the outcomes.
(b) Demonstrate, in the narrative section of the application under “Quality of the Project Services,” how the proposed project will—
(1) Identify the needs of the intended recipients of TA and training;
(2) Ensure that services and products meet the needs of the intended recipients;
(3) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measureable intended project outcomes; and
(ii) The theory of action (i.e., logic model) on how the proposed project will achieve its intended outcomes.
(4) Use a conceptual framework to guide the development of project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories; the presumed relationship or linkages among these variables; and any empirical support for this framework;
(5) Be based on current research and evidence-based practices. To meet this requirement, the applicant must describe—
(i) The current research and evidence-based practices on ensuring access to the general education curriculum and improving educational results and functional outcomes for children who are deaf-blind, including graduating from high school ready for college and a career;
(ii) How the proposed project will incorporate the current research and evidence-based practices on effective training and professional development to support training and TA to the family members and practitioners identified in paragraph (a); and
(iii) The process the proposed project will use to incorporate current research and evidence-based practices in the development and delivery of its products and services;
(6) Develop products and provide services that are of sufficient quality, intensity, and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) Its proposed activities to identify or develop a knowledge base of evidence-based practices addressing the early intervention, related services, educational, transitional, and functional needs of children who are deaf-blind;
(ii) Its proposed approach to universal, general TA,
(iii) Its proposed approach to targeted, specialized TA,
(iv) Its proposed approach to intensive, sustained TA,
(A) Its proposed approach to measure the readiness of State or multi-State deaf-blind projects to work with the proposed project, including their commitment to the project initiatives, current infrastructure, available resources, ability to build supports for families, and build skills of the LEAs and EIS providers to provide TA and training to teachers, EIS providers, and other service providers;
(B) Its proposed plan for assisting State or multi-State deaf-blind projects to build professional development systems for SEAs, LEAs, LAs, and EIS providers based on the current research and evidence-based practices on effective training and professional development; and
(C) Its proposed plan for working with individuals and entities at each level of the education system (e.g., SEAs, LAs, Regional Resource Centers, Regional Comprehensive Centers, LEAs, EIS providers, schools, and families) to ensure communication among the different groups and that there are systems in place to support the use of
(7) Develop products and implement services to maximize the effectiveness of the TA. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the proposed project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration; and
(iii) How the proposed project will use non-project resources to achieve the proposed project outcomes.
(c) Demonstrate, in the narrative section of the application under “Quality of the Evaluation Plan,” how—
(1) The proposed project will collect and analyze data on specific and measurable goals, objectives, and outcomes of the project in addressing the educational, related services, transitional, and early intervention needs of children who are deaf-blind to ensure that these children will graduate from high school ready for college and a career. To address this requirement, the applicant must describe—
(i) The proposed evaluation methodologies, including instruments, data collection methods, and possible analyses;
(ii) The proposed standards or targets for determining effectiveness; and
(iii) The proposed methods for collecting data on implementation supports and fidelity of implementation.
(2) The proposed project will use the evaluation results to examine the effectiveness of the project's implementation strategies and the progress toward achieving intended outcomes; and
(3) The methods of evaluation will produce quantitative and qualitative data that demonstrate whether the project achieved the intended outcomes.
(d) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—
(1) The proposed project will ensure equal access and treatment in employment of persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, linguistic diversity, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as appropriate; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel, and any consultants and subcontractors, will be allocated to the project and the appropriateness and adequacy of these time allocations to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality;
(4) The proposed project will dedicate at least one full-time staff member to evaluating the ongoing efforts of State and multi-State projects to ensure children who are deaf-blind have access to the general education curriculum and will graduate from high school ready for college and a career; and
(5) The proposed project will benefit from a diversity of perspectives, including families, educators, TA providers, researchers, and policy makers, among others, in its development and operation.
(f) In the narrative under “Required Project Assurances” or appendices as directed, meet the following application requirements—
(1) Include in Appendix A a logic model that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project. A logic model communicates how a project will achieve its intended outcomes and provides a framework for both the formative and summative evaluations of the project.
The following Web sites provide more information on logic models:
(2) Include in Appendix A a visual representation of the conceptual framework, if a visual representation is developed;
(3) Include in Appendix A charts and timelines, as appropriate, to illustrate the management plan described in the narrative;
(4) Include in the budget attendance at the following:
(i) A one and one-half day kick-off meeting to be held in Washington, DC, after receipt of the award, and an annual planning meeting in Washington, DC, with the OSEP project officer and other relevant staff, during each subsequent year of the project period.
Within 30 days of receipt of the award, a post-award teleconference must be held between the OSEP project officer and the grantee's project director or other authorized representative;
(ii) A two and one-half day project directors' conference in Washington, DC, during each year of the project period;
(iii) One trip annually to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP; and
(iv) A one-day intensive review meeting that will be held during the last half of the second year of the project period.
(5) Include in the budget a line item for an annual set-aside of five percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with OSEP.
With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period; and
(6) Maintain a Web site that meets government or industry-recognized standards for accessibility.
In deciding whether to continue funding the project for Focus Area B for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), as well as—
(a) The recommendation of a review team consisting of experts selected by the Secretary. This review will be conducted during a one-day intensive meeting in Washington, DC, that will be held during the last half of the second year of the project period;
(b) The timeliness and effectiveness with which all requirements of the negotiated cooperative agreement have been or are being met by the project; and
(c) The quality, relevance, and usefulness of the project's activities and products and the degree to which the project's activities and products are aligned with the project's objectives and likely to result in the project achieving its proposed outcomes.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2014 from the list of unfunded applicants from this competition.
(1) The total number of children from birth through age 21 in the State.
(2) The number of people in poverty in the State.
(3) The previous funding levels.
(4) The maximum and minimum funding amounts.
We will reject an application under Focus Area A of the priority under any of the following circumstances:
(a) A State project that proposes a budget exceeding the funding level listed in this notice for that State for any single budget period of 12 months.
(b) An application for a region that does not include every State specified for that region as described under the Focus Area A priority in this notice.
(c) An application for a region that includes States outside of the predetermined regions as described under the Focus Area A priority in this notice.
(d) An application for a region or consortium that proposes a budget exceeding the funding level for any single budget period of 12 months of the combined funding for each State member of the region or consortium as specified in the
We will reject an application under Focus Area B of the priority under any project that proposes a budget exceeding the funding level listed in this notice for any single budget period of 12 months.
The Assistant Secretary for Special Education and Rehabilitative Services may change the maximum amount through a notice published in the
Focus Area B: 1.
The Department is not bound by any estimates in this notice.
1.
With respect to Focus Area A of the priority, in order to provide SEAs with greater flexibility in how TA is
Region 1: Connecticut, Massachusetts, Maine, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont;
Region 2: District of Columbia, Delaware, Kentucky, Maryland, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia;
Region 3: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Oklahoma, Puerto Rico, Texas, and the Virgin Islands;
Region 4: Iowa, Illinois, Indiana, Michigan, Minnesota, Missouri, Ohio, and Wisconsin;
Region 5: Arizona, Colorado, Kansas, Montana, North Dakota, Nebraska, New Mexico, South Dakota, Utah, and Wyoming;
Region 6: Alaska, California, Hawaii, Idaho, Nevada, Oregon, Washington, American Samoa, Guam, the Commonwealth of the Northern Marianas, States of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.
Eligible applicants under Focus Area A of this priority are invited to submit single-State applications to provide deaf-blind TA services to individual States, as they have done in the past. If a State is included in more than one application as a member of a consortium or predefined region or submits an individual State application, and more than one application is determined to be fundable for the State, the State will be given the option under which award (individual State, consortium, or region) it will receive funding. It may not be funded under multiple awards. If a State(s) chooses not to participate in a predetermined region, the predetermined region's funding would be reduced by the amount of the award(s) that would be made for the individual State(s) application. The maximum level of funding for a consortium or region will reflect the combined total that the eligible entities comprising the consortium or region would have received if they had applied separately. For States within consortia or regions, no State will be permitted to receive less services or supports than it would have received under a previously held Deaf-Blind State grant.
2.
3.
(b) Each applicant for, and recipient of, funding under this program must involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.326T.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under
2.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit Part III to the equivalent of no more than 70 pages using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of Part III.
We will reject your application if you exceed the page limit; or if you apply other standards and exceed the equivalent of the page limit.
3.
Deadline for Transmittal of Applications: August 15, 2013.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV.
7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The SAM registration process may take seven or more business days to complete. If you are currently registered with the SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days to complete. Information about SAM is available at SAM.gov.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind competition, CFDA number 84.326T, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Jo Ann McCann, U.S. Department of Education, 400 Maryland Avenue SW., Room 4076, Potomac Center Plaza (PCP), Washington, DC 20202-2600. FAX: (202) 245-7617.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326T) LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326T), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires
3.
4.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Grantees will be required to report information on their project's performance in annual reports to the Department (34 CFR 75.590).
5.
Jo Ann McCann, U.S. Department of Education, 400 Maryland Avenue SW., room 4076, PCP, Washington, DC 20202-2600. Telephone: (202) 245-7434.
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2013.
This priority is:
The Center will achieve these results by: (1) Compiling and disseminating accurate and current information on evidence-based AT and IT for families and providers in formats that are usable and accessible and that address the needs of diverse families and providers; (2) providing technical assistance (TA) to State educational agencies (SEAs) to enable SEAs to effectively increase the capacity of their local educational agencies (LEAs) to support families and providers in acquiring and implementing appropriate AT and IT; (3) providing TA to other projects funded by the Office of Special Education Programs (OSEP) to enable these projects to more effectively train families and providers on how to advocate for, acquire, and implement AT and IT for children with disabilities; and (4) providing TA to personnel development projects funded by OSEP to enable them to better prepare providers on effective AT and IT use by children with disabilities.
Almost 30 years of research and experience have demonstrated that supporting the development and use of AT and IT to maximize accessibility for children with disabilities can enhance the education and development of children with disabilities (section 601(c)(5)(H) of IDEA). With the increased use of appropriate AT and IT, more children with disabilities will to the maximum extent possible participate fully in daily routines in their natural environments, have access to the general education curriculum, be prepared to meet college- and career-ready standards, and lead productive and independent adult lives.
Providers play a key role in ensuring that AT and IT are used effectively by children with disabilities. However, research shows that these providers often lack knowledge about AT and IT; and, furthermore, this lack of knowledge has been identified as a critical barrier to effective technology use by children with disabilities (Smith & Robinson, 2003; Lee & Vega, 2005; Bausch, Ault, Evmenova, & Behrmann, 2008; Zhou, Parker, Smith, & Griffin-Shirley, 2011; U.S. Department of Education, 2010). Families also often lack knowledge of effective AT and IT, and how they can support their children's use of AT and IT. Informed parents actively involved in their children's development and education contribute significantly to positive educational outcomes (Caspe & Lopez, 2006). Studies suggest that parents of children with disabilities want to be involved in planning AT and IT for their children (Long, Huang, Woodbridge, Woolverton, & Minkel, 2003; Parette & McMahan, 2002; Lee & Templeton, 2008) and that a lack of family involvement may lead to misuse and disuse of AT and IT (Alper & Raharinirina, 2006; Zabala & Carl, 2005).
To increase their knowledge of effective, evidence-based AT and IT and to actively support children's use of AT and IT, both families and providers need ongoing, reliable, accurate, and current information (Marino, Marino, & Shaw, 2006). The information must help families and providers make sense of the rapid proliferation of new technologies, products, and approaches developed for all users and specifically for children with disabilities. The
Knowledge alone, however, is not enough to build capacity and increase the effective use of AT and IT. The Center will also develop a comprehensive approach to providing TA that uses strategies built on the most current evidence base for effective AT and IT use. These strategies will increase the capacity of families and providers to advocate for, acquire, and implement effective AT and IT for children with disabilities to help them participate fully in daily routines in their natural environments, increase their access to the general education curriculum, improve their functional outcomes and educational results, and meet college- and career-ready standards. These strategies are:
First, the Center will build support for scaling up effective practices in LEAs and individual schools through the provision of targeted TA
Second, the Center will provide targeted TA to OSEP-funded projects, including Parent Training and Information Centers (PTIs) and Community Parent Resource Centers (CPRCs), to increase the projects' capacity to provide effective training on AT and IT to families, as well as collaborate with providers to foster the effective implementation of AT and IT (Edyburn, 2004).
And third, the Center will provide targeted TA to personnel development projects funded under the Personnel Preparation program authorized under section 662 of IDEA to increase their capacity to prepare providers on the effective use of AT and IT with children with disabilities. One of the objectives of the Personnel Preparation program is to ensure that projects provide training to early intervention and special education personnel, including administrators, on the use of new technologies (section 662(a)(6)(A) of IDEA). Personnel development projects also need to improve the AT and IT content they provide in order to reduce providers' knowledge gaps (Chesley & Jordan, 2012; Manning & Carpenter, 2008). The Center will provide targeted TA to personnel development projects to better enable them to prepare providers on the effective use of AT and IT with children with disabilities.
The purpose of this priority is to fund a cooperative agreement to support the establishment and operation of a Center on Technology and Disability. The Center will increase the capacity of families and providers to advocate for, acquire, and implement effective AT and IT to help children with disabilities participate fully in daily routines in their natural environments, have increased access to the general education curriculum, improve their functional outcomes and educational results, and meet college- and career-ready standards.
The Center must provide, at a minimum, the necessary TA to meet the following expected outcomes:
(a) Families and providers will have access to accurate and current information on evidence-based AT and IT for children with disabilities in formats that are relevant to their needs so that they can (1) Advocate for appropriate AT and IT; (2) participate effectively in planning, acquiring, and implementing AT and IT; and (3) make informed decisions about how resources should be spent.
(b) SEAs will increase their capacity to provide TA to LEAs so that LEAs can more effectively support families and providers in the acquisition and implementation of appropriate AT and IT in order to improve educational results and functional outcomes for children with disabilities.
(c) Other OSEP-funded projects, including PTIs and CPRCs, will increase their capacity to train families and providers so that they can effectively advocate for, acquire, and implement AT and IT for children with disabilities.
(d) OSEP-funded personnel development projects will increase their capacity to prepare providers to help children with disabilities use AT and IT more effectively.
To be considered for funding under this absolute priority, applicants must meet the application, programmatic, and administrative requirements specified in this priority.
The requirements of this priority are as follows:
(a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the project—
(1) Addresses families' and providers' need for useful, relevant, and current information and training on evidence-based AT and IT for children with disabilities. To address this requirement the applicant must—
(i) Demonstrate knowledge of the following:
(A) Evidence-based research and effective practices on AT and IT use by children with disabilities and providers;
(B) Information and training currently available on AT and IT through various sources;
(C) Federal and State TA currently available to LEAs on AT and IT; and
(ii) Identify gaps and weaknesses in the information and training on AT and IT that is currently available to SEAs, LEAs, OSEP-funded projects, families, and providers;
(2) Increases families' and providers' understanding of effective strategies to advocate for, acquire, and use appropriate AT and IT for children with disabilities. To address this requirement the applicant must—
(i) Demonstrate knowledge of best practices in providing information to families and providers;
(ii) Identify dissemination strategies that will enable more families and providers to efficiently acquire reliable and up-to-date information on AT and IT, as well as use the acquired information effectively, including families and providers who are underserved or have limited access to information; and
(iii) Identify effective strategies for providing TA to SEAs, LEAs, OSEP-funded projects, families, and providers; and
(3) Increases families' and providers' capacity to advocate for, acquire, and use appropriate AT and IT for children with disabilities.
(b) Demonstrate, in the narrative section of the application under “Quality of the Project Services,” how the project will—
(1) Use a conceptual framework and project logic model (see paragraph (f)(1)) to guide the development of project plans and activities describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationship or linkages among these variables, and any empirical support for this framework;
(2) Collect and evaluate information on AT and IT using consistent evidence standards, such as those used by the What Works Clearinghouse (see
(i) Address a variety of topics, including, but not limited to: emerging technologies; new and available AT and IT products; universally designed alternatives to traditional AT and IT; resources to help families and providers acquire AT and IT; and best practices in the selection, implementation, and use of AT and IT to benefit children with disabilities; and
(ii) Include current and archival information from other projects funded by the Department, such as grants funded under the Educational Technology, Media, and Materials for Individuals with Disabilities Program;
(3) Create new training and information materials for families and providers that—
(i) Synthesize reliable information about evidence-based AT and IT, including advancements in AT and IT;
(ii) Are accessible, usable, and easy for families and others to understand;
(iii) Are available in other languages and address the linguistic needs of English learners (ELs) with disabilities;
(iv) Respond to the changing needs of SEAs, LEAs, OSEP-funded projects, families, and providers; and
(v) Increase parents' and providers' knowledge of AT, IT, and effective practices in the use of technology to improve functional outcomes and educational results for children with disabilities;
(4) Provide universal TA,
(i) Meets the needs of multiple audiences, including, but not limited to: Families, families with limited English proficiency, parent service organizations, providers, administrators, professional organizations, SEAs, LEAs, lead agencies, professional training programs, AT and IT developers, vendors, and researchers;
(ii) Includes a variety of formats that are appropriate to the audience and to the nature of the information, such as Web sites, newsletters, guidebooks, research syntheses, conference presentations, and published articles, among others;
(iii) Uses various dissemination methods (in-person, remote, and Web-based, among others) to reach as many families and providers as possible;
(iv) Uses best practices for training and providing TA to adult learners; and
(v) Uses technology to increase the efficiency and effectiveness of the TA provided;
(5) Provide targeted TA to SEAs that—
(i) Increases SEAs' capacity to help LEAs to support families and providers in the acquisition and implementation of appropriate AT and IT by children with disabilities;
(ii) Includes a variety of formats, such as webinars, workshops, training modules, meetings, communities of practice, and wikis;
(iii) Uses various dissemination methods (in-person, remote, and Web-based, among others) to reach as many families and providers as possible;
(iv) Uses best practices for training and providing TA to adult learners;
(v) Uses technology to increase the efficiency and effectiveness of the TA provided; and
(vi) Makes use of existing knowledge and expertise within SEAs;
(6) Provide targeted TA to OSEP-funded personnel development projects, PTIs, CPRCs, and other projects that—
(i) Increases the projects' knowledge of AT and IT and their capacity to more effectively train families and providers on how to advocate for, acquire, and implement effective AT and IT for children with disabilities;
(ii) Uses a variety of formats, such as webinars, workshops, training modules, meetings, communities of practice, and wikis, among others;
(iii) Uses various dissemination methods (in-person, remote, and Web-based, among others) to reach as many families and providers as possible;
(iv) Uses best practices for training and providing TA to adult learners;
(v) Uses technology to increase the efficiency and effectiveness of the TA provided; and
(vi) Makes use of existing knowledge and expertise within personnel development projects, parent training and information centers, deaf-blind projects, TA centers, and State personnel development projects, among others;
(7) Collaborate with other projects and initiatives that can contribute to meeting the Center's outcomes, including, but not limited to: AbleData, [AT] Connects, State projects supported by the AT Act, and AT and IT vendors and researchers;
(8) Disseminate information about the Center's products and services in order to promote their use to improve outcomes for children with disabilities; and
(9) Consult with a group of persons, including, but not limited to: Representatives from OSEP-funded personnel development and other projects; SEAs, LEAs, and Part C lead agencies; providers and provider associations; families; people with disabilities; and researchers, as appropriate; on the activities and outcomes of the Center; and solicit programmatic support and advice from various participants in the group, as appropriate. The Center must identify the members of this group to OSEP, for its approval, within eight weeks following receipt of the award.
(c) Demonstrate, in the narrative section of the application under “Quality of the Evaluation Plan,” how—
(1) The applicant will evaluate the effectiveness of the proposed project by undertaking a formative evaluation and a summative evaluation, including a description of how the applicant will measure the outcomes proposed in the logic model (see paragraph (f)(1)). The description must include—
(i) Evaluation methodologies, including proposed instruments, data collection methods, evaluation questions, and possible analyses;
(ii) Proposed standards or targets for determining effectiveness; and
(iii) A proposed third-party evaluator to carry out the summative evaluation;
(2) The applicant will use the results of the formative evaluation to provide performance feedback for examining the effectiveness of project implementation strategies and progress toward achieving intended outcomes; and
(3) Formative evaluation activities during the project period will complement and inform the summative evaluation. The final summative evaluation will be developed in consultation with the third-party evaluator and the OSEP project officer.
(d) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—
(1) The proposed personnel, consultants, and contractors are highly qualified, experienced, and committed to carrying out the proposed activities and meeting the outcomes identified in the project logic model (see paragraph (f)(1));
(2) The qualifications of the members of the group referred to in paragraph (b)(9) are relevant to the proposed activities and outcomes;
(3) The applicant will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, language, linguistic background, gender, age, or disability, as appropriate; and
(4) The applicant and any key partners will ensure that they have adequate resources to carry out the proposed activities.
(e) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—
(1) The proposed management plan will ensure that the project's outcomes, identified in the project logic model (see paragraph (f)(1)), will be achieved on time and within budget;
(2) The time of key personnel, consultants, and contractors will be sufficiently allocated to the project;
(3) The proposed management plan will ensure that the products and services provided are of high quality; and
(4) The proposed project will benefit from a diversity of perspectives, including families, researchers, personnel development projects, parent training and information centers, SEAs and lead agencies, and other OSEP-funded projects, among others.
(f) Address the following application requirements as directed. The applicant must—
(1) Include, in Appendix A, a logic model that depicts, at a minimum, the goals, activities, outputs, and outcomes of the proposed project. A logic model communicates how a project will achieve its outcomes and provides a framework for both the formative and summative evaluations of the project;
(2) Include, in Appendix A, a conceptual framework for the project;
(3) Include, in Appendix A, person-loading charts and timelines to illustrate the management plan described in the narrative;
(4) Ensure that the budget includes attendance at all of the following events:
(i) A one and one-half day kick-off meeting to be held in Washington, DC, following receipt of the award, and an annual planning meeting held in Washington, DC, with the OSEP project officer and other relevant staff during each subsequent year of the project period.
Within 30 days of receipt of the award, a post-award teleconference must be held between the OSEP project officer and the grantee's project director or other authorized representative.
(ii) A three-day project directors' conference in Washington, DC, during each year of the project period.
(iii) One trip annually to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP;
(5) Ensure that the budget includes—
(i) A line item for an annual set-aside of five percent of the grant amount to support emerging needs that are consistent with the proposed project's activities, as those needs are identified in consultation with OSEP;
(ii) A line item for a summative evaluation to be conducted by an independent third party; and
(6) Ensure that the project maintains a Web site that meets government or industry-recognized standards for accessibility.
In deciding whether to continue funding the Center for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), as well as—
(a) The recommendation of a review team consisting of experts selected by the Secretary. This review will be conducted during a one-day intensive meeting in Washington, DC, that will be held during the last half of the second year of the project period. The Center must budget for travel expenses associated with this one-day intensive review;
(b) The timeliness and effectiveness with which all requirements of the negotiated cooperative agreement have been or are being met by the Center; and
(c) The quality, relevance, and usefulness of the Center's activities and products and the degree to which the Center's activities and products increase families' and providers' capacity to advocate for, acquire, and implement effective AT and IT for children with disabilities and thereby improve educational and developmental outcomes for children with disabilities.
20 U.S.C. 1474 and 1481.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2014 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
2.
3.
(a)
(b) Applicants and grant recipients funded under this competition must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.327F.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the team listed under
2.
• A “page” is 8.5″ x 11″, on one side only, with 1” margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
We will reject your application if you exceed the page limit; or if you apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The SAM registration process may take seven or more business days to complete. If you are currently registered with the SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days to complete. Information about SAM is available at SAM.gov.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the Center on Technology and Disability competition, CFDA number 84.327F, must be submitted electronically using the Governmentwide Grants.gov Apply site at www.Grants.gov. Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not email an electronic copy of a grant application to us.
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the Center on Technology and Disability competition at www.Grants.gov. You must search for the downloadable application package for this competition by the CFDA number. Do not include the CFDA number's alpha suffix in your search (e.g., search for 84.327, not 84.327F).
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Carmen Sanchez, U.S. Department of Education, 400 Maryland Avenue SW., Room 4057, Potomac Center Plaza (PCP), Washington, DC 20202-2600. FAX: (202) 245-6595.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.327F) LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.327F) 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
5.
Carmen Sanchez, U.S. Department of Education, 400 Maryland Avenue SW., Room 4057, PCP, Washington, DC 20202-2600. Telephone: (202) 245-6595.
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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b.
c.
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g.
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i.
j.
All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that on June 19, 2013, pursuant to sections 35.28(e) and 385.207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 35.28(e) and 18 CFR 385.207, the Bonneville Power Administration (Bonneville), submitted certain amendments to its Open Access Transmission Tariff (OATT) and a Petition for Declaratory Order requesting the Commission find that Bonneville's OATT, as amended by this filing, substantially conform or is superior to the
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Southwestern Power Administration, DOE.
Notice of public review and comment.
The Administrator, Southwestern Power Administration (Southwestern), has prepared Current and Revised 2013 Power Repayment Studies which show the need for an increase in annual revenues to meet cost recovery criteria. Such increased revenues are needed primarily to cover the increased costs associated with increased operations and maintenance and increases to investments and replacements in the hydroelectric generating facilities. The Administrator of Southwestern has developed proposed Integrated System rates, which are supported by the rate design study, to recover the required revenues. The Revised 2013 Study indicates that the proposed rates would increase annual system revenues approximately 4.7 percent from $184,059,100 to $192,765,802 effective October 1, 2013 through September 30, 2017.
The consultation and comment period will begin on the date of publication of this
If requested, the Forum will be held in Southwestern's offices, Room 1460, Williams Center Tower I, One West Third Street, Tulsa, Oklahoma 74103.
Mr. James K. McDonald, Vice President, Chief Operating Officer, Office of Corporate Operations, Southwestern Power Administration, U.S. Department of Energy, One West Third Street, Tulsa, Oklahoma 74103, (918) 595-6690,
Originally established by Secretarial Order No. 1865 dated August 31, 1943, Southwestern is an agency within the U.S. Department of Energy created by the Department of Energy Organization Act, Public Law 95-91, dated August 4, 1977. Guidelines for preparation of power repayment studies are included in DOE Order No. RA 6120.2 entitled Power Marketing Administration Financial Reporting. Procedures for public participation in power and transmission rate adjustments of the Power Marketing Administrations are found at title 10, part 903, subpart A of the Code of Federal Regulations (10 CFR 903). Procedures for the confirmation and approval of rates for the Federal Power Marketing Administrations are found at title 18, part 300, subpart L of the Code of Federal Regulations (18 CFR 300).
Southwestern markets power from 24 multi-purpose reservoir projects with hydroelectric power facilities constructed and operated by the U.S. Army Corps of Engineers (Corps). These projects are located in the states of Arkansas, Missouri, Oklahoma, and Texas. Southwestern's marketing area includes these states plus Kansas and Louisiana. The costs associated with the hydropower facilities of 22 of the 24 projects are repaid via revenues received under the Integrated System rates, as are those of Southwestern's transmission facilities, which consist of 1,380 miles of high-voltage transmission lines, 25 substations, and 46 microwave and VHF radio sites. Costs associated with the Sam Rayburn and Robert D. Willis Dams, two Corps projects that are isolated hydraulically, electrically, and financially from the Integrated System, are repaid under separate rate schedules and are not addressed in this notice.
Following Department of Energy guidelines, the Administrator of Southwestern, prepared the Current Power Repayment Study using existing system rates.
The Rate Design Study which allocates the revenue requirement to the various system rate schedules for recovery and provides for transmission service rates in general conformance with FERC Order No. 888 has also been completed.
A second component of the Integrated System rates for power and energy, the Purchased Power Adder (PPA), produces revenues which are segregated to cover the cost of power purchased to meet contractual obligations. The PPA is established to reflect revenues required to meet Southwestern's purchased power needs on an average annual basis. The PPA rate will decrease slightly to reflect the declining average cost of purchasing power over the period applied to our projected power needs. The Administrator's authority to adjust the PPA at his discretion with the Purchased Power Adder Adjustment (PPAA) will remain in force.
A revision to the component for Regulation Purchased Adder service has been proposed to the existing rate schedules to include a four-year transition to a full reimbursement based on average annual replacement energy costs for supplying regulation service to those customers inside the Balancing Authority Area (BAA). This revision to the Regulation Purchased Adder is being proposed so that all customers receiving regulation service within the BAA are appropriately assessed for their consumption of the service that is purchased to supplement the Federal resource used to support the BAA's requirement to regulate for loads. A copy of the proposed Regulation Purchased Adder language contained within the proposed Rate Schedules can be requested from Mr. James K. McDonald at the address listed above (see
Below is a general comparison of the existing and proposed system rates:
Southwestern's customers and other interested parties may receive copies of the Integrated System Power Repayment Studies and/or Rate Design Study, by submitting a request to Mr. James K. McDonald (see
A Public Information and Comment Forum (Forum) is tentatively scheduled to be held on July 11, 2013, to explain to customers and interested parties the proposed rates and supporting studies and to allow for comment. A chairman, who will be responsible for orderly procedure, will conduct the Forum if a Forum is requested. Questions concerning the rates, studies, and information presented at the Forum will be answered, to the extent possible, at the Forum. Questions not answered at the Forum will be answered in writing. Questions involving voluminous data contained in Southwestern's records may best be answered by consultation and review of pertinent records at Southwestern's offices.
Persons requesting that a Forum be held should indicate in writing to the Southwestern Vice President and Chief Operating Officer (see
A transcript of the Forum, if held, will be made. Copies of the transcript and all documents introduced will be available for review at Southwestern's offices (see
All written comments or an electronic copy in MS Word on the proposed Integrated System Rates are due on or before August 30, 2013. Comments should be submitted to Mr. James K. McDonald, Vice President and Chief Operating Officer, Southwestern, (see
Following review of the oral and written comments and the information gathered in the course of the proceeding, the Administrator will submit the finalized Integrated System Power Repayment Studies and Rate Design Study in support of the proposed rates to the Deputy Secretary of Energy for confirmation and approval on an interim basis, and subsequently to the Federal Energy Regulatory Commission for confirmation and approval on a final basis. The Commission will allow the public an opportunity to provide written comments on the proposed rate increase before making a final decision.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Willingness to Pay Survey for Salmon Recovery in the Willamette Watershed” (EPA ICR No. 2489.01, OMB Control No. 2080-NEW) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a request for approval of a new collection. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before August 30, 2013.
Submit your comments, referencing Docket ID No. EPA-HQ-ORD-2013-0448 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Michael Papenfus, Environmental Protection Agency, Western Ecology Division, 200 SW 35th St., Corvallis, OR, 97333; telephone number: 541-754-4703; fax number: 541-754-4799; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) evaluate the accuracy of the Agency's estimate of the
The USEPA Office of Research and Development is investigating public values for Chinook salmon and Winter steelhead recovery in the Willamette basin of Oregon. These values will be estimated via a willingness to pay mail survey instrument. There are two effluent-dominated perennial reaches considered in the survey. The primary goal of conducting economic valuation studies should be to improve the way in which communities frame choices regarding the allocation of scarce resources and to clarify the trade-offs between alternative outcomes. This problem is particularly relevant to salmon conservation efforts in the Pacific Northwest. Despite the deep cultural importance of salmon to the citizens of the Pacific Northwest, there is a remarkable lack of valid empirical economic studies quantifying this importance to the general public. This survey will estimate the benefits of salmon and steelhead recovery in the Willamette basin as outlined in the Upper Willamette River Conservation and Recovery Plan.
The public benefits associated with several recovery options will be estimated in this survey. The first option is labeled 'minimum recovery' and represents a permanent increase in the number of wild origin Chinook salmon and steelhead that return annually to the Willamette basin watershed. The increase in fish abundance is also associated with a reduction in the risk of extinction that is great enough to 'de-list' these species from the endangered species list. The second recovery status evaluated in the survey is labeled 'broadsense recovery'. This recovery option also represents a reduction in extinction risk great enough to remove both species form the endangered species list but also represents an even larger increase in wild origin fish than under the `minimal recovery' option. In addition to the different recovery options, public preferences for the time to recovery will be evaluated.
For the survey, a choice experiment framework is used with statistically designed tradeoff questions. Recovery options for wild origin Chinook salmon and steelhead and time to recovery are posed as increases in a yearly household tax for the next 25 years. Each choice question allows a zero cost “opt out” option. A few additional questions to further understand respondent choice motivations, their river-related recreation behavior, and their attitudes towards wild origin versus hatchery origin fish are also included. Several pages of background introduce the issue to respondents. A small number of sociodemographic questions are included to gauge how well the sample respondents represent the target population. A sample from across the state of Oregon will receive the survey. The survey will target three subpopulations of Oregon to be studied—the urban population of the Willamette valley, the rural population within the Willamette valley, and the population residing outside the Willamette valley. The primary reason for the survey is public value research. All survey responses will be kept confidential.
Environmental Protection Agency (EPA).
Notice. Announcement of Implementation Extension for Competency Policy for Assistance Agreements.
As published in the Federal Register on April 29, 2013, the Environmental Protection Agency's Forum on Environmental Measurements (FEM) is implementing a policy requiring organizations generating or using environmental data under certain Agency-funded assistance agreements to submit documentation of their competency prior to award of the agreement, or if that is not practicable, prior to beginning any work involving the generation or use of environmental data under the agreement. The Policy was originally approved on December 12, 2012 by the Science Technology Policy Council (STPC). Because implementation tools are currently being developed by the Agency based on outreach with internal and external stakeholders, EPA is delaying the required effective date of the Policy to October 1, 2013. Webinars and materials to aid with implementation are available on the FEM Web site (
• Awards made under competitive solicitations issued on or after October
• Non-competitive assistance agreements awarded on or after October 1, 2013* that are expected to exceed $200,000 (in federal funding) in total maximum value and involve the use or generation of environmental data.
*While the effective date of this policy is being changed to October 1, 2013, EPA offices may apply this policy prior to that date at their discretion.
Comments or questions should be sent to Ms. Lara P. Phelps, US EPA (E243-05), 109 T. W. Alexander Drive, Research Triangle Park, NC 27709; emailed to
Environmental Protection Agency (EPA).
Notice. Announcement of 60-day extension of public comment period for draft guidance.
On May 9, 2013 the Environmental Protection Agency (EPA) issued for public comment a document entitled, “Technical Guidance for Assessing Environmental Justice in Regulatory Analysis.” The purpose of this notice is to extend the public comment period by 60 days. The public comment period will now close on September 6, 2013.
Comments must be received on or before September 6, 2013.
Submit your comments, identified by Docket ID No. EPA-HQ-OA-2013-0320 by one of the following methods:
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Dr. Kelly Maguire, Office of Policy, National Center for Environmental Economics, Mail code 1809T, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Mail code 1809T, Washington, DC 20460; telephone number: 202-566-2273; fax number: 202-566-2363; email address:
The Technical Guidance for Assessing Environmental Justice in Regulatory Analysis is available in the public docket for this notice. The docket can be viewed online at
EPA is extending the public comment period for the draft
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
Export-Import Bank of the United States.
Notice.
This Notice is to inform the public, in accordance with Section 3(c)(10) of the Charter of the Export-Import Bank of the United States (“Ex-Im Bank”), that Ex-Im Bank has received an application for final commitment for a long-term loan or financial guarantee in excess of $100 million (as calculated in accordance with Section 3(c)(10) of the Charter). Comments received within the comment period specified below will be presented to the Ex-Im Bank Board of Directors prior to final action on this Transaction.
To support the export of U.S.-manufactured aircraft to Ireland.
To be used under operating lease for long-haul service from Brazil and Chile to other countries.
To the extent that Ex-Im Bank is reasonably aware, the item(s) being exported may be used to produce exports or provide services in competition with the exportation of goods or provision of services by a United States industry.
Boeing 777 aircraft.
Comments must be received on or before July 26, 2013 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through Regulations.gov at
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 30, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202-395-5167 or via Internet at
Judith B. Herman, FCC, Office of Managing Director, (202) 418-0214.
Section 64.904(a) requires each incumbent LEC required to file a cost allocation manual is to either have an attest engagement performed by an independent auditor every two years, covering the prior two year period, or have a financial audit performed by an independent auditor biennially. In either case, the initial engagement shall be performed in the calendar year after the carrier is first required to file a cost allocation manual.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3502-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before July 31, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202-395-5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202-418-0214.
The Commission seeks OMB approval for a revision for: (1) Information collections associated with the new Healthcare Connect Fund; created FCC Forms 460, 461, 462 and 463; information collections associated with a new skilled nursing facilities pilot program; (3) revised reporting requirements associated with an existing pilot program; and (4) extended information collections associated with existing programs. For complete details regarding this revision, please see the 60 day notice that was published in the
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before August 30, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA questions to Judith B. Herman, Federal Communications Commission. To submit your PRA comments by email send them to:
Judith B. Herman, Office of Managing Director, (202) 418-0214.
Information on the private land mobile radio licensees is maintained in the Commission's system of records, FCC/WTB-1, “Wireless Services Licensing Records.” The licensee records will be publicly available and routinely used in accordance with subsection b of the Privacy Act. TIN numbers and materials which is afforded confidential treatment pursuant to a request made under 47 CFR 0.459 of the Commission's rules will not be available for public inspection. Any personally identifiable information (PII) that individual applicants provide is covered by a system of records, and these and all other records may be disclosed pursuant to the Routine Uses as stated in this system of records notice (SORN).
The purpose of this information collection is to continue to streamline and simplify processes for wireless applicants and licensees, who previously used a myriad of forms for various wireless services and type of
The ULS also benefits wireless applicants/licensees by reducing the cost of preparing applications, and speeds up the licensing process in that the Commission can introduce new entrants more quickly into this already competitive industry. Finally, ULS enhances the availability of licensing information to the public which has access to all publicly available wireless information on-line, including maps depicting a licensee's geographic service area.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3502-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before July 31, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202-395-5167 or via Internet at
Judith B. Herman, Office of Managing Director, FCC, at 202-418-0214.
The purpose of the FCC Form 602 is to obtain the identity of the filer and to elicit information required by Section 1.2112 of the Commission's rules regarding:
(1) Persons or entities holding a 10 percent or greater direct or indirect ownership interest or any general partners in a general partnership holding a direct or indirect ownership interest in the applicant (“Disclosable Interest Holders”); and
(2) All FCC-regulated entities in which the filer or any of its Disclosable Interest Holders owns a 10 percent or greater interest.
The data collected on the FCC Form 602 includes the FCC Registration Number (FRN), which serves as a “common link” for all filings an entity has with the FCC. The Debt Collection Improvement Act of 1996 requires that entities filing with the Commission use a FRN. The FCC Form 602 was designed for, and must be filed electronically by, all licensees that hold licenses in auctionable services.
The information collected on the form is used by the FCC to determine whether the filer is legally, technically and financially qualified to be a licensee. Without such information, the Commission could not determine whether to issue licenses to applicants that provide telecommunications services to the public and fulfill its statutory responsibilities in accordance with the Communications Act of 1934, as amended.
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”). The Committee's mission is to provide recommendations to the Commission regarding policies and practices that will further enhance diversity in the telecommunications and related industries. In particular, the Committee will focus primarily on lowering barrier to entry for historically disadvantaged men and women, exploring ways in which to ensure universal access to and adoption of broadband, and creating an environment that enables employment of a diverse workforce within the telecommunications and related industries. The Committee will be charged with gathering the data and information necessary to formulate meaningful recommendations for these objectives.
Tuesday, September 17 at 2:00 p.m.
Federal Communications Commission, Room TW-C305 (Commission Meeting Room), 445 12th Street SW., Washington, DC 20554.
Barbara Kreisman, 202-418-1605
At this meeting the current committees, Supplier Diversity, Market Entry Barriers, Unlicensed Devices and EEO Enforcement will report on their progress. This meeting may also include some discussion of the Federal Communications Commission's former Tax Certificate policy. The goals and approaches of the advisory group will be discussed, including the substantive direction further recommendations should consider.
Members of the general public may attend the meeting. The FCC will attempt to accommodate as many people as possible. However, admittance will be limited to seating availability. The public may submit written comments before the meeting to: Barbara Kreisman, the FCC's Designated Federal Officer for the Diversity Committee by email:
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via email to
Additional information regarding the Diversity Committee can be found at
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 the opportunity to comment on the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). On April 17, 2013, the FDIC requested comment for 60 days on a proposal to renew the following information collection: Application to Establish Branch or to Move Main Office or Branch, OMB Control No. 3064-0070. No comments were received. The FDIC hereby gives notice of its plan to submit to OMB a request to approve the renewal of this collection, and again invites comment on this renewal.
Comments must be submitted on or before July 31, 2013.
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 the relevant OMB control number. 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.
Gary A. Kuiper, at the FDIC address above.
Proposal to renew the following currently-approved collection of information:
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 burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Federal Deposit Insurance Corporation.
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, as required by the Paperwork Reduction Act of 1995 (4 U.S.S. chapter 35), to comment on renewal of an existing information collection as required by the PRA. On April 23, 2013 (78 FR 23933), the FDIC solicited pubic comment for a 60-day period on renewal without change of its information collection entitled, “Appraisal Standards” (OMB No. 3064-0103). No comments were received. Therefore, the FDIC hereby gives notice of submission of its request for renewal to OMB for review.
Comments must be submitted on or before July 31, 2013.
Interested parties are invited to submit written comments. All comments should refer to the name of the collection. Comments may be submitted by any of the following methods:
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A copy of the comments may also be submitted to the FDIC Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
For further information about this information collection, please contact Leneta G. Gregorie, by telephone at (202) 898-3719 or by mail at the address identified above. In addition, copies of the forms contained in the collection can be obtained at the FDIC's Web site:
The FDIC is requesting OMB approval to renew the following information collection:
Comments are invited on: (a) Whether these collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimate 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 burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Housing Finance Agency.
30-day Notice of Submission of Information Collection for Approval from Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Agency (FHFA) is seeking public comments concerning the information collection known as the “National Survey of Mortgage Borrowers” (NSMB). This is a new collection that has not yet been assigned a control number by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year control number.
Interested persons may submit comments on or before July 31, 2013.
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, on the FHFA Web site at
Theresa DiVenti, Senior Economist, Office of Systemic Risk and Market Surveillance, by email at
The NSMB will be a quarterly survey of individuals who have recently obtained a loan secured by a first mortgage on single-family residential property. The survey questionnaire will be sent to approximately 7,000 new mortgage borrowers each calendar quarter and will consist of approximately 80-85 multiple choice and short answer questions designed to obtain information about individual residential mortgages and borrowers that is not available elsewhere. The NSMB is one component of a larger project, known as the “National Mortgage Database,” which is a joint effort of FHFA and the Consumer Financial Protection Bureau (CFPB).
Section 1324 of the Housing and Economic Recovery of 2008 (HERA) requires that FHFA conduct a monthly survey to collect data on the characteristics of individual prime and subprime mortgages, and on the borrowers and properties associated with those mortgages. Specifically, FHFA is required to collect data on: the sales price of the mortgaged property; the loan-to-value ratio of the mortgage; the terms of the mortgage; the creditworthiness of the borrowers; whether borrowers on subprime mortgages would have qualified for prime lending; and whether the mortgage was purchased by Fannie Mae or Freddie Mac.
FHFA draws the core data for the National Mortgage Database from a random 1-in-20 sample of mortgages in the database of credit information on individual consumers maintained by one of the three national credit repositories. These core data may be supplemented, for example, with additional information from sources such as the Home Mortgage Disclosure Act database that is maintained by the Federal Financial Institutions Examination Council,
Under section 1324 of HERA, FHFA must collect information on the characteristics of individual subprime and nontraditional mortgages, as well as on the characteristics of borrowers on such mortgages, including information on the creditworthiness of those borrowers and information sufficient to determine whether those borrowers would have qualified for prime lending.
The information in the National Mortgage Database, including that obtained through the NSMB, will be used for three primary purposes: (1) To prepare the report to Congress on the mortgage market activities of Fannie Mae and Freddie Mac that FHFA is required to submit under section 1324 of HERA; (2) for research and analysis by FHFA and other federal agencies that have regulatory and supervisory responsibilities/mandates related to mortgage markets; and (3) to provide a resource for research and analysis by academics and other interested parties outside of the government. Generally, the National Mortgage Database will allow Congress, regulators and other interested parties to track emerging trends in the mortgage origination process throughout the United States and will allow them to determine more quickly and accurately when the mortgage origination process is changing in a way that may adversely affect financial markets, borrowers, and consumers. FHFA intends that the availability of this information, as well as the research and analyses derived from it, will provide sufficient warning to allow it and other regulators to take steps to avoid or mitigate major mortgage market crises in the future.
FHFA estimates the total annual average number of survey recipients at 28,000 (7,000 x 4 calendar quarters), with one response per recipient. The estimate for the average amount of time to complete each survey is 30 minutes. The estimate for the total annual hour burden for respondents is 14,000 hours (28,000 respondents × 0.5 hours).
FHFA published a request for public comments regarding this information collection in the
Federal Housing Finance Agency.
60-day Notice of Submission of Information Collection for Approval From the Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Agency (FHFA) is seeking public comments concerning the information collection known as “Capital Requirements for the Federal Home Loan Banks,” which has been assigned control number 2590-0002 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on September 30, 2013.
Interested persons may submit comments on or before August 30, 2013.
Submit comments to FHFA using any one of the following methods:
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We will post all public comments we receive without change, including any personal information you provide, such as your name, address, email address, and telephone number, on the FHFA Web site at
Jonathan F. Curtis, Financial Analyst, Division of Federal Home Loan Bank Regulation, at 202-649-3321 (not a toll free number),
Each of the twelve regional Federal Home Loan Banks (Banks) is structured as a member-owned cooperative. An institution that is eligible for membership in a particular Bank must purchase and hold a prescribed minimum amount of the Bank's capital stock in order to become and remain a member of that Bank.
Section 6 of the Federal Home Loan Bank Act (Bank Act) establishes the capital structure for the Banks and requires FHFA to issue regulations prescribing uniform capital standards applicable to all of the Banks.
Both the Bank Act and FHFA's regulations state that a Bank's capital structure plan must require its members to maintain a minimum investment in the Bank's capital stock, which is to be determined for each member in a manner prescribed by the board of directors of the Bank and reflected in the Bank's capital structure plan.
The Banks use this information collection to determine the amount of capital stock a member must purchase to maintain membership in and to obtain services from the Bank under its capital structure plan, and to confirm that its members are complying with the Bank's stock purchase requirements. Although the required information and the precise method through which it is collected differ from Bank to Bank, there are for each Bank typically two components to the information collection. First, in order to calculate and monitor compliance with its membership stock purchase requirement, a Bank typically requires each member to provide and/or confirm a quarterly report on the amount and types of assets held by that institution. Second, at the time it engages in a business transaction with a member, each Bank typically confirms with the member the amount of additional Bank capital stock, if any, the member must acquire in order to satisfy the Bank's activity-based stock purchase requirement and the method through which the member will acquire that stock.
The OMB number for the information collection is 2590-0002, which is due to expire on September 30, 2013. The likely respondents include Bank members.
FHFA estimates the total annual average number of “membership stock purchase requirement” respondents at 7,711, with 4 quarterly responses per respondent. The estimate for the average hours per response is .05 hours. The estimate for the annual hour burden for “membership stock purchase requirement” respondents is 1,542 hours (7,711 respondents x 4 responses per respondent ×.05 hours per response).
FHFA estimates the total annual average number of “activity-based stock purchase requirement” respondents at 192,500 (770 daily transactions × 250 working days), with 1 response per respondent. The estimate for the average hours per response is 0.05 hours. The estimate for the annual hour burden for “activity-based stock purchase requirement” respondents is 9,625 (192,500 annual borrower responses × 1 response per respondent × 0.05 average hours per response).
The combined estimate for the total annual hour burden for all respondents is 11,167 hours.
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of FHFA's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Federal Housing Finance Agency.
60-day Notice of Submission of Information Collection for Approval from the Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Agency (FHFA) is seeking public comments concerning the information collection known as “Members of the Banks,” which has been assigned control number 2590-0003 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on September 30, 2013.
Interested persons may submit comments on or before August 30, 2013.
Submit comments to FHFA using any one of the following methods:
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We will post all public comments we receive without change, including any personal information you provide, such as your name, address, email address, and telephone number, on the FHFA Web site at
Jonathan F. Curtis, Financial Analyst, Division of Federal Home Loan Bank Regulation, at 202-649-3321 (not a toll free number),
Section 4 of the Federal Home Loan Bank Act (Bank Act) establishes the eligibility requirements an institution must meet in order to become a member of a Federal Home Loan Bank (Bank).
This information collection may require four different types of submissions by Bank members or by institutions wishing to become a Bank member: (I) Applications for membership and supporting materials by institutions wishing to become a member of a Bank; (II) notices of appeal to FHFA by institutions that have been denied membership by a Bank; (III) requests to withdrawal from Bank membership by members wishing to withdraw; and (IV) applications for transfer of membership and supporting materials by current Bank members wishing to become a member of a different Bank. The information collection is necessary to enable a Bank to determine whether prospective and current Bank members, or transferring members of other Banks, satisfy the statutory and regulatory requirements to be certified initially and maintain their status as members eligible to obtain Bank advances. The collection is also necessary to inform a Bank of when to initiate the withdrawal process where a member so desires. On appeals, FHFA uses the information collection to determine whether to uphold or overrule a Bank's decision to deny Bank membership to an applicant.
The OMB control number for the information collection is 2590-0003,
FHFA estimates the total annual average number of applicants at 157, with 1 response per applicant. The estimate for the average hours per application is 19.25 hours. The estimate for the annual hour burden for applicants is 3,022 hours (157 applicants x 1 response per applicant x 19.25 hours per response).
FHFA estimates the total annual average number of appellants at 1, with 1 response per appellant. The estimate for the average hours per application for appeal is 10 hours. The estimate for the annual hour burden for appellants is 10 hours (10 appellants x 1 response per appellant x 10 hours per response).
FHFA estimates the total annual average number of membership withdrawals at 275, with 1 response per applicant. The estimate for the average hours per application is 3.5 hours. The estimate for the annual hour burden for applicants is 963 hours (275 withdrawals x 1 response per applicant x 3.5 hours per response).
FHFA estimates the total annual average number of membership transfer requests at 2, with 1 response per applicant. The estimate for the average hours per application is 3.5 hours. The estimate for the annual hour burden for applicants is 7 hours (2 transfers x 1 response per applicant x 3.5 hours per response).
The combined estimate for the total annual hour burden for all respondents is 4,002 hours.
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of the FHFA's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Board of Governors of the Federal Reserve System
9:30 a.m. on Tuesday, July 2, 2013
The business of the Board requires that this meeting be held with less than one week's advance notice to the public and no earlier announcement of the meeting was practicable.
Marriner S. Eccles Federal Reserve Board Building, 20th Street entrance between Constitution Avenue and C Streets, NW., Washington, DC 20551.
Open.
On the day of the meeting, you will be able to view the meeting via webcast from a link available on the Board's public Web site. You do not need to register to view the webcast of the meeting. A link to the meeting documentation will also be available approximately 20 minutes before the start of the meeting. Both links may be accessed from the Board's public Web site at
If you plan to attend the open meeting in person, we ask that you notify us in advance and provide your name, date of birth, and social security number (SSN) or passport number. You may provide this information by calling 202-452-2474 or you may register online. You may pre-register until close of business on July 1, 2013. You also will be asked to provide identifying information, including a photo ID, before being admitted to the Board meeting. The Public Affairs Office must approve the use of cameras; please call 202-452-2955 for further information. If you need an accommodation for a disability, please contact Penelope Beattie on 202-452-3982. For the hearing impaired only, please use the Telecommunication Device for the Deaf (TDD) on 202-263-4869.
Discussion Agenda:
1. Final interagency rulemaking: strengthening and harmonizing the regulatory capital framework for banking organizations, including implementation of Basel III.
2. Proposed rulemaking: changes to conform the market risk capital rule to the final Basel III rule.
1. The staff memo to the Board will be made available to the public on the day of the meeting in paper and the background material will be made available on a compact disc (CD). If you require a paper copy of the entire document, please call Penelope Beattie on 202-452-3982. The documentation will not be available until about 20 minutes before the start of the meeting.
2. This meeting will be recorded for the benefit of those unable to attend. The webcast recording and a transcript of the meeting will be available after the meeting on the Board's public Web site
Board of Governors of the Federal Reserve System, Washington, DC 20551.
Michelle Smith, Director, or Dave Skidmore, Assistant to the Board, Office of Board Members at 202-452-2955.
You may access the Board's public Web site at www.federalreserve.gov for an electronic announcement. (The Web site
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call (404) 639-7570 or send an email to
CDC Early Hearing Detection and Intervention Hearing Screening and Follow-up Survey (OMB No. 0920-0733, Expiration 06/30/2013)—Reinstatement with Change—National Center on Birth Defects and Developmental Disabilities (NCBDDD), Centers for Disease Control and Prevention (CDC).
The National Center on Birth Defects and Developmental Disabilities at CDC promotes the health of babies, children, and adults with disabilities. As part of these efforts the Center is actively involved in addressing hearing loss (HL) among newborns and infants. HL is a common birth defect that affects approximately 12,000 infants each year and, when left undetected, can result in developmental delays. As awareness about infant HL increases, so does the demand for accurate information about rates of screening, referral, loss to follow-up, and prevalence. This information is important for helping to ensure infants and children are receiving recommended screening and follow-up services, documenting the occurrence of differing degrees of HL among infants, and assessing progress towards national goals. These data will also assist state Early Hearing Detection and Intervention (EHDI) programs with quality improvement activities and provide information that will be helpful in assessing the impact of federal initiatives. The public will be able to access this information via the CDC EHDI Web site (
Given the lack of a standardized and readily accessible source of data, the CDC EHDI program developed a survey to be used annually that utilizes uniform definitions to collect aggregate, standardized EHDI data from states and territories. The request to complete this survey is planned to be disseminated to respondents via an email, which will include a summary of the request and other relevant information. Minor changes to this survey, based on respondent feedback, are planned in order to make the survey easier to complete and further improve data quality. These changes include splitting the previously combined question about the number of infants that were non-residents or moved out of jurisdiction into two separate questions and adding new questions. These include questions about how many infants were in a neonatal intensive care unit for more than 5 days, transferred without any documentation of a hearing screening, unable to be screened or receive diagnostic testing due to a medical reason, number of cases where a primary care physician did not refer an infant for diagnostic testing, and cases of permanent hearing loss among non-resident infants. The table for reporting type and severity of hearing loss data has also been updated so this data can be reported using either the classification system from the American Speech and Hearing Association or the current system from the Directors of Speech and Language Programs in State Health and Welfare Agencies.
A total of 59 respondents will be asked to complete the updated data request each year during the 3-year requested data collection approval timeframe. Based on findings from the previous information collection, it is estimated that the burden for individuals to read through the survey and decide whether or not to complete it is 10 minutes per person. The 10 minute calculation was based on feedback received in pre-tests with 5 individuals and confirmed by the experience with the survey since the original Office of Management and Budget (OMB) approval.
It is expected that 55 of the 59 potential respondents will complete the survey and therefore incur an additional burden of up to 4 hours per respondent. However, based on feedback from consulted experts about the length of time required to complete the original information collection, it is anticipated that it will only take some respondents a few minutes to complete the revised data request. This is because jurisdictions often have already gathered and compiled the requested data for their own internal uses. Nevertheless, the more conservative time estimate of 4 hours per response from each of the 55 anticipated participants is shown in the table below. This estimate is identical to the time estimate for the reinstated OMB approved estimate from 2010; the only change is the estimated number of respondents. There are no costs to the respondents other than their time. The estimated annualized burden is 230 hours.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments must be received by
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: Document Identifier/OMB Control Number ____, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
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' Web site 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.
Reports Clearance Office at (410) 786-1326
This notice sets out a summary of the use and burden associated with the following information collection. More detailed information can be found in the collection's supporting statement and associated materials (see
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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The Family and Youth Services Bureau (FYSB) is accepting applications from States and Territories for the development and implementation of the State Abstinence Program. The purpose of this program is to support decisions to abstain from sexual activity by providing abstinence programming as
OMB approval is requested to solicit comments from the public on paperwork reduction as it relates to ACYF's receipt of the following documents from applicants and awardees:
Estimated Total Annual Burden Hours: 7,316
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
A request is being made to solicit comments from the public on paperwork reduction as it relates to ACYF's receipt of the following documents from applicants and awardees:
Estimated Total Annual Burden Hours: 5,664.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Estimated Total Annual Burden Hours: 676,675.44
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Advisory Council on Historic Preservation.
Notice of Advisory Council on Historic Preservation Quarterly Business Meeting.
Notice is hereby given that the Advisory Council on Historic Preservation (ACHP) will hold its next quarterly meeting on Thursday, July 18, 2013. The meeting will be held in Room M-09 at the Old Post Office Building at 1100 Pennsylvania Avenue NW., Washington, DC at 8:30 a.m.
The quarterly meeting will take place on Thursday, July 18, 2013, starting at 8:30 a.m. EST.
The quarterly meeting will be held in Room M-09 at the Old Post Office Building, 1100 Pennsylvania Ave., NW., Washington, DC 20004.
Cindy Bienvenue, 202-606-8521,
The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement, and productive use of our nation's historic resources, and advises the President and Congress on national historic preservation policy. The goal of the National Historic Preservation Act (NHPA), which established the ACHP in 1966, is to have federal agencies act as responsible stewards of our nation's resources when their actions affect historic properties. The ACHP is the only entity with the legal responsibility to encourage federal agencies to factor historic preservation into federal project requirements. For more information on the ACHP, please visit our Web site at
The agenda for the upcoming quarterly meeting of the ACHP is the following:
The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact Cindy Bienvenue, 202-606-8521, at least seven (7) days prior to the meeting.
16 U.S.C. 470j
Department of Homeland Security.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Academic Advisory Council (HSAAC) will meet on July 17, 2013 in Washington, DC. The meeting will be open to the public.
The HSAAC will meet Wednesday, July 17, 2013, from 10:00 a.m. to 3:00 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at Ronald Reagan International Trade Center, 1300 Pennsylvania Avenue NW., Floor B, Room B1.5-10, Washington, DC 20004. All visitors to the Ronald Reagan International Trade Center must bring a Government-issued photo ID. Please use the main entrance on 14th Street, NW.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, send an email to
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee prior to the adoption of the recommendations as listed in the
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One thirty-minute public comment period will be held during the meeting on July 17, 2013 after the conclusion of the presentation of draft recommendations, but before the HSAAC deliberates. Speakers will be requested to limit their comments to three minutes. Contact the Office of Academic Engagement as indicated below to register as a speaker.
Lindsay Burton, Office of Academic Engagement/Mailstop 0440; Department of Homeland Security; 245 Murray Lane SW; Washington, DC 20528-0440, email:
Notice of this meeting is given under the
The meeting materials will be posted to the HSAAC Web site at:
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (i.e., the time, effort and resources used by respondents to respond) and cost, and the actual data collection instruments FEMA will use.
Comments must be submitted on or before July 31, 2013.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 1800 South Bell Street, Arlington, VA 20598-3005, facsimile number (202) 646-3347, or email address
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) will submit the information collection abstracted below to the Office of Management and Budget for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission will describe the nature of the information collection, the categories of respondents, the estimated burden (i.e., the time, effort and resources used by respondents to respond) and cost, and the actual data collection instruments FEMA will use.
Comments must be submitted on or before July 31, 2013.
Submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the Desk Officer for the Department of Homeland Security, Federal Emergency Management Agency, and sent via electronic mail to
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 1800 South Bell Street, Arlington, VA 20598-3005, facsimile number (202) 646-3347, or email address
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, 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 an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the collection of information necessary for the Grants Reporting Tool (GRT).
Comments must be submitted on or before August 30, 2013.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Elizabeth Mitchell, Program Specialist, FEMA, Grants Programs Directorate, (202) 786-9681. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
Title 44 CFR, Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Government establishes uniform administrative rules for Federal grants and cooperative agreements and sub-awards to State, local and Indian tribal governments. FEMA has determined that in order to have consistent implementation of FEMA grant administration policies, to reduce duplicative and tedious data entry, to more effectively measure preparedness gains, and to streamline application submission and management for Grantees, Regions, State and local partners, it is necessary to automate the reporting processes.
The Homeland Security Presidential Directive (HSPD-5) related to the “Management of Domestic Incidents” gives the Secretary the authority to gather information related to domestic incidents and mandates the Secretary provide standardized, quantitative reports on the readiness and preparedness of the Nation—at all levels of government—to prevent, prepare for, respond to, and recover from domestic incidents. The Homeland Security Presidential Directive (HSPD-8) related to “National Preparedness” authorizes the Federal government to deliver Federal preparedness awards to the States. Applicants must apply the funds to the highest priority preparedness requirements at the appropriate level of government. Federal preparedness assistance is based upon the adoption of statewide comprehensive all-hazards preparedness strategies, consistent with the national preparedness goal. HSPD-8 authorizes the Secretary to review and approve strategies submitted by the States and establishes the requirement that applicants must have adopted approved statewide strategies in order to receive Federal grant funds. Further, HSPD-8 authorizes Federal departments and agencies to develop appropriate mechanisms to ensure rapid obligation and disbursement of funds from their programs to the States, such as the GRT. HSPD-8 mandates Federal departments and agencies report annually on the obligation, expenditure status, and the use of funds associated with Federal preparedness assistance programs. Section 430 of the Homeland Security Act of 2002, as amended (6 U.S.C. 238), authorized the Office for Domestic Preparedness (ODP, which was transferred to FEMA by the Post Katrina
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, 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 an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the information collection activities required to administer the Operation Stonegarden (OPSG) Grant Program.
Comments must be submitted on or before August 30, 2013.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Alex Mrazik, Program Analyst, FEMA, Grant Programs Directorate, 202-786-9732. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
A State Homeland Security Grant Program (SHSP) was established to assist State, local, and tribal governments in preventing, preparing for, protecting against, and responding to acts of terrorism. As a component of the SHSP, Operation Stonegarden grants are established by Section 2004(a) of the Homeland Security Act of 2002 (6 U.S.C. 605), as amended by Section 101, Title I of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-053). Title III of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. L. 110-329) provides a specific line item within the SHSP appropriation to fund the Operation Stonegarden grant.
Comments may be submitted as indicated in the
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Real Estate Settlement Procedures Act (RESPA) Disclosures
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), rulemaking authority for and certain enforcement authorities with respect to the Real Estate Settlement Procedures Act (RESPA) of 1974, as amended by Section 461 of the Housing and Urban-Rural Recovery Act of 1983 (HURRA), and other various amendments, transferred from the Department of Housing and Urban Development (HUD) to the Consumer Financial Protection Bureau (CFPB) on July 21, 2011. The Dodd-Frank Act also directed the CFPB to integrate certain disclosures required by the Truth in Lending Act (TILA) with certain disclosures required by the Real Estate Settlement Procedures Act (RESPA) of 1974. The CFPB expects the content and format of information collection forms under this clearance, HUD's existing HUD-1/1A and GFE forms, to be significantly revised or replaced by rulemaking. The CFPB published proposed rules in July and August of 2012 to that effect.
Historically, in order to satisfy information collection requirements under the Paperwork Reduction Act (PRA), the HUD-1/1A and GFE listed HUD's Office of Management and Budget (OMB) control number, 2502-0265. While the CFPB will be, upon OMB approval of this information collection request, the “owner” of this information collection, the CFPB believes that requiring covered persons to modify existing forms solely to replace HUD's OMB control number with the Bureau's OMB control number would impose substantial burden on covered persons with limited or no net benefit to consumers. Accordingly, the CFPB has reached an agreement with OMB and HUD whereby covered persons may continue to list HUD's OMB control number on the HUD-1/1A and GFE forms until a final rule to the contrary takes effect. Covered persons also have the option of replacing HUD's OMB control number with the Bureau's OMB control number on the HUD-1/1A and GFE forms until a final rule to the contrary takes effect. Once the CFPB's final rule takes effect, regulated industry will no longer be able to use the HUD control number.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Department of the Interior.
Notice; request for comments.
This notice announces a proposed categorical exclusion under the National Environmental Policy Act (NEPA) for the U.S. Fish and Wildlife Service. The proposed categorical exclusion pertains to adding species to the injurious wildlife list under the Lacey Act. The addition of this categorical exclusion to the Department of the Interior's Departmental Manual will improve conservation activities by making the NEPA process for listing injurious species more efficient.
We will consider comments we receive on or before July 31, 2013.
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Susan Jewell, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA 22203; telephone 703-358-2416. If you use a telecommunications device for the deaf, please call the Federal Information Relay Service at 800-877-8339.
Under the National Environmental Policy Act (42 U.S.C. 4321
The U.S. Fish and Wildlife Service (Service) has identified that it would be appropriate to provide for a categorical exclusion for the Federal action of adding species to the list of injurious wildlife under the Lacey Act (18 U.S.C. 42, as amended; the Act). The Act authorizes the Secretary of the Interior, as delegated to the Service, to prescribe by regulation those wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, and reptiles, and the offspring or eggs of any of the aforementioned, that are injurious to human beings, or to the interests of agriculture, horticulture, or forestry, or to the wildlife or wildlife resources of the United States. The provisions of the Act regarding injurious species are intended to protect human health and welfare and the human and natural environments of the United States by identifying and reducing the threat posed by certain wildlife species. Listing these species as injurious under the Act subsequently prohibits the species from being imported into the United States or transported across State lines.
The listing of species as injurious is, as an agency action, subject to environmental review under NEPA procedures. The Service has generally prepared EAs for listing rules. A categorical exclusion would allow the Service to exercise its authority to protect human health and welfare, certain human environments, and trust resources from harm caused by injurious species more effectively and efficiently by precluding the need to conduct redundant environmental analyses.
In 2002, the Service used an existing departmental categorical exclusion (“Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case” (43 CFR 46.210(i)) in two listing actions. Upon further review, the Service believes that this is not the best description of why injurious species listings do not have a significant effect on the human environment. Therefore, the Service is pursuing the addition of a new categorical exclusion for the listing of injurious species under the Act.
The Department of the Interior is proposing to add a categorical exclusion to the Department Manual at 516 DM 8.5 C, which covers “Permit and Regulatory Functions.” This section includes approved categorical exclusions that address, among other things, the issuance of regulations pertaining to wildlife. This proposed addition would provide for a categorical exclusion for only the regulatory action of listing species as injurious (that is, adding a species to the list). The regulatory listing action places the species on a prohibited list, which prohibits their importation into the United States and interstate transportation. Thus, the activities covered under the categorical exclusion are simply to keep species out of the country that are injurious or to prevent their spread across State lines.
The categorical exclusion would not cover, for example, control actions (such as constructing barriers) or eradication actions (such as applying pesticides). Any such injurious species management measures conducted by any Federal agency would undergo appropriate NEPA analysis and documentation prior to implementation of the action. The categorical exclusion would also not cover the issuance of permits (available for individual specimens intended for zoological, educational, medical, or scientific use), which is already covered under an existing categorical exclusion (516 DM 8.5 C(1)). The categorical exclusion would not cover the removal of species from the injurious wildlife list under the Act.
Additionally, application of the proposed categorical exclusion would be subject to a review of extraordinary circumstances established in regulation by the Department of the Interior (see 50 CFR 46.215). Extraordinary circumstances would be subject to the factors or circumstances that would cause an otherwise categorically excludable action to require further analysis in an EA or EIS. Thus, notwithstanding the existence of this categorical exclusion, the Service would have to develop an EA or EIS if it found the extraordinary circumstances applied to the listing of a particular injurious species.
The intent of the proposed categorical exclusion is to more effectively protect the human and natural environments of the United States from injurious species by making the listing process under the Act more efficient. The following three justifications support the categorical exclusion:
Because the proposed categorical exclusion also serves to make the listing process under the Act more efficient, and the listing process is designed to limit undesirable environmental effects in the future, the categorical exclusion itself supports maintenance of the environmental status quo.
The species listed for which an EA was prepared include the raccoon dog (
The issues addressed in the EAs that were prepared for these species include the biology of the species (countries of origin, native range, habitat requirements, and food species),
The establishment of the categorical exclusion is open to public comment. Following review of the comments, the Service will submit the final categorical exclusion to CEQ, which will review it and our responses to public comments for conformity with NEPA and make a recommendation regarding approval of the categorical exclusion. If the categorical exclusion is approved by the Department, the Service will review each subsequent listing rule for the DOI-established extraordinary circumstances that would necessitate the preparation of an EA or an EIS. The Administrative Procedure Act rulemaking procedures and the review of extraordinary circumstances both ensure that the decision to apply the categorical exclusion as part of the NEPA environmental review is informed by input from other Federal agencies, other governmental and Tribal entities, and the public.
Any comments to be considered on this proposed addition to the list of categorical exclusions in the Departmental Manual must be received by the date listed in
The text we propose to add to 516 DM (see
8.5 Categorical Exclusions.
C.
(9) The adding of species to the list of injurious wildlife regulated under 50 CFR subchapter B, part 16, which prohibits the importation into the United States and interstate transportation of wildlife found to be injurious.
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This IC is scheduled to expire on November 30, 2013. We 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.
To ensure that we are able to consider your comments on this IC, we must receive them by August 30, 2013.
Send your comments on the IC to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS 2042—PDM, 4401 North Fairfax Drive, Arlington, VA 22203 (mail); or
To request additional information about this IC, contact Hope Grey at
The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703
This information collection is associated with our regulations that implement the MBTA. In the Code of Federal Regulations (CFR), 50 CFR 21.43 is a depredation order for blackbirds, cowbirds, grackles, crows, and magpies that authorizes take of these birds “when found committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner as to constitute a health hazard or other nuisance.”
All persons or entities acting under this depredation order must provide an annual report containing the following information for each species:
• Number of birds taken.
• Months and years in which the birds were taken.
• State(s) and county(ies) in which the birds were taken.
• General purpose for which the birds were taken (such as for protection of agriculture, human health and safety, property, or natural resources).
We collect this information so that we will be able to determine how many
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, National Park Service, Interior.
Notice of availability; extension of comment period.
We, the U.S. Fish and Wildlife Service (Service), advise the public that we are extending the public comment period for the Niobrara Confluence and Ponca Bluffs Conservation Areas Draft Environmental Impact Statement and Land Protection Plan until September 30, 2013. If you have previously submitted comments, please do not resubmit them, because we have already incorporated them in the public record and will fully consider them in our final decision.
To ensure consideration, please send your written comments by September 30, 2013.
You may submit your comments or a request for copies (hard copies or a CD-ROM) or more information by any of the following methods:
Nick Kaczor, Planning Team Leader, at (303) 236—4387, or by mail at Division of Refuge Planning, USFWS, P.O. Box 25486, DFC, Denver, CO 80225.
On April 8, 2013, we published a
Copies of the documents are available online at
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment-including your personal identifying information-may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The FWS and NPS are furnishing this notice in compliance with the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997; the National Park Service Organic Act of 1916 (16 U.S.C. 1 et seq.), and amendments thereto, and the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and its implementing regulations.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
The U.S. Fish and Wildlife Service (USFWS), announces the availability of two draft documents for public review:
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These voluntary guidelines are intended to be used by agencies and organizations to develop materials that inform the public and industry about the risks associated with many everyday activities that may spread aquatic invasive species and harm the environment and the economy. The intent of this information is to encourage the public and industry to take precautions to limit the spread of aquatic invasive species.
To ensure consideration, please send your written comments by July 31, 2013.
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Laura Norcutt, 703-358-2398.
Through provisions in Title 50, part 16, of the Code of Federal Regulations (CFR) 16, the U.S. Fish and Wildlife Service (Service) regulates the importation and interstate transport of certain aquatic species that have been determined to be injurious. The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (16 U.S.C. 4701 et seq.) established the Aquatic Nuisance Species Task Force (ANSTF), an intergovernmental organization co-chaired by the Service and the National Oceanic and Atmospheric Administration and dedicated to prevent and control the spread of aquatic nuisance species. In 2000, the ANSTF developed
In 2011 the ANSTF established committees to revise the
In July 2011, the ANSTF established a committee of about 50 representatives of Federal and State agencies, nongovernmental organizations, and industry to update the recreational guidelines from 2000. The revised draft document,
In November 2011, the ANSTF established a committee to develop guidance to address the potential spread of aquatic invasive species by water gardening. The product, a draft document titled
The draft revised guidelines are available on the ANSTF Web site (see
We request review and comment on our guidelines from local, State, Tribal, and Federal agencies and the public. All comments received by the date specified in DATES will be considered in preparing final documents. Methods of submitting comments are in
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. You can ask the Service in your comment to withhold your personal identifying information from public review; however, we cannot guarantee that we will be able to do so.
Responses to individual commenters will not be provided, but we will provide the comments we receive and a summary of how we addressed substantive comments in a document on the ANSTF Web site listed above in
Bureau of Land Management, Interior.
Notice of Intent.
As required under the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Prineville District Office, Prineville, Oregon, intends to prepare a Resource Management Plan (RMP) amendment with an associated Environmental Assessment (EA) in order to analyze the plan-level decision to change the Visual Resource Management (VRM) classification of approximately 45 acres at the top of Glass Buttes from a VRM class 2 to a VRM class 4. The BLM intends to concurrently analyze the implementation-level decision of whether to deny, approve, or approve with stipulations the Bonneville Power Administration's (BPA) and American
Comments on issues may be submitted in writing until July 31, 2013. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local news media, newspapers, and the BLM Web site at:
You may submit comments on issues and planning criteria related to the Glass Buttes Communication Site and VRM Plan Amendment EA by any of the following methods:
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Documents pertinent to this proposal may be examined at the Prineville District Office, 3050 NE. 3rd Street, Prineville, OR 97754.
Mike Kroll, Realty Specialist; telephone 541-416-6752; address Mike Kroll, 3050 NE. 3rd Street, Prineville, OR 97754; email
This document provides notice that the BLM District Office, Prineville, Oregon, intends to prepare an RMP amendment with an associated EA for the Brothers/La Pine planning area, announces the beginning of the scoping process, and seeks public input on issues and planning criteria. The affected portion of the Brothers/La Pine planning area is an approximately 45-acre contiguous parcel of land located atop Glass Buttes in Lake County in Oregon as follows: Willamette Meridian, Oregon: T. 23 S., R. 22 E., S1/2SW1/4NE1/4SW1/4, NE1/4SW1/4SW1/4, S1/2SW1/4SW1/4, NW1/4SE1/4SW1/4, sec.22.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process. Preliminary issues for the plan amendment area have been identified by BLM personnel; Federal, State, and local agencies; and other stakeholders. The issues include: How would the proposed VRM classification change affect sage-grouse habitat; how would the proposed VRM classification change affect Native American spiritual and traditional uses; and, how would the proposed VRM classification affect recreation. The planning work will be completed in compliance with FLPMA, NEPA, and all other relevant Federal laws, executive orders, and BLM management policies. Where existing planning decisions are still valid, those decisions may remain unchanged and be incorporated into the new amendment. The plans will recognize valid existing rights, Native American tribal consultations will be conducted in accordance with policy, and tribal concerns will be given due consideration. The planning process will include the consideration of any impacts on Indian trust assets. You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
The BLM will use the NEPA public participation requirements to assist the agency in satisfying the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470(f)) pursuant to 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources in the context of both NEPA and Section 106 of the NHPA.
The BLM will consult with Native American tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. The minutes and list of attendees for each scoping meeting will be available to the public and open for 30 days after the meeting to any participant who wishes to clarify the views he or she expressed. The BLM will evaluate identified issues to be addressed in the plan and will place them into one of three categories:
1. Issues to be resolved in the plan amendment;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan amendment.
The BLM will provide an explanation in the EA as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed in the plan. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use an interdisciplinary approach to develop the plan amendment in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: Rangeland management, minerals and geology, outdoor recreation, visual resource management, archeology, paleontology, wildlife, botany, lands and realty, hydrology, soils, sociology, and economics.
40 CFR 1501.7 and 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, and the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) Vernal Field Office, Vernal, Utah, intends to prepare an Environmental Impact Statement (EIS) for right-of-way (ROW) applications for the Enefit American Oil Utility Corridor Project (Utility Corridor Project), and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the EIS. Comments on issues must be submitted by July 31, 2013. The date(s) and location(s) of any public scoping meetings will be announced at least 15 days in advance through local news media, a project newsletter, and the BLM Web site at:
Comments on issues related to the Enefit Utility Corridor Project may be submitted by any of the following methods:
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Documents pertinent to this proposal may be examined at the BLM Vernal Field Office.
For further information and/or to have your name added to the Utility Corridor Project mailing list, contact Stephanie Howard, BLM Project Manager; telephone 435-781-4469; email:
The applicant, Enefit American Oil, has filed ROW applications seeking authorization to construct and operate natural gas, electricity, and water utilities on Federal lands. As proposed, 19 miles of water supply pipeline, 8 miles of natural gas supply pipeline, 10 miles of oil product line, 29 miles of single or dual overhead 138-kilovolt H-frame powerlines, and 5 miles of Dragon Road upgrade and pavement would be constructed and operated in 5 separate utility corridors crossing BLM-administered lands within the Project area.
The Utility Corridor Project would provide natural gas, electricity, and water to, and move processed oil from, Enefit American Oil's “South Project,” which is planned on private land and minerals owned by Enefit. The Enefit American Oil's planned South Project will include development of a commercial oil shale mining, retorting, and upgrading operation located in Uintah County, Utah. Approval or disapproval of Enefit American Oil's South Project is outside of the BLM's authority because it is located on private lands and minerals; however, since it is a connected and cumulative action to the Utility Corridor Project, the potential indirect and cumulative effects associated with the South Project will be analyzed and disclosed in the Utility Corridor Project EIS.
The Utility Corridor Project area is located within the southern portion of Townships 8-10 South, Ranges 24-25 East, Salt Lake Meridian, in Uintah County, Utah, approximately 12 miles southeast of Bonanza, Utah. Vernal, Utah, is the nearest major municipality, located approximately 40 miles north of the Utility Corridor Project area. The community of Rangely, Colorado, is located approximately 25 miles northeast of the Enefit American Oil's planned South Project site. The requested ROW widths for the Utility Corridor Project range from 50 feet, where a single pipeline would be located, to over 350 feet, where gas, water, and product lines would be located adjacent to overhead transmission lines.
Alternatives identified at this time include the proposed action and the no action alternatives. Additional alternatives will be developed as a result of issues and concerns identified through the scoping process.
The BLM Vernal Field Office Record of Decision and Approved Resource Management Plan (RMP) (October 2008) directs management of the BLM-administered public lands within the Utility Corridor Project area. The RMP provides for issuance of new ROWs (RMP, pp. 96 and 97). An amendment of the RMP is not required.
Pursuant to Section 368 of the Energy Policy Act of 2005 (42 U.S.C. 15926), a Programmatic EIS was prepared by the Department of Energy for energy corridors in the 11 western states (Washington, Oregon, Idaho, Montana, Wyoming, California, Nevada, Utah, Colorado, Arizona, and New Mexico), and notice of its availability was published on November 28, 2008 (73 FR 72521). Records of Decision (ROD) signed January 14, 2009, designated energy corridors and provided guidance, best management practices, and mitigation measures to be used where linear facilities are proposed crossing Federal lands. Designation of corridors does not require their use, nor does such designation exempt the Federal agencies from conducting an environmental review on each project therein. The Final RODs are available at the following Web site:
The BLM is the designated lead Federal agency for preparation of the EIS as defined in 40 CFR 1501.5. Agencies with legal jurisdiction or special expertise have been invited to participate as cooperating agencies in preparation of the EIS including: U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Bureau of Indian Affairs, Utah Public Lands Policy and Coordination Office, and the Ute Indian Tribe. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EIS. At present, the BLM has identified the following resources as potentially being impacted by the project: local and regional air quality and air quality related values; surface water and groundwater resources; floodplains; cultural and paleontological resources; soils; special status plant and animal species; range management; recreation; the White River; regional social programs; and regional economics.
The BLM will use and coordinate the NEPA commenting process to assist in satisfying the public involvement
Comments may be submitted in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7.
Bureau of Land Management, Interior.
Notice of Availability.
The Bureau of Land Management (BLM) announces the availability of the Decision Record (DR) for the Delta River Special Recreation Management Area and East Alaska Resource Management Plan Amendment (Approved Plan). The BLM-Alaska State Director, Bud C. Cribley, signed the DR on March 29, 2013. The DR constitutes the final decision of the Department on the plan and is effective immediately.
The DR is available on the BLM-Alaska Web site at www.blm.gov/ak/planning. Hard copies of the DR are available upon request from the BLM Glennallen Field Office, P.O. Box 147, Glennallen, AK 99588 or by calling 907-822-3217. The Environmental Assessment (EA) for the Delta River Special Recreation Management Area (SRMA) Plan and East Alaska Resource Management Plan (RMP) Amendment, which provides the analysis upon which the decision is based, is also available at the above Web site address, the BLM Glennallen Field Office, or by calling the office at 907-822-3217.
For further information contact Serena Sweet, telephone 909-271-4543 or by email at
The Delta River SRMA Plan and East Alaska RMP Amendment planning process began in 2005 with a Delta River recreation survey designed to obtain river users' opinions on issues, management actions, and preferences within the Delta River SRMA. In February and March of 2007, the BLM-Alaska Glennallen Field Office conducted a series of Benefits Based Management focus group meetings with Delta River stakeholders and Alaska Native tribes and corporations to discuss primary uses of the Delta River planning area and desired future conditions and management options. A Notice of Intent was published in the
The Approved Plan provides for a mix of river recreation uses and users, while managing to protect the environment and the outstandingly remarkable values of the Delta River SRMA. It provides a balanced management approach by emphasizing the protection of river resources from human impacts by utilizing an adaptive management approach to track the implementation and effectiveness of management actions, while still allowing for a wide range of current and future public uses and high quality recreational experiences in the Delta River SRMA. The Approved Plan also provides management direction that will minimize social conflicts, with a strong emphasis on public education and interpretive outreach.
40 CFR 1506.6.
Bureau of Reclamation, Interior.
Notice.
The Bureau of Reclamation has made available for public review and comment the Draft Environmental Impact Statement (DEIS) for the Shasta Lake Water Resources Investigation (SLWRI). The purpose of the proposed action is to improve operational flexibility of the Sacramento-San Joaquin Delta watershed system by modifying the existing Shasta Dam and Reservoir to meet specified objectives. Primary objectives are to increase the survival of anadromous fish populations in the upper Sacramento River and increase water supply and water supply reliability. Secondary planning objectives are to: conserve, restore, and enhance ecosystem resources in the primary study area; reduce flood damage along the Sacramento River; develop additional hydropower generation capabilities; maintain and increase recreation opportunities; and maintain or improve water quality conditions in the Sacramento River downstream from Shasta Dam and in the Sacramento-San Joaquin Delta.
Submit written comments on the DEIS on or before September 30, 2013.
Three public workshops and three public hearings will be held. See
Please send written comments to Ms. Katrina Chow, Bureau of Reclamation, 2800 Cottage Way, Sacramento, CA 95825, or by email to
Ms. Katrina Chow, Reclamation Project Manager, at the above address, at 916-978-5067, TDD 916-978-5608; via fax at 916-978-5094; or by email to
Shasta Dam was completed in 1945 to serve multiple purposes, including flood control; water supply for agricultural, municipal and industrial, and environmental purposes; and hydropower generation. In addition, extensive recreational opportunities in and around Shasta Lake significantly contribute to the regional economy.
Authorization for the investigation comes from Public Law (Pub. L.) 96-375, 1980, directing the Secretary of the Interior to engage in feasibility studies related to enlarging Shasta Dam and Reservoir. Related legislation includes Title 34 of Public Law 102-575 (the Central Valley Project Improvement Act) and Public Law 108-361, the CALFED Bay-Delta Authorization Act. In addition, enlargement of Shasta Dam was identified in the CALFED Programmatic Environmental Impact Report/Statement and Record of Decision.
In February 2012, the Bureau of Reclamation (Reclamation) released a Draft Feasibility Report and Preliminary DEIS for the SLWRI to inform the public, stakeholders, and decision makers about the results of the SLWRI at that time. The Draft Feasibility Report describes the water resources needs and opportunities, purpose of the proposed action, planning objectives and constraints, the plan formulation and evaluation process and criteria, and the potential effects, costs, and benefits of five action alternatives and the No Action Alternative.
After release of the DEIS for public review and comment, the Final Feasibility Report and EIS will be prepared and processed together to support decision making for any related future recommendations, approvals, or authorizations that may result. The following planning objectives apply to the proposed action/project modification.
• Primary Planning Objectives. (1) increase the survival of anadromous fish populations in the Sacramento River, primarily upstream from the Red Bluff Diversion Dam, and (2) increase water supply and water supply reliability for agricultural, municipal and industrial, and environmental purposes to help meet future water demands, with a focus on enlarging Shasta Dam and Reservoir. Action alternatives were formulated to address these primary planning objectives.
• Secondary Planning Objectives. The following actions, operations, or features are included to the extent possible and consistent with the primary planning objectives: (1) Conserve, restore, and enhance ecosystem resources in the Shasta Lake area and along the upper Sacramento River, (2) reduce flood damage along the Sacramento River, (3) develop additional hydropower generation capabilities at Shasta Dam, (4) maintain and increase recreation opportunities at Shasta Lake, and (5) maintain or improve water quality conditions in the Sacramento River downstream from Shasta Dam and in the Sacramento-San Joaquin Delta.
The DEIS documents a reasonable range of alternatives and evaluates the potential direct, indirect, and cumulative environmental effects of alternative plans. Evaluation of six alternatives is documented in the DEIS, including a No-Action Alternative and five action alternatives. The DEIS displays the potential project-related impacts, including the effects of project construction and operation on the following resource areas: geology, air quality, hydrology, water quality, noise, hazards and hazardous materials, important agricultural lands, fish, vegetation and wildlife, cultural resources, Indian Trust Assets, socioeconomics, land use, recreation, visual resources, traffic and circulation, utilities, public services, power and energy, environmental justice, and wild and scenic rivers.
Potential project-related impacts include the construction-related effects of the dam enlargement, reservoir area relocations, and other alternative features; water operations-related effects within the reservoir area (e.g., including additional inundation areas); and associated effects to operations of other Central Valley Project and State Water Project facilities. Project operations may directly or indirectly affect the resources of the Sacramento River, its tributaries, the San Joaquin River, its tributaries, and the Sacramento-San Joaquin Delta. The DEIS also evaluates potential growth-inducing impacts for the Central Valley Project and State Water Project water service areas. Potential cumulative effects associated with reasonably foreseeable actions are also evaluated for each resource area.
Copies of the DEIS are available for public review at the following locations:
• Bureau of Reclamation, Regional Library, 2800 Cottage Way, Sacramento, CA 95825
• Bureau of Reclamation, Northern California Area Office, 16349 Shasta Dam Boulevard, Shasta Lake, CA 96019
• Natural Resources Library, Department of the Interior, 1849 C Street
• Shasta County Main Library, 1855 Shasta Street, Redding, CA 96001
Copies of the DEIS are also available on-line via the SLWRI Web site, at:
Reclamation will hold three public workshops to provide an overview of the project and allow public comment and discussion:
• Tuesday, July 16, 2013, 6:00-8:00 p.m., Holiday Inn Hotel, Palomino Room, 1900 Hilltop Drive, Redding, California 96002.
• Wednesday, July 17, 2013, 1:00-3:00 p.m., Cal Expo Quality Inn Hotel & Suites, 1413 Howe Avenue, Sacramento, California, 95825.
• Thursday, July 18, 2013, 6:00-8:00 p.m., Merced County Fairgrounds, Germino Building, 403 F Street, Los Banos, California, 93635.
Reclamation will also hold three public hearings to receive oral or written comments on the DEIS:
• Tuesday, September 10, 2013, 6:00-8:00 p.m., Holiday Inn Hotel, Palomino Room, 1900 Hilltop Drive, Redding, California 96002.
• Wednesday, September 11, 2013, 1:00-3:00 p.m., Cal Expo Quality Inn Hotel & Suites, 1413 Howe Avenue, Sacramento, California, 95825.
• Thursday, September 12, 2013, 6:00-8:00 p.m., Merced County Fairgrounds, Germino Building, 403 F Street, Los Banos, California, 93635.
If special assistance is required to participate in the above public workshops and hearings, please contact Ms. Katrina Chow at 916-978-5067, or by email at
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping and countervailing duty orders on sodium nitrite from China and the antidumping duty order on sodium nitrite from Germany would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping and countervailing duty orders on laminated woven sacks from China would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in these reviews by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S.
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
These reviews are being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)) (the Act) to determine whether revocation of the antidumping duty order on non-malleable cast iron pipe fittings from China would be likely to lead to continuation or recurrence of material injury. Pursuant to section 751(c)(2) of the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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(2) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation. The Commission's designated agency ethics official has advised that a five-year review is not considered the “same particular matter” as the corresponding underlying original investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 73 FR 24609 (May 5, 2008). This advice was developed in consultation with the Office of Government Ethics. Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this review by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
This review is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
30-day Notice.
The Department of Justice, U.S. Marshals Service will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comments until July 31, 2013. This process is conducted in accordance with 5 CFR 1320.10.
All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Nicole Feuerstein, U.S. Marshals Service, CS-3, 10th Fl., 2604 Jefferson Davis Hwy, Alexandria, VA 22301.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including the use of automated, electronic, mechanical, or other technological collection techniques of other forms of information technology, e.g., permitting electronic submission of responses.
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Form Numbers:
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It is estimated that 100 respondents will complete a 20 minute form.
It is estimated that 12 respondents will complete a 15 minute form.
It is estimated that 800 respondents will complete a 20 minute form.
It is estimated that 300 respondents will complete a 30 minute form.
6.
There are an estimated 33 annual total burden hours associated with this collection.
There are an estimated 3 annual total burden hours associated with this collection.
There are an estimated 267 annual total burden hours associated with this collection.
There are an estimated 150 annual total burden hours associated with this collection.
If additional information is required contact: Jerri Murray, Department of Justice Clearance Officer, Justice Management Division, United States Department of Justice, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 1407B, Washington, DC 20530.
60-Day Notice.
The Foreign Claims Settlement Commission (Commission), Department of Justice, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments should be directed to OMB, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20503. Comments are encouraged and will be accepted for 60 days until August 30, 2013.
All comments and suggestions, or questions regarding additional information, including obtaining a copy of the proposed information collection instrument, should be directed to Jeremy LaFrancois, Foreign Claims Settlement Commission, Department of Justice, 600 E Street NW., Suite 6002, Washington DC 20579, or by facsimile (202) 616-6993.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
Overview of this information collection:
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 1407B, Washington, DC 20530.
60-Day Notice.
The Department of Justice, Office on Violence Against Women (OVW) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Written comments concerning this information collection should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are received is to email them to
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) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(2)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 1407B, Washington, DC 20530.
Notice is hereby given that, on May 31, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 17, 2004, IEEE filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 11, 2013. A notice was published in the
Notice is hereby given that, on May 23, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: Alcatel-Lucent USA Inc., Mountain View, CA; Arista Networks Inc., Santa Clara, CA; Big Switch Networks, Mountain View, CA; Brocade Communications Systems, Inc., San Jose, CA; Ciena Corporation, Hanover, MD; Cisco Systems Inc., San Jose, CA; Citrix Systems, Inc., Santa Clara, CA; Cyan Inc., Petaluma, CA; Dell Inc., Round Rock, TX; Ericsson Inc., San Jose, CA; Fujitsu Limited, Kawasaki, JAPAN; Hewlett Packard Company, Palo Alto, CA; Huawei Technologies Co. Ltd., Shenzhen, PEOPLE'S REPUBLIC OF CHINA; International Business Machines Inc., Endicott, NY; Inocybe Technologies Inc., Gatineau, Quebec City, CANADA; Intel Corporation, Santa Clara, CA; Juniper Networks, Sunnyvale, CA; Microsoft Corporation, Redmond, WA; NEC Corporation, Tokyo, JAPAN; PLUMgrid Inc., Sunnyvale, CA; Radware LTD, Telaviv, ISRAEL; Red Hat Inc., Raleigh, NC; and VMware Inc., Palo Alto, CA.
The general area of OpenDaylight's planned activity is to (a) Advance the creation, evolution, promotion, and support of an open source software defined network software platform (“Platform”); (b) support and maintain the strategic framework of the Platform through the technologies made available by the organization to make the Platform a success; (c) support and maintain policies set by the Board; (d) promote such Platform worldwide; and (e) undertake such other activities as may from time to time be appropriate to further the purposes and achieve the goals set forth above.
Notice is hereby given that, on May 31, 2013, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Dongguan ChuDong Electronic Technology Co., Ltd., Guangdong, People's Republic of China; Huizhou Aihua Multimedia Co., Ltd., Guangdong, People's Republic of China; and Kentec, Inc., Taipei, Taiwan, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and DVD CCA intends to file additional written notifications disclosing all changes in membership.
On April 11, 2001, DVD CCA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on February 20, 2013. A notice was published in the
On June 8, 2011, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Bio Diagnostic International, Inc. (hereinafter, BDI or Respondent), of Brea, California. The Show Cause Order proposed the denial of Respondent's application for a registration as a distributor of list I chemicals, on the ground that Respondent's registration “would be inconsistent with the public interest.” Show Cause Order at 1 (citing 21 U.S.C. 823(h) and 824(a)(4)).
The Show Cause Order specifically alleged that on September 1, 2009, Respondent had applied for a DEA registration as a distributor of iodine, a list I chemical.
On June 27, Mr. Anand filed a request for a hearing on behalf of Respondent and the matter was placed on the docket of the Office of Administrative Law Judges (ALJ). Thereafter, the assigned ALJ issued an order for pre-hearing statements; both parties complied with the order.
In its pre-hearing statement, the Government provided notice that one of its witnesses would testify that “Respondent is required to have a valid California Board of Pharmacy license . . . or a California Bureau of Narcotic Enforcement permit . . . and . . . Respondent's state permit expired on June 11, 2011 and was not renewed.” Gov. Pre-Hearing Statement, at 6-7. The Government noticed that its witness would further testify that “currently the Respondent is not authorized to handle list I chemicals in the State of California.”
Based on the above, the ALJ issued a Memorandum to Parties and Order. Therein, the ALJ ordered the parties to address two issues: (1) whether the “Respondent presently possess[es] a valid . . . state license, registration or other authority to handle listed chemicals, to include list I chemicals,
In response, the Government filed a Motion for Summary Disposition. Therein, the Government argued that Respondent is required to hold a California Chemical Substances Permit “in order to purchase or sell Iodine in the State” and that its “permit expired on June 11, 2011 and was not renewed.” Mot. for Summ. Disp. at 2. The Government thus contended that because “Respondent is currently without authority to handle list I chemicals in the State of California, the state in which [it] seeks registration with the DEA, [it] is not eligible to possess a DEA registration in that state.”
In its pleading, Respondent did not dispute that its state permit had expired and provided a copy of its expired permit. However, Respondent further stated that it had “already applied to renew the expired certificate.” Resp. Pleading (July 14, 2011), at 2.
On July 28, 2011, the Administrative Law Judge (ALJ) granted the Government's motion, holding that because Respondent does not hold authority under California law to handle iodine, it is not entitled to be registered. Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of the ALJ (July 28, 2011) (hereinafter, ALJ I). As support for his ruling, the ALJ noted that “[u]nder 21 U.S.C. 824(a)(3), a practitioner's loss of state authority `to engage in the manufacturing, distribution or dispensing of controlled substances or a list I chemical' is grounds to revoke a practitioner's registration” and that DEA “has consistently held that a registrant or prospective registrant may not hold a DEA registration if the registrant is without appropriate authority under the laws of the state in which it does business.”
Finding it undisputed that Respondent had allowed its California Bureau of Narcotic Enforcement Permit for Controlled Chemical Substances to expire and that “there is no genuine dispute as to any material fact,” the ALJ concluded that there is “substantial evidence that Respondent is presently without state authority to handle list I chemicals in California, the jurisdiction in which it seeks a DEA [registration] to distribute list I chemicals.”
On review of the record, I remanded the case for further proceedings. Order Remanding For Further Proceedings (Oct. 17, 2011). In the remand order, I noted that in its motion, the Government relied entirely on Respondent's lack of the permit issued by the California Department of Justice, which the Government argued Respondent must have to purchase or sell iodine in California under state law.
On review, I noted that in its motion, the Government did not address the potential applicability of the exemption of subparagraph C and it offered no evidence that Respondent lacks a license issued by the Board of Pharmacy, even though in its pre-hearing statement, it represented that a Diversion Investigator would testify that “the Respondent is required to have a valid California Board of Pharmacy license . . . or a California Bureau of Narcotic Enforcement permit.”
However, in the remand order, I held that the Government had the burden of proof on the issue of whether Respondent has authority under California law, and on summary disposition, it was required to show, “with materials of appropriate evidentiary quality, that every state of facts is excluded save that which entitles [it] to relief.”
On remand, the ALJ issued a second Memorandum to Parties and Order (Memorandum II, Oct. 26, 2011). Therein, the ALJ directed the Government to address “whether Respondent presently possesses a valid, unrevoked and unrestricted state license, registration or other authority, including a license from the California Board of Pharmacy, to handle listed chemicals, including list I chemicals,” as well as “whether Respondent's application for a DEA Certificate of Registration . . . to distribute list I chemicals should be summarily resolved without a plenary administrative hearing.” Memorandum II, at 2.
On November 2, the Government filed a new Motion for Summary Disposition. Therein, the Government stated that it had contacted the California Department of Justice Bureau of Narcotic Enforcement and determined that Respondent's Controlled Chemical Substances Permit had expired on June 11, 2011 and had not been renewed. Motion for Summary Disp (II), at 4. The Government further stated that it had contacted the California State Board of Pharmacy and determined that neither Respondent, nor its owner, holds a license issued by the Board.
In its motion, the Government reiterated its position that because “Respondent is currently without authority to handle list I chemicals in the State of California, the state in which [it] seeks registration with the DEA, [it] is not eligible to possess a DEA registration in that state” and that the CSA “requires that a list I chemical manufacturer and distributor must be currently authorized to handle list I chemicals in the jurisdiction in which it seeks to maintain a DEA registration.”
On November 9, the ALJ granted the Government's motion. Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of the ALJ (Nov. 9, 2011) (hereinafter, ALJ II). As a preliminary matter, the ALJ noted that Respondent had failed to “respond to the Government's November 2, 2011 motion for summary disposition, or seek an extension within the deadline for response,
Turning to the merits, the ALJ found that it was undisputed that Respondent did not renew his state Permit for Controlled Chemical Substances and that Respondent is not exempt from this requirement because it does not hold a license issued by the California State Board of Pharmacy. ALJ at 6. Noting that under 21 U.S.C. 824(a)(3), the loss of state authority to manufacture or distribute a list I chemical “is grounds to revoke a practitioner's registration,”
On the other hand, if Respondent did hold the requisite Pharmacy Board license and were the Agency to grant its application, it would immediately have state authority. And as explained in this decision, the CSA does not make possession of state authority a condition precedent to granting a registration for a list I chemical distributor.
Neither party filed exceptions to the ALJ's recommended decision. Thereafter, the ALJ re-forwarded the record to me for final agency action.
Having considered the entire record, I adopt the ALJ's factual findings that Respondent does not possess either a California Bureau of Narcotic Enforcement Permit for Controlled Chemical Substances or a license from the California Board of Pharmacy, as well as his legal conclusion that Respondent does not currently possess authority under California law to handle list I chemicals in California. While I also adopt the ALJ's recommendation that Respondent's application be denied, for reasons explained below, I do not adopt the ALJ's reasoning that the Government was entitled to summary disposition on the basis that Respondent lacks state authority. However, I find that two alternative grounds exist to deny Respondent's application: (1) That Respondent has waived his right to a hearing to contest whether granting his application would be inconsistent with the public interest, and (2) Respondent did not apply for the correct registration and thus would not be in compliance with applicable laws.
As discussed above, the Government maintains that because “Respondent is currently without authority to handle list I chemicals in . . . California, the state in which [it] seeks registration . . . [it] is not eligible to possess a DEA registration in that State” and that the CSA “requires that a list I chemical
Contrary to both the Government's and the ALJ's understanding, the CSA neither makes the current possession of state authority an essential condition for holding a DEA registration, nor requires that the Agency revoke an existing registration held by, or deny an application submitted by, a list I chemical handler because it is not currently authorized by the State to handle list I chemicals. Indeed,
To be sure, in numerous cases involving practitioners, this Agency has held that “a practitioner must be currently authorized to handle controlled substances in the `jurisdiction in which [it] practices' in order to [obtain and] maintain a DEA registration.”
Accordingly, DEA has uniformly denied the applications of practitioners who lack state authority. Moreover, notwithstanding that 21 U.S.C. 824(a)(3), grants the Agency the authority to either suspend or revoke “[a] registration pursuant to section 823,” based on the CSA's clear requirement that a practitioner must possess state authority to hold a registration, DEA has uniformly revoked the registrations of practitioners who no longer possess state authority to dispense controlled substances and done so without regard to the underlying reason why the practitioner no longer possesses the requisite authority.
By contrast, in defining the term “distributor,” Congress did not impose a requirement that the person engaged in this activity hold state authority.
To be sure, in section 823(h), Congress directed that “[i]n determining the public interest,” the Agency “shall consider,”
This is not to say that DEA will grant an application for registration notwithstanding an applicant's failure to obtain a required state license. Indeed, as it does here, an applicant's failure to obtain a required state license will likely warrant an adverse finding under the compliance factor,
What it is to say is that summary disposition may not be an appropriate mechanism for resolving such a case
In this matter, it is noted that in his July 14, 2011 filing, Respondent's owner claimed that it had filed for a renewal of its state license. However, since then, Respondent has produced no evidence that it has obtained a new state license. In addition, Respondent failed to comply with the ALJ's order for prehearing conference and failed to respond to the Government's renewed motion for summary disposition. As the First Circuit has noted in language that applies with equal force to administrative proceedings, “`[l]itigants must act punctually and not casually or indifferently if a judicial system is to function effectively.'”
In addition, as I noted in the remand order, Respondent applied for a distributor's registration, and paid the fee for this category of registration (and not the fee for a manufacturer's registration).
Under DEA's regulation, the manufacturing of list I chemicals is deemed to be an activity which is independent of distribution (although a registered manufacturer can lawfully engage in distribution), and thus requires a manufacturer's registration.
Under the CSA, “[p]ersons registered . . . to manufacture, distribute, or dispense controlled substances or list I chemicals are authorized to possess, manufacture, distribute, or dispense such substances or chemicals . . . to the extent authorized by their registration.”
Based on Respondent's failure to obtain the required state permit or license, as well as that its proposed activity would not be lawful under the registration for which it applied, I find that the record supports a finding under factor two that granting Respondent's application would be “inconsistent with the public interest.” 21 U.S.C. 823(h). Accordingly, Respondent's application will be denied.
However, because following issuance of the remand order, Respondent has not filed any pleadings including exceptions, I deem any such error harmless.
Pursuant to the authority vested in me by 21 U.S.C. 823(h) and 28 CFR 0.100(b), I order that the application of Bio Diagnostic International, Inc., for a DEA Certificate of Registration as a distributor of list I chemicals, be, and it hereby is, denied. This Order is effective July 31, 2013.
On February 4, 2011, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Sigrid A. Sanchez, M.D. (Respondent), of Sunrise, Florida. The Show Cause Order proposed the denial of Respondent's pending application for a DEA Certificate of Registration as a practitioner, on the ground that her “registration would be inconsistent with the public interest.” GX 7, at 1 (citing 21 U.S.C. 823(f)).
More specifically, the Show Cause Order alleged that on May 19, 2010, Respondent had surrendered her previous DEA registration, and that on July 29, 2010, she had applied for a new registration.
The Order alleged that the federal violations included,
With respect to the state violations, the Show Cause Order alleged that “by the transfer of controlled substances,” Respondent violated various provisions of Floria law.
In a letter dated February 16, 2011, Respondent acknowledged service of the Show Cause Order. In her letter, Respondent further stated that she was waiving her right to a hearing but submitting a “written statement regarding [her] position on the matters of fact and law involved.” GX 6.
Having considered the entire record (including Respondent's statement), I conclude that granting Respondent's application would be inconsistent with the public interest. Accordingly, Respondent's application will be denied. I make the following findings.
Respondent previously held a DEA Certificate of Registration as a practitioner in schedules II through V. GX 1, at 1. On April 7, 2010, Respondent changed her registered address to 2001 N E 48th St., Fort Lauderdale, Florida.
On April 30, 2010, DOH Investigators went to the Mercy Wellness clinic to conduct a dispensing practitioner inspection; at the same time, the Ft. Lauderdale Police Department executed a search warrant at the clinic. GX 4, at 1. Upon their arrival, the DOH Investigators observed that the clinic had an armed security guard at both the front and back entrances and that it had “a large waiting area filled with patients.” GX 5, at 47.
DOH Investigators interviewed several employees as well as Respondent. According to an affidavit of one of the DOH Investigators, at the time of the inspection a different doctor, M.W., was listed in DOH's records as the dispensing practitioner of record and was “the intended subject of the inspection.” GX 5, at 47. However, upon arriving at the clinic, the Investigators determined that Dr. M.W. had stopped working there on April 2nd and that Respondent “was the dispensing practitioner.”
According to the Investigator's affidavit, the clinic had “one examination room and a room directly adjacent to it which” was identified “as the `Pharmacy.'”
During her interview, Respondent “admitted that she [did] not verify [or] check the medications that [were] dispensed and sold to any of the patients” as this was done by J.F.
During her interview, Respondent initially stated that J.F. was the pharmacist and in charge of the pharmacy.
The DOH Investigators further noted that Dr. W. had left prescription drug products at the clinic when he left its employment and that these were “allegedly transferred to” Respondent. Moreover, Respondent admitted that on April 20, 2010, she signed a DEA 222 form to take possession of the controlled substances left by Dr. W.
Respondent further admitted to a DOH Investigator that she “never completed an inventory of the medication present and did not know of any inventory ever [having been] taken by others.”
During the inspection, Respondent agreed to voluntarily surrender her DEA registration. Respondent completed a DEA Form 104 evidencing her agreement. GX 5, at 67. On July 29, 2010, Respondent applied for a new registration. GX 1.
As noted above, following service of the Show Cause Order, Respondent submitted an unsworn written statement of position. GX 6. Therein, Respondent stated that she had been placed at Mercy by All Care Staffing, a temporary staffing agency and had started work there on April 13, 2010. GX 6, at 1. Respondent further stated that she had previously obtained work through All Care and that at the time of her placement at Mercy, she had interviewed with two internal medicine groups and while she was doing due diligence on them, contacted All Care.
Respondent then addressed the various violations found by the DOH Investigators. First, she asserted that “[t]o the best of [her] knowledge, the prescription drugs at [Mercy] were at all times stored and otherwise locked in a safe . . . and that access was restricted, in compliance with 21 CFR 1301.75.”
Respondent further stated that “upon the initial date” of her employment at Mercy, she “did order medications pursuant to a form DEA 222” and did so because she was told that she “could not use the medications that had been ordered by” Dr. W., the previous doctor.
Respondent stated that because she “worked three days a week for a three week period of time, [she] did not do an inspection or complete an inventory.”
Respondent “acknowledge[d] that [she] did not personally check and certify filled prescription[s] for accuracy prior to [the] patient receiving” them.
Respondent further stated that following the inspection, she terminated her employment at Mercy. However, she again reiterated that she “was improperly led to believe that [Mercy] was properly running its practice, with the appropriate personnel, licenses, and permits,” and that the dispensing of drugs was being “done properly and in full compliance with the law” but that she had concluded that the “many compliance breaches in this matter clearly existed long before [her] locum tenens assignment to” Mercy.
Respondent stated that she “believed that it was not improper for [her] to provide services [for Mercy] and that the practice was operated appropriately” and that she “simply was not fully aware of the obligations discussed in the paragraphs above and believed [she] was in compliance with the laws.”
Section 303(f) of the Controlled Substances Act (CSA) provides that an application for a practitioner's registration may be denied upon a determination “that the issuance of such registration . . . would be inconsistent with the public interest.” 21 U.S.C. 823(f). In making the public interest determination in the case of a practitioner, Congress directed that the following factors be considered:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing . . . controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
“[T]hese factors are considered in the disjunctive.”
In the case of a practitioner, the Government has the burden of proving with substantial evidence that granting an application would be inconsistent with the public interest. However, where the Government makes out a
In addition, “DEA properly considers the candor of the physician and his forthrightness in assisting in the investigation and admitting fault important factors in determining whether the physician's registration” is consistent with the public interest.”
In this matter, I conclude that the Government's evidence with respect to factors four and five establishes a
As for factor three, the Government raises no contention that Respondent has been convicted of a federal or state law offense related to controlled substances. However, because there are multiple reasons why an applicant or registrant may not have been convicted or even prosecuted for such an offense, the absence of such a conviction “is of considerably less consequence in the public interest inquiry.”
Based on the DOH Inspection, the Government alleges that Respondent committed multiple violations of the CSA, its implementing regulations, as well as Florida law and regulations. These violations include her failure to conduct an initial inventory of the controlled substances, her failure to institute sufficient security/diversion controls, and her improper execution of a DEA 222 form for the transfer of controlled substances from the clinic's prior doctor.
The CSA provides in relevant part that “every registrant . . . shall . . . as soon . . . as such registrant first engages in the manufacture, distribution, or dispensing of controlled substances . . . make a complete and accurate record of all stocks thereof on hand.” 21 U.S.C. 827(a)(1).
The Government further argues that Respondent “could not specify what quantity of drugs she received from Dr. [W.'s] stock of controlled substances, thus violating 21 CFR 1304.22.” Req. for Final Agency Action, at 5. This, however, is simply the same violation as set forth in the preceding paragraph.
The Government also contends that Respondent violated Federal regulations because she allowed other persons to order controlled substances on her behalf and did not issue a Power of Attorney. The Government argues that although Respondent signed several Schedule II order forms which were “completed by another individual, she did not order the medications and she was not notified when controlled substances were ordered on her behalf.”
Under the CSA, a schedule II controlled substance can only be distributed pursuant to “a written order of the person to whom such substance is distributed, made on a form . . . issued by the Attorney General [DEA-222].” 21 U.S.C. 828(a). DEA regulations further provide, in relevant part, that “[o]nly persons who are registered . . . under section 303 of the [CSA] to handle Schedule I or II controlled substances . . . may obtain and used DEA Form 222 . . . for these substances. Persons not registered to handle Schedule I or II controlled substances . . . are not entitled to obtain Form 222.” 21 CFR 1305.04(a). A registrant may, however, “authorize one or more individuals . . . to issue orders for Schedule I and II controlled substances on the registrant's behalf by executing a power of attorney for each such individual.”
The evidence does not, however, establish that Respondent violated either the CSA or the Agency's regulations by signing the order forms because the evidence shows that the forms were completed by the pharmacy technician and then signed by Respondent. Thus, because Respondent signed the form, she and not the pharmacy technician issued the orders,
However, Respondent admitted that she did not know what controlled substances were being ordered under her registration as well as when they were being received, and the evidence shows that other scheduled drugs including hydrocodone, alprazolam, and diazepam (which do not require the execution of a Form 222 to order) were found at the clinic. Moreover, other evidence establishes that the clinic did dispense controlled substances (notwithstanding that Respondent had been at the clinic for only seventeen days at the time of the inspection) which were ordered under her registration. Under DEA's regulations applicable to all registrants, a practitioner is required to institute and maintain an adequate system “for monitoring the receipt . . . distribution, and disposition of controlled substances.” 21 CFR 1301.71(b)(14). Respondent did not comply with this requirement.
The CSA also requires that “every registrant . . . manufacturing, distributing, or dispensing a controlled substance or substances shall maintain, on a current basis, a complete and accurate record of each such substance manufactured, received, sold, delivered, or otherwise disposed of by him.”
The Government also alleges that “Respondent failed to store [the] controlled substances in a securely locked cabinet” and that DOH Investigators observed that multiple employees had access to the drug dispensing room. Req. for Final Agency Action, at 4 (citing 21 CFR 1301.71(b)(11) and 1301.75(b)). As for the failure to store the controlled substances in a securely locked cabinet, the DOH Investigators stated that drugs were observed both in an open safe and on a table in the pharmacy area. It is not clear why this would constitute a violation if the clinic was then open and preparing prescriptions for dispensing.
As for the observation that multiple employees had access to the dispensing room, under DEA regulations, “[a]ll applicants and registrants shall provide effective controls and procedures to guard against theft and diversion of controlled substances.” 21 CFR 1301.71(a). Among the factors which DEA considers is “[t]he adequacy of
The evidence also shows that clinic personnel (including Respondent) violated various provisions of State law. More specifically, the evidence showed that the clinic employee who filled the prescriptions and dispensed them was not licensed as a pharmacist, but rather only as a pharmacy technician, and that Respondent, who was registered as a dispensing physician, admitted that she did not verify the prescriptions that were dispensed to the patients. Under Florida law in effect at the time of the events at issue here, “[a] person may not dispense medicinal drugs unless licensed as a pharmacist or otherwise authorized under this chapter to do so, except that a practitioner authorized by law to prescribe drugs may dispense such drugs to her or his patients in the regular course of her or his practice in compliance with this section.” Fla. Stat. § 465.0276(1).
In her written statement, Respondent repeatedly asserted that she believed that the pharmacy technician was actually a licensed pharmacist. I do not find this credible because the affidavit of one of the DOH Investigators establishes that “on the wall immediately inside the dispensing room,” there was an 8
However, in her written statement, Respondent stated that she had been in the dispensing room and seen the technician prepare the labels, count the pills and place them in the bottles for dispensing. Unexplained by Respondent is how she could then have been unaware that J.F. was not a licensed pharmacist. I thus reject Respondent's contention that she believed that J.F. was a pharmacist and could lawfully dispense medications. Moreover, it is a violation of the Florida Medical Practice Act to “delegat[e] professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.” Fla. Stat. Ann. § 458.331(w).
The DOH Investigators further found that the clinic did not have pedigree documents for any of the drugs that were on hand. As noted above, Respondent admitted that drugs were ordered under her DEA registration during her time there. Florida law provides in relevant part that “[a] drug or device is adulterated . . . [i]f it is a prescription drug for which the required pedigree paper
As the forgoing demonstrates, Respondent failed to comply with a variety of federal and state controlled substance laws and regulations as well as state pharmacy laws and rules. As for the latter, while these laws and rules are applicable to all prescription drugs and not just controlled substances, these violations are properly considered under factor five as other conduct which may threaten public health and safety for two reasons. First, the violations involved the dispensing of controlled substances. Second, violations of state pharmacy rules and food and drug safety provisions are relevant (even if the conduct did not involve controlled substances) in assessing the likelihood of an applicant's future compliance with the CSA.
On the other hand, the record in this matter establishes that Respondent's record of non-compliance with the CSA was limited to a seventeen-day period. While it may be that this conduct would have continued but for the DOH inspection, Respondent stated in her letter that following the inspection she terminated her relationship at the clinic and there is no evidence disputing this.
It is also acknowledged that Respondent's letter demonstrated some degree of contrition. However, I do not find credible Respondent's numerous assertions that she believed that JF was a licensed pharmacist. In addition, while Respondent emphasizes that her employment at Mercy “was the first time in [her] professional career that [she] had been a dispensing practitioner,” and that she “was completely unaware that [she] had run afoul of the laws governing dispensing practitioners,” GX 6, at 1, ignorance of the law is no excuse.
DEA can, of course, consider deterrence interests in determining whether to grant or deny an application.
All registrants are charged with knowledge of the CSA, its implementing regulations, as well as applicable state laws and rules. Moreover, those registrants who contemplate employment in circumstances in which their registrations are used to operate clinics owned by non-registrants need to recognize that there are serious consequences for failing to comply with the Act and that they remain strictly liable for all activities which occur under the authority of their registrations.
Accordingly, having considered the record as a whole, I conclude that Respondent has not sufficiently demonstrated why she should be entrusted with a new registration. I therefore hold that granting Respondent's application would, at this time, be “inconsistent with the public interest.” 21 U.S.C. 823(f). However, given that the violations proved on this record were limited in both their scope and duration, a new application should be given favorable consideration if submitted no earlier than one year from the date of this Order, provided that Respondent meets the following conditions: (1) That she does not engage in any further misconduct, and (2) that she takes a certified Continuing Medical Education course on controlled substance handling and dispensing.
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 CFR 0.100(b), I order that the application of Sigrid Sanchez, M.D., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This order is effective July 31, 2013
Pursuant to Title 21 Code of Federal Regulations 1301.34 (a), this is notice that on March 8, 2013, Mylan Pharmaceuticals, Inc., 3711 Collins Ferry Road, Morgantown, West Virginia 26505, made application to the Drug Enforcement Administration (DEA) to be registered as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances in finished dosage form (FDF) from foreign sources for analytical testing and clinical trials in which the foreign FDF will be compared to the company's own domestically-manufactured FDF. This analysis is required to allow the company to export domestically-manufactured FDF to foreign markets.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than July 31, 2013.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
Pursuant to Title 21 Code of Federal Regulations 1301.34(a), this is notice that on May 9, 2013, Akorn, Inc., 1222 W. Grand Avenue, Decatur, Illinois 62522, made application by renewal to the Drug Enforcement Administration (DEA) for registration as an importer of Remifentanil (9739), a basic class of controlled substance listed in schedule II.
The company plans to import Remifentanil in bulk for use in dosage-form manufacturing.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance listed in schedules I or II, which fall under the authority of section 1002(a)(2)(B) of the Act [21 U.S.C. 952(a)(2)(B)] may, in the circumstances set forth in 21 U.S.C. 958(i), file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than July 31, 2013.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
Pursuant to Title 21 Code of Federal Regulations 1301.34(a), this is notice that on May 31, 2013, Boehringer Ingelheim Chemicals, 2820 N. Normandy Drive, Petersburg, Virginia 23805, made application by renewal to the Drug Enforcement Administration (DEA) for registration as an importer of Phenylacetone (8501), a basic class of controlled substance listed in schedule II.
The company plans to import the listed controlled substance to bulk manufacture amphetamine.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance listed in schedule II, which falls under the authority of section 1002(a)(2)(B) of the Act (21 U.S.C. 952(a)(2)(B)) may, in the circumstances set forth in 21 U.S.C. 958(i), file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than July 31, 2013.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
By Notice dated February 8, 2013, and published in the
The company plans to import the listed controlled substances for the manufacture of controlled substances in bulk for distribution to its customers.
Comments and requests for hearings on applications to import narcotic raw material are not appropriate, 72 FR 3417 (2007). Regarding Phenylacetone (8501), a basic class of controlled substance, no comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and § 952(a), and determined that the registration of Mallinckrodt, LLC., to import the basic classes of controlled substances is consistent with the public interest, and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. DEA has investigated Mallinckrodt, LLC., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and § 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
By Notice dated January 16, 2013, and published in the
The company plans to import the listed controlled substance for analytical research and testing.
The import of the above listed basic class of controlled substance would be granted only for analytical testing and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Alkermes Gainesville, LLC, to import the basic class of controlled substance is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971.
DEA has investigated Alkermes Gainesville, LLC, to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
By Notice dated April 10, 2013, and published in the
The company plans to import a finished pharmaceutical product containing cannabis extracts in dosage form, to package for a clinical trial study. In addition, the company also plans to import an ointment for the treatment of wounds, which contains trace amounts of the controlled substance normally found in poppy straw concentrate for packaging and labeling for clinical trials.
Comments and requests for any hearings on applications to import narcotic raw material are not appropriate. 72 FR 3417(2007).
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Catalent CTS., Inc., to import the basic classes of controlled substance is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971.
DEA has investigated Catalent CTS., Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
By Notice dated April 16, 2013, and published in the
The company plans to import analytical reference standards for distribution to its customers for research and analytical purposes.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Lipomed, to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. DEA has investigated Lipomed, to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
By Notice dated August 17, 2012, and published in the
The company plans to import the listed controlled substances for packaging, labeling, and distributing to customers which are qualified clinical sites, conducting FDA-approved clinical trials.
The import of the above listed basic classes of controlled substances would be granted only for analytical testing and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Clinical Supplies Management, Inc., to import the basic class of controlled substance is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. DEA has investigated Clinical Supplies Management, Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
By Notice dated March 20, 2013, and published in the
The company plans to import the listed controlled substances for sale to research facilities for drug testing and analysis.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a), and determined that the registration of SA INTL GMBH C/O., Sigma Aldrich Co. LLC., to import the basic classes of controlled substances is consistent with the public interest, and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated SA INTL GMBH C/O., Sigma Aldrich Co. LLC., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 31, 2013, Boehringer Ingelheim Chemicals, Inc., 2820 N. Normandy Drive, Petersburg, Virginia 23805-9372, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture the listed controlled substances in bulk for sale to its customers for formulation into finished pharmaceuticals. In reference to Methadone Intermediate (9254) the company plans to produce Methadone HCL active pharmaceutical ingredients (APIs) for sale to its customers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR § 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than August 30, 2013.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 21, 2013, Chemtos, LLC., 14101 W. Highway 290, Building 2000B, Austin, Texas 78737-9331, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture small quantities of the listed controlled substances in bulk for distribution to its customers for use as reference standards.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than August 30, 2013.
By Notice dated March 20, 2013, and published in the
The company plans to manufacture the listed controlled substance for clinical trials and distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Patheon Pharmaceuticals, Inc., to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Patheon Pharmaceuticals, Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
30-day Notice.
The Department of Justice, Federal Bureau of Investigation (FBI), National Center for the Analysis of Violent Crime (NCAVC), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with established review procedures of the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until July 31, 2013. This process is conducted in accordance with 5 CFR 1320.10.
All comments, suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Yvonne Muirhead, Federal Bureau of Investigation, NCAVC, Critical Incident Response Group, FBI Academy, 1 Range Road, Quantico, Virginia, 22135.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3) There is no agency form number applicable to this survey.
(4) The survey will be distributed to state, local and tribal law enforcement agencies to which the NCAVC has provided investigative assistance. The survey is being proposed as a means to assess the effectiveness and efficiency with which the NCAVC serves these agencies in the execution of their missions. The survey will query respondents as to the agencies' satisfaction with NCAVC services, and concrete achievements which were furthered via NCAVC services.
(5) Time burden anticipated with this collection: It is estimated that 100 respondents per calendar year will be contacted to complete a survey consisting of 11 questions. An approximate non-response rate of 50% is anticipated. It is estimated that a burden of approximately three to five minutes, or .05 to .08 hours, will be cast upon each respondent to complete the survey, with a total estimate of five to 8.3 hours in a calendar year for all respondents combined, if all respondents complete a survey. If the expected non-response rate of 50% holds true, then the combined burden estimate drops to approximately 2.5 to 4.2 hours per calendar year. The NCAVC estimates little to no variability within this time estimate based upon on individualized data retrieval systems, availability of requested data, and other variables, because this survey is intended to assess customer satisfaction rather than generate empirical data.
(6)
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Science Subcommittee of the NASA Advisory Council (NAC). This
Friday, July 19, 2013, 9:00 a.m. to 12:00 noon, local time.
This meeting will take place telephonically and by WebEx. Any interested person may call the USA toll free conference call number 800-857-7040, pass code PSS, to participate in this meeting by telephone. The WebEx link is
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4452, fax (202) or
The agenda for the meeting includes the following topics:
—Status of Budget and Programmatic Impacts on the Planetary Science Division
—Briefing from the Mars Exploration Program Regarding the Recommendations of the Mars 2020 Science Definition Team
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
Nuclear Regulatory Commission.
Notice; acceptance for docketing.
The NRC staff has determined that the partial application for a construction permit, submitted by SHINE Medical Technologies, Inc., is acceptable for docketing.
Please refer to Docket ID NRC-2013-0053 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, using any of the following methods:
•
•
•
Steven Lynch, Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001; telephone: 301-415-1524; email:
On March 26, 2013, SHINE Medical Technologies (SHINE) filed with the U.S. Nuclear Regulatory Commission (NRC), pursuant to Section 103 of the Atomic Energy Act and part 50 of Title 10 of the
An exemption from certain requirements of 10 CFR 2.101(a)(5) granted by the Commission on March 20, 2013 (ADAMS Accession No. ML13072B195), in response to a letter from SHINE dated February 18, 2013 (ADAMS Accession No. ML13051A007), allowed for SHINE to submit its construction permit application in two parts. Specifically, the exemption allowed SHINE to submit a portion of its application for a construction permit up to six months prior to the remainder of the application regardless of whether or not an environmental impact statement or a supplement to an environmental impact statement is prepared during the review of its application. The first part of SHINE's construction permit application consisted of the following information:
• The description and safety assessment of the site required by 10 CFR 50.34(a)(1)
• The environmental report required by 10 CFR 50.30(f)
• The filing fee information required by 10 CFR 50.30(e) and 10 CFR 170.21
• The general information required by 10 CFR 50.33
• The agreement limiting access to classified information required by 10 CFR 50.37
The NRC staff has determined that SHINE has submitted the information listed above in accordance with 10 CFR 2.101(a)(5), and that the partial application is acceptable for docketing. The docket number established for SHINE is 50-608.
The NRC staff will perform a detailed technical review of the partial construction permit application. Docketing of the partial construction permit application does not preclude the NRC from requesting additional information from the applicant as the review proceeds, nor does it predict whether the Commission will grant or deny the application. The NRC staff will also perform an acceptance review of the second and final part of the construction permit application when it is tendered. As stated in SHINE's March 26, 2013, letter, the second and final part of SHINE's application for a construction permit will contain the remainder of the preliminary safety analysis report required by 10 CFR 50.34(a) and will be submitted in accordance with the requirements of 10 CFR 2.101(a)(5). If, after completion of the acceptance review of the full construction permit application, the full construction permit application is found acceptable for docketing, the Commission will conduct a hearing in accordance with Subpart L, “Informal Hearing Procedures for NRC Adjudications,” of 10 CFR Part 2 and will receive a report on the construction permit application from the Advisory Committee on Reactor Safeguards consistent with 10 CFR 50.58, “Hearings and report of the Advisory Committee on Reactor Safeguards.” The Commission will announce in a future
In accordance with 10 CFR part 51, the Commission will also prepare an environmental impact statement for the proposed action. Pursuant to 10 CFR 51.26, and as part of the environmental scoping process, the NRC staff intends to hold a public scoping meeting. Detailed information regarding this meeting will be included in a future
Nuclear Regulatory Commission.
Intent to prepare environmental impact statement and conduct scoping process; public meeting.
This notice advises the public that the NRC intends to gather the information necessary to prepare an Environmental Impact Statement for construction and operation of the proposed SHINE radioisotope production facility.
Submit comments by August 30, 2013. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Michelle Moser, Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001; telephone: 301-415-6509; email:
Please refer to Docket ID NRC-2013-0053 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by any of the following methods:
•
•
•
Please include Docket ID NRC-2013-0053 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
SHINE Medical Technologies, Inc. (SHINE) has submitted a partial application for a construction permit to construct a radioisotope production facility. The proposed SHINE facility would be located approximately four miles south of Janesville, Wisconsin.
The first part of the application for the construction permit, dated March 26, 2013, was submitted pursuant to part 50 of Title 10 of the
As outlined in 36 CFR 800.8, “Coordination with the National Environmental Policy Act,” the NRC plans to coordinate compliance with
This notice advises the public that the NRC intends to gather the information necessary to prepare an Environmental Impact Statement for construction and operation of the proposed SHINE radioisotope production facility. Possible alternatives to the proposed action (construction and operation of the proposed SHINE facility) include no action, alternative sites, and alternative technologies to produce radioisotopes. This notice is being published in accordance with NEPA and the NRC's regulations found at 10 CFR part 51.
The NRC will first conduct a scoping process for the EIS and, as soon as practicable thereafter, will prepare a draft EIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. The scoping process for the EIS will be used to accomplish the following:
a. Define the proposed action, which is to be the subject of the EIS;
b. Determine the scope of the EIS and identify the significant issues to be analyzed in depth;
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant;
d. Identify any environmental assessments and other ElSs that are being or will be prepared that are related to, but are not part of, the scope of the EIS being considered;
e. Identify other environmental review and consultation requirements related to the proposed action;
f. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule;
g. Identify any cooperating agencies and, as appropriate, allocate assignments for
preparation, and schedules for completing the EIS to the NRC and any cooperating agencies; and
h. Describe how the EIS will be prepared and include any contractor assistance to be used.
The NRC invites the following entities to participate in scoping:
a. The applicant, SHINE;
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved or that is authorized to develop and enforce relevant environmental standards;
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards;
d. Any affected Indian tribe;
e. Any person who requests or has requested an opportunity to participate in the scoping process; and
f. Any person who has petitioned or intends to petition for leave to intervene.
In accordance with 10 CFR 51.26, the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC has decided to hold public meetings for the SHINE environmental review on July 17, 2013. The first meeting will begin with an open house from 12:30 p.m. until 1:30 p.m., followed by an NRC presentation and opportunity to hear public comments from 1:30 p.m. until 3:30 p.m., as necessary. The second meeting will begin with an open house from 6:00 p.m. until 7:00 p.m., followed by a repeat of NRC's earlier presentation and opportunity to hear public comments from 7:00 p.m. until 9:00 p.m., as necessary. Both sessions will be held at the Rotary Botanical Gardens, 1455 Palmer Dr., Janesville, Wisconsin 53545.
Both meetings will be transcribed and will include: (1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the EIS, and the proposed review schedule; and (2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the EIS. Additionally, the NRC staff will host informal discussions during the open house one hour prior to the start of each session at the same location. No formal comments on the proposed scope of the EIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meetings or in writing, as discussed in the
Persons may register to attend or present oral comments at the meetings on the scope of the NEPA review by contacting the NRC Environmental Project Manager, Michelle Moser, by telephone at 800-368-5642, ext. 6509, or by email at
Participation in the scoping process for the EIS does not entitle participants to become parties to the proceeding to which the EIS relates. Matters related to participation in any hearing are outside the scope of matters to be discussed at this public meeting. The notice of acceptance for docketing of the application and a description of the hearing process will be published separately in the
For the Nuclear Regulatory Commission.
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 A. 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 June 25, 2013, it filed with the Postal Regulatory Commission a
Securities and Exchange Commission (“Commission”).
Notice of application under section 3(b)(2) of the Investment Company Act of 1940 (“Act”).
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicant: 600 Telephone Avenue, Anchorage, AK 99503-6091.
Deepak T. Pai, Senior Counsel, at (202) 551-6876, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Exemptive Applications Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. ACS Wireless, an Alaska corporation, was incorporated on July 31, 1995 under the name MACTEL INC. Alaska Communications Systems Group, Inc. (“ACS Group”), an Anchorage, Alaska-based telecommunications company listed on the NASDAQ Stock Market, purchased MACTEL INC. in May 1999 and renamed it ACS Wireless, Inc. ACS Wireless has since operated as a wholly-owned subsidiary of ACS Group, held through ACS Group's wholly-owned subsidiary Alaska Communications Systems Holdings, Inc. (“ACS Holdings”). ACS Wireless states that it is an Alaska-based telecommunications company that is primarily engaged in providing wireless communications services and is not presently an investment company as defined in section 3(a) of the Act.
2. On June 4, 2012, ACS Group, ACS Wireless, and General Communications, Inc. (“GCI”) and GCI Wireless Holdings, LLC (“GCI Wireless”) agreed to form a joint venture in which each would contribute substantially all the assets used in its wireless businesses (other than its retail wireless business) and certain related telecommunications transport assets to a newly formed limited liability company, The Alaska Wireless Network, LLC (“AWN”) (the “Transaction”). ACS Wireless will sell or license certain assets used primarily in ACS Group's wireless activities and its related data transport business to GCI for $100 million in cash. ACS Wireless will transfer to AWN all remaining tangible and intangible assets owned, leased or held by ACS Wireless or any of its affiliates used primarily in connection with the conduct of ACS Group's wireless activities (other than its retail wireless business) and its related data transport business. Upon completion of the Transaction, ACS Wireless will become a member of AWN, and AWN will be owned 66
3. Applicant submits that the Transaction will not change the fundamental nature of its business, which is providing wireless telecommunications services to consumers and businesses in Alaska. Under section 2(a)(9) of the Act, ACS Wireless will presumptively “control” AWN because it will own more than 25% of the company's voting securities and will exercise a controlling influence over the management or policies of AWN through ACS Group's position on the board of directors and through certain contractual rights that prevent AWN from taking significant actions without the approval of ACS Wireless.
1. Under section 3(a)(1)(C) of the Act, an issuer is an investment company if it is engaged or proposes to engage in the business of investing, reinvesting, owning, holding or trading in securities, and owns or proposes to acquire investment securities having a value in excess of 40% of the value of the issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis. Section 3(a)(2) of the Act defines investment securities to include all securities except Government securities, securities issued by employees' securities companies, and securities issued by majority-owned subsidiaries of the owner which are not investment companies and which are not excepted from the definition of investment company in section 3(c)(1) or 3(c)(7) of the Act.
2. At present, ACS Wireless is not an investment company as defined in section 3(a) of the Act because none of its total assets (other than U.S. government securities and cash items) on an unconsolidated basis, as of December 31, 2012, consist of investment securities. ACS Wireless states that as a result of the Transaction, however, it will in effect have converted the majority of its existing assets into assets that may constitute an investment security in a controlled, but not primarily controlled, entity. The book value of ACS Wireless' interest in AWN is anticipated to constitute substantially more than 50% of its total unconsolidated assets, with the remaining portion consisting of its retail-related wireless assets as well as certain directly-owned assets. Applicant states that the assets to be contributed by ACS Wireless to AWN will cause the
3. Section 3(b)(2) of the Act provides that, notwithstanding section 3(a)(1)(C), the Commission may issue an order declaring an issuer to be primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities either directly, through majority-owned subsidiaries, or controlled companies conducting similar types of businesses. ACS Wireless requests an order under section 3(b)(2) of the Act declaring that it is primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities.
4. In determining whether a company is “primarily engaged” in a non-investment company business under section 3(b)(2), the Commission considers: (a) the company's historical development, (b) its public representations of policy, (c) the activities of its officers and directors, (d) the nature of its present assets, and (e) the sources of its present income.
a. Historical Development. ACS Wireless states that it has been in the business of providing wireless telecommunications services since 1995, including providing facilities-based voice and data services to individual and business customers throughout Alaska, with roaming coverage available in the lower 48 states, Hawaii and Canada.
b. Public Representations of Policy. Applicant states that both ACS Wireless and its parent company, ACS Group, are part of a well-known communications company in Alaska and neither have ever portrayed themselves as anything other than a communications company. Through public statements, reports to shareholders, periodic filings with the Commission, public advertising and information contained on ACS Group's Web site, ACS Wireless and ACS Group have invariably represented that ACS Wireless is primarily engaged in the business of telecommunications services.
c. Activities of Officers and Directors. ACS Wireless states that the board of directors (the “Directors”) and executive officers (the “Officers”) of ACS Wireless are primarily engaged in managing ACS Wireless' cellular telephone business and that of its affiliates. The CFO and the Vice President of Finance of ACS Wireless spend less than 10% and 5% of their time, respectively, managing cash and cash equivalents at the holding company level.
d. Nature of Assets. Applicant states that, as of December 31, 2012, ACS Wireless' directly-owned assets included: (i) $20.7 million of current assets including cash, accounts receivable, material, supplies, prepayment and other current assets (“Current Assets”), and (ii) $74.2 million of property and plant and equipment (“PP&E”).
e. Sources of Income. ACS Wireless states that it derives all of its income from its wireless businesses. For accounting purposes ACS Wireless is not a separate financial reporting segment of ACS Group and therefore ACS Group does not track ACS Wireless' expenses separately, although it does track ACS Wireless' revenue for business purposes. As noted in the application, all of ACS Wireless' revenue, as of December 31, 2012, is attributable to the directly-owned assets of its wireless telecommunications business. Dividends, interest and gains, and losses on sales of securities currently constitute no portion of the ACS Wireless' revenue. Applicant states that post-Transaction, on a pro forma basis, for the twelve months ended December 31, 2012, its revenue was $160,721,000 of which 51.6% would be attributable to directly-owned assets and 48.4% would be attributable to controlled companies.
5. ACS Wireless thus states that it meets the factors that the Commission considers in determining whether an issuer is primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to establish an Acceptable Trade Range for orders and quotes on PHLX XL. The Acceptable Trade Range functionality is intended to dampen volatility when necessary in rare cases of unusual market conditions by allowing orders to execute within a succession of price-range steps. At the end of each price-range step, the process allows the market a brief time-period to refresh itself before moving on with the execution process, as described further below. Similar mechanisms operate on other options exchanges.
The text of the proposed rule change is below; proposed new language is
(p) Acceptable Trade Range.
(a)(i)-(ii)(B)(3)(g)(v) No change.
(vi) If, after trading at the Phlx and/or routing, there is a remainder of the initiating order, and such remainder is still marketable, the entire process of evaluating the Best Phlx price and the ABBO will be repeated until: (A) the order size is exhausted, or (B) the order reaches its limit price. If there still remain unexecuted contracts after routing but the order has reached its limit price, the remainder will be posted at the order's limit price, except that, when the limit price crosses the Acceptable Range Price, the remainder will be posted at the Acceptable Range Price for a period of time not to exceed ten seconds [and then cancelled after such period of time has elapsed, unless the member that submitted the original order has instructed the Exchange in writing to re-enter the remaining size, in which case the remaining size will be automatically submitted as a new order]. During this up to ten second period, the Phlx XL II system will disseminate on the opposite side of the market from remaining unexecuted contracts: (i) a non-firm bid for the price and size of the next available bid(s) on the Exchange if the remaining size is a seller, or (ii) a non-firm offer for the price and size of the next available offer(s) on the Exchange if the remaining size is a buyer.
(4) No change.
(C) No change.
(iii)-(iv) No change.
(b)-(d) No change.
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.
PHLX is proposing to adopt a mechanism that will prevent the PHLX trading System, Phlx XL, (“System”) from experiencing dramatic price swings. This circumstance can exist if, for example, a market order or aggressively priced limit order/quote is entered that is larger than the total volume of contracts quoted at the top-of-book across all U.S. options exchanges. Currently, without any protections in place, this could result in options executing at prices that have little or no relation to the theoretical price of the option.
For example, in a thinly traded option:
Away Exchange Quotes:
PHLX Price Levels:
If PHLX receives a routable market order to buy 80 contracts, the System will respond as described below:
To bolster the normal resilience and market behavior that persistently produces robust reference prices, PHLX is proposing to create a level of protection that prevents the market from moving beyond set thresholds. The thresholds consist of a Reference Price plus (minus) set dollar amounts based on the nature of the option and the premium of the option. PHLX is not introducing a new concept. In fact, the NASDAQ Options Market and NASDAQ OMX BX, Inc.'s options market have an Acceptable Trade Range feature.
If an order reaches the outer limit of the Acceptable Trade Range (the “Threshold Price”) without being fully executed, it will be posted at the Threshold Price for a brief period, not to exceed one second (“Posting Period”), to allow the market to refresh and to determine whether or not more liquidity will become available (on PHLX or any other exchange if the order is designated as routable), unless a Quote Exhaust has occurred, in which case the Quote Exhaust process in Rule 1082(a)(ii)(B)(3) will ensue,
Upon posting, either the current Threshold Price of the order or an updated NBB for buy orders or the NBO for sell orders (whichever is higher for a buy order/lower for a sell order) then becomes the Reference Price for calculating a new Acceptable Trade Range. If the order remains unexecuted, a new Acceptable Trade Range will be calculated and the order will execute, route, or post up to the new Acceptable Trade Range Threshold Price, unless a member organization has requested that their orders be returned if posted at the outer limit of the Acceptable Trade Range (in which case, the order will be returned). This process will repeat until either (i) the order/quote is executed, cancelled, or posted at its limit price or (ii) the order/quote has been subject to a configurable number of instances of the Acceptable Trade Range as determined by the Exchange.
During the Posting Period, any eligible contra-side interest that is received can trade. If, however a more aggressively-priced same side order is received during the Posting Period, the Posting Period ends, because there is no need to wait for the market to refresh and attract interest to the original order. Such new same side order indicates that the market is moving in that direction so the original order will trade at the current Acceptable Trade Range, with the Acceptable Trade Range recalculated for both orders.
During the Posting Period, PHLX will disseminate the Threshold Price on one side of the market and the best available price on the opposite side of the market using a “non-firm” indicator.
PHLX believes that disseminating a non-firm quotation message as described above is consistent with its obligations under the SEC Quote Rule.
Importantly, the Acceptable Trade Range is neutral with respect to away markets. Consistent with the routing provisions in Rule 1080(m), an order may route to other destinations to access liquidity priced within the Acceptable Trade Range provided the order is designated as routable. If the order still remains unexecuted, this process will repeat
For example, assume that the Acceptable Trade Range is set for $0.05 and the following quotations are posted in all markets:
Away Exchange Quotes:
PHLX Price Levels:
For example:
Away Exchange Quotes:
PHLX Price Levels:
For example:
Away Exchange Quotes:
PHLX Price Levels:
The Exchange is also proposing to amend Rule 1082, Firm Quotations to address that the Quote Exhaust process will culminate with the application of the Acceptable Trade Range under proposed Rule 1080(p), rather than either cancelling or re-entering the remaining size of the order. Specifically, the Exchange proposes to amend Rule 1082(a)(ii)(B)(3)(g)(vi) to provide that the Acceptable Range Price becomes the Reference Price and the Acceptable Trade Range (pursuant to Rule 1080(p)) is applied to the remaining size of the order. This would occur after the brief time period (of no more than ten seconds) when the order is posted at the Acceptable Range Price, which is part of the Quote Exhaust process. Because the Acceptable Trade Range, under this proposal, will now protect the remainder of the order, the Exchange does not believe that it needs to cancel the order or offer the alternative that member organizations provide instructions if they would prefer the remainder to be re-entered. The Exchange is not otherwise changing the Quote Exhaust process.
For example, looking at some SPY May 2013 Call options on May 1st of 2013:
To consider another example, the May 2013 ORCL put options on May 1st of 2013:
The Acceptable Trade Range settings will be tied to the option premium. However, other factors will be considered when determining the exact settings. For example, Acceptable Ranges may change if market-wide volatility is as high as it was during the financial crisis in 2008 and 2009, or if overall liquidity is low based on historical trends. These different market conditions may present the need to adjust the threshold amounts from time to time to ensure a well-functioning market. Without adjustments, the market may become too constrained or conversely, prone to wide price swings. As stated above, the Exchange would publish the Acceptable Trade Range table or tables on the NASDAQTrader.com Web site. The Exchange does not foresee updating the table(s) often or intraday, although the exchange may determine to do so in extreme circumstances. The Exchange will provide sufficient advanced notice of changes to the Acceptable Trade Range table, generally the prior day, to its membership via Options Trader Alerts.
The Acceptable Trade Range settings would generally be the same across all options traded on PHLX, although PHLX proposes to maintain flexibility to set them separately based on characteristics of the underlying security. For instance, Google is a stock with a high share price ($824.57 closing price on April 30th). Google options therefore may require special settings due to the risk involved in actively quoting options on such a high-priced stock. Option spreads on Google are wider and the size available at the best bid and offer is smaller. Google could potentially need a wider threshold setting compared to other lower-priced stocks. There are other options that fit into this category (e.g. AAPL) which makes it necessary to have threshold settings that have flexibility based on the underlying security. Additionally, it is generally observed that options subject to the Penny Pilot program quote with tighter spreads than options not subject to the Penny Pilot. Currently, PHLX expects to set Acceptable Trade Ranges for three categories of options: Standard Penny Pilot, Special Penny Pilot (IWM, QQQQ, SPY), and Non-Penny Pilot.
PHLX believes the proposed rule change is consistent with the provisions of Section 6 of the Act,
PHLX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, the proposal does not impose an intra-market burden on competition, because it will apply to the orders and quotes of all Options Participants. Nor will the proposal impose a burden on competition among the options exchanges, because of the vigorous competition for order flow among the options exchanges. PHLX competes with many other options exchanges, all of which offer electronic trading of options and certain routing services. In this highly competitive market, market participants can easily and readily direct order flow to competing venues.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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)
NYSE Arca, a Delaware corporation, registered national securities exchange and self-regulatory organization, is submitting this rule filing (the “Proposed Rule Change”) to the U.S. Securities and Exchange Commission in connection with the proposed business combination (the “Merger”) of NYSE Euronext (“NYSE Euronext”) and IntercontinentalExchange, Inc. (“ICE”), both Delaware corporations. NYSE Euronext has entered into an Agreement and Plan of Merger, dated as of December 20, 2012, as amended and restated as of March 19, 2013, by and among NYSE Euronext, ICE, IntercontinentalExchange Group, Inc. (“ICE Group”), Braves Merger Sub, Inc. (“ICE Merger Sub”) and Baseball Merger Sub, LLC (“NYSE Euronext Merger Sub”) (as it may be further amended from time to time, the “Merger Agreement”), whereby NYSE Euronext and ICE would each become subsidiaries of ICE Group.
NYSE Euronext owns 100% of the equity interest of NYSE Group, Inc., a Delaware corporation (“NYSE Group”), which in turn directly or indirectly owns (1) 100% of the equity interest of three registered national securities exchanges and self-regulatory organizations (together, the “NYSE Exchanges”)—the New York Stock Exchange, LLC (the “Exchange”), NYSE Arca and NYSE MKT LLC (“NYSE MKT”)—and (2) 100% of the equity interest of NYSE Market (DE), Inc. (“NYSE Market”), NYSE Regulation, Inc. (“NYSE Regulation”), NYSE Arca L.L.C., NYSE Arca Equities, Inc. (“NYSE Arca Equities”) and NYSE Amex Options LLC (“NYSE Amex Options”) (the NYSE Exchanges, together with (x) NYSE Market, NYSE Regulation, NYSE Arca L.L.C., NYSE Arca Equities and NYSE Amex Options and (y) any similar U.S. regulated entity acquired, owned or created after the date hereof, the “U.S. Regulated Subsidiaries” and each, a “U.S. Regulated Subsidiary”). Each of the Exchange and NYSE MKT will be separately filing a proposed rule change in connection with the Merger that will be substantially the same as the Proposed Rule Change.
ICE is a leading operator of regulated exchanges and clearing houses serving the risk management needs of global markets for agricultural, credit, currency, emissions, energy and equity index products. ICE directly and indirectly owns ICE Futures Europe, ICE Futures U.S., Inc., ICE Futures Canada, Inc., ICE U.S. OTC Commodity Markets, LLC, and five central counterparty clearing houses, including ICE Clear Europe Limited and ICE Clear Credit LLC, each of which is registered as a clearing agency under Section 17A of the Exchange Act,
ICE's common stock is listed on the Exchange under the symbol “ICE,” and, following the completion of the Merger, ICE Group common stock is expected to be listed for trading on the Exchange under the same symbol.
NYSE Arca is proposing that, pursuant to the Merger, the successor to NYSE Euronext, the Exchange's indirect parent, will be a wholly owned subsidiary of ICE Group. ICE Group is currently a wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, ICE Merger Sub, a Delaware corporation, and NYSE Euronext Merger Sub, a Delaware limited liability company. To effect this transaction, (A) ICE Merger Sub will be merged with and into ICE (the “ICE Merger”), with ICE as the surviving corporation and a wholly owned subsidiary of ICE Group, and each share of ICE common stock owned by an ICE stockholder (other than ICE or ICE Merger Sub) will be converted into the right to receive one share of ICE Group common stock, and (B) immediately following the ICE Merger, NYSE Euronext shall be merged with and into NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the surviving company and a wholly owned subsidiary of ICE Group (the “NYSE Euronext Merger” and, together with the ICE Merger, the “Merger”). Each issued and outstanding share of NYSE Euronext common stock will be converted into the right to receive the “standard election amount” of 0.1703 of a share of ICE Group common stock and $11.27 in cash, other than certain shares held by NYSE Euronext, ICE and their respective affiliates. Alternatively, NYSE Euronext stockholders will have the right to make either a cash election to receive $33.12 in cash, or a stock election to receive 0.2581 of a share of ICE Group common stock, for each share of NYSE Euronext. NYSE Euronext Merger Sub, as the surviving entity in the NYSE Euronext Merger, will change its name to NYSE Euronext Holdings LLC (“NYX Holdings”) from and after the closing of the Merger.
If the Merger is completed, the businesses of ICE and NYSE Euronext, including the U.S. Regulated Subsidiaries, will be held under ICE Group as a single publicly traded holding company that will be listed on the Exchange. The Proposed Rule Change, if approved by the Commission, will not be effective until the consummation of the Merger.
In addition, NYSE Arca is proposing that, in connection with the Merger, the Commission approve the organizational and other governance documents of ICE Group and NYX Holdings, as well as certain amendments to the organizational and other governance documents of NYSE Group and certain of the U.S. Regulated Subsidiaries, as well as certain rules of the Exchange, NYSE MKT and NYSE Arca Equities.
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○ first, the NYX Holdings Operating Agreement would provide that all of the issued and outstanding membership interests of NYX Holdings will be held
○ second, the NYX Holdings Operating Agreement would provide that the voting and ownership restrictions contained therein would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests of NYX Holdings and only for so long as NYX Holdings directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary (as such terms are defined in the NYX Holdings Operating Agreement). The voting and ownership restrictions in the NYX Holdings Operating Agreement would otherwise mirror those in both the current NYSE Group Certificate and the proposed ICE Group Certificate: a 10% threshold for the voting restriction and an ownership restriction of 20%.
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• Under the Proposed Rule Change, the voting and ownership restrictions in the NYSE Group Certificate would be amended to apply only for so long as NYSE Group directly or indirectly controls any Regulated Subsidiary (as defined in the NYSE Group Certificate); and expand the definition of “Related Persons” regarding NYSE MKT Members so that it is consistent with the language in the NYSE Rules, which language also will be incorporated in the ICE Group Certificate and the NYX Holdings Operating Agreement pursuant to the Proposed Rule Change.
The Second Amended and Restated Certificate of Incorporation of IntercontinentalExchange Group, Inc. that will be effective as of the consummation of the Merger, the Amended and Restated Bylaws of IntercontinentalExchange Group, Inc. that will be effective as of the consummation of the Merger; the proposed Director Independence Policy of Intercontinental-Exchange Group, Inc. that will be adopted by the board of directors of IntercontinentalExchange Group, Inc. effective as of the consummation of the Merger; the resolutions of the NYSE Euronext Board of Directors; the proposed Amended and Restated Limited Liability Company Agreement of NYSE Euronext Holdings LLC that will be effective as of the consummation of the Merger; the proposed Third Amended and Restated Certificate of Incorporation of NYSE Group, Inc. that will be effective as of
The text of the Proposed Rule Change is available at the Exchange, the Commission's Public Reference Room, and on the Web site of the Exchange (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this rule filing is to adopt the rules necessary to permit NYSE Euronext to effect the Merger and to amend certain provisions of the organizational and other governance documents of NYSE Euronext, NYSE Group and certain of the U.S. Regulated Subsidiaries, including certain Exchange Rules, NYSE MKT Rules and NYSE Arca Equities Rules.
NYSE Arca is submitting the Proposed Rule Change to the Commission in connection with the Merger of NYSE Euronext and ICE. ICE Group believes the Merger brings together two highly complementary businesses and will create an end-to-end multi-asset portfolio that will be strongly positioned to serve a global client base and capture current and future growth opportunities.
Other than as described herein and in the separate proposed rule changes filed by each NYSE Exchange, ICE Group and the NYSE Exchanges do not plan to make any changes to the regulated activities of the U.S. Regulated Subsidiaries in connection with the Merger. If ICE Group determines to make any such changes to the regulated activities of any U.S. Regulated Subsidiary, it will seek the approval of the Commission. The Proposed Rule Change, if approved by the Commission, will not be effective until the consummation of the Merger.
The Merger will occur pursuant to the terms of the Merger Agreement. As a result of the Merger, NYX Holdings, the successor to NYSE Euronext, will be a subsidiary of ICE Group.
In the Merger, NYSE Euronext, the indirect parent of NYSE Arca, will become a wholly owned subsidiary of ICE Group. ICE Group is currently a wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, ICE Merger Sub and NYSE Euronext Merger Sub. ICE Merger Sub will be merged with and into ICE, with ICE as the surviving corporation and a wholly owned subsidiary of ICE Group. Immediately afterward, NYSE Euronext will be merged with and into NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the surviving company and a wholly owned subsidiary of ICE Group. The surviving entity in the NYSE Euronext Merger will change its name to NYSE Euronext Holdings LLC from and after the closing of the NYSE Euronext Merger.
Under the terms of the Merger Agreement, each share of NYSE Euronext common stock will be converted into 0.1703 of a newly issued share of ICE Group common stock and $11.27 cash (together, the “Standard Merger Consideration”). NYSE Euronext stockholders may also elect to receive $33.12 in cash, or a stock election to receive 0.2851 of a share of ICE Group common stock, for each of their NYSE Euronext shares. Both the cash election and the stock election are subject to proration and adjustment procedures to ensure that the total amount of cash paid, and the total number of shares of ICE Group common stock issued, in the NYSE Euronext Merger to the NYSE Euronext stockholders, as a whole, will be equal to the total amount of cash and number of shares that would have been paid and issued if all of the NYSE Euronext stockholders received the standard election amount. Following the Merger, ICE Group common shares are expected to be listed on the New York Stock Exchange.
The board of directors of ICE has determined that the Merger is in the best interests of its stockholders, approved the Merger Agreement and resolved to recommend to its stockholders that they approve the adoption of the Merger Agreement. The board of directors of NYSE Euronext has determined that the Merger is in the best interests of its stockholders, approved the Merger Agreement and resolved to recommend that its stockholders approve the adoption of the Merger Agreement.
Following the Merger, ICE Group will be a for-profit, publicly traded Delaware corporation. ICE Group will hold all of the equity interests in ICE, which will continue its current operations, and in NYX Holdings, which will hold (1) 100% of the equity interests of NYSE Group (which, in turn, directly or indirectly holds 100% of the equity interests of the U.S. Regulated Subsidiaries) and (2) 100% of the equity interest of Euronext N.V. (which, in turn, directly or indirectly holds 100% of the equity interests in certain regulated trading markets in Belgium, France, the Netherlands, Portugal and the United Kingdom).
ICE Group will amend its certificate and bylaws to incorporate ownership and voting limitations and certain other provisions to satisfy U.S. and European regulatory requirements as described in detail in the Proposed Rule Change.
After the Merger, NYSE Group will be directly wholly owned by NYX Holdings and will continue to own, directly or indirectly, the three NYSE Exchanges—the Exchange, NYSE Arca and NYSE MKT—which provide marketplaces where investors buy and sell listed companies' common stock and other securities as well as equity options and securities traded on the basis of unlisted trading privileges. NYSE Regulation, Inc., an indirect not-for-profit subsidiary of NYX Holdings, will continue to oversee FINRA's performance of certain market surveillance and enforcement functions for the NYSE Exchanges, enforce listed company compliance with applicable standards, and oversee regulatory policy determinations, rule interpretation and regulation related rule development.
In Europe, NYSE Euronext and its subsidiaries own European-based exchanges that comprise Euronext N.V. and its subsidiaries—the London, Paris, Amsterdam, Brussels and Lisbon stock exchanges, as well as the derivatives markets in London, Paris, Amsterdam, Brussels and Lisbon (with certain qualifications and exceptions set forth in the ICE Group Bylaws, the “European Market Subsidiaries”). The activities of the NYSE Euronext European markets are or may be subject to the jurisdiction and authority of a number of European regulators, including the Dutch Minister of Finance, the French Minister of the Economy, the French Financial Market Authority (
NYSE Euronext and ICE expect that, after the closing of the Merger, Euronext will be separated from ICE Group, although no definitive plans have been made to pursue such a separation. An initial public offering of Euronext would include all of the European Market Subsidiaries (the continental European cash equity platforms and the derivatives traded on them) but would not include the derivatives businesses of another current subsidiary of Euronext, Liffe Administration and Management (“LAM”). ICE has informed NYSE Euronext that it expects the derivatives business of LAM will be gradually transitioned to ICE Futures Europe, subject to regulatory approval in the United Kingdom.
The current NYSE Euronext Certificate and Bylaws provide that each provision related to any European Market Subsidiary or any European regulatory requirement will be automatically repealed if (i) NYSE Euronext at any time in the future no longer holds a direct or indirect “controlling interest” (as defined therein) in Euronext or (ii) a “Euronext Call Option” (as defined in the NYSE Euronext bylaws) has been exercised and, after a period of six months following such exercise, Stichting NYSE Euronext, a foundation (“stichting”) organized under the laws of The Netherlands, formed on April 4, 2007 (the “Foundation”) holds shares of Euronext that represent a substantial portion of Euronext's business (provided that, in this case, the NYSE Euronext board of directors approves the applicable revocation). The ICE Group Certificate and Bylaws would contain similar provisions, except that the standard in clause (i) above that ICE Group no longer holds a direct or indirect controlling interest in Euronext would be replaced by a standard that it ceases to control Euronext, with “control” defined by reference to International Financial Reporting Standards. The separation of Euronext as described above is expected to trigger the repeal described in clause (i) as so modified.
Other than certain modifications described herein, the current corporate structure, governance and self-regulatory independence and separation of each U.S. Regulated Subsidiary will be preserved. Specifically, after the Merger, NYSE Group's businesses and assets will continue to be structured as follows:
• The Exchange will remain a direct wholly owned subsidiary of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
• NYSE Market will remain a wholly owned subsidiary of the Exchange and will continue to conduct the Exchange's business.
• NYSE Regulation will remain a wholly owned subsidiary of the Exchange and continue to perform, and/or oversee the performance of, regulatory responsibilities of the Exchange pursuant to a delegation agreement with the Exchange and regulatory functions of NYSE Arca and NYSE MKT pursuant to services agreements with them.
• NYSE Arca and NYSE Arca L.L.C., a Delaware limited liability company, will remain wholly owned subsidiaries of NYSE Group.
• NYSE Arca Equities will remain a wholly owned subsidiary of NYSE Arca.
• NYSE MKT will remain a direct wholly owned subsidiary of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
• The Merger will have no effect on the ability of any party to trade securities on the Exchange, NYSE Arca or NYSE MKT.
Similarly, NYX Holdings, as successor to NYSE Euronext, and its subsidiaries will conduct their regulated activities in the same manner as they are currently conducted, with any changes subject to the relevant approvals of their respective European Regulators and, in the case of the U.S. Regulated Subsidiaries, with any changes subject to the approval of the Commission.
ICE Group acknowledges that to the extent it becomes aware of possible violations of the rules of the Exchange, NYSE Arca or NYSE MKT, it will be responsible for referring such possible violations to each such exchange, respectively. In addition, ICE Group will enter into an agreement with NYSE Regulation acknowledging that each of the Exchange, NYSE MKT and NYSE Arca has contracted to have NYSE Regulation perform its self-regulatory obligations, in each case with the self-regulatory organization retaining its responsibility for the adequate performance of those regulatory obligations, and agreeing to provide adequate funding to NYSE Regulation to allow NYSE Regulation to conduct its regulatory activities with respect to the Exchange, NYSE MKT and NYSE Arca.
Article V of the current NYSE Euronext Certificate provides that (1) no person, either alone or together with its “related persons” (as defined in the NYSE Euronext Certificate), may be entitled to vote or cause the voting of shares of NYSE Euronext beneficially owned by such person or its related persons, in person or by proxy or through any voting agreement or other arrangement, to the extent that such shares represent in the aggregate more than 10% of the then outstanding votes entitled to be cast on such matter; and (2) no person, either alone or together with its related persons, may acquire the ability to vote more than 10% of the then outstanding votes entitled to be cast on any such matter by virtue of agreements or arrangements entered into
In addition, the NYSE Euronext Certificate provides that no person, either alone or together with its related persons, may at any time beneficially own shares of NYSE Euronext representing in the aggregate more than 20% of the then outstanding votes entitled to be cast on any matter (the “NYSE Euronext Ownership Restriction”).
The NYSE Euronext Voting Restriction and the NYSE Euronext Ownership Restriction are applicable to each person unless and until (1) Such person has delivered a notice in writing to the board of directors of NYSE Euronext, not less than 45 days (or such shorter period as the board of directors of NYSE Euronext expressly permits) prior to any vote or, in the case of the NYSE Euronext Ownership Restriction, prior to the acquisition of any shares of NYSE Euronext that would cause such person, either alone or together with its related persons, to exceed the NYSE Euronext Ownership Restriction, of such person's intention, either alone or together with its related persons, to vote or cause the voting of shares of NYSE Euronext stock beneficially owned by such person or its related persons in excess of the NYSE Euronext Voting Restriction, or in the case of the NYSE Euronext Ownership Restriction, of such person's intention, either alone or together with its related persons, to acquire such ownership; (2) the board of directors of NYSE Euronext has resolved to expressly permit such voting or ownership, as applicable; (3) such resolution has been filed with, and approved by, the Commission under Section 19(b) of the Exchange Act
• Will not impair the ability of any U.S. Regulated Subsidiary, NYSE Euronext or NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity) to discharge their respective responsibilities under the Exchange Act and the rules and regulations thereunder;
• will not impair the ability of any of the European Market Subsidiaries of NYSE Euronext or Euronext (to the extent that Euronext continues to exist as a separate entity) to discharge their respective responsibilities under the European Exchange Regulations (as defined in the NYSE Euronext Bylaws);
• is otherwise in the best interest of NYSE Euronext, its stockholders, the U.S. Regulated Subsidiaries and the European Market Subsidiaries, and will not impair the Commission's ability to enforce the Exchange Act or the European Regulators' ability to enforce the European Exchange Regulations;
• for so long as NYSE Euronext directly or indirectly controls the Exchange or NYSE Market, neither such person nor any of its related persons is a NYSE Member;
• for so long as NYSE Euronext directly or indirectly controls NYSE MKT, neither such person nor any of its related persons is a NYSE MKT Member (this restriction is currently set forth in the Bylaws of NYSE Euronext
• for so long as NYSE Euronext directly or indirectly controls NYSE Arca, NYSE Arca Equities or any facility of NYSE Arca, neither such person nor any of its related persons is an ETP Holder, an OTP Holder or an OTP Firm; and
• neither such person nor any of its related persons is a U.S. Disqualified Person or a European Disqualified Person (as such terms are defined in the NYSE Euronext Certificate).
In order to allow ICE Group to wholly own and vote all of the outstanding common stock of NYSE Euronext upon consummation of the Merger, ICE Group has delivered written notice to the board of directors of NYSE Euronext pursuant to the procedures set forth in the NYSE Euronext Certificate requesting approval of its voting and ownership of NYSE Euronext shares in excess of the NYSE Euronext Voting Restriction and the NYSE Euronext Ownership Restriction. Among other things, in this notice, ICE Group represented to the board of directors of NYSE Euronext that neither it, nor any of its related persons, is (1) An NYSE Member; (2) an NYSE MKT Member; (3) an ETP Holder; (4) an OTP Holder or OTP Firm; or (5) a U.S. Disqualified Person or a European Disqualified Person.
On [June 5] [sic], 2013, the board of directors of NYSE Euronext adopted by written consent the NYSE Euronext Resolutions to permit ICE Group, either alone or with its related persons, to exceed the NYSE Euronext Ownership Restriction and the NYSE Euronext Voting Restriction. In adopting such resolutions, the board of directors of NYSE Euronext made the necessary determinations set forth above and approved the submission of the Proposed Rule Change to the Commission. The U.S. Regulated Subsidiaries will continue to operate and regulate their markets and members exactly as they have done prior to the Merger. Except as set forth in the Proposed Rule Change, ICE Group is not proposing any amendments to their trading or regulatory rules.
With respect to the ability of the Commission to enforce the Exchange Act as it applies to the U.S. Regulated Subsidiaries after the Merger, the U.S. Regulated Subsidiaries will operate in the same manner following the Merger as they operate today. Thus, the Commission will continue to have plenary regulatory authority over the U.S. Regulated Subsidiaries, as is the case currently with these entities. As described in the following sections of this filing, NYSE Arca is proposing the adoption of the ICE Group Certificate and Bylaws by ICE Group, the NYX Holdings Operating Agreement by NYX Holdings as the surviving entity of the
The NYSE Euronext board of directors also determined that ownership of NYSE Euronext by ICE Group is in the best interests of NYSE Euronext, its stockholders and the U.S. Regulated Subsidiaries.
An extract with the relevant provisions of the Euronext Resolutions is attached as Exhibit 5D to the Proposed Rule Change and can be found on the Exchange's Web site and the Commission's Web site.
NYSE Arca hereby requests that the Commission approve the NYSE Euronext Resolutions and allow ICE Group, either alone or with its related persons, to own and vote all of the outstanding common stock of NYSE Euronext upon and following the consummation of the Merger.
NYSE Arca is proposing that, effective as of the completion of the Merger, the ICE Group Certificate would contain voting and ownership restrictions that are substantially identical to those currently in the NYSE Euronext Certificate (except that they would apply only for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary), and would restrict any person, either alone or together with its related persons, from having voting control over ICE Group shares entitling the holder thereof to cause more than 10% of the votes entitled to be cast on any matter or beneficially owning ICE Group shares representing more than 20% of the outstanding votes that may be cast on any matter.
In addition, NYSE Arca is proposing that the Commission approve the NYX Holdings Operating Agreement, effective as of the consummation of the Merger, which would include voting and ownership provisions, as well as related waiver provisions, again substantially identical to those in the current NYSE Euronext Certificate and NYSE Euronext Bylaws, except that they would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests in NYX Holdings and only for so long as NYX Holdings directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary.
Under the Proposed Rule Change, the ICE Group Certificate would provide that (1) no person, either alone or together with its related persons (as defined in the ICE Group Certificate), may be entitled to vote or cause the voting of shares of stock of ICE Group beneficially owned by such person or its related persons, in person or by proxy or through any voting agreement or other arrangement, to the extent that such shares represent in the aggregate more than 10% of the then outstanding votes entitled to be cast on such matter, and (2) no person, either alone or together with its related persons, may acquire the ability to vote more than 10% of the then outstanding votes entitled to be cast on any such matter by virtue of agreements or arrangements entered into with other persons to refrain from voting shares of stock of ICE Group (the “ICE Group Voting Restriction”).
In addition, the ownership restrictions in the ICE Group Certificate would provide that, if such restrictions apply, no person, either alone or together with its related persons, may at any time own beneficially shares of ICE Group representing in the aggregate more than 20% of the then outstanding votes entitled to be cast on any matter (the “ICE Group Ownership Restrictions”).
The ICE Group Certificate would provide that the ICE Group Voting Restriction and the ICE Group Ownership Restriction would apply only for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary (as such term is defined in the ICE Group Certificate).
The ICE Group Voting Restriction applies to each person unless and until (1) Such person has delivered a notice in writing to the board of directors of ICE Group, not less than 45 days (or such shorter period as the board of directors of ICE Group expressly permits) prior to any vote, of such person's intention, either alone or together with its related persons, to vote or cause the voting of shares of ICE Group stock beneficially owned by such person or its related persons in excess of the ICE Group Voting Restriction; (2) the board of directors of ICE Group has resolved to expressly permit such voting; and (3) such resolution has been filed with, and approved by, the Commission under Section 19(b) of the Exchange Act
The ICE Group Ownership Restriction applies to each person unless and until (1) Such person has delivered a notice in writing to the board of directors of ICE Group, not less than 45 days (or such shorter period as the board of directors of ICE Group expressly permits) prior to the acquisition of any shares of ICE Group that would cause such person, either alone or together with its related persons, to exceed the
Under the Proposed Rule Change, the NYX Holdings Operating Agreement, although modeled substantially on the current NYSE Euronext Certificate and Bylaws, would reflect certain modifications from the analogous provisions in the NYSE Euronext Certificate and Bylaws, effective as of the Merger, to be consistent with the status of NYX Holdings as a wholly owned subsidiary of ICE Group and with provisions currently in the NYSE Group Certificate, and certain other changes to update the voting and ownership restrictions, in the following respects:
• The NYX Holdings Operating Agreement would provide that all issued and outstanding membership interests will be held by ICE Group, and that ICE Group may not transfer or assign any membership interests without approval by the Commission under the Exchange Act and the relevant European Regulators (as defined in the NYX Holdings Operating Agreement) under the applicable European Exchange Regulations (as defined in the NYSE Euronext Certificate).
• The NYX Holdings Operating Agreements would provide that the NYX Holdings voting and ownership restrictions contained therein would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests of NYX Holdings,
• The definition of “Related Persons” would be expanded to provide that (1) in the case of a person that is a “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include the “member” (as defined in Section 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) with which such person is associated; and (2) in the case of any person that is a “member” (as defined in 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include any “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) that is associated with such person.
• The mandatory repurchase of membership interests from a Person whose ownership represents in the aggregate more than 20% in interest of the interests entitled to vote on any matter would be at a price determined by reference to each incremental percentage ownership over 20% rather than at par value, specifically $1,000 for each percent.
The voting restrictions contained in the current NYSE Group Certificate are substantially the same as those in the current NYSE Euronext Certificate described above, except that (i) the NYSE Group Certificate does not contain any references to European subsidiaries, markets or regulators, and (ii) the NYSE Group Certificate contains references to NYSE MKT members in its definition of “Related Person” that are not currently in NYSE Euronext.
The NYSE Group Certificate would be updated to provide that
• the NYSE Group Voting Restriction and the NYSE Group Ownership Restriction would apply only in the event that NYX Holdings does not own all of the issued and outstanding shares of NYSE Group
• The definition of “Related Persons” would be expanded to provide that (1) in the case of a person that is a “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include the “member” (as defined in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 3(a)(3)(A)(ii) and (iii) of the Exchange Act, which are currently referenced in this provision of the NYSE Group Certificate) with which such person is associated; and (2) in the case of any person that is a “member” (as defined in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 3(a)(3)(A)(ii) and (iii) of the Exchange Act, which are currently referenced in this provision of the NYSE Group Certificate) of NYSE MKT, such person's “Related Persons” would include any “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) that is associated with such person.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that ICE Group and its directors, and, to the extent that they are involved in the activities of the U.S. Regulated Subsidiaries, ICE Group's officers and those of its employees whose principal place of business and residence is outside the United States, would be deemed to irrevocably submit to the
In addition, the ICE Group Bylaws would provide that, so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary, the directors, officers and employees of ICE Group will be deemed to be directors, officers and employees of such U.S. Regulated Subsidiaries for purposes of, and subject to oversight pursuant to, the Exchange Act.
The ICE Group Bylaws would provide that ICE Group will take reasonable steps necessary to cause its directors, officers and employees, prior to accepting a position as an officer, director or employee, as applicable, of ICE Group to agree and consent in writing to the applicability to them of these jurisdictional and oversight provisions with respect to their activities related to any U.S. Regulated Subsidiary.
NYSE Arca anticipates that the functions and activities of each U.S. Regulated Subsidiary generally will be carried out by the officers and directors of such U.S. Regulated Subsidiary, over each of whom the Commission has direct authority pursuant to Section 19(h)(4) of the Exchange Act.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary, the books, records and premises of ICE Group will be deemed to be the books, records and premises of such U.S. Regulated Subsidiaries for purposes of, and subject to oversight pursuant to, the Exchange Act.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that ICE Group will comply with the U.S. federal securities laws and the rules and regulations thereunder, and will cooperate with the Commission and with the U.S. Regulated Subsidiaries pursuant to and to the extent of their respective regulatory authority.
The ICE Group Bylaws would also provide that all confidential information that comes into the possession of ICE Group pertaining to the self-regulatory function of any U.S. Regulated Subsidiary will (a) Not be made available to any persons other than to those officers, directors, employees and agents of ICE Group that have a reasonable need to know the contents thereof; (b) be retained in confidence by ICE Group and the officers, directors, employees and agents of ICE Group; and (c) not be used for any commercial purposes.
In addition, the ICE Group Bylaws would provide that ICE Group and its directors, officers and employees will give due regard to the preservation of the independence of the self-regulatory function of the U.S. Regulated Subsidiaries (to the extent of each U.S. Regulated Subsidiary's self-regulatory function) and to its obligations to investors and the general public, and will not take any actions that would interfere with the effectuation of any decisions by the board of directors or managers of any U.S. Regulated Subsidiary relating to its regulatory responsibilities (including enforcement and disciplinary matters) or that would interfere with the ability of such U.S. Regulated Subsidiary to carry out its responsibilities under the Exchange Act.
Finally, the ICE Group Bylaws would provide that each director of ICE Group would, in discharging his or her responsibilities, to the fullest extent permitted by applicable law, take into consideration the effect that ICE Group's actions would have on the ability of (a) the U.S. Regulated Subsidiaries to carry out their responsibilities under the Exchange Act; and (b) the U.S. Regulated Subsidiaries, NYSE Group
Under the Proposed Rule Change, the ICE Group Bylaws would provide that, before any amendment to or repeal of any provision of the ICE Group Bylaws shall be effective, such amendment or repeal shall be submitted to the board of directors of each U.S. Regulated Subsidiary (or the boards of directors of their successors) and if any or all of such boards of directors determine that, before such amendment or repeal may be effectuated, the same must be filed with, or filed with and approved by, the Commission pursuant to Section 19 of the Exchange Act and the rules promulgated thereunder, then the same will not be effectuated until filed with, or filed with and approved by, the Commission, as the case may be.
Under the Proposed Rule Change, ICE Group would adopt the ICE Group Independence Policy in the form attached to the Proposed Rule Change as Exhibit 5C, which would be substantially similar to the current Independence Policy of the NYSE Euronext board of directors.
NYSE Arca is proposing that the NYX Holdings Operating Agreement differ from NYSE Euronext's Certificate and Bylaws to reflect the fact that, after the Merger, NYX Holdings will be an intermediate holding company, will not be a public company traded on an exchange and will not have securities registered under Section 12 of the Exchange Act. As a result, NYX Holdings will not be subject to the Exchange's listing standards or to the corporate governance requirements applicable to publicly traded companies.
As summarized below, the following revisions to the NYSE Euronext Certificate and Bylaws are proposed for the NYX Holdings Operating Agreement in order (1) To simplify and provide for a more efficient governance and capital structure that is appropriate for a wholly owned subsidiary; (2) to conform certain provisions to analogous provisions of the current organizational documents of NYSE Group, which is a wholly owned subsidiary of NYSE Euronext, just as NYX Holdings will be a wholly owned subsidiary of ICE Group following completion of the Merger; and (3) to make certain clarifications and technical edits (for example, to conform the use of defined terms and other provisions, to update cross-references to sections both internal and in the ICE Group Certificate and Bylaws, and to conform to certain other provisions in the ICE Group Certificate and Bylaws).
• The NYSE Euronext Certificate and Bylaws contain provisions relating to the issuance of one or more series of preferred stock. The NYX Holdings Operating Agreement provides for only one class of membership interest and has no provision for a preferred membership interest because NYSE Arca considers it unlikely that a wholly owned subsidiary would have occasion to issue preferred interests.
• Section 16.1 of the NYX Holdings Operating Agreement would provide that, for so long as NYX Holdings controls, directly or indirectly, any U.S. Regulated Subsidiary, before any amendment to the NYX Holdings Operating Agreement may be effectuated, such amendment would need to be submitted to the board of directors of each U.S. Regulated Subsidiary and, if so determined by any such board, would need to be filed with, or filed with and approved by, the Commission before such amendment may become effective. This provision parallels Article X(C) of the NYSE Euronext Certificate as supplemented, with respect to NYSE MKT, by Section 10.13 of the NYSE Euronext Bylaws.
• The NYX Holdings Operating Agreement would provide that the registered office and agent of NYX Holdings in Delaware will be the Corporation Trust Company, which is the registered agent of other subsidiaries of NYSE Euronext and of ICE.
• Section 3.1 of the NYSE Euronext Bylaws currently provides that the number of directors may be fixed and changed only by resolution adopted by two-thirds of the directors then in office. The two-thirds requirement will be changed to a majority in Section 3.2 of the NYX Holdings Operating Agreement as is appropriate for a wholly owned subsidiary. This standard has been eliminated from the list of provisions that are automatically suspended or become void upon certain events specified in Section 10.11 of the NYX Holdings Operating Agreement.
• Certain residency requirements applicable to directors and officers of NYSE Euronext and references to U.S. and European director domiciles and to “Deputy” officers that appear in the NYSE Euronext Certificate and Bylaws would not be included in the NYX Holdings Operating Agreement. Specifically, references to deputies in Section 2(A) of Article VI of the NYSE Euronext Certificate, and in Sections 2.2(3) and (5), Section 2.5, Section 3.12, Section 5.1, Section 10.4 and Section 10.5 of the NYSE Euronext Bylaws would not be replicated in the NYX Holdings Operating Agreement. Additionally, Section 4.4 of the NYSE Euronext Bylaws (regarding domicile requirements for members of the Nominating and Governance Committee of the board of directors) and the reference thereto in Section 4.1 would not be replicated in the NYX Holdings Operating Agreement. All, or the portions regarding director and officer domicile, of the following sections of the NYSE Euronext Bylaws would not be replicated in the NYX Holdings Operating Agreement: all of Section 3.2 (regarding director domicile requirements); all of Section 3.3 (regarding chairman and chief executive officer domicile requirements); portions of Section 3.6 (regarding filling of vacancies on the board); and the cross-references in Section 10.11(B) to the foregoing deleted provisions. In addition, the requirement in Section 3.8 of the NYSE Euronext Bylaws that board meetings be held with equal frequency in the United States and Europe would be replaced with a requirement that one
• The restrictions on transfers of certain shares of NYSE Euronext common stock contained in Section 4 of Article IV of the NYSE Euronext Certificate have expired in accordance with their terms and would not be included in the NYX Holdings Operating Agreement.
• Notice of meetings of members would not be required under the NYX Holdings Operating Agreement if waived in accordance with Section 8.1(e) thereof.
• The ICE Group Bylaws provide in Section 2.5 that the holders of a majority of the shares outstanding and entitled to vote (giving effect to the “Recalculated Voting Limitation” referred to in Section A.1 of Article V of the ICE Group Certificate, if applicable) may call special meetings of stockholders. A comparable provision is appropriate for NYX Holdings to provide additional flexibility to ICE Group to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger. Accordingly, Section 8.1(d) of the NYX Holdings Operating Agreement would allow the holders of a majority of the membership interests outstanding and entitled to vote (giving effect to the “Recalculated Voting Limitation,” if applicable) to call special meetings of members.
• The requirement in Section 2.6 of the NYSE Euronext Bylaws for the appointment of an inspector of elections for stockholders meetings would not be included in the NYX Holdings Operating Agreement because the requirement for an inspector of elections under the Delaware General Corporation Law (the “DGCL”) would no longer apply to NYX Holdings after completion of the Merger.
• The requirement in Section 2.7 of the NYSE Euronext Bylaws that directors be elected by a majority of the votes cast (and that they must tender their resignation if such a majority vote is not received), except in the case of contested elections, and that the board of directors may fill any resulting vacancy or may decrease the size of the board, would not be included in the NYX Holdings Operating Agreement, and a plurality voting standard would be adopted for all director elections. These requirements would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• Section 2.10 of the NYSE Euronext Bylaws requires certain advance notice from stockholders of director nominations and stockholder proposals, and that only business brought before a special meeting of stockholders pursuant to NYX Euronext's notice of the meeting may be brought before the meeting. This provision would not be included in the NYX Holdings Operating Agreement because the requirements would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• In order to give ICE Group additional flexibility to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger, Section 7.5 of the NYX Holdings Operating Agreement would allow the member to take any action without a meeting and without prior notice if consented to, in writing, by the member.
• In order to give ICE Group additional flexibility to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger, Section 3.4 of the NYX Holdings Operating Agreement would allow members to fill board vacancies.
• The requirements in Article X of the NYSE Euronext Certificate for a supermajority stockholder vote to amend or repeal certain provisions of the certificate would be eliminated from the NYX Holdings Operating Agreement and a majority vote requirement would apply. A supermajority vote requirement would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member, and a majority voting standard is consistent with the standard generally applicable for actions by the parent entity of other wholly owned subsidiaries of NYX Holdings.
• Section 3.4 of the NYX Holdings Operating Agreement, which is analogous to current Section 3.6 of the NYSE Euronext Bylaws, would include “(if any)” after the reference therein to the Nominating and Governance Committee, because NYX Holdings would become a wholly owned subsidiary of ICE Group and, as such, may not have a Nominating and Governance Committee.
• Section 3.4 of the NYSE Euronext Bylaws, which relates to independence requirements, including the requirement that at least 75% of the board must be independent, would not be replicated in the NYX Holdings Operating Agreement because NYX Holdings would be a wholly owned subsidiary of ICE Group after completion of the Merger and, therefore, it is likely that executives of ICE Group and its subsidiaries will serve on this board.
• Section 3.8(a) of the NYX Holdings Operating Agreement would provide that notice of board meetings is not required if waived in accordance with Section 3.8(b), which is less restrictive than Section 3.9 of the NYSE Euronext Bylaws.
• The advance notice period in Section 3.9 of the NYSE Euronext Bylaws for notices of board meetings sent by first-class mail would be reduced from four days to three days in Section 3.8(a) of the NYX Holdings Operating Agreement. This change conforms the notice period to Section 3.6(b) of the ICE Group Bylaws.
• Section 3.12 of the NYSE Euronext Bylaws requires that, if the chairman or deputy chairman of the board of directors is also the chief executive officer or deputy chief executive officer, he or she may not participate in executive sessions of the board of directors, and if the chairman is not the chief executive officer or deputy chief executive officer, he or she will act as a liaison between the board of directors and the chief executive officer or the deputy chief executive officer. No analogous provisions would be included in the NYX Holdings Operating Agreement.
• Certain aspects of the indemnification and expense advancement provisions in Section 15.2 of the NYX Holdings Operating Agreement, including the terms of any insurance policy maintained by NYX Holdings, would be simplified from Section 10.6 of the NYSE Euronext Bylaws in light of the fact that there are not expected to be any independent, non-executive directors of NYX Holdings, and, therefore, a more streamlined process for indemnification claims is appropriate.
• Section 10.10(A) of the NYSE Euronext Bylaws enumerates provisions of the Bylaws for which amendment requires approval by a supermajority of directors. The supermajority approval requirement would be eliminated in Section 16.1 of the NYX Holdings Operating Agreement by decreasing the current two-thirds standard to a majority of the directors then in office, as is appropriate for a wholly owned subsidiary.
• The supermajority stockholder vote requirements in Section 10.10(B) of the NYSE Euronext Bylaws would be eliminated in the NYX Holdings Operating Agreement because a supermajority vote requirement would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• The NYSE Euronext Bylaw provisions that are subject to automatic suspension under Section 10.11 would be revised in Section 16.3 of the NYX Holdings Operating Agreement to reflect elimination of the supermajority voting provisions in Sections 10.10(A) and (B) discussed above.
In addition, the current Independence Policy of the NYSE Euronext board of directors would, effective as of the Merger, cease to apply.
Under the Proposed Rule Change, the revisions summarized below to the NYSE Group Certificate are proposed in order to conform certain provisions to the analogous provisions of the organizational documents of NYX Holdings, which would likewise be a wholly owned subsidiary of ICE Group following completion of the Merger, as well as to make certain clarifications and technical edits:
• Section 4(a) of Article IV of the NYSE Group Certificate would be amended to contemplate successors to NYSE Euronext as the holder of all of the issued and outstanding shares of NYSE Group for purposes of the NYSE Trust Agreement.
• Sections 4(b)(1)(A) and 4(b)(2)(A) of Article IV of the NYSE Group Certificate would be amended to clarify that the voting ownership concentration limitations in the NYSE Group Certificate would be effective “for so long as the Corporation shall control, directly or indirectly” a U.S. Regulated Subsidiary, as defined in Section 4(b)(1)(A). Conforming changes relating to the definition of U.S. Regulated Subsidiary and the change of name of NYSE Alternext to NYSE MKT have been made later in the same section and thereafter.
• Typographical errors in references to Exchange Act Section 3(a)(3) would be corrected in Section 4(b)(1)(E)(vi) and (xii) of Article IV.
• Section 3 of Article V would be amended by adding the words “from time to time” to conform the provision to the NYX Holdings Operating Agreement.
• Section 5 of Article V of the NYSE Group Certificate would be amended to clarify that the right of the NYSE Group board of directors to remove directors is subject to any rights of holders of any preferred stock in order to make this provision consistent with Section 2 of Article IV of the NYSE Group Certificate, which provides that preferred stock may be issued that may have voting rights.
• Numbering of certain sections of the NYSE Group Certificate would be updated to reflect the amendments set forth above.
The Fourth Amended and Restated Operating Agreement, dated as of August 23, 2012, of the Exchange (the “Exchange Operating Agreement”), currently provides that (1) a majority of the members of the Exchange's board of directors must be U.S. persons and members of the board of directors of NYSE Euronext, and (2) at least 20% of the Exchange's board members must be persons who are not members of the board of directors of NYSE Euronext but who qualify as independent under the independence policy of the Exchange's board of directors (the “Non-Affiliated Exchange Directors”).
Under the Proposed Rule Change, these provisions would be amended to refer to ICE Group instead of NYSE Euronext. Also, references throughout to the Exchange's “Corporation Independence Policy” would be changed to “Company Independence Policy” in recognition of the form of organization of the Exchange.
Substantially the same revisions would be made to the analogous provisions of the Fourth Amended and Restated Operating Agreement of NYSE MKT.
In addition, references to NYSE Euronext in the Director Independence Policy of each of the Exchange, NYSE Market, NYSE Regulation and NYSE MKT would be revised to refer to ICE Group.
The revisions to the Fourth Amended and Restated Operating Agreement of NYSE MKT indicate that NYSE MKT will be an indirect wholly owned subsidiary of ICE Group rather than a direct subsidiary of NYSE Euronext, and the phrase “NYSE/Amex” has been inserted before references to a merger in 2008 in the recitals to distinguish that merger from the Merger.
The Second Amended and Restated Bylaws of NYSE Market and the Third Amended and Restated Bylaws of NYSE Regulation would be amended to reflect the change from NYSE Euronext to ICE Group. In the case of NYSE Market, the address of the registered office and registered agent has been updated.
In the director independence policies, typographical errors in references to Exchange Act Section 3(a)(3) would be corrected in the first paragraph under the section captioned “Independence Qualifications.”
Under the Proposed Rule Change, certain technical amendments would be made to the Exchange Rules. First, references therein to “NYSE Euronext” would be replaced with references to ICE Group, except that references to NYSE Euronext in Rule 22 and Rule 422 would be replaced with references to NYX Holdings and references to ICE Group would be added. Second, Rule 2 would be revised to delete the definitions of “member” and “member organization” relating to NYSE MKT, which are set forth in Rule 2 for purposes of Section 1(L) of Article 5 of the NYSE Euronext Certificate, because under the Proposed Rule Change, the ICE Group Certificate will incorporate this language.
In addition, certain technical amendments would be made to the NYSE MKT Rules and NYSE Arca Equities Rules to replace references to “NYSE Euronext” with references to ICE Group, except that references to NYSE Euronext in NYSE MKT Rules 107B and 501 would be changed to NYX Holdings. Also, certain provisions in NYSE MKT Rule 104T relating to restrictions on transfer in the NYSE Euronext Certificate would be eliminated because the referenced restrictions are no longer in effect and there will be no analogous provision in the ICE Group Certificate.
NYSE Arca believes that this filing is consistent with Section 6(b) of the Exchange Act
NYSE Arca also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act
NYSE Arca 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 Exchange Act. The Proposed Rule Change is not designed to address any competitive issue in the U.S. or European securities markets or have any impact on competition in those markets; rather, it will combine the U.S. equities businesses of NYSE Euronext with the commodities and futures businesses of ICE. The ownership of U.S. securities exchanges will not become more concentrated as a result of the Proposed Rule Change because ICE currently owns no U.S. securities exchange. With respect to operations outside the United States, ICE has informed NYSE Euronext that it expects the derivatives business of LAM will be gradually transitioned to ICE Futures Europe, as discussed above, but such transition is subject to regulatory approval in the United Kingdom.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange proposes to amend Interpretive Material to Rule 7150 (Price Improvement Period “PIP”) to extend a pilot program that permits the Exchange to have no minimum size requirement for orders entered into the PIP (“PIP Pilot Program”). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to extend the PIP Pilot Program for twelve additional months. The PIP Pilot Program allows the Exchange to have no minimum size requirement for orders entered into the PIP.
The Exchange notes that the PIP Pilot Program guarantees Participants the right to trade with their customer orders that are less than 50 contracts. In particular, any order entered into the PIP is guaranteed an execution at the end of the auction at a price at least equal to the national best bid or offer. In further support of this proposed rule change, the Exchange will submit to the Commission monthly a PIP Pilot Program Report, offering detailed data from, and analysis of, the PIP Pilot Program. Specifically, the Exchange believes that, by extending the expiration of the PIP Pilot Program, the proposed rule change will allow for further analysis of the PIP Pilot Program and a determination of how the PIP Pilot Program shall be structured in the future.
The Exchange believes that the proposal is consistent with the requirements of 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. Specifically, the Exchange believes that, by extending the expiration of the PIP Pilot Program, the proposed rule change will allow for further analysis of the PIP Pilot Program and a determination of how the PIP Pilot Program shall be structured in the future. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
The Exchange has 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)(ii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot program to continue uninterrupted, thereby avoiding any potential investor confusion that could result from a temporary interruption in the pilot program. Further, the
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing rule changes related to members' filing obligations under Rule 5123 (Private Placements of Securities).
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On June 7, 2012, the Commission approved FINRA Rule 5123 (“Private Placements of Securities” or the “Rule”),
To facilitate the transmission of the required information from members to
FINRA is filing the proposed rule change to codify the requirement that members file the Private Placement Form via FINRA Firm Gateway in connection with their compliance with Rule 5123, as set forth in
FINRA also proposes to ask members to select an industry category for the specified private placement offering when completing the Form.
The revised Form will assist FINRA in fulfilling its regulatory responsibilities by providing critical information regarding the nature of the offering, involved parties and the member's role in offering the securities.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, so FINRA can implement the proposed rule change immediately.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA notes that all members that participate in specified private placements will have to file electronically (or have another member that is participating in the specified private placement file on its behalf) a Private Placement Form in connection with Rule 5123. In addition, outside of very basic information about the member, the issuer (
Because the new questions to be added to the Form in connection with this proposed rule change do not impose an affirmative duty on members to obtain answers, but only requires the member to provide the information on the Form if known, FINRA believes that the proposed rule change presents a very modest filing burden upon members. In light of the role of Rule 5123 and the Form in assisting FINRA in its efforts to detect and prevent fraudulent and manipulative acts and practices and enhance the protection of investors, FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
FINRA has filed the proposed rule change pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will assist in FINRA's efforts to detect and prevent fraud in connection with specified private placements. As noted by FINRA, the burden on members will be minimal because electronic filing of an abbreviated version of the Form accompanying specified private placement filings has been operative since the Rule became effective and the proposed rule change does not impose an affirmative duty on members to obtain any additional information not already known to them. Therefore, implementation time is not necessary as members already file through FINRA Firm Gateway. For these reasons, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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 Elizabeth M. Murphy, 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)
NYSE MKT, a New York limited liability company, registered national securities exchange and self-regulatory organization, is submitting this rule filing (the “Proposed Rule Change”) to the U.S. Securities and Exchange Commission in connection with the proposed business combination (the “Merger”) of NYSE Euronext (“NYSE Euronext”) and IntercontinentalExchange, Inc. (“ICE”), both Delaware corporations. NYSE Euronext has entered into an Agreement and Plan of Merger, dated as of December 20, 2012, as amended and restated as of March 19, 2013, by and among NYSE Euronext, ICE, IntercontinentalExchange Group, Inc. (“ICE Group”), Braves Merger Sub, Inc. (“ICE Merger Sub”) and Baseball Merger Sub, LLC (“NYSE Euronext Merger Sub”) (as it may be further amended from time to time, the “Merger Agreement”), whereby NYSE Euronext and ICE would each become subsidiaries of ICE Group.
NYSE Euronext owns 100% of the equity interest of NYSE Group, Inc., a Delaware corporation (“NYSE Group”), which in turn directly or indirectly owns (1) 100% of the equity interest of
ICE is a leading operator of regulated exchanges and clearing houses serving the risk management needs of global markets for agricultural, credit, currency, emissions, energy and equity index products. ICE directly and indirectly owns ICE Futures Europe, ICE Futures U.S., Inc., ICE Futures Canada, Inc., ICE U.S. OTC Commodity Markets, LLC, and five central counterparty clearing houses, including ICE Clear Europe Limited and ICE Clear Credit LLC, each of which is registered as a clearing agency under Section 17A of the Exchange Act,
ICE's common stock is listed on the Exchange under the symbol “ICE,” and, following the completion of the Merger, ICE Group common stock is expected to be listed for trading on the Exchange under the same symbol.
NYSE MKT is proposing that, pursuant to the Merger, the successor to NYSE Euronext, NYSE MKT's indirect parent, will be a wholly owned subsidiary of ICE Group. ICE Group is currently a wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, ICE Merger Sub, a Delaware corporation, and NYSE Euronext Merger Sub, a Delaware limited liability company. To effect this transaction, (A) ICE Merger Sub will be merged with and into ICE (the “ICE Merger”), with ICE as the surviving corporation and a wholly owned subsidiary of ICE Group, and each share of ICE common stock owned by an ICE stockholder (other than ICE or ICE Merger Sub) will be converted into the right to receive one share of ICE Group common stock, and (B) immediately following the ICE Merger, NYSE Euronext shall be merged with and into NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the surviving company and a wholly owned subsidiary of ICE Group (the “NYSE Euronext Merger” and, together with the ICE Merger, the “Merger”). Each issued and outstanding share of NYSE Euronext common stock will be converted into the right to receive the “standard election amount” of 0.1703 of a share of ICE Group common stock and $11.27 in cash, other than certain shares held by NYSE Euronext, ICE and their respective affiliates. Alternatively, NYSE Euronext stockholders will have the right to make either a cash election to receive $33.12 in cash, or a stock election to receive 0.2581 of a share of ICE Group common stock, for each share of NYSE Euronext. NYSE Euronext Merger Sub, as the surviving entity in the NYSE Euronext Merger, will change its name to NYSE Euronext Holdings LLC (“NYX Holdings”) from and after the closing of the Merger.
If the Merger is completed, the businesses of ICE and NYSE Euronext, including the U.S. Regulated Subsidiaries, will be held under ICE Group as a single publicly traded holding company that will be listed on the Exchange. The Proposed Rule Change, if approved by the Commission, will not be effective until the consummation of the Merger.
In addition, NYSE MKT is proposing that, in connection with the Merger, the Commission approve the organizational and other governance documents of ICE Group and NYX Holdings, as well as certain amendments to the organizational and other governance documents of NYSE Group and certain of the U.S. Regulated Subsidiaries, as well as certain rules of the Exchange, NYSE MKT and NYSE Arca Equities.
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○ first, the NYX Holdings Operating Agreement would provide that all of the issued and outstanding membership interests of NYX Holdings will be held by ICE Group, and that ICE Group may not transfer or assign any membership interests without approval by the Commission under the Exchange Act and the relevant European Regulators under the applicable European Exchange Regulations (as defined in the NYX Holdings Operating Agreement);
○ second, the NYX Holdings Operating Agreement would provide that the voting and ownership restrictions contained therein would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests of NYX Holdings and only for so long as NYX Holdings directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary (as such terms are defined in the NYX Holdings Operating Agreement). The voting and ownership restrictions in the NYX Holdings Operating Agreement would otherwise mirror those in both the current NYSE Group Certificate and the proposed ICE Group Certificate: A 10% threshold for the voting restriction and an ownership restriction of 20%.
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• Under the Proposed Rule Change, the voting and ownership restrictions in the NYSE Group Certificate would be amended to apply only for so long as NYSE Group directly or indirectly controls any Regulated Subsidiary (as defined in the NYSE Group Certificate); and expand the definition of “Related Persons” regarding NYSE MKT Members so that it is consistent with the language in the NYSE Rules, which language also will be incorporated in the ICE Group Certificate and the NYX Holdings Operating Agreement pursuant to the Proposed Rule Change.
The Second Amended and Restated Certificate of Incorporation of IntercontinentalExchange Group, Inc. that will be effective as of the consummation of the Merger, the Amended and Restated Bylaws of IntercontinentalExchange Group, Inc. that will be effective as of the consummation of the Merger; the proposed Director Independence Policy of Intercontinental-Exchange Group, Inc. that will be adopted by the board of directors of IntercontinentalExchange Group, Inc. effective as of the consummation of the Merger; the resolutions of the NYSE Euronext Board of Directors; the proposed Amended and Restated Limited Liability Company Agreement of NYSE Euronext Holdings LLC that will be effective as of the consummation of the Merger; the proposed Third Amended and Restated Certificate of Incorporation of NYSE Group, Inc. that will be effective as of the consummation of the Merger; the proposed Fifth Amended and Restated Operating Agreement of New York Stock Exchange LLC that will be effective as of the consummation of the Merger; the proposed Fourth Amended and Restated Operating Agreement of NYSE MKT LLC that will be effective as of the consummation of the Merger; the proposed Third Amended and Restated Bylaws of NYSE Market (DE), Inc. that will be effective as of the consummation of the Merger; the proposed Fifth Amended and Restated Bylaws of NYSE Regulation, Inc. that will be effective as of the consummation of the Merger; the proposed amended Rules of the New York Stock Exchange, LLC that will be effective as of the consummation of the Merger; the proposed revised Director Independence Policy that will be adopted by the boards of directors of New York Stock Exchange, LLC, NYSE MKT LLC, NYSE Market (DE), Inc. and NYSE Regulation, Inc. effective as of the consummation of the Merger; the proposed amendments to the NYSE Trust Agreement, that will be effective as of the consummation of the Merger; the proposed amended Rules of NYSE MKT that will be effective as of the consummation of the Merger; and the proposed amended Rules of NYSE Arca Equities, Inc. that will be effective as of the consummation of the Merger are attached to the Proposed Rule Change as Exhibits 5A, 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, 5L, 5M, 5N and 5O, respectively.
The text of the Proposed Rule Change is available at the Exchange, the Commission's Public Reference Room, and on the Web site of the Exchange (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this rule filing is to adopt the rules necessary to permit NYSE Euronext to effect the Merger and to amend certain provisions of the organizational and other governance documents of NYSE Euronext, NYSE Group and certain of the U.S. Regulated Subsidiaries, including certain Exchange Rules, NYSE MKT Rules and NYSE Arca Equities Rules.
NYSE MKT is submitting the Proposed Rule Change to the Commission in connection with the Merger of NYSE Euronext and ICE. ICE Group believes the Merger brings together two highly complementary businesses and will create an end-to-end multi-asset portfolio that will be strongly positioned to serve a global client base and capture current and future growth opportunities.
Other than as described herein and in the separate proposed rule changes filed by each NYSE Exchange, ICE Group and the NYSE Exchanges do not plan to make any changes to the regulated activities of the U.S. Regulated Subsidiaries in connection with the Merger. If ICE Group determines to make any such changes to the regulated activities of any U.S. Regulated Subsidiary, it will seek the approval of the Commission. The Proposed Rule Change, if approved by the Commission, will not be effective until the consummation of the Merger.
The Merger will occur pursuant to the terms of the Merger Agreement. As a result of the Merger, NYX Holdings, the successor to NYSE Euronext, will be a subsidiary of ICE Group.
In the Merger, NYSE Euronext, the indirect parent of NYSE MKT, will become a wholly owned subsidiary of ICE Group. ICE Group is currently a wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, ICE Merger Sub and NYSE Euronext Merger Sub. ICE Merger Sub will be merged with and into ICE, with ICE as the surviving corporation and a wholly owned subsidiary of ICE Group. Immediately afterward, NYSE Euronext will be merged with and into NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the surviving company and a wholly owned subsidiary of ICE Group. The surviving entity in the NYSE Euronext Merger will change its name to NYSE Euronext Holdings LLC from and after the closing of the NYSE Euronext Merger.
Under the terms of the Merger Agreement, each share of NYSE Euronext common stock will be converted into 0.1703 of a newly issued share of ICE Group common stock and $11.27 cash (together, the “Standard Merger Consideration”). NYSE Euronext stockholders may also elect to receive $33.12 in cash, or a stock election to receive 0.2851 of a share of ICE Group common stock, for each of their NYSE Euronext shares. Both the cash election and the stock election are subject to proration and adjustment procedures to ensure that the total amount of cash paid, and the total number of shares of ICE Group common stock issued, in the NYSE Euronext Merger to the NYSE Euronext stockholders, as a whole, will be equal to the total amount of cash and number of shares that would have been paid and issued if all of the NYSE Euronext stockholders received the standard election amount. Following the
The board of directors of ICE has determined that the Merger is in the best interests of its stockholders, approved the Merger Agreement and resolved to recommend to its stockholders that they approve the adoption of the Merger Agreement. The board of directors of NYSE Euronext has determined that the Merger is in the best interests of its stockholders, approved the Merger Agreement and resolved to recommend that its stockholders approve the adoption of the Merger Agreement.
Following the Merger, ICE Group will be a for-profit, publicly traded Delaware corporation. ICE Group will hold all of the equity interests in ICE, which will continue its current operations, and in NYX Holdings, which will hold (1) 100% of the equity interests of NYSE Group (which, in turn, directly or indirectly holds 100% of the equity interests of the U.S. Regulated Subsidiaries) and (2) 100% of the equity interest of Euronext N.V. (which, in turn, directly or indirectly holds 100% of the equity interests in certain regulated trading markets in Belgium, France, the Netherlands, Portugal and the United Kingdom).
ICE Group will amend its certificate and bylaws to incorporate ownership and voting limitations and certain other provisions to satisfy U.S. and European regulatory requirements as described in detail in the Proposed Rule Change.
After the Merger, NYSE Group will be directly wholly owned by NYX Holdings and will continue to own, directly or indirectly, the three NYSE Exchanges—the Exchange, NYSE Arca and NYSE MKT—which provide marketplaces where investors buy and sell listed companies' common stock and other securities as well as equity options and securities traded on the basis of unlisted trading privileges. NYSE Regulation, Inc., an indirect not-for-profit subsidiary of NYX Holdings, will continue to oversee FINRA's performance of certain market surveillance and enforcement functions for the NYSE Exchanges, enforce listed company compliance with applicable standards, and oversee regulatory policy determinations, rule interpretation and regulation related rule development.
In Europe, NYSE Euronext and its subsidiaries own European-based exchanges that comprise Euronext N.V. and its subsidiaries—the London, Paris, Amsterdam, Brussels and Lisbon stock exchanges, as well as the derivatives markets in London, Paris, Amsterdam, Brussels and Lisbon (with certain qualifications and exceptions set forth in the ICE Group Bylaws, the “European Market Subsidiaries”). The activities of the NYSE Euronext European markets are or may be subject to the jurisdiction and authority of a number of European regulators, including the Dutch Minister of Finance, the French Minister of the Economy, the French Financial Market Authority (
NYSE Euronext and ICE expect that, after the closing of the Merger, Euronext will be separated from ICE Group, although no definitive plans have been made to pursue such a separation. An initial public offering of Euronext would include all of the European Market Subsidiaries (the continental European cash equity platforms and the derivatives traded on them) but would not include the derivatives businesses of another current subsidiary of Euronext, Liffe Administration and Management (“LAM”). ICE has informed NYSE Euronext that it expects the derivatives business of LAM will be gradually transitioned to ICE Futures Europe, subject to regulatory approval in the United Kingdom.
The current NYSE Euronext Certificate and Bylaws provide that each provision related to any European Market Subsidiary or any European regulatory requirement will be automatically repealed if (i) NYSE Euronext at any time in the future no longer holds a direct or indirect “controlling interest” (as defined therein) in Euronext or (ii) a “Euronext Call Option” (as defined in the NYSE Euronext bylaws) has been exercised and, after a period of six months following such exercise, Stichting NYSE Euronext, a foundation (“stichting”) organized under the laws of The Netherlands, formed on April 4, 2007 (the “Foundation”) holds shares of Euronext that represent a substantial portion of Euronext's business (provided that, in this case, the NYSE Euronext board of directors approves the applicable revocation). The ICE Group Certificate and Bylaws would contain similar provisions, except that the standard in clause (i) above that ICE Group no longer holds a direct or indirect controlling interest in Euronext would be replaced by a standard that it ceases to control Euronext, with “control” defined by reference to International Financial Reporting Standards. The separation of Euronext as described above is expected to trigger the repeal described in clause (i) as so modified.
Other than certain modifications described herein, the current corporate structure, governance and self-regulatory independence and separation of each U.S. Regulated Subsidiary will be preserved. Specifically, after the Merger, NYSE Group's businesses and assets will continue to be structured as follows:
• The Exchange will remain a direct wholly owned subsidiary of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
• NYSE Market will remain a wholly owned subsidiary of the Exchange and will continue to conduct the Exchange's business.
• NYSE Regulation will remain a wholly owned subsidiary of the Exchange and continue to perform, and/or oversee the performance of, regulatory responsibilities of the Exchange pursuant to a delegation agreement with the Exchange and regulatory functions of NYSE Arca and NYSE MKT pursuant to services agreements with them.
• NYSE Arca and NYSE Arca L.L.C., a Delaware limited liability company, will remain wholly owned subsidiaries of NYSE Group.
• NYSE Arca Equities will remain a wholly owned subsidiary of NYSE Arca.
• NYSE MKT will remain a direct wholly owned subsidiary of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
• The Merger will have no effect on the ability of any party to trade securities on the Exchange, NYSE Arca or NYSE MKT.
Similarly, NYX Holdings, as successor to NYSE Euronext, and its subsidiaries will conduct their regulated activities in the same manner as they are currently conducted, with any changes subject to the relevant approvals of their respective European Regulators and, in the case of the U.S. Regulated Subsidiaries, with any changes subject to the approval of the Commission.
ICE Group acknowledges that to the extent it becomes aware of possible violations of the rules of the Exchange, NYSE Arca or NYSE MKT, it will be
Article V of the current NYSE Euronext Certificate provides that (1) no person, either alone or together with its “related persons” (as defined in the NYSE Euronext Certificate), may be entitled to vote or cause the voting of shares of NYSE Euronext beneficially owned by such person or its related persons, in person or by proxy or through any voting agreement or other arrangement, to the extent that such shares represent in the aggregate more than 10% of the then outstanding votes entitled to be cast on such matter; and (2) no person, either alone or together with its related persons, may acquire the ability to vote more than 10% of the then outstanding votes entitled to be cast on any such matter by virtue of agreements or arrangements entered into with other persons to refrain from voting shares of stock of NYSE Euronext (the “NYSE Euronext Voting Restriction”).
In addition, the NYSE Euronext Certificate provides that no person, either alone or together with its related persons, may at any time beneficially own shares of NYSE Euronext representing in the aggregate more than 20% of the then outstanding votes entitled to be cast on any matter (the “NYSE Euronext Ownership Restriction”).
The NYSE Euronext Voting Restriction and the NYSE Euronext Ownership Restriction are applicable to each person unless and until (1) Such person has delivered a notice in writing to the board of directors of NYSE Euronext, not less than 45 days (or such shorter period as the board of directors of NYSE Euronext expressly permits) prior to any vote or, in the case of the NYSE Euronext Ownership Restriction, prior to the acquisition of any shares of NYSE Euronext that would cause such person, either alone or together with its related persons, to exceed the NYSE Euronext Ownership Restriction, of such person's intention, either alone or together with its related persons, to vote or cause the voting of shares of NYSE Euronext stock beneficially owned by such person or its related persons in excess of the NYSE Euronext Voting Restriction, or in the case of the NYSE Euronext Ownership Restriction, of such person's intention, either alone or together with its related persons, to acquire such ownership; (2) the board of directors of NYSE Euronext has resolved to expressly permit such voting or ownership, as applicable; (3) such resolution has been filed with, and approved by, the Commission under Section 19(b) of the Exchange Act
• Will not impair the ability of any U.S. Regulated Subsidiary, NYSE Euronext or NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity) to discharge their respective responsibilities under the Exchange Act and the rules and regulations thereunder;
• will not impair the ability of any of the European Market Subsidiaries of NYSE Euronext or Euronext (to the extent that Euronext continues to exist as a separate entity) to discharge their respective responsibilities under the European Exchange Regulations (as defined in the NYSE Euronext Bylaws);
• is otherwise in the best interest of NYSE Euronext, its stockholders, the U.S. Regulated Subsidiaries and the European Market Subsidiaries, and will not impair the Commission's ability to enforce the Exchange Act or the European Regulators' ability to enforce the European Exchange Regulations;
• for so long as NYSE Euronext directly or indirectly controls the Exchange or NYSE Market, neither such person nor any of its related persons is a NYSE Member;
• for so long as NYSE Euronext directly or indirectly controls NYSE MKT, neither such person nor any of its related persons is a NYSE MKT Member (this restriction is currently set forth in the Bylaws of NYSE Euronext
• for so long as NYSE Euronext directly or indirectly controls NYSE Arca, NYSE Arca Equities or any facility of NYSE Arca, neither such person nor any of its related persons is an ETP Holder, an OTP Holder or an OTP Firm; and
• neither such person nor any of its related persons is a U.S. Disqualified Person or a European Disqualified Person (as such terms are defined in the NYSE Euronext Certificate).
In order to allow ICE Group to wholly own and vote all of the outstanding common stock of NYSE Euronext upon consummation of the Merger, ICE Group has delivered written notice to the board of directors of NYSE Euronext pursuant to the procedures set forth in the NYSE Euronext Certificate requesting approval of its voting and ownership of NYSE Euronext shares in excess of the NYSE Euronext Voting Restriction and the NYSE Euronext Ownership Restriction. Among other things, in this notice, ICE Group represented to the board of directors of NYSE Euronext that neither it, nor any of its related persons, is (1)
On [June 5] [sic], 2013, the board of directors of NYSE Euronext adopted by written consent the NYSE Euronext Resolutions to permit ICE Group, either alone or with its related persons, to exceed the NYSE Euronext Ownership Restriction and the NYSE Euronext Voting Restriction. In adopting such resolutions, the board of directors of NYSE Euronext made the necessary determinations set forth above and approved the submission of the Proposed Rule Change to the Commission. The U.S. Regulated Subsidiaries will continue to operate and regulate their markets and members exactly as they have done prior to the Merger. Except as set forth in the Proposed Rule Change, ICE Group is not proposing any amendments to their trading or regulatory rules.
With respect to the ability of the Commission to enforce the Exchange Act as it applies to the U.S. Regulated Subsidiaries after the Merger, the U.S. Regulated Subsidiaries will operate in the same manner following the Merger as they operate today. Thus, the Commission will continue to have plenary regulatory authority over the U.S. Regulated Subsidiaries, as is the case currently with these entities. As described in the following sections of this filing, NYSE MKT is proposing the adoption of the ICE Group Certificate and Bylaws by ICE Group, the NYX Holdings Operating Agreement by NYX Holdings as the surviving entity of the NYSE Euronext Merger, which are modeled in large part on the current NYSE Euronext Certificate and Bylaws (with adjustments discussed below), and a series of amendments to the NYSE Group Certificate, that will create an ownership structure that will provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Exchange Act with respect to each U.S. Regulated Subsidiary, its direct and indirect parent entities, and its directors, officers, employees and agents to the extent they are involved in the activities of such U.S. Regulated Subsidiary.
The NYSE Euronext board of directors also determined that ownership of NYSE Euronext by ICE Group is in the best interests of NYSE Euronext, its stockholders and the U.S. Regulated Subsidiaries.
An extract with the relevant provisions of the Euronext Resolutions is attached as Exhibit 5D to the Proposed Rule Change and can be found on NYSE MKT's Web site and the Commission's Web site.
NYSE MKT hereby requests that the Commission approve the NYSE Euronext Resolutions and allow ICE Group, either alone or with its related persons, to own and vote all of the outstanding common stock of NYSE Euronext upon and following the consummation of the Merger.
NYSE MKT is proposing that, effective as of the completion of the Merger, the ICE Group Certificate would contain voting and ownership restrictions that are substantially identical to those currently in the NYSE Euronext Certificate (except that they would apply only for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary), and would restrict any person, either alone or together with its related persons, from having voting control over ICE Group shares entitling the holder thereof to cause more than 10% of the votes entitled to be cast on any matter or beneficially owning ICE Group shares representing more than 20% of the outstanding votes that may be cast on any matter.
In addition, NYSE MKT is proposing that the Commission approve the NYX Holdings Operating Agreement, effective as of the consummation of the Merger, which would include voting and ownership provisions, as well as related waiver provisions, again substantially identical to those in the current NYSE Euronext Certificate and NYSE Euronext Bylaws, except that they would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests in NYX Holdings and only for so long as NYX Holdings directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary.
Under the Proposed Rule Change, the ICE Group Certificate would provide that (1) no person, either alone or together with its related persons (as defined in the ICE Group Certificate), may be entitled to vote or cause the voting of shares of stock of ICE Group beneficially owned by such person or its related persons, in person or by proxy or through any voting agreement or other arrangement, to the extent that such shares represent in the aggregate more than 10% of the then outstanding votes entitled to be cast on such matter, and (2) no person, either alone or together with its related persons, may acquire the ability to vote more than 10% of the then outstanding votes entitled to be cast on any such matter by virtue of agreements or arrangements entered into with other persons to refrain from voting shares of stock of ICE Group (the “ICE Group Voting Restriction”).
In addition, the ownership restrictions in the ICE Group Certificate would provide that, if such restrictions apply, no person, either alone or together with its related persons, may at any time own beneficially shares of ICE Group representing in the aggregate more than 20% of the then outstanding votes entitled to be cast on any matter (the “ICE Group Ownership Restrictions”).
The ICE Group Certificate would provide that the ICE Group Voting Restriction and the ICE Group Ownership Restriction would apply only for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary (as such term is defined in the ICE Group Certificate).
The ICE Group Voting Restriction applies to each person unless and until (1) Such person has delivered a notice in writing to the board of directors of ICE Group, not less than 45 days (or such shorter period as the board of directors of ICE Group expressly permits) prior to any vote, of such person's intention, either alone or
The ICE Group Ownership Restriction applies to each person unless and until (1) Such person has delivered a notice in writing to the board of directors of ICE Group, not less than 45 days (or such shorter period as the board of directors of ICE Group expressly permits) prior to the acquisition of any shares of ICE Group that would cause such person, either alone or together with its related persons, to exceed the ICE Group Ownership Restriction, of such person's intention, either alone or together with its related persons, to acquire such ownership; (2) the board of directors of ICE Group has resolved to expressly permit such ownership; and (3) such resolution has been filed with, and approved by, the Commission under Section 19(b) of the Exchange Act
Under the Proposed Rule Change, the NYX Holdings Operating Agreement, although modeled substantially on the current NYSE Euronext Certificate and Bylaws, would reflect certain modifications from the analogous provisions in the NYSE Euronext Certificate and Bylaws, effective as of the Merger, to be consistent with the status of NYX Holdings as a wholly owned subsidiary of ICE Group and with provisions currently in the NYSE Group Certificate, and certain other changes to update the voting and ownership restrictions, in the following respects:
• The NYX Holdings Operating Agreement would provide that all issued and outstanding membership interests will be held by ICE Group, and that ICE Group may not transfer or assign any membership interests without approval by the Commission under the Exchange Act and the relevant European Regulators (as defined in the NYX Holdings Operating Agreement) under the applicable European Exchange Regulations (as defined in the NYSE Euronext Certificate).
• The NYX Holdings Operating Agreements would provide that the NYX Holdings voting and ownership restrictions contained therein would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests of NYX Holdings,
• The definition of “Related Persons” would be expanded to provide that (1) in the case of a person that is a “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include the “member” (as defined in Section 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) with which such person is associated; and (2) in the case of any person that is a “member” (as defined in 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include any “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) that is associated with such person.
• The mandatory repurchase of membership interests from a Person whose ownership represents in the aggregate more than 20% in interest of the interests entitled to vote on any matter would be at a price determined by reference to each incremental percentage ownership over 20% rather than at par value, specifically $1,000 for each percent.
The voting restrictions contained in the current NYSE Group Certificate are substantially the same as those in the current NYSE Euronext Certificate described above, except that (i) the NYSE Group Certificate does not contain any references to European subsidiaries, markets or regulators, and (ii) the NYSE Group Certificate contains references to NYSE MKT members in its definition of “Related Person” that are not currently in NYSE Euronext.
The NYSE Group Certificate would be updated to provide that
• the NYSE Group Voting Restriction and the NYSE Group Ownership Restriction would apply only in the event that NYX Holdings does not own all of the issued and outstanding shares of NYSE Group
• The definition of “Related Persons” would be expanded to provide that (1) in the case of a person that is a “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include the “member” (as defined in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 3(a)(3)(A)(ii) and (iii) of the
Under the Proposed Rule Change, the ICE Group Bylaws would provide that ICE Group and its directors, and, to the extent that they are involved in the activities of the U.S. Regulated Subsidiaries, ICE Group's officers and those of its employees whose principal place of business and residence is outside the United States, would be deemed to irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for the purposes of any suit, action or proceeding pursuant to the U.S. federal securities laws, and the rules and regulations thereunder, commenced or initiated by the Commission arising out of, or relating to, the activities of the U.S. Regulated Subsidiaries. The ICE Group Bylaws would also provide that, with respect to any such suit, action, or proceeding brought by the Commission, ICE Group and its directors, officers and employees would (1) be deemed to agree that ICE Group may serve as U.S. agent for purposes of service of process in such suit, action, or proceedings relating to ICE Group or any of its subsidiaries; and (2) be deemed to waive, and agree not to assert by way of motion, as a defense or otherwise, in any such suit, action, or proceeding, any claims that it or they are not personally subject to the jurisdiction of the Commission, that the suit, action, or proceeding is an inconvenient forum or that the venue of the suit, action, or proceedings is improper, or that the subject matter thereof may not be enforced in or by the U.S. federal courts of the Commission.
In addition, the ICE Group Bylaws would provide that, so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary, the directors, officers and employees of ICE Group will be deemed to be directors, officers and employees of such U.S. Regulated Subsidiaries for purposes of, and subject to oversight pursuant to, the Exchange Act.
The ICE Group Bylaws would provide that ICE Group will take reasonable steps necessary to cause its directors, officers and employees, prior to accepting a position as an officer, director or employee, as applicable, of ICE Group to agree and consent in writing to the applicability to them of these jurisdictional and oversight provisions with respect to their activities related to any U.S. Regulated Subsidiary.
NYSE MKT anticipates that the functions and activities of each U.S. Regulated Subsidiary generally will be carried out by the officers and directors of such U.S. Regulated Subsidiary, over each of whom the Commission has direct authority pursuant to Section 19(h)(4) of the Exchange Act.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary, the books, records and premises of ICE Group will be deemed to be the books, records and premises of such U.S. Regulated Subsidiaries for purposes of, and subject to oversight pursuant to, the Exchange Act.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that ICE Group will comply with the U.S. federal securities laws and the rules and regulations thereunder, and will cooperate with the Commission and with the U.S. Regulated Subsidiaries pursuant to and to the extent of their respective regulatory authority.
The ICE Group Bylaws would also provide that all confidential information that comes into the possession of ICE Group pertaining to the self-regulatory function of any U.S. Regulated Subsidiary will (a) Not be made available to any persons other than to those officers, directors, employees and agents of ICE Group that have a reasonable need to know the contents thereof; (b) be retained in confidence by ICE Group and the officers, directors, employees and agents of ICE Group; and (c) not be used for any commercial purposes.
In addition, the ICE Group Bylaws would provide that ICE Group and its directors, officers and employees will give due regard to the preservation of the independence of the self-regulatory function of the U.S. Regulated Subsidiaries (to the extent of each U.S. Regulated Subsidiary's self-regulatory function) and to its obligations to investors and the general public, and will not take any actions that would interfere with the effectuation of any decisions by the board of directors or managers of any U.S. Regulated Subsidiary relating to its regulatory responsibilities (including enforcement and disciplinary matters) or that would interfere with the ability of such U.S. Regulated Subsidiary to carry out its responsibilities under the Exchange Act.
Finally, the ICE Group Bylaws would provide that each director of ICE Group would, in discharging his or her responsibilities, to the fullest extent permitted by applicable law, take into consideration the effect that ICE Group's actions would have on the ability of (a) the U.S. Regulated Subsidiaries to carry out their responsibilities under the Exchange Act; and (b) the U.S. Regulated Subsidiaries, NYSE Group and ICE Group to (1) Engage in conduct that fosters and does not interfere with the ability of the U.S. Regulated Subsidiaries, NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity), and ICE Group to prevent fraudulent and manipulative acts and practices in the securities markets; (2) promote just and equitable principles of trade in the securities markets; (3) foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities; (4) remove impediments to and perfect the mechanisms of a free and open market in securities and a U.S. national securities market system; and (5) in general, protect investors and the public interest.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that, before any amendment to or repeal of any provision of the ICE Group Bylaws shall be effective, such amendment or repeal shall be submitted to the board of directors of each U.S. Regulated Subsidiary (or the boards of directors of their successors) and if any or all of such boards of directors determine that, before such amendment or repeal may be effectuated, the same must be filed with, or filed with and approved by, the Commission pursuant to Section 19 of the Exchange Act and the rules promulgated thereunder, then the same will not be effectuated until filed with, or filed with and approved by, the Commission, as the case may be.
Under the Proposed Rule Change, ICE Group would adopt the ICE Group Independence Policy in the form attached to the Proposed Rule Change as Exhibit 5C, which would be substantially similar to the current Independence Policy of the NYSE Euronext board of directors.
NYSE MKT is proposing that the NYX Holdings Operating Agreement differ from NYSE Euronext's Certificate and Bylaws to reflect the fact that, after the Merger, NYX Holdings will be an intermediate holding company, will not be a public company traded on an exchange and will not have securities registered under Section 12 of the Exchange Act. As a result, NYX Holdings will not be subject to the Exchange's listing standards or to the corporate governance requirements applicable to publicly traded companies.
As summarized below, the following revisions to the NYSE Euronext Certificate and Bylaws are proposed for the NYX Holdings Operating Agreement in order (1) To simplify and provide for a more efficient governance and capital structure that is appropriate for a wholly owned subsidiary; (2) to conform certain provisions to analogous provisions of the current organizational documents of NYSE Group, which is a wholly owned subsidiary of NYSE Euronext, just as NYX Holdings will be a wholly owned subsidiary of ICE Group following completion of the Merger; and (3) to make certain clarifications and technical edits (for example, to conform the use of defined terms and other provisions, to update cross-references to sections both internal and in the ICE Group Certificate and Bylaws, and to conform to certain other provisions in the ICE Group Certificate and Bylaws).
• The NYSE Euronext Certificate and Bylaws contain provisions relating to the issuance of one or more series of preferred stock. The NYX Holdings Operating Agreement provides for only one class of membership interest and has no provision for a preferred membership interest because NYSE MKT considers it unlikely that a wholly owned subsidiary would have occasion to issue preferred interests.
• Section 16.1 of the NYX Holdings Operating Agreement would provide that, for so long as NYX Holdings controls, directly or indirectly, any U.S. Regulated Subsidiary, before any amendment to the NYX Holdings Operating Agreement may be effectuated, such amendment would need to be submitted to the board of directors of each U.S. Regulated Subsidiary and, if so determined by any such board, would need to be filed with, or filed with and approved by, the Commission before such amendment may become effective. This provision parallels Article X(C) of the NYSE Euronext Certificate as supplemented, with respect to NYSE MKT, by Section 10.13 of the NYSE Euronext Bylaws.
• The NYX Holdings Operating Agreement would provide that the registered office and agent of NYX Holdings in Delaware will be the Corporation Trust Company, which is the registered agent of other subsidiaries of NYSE Euronext and of ICE.
• Section 3.1 of the NYSE Euronext Bylaws currently provides that the number of directors may be fixed and changed only by resolution adopted by two-thirds of the directors then in office. The two-thirds requirement will be changed to a majority in Section 3.2 of the NYX Holdings Operating Agreement as is appropriate for a wholly owned subsidiary. This standard has been eliminated from the list of provisions that are automatically suspended or become void upon certain events
• Certain residency requirements applicable to directors and officers of NYSE Euronext and references to U.S. and European director domiciles and to “Deputy” officers that appear in the NYSE Euronext Certificate and Bylaws would not be included in the NYX Holdings Operating Agreement. Specifically, references to deputies in Section 2(A) of Article VI of the NYSE Euronext Certificate, and in Sections 2.2(3) and (5), Section 2.5, Section 3.12, Section 5.1, Section 10.4 and Section 10.5 of the NYSE Euronext Bylaws would not be replicated in the NYX Holdings Operating Agreement. Additionally, Section 4.4 of the NYSE Euronext Bylaws (regarding domicile requirements for members of the Nominating and Governance Committee of the board of directors) and the reference thereto in Section 4.1 would not be replicated in the NYX Holdings Operating Agreement. All, or the portions regarding director and officer domicile, of the following sections of the NYSE Euronext Bylaws would not be replicated in the NYX Holdings Operating Agreement: all of Section 3.2 (regarding director domicile requirements); all of Section 3.3 (regarding chairman and chief executive officer domicile requirements); portions of Section 3.6 (regarding filling of vacancies on the board); and the cross-references in Section 10.11(B) to the foregoing deleted provisions. In addition, the requirement in Section 3.8 of the NYSE Euronext Bylaws that board meetings be held with equal frequency in the United States and Europe would be replaced with a requirement that one board meeting a year be held in Europe, to parallel the requirement in the ICE Group Bylaws.
• The restrictions on transfers of certain shares of NYSE Euronext common stock contained in Section 4 of Article IV of the NYSE Euronext Certificate have expired in accordance with their terms and would not be included in the NYX Holdings Operating Agreement.
• Notice of meetings of members would not be required under the NYX Holdings Operating Agreement if waived in accordance with Section 8.1(e) thereof.
• The ICE Group Bylaws provide in Section 2.5 that the holders of a majority of the shares outstanding and entitled to vote (giving effect to the “Recalculated Voting Limitation” referred to in Section A.1 of Article V of the ICE Group Certificate, if applicable) may call special meetings of stockholders. A comparable provision is appropriate for NYX Holdings to provide additional flexibility to ICE Group to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger. Accordingly, Section 8.1(d) of the NYX Holdings Operating Agreement would allow the holders of a majority of the membership interests outstanding and entitled to vote (giving effect to the “Recalculated Voting Limitation,” if applicable) to call special meetings of members.
• The requirement in Section 2.6 of the NYSE Euronext Bylaws for the appointment of an inspector of elections for stockholders meetings would not be included in the NYX Holdings Operating Agreement because the requirement for an inspector of elections under the Delaware General Corporation Law (the “DGCL”) would no longer apply to NYX Holdings after completion of the Merger.
• The requirement in Section 2.7 of the NYSE Euronext Bylaws that directors be elected by a majority of the votes cast (and that they must tender their resignation if such a majority vote is not received), except in the case of contested elections, and that the board of directors may fill any resulting vacancy or may decrease the size of the board, would not be included in the NYX Holdings Operating Agreement, and a plurality voting standard would be adopted for all director elections. These requirements would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• Section 2.10 of the NYSE Euronext Bylaws requires certain advance notice from stockholders of director nominations and stockholder proposals, and that only business brought before a special meeting of stockholders pursuant to NYX Euronext's notice of the meeting may be brought before the meeting. This provision would not be included in the NYX Holdings Operating Agreement because the requirements would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• In order to give ICE Group additional flexibility to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger, Section 7.5 of the NYX Holdings Operating Agreement would allow the member to take any action without a meeting and without prior notice if consented to, in writing, by the member.
• In order to give ICE Group additional flexibility to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger, Section 3.4 of the NYX Holdings Operating Agreement would allow members to fill board vacancies.
• The requirements in Article X of the NYSE Euronext Certificate for a supermajority stockholder vote to amend or repeal certain provisions of the certificate would be eliminated from the NYX Holdings Operating Agreement and a majority vote requirement would apply. A supermajority vote requirement would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member, and a majority voting standard is consistent with the standard generally applicable for actions by the parent entity of other wholly owned subsidiaries of NYX Holdings.
• Section 3.4 of the NYX Holdings Operating Agreement, which is analogous to current Section 3.6 of the NYSE Euronext Bylaws, would include “(if any)” after the reference therein to the Nominating and Governance Committee, because NYX Holdings would become a wholly owned subsidiary of ICE Group and, as such, may not have a Nominating and Governance Committee.
• Section 3.4 of the NYSE Euronext Bylaws, which relates to independence requirements, including the requirement that at least 75% of the board must be independent, would not be replicated in the NYX Holdings Operating Agreement because NYX Holdings would be a wholly owned subsidiary of ICE Group after completion of the Merger and, therefore, it is likely that executives of ICE Group and its subsidiaries will serve on this board.
• Section 3.8(a) of the NYX Holdings Operating Agreement would provide that notice of board meetings is not required if waived in accordance with Section 3.8(b), which is less restrictive than Section 3.9 of the NYSE Euronext Bylaws.
• The advance notice period in Section 3.9 of the NYSE Euronext Bylaws for notices of board meetings sent by first-class mail would be reduced from four days to three days in Section 3.8(a) of the NYX Holdings Operating Agreement. This change conforms the notice period to Section 3.6(b) of the ICE Group Bylaws.
• Section 3.12 of the NYSE Euronext Bylaws requires that, if the chairman or deputy chairman of the board of directors is also the chief executive officer or deputy chief executive officer, he or she may not participate in executive sessions of the board of directors, and if the chairman is not the chief executive officer or deputy chief
• Certain aspects of the indemnification and expense advancement provisions in Section 15.2 of the NYX Holdings Operating Agreement, including the terms of any insurance policy maintained by NYX Holdings, would be simplified from Section 10.6 of the NYSE Euronext Bylaws in light of the fact that there are not expected to be any independent, non-executive directors of NYX Holdings, and, therefore, a more streamlined process for indemnification claims is appropriate.
• Section 10.10(A) of the NYSE Euronext Bylaws enumerates provisions of the Bylaws for which amendment requires approval by a supermajority of directors. The supermajority approval requirement would be eliminated in Section 16.1 of the NYX Holdings Operating Agreement by decreasing the current two-thirds standard to a majority of the directors then in office, as is appropriate for a wholly owned subsidiary.
• The supermajority stockholder vote requirements in Section 10.10(B) of the NYSE Euronext Bylaws would be eliminated in the NYX Holdings Operating Agreement because a supermajority vote requirement would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• The NYSE Euronext Bylaw provisions that are subject to automatic suspension under Section 10.11 would be revised in Section 16.3 of the NYX Holdings Operating Agreement to reflect elimination of the supermajority voting provisions in Sections 10.10(A) and (B) discussed above.
In addition, the current Independence Policy of the NYSE Euronext board of directors would, effective as of the Merger, cease to apply.
Under the Proposed Rule Change, the revisions summarized below to the NYSE Group Certificate are proposed in order to conform certain provisions to the analogous provisions of the organizational documents of NYX Holdings, which would likewise be a wholly owned subsidiary of ICE Group following completion of the Merger, as well as to make certain clarifications and technical edits:
• Section 4(a) of Article IV of the NYSE Group Certificate would be amended to contemplate successors to NYSE Euronext as the holder of all of the issued and outstanding shares of NYSE Group for purposes of the NYSE Trust Agreement.
• Sections 4(b)(1)(A) and 4(b)(2)(A) of Article IV of the NYSE Group Certificate would be amended to clarify that the voting ownership concentration limitations in the NYSE Group Certificate would be effective “for so long as the Corporation shall control, directly or indirectly” a U.S. Regulated Subsidiary, as defined in Section 4(b)(1)(A). Conforming changes relating to the definition of U.S. Regulated Subsidiary and the change of name of NYSE Alternext to NYSE MKT have been made later in the same section and thereafter.
• Typographical errors in references to Exchange Act Section 3(a)(3) would be corrected in Section 4(b)(1)(E)(vi) and (xii) of Article IV.
• Section 3 of Article V would be amended by adding the words “from time to time” to conform the provision to the NYX Holdings Operating Agreement.
• Section 5 of Article V of the NYSE Group Certificate would be amended to clarify that the right of the NYSE Group board of directors to remove directors is subject to any rights of holders of any preferred stock in order to make this provision consistent with Section 2 of Article IV of the NYSE Group Certificate, which provides that preferred stock may be issued that may have voting rights.
• Numbering of certain sections of the NYSE Group Certificate would be updated to reflect the amendments set forth above.
The Fourth Amended and Restated Operating Agreement, dated as of August 23, 2012, of the Exchange (the “Exchange Operating Agreement”), currently provides that (1) a majority of the members of the Exchange's board of directors must be U.S. persons and members of the board of directors of NYSE Euronext, and (2) at least 20% of the Exchange's board members must be persons who are not members of the board of directors of NYSE Euronext but who qualify as independent under the independence policy of the Exchange's board of directors (the “Non-Affiliated Exchange Directors”).
Under the Proposed Rule Change, these provisions would be amended to refer to ICE Group instead of NYSE Euronext. Also, references throughout to the Exchange's “Corporation Independence Policy” would be changed to “Company Independence Policy” in recognition of the form of organization of the Exchange.
Substantially the same revisions would be made to the analogous provisions of the Fourth Amended and Restated Operating Agreement of NYSE MKT.
In addition, references to NYSE Euronext in the Director Independence Policy of each of the Exchange, NYSE Market, NYSE Regulation and NYSE MKT would be revised to refer to ICE Group.
The revisions to the Fourth Amended and Restated Operating Agreement of NYSE MKT indicate that NYSE MKT will be an indirect wholly owned subsidiary of ICE Group rather than a direct subsidiary of NYSE Euronext, and the phrase “NYSE/Amex” has been inserted before references to a merger in 2008 in the recitals to distinguish that merger from the Merger.
The Second Amended and Restated Bylaws of NYSE Market and the Third Amended and Restated Bylaws of NYSE Regulation would be amended to reflect the change from NYSE Euronext to ICE Group. In the case of NYSE Market, the address of the registered office and registered agent has been updated.
In the director independence policies, typographical errors in references to Exchange Act Section 3(a)(3) would be corrected in the first paragraph under the section captioned “Independence Qualifications.”
Under the Proposed Rule Change, certain technical amendments would be made to the Exchange Rules. First, references therein to “NYSE Euronext” would be replaced with references to ICE Group, except that references to NYSE Euronext in Rule 22 and Rule 422 would be replaced with references to NYX Holdings and references to ICE Group would be added. Second, Rule 2 would be revised to delete the definitions of “member” and “member organization” relating to NYSE MKT, which are set forth in Rule 2 for purposes of Section 1(L) of Article 5 of the NYSE Euronext Certificate, because under the Proposed Rule Change, the ICE Group Certificate will incorporate this language.
In addition, certain technical amendments would be made to the NYSE MKT Rules and NYSE Arca Equities Rules to replace references to “NYSE Euronext” with references to ICE Group, except that references to NYSE Euronext in NYSE MKT Rules 107B and 501 would be changed to NYX Holdings. Also, certain provisions in NYSE MKT Rule 104T relating to restrictions on transfer in the NYSE Euronext Certificate would be eliminated because the referenced restrictions are no longer in effect and there will be no analogous provision in the ICE Group Certificate.
NYSE MKT believes that this filing is consistent with Section 6(b) of the Exchange Act
NYSE MKT also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act
NYSE MKT 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 Exchange Act. The Proposed Rule Change is not designed to address any competitive issue in the U.S. or European securities markets or have any impact on competition in those markets; rather, it will combine the U.S. equities businesses of NYSE Euronext with the commodities and futures businesses of ICE. The ownership of U.S. securities exchanges will not become more concentrated as a result of the Proposed Rule Change because ICE currently owns no U.S. securities exchange. With respect to operations outside the United States, ICE has informed NYSE Euronext that it expects the derivatives business of LAM will be gradually transitioned to ICE Futures Europe, as discussed above, but such transition is subject to regulatory approval in the United Kingdom.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ proposes to modify the existing fees clients voluntarily pay to receive third party market data delivered by NASDAQ as set forth in NASDAQ Rule 7034. NASDAQ proposes to implement the proposed rule change on a date that is on, or shortly after, the expiration of the pre-operative delay provided for in Rule 19b-4(f)(6)(iii).
In its filing with the Commission, NASDAQ 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.
Wireless technology has been in existence for many years, used primarily by the defense, retail and telecommunications industries. Wireless connectivity involves the beaming of signals through the air between towers that are within sight of one another. Because the signals travel a straight, unimpeded line, and because light waves travel faster through air than through glass (fiber optics), message latency is reduced. The continued use of this technology by the defense industry and regulation of the spectrum by the FCC demonstrates the secure nature of wireless networks.
Over the last year, wireless technology has been introduced in the financial services industry. In offering optional wireless connectivity, NASDAQ is responding to requests from clients that wish to utilize the technology. Clients have sought to buy roof rights so that they can install their own microwave dishes on the roof at the NASDAQ data center in Carteret, New Jersey. Some have already installed microwave dishes on nearby towers with fiber connectivity to the data center, or have reserved space to do so. Rather than sell roof rights to individual clients, which would quickly result in the lack of physical space on the data center roof to accommodate all clients fairly and equally, NASDAQ proposes to supply market data, via a vendor-supplied wireless network, for all data center clients that wish to avail themselves of it.
NASDAQ is proposing to utilize wireless technology to make available to its co-located clients third-party data from the CME Group, and to amend NASDAQ Rule 7034 to modify the existing fees for the delivery of third party market data to market center clients via a wireless network. Specifically, NASDAQ will add fees for access to third-party data from the CME Group. NASDAQ will utilize network vendors to supply wireless connectivity from the Carteret data center to CME Group's Aurora, Illinois data center. The vendors will install, test and maintain the necessary communication equipment for this wireless network between the data centers.
Wireless connectivity to CME Group data is similar to existing access to other data. Clients who choose this optional service will use their existing NASDAQ cross connect handoffs (1G, 10G, or 40G) to receive the multicast market data for CME Group, and NASDAQ will continue to act as re-distributor of the third party market data feeds, capturing the data at CME Group's data centers and transporting the data to NASDAQ's Carteret data center. The Exchange has opted to offer the CME Group data that is most in demand by NASDAQ customers to start. Additional feeds may be added based on overall client demand and bandwidth availability.
CME Group data is already available via fiber optic network, and therefore the wireless connectivity will be an optional offering, an alternative to fiber optic network connectivity, and will provide lower latency. In other words, this proposal does not offer a new market data product, but merely an alternative means of connectivity. NASDAQ's wireless connectivity offering, in conjunction with NASDAQ's equidistant cross connect handoffs (1G, 10G, or 40G), will ensure that all clients electing to use this wireless connectivity offering will receive the chosen market data at the same low latency, equalizing any variances that might otherwise result from differences in the location of client cabinets within the facility or different wireless networks utilized by clients independently of this offering.
To obtain CME Group data via wireless connectivity, clients will be charged a $5,000 installation fee (a non-recurring charge) and a monthly recurring charge (MRC) of $23,500 for connectivity. The rates are higher for the CME Group feeds compared to the other exchange feeds because the distance between the NASDAQ data center in New Jersey and the CME Group data center in Aurora, Illinois is 45 times longer than the distances to the other New Jersey data centers, which requires a more extensive and expensive wireless network to deliver this distant market data.
Clients will place orders for the wireless connectivity via NASDAQ's CoLo Console.
NASDAQ OMX will perform substantial network testing prior to offering the service for a fee to members. After this “beta” testing period, upon initial roll-out of the service, clients will be offered the service for a fee, and on a rolling basis, the Exchange will enable new clients to receive the feed(s) for a minimum of 30 days before incurring any monthly recurring fees. The wireless network will continue to be closely monitored and the client informed of any issues. Similar to receiving market data over fiber optic networks, the wireless network can encounter delays or outages due to equipment issues. As wireless networks may be affected by severe weather events, clients will be expected to have redundant methods to receive this market data and will be asked to attest to having alternate methods or establishing an alternate method in the near future when they order this service from the Exchange.
This new data feed delivery option will be available to all clients of the data center, and is in response to industry demand, as well as to changes in the technology for distributing market data. Clients opting not to pay for the wireless connectivity will still be able to receive market data via fiber optics and standard telecommunications connections, as they do currently, and under the same fees. Receipt of trade data via wireless technology is completely optional. In addition, clients can choose to receive market data via other third-party vendors (Extranets or Telecommunication vendors) via fiber optic networks or wireless networks.
The proposed fees are based on the cost to NASDAQ and the vendor of installing and maintaining the wireless connectivity and on the value provided to the customer, which receives low latency delivery of data feeds. The costs associated with the wireless connectivity system are incrementally higher than fiber optics-based solutions due to the expense of the wireless equipment, cost of installation and testing and ongoing maintenance of the network. The fees also allow NASDAQ to make a profit, and reflect the premium received by the clients in terms of lower latency over the fiber optics option. Clients can choose to build and maintain their own wireless networks or choose their own third party network vendors but the upfront and ongoing costs will be much more substantial than this Exchange wireless offering.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed fees for wireless connectivity to NASDAQ are consistent with Section 6(b)(4) of the Act for multiple reasons. The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading activities of those members who believe that co-location enhances the efficiency of their trading. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of such members. If a particular exchange charges excessive fees for co-location services, affected members will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including co-locating with a different exchange, placing their servers in a physically proximate location outside the exchange's data center, or pursuing trading strategies not dependent upon co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also revenues associated with the execution of orders routed to it by affected members. Although currently no other exchange offers wireless connectivity, there are no constraints on their ability to do so, and it is probable that other exchanges will make a similar offering in the near future. The Exchange believes that this competitive dynamic imposes powerful restraints on the ability of any exchange to charge unreasonable fees for co-location services, including fees for wireless connectivity.
A co-location customer may obtain a similar service by contracting with a wireless service provider to install the required dishes on towers near the data centers and paying the service provider to maintain the service. However, the cost involved in establishing service in this manner is substantial and could result in uneven access to wireless connectivity. The Exchange's proposed fees will allow these clients to utilize wireless connectivity and obtain the lower latency transmission of data from third parties and NASDAQ that is available to others, at a reasonable cost.
Moreover, the Exchange believes the proposed fees for wireless connectivity to NASDAQ are reasonable because they are based on the Exchange's and vendor's costs to cover hardware, installation, testing and connection, as well expenses involved in maintaining and managing the enhanced connection. The proposed fees allow the Exchange to recoup these costs and make a profit, while providing customers the ability to reduce latency in the transmission of data from third parties and NASDAQ, and reducing the cost to them that would be involved if they build or buy their own wireless networks. The Exchange believes that the proposed fees are reasonable in that they reflect the costs of the connection and the benefit of the lower latency to clients.
The Exchange also believes that the proposed wireless connectivity fees are consistent with Section 6(b)(5) of the Act in that the fees are equitably allocated and non-discriminatory. All Exchange members that voluntarily select this service option will be charged the same amount for the same services. As is true of all co-location services, all co-located clients have the option to select this voluntary connectivity option, and there is no differentiation among customers with regard to the fees charged for the service. Further, the latency reduction offered will be the same for all co-located clients, irrespective of the locations of their cabinets within the data center. The same cannot be said of the alternative where entities with substantial resources invest in private services and thereby obtain lower latency transmission, while those without resources are unable to invest in the necessary infrastructure.
The Exchange's proposal is also consistent with the requirement of Section 6(b)(5) of the Act that Exchange rules be 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 regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers.
The proposal is consistent with these requirements insomuch as it makes available to market participants, at a reasonable fee and on a non-discriminatory basis, access to low latency means of receiving market data feeds. Some market participants have already adopted wireless technology, using towers near the data centers, and others have approached the Exchange seeking to rent roof rights to mount their towers. Rather than lease out roof space to the highest bidders, a process that would stratify and limit access to the low latency delivery, this approach allows unlimited numbers of users to utilize the this Exchange service which utilizes vendors who rely on nearby towers to house the wireless equipment to receive the market data. It will allow the same low latency delivery to those unable to invest in the more expensive option of building or acquiring their own wireless network, as it does for those whose pockets are deeper.
Initially, NASDAQ will perform substantial network testing prior to making the service available to members. After this testing period, the wireless network will continue to be closely monitored and maintained by the vendor and the client will be informed of any issues. Additionally, during the initial roll-out of the service and on a rolling basis for future clients, the Exchange will enable clients to test the receipt of the feed(s) for a minimum of 30 days before incurring any monthly recurring fees. Similar to receiving market data over fiber optic networks, the wireless network can encounter delays or outages due to equipment issues. As wireless networks may be affected by severe weather events, clients will be expected to have redundant methods to receive this market data and will be asked to attest to having alternate methods or establishing an alternate method in the near future when they order this service from the Exchange.
Finally, for the reasons stated below in Section 4 of Form 19b-4, the proposed fees for wireless connectivity are consistent with Section 6(b)(8) of the Act in that they do not impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, this proposal will promote competition for distribution of market data by offering an optional and innovative product enhancement. Wireless technology has been in use for decades, is available from multiple providers, and may be adopted by other exchanges that decide to offer microwave connectivity for delivery of market data. As discussed above, the Exchange believes that fees for co-location services, including those proposed for microwave connectivity, are constrained by the robust competition for order flow among exchanges and non-exchange markets, because co-location exists to advance that competition. Further, excessive fees for co-location services, including for wireless technology, would serve to impair an exchange's ability to compete for order flow rather than burdening competition.
Furthermore, there are multiple effective competitive alternatives to NASDAQ's wireless offering. NASDAQ has no arrangement with CME that limits the ability of CME to transmit CME data via alternative wireless providers. Additionally, NASDAQ does not limit the ability of alternative wireless providers to re-transmit data received from CME either outside of or within NASDAQ's co-location facility. A competitive network provides the same or similar data, at the same or similar speed, at the same or similar cost, and NASDAQ's proposal does nothing to inhibit or constrain this. Currently, 17 market data vendors have fiber optic cables connected to NASDAQ's telco room in Carteret, and NASDAQ believes at least ten wireless networks exist or are under construction within very close proximity to the Carteret facility.
Moreover, fiber optic networks are themselves effective competitors for wireless data. As stated above, 17 vendors currently offer connectivity to the NASDAQ data center at various, competing prices. Fiber optic networks are more resilient than wireless networks, which can be more susceptible to severe weather affects; this mature market for fiber optic networks will remain attractive to many clients who are more risk averse. While some NASDAQ firms will opt for faster, costlier wireless data, many others will conclude that the price and speed attributes of fiber optic data provide a reasonable competitive alternative to wireless data.
Competition between the Exchange and competing trading venues will be enhanced by allowing the Exchange to offer its market participants a lower latency connectivity option. Competition among market participants will also be supported by allowing small and large participants the same price for this lower latency connectivity.
The proposed rule change will likewise enhance competition among service providers offering connections between market participants and the data centers. The offering will expand the multiple means of connectivity available, allowing customers to compare the benefits and costs of lower latency transmission and related costs with reference to numerous variables. The Exchange, and presumably its competitors, selects service providers on a competitive basis in order to pass along price advantages to its customers to win and maintain their business. The offering is consistent with the Exchange's own economic incentives to facilitate as many market participants as possible in connecting to its market.
Written comments were neither solicited nor 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)(ii)[sic] of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to offer and establish fees for the Service, a risk management tool available to Members
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
Proposed Addition of EdgeRisk Gateway Service
The Exchange currently offers logical ports through which Members and non-Members enter orders in the Exchange's System,
In order to assist Members' and non-Members' efforts to mitigate the impact of trading disruptions, the Exchange proposes to offer EdgeRisk Gateway as a new, optional fee-based service that provides Members and non-Members the option to obtain dedicated primary and backup access gateways in addition to, or in place of, a shared access gateway. Such Members and non-Members that choose to obtain the Service (each, a “Subscriber”, and collectively “Subscribers”) would benefit from enhanced risk mitigation, as it would reduce the impact of another firm's message peaks or programming mistakes on the Subscriber's trading experience. The Exchange notes that the Commission recently expressed concern regarding the potential ripple effects caused by systems disruptions and message traffic-related issues in particular.
The Service would include dedicated access to both a primary and a backup access gateway to afford Subscribers access redundancy. Accordingly, the backup access gateway would function as a safety measure, allowing Subscribers to allocate their sessions across both access gateways, protecting Subscribers from a loss of access due to a server malfunction. Additionally, Subscribers may also request some of their Logical Ports continue to be assigned to shared access gateways for further risk mitigation.
The Exchange notes that both gateway options (shared and dedicated) would offer full backup to the extent that a Member or non-Member's sessions are spread across multiple gateways. The Exchange further notes that it would, on an ongoing basis, continue to carefully monitor incoming and outgoing message traffic across all access gateways (shared and dedicated) so that available capacity is adequate to support Exchange message traffic. Additionally, the Exchange would continue to install additional shared access gateways as needed so that consistent capacity levels are maintained.
Both shared and dedicated gateway options consist of identical hardware and software with identical capacity and capabilities, offering equivalent latency under the same loads. To the extent that the load on a Subscriber's dedicated gateway is less than the load on a shared gateway, a Subscriber normally would expect reduced
The Exchange proposes to offer the Service to Members and non-Members for a monthly charge of $5,000. The Exchange is offering this new pricing model in order to keep pace with changes in the industry and evolving Member needs as new technologies emerge and products continue to develop and change. As previously noted, purchase and use of the Service would be entirely optional. To assure service quality as discussed above, access gateways would be provisioned as a pair, in which a second access gateway would be included for use as a backup, allowing Subscribers to allocate their sessions across both access gateways. Therefore, a Subscriber would receive a pair of access gateways for a fee of $5,000 per month.
The Exchange notes that the Service and accompanying fees would be subject to significant competitive forces because, as discussed in detail below, the Service is similar to that currently provided by the International Securities Exchange, LLC (“ISE”).
The Exchange intends to implement the proposed rule change upon the operative date of this filing and will announce its availability via an information circular to be posted on the Exchange's Web site.
The Exchange believes the proposed rule change is consistent with the requirements of the Act,
The Exchange believes that the proposed rule change is consistent with Section 6(b)(4) of the Act
The Exchange believes that the proposed fee for the Service is reasonable because the Service would be optional, available to all Members and non-Members who have Logical Ports and that the fees charged for the Service would be the same for all Subscribers. In addition, the proposed fee would be reasonable because the fee is a reflection of the cost of necessary hardware, software and infrastructure costs, maintenance fees and staff support costs. The revenue generated by the Service would pay for the development, marketing, technical infrastructure and operating costs of the Service. Profits generated above these costs would help offset the costs that the Exchange incurs in operating and regulating a highly efficient and reliable platform for the trading of U.S. equities. This increased revenue stream would allow the Exchange to offer the Service at a reasonable rate, consistent with the similar service currently provided by the ISE and discussed in more detail below.
In addition, the Exchange notes that it operates in a highly competitive market. In such an environment, the Exchange must continually review, and consider adjusting, its fees. As discussed above, the Service would be optional. If Members and/or non-Members deem the proposed fee for the Service to be unreasonable or to outweigh the benefits of the Service, such Members and/or non-Members would be under no obligation to subscribe to or continue to
Furthermore, the Exchange believes that its fee for the Service is reasonable because it is within industry norms, as it is comparable to that assessed by ISE for its dedicated gateway service. Currently, ISE charges its members a monthly fee of $250 per shared gateway and provides the option to utilize a pair of dedicated gateways for a fee of $2,000 per month.
Lastly, the Exchange believes that the proposed fee is reasonable because payment for the Service on a monthly basis would provide flexibility and administrative benefits. Subscribers that choose to cancel the Service within the thirty (30) days' notice would have no recurring obligation. By offering payment for the Service on a month-to-month basis, the Exchange assumes the risk of termination by Subscribers prior to such time that it is able to recoup the costs of hardware, software, and operational resources necessary to provide the Service.
The Exchange believes that the proposed rule change is also consistent with the objectives of Section 6(b)(5) of the Act,
In providing access to a pair of access gateways, the Service is also designed to allow Subscribers to mitigate risks associated with potentially fraudulent and manipulative acts and practices that may adversely affect the Subscriber's trading experience. If, for example, a firm attempted to manipulate the submission of order flow into shared access gateways by directly or indirectly causing a surge in message traffic to be sent to the Exchange, Subscribers would, to an extent, mitigate the risks associated with such a manipulative tactic, as they would be insulated from all such external order flow.
The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
The Exchange believes that the Service would neither increase nor decrease intramarket competition because the Service is available to all Members and non-Members on a uniform and voluntary basis. As the Exchange currently supports access through shared access gateways and strives to ensure that all access gateways maintain a consistent level of capacity, the use of the Service by a Member or non-Member would be driven in part by their relative tolerance for the risks associated with trading disruptions.
The Exchange notes that there is significant competition among market centers for higher quality services at a premium, including, but not limited to, services related to connectivity. By introducing the proposed Service, the Exchange believes that it would be providing an additional service similar to that currently offered by ISE.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from its Members or other interested parties.
The portion of the foregoing proposed rule change pertain to fees for the EdgeRisk Gateway has become effective pursuant to Section 19(b)(3)(A)
Additionally, because the portion of the foregoing proposed rule change pertaining to the establishment of the EdgeRisk Gateway service does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest so that Members and non-Members may immediately obtain the EdgeRisk Gateway to potentially assist them in mitigating risks associated with excess message traffic and programmatic mistakes.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to extend two pilot programs related to its Price Improvement Mechanism (“PIM”). The text of the proposed rule change is available on the Exchange's Web site
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange currently has two pilot programs related to its PIM.
The basis under the Securities Exchange Act of 1934 (the “Exchange Act”) for this proposed rule change is found in Section 6(b)(5), in that the proposed rule change is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest. In particular, the Exchange believes the pilot programs are consistent with the Exchange Act because they provide opportunity for price improvement for all orders executed in the Exchange's Price Improvement Mechanism. Further, the Exchange believes that the data demonstrates that there is sufficient investor interest and demand to extend the pilot programs for an additional twelve months. The Exchange further believes it is appropriate to extend the pilot programs to provide the Exchange and Commission more data upon which to evaluate the rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. Specifically, the Exchange believes that, by extending the expiration of the pilot programs, the proposed rule change will allow for further analysis of the PIM. In doing so, the proposed rule change will also serve to promote regulatory clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
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)(ii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow the pilot programs to continue uninterrupted, thereby avoiding any potential investor confusion that could result from a temporary interruption in the pilot program. Further, the Commission notes that, because the filing was submitted for immediate effectiveness on June 21, 2013, the fact that the current rule provisions do not expire until July 18, 2013 will afford interested parties the opportunity to comment on the proposal before the Exchange requires it to become operative. For this reason, the Commission designates the proposed rule change to be operative on July 18, 2013.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend Rule 11.8 to eliminate the requirement that Competitive Liquidity Providers (“CLPs”) have information barriers between the CLP unit and the Member's customer, research, and investment banking business because CLPs already are subject to principles-based Exchange rules governing the misuse of nonpublic, material information.
The text of the proposed rule change is available at the Exchange's Web site at http://www.batstrading.com, at the principal office of the Exchange, and at the Commission's Public Reference Room.
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 eliminate the requirement in subparagraph (c)(6) of Interpretation and Policy .02 to Rule 11.8 that the business unit of a Member acting as a CLP maintain adequate information barriers between the CLP unit and the Member's customer, research, and investment banking business. The Exchange believes that the information barrier requirement is unnecessary because CLPs already are subject to the Exchange's existing principles-based rules governing the misuse of nonpublic, material information. Elimination of the information barrier requirement clarifies that CLPs have the flexibility to adapt their policies and procedures as appropriate to reflect changes to their business model, business activities, or the securities market. The Exchange believes that its rules clearly identify prohibited conduct (
The CLP Program and its requirements are set out in Interpretation and Policy .02 to Rule 11.8, the rule that contains the obligations applicable to Exchange Market Makers. A CLP is a Member that electronically enters proprietary orders into the systems and facilities of the Exchange. It is obligated to maintain a bid or an offer at the NBB or NBO in each assigned security in round lots consistent with the requirements of Interpretation and Policy .02 to Rule 11.8. CLPs are subject to both a daily quoting requirement to be eligible to receive financial incentives and a monthly quoting requirement to remain qualified as a CLP. A CLP that does not meet the CLP daily requirement is not eligible to receive the financial incentives of the CLP Program. A CLP that does not meet the CLP monthly quoting requirements is subject to certain non-regulatory penalties, including the potential to lose its CLP status.
To qualify as a CLP, a Member is required to be a registered Market Maker in good standing with the Exchange, consistent with Rules 11.5 through 11.8. Further, the Exchange requires each Member seeking to qualify as a CLP to have and maintain: (1) adequate
The Exchange believes it is appropriate to delete subparagraph (c)(6) of Interpretation and Policy .02 to Rule 11.8, which requires that the business unit of the Member acting as a CLP have in place adequate information barriers between the CLP unit and the Member's customer, research, and investment banking business. Instead, the Exchange believes that its rules governing the misuse of material nonpublic information provide an appropriate principles-based approach to preventing the market abuses addressed by subparagraph (c)(6).
The requirement that exchange market makers, in general, have in place information barriers between a market making unit and other business units traces its roots from concerns that an inappropriate sharing of material, non-public information between the market making unit and other business units of a member could result in the misuse of non-public information, manipulation and other improper trading practices, as well as give rise to conflicts of interest.
Exchanges have recently adopted principles-based rules intended to prevent such market abuses, rather than specific sets of requirements designed to accomplish the same end, such as the information barriers set out in subparagraph (c)(6). NYSE Arca, Inc. (“NYSE Arca”), Nasdaq Stock Market, LLC (“Nasdaq”), and the Exchange, for example, have amended their rules to eliminate specific information barrier requirements for Members.
Consistent with the principles-based approach described above, Exchange Rule 5.5 requires that each Member establish, maintain, and enforce written policies and procedures reasonably designed to prevent the misuse of material, non-public information by the Member or persons associated with the Member. For purposes of this requirement, conduct constituting the misuse of material, non-public information includes, but is not limited to, the following:
(a) trading in any securities issued by a corporation, or in any related securities or related options or other derivative securities, while in possession of material, non-public information concerning that issuer; or
(b) trading in a security or related options or other derivative securities, while in possession of material, non-public information concerning imminent transactions in the security or related securities; or
(c) disclosing to another person or entity any material, non-public information involving a corporation whose shares are publicly traded or an imminent transaction in an underlying security or related securities for the purpose of facilitating the possible misuse of such material, non-public information.
The Exchange also has several rules prohibiting Members from disadvantaging their customers or other market participants by improperly capitalizing on the Members' access to or receipt of material, non-public information. For example, Rule 12.6 prohibits a Member from trading ahead of its customer's limit orders. Rule 12.13 prohibits a Member from establishing an inventory position in a security or a derivative of such security based on non-public advance knowledge of the content or timing of a research report in that security. Rule 5.1 requires each Member to (i) establish, maintain, and enforce written procedures that will enable it to supervise properly the activities of associated persons; and (ii) establish, maintain, and enforce written procedures to assure associated persons comply with applicable securities laws, rules, regulations, and statements of policy promulgated thereunder, with the rules of the designated self-
The elimination of the information barrier requirements in the CLP Program would allow CLPs to tailor their policies and procedures with respect to the handling of material, non-public information as appropriate to reflect their business models and activities, and to adapt to changes in such models, activities, and the securities market in general.
By amending its rules in accordance with this proposal, the Exchange reinforces a regulatory structure that clearly prohibits certain conduct (
Pursuant to this proposed rule change, Members may utilize a flexible, principles-based approach to modify their policies and procedures as appropriate to reflect changes to their business model, business activities, or to the securities market itself. A Member should be proactive in assuring that its policies and procedures reflect the current state of its business and continue to be reasonably designed to achieve compliance with applicable federal securities law and regulations, and with applicable Exchange rules. In addition, in the context of approving the proposal by NYSE Arca, the Commission stated that, “while information barriers are not specifically required under the proposal, a [firm's] business model or business activities may dictate that an information barrier or a functional separation be part of the appropriate set of policies and procedures that would be reasonably designed to achieve compliance with applicable securities law and regulations, and with applicable Exchange rules.”
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. To the contrary, the Exchange believes that the proposal will enhance competition by allowing CLPs to comply with applicable Exchange rules in a manner best suited to their business models, business activities, and the securities markets, thus reducing regulatory burdens while still ensuring compliance with applicable securities laws and regulations, and with applicable Exchange rules. The Exchange believes that the proposal will foster a fair and orderly marketplace without being overly burdensome upon its Members.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to offer and establish fees for the Service, a risk management tool available to Members
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange currently offers logical ports through which Members and non-Members enter orders in the Exchange's System,
In order to assist Members' and non-Members' efforts to mitigate the impact of trading disruptions, the Exchange proposes to offer EdgeRisk Gateway as a new, optional fee-based service that provides Members and non-Members the option to obtain dedicated primary and backup access gateways in addition to, or in place of, a shared access gateway. Such Members and non-Members that choose to obtain the Service (each, a “Subscriber”, and collectively “Subscribers”) would benefit from enhanced risk mitigation, as it would reduce the impact of another firm's message peaks or programming mistakes on the Subscriber's trading experience. The Exchange notes that the Commission recently expressed concern regarding the potential ripple effects caused by systems disruptions and message traffic-related issues in particular.
The Service would include dedicated access to both a primary and a backup access gateway to afford Subscribers access redundancy. Accordingly, the backup access gateway would function as a safety measure, allowing Subscribers to allocate their sessions across both access gateways, protecting Subscribers from a loss of access due to a server malfunction. Additionally, Subscribers may also request some of their Logical Ports continue to be assigned to shared access gateways for further risk mitigation.
The Exchange notes that both gateway options (shared and dedicated) would offer full backup to the extent that a Member or non-Member's sessions are spread across multiple gateways. The Exchange further notes that it would, on an ongoing basis, continue to carefully monitor incoming and outgoing message traffic across all access gateways (shared and dedicated) so that available capacity is adequate to support Exchange message traffic. Additionally, the Exchange would continue to install additional shared access gateways as needed so that consistent capacity levels are maintained.
Both shared and dedicated gateway options consist of identical hardware and software with identical capacity and capabilities, offering equivalent latency under the same loads. To the extent that the load on a Subscriber's dedicated gateway is less than the load on a shared gateway, a Subscriber normally would expect reduced latencies in sending orders to the Exchange through its dedicated gateway. In this regard, the Service is similar to other types of services provided by self-regulatory organizations that offer higher levels of service for a higher fee.
The Exchange proposes to offer the Service to Members and non-Members for a monthly charge of $5,000. The Exchange is offering this new pricing model in order to keep pace with changes in the industry and evolving Member needs as new technologies emerge and products continue to develop and change. As previously noted, purchase and use of the Service would be entirely optional. To assure service quality as discussed above, access gateways would be provisioned as a pair, in which a second access gateway would be included for use as a backup, allowing Subscribers to allocate their sessions across both access gateways. Therefore, a Subscriber would receive a pair of access gateways for a fee of $5,000 per month.
The Exchange notes that the Service and accompanying fees would be subject to significant competitive forces because, as discussed in detail below, the Service is similar to that currently provided by the International Securities Exchange, LLC (“ISE”).
The Exchange intends to implement the proposed rule change upon the operative date of this filing and will announce its availability via an information circular to be posted on the Exchange's Web site.
The Exchange believes the proposed rule change is consistent with the requirements of the Act,
The Exchange believes that the proposed rule change is consistent with Section 6(b)(4) of the Act
The Exchange believes that the proposed fee for the Service is reasonable because the Service would be optional, available to all Members and non-Members who have Logical Ports and that the fees charged for the Service would be the same for all Subscribers. In addition, the proposed fee would be reasonable because the fee is a reflection of the cost of necessary hardware, software and infrastructure costs, maintenance fees and staff support costs. The revenue generated by the Service would pay for the development, marketing, technical infrastructure and operating costs of the Service. Profits generated above these costs would help offset the costs that the Exchange incurs in operating and regulating a highly efficient and reliable platform for the trading of U.S. equities. This increased revenue stream would allow the Exchange to offer the Service at a reasonable rate, consistent with the similar service currently provided by the ISE and discussed in more detail below.
In addition, the Exchange notes that it operates in a highly competitive market. In such an environment, the Exchange must continually review, and consider adjusting, its fees. As discussed above, the Service would be optional. If Members and/or non-Members deem the proposed fee for the Service to be unreasonable or to outweigh the benefits of the Service, such Members and/or non-Members would be under no obligation to subscribe to or continue to subscribe to the Service. These market forces would act as a restraint on excessively high fees because if the market judged that the Service was overpriced, the resulting lack of interest would render the Service irrelevant.
Furthermore, the Exchange believes that its fee for the Service is reasonable because it is within industry norms, as it is comparable to that assessed by ISE for its dedicated gateway service. Currently, ISE charges its members a monthly fee of $250 per shared gateway and provides the option to utilize a pair of dedicated gateways for a fee of $2,000 per month.
Lastly, the Exchange believes that the proposed fee is reasonable because payment for the Service on a monthly basis would provide flexibility and administrative benefits. Subscribers that choose to cancel the Service within the thirty (30) days' notice would have no recurring obligation. By offering payment for the Service on a month-to-month basis, the Exchange assumes the risk of termination by Subscribers prior to such time that it is able to recoup the costs of hardware, software, and operational resources necessary to provide the Service.
The Exchange believes that the proposed rule change is also consistent with the objectives of Section 6(b)(5) of the Act,
In providing access to a pair of access gateways, the Service is also designed to allow Subscribers to mitigate risks associated with potentially fraudulent and manipulative acts and practices that may adversely affect the Subscriber's trading experience. If, for example, a firm attempted to manipulate the submission of order flow into shared access gateways by directly or indirectly causing a surge in message traffic to be sent to the Exchange, Subscribers would, to an extent, mitigate the risks associated with such a manipulative tactic, as they would be insulated from all such external order flow.
The Exchange does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
The Exchange believes that the Service would neither increase nor decrease intramarket competition because the Service is available to all Members and non-Members on a uniform and voluntary basis. As the Exchange currently supports access through shared access gateways and strives to ensure that all access gateways maintain a consistent level of capacity, the use of the Service by a Member or non-Member would be driven in part by their relative tolerance for the risks associated with trading disruptions.
The Exchange notes that there is significant competition among market centers for higher quality services at a premium, including, but not limited to, services related to connectivity. By introducing the proposed Service, the Exchange believes that it would be providing an additional service similar to that currently offered by ISE.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from its Members or other interested parties.
The portion of the foregoing proposed rule change pertain to fees for the EdgeRisk Gateway has become effective pursuant to Section 19(b)(3)(A)
Additionally, because the portion of the foregoing proposed rule change pertaining to the establishment of the EdgeRisk Gateway service does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest so that Members and non-Members may immediately obtain the EdgeRisk Gateway to potentially assist them in mitigating risks associated with excess message traffic and programmatic mistakes.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade Units of the First Trust Gold Trust pursuant to NYSE Arca Equities Rule 8.201. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade Units of the Trust under NYSE Arca Equities Rule 8.201.
FT Portfolios Canada Co. will be the trustee and manager of the Trust (“Manager”),
According to the Registration Statement, substantially all of the net assets of the Trust (at least 90%), will be invested in allocated kilogram bars of physical gold bullion with a fineness of 0.995 or higher that are manufactured by refiners recognized by the London Bullion Market Association (“LBMA”) for the production of “good delivery bars” (“Kilogram Bars”). The Trust will not invest in gold certificates or other financial instruments that represent gold or that may be exchanged for gold.
The Trust intends to list the Units on the Toronto Stock Exchange (“TSX”). According to the Registration Statement, the Trust is neither an investment company registered under the Investment Company Act of 1940
The Exchange represents that the Units satisfy the requirements of NYSE Arca Equities Rule 8.201 and thereby qualify for listing on the Exchange.
According to the Registration Statement, the physical gold bullion market is influenced by several factors, including:
(a) Global gold supply and demand, which is influenced by such factors as: (i) Forward selling by gold producers; (ii) purchases made by gold producers to unwind gold hedge positions; (iii) central bank purchases and sales; (iv) production and cost levels in major gold-producing countries; and (v) new production projects;
(b) investors' expectations for future inflation rates;
(c) exchange rate volatility of the U.S. dollar, the principal currency in which the price of gold is generally quoted;
(d) interest rate volatility;
(e) unexpected global, or regional, political or economic incidents; and
(f) changing tax, royalty, land and mineral rights ownership and leasing regulations in gold producing countries.
According to the Registration Statement, the LBMA is the London-based trade association that represents the wholesale gold and silver bullion market in London. London is the focus of the international Over-the-Counter (OTC) market for gold and silver, with a client base that includes the majority of the central banks that hold gold, plus producers, refiners, fabricators and other traders throughout the world.
According to the Registration Statement, the “LBMA Good Delivery List”— the list of acceptable refiners of gold and silver bars in the London bullion market— is now widely recognized as representing the de facto standard for the quality of gold and silver bars, and applies stringent criteria for assaying standards and bar quality that an applicant must satisfy in order to be listed. The assaying capabilities of refiners on the Good Delivery List are periodically checked under the LBMA's “Proactive Monitoring” program.
The LBMA Good Delivery List has been developed and is maintained by the LBMA in order to facilitate the international distribution and acceptability on technical grounds of standard bars produced by those refiners:
(a) Who meet the criteria for inclusion in the list; and
(b) whose bars have passed the testing procedures laid down by the LBMA.
Standard Good Delivery bars of gold are bars of approximately 400 fine troy ounces.
According to the Registration Statement, the Trust will not hold or trade in commodity futures contracts regulated by the Commodity Exchange Act, as administered by the U.S. Commodity Futures Trading Commission (“CFTC”). Gold futures are traded on the COMEX, an affiliate of the Chicago Mercantile Exchange, Inc., and the Tokyo Commodity Exchange.
The Trust is subject to various “Investment and Operating Restrictions”, as described in the Registration Statement. The Investment and Operating Restrictions provide that the Trust:
(a) Will invest in and hold a minimum of 90% of the total net assets of the Trust in physical gold bullion (i.e., Kilogram Bars) and hold no more than 10% of the total net assets of the Trust, at the discretion of the Portfolio Advisor, in cash or any asset readily convertible into cash (whether or not denominated in U.S. dollars) including, but not limited to, bank accounts, certificates of deposit, money market accounts, commercial paper, U.S. and foreign treasury obligations and other cash equivalent instruments, except during the 60-day period following the closing of the offering of the Units or additional offerings or prior to the distribution of the assets of the Trust;
(b) will store all Kilogram Bars owned by the Trust at a Gold Custodian on a fully allocated basis, provided that the Kilogram Bars may be stored with a custodian only if it will remain within the chain of custody with the Gold Custodian;
(c) will not purchase, sell or hold derivatives;
(d) will not issue Units following the completion of the offering of the Units except if the net proceeds per Unit to be received by the Trust are not less than 100% of the most recently calculated NAV prior to, or upon the determination of the pricing of such issuance;
(e) will ensure that no part of the stored Kilogram Bars may be delivered out of safekeeping by a Gold Custodian, without receipt of an instruction from the Manager in the form specified by a Gold Custodian indicating the purpose of the delivery and giving direction with respect to the specific amount;
(f) will ensure that no director or officer of the Manager or representative of the Trust or the Manager will be authorized to enter into the Kilogram Bars storage vaults without being accompanied by at least one representative of a Gold Custodian, as applicable;
(g) will ensure that the Kilogram Bars remain unencumbered;
(h) will inspect or cause to be inspected the stored Kilogram Bars periodically on a spot inspection basis and, together with a representative of the Trust's auditor, physically verify the existence of each bar annually;
(i) will not guarantee the securities or obligations of any person other than the Manager, and then only in respect of the activities of the Trust; and
(j) will comply with certain holding restrictions of the Income Tax Act (Canada).
According to the Registration Statement, the Trust will be authorized to issue an unlimited number of Units. Each Unit will represent a beneficial interest in the net assets of the Trust. Units will be transferable and redeemable at the option of the unitholder in accordance with the provisions set forth in the “Declaration of Trust”. All Units will have equal rights and privileges with respect to all matters, including voting, receipt of distributions from the Trust, liquidation and other events in connection with the Trust. Units and fractions thereof will be issued only as fully paid and non-assessable units. Units will have no preference, conversion, exchange or pre-emptive rights. Each whole Unit will entitle the holder thereof to a vote at meetings of unitholders.
According to the Registration Statement, subject to the terms of the Declaration of Trust and the Manager's right to suspend redemptions in the circumstances described below, Units may be redeemed at the option of a unitholder in any month for Kilogram Bars or cash. All redemptions will be determined using U.S. dollars, regardless of whether the redeemed Units were acquired on a U.S. national securities exchange or the TSX. Redemption requests will be processed on the last business day of the applicable month.
According to the Registration Statement, all redemptions of Units for Kilogram Bars will be determined using U.S. dollars. Unitholders whose Units are redeemed for Kilogram Bars will be entitled to receive a redemption price equal to 100% of the NAV of the redeemed Units on the last day of the month on which the NYSE Arca is open for trading for the month in respect of which the redemption request is processed (the “Monthly Redemption Date”). The NAV of Units in connection with a redemption will be calculated by the Valuation Agent in the same manner as the NAV of Units is calculated on an ongoing basis. Redemption requests must be for amounts that are at least equivalent to the value of one Kilogram Bar plus applicable expenses. Any redemption proceeds not paid in Kilogram Bars because such proceeds are not equivalent to the value of one Kilogram Bar will be paid in cash at a rate equal to 100% of the NAV of the redeemed Units as of 4:00 p.m., Eastern Time, on the applicable Monthly Redemption Date that represents such excess amount.
A unitholder that owns a sufficient number of Units who desires to exercise redemption privileges for Kilogram Bars must do so by instructing his, her or its broker, who must be a direct or indirect participant of the Canadian Depository for Securities (“CDS”) or the Depository Trust Company (“DTC”), as applicable, to deliver to the Transfer Agent on behalf of the unitholder a written request signed by a unitholder in the form as the Manager may from time to time in its sole discretion determine, which must be guaranteed by a Canadian chartered bank, or by a bank, brokerage firm or other financial intermediary that is a member of an approved “Medallion Guarantee Program” or that the Manager on behalf of the Trust otherwise approves (a “Gold Redemption Notice”), of the unitholder's intention to redeem Units for Kilogram Bars. A Gold Redemption Notice must be received by the Transfer Agent no later than 4:00 p.m., Toronto Time, on the 15th day of the month in which the Gold Redemption Notice will be processed or, if such day is not a business day, then on the immediately following day that is a business day. Any Gold Redemption Notice received after such time will be processed on the next Monthly Redemption Date.
Once a Gold Redemption Notice is received by the Transfer Agent, the Transfer Agent, together with the Manager, will determine whether such Gold Redemption Notice complies with the applicable requirements, is for an amount of gold that is equal to at least one Kilogram Bar plus applicable expenses, and contains delivery instructions that are acceptable to the armored service transportation carrier, or such other transportation provider as deemed appropriate by the logistical coordinator. If the Transfer Agent and the Manager determine that the Gold Redemption Notice complies with all applicable requirements, it will provide a notice to such redeeming unitholder's broker confirming that the Gold Redemption Notice was received and determined to be complete.
If the Gold Redemption Notice is determined to have complied with the applicable requirements, the Transfer Agent and the Manager will determine as of 4:00 p.m., Toronto Time, on the Monthly Redemption Date the amount of Kilogram Bars and the amount of cash that will be delivered to the redeeming unitholder. Also, if the Units being redeemed are certificated on such Monthly Redemption Date, the redeeming unitholder's broker will deliver the certificate(s) evidencing the redeeming Units to CDS or DTC or the Transfer Agent, as applicable, for cancellation.
The Transfer Agent and the Manager will determine the amount of Kilogram Bars the redeeming unitholder will receive and the amount of cash necessary to cover the expenses associated with the redemption and delivery that must be paid by the redeeming unitholder. Once such determination has been made, the Transfer Agent will inform the broker through which the unitholder has delivered its Gold Redemption Notice of the amount of Kilogram Bars and cash that the redeeming unitholder will receive upon the redemption of the unitholder's Units.
Based on instructions from the Manager, the Gold Custodian will release the requisite amount of Kilogram Bars from its custody to the armored transportation service carrier or such other transportation provider as deemed appropriate by the logistical coordinator. As directed by the Manager, any cash to be received by a redeeming unitholder in connection with a redemption of Units for Kilogram Bars will be delivered or caused to be delivered by the Manager to the unitholder's brokerage account within 10 business days after the applicable Monthly Redemption Date.
A unitholder redeeming Units for Kilogram Bars will receive the Kilogram Bars from a Gold Custodian. Kilogram Bars received by a unitholder as a result of a redemption of Units will be delivered by armored transportation service carrier or such other transportation provider as deemed appropriate by the logistical coordinator
Costs associated with the redemption of Units and the delivery of Kilogram Bars will be borne by the redeeming unitholder, as set forth in the Registration Statement.
The armored transportation service carrier or such other transportation provider as deemed appropriate by the logistical coordinator will receive Kilogram Bars in connection with a redemption of Units approximately 10 business days after the Monthly Redemption Date. Once the Kilogram Bars representing the redeemed Units has been placed with the armored transportation service carrier or such other transportation provider as deemed appropriate by the logistical coordinator, the Gold Custodian will no longer bear the risk of loss of, and damage to, such Kilogram Bars. In the event of a loss after the Kilogram Bars have been placed with the armored transportation service carrier or such other transportation provider as deemed appropriate by the logistical coordinator, the unitholder will not have recourse against the Trust, the Manager, the Advisor, or Gold Custodian. However, Kilogram Bars being delivered to a redeeming unitholder will be insured until the client signs accepting delivery of the Kilogram Bars.
All redemptions for cash shall be determined using U.S. dollars. Unitholders whose Units are redeemed for cash will be entitled to receive a redemption price per Unit equal to 95% of the lesser of (i) the volume-weighted average trading price of the Units traded on the NYSE Arca or, if trading has been suspended on the NYSE Arca, the trading price of the Units traded on the TSX, for the last five days on which the respective exchange is open for trading for the month in which the redemption request is processed and (ii) the NAV of the redeemed Units as of 4:00 p.m., Toronto Time, on the Monthly Redemption Date. Cash proceeds from the redemption of Units will be transferred to a redeeming Unitholder approximately three business days after the applicable Monthly Redemption Date.
The Manager, on behalf of the Trust, may suspend the right or obligation of the Trust to redeem Units (whether for Kilogram Bars and/or cash) for the whole or any part of any period with the prior approval of securities regulatory authorities having jurisdiction, where required, for any period during which the Manager determines that conditions exist which render impractical the sale of assets of the Trust or which impair the ability for the Manager to determine the NAV or the redemption amount of Units.
In the event of any such suspension, the Manager will issue a press release announcing the suspension and will advise the Trustee. The suspension may apply to all requests for redemption received prior to the suspension, but as for which payment has not been made, as well as to all requests received while the suspension is in effect. All unitholders making such requests will be advised by the Manager of the suspension and that the redemption will be effected at a price determined on the first valuation date that the NAV per Unit is calculated following the termination of the suspension. All such unitholders will have, and will be advised that during such suspension of redemptions that they have, the right to withdraw their requests for redemption. The suspension will terminate in any event on the first business day on which the condition giving rise to the suspension has ceased to exist or when the Manager has determined that such condition no longer exists, provided that no other condition under which a suspension is authorized then exists, at which time the Manager will issue a press release announcing the termination of the suspension. Subject to applicable laws any declaration of suspension made by the Manager, on behalf of the Trust, will be conclusive.
Generally, a mutual fund, such as the Trust, that is a reporting issuer in Canada only may suspend the right of security holders to request that the mutual fund redeem its securities without the approval of securities regulatory authorities for the whole or any part of a period during which normal trading is suspended on a stock exchange, options exchange or futures exchange within or outside Canada on which securities are listed and traded, or on which specified derivatives are traded, if those securities or specified derivatives represent more than 50 percent by value, or underlying market exposure, of the total assets of the mutual fund without allowance for liabilities and if those securities or specified derivatives are not traded on any other exchange that represents a reasonably practical alternative for the mutual fund. Given the intended portfolio assets of the Trust (which will consist primarily of gold, not exchange traded securities), the Trust likely will not avail itself of the foregoing and will need to seek the approval of the securities regulatory authority in each province and territory of Canada if it intends to suspend redemptions. The securities regulatory authorities will consider whether the proposed suspension is not contrary or prejudicial to the public interest.
If the approval of securities regulatory authorities is required to suspend redemptions, the Trust must apply to the Ontario Securities Commission, the securities regulatory authority for the jurisdiction in which the head office of the Trustee is located, for approval pursuant to Sections 5.7(2) and 5.7(3) of National Instrument 81-102—Mutual Funds and must concurrently file a copy of the application with the securities regulatory authority in each of the other Canadian jurisdictions in which the Units will be offered. The Trust may suspend redemptions only after the application is approved by the Ontario Securities Commission and has not been disallowed by any of the other relevant Canadian jurisdictions.
Other Canadian securities regulatory authorities which must be notified are as follows: British Columbia Securities Commission, Alberta Securities Commission, Saskatchewan Securities Commission, Manitoba Securities Commission, Autorite des marches financiers, New Brunswick Securities Commission, Nova Scotia Securities Commission, Securities Commission of Newfoundland and Labrador, Prince Edward Island Securities Office, Office of the Attorney General, Northwest Territories Securities Registry, Government of Nunavut Securities Registry and Registrar of Securities, Government of the Yukon Territory.
During any period in which the right of unitholders to request a redemption of their Units for Kilogram Bars and/or cash is suspended, the Manager, on behalf of the Trust, will direct the Valuation Agent to suspend the calculation of the value of the net assets of the Trust and the NAV. During any such period of suspension, the Trust will not issue or redeem any Units. In the event of any such suspension or termination thereof, the Manager will issue a press release announcing the suspension or the termination of such suspension, as the case may be.
The Units may trade in the secondary market on the Exchange at prices that are lower or higher relative to their NAV. The amount of the discount or premium in the trading price relative to the NAV may be influenced by non-concurrent trading hours between the COMEX, which is the U.S. exchange on which gold for physical delivery is traded and NYSE Arca. While the Units will trade on NYSE Arca until 4:00 p.m., Toronto time, liquidity in the global gold market will lessen after the close of the COMEX at 1:30 p.m., Eastern time. As a result, during this time, trading spreads, and the resulting premium or discount to the NAV may widen.
According to the Registration Statement, the Trust does not have a fixed termination date but will be terminated and dissolved in the event any of the following occurs:
(a) There are no outstanding Units;
(b) the Trustee resigns or is removed and no successor trustee is appointed and approved by the Unitholders, if required;
(c) the Trustee has been declared bankrupt or insolvent or has entered into a liquidation or winding-up, whether compulsory or voluntary (and not merely voluntary liquidation for the purposes of amalgamation or reconstruction);
(d) the Trustee makes a general assignment for the benefit of its creditors or otherwise acknowledges its insolvency; or
(e) the assets of the Trustee have become subject to seizure or confiscation by any public or governmental authority.
In addition, the Trustee may, in its discretion, terminate the Trust, without unitholder approval, if, in the opinion of the Trustee, the value of net assets of the Trust have been reduced such that it is no longer economically feasible to continue the Trust and/or it would be in the best interests of the unitholders to terminate the Trust, by giving each holder of Units at the time at least ninety (90) days notice.
In the event of the winding-up of the Trust, the rights of unitholders to require redemption of any or all of their Units will be suspended, and the Manager or, in the event of (c), (d) or (e) above, such other person appointed by the Trustee, the unitholders of the Trust or a court of competent jurisdiction, as the case may be, will make appropriate arrangements for converting the investments of the Trust into cash and the Trustee will proceed to wind-up the affairs of the Trust in such manner as seems to it to be appropriate. The assets of the Trust remaining after paying or providing for all obligations and liabilities of the Trust will be distributed among the unitholders registered as of 4:00 p.m., Toronto time, on the date on which the Trust is terminated in accordance with the Declaration of Trust. Distributions of net income and net taxable capital gains will, to the extent not inconsistent with the orderly realization of the assets of the Trust, continue to be made in accordance with the Declaration of Trust until the Trust has been wound up. Additional information relating to the Trust's termination is provided in the Registration Statement.
According to the Registration Statement, the NAV of the Trust will be determined daily as of 4:00 p.m., Toronto time, on each business day by the Trust's Valuation Agent. The value of the net assets of the Trust on any such day will be equal to the aggregate fair market value of the assets of the Trust as of such date, less an amount equal to the fair value of the liabilities of the Trust (excluding all liabilities represented by outstanding Units) as of such date, after processing of all subscriptions and redemptions of Units as of such date. The Valuation Agent will calculate the NAV per Unit by dividing the value of the net assets of the Trust represented by the Units on that day by the total number of Units then outstanding on such day.
According to the Registration Statement, the Trustee shall or shall cause the Valuation Agent of the Trust to calculate the value of the net assets of the Trust. The value of the net assets of the Trust as of 4:00 p.m., Toronto Time, on each business day will be the amount obtained by deducting from the aggregate fair market value of the assets of the Trust as of such time an amount equal to the fair value of the liabilities of the Trust (excluding all liabilities represented by outstanding Units) as of such time.
The NAV per Unit at any time shall be the quotient obtained by dividing the value of the net assets of the Trust at such time by the total number of Units then outstanding and adjusting the number to the nearest one hundredth of a cent. For the purpose of this calculation:
(a) Units subscribed for shall be deemed to be outstanding as of the business day after the day upon which payment in full for such Units shall have actually been received by the Manager; and
(b) Units which the Trust is required to redeem shall be deemed to be outstanding at 4:00 p.m., Toronto Time, on the valuation date as of which NAV is to be determined for the purpose of the redemption, and thereafter the Units shall be deemed to be no longer outstanding and the redemption price shall, until paid, be deemed to be a liability of the Trust.
The NAV will be determined in accordance with the following:
(a) The assets of the Trust will be deemed to include the following property:
(i) All Kilogram Bars owned by or contracted for the Trust;
(ii) all cash on hand or on deposit, including any interest accrued thereon adjusted for accruals deriving from trades executed but not yet settled;
(iii) all bills, notes and accounts receivable;
(iv) all interest accrued on any interest-bearing securities owned by the Trust other than interest, the payment of which is in default;
(v) prepaid expenses; and
(vi) such other cash equivalent instruments, as may be held by the Trust from time to time.
(b) The market value of the portfolio assets of the Trust will be determined as follows:
(i) The value of Kilogram Bars will be based on the per ounce price as indicated by the daily 3 p.m. London Fix
(ii) the value of any cash on hand or on deposit, bills, demand notes, accounts receivable, prepaid expenses, and interest accrued and not yet received, will be deemed to be the full amount thereof unless the Manager determines that any such deposit, bill, demand note, account receivable, prepaid expense or interest is not worth the full amount thereof, in which event the value thereof will be deemed to be such value as the Manager determines to be the fair value thereof;
(iii) short-term investments including notes and money market instruments will be valued at cost plus accrued interest;
(iv) the value of any security or other property for which no price quotations are available or, in the opinion of the Manager (which may delegate such responsibility to the Valuation Agent under the valuation services agreement), to which the above valuation principles cannot or should not be applied, will be the fair value thereof determined from time to time in such manner as the Manager (or the Valuation Agent, as the case may be) will from time to time in time provide; and
(v) the value of all assets and liabilities of the Trust will be valued in U.S. dollars and the value of assets and liabilities of the Trust in terms of a currency other than U.S. dollars will be converted to U.S. dollars by applying the rate of exchange obtained from the best available sources to the Valuation Agent as agreed upon by the Manager including, but not limited to, the Trustee or any of its affiliates.
For the purposes of determining the fair market value of any security or property pursuant to paragraph (b) above to which, in the opinion of the Trust's Valuation Agent in consultation with the Manager, the above valuation principles cannot be applied (because no price or yield equivalent quotations are available as provided above, or the current pricing option is not appropriate, or for any other reason), will be the fair value as determined in such manner by the Trust's Valuation Agent in consultation with the Manager and generally adopted by the marketplace from time to time. For greater certainty, fair valuing an investment comprising the property of the Trust may be appropriate if: (i) Market quotations do not accurately reflect the fair value of an investment; (ii) an investment's value has been materially affected by events occurring after the close of the exchange or market on which the investment is principally traded; (iii) a trading halt closes an exchange or market early; or (iv) other events result in an exchange or market delaying its normal close.
For the purposes of determining the value of Kilogram Bars, the Manager will rely solely on weights provided to the Manager by third parties and confirmed by the applicable Gold Custodian. The Manager or the Trust's Valuation Agent will not be required to make any investigation or inquiry as to the accuracy or validity of such weights.
The Exchange will obtain a representation from the issuer of the Units that the NAV will be calculated on each business day and will be made available to all market participants at the same time.
The Trust Web site will provide an intraday indicative value (“IIV”) per Unit, as calculated by a third party financial data provider during the Exchange's core trading session (9:30 a.m. to 4:00 p.m., Eastern time; hereafter “Core Trading Session”).
The Web site for the Trust, which the Trust will launch upon the closing of the initial public offering, will contain the following information, on a per Unit basis, for the Trust:
(a) The midpoint of the bid-ask price at the close of trading in relation to the NAV as of the time the NAV is calculated (“Bid/Ask Price”), and a calculation of the premium or discount of such price against such NAV; and
(b) data in chart format displaying the frequency distribution of discounts and premiums of the Bid/Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters.
(c) the Trust's prospectus, as well as the two most recent reports to stockholders.
The Trust Web site also will provide the last sale price of the Units as traded in the U.S. market, as well as a breakdown of the holdings of the Trust, including the assets described above under “Calculation of Net Asset Value”.
Currently, the Consolidated Tape Plan does not provide for dissemination of the spot price of a commodity, such as gold, over the Consolidated Tape. However, there will be disseminated over the Consolidated Tape quotation and last sale information for the Units. In addition, there is a considerable amount of gold price and gold market information available on public Web sites and through professional and subscription services. The IIV relating to the Units will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of gold from various financial information service providers, such as Reuters and Bloomberg. Reuters and Bloomberg provide at no charge on their Web sites delayed information regarding the spot price of gold and last sale prices of gold futures, as well as information about news and developments in the gold market. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on gold prices directly from market participants. An organization named EBS provides an electronic trading platform to institutions such as bullion banks and dealers for the trading of spot gold, as well as a feed of live streaming prices to Reuters and Moneyline Telerate subscribers.
Complete real-time data for gold futures and options prices traded on the COMEX are available by subscription from Reuters and Bloomberg. The NYMEX also provides delayed futures and options information on current and past trading sessions and market news free of charge on its Web site. There are a variety of other public Web sites providing information on gold, ranging from those specializing in precious metals to sites maintained by major newspapers, such as The Wall Street Journal. In addition, the London AM Fix and London PM Fix are publicly available at no charge at
The Trust's daily (or as determined by the Manager in accordance with the Trust Agreement) NAV will be posted on the Trust's Web site as soon as practicable. The Exchange will provide on its Web site (
The Trust and the Units will be subject to the criteria in NYSE Arca
The Exchange will require a minimum of 100,000 Units to be outstanding at the start of trading. The minimum number of Units required to be outstanding is comparable to requirements that have been applied to previously listed shares of the ETFS Gold Trust.
The Exchange deems the Units to be equity securities, thus rendering trading in the Fund subject to the Exchange's existing rules governing the trading of equity securities. Trading in the Units on the Exchange will occur in accordance with NYSE Arca Equities Rule 7.34(a). The Exchange has appropriate rules to facilitate transactions in the Units during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Units. Trading on the Exchange in the Units may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Units inadvisable. These may include: (1) The extent to which conditions in the underlying gold market have caused disruptions and/or lack of trading, or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Units will be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange's “circuit breaker” rule.
The Exchange represents that trading in the Units will be subject to the existing trading 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 surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
NYSE Arca Equities Rule 8.201 sets forth certain restrictions on Equity Trading Permit (“ETP”) Holders acting as registered Market Makers in the Units. Pursuant to NYSE Arca Equities Rule 8.201(g), an ETP Holder acting as a registered Market Maker in the Units is required to provide the Exchange and FINRA, on behalf of the Exchange with information relating to its trading in the underlying gold, related futures or options on futures, or any other related derivatives in a manner prescribed by the Exchange. Commentary .04 of NYSE Arca Equities Rule 6.3 requires an ETP Holder acting as a registered Market Maker, and its affiliates, in the Units to establish, maintain and enforce written policies and procedures reasonably designed to prevent the misuse of any material nonpublic information with respect to such products, any components of the related products, any physical asset or commodity underlying the product, applicable currencies, underlying indexes, related futures or options on futures, and any related derivative instruments (including the Units).
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Units, gold futures contracts, and options on gold futures with other markets that are members of the Intermarket Surveillance Group (“ISG”), and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Units, gold futures contracts, and options on gold futures contracts from such markets, including the COMEX. In addition, the Exchange may obtain information regarding trading in the Units, gold futures contracts, and options on gold futures from markets 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.
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Units. Specifically, the Information Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Units; (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Units; (3) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Units prior to or concurrently with the confirmation of a transaction; (4) the possibility that trading spreads and the resulting premium or discount on the Units may widen as a result of reduced liquidity of gold trading during the Core and Late Trading Sessions after the close of the major world gold markets; and (5) trading information. For
In addition, the Information Bulletin will reference that the Trust is subject to various fees and expenses described in the Registration Statement. The Information Bulletin will also reference the fact that there is no regulated source of last sale information regarding physical gold, that the Commission has no jurisdiction over the trading of gold as a physical commodity, and that the CFTC has regulatory jurisdiction over the trading of gold futures contracts and options on gold futures contracts.
The Information Bulletin will also discuss any relief, if granted, by the Commission or the staff from any rules under the Act.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.201. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Units, gold futures contracts, and options on gold futures with other markets that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Units, gold futures contracts, and options on gold futures contracts from such markets, including the COMEX. In addition, the Exchange may obtain information regarding trading in the Units, gold futures contracts, and options on gold futures from markets that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that there is a considerable amount of gold price and gold market information available on public Web sites and through professional and subscription services. Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Complete real-time data for gold futures and options prices traded on the COMEX are available by subscription from Reuters and Bloomberg. The Trust's Web site will provide an IIV per share for the Units, as calculated by a third party financial data provider during the Exchange's Core Trading Session. The Trust's Web site will also provide the Trust's prospectus, as well as the two most recent reports to stockholders. The Exchange will provide on its Web site a link to the Trust's Web site. In addition, the Exchange will make available over the Consolidated Tape quotation information, trading volume, closing prices and NAV for the Units from the previous day.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Units and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding gold pricing and gold futures information.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional exchange-traded product that holds physical gold and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be 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 Elizabeth M. Murphy, 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, a New York limited liability company, registered national securities exchange and self-regulatory organization, is submitting this rule filing (the “Proposed Rule Change”) to the U.S. Securities and Exchange Commission in connection with the proposed business combination (the “Merger”) of NYSE Euronext (“NYSE Euronext”) and IntercontinentalExchange, Inc. (“ICE”), both Delaware corporations. NYSE Euronext has entered into an Agreement and Plan of Merger, dated as of December 20, 2012, as amended and restated as of March 19, 2013, by and among NYSE Euronext, ICE, IntercontinentalExchange Group, Inc. (“ICE Group”), Braves Merger Sub, Inc. (“ICE Merger Sub”) and Baseball Merger Sub, LLC (“NYSE Euronext Merger Sub”) (as it may be further amended from time to time, the “Merger Agreement”), whereby NYSE Euronext and ICE would each become subsidiaries of ICE Group.
NYSE Euronext owns 100% of the equity interest of NYSE Group, Inc., a Delaware corporation (“NYSE Group”), which in turn directly or indirectly owns (1) 100% of the equity interest of three registered national securities exchanges and self-regulatory organizations (together, the “NYSE Exchanges”)—the Exchange, NYSE Arca, Inc. (“NYSE Arca”) and NYSE MKT LLC (“NYSE MKT”)—and (2) 100% of the equity interest of NYSE Market (DE), Inc. (“NYSE Market”), NYSE Regulation, Inc. (“NYSE Regulation”), NYSE Arca L.L.C., NYSE Arca Equities, Inc. (“NYSE Arca Equities”) and NYSE Amex Options LLC (“NYSE Amex Options”) (the NYSE Exchanges, together with (x) NYSE Market, NYSE Regulation, NYSE Arca L.L.C., NYSE Arca Equities and NYSE Amex Options and (y) any similar U.S. regulated entity acquired, owned or created after the date hereof, the “U.S. Regulated Subsidiaries” and each, a “U.S. Regulated Subsidiary”). Each of NYSE Arca and NYSE MKT will be separately filing a proposed rule change in connection with the Merger that will be substantially the same as the Proposed Rule Change.
ICE is a leading operator of regulated exchanges and clearing houses serving the risk management needs of global markets for agricultural, credit, currency, emissions, energy and equity index products. ICE directly and indirectly owns ICE Futures Europe, ICE Futures U.S., Inc., ICE Futures Canada, Inc., ICE U.S. OTC Commodity Markets, LLC, and five central counterparty clearing houses, including ICE Clear Europe Limited and ICE Clear Credit LLC, each of which is registered as a clearing agency under Section 17A of the Exchange Act,
ICE's common stock is listed on the Exchange under the symbol “ICE,” and, following the completion of the Merger, ICE Group common stock is expected to be listed for trading on the Exchange under the same symbol.
The Exchange is proposing that, pursuant to the Merger, the successor to NYSE Euronext, the Exchange's indirect parent, will be a wholly owned subsidiary of ICE Group. ICE Group is currently a wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, ICE Merger Sub, a Delaware corporation, and NYSE Euronext Merger Sub, a Delaware limited liability company. To effect this transaction, (A) ICE Merger Sub will be merged with and into ICE (the “ICE Merger”), with ICE as the surviving corporation and a wholly owned subsidiary of ICE Group, and each share of ICE common stock owned by an ICE stockholder (other than ICE or ICE Merger Sub) will be converted into the right to receive one share of ICE Group common stock, and (B) immediately following the ICE Merger, NYSE Euronext shall be merged with and into NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the surviving company and a wholly owned subsidiary of ICE Group (the “NYSE Euronext Merger” and, together with the ICE Merger, the “Merger”). Each issued and outstanding share of NYSE Euronext common stock will be converted into the right to receive the “standard election amount” of 0.1703 of a share of ICE Group common stock and $11.27 in cash, other than certain shares held by NYSE Euronext, ICE and their respective affiliates. Alternatively, NYSE Euronext stockholders will have the right to make either a cash election to receive $33.12 in cash, or a stock
If the Merger is completed, the businesses of ICE and NYSE Euronext, including the U.S. Regulated Subsidiaries, will be held under ICE Group as a single publicly traded holding company that will be listed on the Exchange. The Proposed Rule Change, if approved by the Commission, will not be effective until the consummation of the Merger.
In addition, the Exchange is proposing that, in connection with the Merger, the Commission approve the organizational and other governance documents of ICE Group and NYX Holdings, as well as certain amendments to the organizational and other governance documents of NYSE Group and certain of the U.S. Regulated Subsidiaries, as well as certain rules of the Exchange, NYSE MKT and NYSE Arca Equities.
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○ first, the NYX Holdings Operating Agreement would provide that all of the issued and outstanding membership interests of NYX Holdings will be held by ICE Group, and that ICE Group may not transfer or assign any membership interests without approval by the Commission under the Exchange Act and the relevant European Regulators under the applicable European Exchange Regulations (as defined in the NYX Holdings Operating Agreement);
○ second, the NYX Holdings Operating Agreement would provide that the voting and ownership restrictions contained therein would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests of NYX Holdings and only for so long as NYX Holdings directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary (as such terms are defined in the NYX Holdings Operating Agreement). The voting and ownership restrictions in the NYX Holdings Operating Agreement would otherwise mirror those in both the current NYSE Group Certificate and the proposed ICE Group Certificate: A 10% threshold for the voting restriction and an ownership restriction of 20%.
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• Under the Proposed Rule Change, the voting and ownership restrictions in the NYSE Group Certificate would be amended to apply only for so long as NYSE Group directly or indirectly controls any Regulated Subsidiary (as defined in the NYSE Group Certificate); and expand the definition of “Related Persons” regarding NYSE MKT Members so that it is consistent with the language in the NYSE Rules, which language also will be incorporated in the ICE Group Certificate and the NYX Holdings Operating Agreement pursuant to the Proposed Rule Change.
The Second Amended and Restated Certificate of Incorporation of IntercontinentalExchange Group, Inc. that will be effective as of the consummation of the Merger, the Amended and Restated Bylaws of IntercontinentalExchange Group, Inc. that will be effective as of the consummation of the Merger; the proposed Director Independence Policy of Intercontinental-Exchange Group, Inc. that will be adopted by the board of directors of IntercontinentalExchange Group, Inc. effective as of the consummation of the Merger; the resolutions of the NYSE Euronext Board of Directors; the proposed Amended and Restated Limited Liability Company Agreement of NYSE Euronext Holdings LLC that will be effective as of the consummation of the Merger; the proposed Third Amended and Restated Certificate of Incorporation of NYSE Group, Inc. that will be effective as of the consummation of the Merger; the proposed Fifth Amended and Restated Operating Agreement of New York Stock Exchange LLC that will be effective as of the consummation of the Merger; the proposed Fourth Amended and Restated Operating Agreement of NYSE MKT LLC that will be effective as of the consummation of the Merger; the proposed Third Amended and Restated Bylaws of NYSE Market (DE), Inc. that will be effective as of the consummation of the Merger; the proposed Fifth Amended and Restated Bylaws of NYSE Regulation, Inc. that will be effective as of the consummation of the Merger; the proposed amended Rules of the New York Stock Exchange, LLC that will be effective as of the consummation of the Merger; the proposed revised Director Independence Policy that will be adopted by the boards of directors of New York Stock Exchange, LLC, NYSE MKT LLC, NYSE Market (DE), Inc. and NYSE Regulation, Inc. effective as of the consummation of the Merger; the proposed amendments to the NYSE Trust Agreement, that will be effective as of the consummation of the Merger; the proposed amended Rules of NYSE MKT that will be effective as of the consummation of the Merger; and the proposed amended Rules of NYSE Arca Equities, Inc. that will be effective as of the consummation of the Merger are attached to the Proposed Rule Change as Exhibits 5A, 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, 5L, 5M, 5N and 5O, respectively.
The text of the Proposed Rule Change is available at the Exchange, the Commission's Public Reference Room, and on the Web site of the Exchange (
In its filing with the Commission, the Exchange has included statements concerning the purpose of, and basis for,
The purpose of this rule filing is to adopt the rules necessary to permit NYSE Euronext to effect the Merger and to amend certain provisions of the organizational and other governance documents of NYSE Euronext, NYSE Group and certain of the U.S. Regulated Subsidiaries, including certain Exchange Rules, NYSE MKT Rules and NYSE Arca Equities Rules.
The Exchange is submitting the Proposed Rule Change to the Commission in connection with the Merger of NYSE Euronext and ICE. ICE Group believes the Merger brings together two highly complementary businesses and will create an end-to-end multi-asset portfolio that will be strongly positioned to serve a global client base and capture current and future growth opportunities.
Other than as described herein and in the separate proposed rule changes filed by each NYSE Exchange, ICE Group and the NYSE Exchanges do not plan to make any changes to the regulated activities of the U.S. Regulated Subsidiaries in connection with the Merger. If ICE Group determines to make any such changes to the regulated activities of any U.S. Regulated Subsidiary, it will seek the approval of the Commission. The Proposed Rule Change, if approved by the Commission, will not be effective until the consummation of the Merger.
The Merger will occur pursuant to the terms of the Merger Agreement. As a result of the Merger, NYX Holdings, the successor to NYSE Euronext, will be a subsidiary of ICE Group.
In the Merger, NYSE Euronext, the indirect parent of the Exchange, will become a wholly owned subsidiary of ICE Group. ICE Group is currently a wholly owned subsidiary of ICE. ICE Group in turn has two wholly owned subsidiaries, ICE Merger Sub and NYSE Euronext Merger Sub. ICE Merger Sub will be merged with and into ICE, with ICE as the surviving corporation and a wholly owned subsidiary of ICE Group. Immediately afterward, NYSE Euronext will be merged with and into NYSE Euronext Merger Sub, with NYSE Euronext Merger Sub as the surviving company and a wholly owned subsidiary of ICE Group. The surviving entity in the NYSE Euronext Merger will change its name to NYSE Euronext Holdings LLC from and after the closing of the NYSE Euronext Merger.
Under the terms of the Merger Agreement, each share of NYSE Euronext common stock will be converted into 0.1703 of a newly issued share of ICE Group common stock and $11.27 cash (together, the “Standard Merger Consideration”). NYSE Euronext stockholders may also elect to receive $33.12 in cash, or a stock election to receive 0.2851 of a share of ICE Group common stock, for each of their NYSE Euronext shares. Both the cash election and the stock election are subject to proration and adjustment procedures to ensure that the total amount of cash paid, and the total number of shares of ICE Group common stock issued, in the NYSE Euronext Merger to the NYSE Euronext stockholders, as a whole, will be equal to the total amount of cash and number of shares that would have been paid and issued if all of the NYSE Euronext stockholders received the standard election amount. Following the Merger, ICE Group common shares are expected to be listed on the New York Stock Exchange.
The board of directors of ICE has determined that the Merger is in the best interests of its stockholders, approved the Merger Agreement and resolved to recommend to its stockholders that they approve the adoption of the Merger Agreement. The board of directors of NYSE Euronext has determined that the Merger is in the best interests of its stockholders, approved the Merger Agreement and resolved to recommend that its stockholders approve the adoption of the Merger Agreement.
Following the Merger, ICE Group will be a for-profit, publicly traded Delaware corporation. ICE Group will hold all of the equity interests in ICE, which will continue its current operations, and in NYX Holdings, which will hold (1) 100% of the equity interests of NYSE Group (which, in turn, directly or indirectly holds 100% of the equity interests of the U.S. Regulated Subsidiaries) and (2) 100% of the equity interest of Euronext N.V. (which, in turn, directly or indirectly holds 100% of the equity interests in certain regulated trading markets in Belgium, France, the Netherlands, Portugal and the United Kingdom).
ICE Group will amend its certificate and bylaws to incorporate ownership and voting limitations and certain other provisions to satisfy U.S. and European regulatory requirements as described in detail in the Proposed Rule Change.
After the Merger, NYSE Group will be directly wholly owned by NYX Holdings and will continue to own, directly or indirectly, the three NYSE Exchanges—the Exchange, NYSE Arca and NYSE MKT—which provide marketplaces where investors buy and sell listed companies' common stock and other securities as well as equity options and securities traded on the basis of unlisted trading privileges. NYSE Regulation, Inc., an indirect not-for-profit subsidiary of NYX Holdings, will continue to oversee FINRA's performance of certain market surveillance and enforcement functions for the NYSE Exchanges, enforce listed company compliance with applicable standards, and oversee regulatory policy determinations, rule interpretation and regulation related rule development.
In Europe, NYSE Euronext and its subsidiaries own European-based exchanges that comprise Euronext N.V. and its subsidiaries—the London, Paris, Amsterdam, Brussels and Lisbon stock exchanges, as well as the derivatives markets in London, Paris, Amsterdam, Brussels and Lisbon (with certain qualifications and exceptions set forth in the ICE Group Bylaws, the “European Market Subsidiaries”). The activities of the NYSE Euronext European markets are or may be subject to the jurisdiction and authority of a number of European regulators, including the Dutch Minister of Finance, the French Minister of the Economy, the French Financial Market Authority (
NYSE Euronext and ICE expect that, after the closing of the Merger, Euronext will be separated from ICE Group, although no definitive plans have been made to pursue such a separation. An initial public offering of Euronext would include all of the European Market Subsidiaries (the continental European cash equity platforms and the derivatives traded on them) but would not include the derivatives businesses of another current subsidiary of Euronext,
The current NYSE Euronext Certificate and Bylaws provide that each provision related to any European Market Subsidiary or any European regulatory requirement will be automatically repealed if (i) NYSE Euronext at any time in the future no longer holds a direct or indirect “controlling interest” (as defined therein) in Euronext or (ii) a “Euronext Call Option” (as defined in the NYSE Euronext bylaws) has been exercised and, after a period of six months following such exercise, Stichting NYSE Euronext, a foundation (“stichting”) organized under the laws of The Netherlands, formed on April 4, 2007 (the “Foundation”) holds shares of Euronext that represent a substantial portion of Euronext's business (provided that, in this case, the NYSE Euronext board of directors approves the applicable revocation). The ICE Group Certificate and Bylaws would contain similar provisions, except that the standard in clause (i) above that ICE Group no longer holds a direct or indirect controlling interest in Euronext would be replaced by a standard that it ceases to control Euronext, with “control” defined by reference to International Financial Reporting Standards. The separation of Euronext as described above is expected to trigger the repeal described in clause (i) as so modified.
Other than certain modifications described herein, the current corporate structure, governance and self-regulatory independence and separation of each U.S. Regulated Subsidiary will be preserved. Specifically, after the Merger, NYSE Group's businesses and assets will continue to be structured as follows:
• The Exchange will remain a direct wholly owned subsidiary of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
• NYSE Market will remain a wholly owned subsidiary of the Exchange and will continue to conduct the Exchange's business.
• NYSE Regulation will remain a wholly owned subsidiary of the Exchange and continue to perform, and/or oversee the performance of, regulatory responsibilities of the Exchange pursuant to a delegation agreement with the Exchange and regulatory functions of NYSE Arca and NYSE MKT pursuant to services agreements with them.
• NYSE Arca and NYSE Arca L.L.C., a Delaware limited liability company, will remain wholly owned subsidiaries of NYSE Group.
• NYSE Arca Equities will remain a wholly owned subsidiary of NYSE Arca.
• NYSE MKT will remain a direct wholly owned subsidiary of NYSE Group and an indirect wholly owned subsidiary of NYX Holdings.
• The Merger will have no effect on the ability of any party to trade securities on the Exchange, NYSE Arca or NYSE MKT.
Similarly, NYX Holdings, as successor to NYSE Euronext, and its subsidiaries will conduct their regulated activities in the same manner as they are currently conducted, with any changes subject to the relevant approvals of their respective European Regulators and, in the case of the U.S. Regulated Subsidiaries, with any changes subject to the approval of the Commission.
ICE Group acknowledges that to the extent it becomes aware of possible violations of the rules of the Exchange, NYSE Arca or NYSE MKT, it will be responsible for referring such possible violations to each such exchange, respectively. In addition, ICE Group will enter into an agreement with NYSE Regulation acknowledging that each of the Exchange, NYSE MKT and NYSE Arca has contracted to have NYSE Regulation perform its self-regulatory obligations, in each case with the self-regulatory organization retaining its responsibility for the adequate performance of those regulatory obligations, and agreeing to provide adequate funding to NYSE Regulation to allow NYSE Regulation to conduct its regulatory activities with respect to the Exchange, NYSE MKT and NYSE Arca.
Article V of the current NYSE Euronext Certificate provides that (1) no person, either alone or together with its “related persons” (as defined in the NYSE Euronext Certificate), may be entitled to vote or cause the voting of shares of NYSE Euronext beneficially owned by such person or its related persons, in person or by proxy or through any voting agreement or other arrangement, to the extent that such shares represent in the aggregate more than 10% of the then outstanding votes entitled to be cast on such matter; and (2) no person, either alone or together with its related persons, may acquire the ability to vote more than 10% of the then outstanding votes entitled to be cast on any such matter by virtue of agreements or arrangements entered into with other persons to refrain from voting shares of stock of NYSE Euronext (the “NYSE Euronext Voting Restriction”).
In addition, the NYSE Euronext Certificate provides that no person, either alone or together with its related persons, may at any time beneficially own shares of NYSE Euronext representing in the aggregate more than 20% of the then outstanding votes entitled to be cast on any matter (the “NYSE Euronext Ownership Restriction”).
The NYSE Euronext Voting Restriction and the NYSE Euronext Ownership Restriction are applicable to each person unless and until (1) such person has delivered a notice in writing to the board of directors of NYSE Euronext, not less than 45 days (or such shorter period as the board of directors of NYSE Euronext expressly permits) prior to any vote or, in the case of the NYSE Euronext Ownership Restriction, prior to the acquisition of any shares of NYSE Euronext that would cause such person, either alone or together with its
• will not impair the ability of any U.S. Regulated Subsidiary, NYSE Euronext or NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity) to discharge their respective responsibilities under the Exchange Act and the rules and regulations thereunder;
• will not impair the ability of any of the European Market Subsidiaries of NYSE Euronext or Euronext (to the extent that Euronext continues to exist as a separate entity) to discharge their respective responsibilities under the European Exchange Regulations (as defined in the NYSE Euronext Bylaws);
• is otherwise in the best interest of NYSE Euronext, its stockholders, the U.S. Regulated Subsidiaries and the European Market Subsidiaries, and will not impair the Commission's ability to enforce the Exchange Act or the European Regulators' ability to enforce the European Exchange Regulations;
• for so long as NYSE Euronext directly or indirectly controls the Exchange or NYSE Market, neither such person nor any of its related persons is a NYSE Member;
• for so long as NYSE Euronext directly or indirectly controls NYSE MKT, neither such person nor any of its related persons is a NYSE MKT Member (this restriction is currently set forth in the Bylaws of NYSE Euronext
• for so long as NYSE Euronext directly or indirectly controls NYSE Arca, NYSE Arca Equities or any facility of NYSE Arca, neither such person nor any of its related persons is an ETP Holder, an OTP Holder or an OTP Firm; and
• neither such person nor any of its related persons is a U.S. Disqualified Person or a European Disqualified Person (as such terms are defined in the NYSE Euronext Certificate).
In order to allow ICE Group to wholly own and vote all of the outstanding common stock of NYSE Euronext upon consummation of the Merger, ICE Group has delivered written notice to the board of directors of NYSE Euronext pursuant to the procedures set forth in the NYSE Euronext Certificate requesting approval of its voting and ownership of NYSE Euronext shares in excess of the NYSE Euronext Voting Restriction and the NYSE Euronext Ownership Restriction. Among other things, in this notice, ICE Group represented to the board of directors of NYSE Euronext that neither it, nor any of its related persons, is (1) an NYSE Member; (2) an NYSE MKT Member; (3) an ETP Holder; (4) an OTP Holder or OTP Firm; or (5) a U.S. Disqualified Person or a European Disqualified Person.
On [June 5] [sic], 2013, the board of directors of NYSE Euronext adopted by written consent the NYSE Euronext Resolutions to permit ICE Group, either alone or with its related persons, to exceed the NYSE Euronext Ownership Restriction and the NYSE Euronext Voting Restriction. In adopting such resolutions, the board of directors of NYSE Euronext made the necessary determinations set forth above and approved the submission of the Proposed Rule Change to the Commission. The U.S. Regulated Subsidiaries will continue to operate and regulate their markets and members exactly as they have done prior to the Merger. Except as set forth in the Proposed Rule Change, ICE Group is not proposing any amendments to their trading or regulatory rules.
With respect to the ability of the Commission to enforce the Exchange Act as it applies to the U.S. Regulated Subsidiaries after the Merger, the U.S. Regulated Subsidiaries will operate in the same manner following the Merger as they operate today. Thus, the Commission will continue to have plenary regulatory authority over the U.S. Regulated Subsidiaries, as is the case currently with these entities. As described in the following sections of this filing, the Exchange is proposing the adoption of the ICE Group Certificate and Bylaws by ICE Group, the NYX Holdings Operating Agreement by NYX Holdings as the surviving entity of the NYSE Euronext Merger, which are modeled in large part on the current NYSE Euronext Certificate and Bylaws (with adjustments discussed below), and a series of amendments to the NYSE Group Certificate, that will create an ownership structure that will provide the Commission with appropriate oversight tools to ensure that the Commission will have the ability to enforce the Exchange Act with respect to each U.S. Regulated Subsidiary, its direct and indirect parent entities, and its directors, officers, employees and agents to the extent they are involved in the activities of such U.S. Regulated Subsidiary.
The NYSE Euronext board of directors also determined that ownership of NYSE Euronext by ICE Group is in the best interests of NYSE Euronext, its stockholders and the U.S. Regulated Subsidiaries.
An extract with the relevant provisions of the Euronext Resolutions is attached as Exhibit 5D to the Proposed Rule Change and can be found on the Exchange's Web site and the Commission's Web site.
The Exchange hereby requests that the Commission approve the NYSE Euronext Resolutions and allow ICE Group, either alone or with its related persons, to own and vote all of the outstanding common stock of NYSE Euronext upon and following the consummation of the Merger.
The Exchange is proposing that, effective as of the completion of the Merger, the ICE Group Certificate would contain voting and ownership restrictions that are substantially identical to those currently in the NYSE Euronext Certificate (except that they would apply only for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary), and would restrict any person, either alone or together with its related persons, from having voting control over ICE Group shares entitling the holder thereof to cause more than 10% of the votes entitled to be cast on any matter or beneficially owning ICE Group shares representing more than 20% of the outstanding votes that may be cast on any matter.
In addition, the Exchange is proposing that the Commission approve the NYX Holdings Operating Agreement, effective as of the consummation of the Merger, which would include voting and ownership provisions, as well as related waiver provisions, again substantially identical to those in the current NYSE Euronext Certificate and NYSE Euronext Bylaws, except that they would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests in NYX Holdings and only for so long as NYX Holdings directly or indirectly controls any U.S. Regulated Subsidiary or any European Market Subsidiary.
Under the Proposed Rule Change, the ICE Group Certificate would provide that (1) no person, either alone or together with its related persons (as defined in the ICE Group Certificate), may be entitled to vote or cause the voting of shares of stock of ICE Group beneficially owned by such person or its related persons, in person or by proxy or through any voting agreement or other arrangement, to the extent that such shares represent in the aggregate more than 10% of the then outstanding votes entitled to be cast on such matter, and (2) no person, either alone or together with its related persons, may acquire the ability to vote more than 10% of the then outstanding votes entitled to be cast on any such matter by virtue of agreements or arrangements entered into with other persons to refrain from voting shares of stock of ICE Group (the “ICE Group Voting Restriction”).
In addition, the ownership restrictions in the ICE Group Certificate would provide that, if such restrictions apply, no person, either alone or together with its related persons, may at any time own beneficially shares of ICE Group representing in the aggregate more than 20% of the then outstanding votes entitled to be cast on any matter (the “ICE Group Ownership Restrictions”).
The ICE Group Certificate would provide that the ICE Group Voting Restriction and the ICE Group Ownership Restriction would apply only for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary (as such term is defined in the ICE Group Certificate).
The ICE Group Voting Restriction applies to each person unless and until (1) such person has delivered a notice in writing to the board of directors of ICE Group, not less than 45 days (or such shorter period as the board of directors of ICE Group expressly permits) prior to any vote, of such person's intention, either alone or together with its related persons, to vote or cause the voting of shares of ICE Group stock beneficially owned by such person or its related persons in excess of the ICE Group Voting Restriction; (2) the board of directors of ICE Group has resolved to expressly permit such voting; and (3) such resolution has been filed with, and approved by, the Commission under Section 19(b) of the Exchange Act
The ICE Group Ownership Restriction applies to each person unless and until (1) such person has delivered a notice in writing to the board of directors of ICE Group, not less than 45 days (or such shorter period as the board of directors of ICE Group expressly permits) prior to the acquisition of any shares of ICE Group that would cause such person, either alone or together with its related persons, to exceed the ICE Group Ownership Restriction, of such person's intention, either alone or together with its related persons, to acquire such ownership; (2) the board of directors of ICE Group has resolved to expressly permit such ownership; and (3) such resolution has been filed with, and approved by, the Commission under Section 19(b) of the Exchange Act
Under the Proposed Rule Change, the NYX Holdings Operating Agreement, although modeled substantially on the current NYSE Euronext Certificate and Bylaws, would reflect certain modifications from the analogous provisions in the NYSE Euronext Certificate and Bylaws, effective as of the Merger, to be consistent with the status of NYX Holdings as a wholly owned subsidiary of ICE Group and with provisions currently in the NYSE Group Certificate, and certain other changes to update the voting and ownership restrictions, in the following respects:
• The NYX Holdings Operating Agreement would provide that all issued and outstanding membership interests will be held by ICE Group, and that ICE Group may not transfer or assign any membership interests without approval by the Commission under the Exchange Act and the relevant European Regulators (as defined in the NYX Holdings Operating
• The NYX Holdings Operating Agreements would provide that the NYX Holdings voting and ownership restrictions contained therein would apply only in the event that ICE Group does not own all of the issued and outstanding membership interests of NYX Holdings,
• The definition of “Related Persons” would be expanded to provide that (1) in the case of a person that is a “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include the “member” (as defined in Section 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) with which such person is associated; and (2) in the case of any person that is a “member” (as defined in 3(a)(3)(A)(ii), (iii) or (iv) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include any “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) that is associated with such person.
• The mandatory repurchase of membership interests from a Person whose ownership represents in the aggregate more than 20% in interest of the interests entitled to vote on any matter would be at a price determined by reference to each incremental percentage ownership over 20% rather than at par value, specifically $1,000 for each percent.
The voting restrictions contained in the current NYSE Group Certificate are substantially the same as those in the current NYSE Euronext Certificate described above, except that (i) the NYSE Group Certificate does not contain any references to European subsidiaries, markets or regulators, and (ii) the NYSE Group Certificate contains references to NYSE MKT members in its definition of “Related Person” that are not currently in NYSE Euronext.
The NYSE Group Certificate would be updated to provide that
• the NYSE Group Voting Restriction and the NYSE Group Ownership Restriction would apply only in the event that NYX Holdings does not own all of the issued and outstanding shares of NYSE Group
• The definition of “Related Persons” would be expanded to provide that (1) in the case of a person that is a “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) of NYSE MKT, such person's “Related Persons” would include the “member” (as defined in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 3(a)(3)(A)(ii) and (iii) of the Exchange Act, which are currently referenced in this provision of the NYSE Group Certificate) with which such person is associated; and (2) in the case of any person that is a “member” (as defined in Section 3(a)(3)(A)(iv) of the Exchange Act, in addition to Sections 3(a)(3)(A)(ii) and (iii) of the Exchange Act, which are currently referenced in this provision of the NYSE Group Certificate) of NYSE MKT, such person's “Related Persons” would include any “member” (as defined in Section 3(a)(3)(A)(i) of the Exchange Act) that is associated with such person.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that ICE Group and its directors, and, to the extent that they are involved in the activities of the U.S. Regulated Subsidiaries, ICE Group's officers and those of its employees whose principal place of business and residence is outside the United States, would be deemed to irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for the purposes of any suit, action or proceeding pursuant to the U.S. federal securities laws, and the rules and regulations thereunder, commenced or initiated by the Commission arising out of, or relating to, the activities of the U.S. Regulated Subsidiaries. The ICE Group Bylaws would also provide that, with respect to any such suit, action, or proceeding brought by the Commission, ICE Group and its directors, officers and employees would (1) be deemed to agree that ICE Group may serve as U.S. agent for purposes of service of process in such suit, action, or proceedings relating to ICE Group or any of its subsidiaries; and (2) be deemed to waive, and agree not to assert by way of motion, as a defense or otherwise, in any such suit, action, or proceeding, any claims that it or they are not personally subject to the jurisdiction of the Commission, that the suit, action, or proceeding is an inconvenient forum or that the venue of the suit, action, or proceedings is improper, or that the subject matter thereof may not be enforced in or by the U.S. federal courts of the Commission.
In addition, the ICE Group Bylaws would provide that, so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary, the directors, officers and employees of ICE Group will be deemed to be directors, officers and employees of such U.S. Regulated Subsidiaries for purposes of, and subject to oversight pursuant to, the Exchange Act.
The ICE Group Bylaws would provide that ICE Group will take reasonable steps necessary to cause its directors, officers and employees, prior to accepting a position as an officer, director or employee, as applicable, of ICE Group to agree and consent in writing to the applicability to them of these jurisdictional and oversight provisions with respect to their activities related to any U.S. Regulated Subsidiary.
The Exchange anticipates that the functions and activities of each U.S. Regulated Subsidiary generally will be carried out by the officers and directors of such U.S. Regulated Subsidiary, over each of whom the Commission has
Under the Proposed Rule Change, the ICE Group Bylaws would provide that for so long as ICE Group directly or indirectly controls any U.S. Regulated Subsidiary, the books, records and premises of ICE Group will be deemed to be the books, records and premises of such U.S. Regulated Subsidiaries for purposes of, and subject to oversight pursuant to, the Exchange Act.
In addition, ICE's books and records related to the U.S. Regulated Subsidiaries will be maintained within the United States, except that to the extent that books and records may relate to both European subsidiaries and U.S. Regulated Subsidiaries, ICE Group may maintain such books and records either in the home jurisdiction of one or more European subsidiaries or in the United States.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that ICE Group will comply with the U.S. federal securities laws and the rules and regulations thereunder, and will cooperate with the Commission and with the U.S. Regulated Subsidiaries pursuant to and to the extent of their respective regulatory authority.
The ICE Group Bylaws would also provide that all confidential information that comes into the possession of ICE Group pertaining to the self-regulatory function of any U.S. Regulated Subsidiary will (a) not be made available to any persons other than to those officers, directors, employees and agents of ICE Group that have a reasonable need to know the contents thereof; (b) be retained in confidence by ICE Group and the officers, directors, employees and agents of ICE Group; and (c) not be used for any commercial purposes.
In addition, the ICE Group Bylaws would provide that ICE Group and its directors, officers and employees will give due regard to the preservation of the independence of the self-regulatory function of the U.S. Regulated Subsidiaries (to the extent of each U.S. Regulated Subsidiary's self-regulatory function) and to its obligations to investors and the general public, and will not take any actions that would interfere with the effectuation of any decisions by the board of directors or managers of any U.S. Regulated Subsidiary relating to its regulatory responsibilities (including enforcement and disciplinary matters) or that would interfere with the ability of such U.S. Regulated Subsidiary to carry out its responsibilities under the Exchange Act.
Finally, the ICE Group Bylaws would provide that each director of ICE Group would, in discharging his or her responsibilities, to the fullest extent permitted by applicable law, take into consideration the effect that ICE Group's actions would have on the ability of (a) the U.S. Regulated Subsidiaries to carry out their responsibilities under the Exchange Act; and (b) the U.S. Regulated Subsidiaries, NYSE Group and ICE Group to (1) Engage in conduct that fosters and does not interfere with the ability of the U.S. Regulated Subsidiaries, NYSE Group (if and to the extent that NYSE Group continues to exist as a separate entity), and ICE Group to prevent fraudulent and manipulative acts and practices in the securities markets; (2) promote just and equitable principles of trade in the securities markets; (3) foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities; (4) remove impediments to and perfect the mechanisms of a free and open market in securities and a U.S. national securities market system; and (5) in general, protect investors and the public interest.
Under the Proposed Rule Change, the ICE Group Bylaws would provide that, before any amendment to or repeal of any provision of the ICE Group Bylaws shall be effective, such amendment or repeal shall be submitted to the board of directors of each U.S. Regulated Subsidiary (or the boards of directors of their successors) and if any or all of such boards of directors determine that, before such amendment or repeal may be effectuated, the same must be filed with, or filed with and approved by, the Commission pursuant to Section 19 of the Exchange Act and the rules promulgated thereunder, then the same will not be effectuated until filed with, or filed with and approved by, the Commission, as the case may be.
Under the Proposed Rule Change, ICE Group would adopt the ICE Group Independence Policy in the form attached to the Proposed Rule Change as
The Exchange is proposing that the NYX Holdings Operating Agreement differ from NYSE Euronext's Certificate and Bylaws to reflect the fact that, after the Merger, NYX Holdings will be an intermediate holding company, will not be a public company traded on an exchange and will not have securities registered under Section 12 of the Exchange Act. As a result, NYX Holdings will not be subject to the Exchange's listing standards or to the corporate governance requirements applicable to publicly traded companies.
As summarized below, the following revisions to the NYSE Euronext Certificate and Bylaws are proposed for the NYX Holdings Operating Agreement in order (1) to simplify and provide for a more efficient governance and capital structure that is appropriate for a wholly owned subsidiary; (2) to conform certain provisions to analogous provisions of the current organizational documents of NYSE Group, which is a wholly owned subsidiary of NYSE Euronext, just as NYX Holdings will be a wholly owned subsidiary of ICE Group following completion of the Merger; and (3) to make certain clarifications and technical edits (for example, to conform the use of defined terms and other provisions, to update cross-references to sections both internal and in the ICE Group Certificate and Bylaws, and to conform to certain other provisions in the ICE Group Certificate and Bylaws).
• The NYSE Euronext Certificate and Bylaws contain provisions relating to the issuance of one or more series of preferred stock. The NYX Holdings Operating Agreement provides for only one class of membership interest and has no provision for a preferred membership interest because the Exchange considers it unlikely that a wholly owned subsidiary would have occasion to issue preferred interests.
• Section 16.1 of the NYX Holdings Operating Agreement would provide that, for so long as NYX Holdings controls, directly or indirectly, any U.S. Regulated Subsidiary, before any amendment to the NYX Holdings Operating Agreement may be effectuated, such amendment would need to be submitted to the board of directors of each U.S. Regulated Subsidiary and, if so determined by any such board, would need to be filed with, or filed with and approved by, the Commission before such amendment may become effective. This provision parallels Article X(C) of the NYSE Euronext Certificate as supplemented, with respect to NYSE MKT, by Section 10.13 of the NYSE Euronext Bylaws.
• The NYX Holdings Operating Agreement would provide that the registered office and agent of NYX Holdings in Delaware will be the Corporation Trust Company, which is the registered agent of other subsidiaries of NYSE Euronext and of ICE.
• Section 3.1 of the NYSE Euronext Bylaws currently provides that the number of directors may be fixed and changed only by resolution adopted by two-thirds of the directors then in office. The two-thirds requirement will be changed to a majority in Section 3.2 of the NYX Holdings Operating Agreement as is appropriate for a wholly owned subsidiary. This standard has been eliminated from the list of provisions that are automatically suspended or become void upon certain events specified in Section 10.11 of the NYX Holdings Operating Agreement.
• Certain residency requirements applicable to directors and officers of NYSE Euronext and references to U.S. and European director domiciles and to “Deputy” officers that appear in the NYSE Euronext Certificate and Bylaws would not be included in the NYX Holdings Operating Agreement. Specifically, references to deputies in Section 2(A) of Article VI of the NYSE Euronext Certificate, and in Sections 2.2(3) and (5), Section 2.5, Section 3.12, Section 5.1, Section 10.4 and Section 10.5 of the NYSE Euronext Bylaws would not be replicated in the NYX Holdings Operating Agreement. Additionally, Section 4.4 of the NYSE Euronext Bylaws (regarding domicile requirements for members of the Nominating and Governance Committee of the board of directors) and the reference thereto in Section 4.1 would not be replicated in the NYX Holdings Operating Agreement. All, or the portions regarding director and officer domicile, of the following sections of the NYSE Euronext Bylaws would not be replicated in the NYX Holdings Operating Agreement: All of Section 3.2 (regarding director domicile requirements); all of Section 3.3 (regarding chairman and chief executive officer domicile requirements); portions of Section 3.6 (regarding filling of vacancies on the board); and the cross-references in Section 10.11(B) to the foregoing deleted provisions. In addition, the requirement in Section 3.8 of the NYSE Euronext Bylaws that board meetings be held with equal frequency in the United States and Europe would be replaced with a requirement that one board meeting a year be held in Europe, to parallel the requirement in the ICE Group Bylaws.
• The restrictions on transfers of certain shares of NYSE Euronext common stock contained in Section 4 of Article IV of the NYSE Euronext Certificate have expired in accordance with their terms and would not be included in the NYX Holdings Operating Agreement.
• Notice of meetings of members would not be required under the NYX Holdings Operating Agreement if waived in accordance with Section 8.1(e) thereof.
• The ICE Group Bylaws provide in Section 2.5 that the holders of a majority of the shares outstanding and entitled to vote (giving effect to the “Recalculated Voting Limitation” referred to in Section A.1 of Article V of the ICE Group Certificate, if applicable) may call special meetings of stockholders. A comparable provision is appropriate for NYX Holdings to provide additional flexibility to ICE Group to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger. Accordingly, Section 8.1(d) of the NYX Holdings Operating Agreement would allow the holders of a majority of the membership interests outstanding and entitled to vote (giving effect to the “Recalculated Voting Limitation,” if applicable) to call special meetings of members.
• The requirement in Section 2.6 of the NYSE Euronext Bylaws for the appointment of an inspector of elections for stockholders meetings would not be included in the NYX Holdings Operating Agreement because the requirement for an inspector of elections under the Delaware General Corporation Law (the “DGCL”) would no longer apply to NYX Holdings after completion of the Merger.
• The requirement in Section 2.7 of the NYSE Euronext Bylaws that directors be elected by a majority of the votes cast (and that they must tender their resignation if such a majority vote is not received), except in the case of contested elections, and that the board of directors may fill any resulting vacancy or may decrease the size of the board, would not be included in the NYX Holdings Operating Agreement, and a plurality voting standard would be adopted for all director elections. These requirements would no longer
• Section 2.10 of the NYSE Euronext Bylaws requires certain advance notice from stockholders of director nominations and stockholder proposals, and that only business brought before a special meeting of stockholders pursuant to NYX Euronext's notice of the meeting may be brought before the meeting. This provision would not be included in the NYX Holdings Operating Agreement because the requirements would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• In order to give ICE Group additional flexibility to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger, Section 7.5 of the NYX Holdings Operating Agreement would allow the member to take any action without a meeting and without prior notice if consented to, in writing, by the member.
• In order to give ICE Group additional flexibility to take actions in its capacity as the sole member of NYX Holdings following completion of the Merger, Section 3.4 of the NYX Holdings Operating Agreement would allow members to fill board vacancies.
• The requirements in Article X of the NYSE Euronext Certificate for a supermajority stockholder vote to amend or repeal certain provisions of the certificate would be eliminated from the NYX Holdings Operating Agreement and a majority vote requirement would apply. A supermajority vote requirement would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member, and a majority voting standard is consistent with the standard generally applicable for actions by the parent entity of other wholly owned subsidiaries of NYX Holdings.
• Section 3.4 of the NYX Holdings Operating Agreement, which is analogous to current Section 3.6 of the NYSE Euronext Bylaws, would include “(if any)” after the reference therein to the Nominating and Governance Committee, because NYX Holdings would become a wholly owned subsidiary of ICE Group and, as such, may not have a Nominating and Governance Committee.
• Section 3.4 of the NYSE Euronext Bylaws, which relates to independence requirements, including the requirement that at least 75% of the board must be independent, would not be replicated in the NYX Holdings Operating Agreement because NYX Holdings would be a wholly owned subsidiary of ICE Group after completion of the Merger and, therefore, it is likely that executives of ICE Group and its subsidiaries will serve on this board.
• Section 3.8(a) of the NYX Holdings Operating Agreement would provide that notice of board meetings is not required if waived in accordance with Section 3.8(b), which is less restrictive than Section 3.9 of the NYSE Euronext Bylaws.
• The advance notice period in Section 3.9 of the NYSE Euronext Bylaws for notices of board meetings sent by first-class mail would be reduced from four days to three days in Section 3.8(a) of the NYX Holdings Operating Agreement. This change conforms the notice period to Section 3.6(b) of the ICE Group Bylaws.
• Section 3.12 of the NYSE Euronext Bylaws requires that, if the chairman or deputy chairman of the board of directors is also the chief executive officer or deputy chief executive officer, he or she may not participate in executive sessions of the board of directors, and if the chairman is not the chief executive officer or deputy chief executive officer, he or she will act as a liaison between the board of directors and the chief executive officer or the deputy chief executive officer. No analogous provisions would be included in the NYX Holdings Operating Agreement.
• Certain aspects of the indemnification and expense advancement provisions in Section 15.2 of the NYX Holdings Operating Agreement, including the terms of any insurance policy maintained by NYX Holdings, would be simplified from Section 10.6 of the NYSE Euronext Bylaws in light of the fact that there are not expected to be any independent, non-executive directors of NYX Holdings, and, therefore, a more streamlined process for indemnification claims is appropriate.
• Section 10.10(A) of the NYSE Euronext Bylaws enumerates provisions of the Bylaws for which amendment requires approval by a supermajority of directors. The supermajority approval requirement would be eliminated in Section 16.1 of the NYX Holdings Operating Agreement by decreasing the current two-thirds standard to a majority of the directors then in office, as is appropriate for a wholly owned subsidiary.
• The supermajority stockholder vote requirements in Section 10.10(B) of the NYSE Euronext Bylaws would be eliminated in the NYX Holdings Operating Agreement because a supermajority vote requirement would no longer serve any purpose after NYX Holdings becomes wholly owned by a single member.
• The NYSE Euronext Bylaw provisions that are subject to automatic suspension under Section 10.11 would be revised in Section 16.3 of the NYX Holdings Operating Agreement to reflect elimination of the supermajority voting provisions in Sections 10.10(A) and (B) discussed above.
In addition, the current Independence Policy of the NYSE Euronext board of directors would, effective as of the Merger, cease to apply.
Under the Proposed Rule Change, the revisions summarized below to the NYSE Group Certificate are proposed in order to conform certain provisions to the analogous provisions of the organizational documents of NYX Holdings, which would likewise be a wholly owned subsidiary of ICE Group following completion of the Merger, as well as to make certain clarifications and technical edits:
• Section 4(a) of Article IV of the NYSE Group Certificate would be amended to contemplate successors to NYSE Euronext as the holder of all of the issued and outstanding shares of NYSE Group for purposes of the NYSE Trust Agreement.
• Sections 4(b)(1)(A) and 4(b)(2)(A) of Article IV of the NYSE Group Certificate would be amended to clarify that the voting ownership concentration limitations in the NYSE Group Certificate would be effective “for so long as the Corporation shall control, directly or indirectly” a U.S. Regulated Subsidiary, as defined in Section 4(b)(1)(A). Conforming changes relating to the definition of U.S. Regulated Subsidiary and the change of name of NYSE Alternext to NYSE MKT have been made later in the same section and thereafter.
• Typographical errors in references to Exchange Act Section 3(a)(3) would be corrected in Section 4(b)(1)(E)(vi) and (xii) of Article IV.
• Section 3 of Article V would be amended by adding the words “from time to time” to conform the provision to the NYX Holdings Operating Agreement.
• Section 5 of Article V of the NYSE Group Certificate would be amended to clarify that the right of the NYSE Group board of directors to remove directors is subject to any rights of holders of any preferred stock in order to make this provision consistent with Section 2 of Article IV of the NYSE Group Certificate, which provides that
• Numbering of certain sections of the NYSE Group Certificate would be updated to reflect the amendments set forth above.
The Fourth Amended and Restated Operating Agreement, dated as of August 23, 2012, of the Exchange (the “Exchange Operating Agreement”), currently provides that (1) a majority of the members of the Exchange's board of directors must be U.S. persons and members of the board of directors of NYSE Euronext, and (2) at least 20% of the Exchange's board members must be persons who are not members of the board of directors of NYSE Euronext but who qualify as independent under the independence policy of the Exchange's board of directors (the “Non-Affiliated Exchange Directors”).
Under the Proposed Rule Change, these provisions would be amended to refer to ICE Group instead of NYSE Euronext. Also, references throughout to the Exchange's “Corporation Independence Policy” would be changed to “Company Independence Policy” in recognition of the form of organization of the Exchange.
Substantially the same revisions would be made to the analogous provisions of the Fourth Amended and Restated Operating Agreement of NYSE MKT.
In addition, references to NYSE Euronext in the Director Independence Policy of each of the Exchange, NYSE Market, NYSE Regulation and NYSE MKT would be revised to refer to ICE Group.
The revisions to the Fourth Amended and Restated Operating Agreement of NYSE MKT indicate that NYSE MKT will be an indirect wholly owned subsidiary of ICE Group rather than a direct subsidiary of NYSE Euronext, and the phrase “NYSE/Amex” has been inserted before references to a merger in 2008 in the recitals to distinguish that merger from the Merger.
The Second Amended and Restated Bylaws of NYSE Market and the Third Amended and Restated Bylaws of NYSE Regulation would be amended to reflect the change from NYSE Euronext to ICE Group. In the case of NYSE Market, the address of the registered office and registered agent has been updated.
In the director independence policies, typographical errors in references to Exchange Act Section 3(a)(3) would be corrected in the first paragraph under the section captioned “Independence Qualifications.”
Under the Proposed Rule Change, certain technical amendments would be made to the Exchange Rules. First, references therein to “NYSE Euronext” would be replaced with references to ICE Group, except that references to NYSE Euronext in Rule 22 and Rule 422 would be replaced with references to NYX Holdings and references to ICE Group would be added. Second, Rule 2 would be revised to delete the definitions of “member” and “member organization” relating to NYSE MKT, which are set forth in Rule 2 for purposes of Section 1(L) of Article 5 of the NYSE Euronext Certificate, because under the Proposed Rule Change, the ICE Group Certificate will incorporate this language.
In addition, certain technical amendments would be made to the NYSE MKT Rules and NYSE Arca Equities Rules to replace references to “NYSE Euronext” with references to ICE Group, except that references to NYSE Euronext in NYSE MKT Rules 107B and 501 would be changed to NYX Holdings. Also, certain provisions in NYSE MKT Rule 104T relating to restrictions on transfer in the NYSE Euronext Certificate would be eliminated because the referenced restrictions are no longer in effect and there will be no analogous provision in the ICE Group Certificate.
The Exchange believes that this filing is consistent with Section 6(b) of the Exchange Act
The Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act
The Exchange does not believe that the Proposed Rule Change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend Footnote 4 of the Exchange's fee schedule regarding Retail Orders. All of the changes described herein are applicable to EDGX Members. The text of the proposed rule change is available on the Exchange's Internet Web site 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
In SR-EDGX-2012-47,
In SR-EDGX-2012-47,
The Exchange proposes to codify in Footnote 4 of its fee schedule similar language, but delete the requirement that the form be acceptable to the Exchange. With the deletion of this requirement, the proposed language to be added to Footnote 4 of the Exchange's fee schedule still requires Members to obtain an annual written representation if they represent Retail Orders from another broker-dealer customer and Footnote 4 provides criteria that all Members who submit Retail Orders must satisfy.
The Exchange notes that the above language regarding Members' requirements with respect to Retail Orders sent to them from another broker-dealer was previously filed with the Commission, albeit containing the requirement that the form be acceptable to the Exchange.
In addition, Footnote 4 to the Exchange's fee schedule currently states that “Members must submit a signed written attestation, in a form prescribed by the Exchange, that they have implemented policies and procedures that are reasonably designed to ensure that every order designated by the Member as a `Retail Order' complies with the [Retail Order] requirements.”
Accordingly, in order to accommodate these system limitations and expand the access of Retail Orders to more Members, the Exchange is proposing a de minimis relaxation of the attestation requirement in Footnote 4 of its fee schedule. Therefore, as proposed, Members would be permitted to send de minimis quantities of agency orders to the Exchange as Retail Orders that cannot be explicitly attested to under the existing attestation requirement. Therefore, the Exchange proposes to amend Footnote 4 to provide that a Member may attest that “substantially all” of the orders it designates as Retail Orders qualify as Retail Orders, replacing the requirement that the Member must attest that “every order” qualifies as a Retail Order. The Exchange proposes to amend Footnote 4 to its fee schedule to state that “Members must submit a signed written attestation, in a form prescribed by the Exchange, that they have implemented policies and procedures that are reasonably designed to ensure that
The Exchange will issue a Regulatory Notice to make clear that the “substantially all” language is meant to permit the presence of only isolated and de minimus quantities of agency orders that do not qualify as Retail Orders that cannot be segregated from Retail Orders due to systems limitations. In this regard, a Member would need to retain, in its books and records, adequate substantiation that substantially all orders sent to the Exchange as Retail Orders met the strict definition and that those orders not meeting the strict definition are agency orders that cannot be segregated from Retail Orders due to system limitations, and are de minimis in terms of the overall number of Retail Orders sent to the Exchange.
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 promotes just and equitable principles of trade and removes impediments to and perfects the mechanism of a free and open market and a national market system because it would communicate to market participants that significant safeguards are in place to protect the integrity of the retail order flow and codify that it is the Member's duty to ensure its supervisory procedures are reasonably designed to assure designated Retail Orders it receives from a broker-dealer customer meet the definition of a Retail Order. As part of this duty, a Member must (i) obtain an annual written representation from each broker-dealer customer that sends it orders to be designated as Retail Orders that entry of such orders as Retail Orders will be in compliance with the requirements specified by the Exchange, and (ii) monitor whether its broker-dealer customer's Retail Order flow continues to meet the applicable requirements. The Exchange notes that this duty was communicated in a previous filing submitted to the Commission by the Exchange, and that the purpose of this filing is to increase transparency by codifying such duty in the Exchange's fee schedule, with the exception of the requirement that the form be acceptable to the Exchange.
If the Member represents Retail Orders from another broker-dealer customer, the Member's supervisory procedures must be reasonably designed to assure that the orders it receives from such broker dealer customer that it designates as Retail Orders meet the definition of a Retail Order. The Member must (i) obtain an annual written representation from each broker-dealer customer that sends it orders to be designated as Retail Orders that entry of such orders as Retail Orders will be in compliance with the requirements specified by the Exchange, and (ii) monitor whether its broker-dealer customer's Retail Order flow continues to meet the applicable requirements.
Members must ensure that their broker-dealer customers comply with the requirements in Footnote 4 of the Exchange's fee schedule so that Members themselves can comply with the supervisory procedure requirement also in Footnote 4 of the Exchange's fee schedule. The Exchange does not believe it needs to prescribe the exact form to be used between its Members and their broker/dealer customers as it wishes to provide Members additional flexibility to structure their written supervisory procedures in a way that is appropriate, taking into consideration Members' varying business models. To ensure the continued integrity of the retail order flow submitted to the Exchange, FINRA, on behalf of the Exchange pursuant to Exchange Rule 13.7, examines Members' supervisory procedures to determine whether such procedures adequately comply with the Exchange's retail order designation requirements. If FINRA were to determine that a Member's supervisory procedures were inadequate, such Member would be subject to the disciplinary procedures of the Exchange.
Such procedures are designed to promote just and equitable principles of trade and removes impediments to and perfect the mechanism of a free and open market and a national market system because they provide a backstop that would ensure the integrity of the retail order flow sent to the Exchange.
The Exchange believes that the proposed change would protect investors and the public interest by making more transparent the requirements for Members surrounding broker-dealer customers of Members that plan to utilize Retail Orders and codify the supervisory duty of the Member to ensure such customers abide by the requirements of Retail Orders, thus promoting the integrity of the retail order flow sent to the Exchange and acting as a deterrent to prevent potential abuse of the Retail Order designation. Accordingly, the proposed amendment to the requirements for Retail Orders would contribute to investors' confidence in the fairness of their transactions, prompting investors to send more retail order flow to the Exchange, which would subsequently benefit all investors by deepening the Exchange's liquidity pool, supporting the quality of price discovery and promoting market transparency.
The Exchange believes that its proposal to amend Footnote 4 of its fee schedule to provide that a Member may attest that “substantially all” of the orders it submits to the Exchange qualify as Retail Orders is designed to prevent fraudulent and manipulative acts and practices because, while the proposed rule change represents a relaxation of the attestation requirements, the change is a de minimis relaxation that still requires the Member to attest that “substantially all” of its orders will qualify as Retail Orders. This de minimis relaxation will allow enough flexibility to accommodate system limitations while still ensuring that only a fractional amount of orders submitted as Retail Orders would not qualify as Retail Orders.
The Exchange believes that the proposed rule change promotes just and equitable principles of trade because it will ensure that similarly situated Members who have only slight differences in the capability of their systems will be able to equally benefit from Retail Orders.
The Exchange believes that the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system because it will allow Members, who are concerned about its system limitations not allowing 100% certification that submitted orders are Retail Orders, to still utilize Retail Orders. By removing impediments to the characterizing of orders as Retail Orders, the proposed change would permit expanded access of Members and their retail customers to the potential rebate and tiered pricing offered to Retail Orders (Flag ZA and the Retail Tier in Footnote 4 of the Exchange's fee schedule).
In addition, the Exchange notes that the proposed amendment will render the Exchange's definition closer to the definitions utilized by the Exchange's competitors.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that the proposed amendment to Footnote 4 of the Exchange's fee schedule would not burden intramarket competition because the ability to submit Retail Orders would continue to be open to all Members that wish to send Retail Orders to the Exchange, including those that represent Retail Orders from another broker-dealer customer, requiring an attestation, as described above.
The Exchange believes that the proposed amendment would not burden intermarket competition because the proposed amendment is similar to that utilized by other market centers.
The Exchange does not believe that the proposed amendment to the definition of Retail Order will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed amendment, by increasing the level of participation of Retail Orders, would increase the level of competition around retail executions such that retail investors would receive better prices than they currently do on the Exchange and potentially through bilateral internalization arrangements. The Exchange believes that the transparency and competitiveness of allowing Retail Orders on an exchange market would result in better prices for retail investors, and benefits retail investors by expanding the capabilities of exchanges to encompass practices currently allowed on non-exchange venues.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to extend its program that allows transactions to take place at a price that is below $1 per option contract through January 5, 2014. The text of the proposed rule change is available on the Exchange's Web site (
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 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.
An “accommodation” or “cabinet” trade refers to trades in listed options on the Exchange that are worthless or not actively traded. Cabinet trading is generally conducted in accordance with the Exchange Rules, except as provided in Exchange Rule 6.54,
The Exchange has temporarily amended the procedures through June 28, 2013 to allow transactions to take place in open outcry at a price of at least $0 but less than $1 per option contract.
The purpose of the instant rule change is to extend the operation of these temporary procedures through January 5, 2014, so that the procedures can continue without interruption while CBOE considers whether to seek permanent approval of the temporary procedures.
The Exchange believes the proposed rule change is consistent with 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 Exchange believes that allowing for liquidations at a price less than $1 per option contract better facilitates the closing of options positions that are worthless or not actively trading. The Exchange believes this promotes fair and orderly markets, as well as assists the Exchange in its ability to effectively attract order flow and liquidity to its market, and ultimately benefits all CBOE TPHs and all investors.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change does not make any changes to Exchange rules, but simply extends an existing temporary program. Further, the program is available to all market participants through CBOE TPHs. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, again, the proposed rule change does not make any changes to Exchange rules, but simply extends an existing temporary program. Moreover, to the extent that the program makes CBOE a more attractive marketplace, as noted above, the program is available to all market participants through CBOE TPHs.
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing rule 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 if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's Pricing Schedule at Section B, entitled “Customer Rebate Program” to amend the various defined categories associated with Customer rebates.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Section B of the Pricing Schedule, entitled “Customer Rebate Program,” to provide members and member organizations the ability to achieve greater Customer rebates by transacting PIXL
Currently, the Exchange has in place a four tier structure Customer Rebate Program at Section B of the Pricing Schedule which pays Customer rebates on four Categories, A, B, C and D, of transactions. The four tier structure pays rebates based on percentage thresholds of national customer multiply-listed options volume by month based on four Categories (A, B, C and D) of transactions. Specifically, the Exchange bases a market participant's qualification for a certain Rebate Tier on the percentage of total national customer volume in multiply-listed options which are transacted monthly on Phlx as follows:
Category A rebates are paid to members executing electronically-delivered Customer Simple Orders in Penny Pilot Options and Customer Simple Orders in Non-Penny Pilot Options in Section II symbols.
Category B rebates are paid to members executing electronically-delivered Customer Complex Orders in Penny Pilot Options and Non-Penny Pilot Options in Section II symbols.
Category C rebates are paid to members executing electronically-delivered Customer Complex Orders
Category D rebates are paid to members executing electronically-delivered Customer Simple Orders in Select Symbols in Section I. Rebates are paid on PIXL Orders in Section I symbols that execute against non-Initiating Order interest.
The Exchange is proposing to amend Categories B and C to offer rebates on qualifying
The Exchange filed a proposed rule change to amend its Rules to permit Complex Orders in PIXL.
The Exchange proposes to amend Category D to offer members a similar
The Exchange believes that offering members the opportunity to obtain rebates from PIXL transactions, whether in Simple or Complex Orders, will incentivize members to transact a greater number of PIXL Orders.
The Exchange also proposes to make technical amendments to the text of Category A to clarify rule text and conform the text to the new language which the Exchange proposes to add pursuant to this rule change.
The Exchange believes that its proposal to amend its Pricing Schedule is consistent with Section 6(b) of the Act
The Exchange's proposal to amend Categories B and C of the Customer Rebate Program to pay rebates on qualifying Customer PIXL Complex Orders in Section I (Category C) and II (Category B) symbols, provided those transactions are contra to non-Initiating Order interest,
The Exchange's proposal to amend Category D of the Customer Rebate Program to pay rebates on qualifying Customer PIXL Orders in Section I Select Symbols provided those transactions are contra to non-Initiating Order interest and also pay Customer PIXL Order rebates on all orders greater than 999 contracts regardless of the contra-party is reasonable because the Exchange desires to incentivize members to transact a greater number of Simple Orders in PIXL. Today, the Exchange offers a rebate for Simple Orders in PIXL under Category A of the Customer Rebate Program.
The Exchange believes that the proposals to amend Categories B, C and D of the Customer Rebate Program to pay rebates on Customer Simple and Complex Orders in PIXL, respectively, in Section I and II symbols, provided those transactions are contra to non-Initiating Order interest,
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 Exchange believes that its proposal to amend Category B, C and D of the Customer Rebate Program does not impose an undue burden on competition because the Exchange is offering to pay Customer rebates on qualifying PIXL Simple and Complex Orders in Section I and II symbols, respectively, provided those transactions are contra to non-Initiating Order interest, to all participants. The Exchange is also offering to pay Customer rebates on PIXL Simple and Complex Orders in Section I and II symbols, respectively, on all qualifying orders greater than 999 contracts regardless of the contra party for all market participants. These rebates should attract Customer PIXL Simple and Complex Order flow to the Exchange and benefit all market participants through the increased liquidity such order flow will bring to the PIXL auction in terms of order interaction. Today, the Exchange pays rebates on PIXL Simple Orders only in Category A of the Customer Rebate Program. With this proposal, the Exchange is providing an opportunity to obtain Customer rebates by transacting both Simple and Complex Orders in PIXL, respectively, in all categories of the Customer Rebate Program.
The Exchange operates in a highly competitive market, comprised of eleven exchanges, in which market participants can easily and readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or rebates to be inadequate. Accordingly, the fees that are assessed and the rebates paid by the Exchange described in the above proposal are influenced by these robust market forces and therefore must remain competitive with fees charged and rebates paid by other venues and therefore must continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than competing venues.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views, and
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Phlx-2013-68 and should be submitted on or before July 22, 2013.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 30, 2013, NASDAQ OMX PHLX LLC (the “Exchange” or “Phlx”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Phlx proposes to amend Rule 1080 to accommodate Complex Orders in PIXL. Specifically, current Phlx Rule 1080(n) provides that a Phlx member (an “Initiating Member”) may electronically submit for execution an order it represents as agent on behalf of a public customer, broker-dealer, or any other entity (a “PIXL Order”) against principal interest or against any other order it represents as agent (an “Initiating Order”).
In order for a Complex Order to initiate a PIXL Auction, the Complex Order must be of a conforming ratio
In order to initiate a PIXL Auction for a Complex Order (“Complex Order PIXL Auction”), the Initiating Member must mark the Complex PIXL Order for Auction processing, and specify either: (1) a single price at which it seeks to execute the PIXL Order (a “stop price”); or (2) that it is willing to either: (a) stop the entire order at a single stop price and auto-match responses to the Complex Order PIXL Auction (“PAN responses” or “Complex Order PAN responses”) and trading interest at a price or prices that improve the stop price to a specified price (a “Not Worse Than” or “NWT” price); or (b) stop the entire order at a single stop price and auto-match all PAN responses and trading interest at or better than the stop
Like PIXL Auctions for simple orders, Complex Order PIXL Auctions will last for one second, unless the Complex Order PIXL Auction terminates early.
As with a simple order PIXL Auction, a Complex Order PIXL Auction will conclude at the earlier of the end of the Auction period
The Exchange also proposes to modify its existing rules to provide that all PIXL Orders submitted during the final two seconds of the trading session will not be eligible to initiate an Auction and will be rejected.
Order execution and allocation in a Complex PIXL Auction is similar to order execution and allocation in a simple order PIXL Auction.
If the Initiating Member selected the “stop and NWT” price option of the Complex Order PIXL Auction, the Complex PIXL Order will be executed in the following order: (i) First to Complex Orders and PAN responses at prices better than the NWT price, as well as to quotes and orders which comprise the cPBBO if such cPBBO is better than the NWT price, pursuant to the Allocation Algorithm and (ii) next, to Complex Orders and PAN responses, as well as to quotes and orders which comprise the cPBBO at the end of the Auction, at the Initiating Member's NWT price and at prices better than or equal to the Initiating Member's stop price, beginning with the NWT price.
If a Complex Order PIXL Auction concludes due to the cPBBO or the Complex Order book crossing the Complex PIXL Order stop price,
Finally, the proposed rule change provides for the execution of a Complex PIXL Order when the Complex Order PIXL Auction price matches a Complex Order book price on the same side of the market as the Complex PIXL Order. Specifically, the proposal provides that if the Complex Order PIXL Auction price is the same as that of a Complex Order on the Complex Order Book on the same side of the market as the Complex PIXL Order, the PIXL Order may only be executed at a price that is at least one minimum price improvement increment better than the resting order's limit price; or if such resting order's limit price is equal to or crosses the stop price, then the entire PIXL Order will trade at the stop price with all better priced interest being considered for execution at the stop price.
The Exchange believes that that the proposed execution and allocation of Complex PIXL Orders ensures and maintains the priority of established interest as Complex PIXL Orders must be stopped at a price which improves upon all interest in the Phlx XL system at the time of receipt.
The Exchange proposes that Complex PIXL Orders may consist of a stock/ETF component, but such Complex PIXL Orders will only execute against Complex Orders or PAN responses that also include the stock/ETF component,
In addition, the Exchange proposes to provide that when the short sale price test in Rule 201 of Regulation SHO
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
By allowing Phlx members to enter complex orders into the PIXL Auction, the Commission believes that the proposal could provide opportunities for complex orders to receive price improvement. Under the proposal, a complex order entered into the PIXL Auction must be of a conforming ratio and must be stopped at a price that is better than the best net price (debit or credit) (1) available on Phlx's Complex Order book regardless of the Complex Order book size; and (2) achievable from the best Phlx bids and offers for the individual options (an “improved net price”), provided in either case that such price is equal to or better than the PIXL Order's limit price.
The Commission notes that the complex order spread priority rules contained in Phlx Rule 1080, Commentary .08(c)(iii), will continue to apply to Complex PIXL Orders.
As described more fully above, the Exchange's proposal provides specific rules for Complex PIXL Orders which have a stock or ETF component.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ proposes to amend NASDAQ Rule 4630(e), which governs the trading in Commodity-Related Securities.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements
The Exchange proposes to amend NASDAQ Rule 4630(e) consistent with a rule change previously made by NYSE Arca in 2010 to its equities rules in an immediately effective rule filing (the “NYSE Arca filing”).
The NYSE Arca filing, in part, amended Commentary .01(a) to NYSE Arca Equities Rule 5.2(j)(6) (“Commentary .01(a)”). The portion of that amendment that is the focus of this filing affected NYSE Arca's listing standards for Commodity-Linked Securities. Specifically, the deletion included removing the prohibition that a registered market maker in Commodity-Linked Securities could not also act as a market maker or function in any capacity involving market-making responsibilities in the commodity reference asset or the components underlying that commodity reference asset. As amended, NASDAQ Rule 4630(e) would similarly remove this prohibition, which states that a registered market maker in a Commodity-Related Security is prohibited from acting or registering as a market maker in any commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security.
NASDAQ Rule 4630(e), as amended, would be similar to current Commentary .01(a) and would similarly continue to provide that a member acting as a registered market maker in a Commodity-Related Security must file with the Exchange's regulation department in a manner prescribed by such department and keep current a list identifying all accounts for trading in commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security, in which the market maker holds an interest, over which it may exercise investment discretion, or in which it shares in the profits and losses.
Additionally, the amended NASDAQ rule would remain consistent with Commentary .01(a) since it would also continue to provide that no market maker shall trade in, or exercise investment discretion with respect to, such underlying commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives, in an account in which a market maker, directly or indirectly, controls trading activities, or has an interest in the profits or losses thereof, that has not been reported as required by the rule.
NASDAQ Rule 4630(e), as amended, also would remain consistent with NASDAQ Rules 4630(d) and (g) so that a member acting as a registered market maker in a Commodity-Related Security remains obligated to establish adequate information barriers when such market maker engages in inter-departmental communications. Members should refer to NASD/NYSE Joint Memo on Chinese Wall Policies and Procedures (NASD Notice to Members 91-45) for guidance on the “`minimum elements' of adequate Chinese Wall policy and procedures.”
In the context of approving a similar proposal by NYSE Arca, the Commission stated that, “while information barriers are not specifically required under the proposal, a [firm's] business model or business activities may dictate that an information barrier or a functional separation be part of the appropriate set of policies and procedures that would be reasonably designed to achieve compliance with applicable securities law and regulations, and with applicable Exchange rules.”
The NASDAQ rules discussed above serve to ensure that market makers in a Commodity-Related Security would continue to have in place the appropriate policies and procedures with regard to also acting as a market maker in any commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security. This amendment does not lessen the protection of members from risks associated with integrated market making and any possible misuse of non-public information.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Specifically, NASDAQ believes that the change to remove the restriction in NASDAQ Rule 4630(e) that a member acting as a registered market maker in a Commodity-Related Security shall not act or register as a market maker in any commodities, futures contracts, options on futures contracts, forward contracts, commodity swaps, or other related derivatives underlying such Commodity-Related Security will remove impediments to and perfect the mechanism of a free and open market by providing the same flexibility to NASDAQ that is already available to NYSE Arca regarding the market maker activities for Commodity-Related Securities.
Additionally, NASDAQ Rules 4630(d) and (g), in connection with NASDAQ Rule 4630(e), as amended, would continue to serve to prevent fraudulent and manipulative acts and practices, as well as to protect investors and the public interest from concerns that may be associated with integrated market making and any possible misuse of non-public information.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, the Exchange believes the proposal is pro-competitive and is proposed as a competitive response to the NYSE Arca filing. The Exchange believes this proposed rule change, which governs the trading in Commodity-Related Securities is necessary to permit fair competition among the exchanges.
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)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved. The Exchange has provided the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change.
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-NASDAQ-2013-085 and should be submitted on or before July 22, 2013.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Norstra Energy Inc. (“Norstra”). Norstra is a Nevada corporation based in South Lake, Texas, and its stock is currently quoted on OTC Link, operated by OTC Markets Group, Inc. under the symbol NORX. Questions have arisen concerning the adequacy and accuracy of press releases and other public statements concerning Norstra's business operations.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of Norstra.
By the Commission.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 2.500 (2
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6469). The mailing address is U.S. Department of State, SA-5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522-0505.
Pursuant to Section 7031(b)(3) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012 (Div. I, P.L. 112-74) (“the Act”), as carried forward by the Further Continuing Appropriations Act, 2013 (Div. F, P.L. 113-6), and Department of State Delegation of Authority Number 245-1, I hereby determine that it is important to the national interest of the United States to waive the requirements of Section 7031(b)(1) of the Act and similar provisions of law in prior year Acts with respect to the Dominican Republic and I hereby waive this restriction.
This determination and the accompanying Memorandum of Justification shall be reported to the Congress, and the determination shall be published in the
Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (formerly Subpart Q) during the Week Ending June 8, 2013. The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
Application of Danish Air Transport A/S requesting the issuance of an exemption and a foreign air carrier permit authorizing it to engage in: (a) Foreign charter air transportation of persons, property, and mail from any point or points behind any Member State of the European Union via any point or points in any Member State and via intermediate points to any point or points in the United States and beyond; (b) foreign charter air transportation of persons, property, and mail between any point or points in the United States and any point or points in any member of the European Common Aviation Area; (c) foreign charter cargo air transportation between any point or points in the United States and any other point or points; (d) other charters pursuant to the prior approval requirements; and (e) charter transportation authorized by any additional route rights made available to European Union carriers in the future.
The following Agreements were filed with the Department of Transportation under the Sections 412 and 414 of the Federal Aviation Act, as amended (49 U.S.C. 1382 and 1384) and procedures governing proceedings to enforce these provisions. Answers may be filed within 21 days after the filing of the application.
AGENCIES: Federal Highway Administration (FHWA), DOT.
Notice and Request for Comment.
The Indiana Department of Transportation (INDOT) has requested FHWA approval of INDOT's proposed plan to close a 2-mile portion of I-65 in Indiana (from I-70/I-65 south split interchange to I-70/I-65 north split interchange) for a period of 93 days, from Wednesday, August 21, 2013, to Thursday, November 21, 2013. The closure is requested to accommodate the reconstruction on the Virginia Avenue Bridge, which consists of replacing the northbound and southbound bridge girders and lowering the pavement section from south of Morris Street to north of Fletcher Avenue. The request is based on the provisions in 23 CFR 658.11 which authorizes the deletion of segments of the federally designated routes that make up the National Network designated in Appendix A of 23 CFR Part 658 upon approval by the FHWA.
The FHWA seeks comments from the general public on this request submitted by INDOT for a deletion in accordance with 23 CFR 658.11(d) for the considerations discussed in this notice.
Comments must be received on or before 30 days after date of publication in the
The letter of request along with justifications can be viewed electronically at the docket established for this notice at
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, or fax comments to (202) 493-2251. Alternatively, comments may be submitted via the Federal eRulemaking Portal at
Ms. Crystal Jones, Office of Freight Management and Operations, Office of Operations, (202) 366-2976, Mr. Bill Winne, Office of the Chief Counsel, (202) 366-0791, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, and Mr Richard Marquis, FHWA Division Administrator-Indiana Division, (317) 226-7483. Office hours for the FHWA are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Federal eRulemaking portal at:
An electronic copy of this document may also be downloaded from Office of the Federal Register's home page at:
The FHWA is responsible for enforcing the Federal regulations applicable to the National Network of highways that can safely and efficiently accommodate the large vehicles authorized by provisions of the Surface Transportation Assistance Act of 1982, as amended, designated in accordance with 23 CFR part 658 and listed in Appendix A. In accordance with 23 CFR 658.11, the FHWA may approve deletions or restrictions of the Interstate System or other National Network routes based upon specified justification criteria in 23 CFR 658.11(d)(2). These deletions are then published in the
The INDOT has submitted a request to FHWA for approval of the temporary closure of a segment of I-65, from the I-70/I-65 south split interchange to the I-70/I-65 north split interchange, for a period of 93 days, from the period beginning Wednesday, August 21, 2013, through Thursday, November 21, 2013. The incoming request and supporting documents, including maps, may be viewed electronically at the docket established for this notice at
Along its length, I-65 through Indianapolis, Indiana, passes under several bridges, many with limited vertical clearance. The bridges at Virginia Avenue, Fletcher Avenue, Calvary Street, and Morris Street have vertical clearances ranging from 13′ 11″, to 14′ 6”. This project will increase vertical clearances to a minimum 14′ 9” at each of these locations.
For the duration of the requested temporary closure, eastbound and westbound I-70 traffic will be detoured to I-465, around the south side of Indianapolis. Northbound and southbound I-65 traffic will be detoured to I-465. The INDOT states that the temporary closure of this segment of I-65 to general traffic should have negligible impact to interstate commerce.
Commercial motor vehicles of the dimensions and configurations described in 23 CFR 658.13 and 658.15 serving the impacted area may use the alternate routes listed above. Vehicles servicing the businesses bordering the impacted area will still be able to do so by also using the alternative routes noted above to circulate around the restricted area. In addition, vehicles not serving businesses in the restricted area but, currently using I-65 and the local street system to reach their ultimate destinations, will be able to use I-465 to access the alternative routes. A map depicting the alternative routes is available electronically at the docket established for this notice at
The INDOT will increase the Hoosier Helper workforce (freeway service patrols) along I-465 to address incident response and minimize any incident impacts. The INDOT will issue a press release to inform the community of the closure and will post the closure in
The INDOT has reached out to Federal, State, and local agencies to ensure a collaborative and coordinated effort to address the logistical challenges of reconstructing this section of I-65. The Illinois Department of Transportation and the Ohio Department of Transportation will be informed of this proposal. Additionally, efforts have been made to work with the various transit systems as well as the American Trucking Association. The INDOT has notified the Indiana Motor Trucking Association of this plan to temporarily close I-65, and has agreed to work with them to provide information targeted at the trucking industry.
This request to close I-65 to general traffic on or around August 21, 2013, was prepared for the INDOT in accordance with the Indianapolis Metropolitan Planning Organization's Transportation Plan. The INDOT's proposal has been approved by the city of Indianapolis Department of Public Works and INDOT will coordinate the closure with the Indianapolis Metropolitan Police Department.
The FHWA seeks comments on this request for temporary deletion from the National Network for considerations in accordance with 23 CFR 658.11(d).
23 U.S.C. 127 and 315; 49 U.S.C. 31111, 31112, and 31114; 23 CFR Part 658.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
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, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Revenue Procedure 98-32, Electronic Federal Tax Payment System (EFTPS) Programs for Reporting Agents.
Written comments should be received on or before August 30, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Martha R. Brinson at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3869, or through the Internet at
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This Circular is published annually, solely for the information of Federal bond-approving officers and persons required to give bonds to the United States. Copies of the Circular and interim changes may be obtained directly from the internet or from the Government Printing Office (202) 512-1800. (Interim changes are published in the
The most current list of Treasury authorized companies is always available through the Internet at
The following companies have complied with the law and the regulations of the U.S. Department of the Treasury. Those listed in the front of this Circular are acceptable as sureties and reinsurers on Federal bonds under Title 31 of the United States Code, Sections 9304 to 9308 [See Note (a)]. Those listed in the back are acceptable only as reinsurers on Federal bonds under 31 CFR 223.3(b) [See Note (e)].
If we can be of any assistance, please feel free to contact the Surety Bond Branch at (202) 874-6850.
Pennsylvania General Insurance Company (NAIC #21962)
COMPANIES HOLDING CERTIFICATES OF AUTHORITY AS ACCEPTABLE REINSURING COMPANIES UNDER SECTION 223.3(b) OF TREASURY CIRCULAR NO. 297. [See Note (e)]
1 Allied World Reinsurance Company (NAIC #22730) changed its name to Allied World Insurance Company. The effective date of the name change is December 11, 2012.
2 AMERICAN CONTRACTORS INDEMNITY COMPANY (NAIC# 10216) is required by state law to conduct business in the state of Texas as TEXAS BONDING COMPANY. However, business is conducted in all other covered states as AMERICAN CONTRACTORS INDEMNITY COMPANY.
3 Harleysville Mutual Insurance Company (NAIC # 14168) merged with and into Nationwide Mutual Insurance Company (NAIC #23787), effective May 1, 2012. The surviving corporation is Nationwide Mutual Insurance Company.
4 International Fidelity Insurance Company's (NAIC# 11592) name is very similar to another company that is NOT certified by this Department. Please ensure that the name of the Company and the state of incorporation are exactly as they appear in this Circular. Do not hesitate to contact the Company to verify the authenticity of a bond.
5 NATIONS BONDING COMPANY (NAIC# 11595) formally changed its name to Merchants National Bonding,
6 Pennsylvania General Insurance Company (NAIC# 21962) changed its name to Pennsylvania Insurance Company and redomesticated from Pennsylvania to Iowa. The effective date of the name change and redomestication is December 12, 2012.
7 UNIVERSAL UNDERWRITERS INSURANCE COMPANY (NAIC# 41181) redomesticated from Kansas to Illinois. The effective date of the redomestication is December 31, 2012.
(a) All Certificates of Authority expire June 30, and are renewable July 1, annually. Companies holding Certificates of Authority as acceptable sureties on Federal bonds are also acceptable as reinsuring companies.
(b) The Underwriting Limitations published herein are on a
(c) A surety company
License information in this Circular is provided to the Treasury Department by the companies themselves.
(d) FEDERAL PROCESS AGENTS: Treasury Approved surety companies are required to appoint Federal process agents in accord with 31 U.S.C. 9306 and 31 CFR 224.
(e) Companies holding Certificates of Authority as acceptable reinsuring companies are acceptable only as reinsuring companies on Federal bonds and may not directly write Federal bonds.
(f) Some companies may be Approved
Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees. The amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, which requires the NRC to recover through fees approximately 90 percent of its budget authority in Fiscal Year (FY) 2013, not including amounts appropriated for Waste Incidental to Reprocessing (WIR) and amounts appropriated for generic homeland security activities. The President signed the Consolidated and Further Continuing Appropriations Act of 2013 on March 26, 2013, giving the NRC a total appropriation of $985.6 million for FY 2013. The NRC's required fee recovery amount for the FY 2013 budget is approximately $864.0 million. After accounting for billing adjustments, the total amount to be billed as fees is approximately $859.6 million.
This final rule is effective on August 30, 2013.
Please refer to Docket ID NRC-2012-0211 when contacting the NRC about the availability of information for this final rule. You may access information related to this final rule, which the NRC possesses and is publicly available, by any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Arlette Howard, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1481, email:
Over the past 40 years the NRC (and earlier as the Atomic Energy Commission (AEC), the NRC's predecessor agency), has assessed and continues to assess fees to applicants and licensees to recover the cost of its regulatory program. The NRC's cost recovery principles for fee regulation are governed by two major laws, the Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 483(a)) and OBRA-90 (42 U.S.C. 2214), as amended. The NRC is required each year, under OBRA-90, as amended, to recover approximately 90 percent of its budget authority, not including amounts appropriated for WIR, and amounts appropriated for generic homeland security activities (non-fee items), through fees to NRC licensees and applicants. The following discussion explains the various court decisions, congressional mandates and Commission policy which form the basis for the NRC's current fee policy and cost recovery methodology, which in turn form the basis for this rulemaking.
In 1968, the AEC adopted its first license fee schedule in response to Title V of the IOAA. This statute authorized and encouraged Federal regulatory agencies to recover to the fullest extent possible costs attributable to services provided to identifiable recipients. The AEC established fees under 10 CFR part 170 in two sections, §§ 170.21 and 170.31. Section 170.21 established a flat application fee for filing applications for nuclear power plant construction permits. Fees were set by a sliding scale depending on plant size; for construction permits and operating license fees, and annual fees were levied on holders of Commission operating licenses under 10 CFR part 50. Section 170.31 established application fees and annual fees for materials licenses. Between 1971 and 1973, the 10 CFR part 170 fee schedules were adjusted to account for increased costs resulting from expanded services which included health and safety inspection services and manufacturing licenses and environmental and antitrust reviews. The annual fees assessed by the Commission began to include inspection costs and the material fee schedule expanded from 16 to 28 categories for fee assessment. During this period, the schedules continued to be modified based on the Commission's policy to recover costs attributable to identifiable beneficiaries for the processing of applications, permits and licenses, amendments to existing licenses, and health and safety inspections relating to the licensing process.
On March 4, 1974, the U.S. Supreme Court rendered major decisions in two cases,
In November 1974, the AEC published proposed revisions to its license fee schedule (39 FR 39734; November 11, 1974). The Commission reviewed public comments while simultaneously considering alternative approaches for the proper evaluation of expanding services and proper assessment based upon increasing costs of Commission services.
While this effort was under way, the Court of Appeals for the District of Columbia issued four opinions in fee cases—
On January 19, 1975, under the Energy Reorganization Act of 1974, the licensing and related regulatory functions of the AEC were transferred to the NRC. The NRC, prompted by recent court decisions concerning fee policy, developed new guidelines for use in fee development and the establishment of a new proposed fee schedule.
The NRC published a summary of guidelines as a proposed rule (42 FR 22149; May 2, 1977), and the Commission held a public meeting to discuss the summary of guidelines on May 12, 1977. A summary of the comments on the guidelines and the NRC's responses were published in the
The U.S. Court of Appeals for the Fifth Circuit upheld the Commission's fee guidelines on August 24, 1979, in
(1) The NRC had the authority to recover the full cost of providing services to identifiable beneficiaries;
(2) The NRC could properly assess a fee for the costs of providing routine inspections necessary to ensure a licensee's compliance with the Atomic Energy Act of 1954, as amended, and with applicable regulations;
(3) The NRC could charge for costs incurred in conducting environmental reviews required by the National Environmental Policy Act (42 U.S.C. 4321);
(4) The NRC properly included the costs of uncontested hearings and of administrative and technical support services in the fee schedule;
(5) The NRC could assess a fee for renewing a license to operate a low-level radioactive waste burial site; and
(6) The NRC's fees were not arbitrary or capricious.
In 1986, Congress passed the Consolidated Omnibus Budget Reconciliation Act (COBRA) (H.R. 3128), which required the NRC to assess and collect annual charges from persons licensed by the Commission. These charges, when added to other amounts collected by the NRC, totaled about 33 percent of the NRC's estimated budget. In response to this mandate and separate congressional inquiry on NRC fees, the NRC prepared a report on alternative approaches to annual fees and published the decision on annual fees for power reactor operating licenses in 10 CFR part 171 for public comment (51 FR 24078; July 1, 1986). The final rule (51 FR 33224; September 18, 1986) included a summary of the comments and the NRC's related responses. The decision was challenged in the D.C. Circuit Court of Appeals and upheld in its entirety in
In 1987, the NRC retained the established annual and 10 CFR part 170 fee schedules in the
In 1988, the NRC was required to collect 45 percent of its budget authority through fees. The NRC published a proposed rule that included an hourly increase recommendation for public comment in the
In 1989, the Commission was required to collect 45 percent of its budget authority through fees. The NRC published a proposed fee rule in the
On November 5, 1990, with respect to 10 CFR part 171, the Congress passed OBRA-90, requiring that the NRC collect 100 percent of its budget authority, less appropriations from the Nuclear Waste Fund (NWF), through the assessment of fees. The OBRA-90 allowed the NRC to collect user fees for the recovery of the costs of providing special benefits to identifiable applicants and licensees in compliance with 10 CFR part 170 and under the authority of the IOAA (31 U.S.C. 9701). These fees recovered the cost of inspections, applications for new licenses and license renewals, and requests for license amendments. The OBRA-90 also allowed the NRC to recover annual fees under 10 CFR part 171 for generic regulatory costs not otherwise recovered through 10 CFR part 170 fees. In compliance with OBRA-90, the NRC adjusted its fee regulations in 10 CFR parts 170 and 171 to be more comprehensive without changing their underlying basis. The NRC published these regulations in a proposed rule for public comment in the
In FYs 1991-2000, the NRC continued to comply with OBRA-90 requirements in its proposed and final rules. In 1991, the NRC's annual fee rule methodology was challenged and upheld by the D.C. Circuit Court of Appeals in
The FY 2001 Energy and Water Development Appropriation Act amended OBRA-90 to decrease the NRC's fee recovery amount by 2 percent per year beginning in FY 2001, until the fee recovery amount was 90 percent in FY 2005.
The FY 2006 Energy and Water Development Appropriation Act extended this 90 percent fee recovery requirement for FY 2006. Section 637 of the Energy Policy Act of 2005 made the 90 percent fee recovery requirement permanent in FY 2007.
In addition to the requirements of OBRA-90, as amended, the NRC was also required to comply with the requirements of the Small Business Regulatory Enforcement Fairness Act of 1996. This Act encouraged small businesses to participate in the regulatory process, and required agencies to develop more accessible sources of information on regulatory and reporting requirements for small businesses and create a small entity compliance guide. The NRC, in order to ensure equitable fee distribution among all licensees, developed a fee methodology specifically for small entities that consisted of a small entity definition and the Small Business Administration's most common receipts-based size standards as described under the North American Industry Classification System (NAICS) identifying industry codes. The NAICS is the standard used by Federal statistical agencies to classify business establishments for the purposes of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The purpose of this fee methodology was to lessen the financial impact on small entities through the establishment of a maximum fee at a reduced rate for qualifying licensees.
In FY 2009, the NRC computed the small entity fee based on a biennial adjustment of 39 percent, a fixed percent applied to the prior 2-year weighted average for all fee categories that have small entity licensees. The NRC also used 39 percent to compute the small entity annual fee for FY 2005, the same year the agency was required to recover only 90 percent of its budget authority. The methodology allowed small entity licensees to be able to predict changes in their fees in the biennial year based on the materials users' fees for the previous 2 years. Using a 2-year weighted average lessened the fluctuations caused by programmatic and budget variables within the fee categories for the majority of small entities.
The agency also determined that there should be a lower-tier annual fee based on 22 percent of the maximum small entity annual fee to further reduce the impact of fees. In FY 2011, the NRC applied this methodology which would have resulted in an upper-tier small entity fee of $3,300, an increase of 74 percent or $1,400 from FY 2009, and a lower-tier small entity fee of $700, an increase of 75 percent or $300 from FY 2009. The NRC determined that implementing this increase would have a disproportionate impact upon small entity licensees and performed a trend analysis to calculate the appropriate fee tier levels. From FY 2000 to FY 2008, $2,300 was the maximum upper-tier small entity fee and $500 was the maximum lower-tier small entity fee. Therefore, in order to lessen financial hardship for small entity licensees, the NRC concluded that for FY 2011, $2,300 should be the maximum upper-tier small entity fee and $500 should be the lower-tier small entity fee.
The NRC published the FY 2013 proposed fee rule on March 7, 2013 (78 FR 14880), to solicit public comment on its proposed revisions to 10 CFR parts 170 and 171. By the close of the comment period (April 8, 2013), the NRC received responses from nine commenters that were considered in this final rulemaking. The majority of the comments were received from the uranium industry, nuclear power industry, and the general public. The comments have been grouped by issues and are addressed in a collective response.
Regarding the comment that the FY 2013 hourly rate is 16 percent higher than the rate charged in 2008, twice the rate of inflation since 2008, including impact of cumulative hour rate increases on all licensees, the NRC acknowledges this comment. However, the hourly rate is not based on the inflation rate but calculated using established fee methodology in compliance with OBRA-90, as amended, which requires the NRC recover 90 percent of its budget authority through the collection of fees assessed to licensees. The NRC is committed to ensuring the hourly rate, to the maximum extent practicable, reflects the cost of NRC services to licensees, in a manner which is fair and equitable to all licensees.
Regarding the comment expressing concern about the lack of cost containment, the NRC disagrees with this comment. Cost containment is not a viable option for the NRC because, as stated above, the NRC is required by law to collect 90 percent of its budget authority through user fees. The NRC
Regarding the comment requesting that the NRC require more efficient processing services subject to hourly fees, the NRC disagrees with this comment. As previously mentioned, the staff constantly searches for methods to increase efficient processing of services, such as the pre-submission review, which has improved application quality and review efficiency. The staff also has increased its environmental review efficiency by using the Generic Environmental Impact Statement (GEIS), starting its Section 106 cultural and historic resource consultations earlier, and using alternate approaches to cultural and historic resource surveys.
In reference to the comment stating that the NRC should provide typical timeframes for activities, establish deadlines and prepare cost estimates to reduce hourly fees resulting in timely actions by the NRC, the staff already provides estimated costs and schedules. The staff has provided to industry its estimate for completing a new license or expansion review in January 2011 and May 2013. These estimates were presented during conferences, the latest being the 2013, National Mining Association, Uranium Recovery Workshop. The staff also presented tentative schedules on the NRC's Web site,
Regarding the comment that the NRC should identify the hourly rate as it pertains to charges for its oversight staff (direct overhead), the burden rate placed on all onsite staff, and the burden overhead rate or additional contract staff which is charged to owners, the NRC disagrees with this comment. The NRC charges one hourly rate to licensees which is computed by dividing the sum of the recoverable budgeted resources for mission direct program salaries and benefits, mission indirect program support, agency corporate support and the Inspector General (IG), by mission direct full time equivalents (FTE) hours. The mission direct FTE hours are the product of the mission direct FTE multipled by the hours per direct FTE. The only budgeted resources excluded from the hourly rate are those for contract activities related to mission direct and fee relief activities. See Section III.A, Amendments to Part 170 of Title 10 of the
Regarding the comment requesting estimates of future rulemaking costs for the uranium recovery program to be submitted to industry, the NRC disagrees with this comment. Preliminary estimates for rulemaking costs submitted for budget formulation and annual fee calculations are for
The FY 2013 budget also includes additional resources for licensing board activities anticipated for at least five new facility or expansion applications. Licensing board activities could include addressing standing and contentions, preparing and responding to appeals, and providing testimony in various phases of hearings. Since uranium recovery hearings are contested, these costs are not directly billed to specific licensees, except if the contested hearing involves an action related to the U.S. Government's national security-related initiative. Therefore, the agency must recovery these funds through annual fees.
In reference to the comment stating the proposed increased fee for 11e(2) disposal incidental to existing tailing sites is not proportionate to increases for conventional and heap leach mills, basic
Regarding industry assistance to the NRC in petitioning Congress for additional resources for uranium recovery and budgeting for future initiatives, the NRC has sufficient resources necessary to perform its mission. The budgeted resources allow the NRC staff to prioritize its uranium recovery work by addressing currently licensed activities first since these facilities are active and align with our mission of ensuring health and safety of operating facilities. The NRC then budgets and reviews new license and expansion applications consistent with the anticipated number of applications and the uncertainty associated with scheduled license submissions. The current resources are sufficient to allow the staff to review 8 to 10 major applications at any given time. However, the staff has deferred the reviews of certain expansion and new license applications, the longest of which was 6 months to focus on other high-priority items. Furthermore, planned guidance development has been delayed to free resources to address the top two priorties. As more sites are licensed, the number of license maintenance activities will increase; thereby, reducing the number of major applications that can be reviewed at any given time. The NRC is aware of this situation and will provide resources commensurate with the uranium recovery workload.
Regarding the comments that design certification requests be submitted as petitions for rulemaking and streamlining of licensing regulatory processes to use standardized and pre-approved designs and to process new applications along with existing applications, the NRC agrees with the comments. On multiple occasions, the staff has stated it would entertain a strategy of certifying standard designs as a means of streamlining the application and review processes for new facilities or expansions. This can be accomplished by multiple methods. One method is the design certification where a specific aspect of a uranium recovery facility is standardized and codified. Reactor designs, for example, have been certified by the staff and are included in 10 CFR part 52. However, these designs are incorporated into the regulations by a rulemaking, which could be requested under 10 CFR part 2. A second method would involve industry preparing standard designs for certain aspects of uranium recovery facilities, which are reviewed by the staff. Afterwards, the staff documents this review in a published NUREG. Similar to design certifications, this NUREG could be incorporated by reference into license applications. The staff would be willing to discuss such certifications in publicly noticed meetings at industry's request.
In reference to the comments that the NRC is not effectively implementing the GEIS and the MOU between the BLM to achieve greater efficiencies and cost savings, the NRC disagrees with this comment. The staff has effectively utilized the GEIS by referencing the conclusions in the GEIS, as appropriate, within its site-specific supplemental EISs. This has reduced the time required to prepare the supplemental EISs. Furthermore, the MOU between the NRC and the BLM was recently revised to enhance communication and cooperation between the NRC and BLM
Regarding the comment that the NRC first, has made little progress in the Section 106 Tribal Consultation Process and, second, that the Tribal consultation guidance has not been issued, the NRC staff disagrees with the first part of the comment, and agrees with the second part. Regarding the comment on the progress on the process, during the Commission Briefing on Uranium Recovery on February 20, 2013, the NRC staff discussed the challenges that the Section 106 process has presented in recent years. The NRC has experienced a substantial expansion of the Section 106 consultation activities for the ISR projects. There has been a significant increase in the number of Native American Tribes interested in each ISR project, from a few Tribes prior to 2010, to a current average of 20 Tribes per project. This has resulted in a significant increase in the number and complexity of consultations and the need for the NRC staff to enhance its efforts to ensure that historic properties of religious and cultural significance to the Tribes are identified.
However, the NRC staff recently has made progress and facilitated Tribal field surveys for four ISR project sites. Furthermore, Tribal field surveys for two ISR project sites are expected to be completed in Spring/Summer 2013. As stated in Section A of this document, the staff also has increased its Section 106 consultation efficiency by starting its Section 106 cultural and historic resource consultations earlier and using alternate approaches to cultural and historic resource surveys.
Regarding the comment on the guidance, the staff agrees that the high-level Section 106 guidance has not been issued. However, the NRC staff is currently in the process of developing this high-level Section 106 guidance specific for uranium recovery projects based on knowledge and experience gained through work efforts on the NRC's Tribal Protocol Manual and the NRC's Tribal Policy Statement. The NRC staff expects to issue a draft of the Section 106 guidance for public comment by spring 2014.
Regarding the comment concerning the NRC fee structure, the NRC believes the current fee methodology used to compute the hourly rate fairly distributes the mission direct and indirect costs to all licensees. The methodology also ensures that the costs of specific services provided by the NRC staff that benefit specific licensees, which includes activities associated with noncompliance, are charged to those licensees who require and/or receive these services by NRC staff as opposed to imposing these costs on all licensees. The costs associated with these specific services are assessed in the form of hourly fees billed for the NRC staff time expended to ensure licensee compliance to the NRC's regulations.
The NRC encourages public input through the petition for rulemaking process which is a system by which any member of the public can request that the NRC develop, modify, or rescind a regulation. Information on the petition for rulemaking process is available on the NRC's public Web site at
The NRC assesses two types of fees to meet the requirements of OBRA-90. First, user fees, presented in 10 CFR part 170 under the authority of the IOAA, recover the NRC's costs of providing special benefits to identifiable applicants and licensees. For example, the NRC assesses these fees to cover the costs of inspections, applications for new licenses and license renewals, and requests for license amendments. Second, annual fees, presented in 10 CFR part 171 under the authority of OBRA-90, recover generic regulatory costs not otherwise recovered through 10 CFR part 170 fees. Under this rulemaking, the NRC continues the fee cost recovery principles through the adjustment of fees without changing the underlying principles of the NRC fee policy in order to ensure that the NRC continues to comply with the statutory requirements of OBRA-90, the AEA, and the IOAA.
On March 26, 2013, President Obama signed the Consolidated and Further Continued Appropriations Act of 2013, giving the NRC a total appropriation of $985.6 million. Accordingly, in compliance with the Atomic Energy Act of 1954, as amended, and OBRA-90, the NRC is amending its licensing, inspection, and annual fees to recover approximately 90 percent of its FY 2013 budget authority, less the appropriations for non-fee items. The amount of the NRC's required fee collections is set by law and is, therefore, outside the scope of this rulemaking.
In compliance with the AEA and OBRA-90, the NRC amends its licensing, inspection, and annual fees to recover approximately 90 percent of its FY 2013 budget authority less the appropriations for non-fee items. The NRC's total budget authority for FY 2013 is $985.6 million. The non-fee items excluded outside of the fee base includes $0.8 million for WIR activities and $24.9 million for generic homeland security activities. Based on the 90 percent fee-recovery requirement, the NRC is required to recover $864.0 million in FY 2013 through 10 CFR part 170 licensing and inspection fees and through 10 CFR part 171 annual fees. This amount is $45.5 million less than the amount for recovery in FY 2012, a decrease of 5.0 percent. The FY 2013 fee recovery amount increases by $200,000 as a result of billing adjustments (sum of unpaid current year invoices (estimated) minus payments for prior year invoices), and reduces by $20.9 million for unbilled prior year invoices under 10 CFR part 170 and $4.6 million for current year collections made the termination of two operating reactors.
Table I summarizes the budget and fee recovery amounts for FY 2013. The FY 2012 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
In this final fee rule, the NRC amends fees for power reactors, spent fuel storage/reactor decommissioning, non-power reactors, uranium recovery facilities, most fuel facilities, some small materials users, and the U.S. Department of Energy's (DOE) transportation license. The 10 CFR part 170 fees decrease by $15.3 million from the proposed fee rule estimate of $363.3 million primarily due to a reduction in budgetary resources and licensing actions. As a result of this change, the total annual fees decrease by $50.1 million from the proposed rule estimate of $561.7 million. In general, the percentage changes in most annual fees compared to the previous year are relatively small due to a decrease in the NRC's appropriation as compared to FY 2012. The FY 2013 appropriation also resulted in a small decrease to the average FTE rate that is used to calculate the budget allocation to each of the fee classes and fee-relief activities in this final rule.
The NRC estimates that $348 million will be recovered from 10 CFR part 170 fees under this final fee rule. This represents an increase of approximately 0.8 percent as compared to the actual 10 CFR part 170 collections of $345.2 million in FY 2012. The NRC derived the FY 2013 estimate for the 10 CFR part 170 fee collections from the latest billing data that includes the collection of prior year 10 CFR part 170 unbilled invoices which occurred as result of the adoption of a new accounting system in October 2010. In October 2012, the NRC became aware that certain project managers' and resident inspectors' (including senior resident inspectors) hours were not being billed for services rendered by the NRC. This error resulted in the NRC under billing some of its licensees for a total of $20.9 million for the past eight quarters under 10 CFR part 170. The NRC is statutorily obligated to collect the appropriate fees for services provided; therefore, the NRC applied the estimate of this collection of fees to FY 2013 10 CFR part 170 billings and the FY 2013 annual fees have annually been adjusted to account for this additional revenue collection. The FY 2013 billing adjustments estimated that the unpaid current year invoices total $2.2 million and the estimated receipt of payments total $2 million for previous year invoices. Additionally, the billing adjustments include $4.6 million in the current year collections for the termination of two operating reactors in FY 2013.
The remaining $511.5 million is to be recovered through the 10 CFR part 171 annual fees in FY 2013, which is a decrease of approximately 8 percent compared to actual 10 CFR part 171 collections of $555.8 million for FY 2012. The change for each class of licensees affected is discussed in Section III.B.3, “Administrative Amendments,” of this document.
The FY 2013 final fee rule is a “major rule” as defined by the Congressional Review Act of 1996 (5 U.S.C. 801-808). Therefore, the NRC's fee schedules for FY 2013 will become effective 60 days after publication of the final rule in the
Materials licensees with annual fees of less than $100,000 are billed annually. Those materials licensees whose license anniversary date during FY 2013 falls before the effective date of the FY 2013 final rule will be billed for the annual fee during the anniversary month of the license at the FY 2012 annual fee rate. Those materials licensees whose license anniversary date falls on or after the effective date of the FY 2013 final rule will be billed for the annual fee at the FY 2013 annual fee rate during the anniversary month of the license, and payment will be due on the date of the invoice.
The NRC is amending 10 CFR parts 170 and 171 as discussed in the following sections.
In FY 2013, the NRC is decreasing the hourly rate to recover the full cost of activities under 10 CFR part 170 and has used this rate to calculate “flat” application fees.
The NRC is making the following changes:
1. Hourly Rate.
The NRC's hourly rate is used in assessing full cost fees for specific services provided, as well as flat fees for certain application reviews. The NRC is changing the current hourly rate of $274 to $272 in FY 2013. This rate would be applicable to all activities for which fees are assessed under §§ 170.21 and 170.31.
The FY 2013 hourly rate is 0.7 percent lower than the FY 2012 hourly rate of $274. The decrease in the hourly rate is due primarily to lower agency budgeted resources and by a small increase in the number of direct FTE. The following paragraphs describe the hourly rate calculation in further detail.
The NRC's hourly rate is derived by dividing the sum of recoverable budgeted resources for (1) mission direct program salaries and benefits; (2) mission indirect program support; and (3) agency corporate support and the Inspector General (IG), by mission direct FTE hours. The mission direct FTE hours are the product of the mission direct FTE multiplied by the hours per direct FTE. The only budgeted resources excluded from the hourly rate are those for contract activities related to mission direct and fee-relief activities.
In FY 2013, the NRC used 1,351 hours per direct FTE, a decrease of 1.5 percent from FY 2012, to calculate the hourly fees. The NRC has reviewed data from
Table II shows the results of the hourly rate calculation methodology. The FY 2012 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
As shown in Table II, dividing the FY 2013 $839.6 million budget amount included in the hourly rate by total mission direct FTE hours (2,285 FTE times 1,351 hours) results in an hourly rate of $272. The hourly rate is rounded to the nearest whole dollar.
The NRC is adjusting current flat application fees in §§ 170.21 and 170.31 to reflect the revised hourly rate of $272. These flat fees are calculated by multiplying the average professional staff hours needed to process the licensing actions by the proposed professional hourly rate for FY 2013.
Biennially, the NRC evaluates historical professional staff hours used to process a new license application for materials users fee categories subject to flat application fees. This is in accordance with the requirements of the Chief Financial Officer's Act. The NRC conducted this biennial review for the FY 2013 fee rule which also included license and amendment applications for import and export licenses.
Evaluation of the historical data in FY 2013 shows that the average number of professional staff hours required to complete licensing actions in the materials program should be increased in some fee categories and decreased in others to more accurately reflect current data for completing these licensing actions. The average number of professional staff hours needed to complete new licensing actions was last updated for the FY 2011 final fee rule. Thus, the revised proposed average professional staff hours in this final fee rule reflect the changes in the NRC licensing review program that have occurred since that time.
This final rule also includes three new fee categories, 2.D. through 2.F, and a modified description of fee category 2.C., which were not included in the proposed fee rule. These changes were introduced in the proposed rule, “Distribution of Source Material to Exempt Persons and to General Licensees and Revision of General License and Exemptions,” dated July 26, 2010 (75 FR 43425), and the rule was published as a final rule on May 29, 2013 (78 FR 32310). The fees for these new fee categories 2.C through 2.F., absent a biennial review, were determined by performing a comparative analysis to related fee categories. As a result, this final fee rule lowers the fees for categories 2.D and 2.E, and increases the fee for category 2.C from those fees listed in the final source material rule to be consistent with the calculated fee changes in this final fee rule; the fee for category 2.F. remains unchanged from that listed in the final source material rule.
In general, the increase in application fees is due to the increased number of hours to perform specific activities based on the biennial review. Application fees for 10 fee categories (2.B., 3.H., 3.M., 3.N., 3.P., 3.R.2., 3.S., 5.A., 7.C., and 10.B. under § 170.31) increase as a result of the average time to process these types of license applications. The decrease in fees for 9 fee categories (2.F. (formerly 2.C.), 3.B., 3.C., 3.I., 3.Q., 4.B., 9.A., 9.C., and 16 under § 170.31) is due to a decrease in average time to process these types of applications. Also, the application fees increase for 3 import and export fee categories (K.4, 15.D, and 15.H under § 170.31).
The amounts of the materials licensing flat fees are rounded so that the fees would be convenient to the user and the effects of rounding would be minimal. Fees under $1,000 are rounded to the nearest $10, fees that are greater than $1,000 but less than $100,000 are rounded to the nearest $100, and fees that are greater than $100,000 are rounded to the nearest $1,000.
The licensing flat fees are applicable for fee categories K.1. through K.5. of § 170.21, and fee categories 1.C., 1.D., 1.F., 2.B., 2.C., 2.D., 2.E., 2.F., 3.A. through 3.S., 4.B. through 9.D., 10.B., 15.A. through 15.L., 15.R., 16, and 17 of § 170.31. Applications filed on or after the effective date of the FY 2013 final fee rule would be subject to the revised fees in the final rule.
This final rule is making the following administrative changes for clarity:
a. § 170.21: Footnote 2 is revised to reflect there are no more applications pending review prior to 1991. The following language is deleted, “For those applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984, and July 2, 1990, rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will be assessed at the applicable rates established by § 170.20, as appropriate, except for topical reports whose costs exceed $50,000. Costs which exceed $50,000 for any topical report, amendment, revision, or supplement to
b. § 170.21: Footnote 4 is revised to include “in 10 CFR part 110.27,” for clarity.
c. § 170.31: The fee category name for 2.A.(1) is changed to include “deconversion,” to reflect the new description and the description for fee category 2.A.(1) is changed to include “or for deconverting uranium hexafluoride in the production of uranium oxides for disposal,” to capture the deconversion of uranium hexafluoride (UF
d. § 170.31: The descriptions for fee categories 1.C., 1.D., and Footnote 4 are changed and a new fee category 1.F. is created to address licenses authorizing greater than critical mass as defined by § 70.4, “Critical Mass.” Under 10 CFR part 170, the fee category 1.C. description includes “of less than a critical mass as defined in § 70.4 of this chapter.
e. § 170.31: The description for fee category 15.D. is revised to exclude language regarding import and export of radioactive waste. The new description reads, “Application for export or import of nuclear material not requiring Commission or Executive Branch review, or obtaining foreign government assurances.”
f. § 170.31: Footnote 3 is revised for clarity because there are no more applications on file prior to 1991 and deletes the following language, “For applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984, and July 2, 1990, rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not be billed to the applicant. Any professional staff- hours expended above those ceilings on or after January 30, 1989, will be assessed at the applicable rates established by § 170.20, as appropriate, except for topical reports for which costs exceed $50,000. Costs which exceed $50,000 for each topical report, amendment, revision, or supplement to a topical report completed or under review from January 30, 1989, through August 8, 1991, will not be billed to the applicant. Any professional hours expended on or after August 9, 1991, will be assessed at the applicable rate established in § 170.20.”
In summary, the NRC is making the following changes to 10 CFR part 170:
1. Establishes a revised professional hourly rate to use in assessing fees for specific services;
2. Revises the license application fees to reflect the FY 2013 hourly rate; and
3. Makes administrative changes to §§ 170.21 and 170.31.
The NRC will use its fee-relief surplus to decrease all licensees' annual fees based on their percentage share of the fee recoverable budget authority. This rulemaking also makes changes to the number of NRC licensees and establishes rebaselined annual fees based on Public Law 112-10. The amendments are described as follows:
The NRC will use its fee-relief surplus to decrease all licensees' annual fees, based on their percentage share of the budget. The NRC will apply the 10 percent of its budget that is excluded from fee recovery under OBRA-90, as amended (fee relief), to offset the total budget allocated for activities that do not directly benefit current NRC licensees. The budget for these fee-relief activities is totaled and then reduced by the amount of the NRC's fee relief. Any difference between the fee-relief and the budgeted amount of these activities results in a fee-relief adjustment (increase or decrease) to all licensees' annual fees, based on their percentage share of the budget, which is consistent with the existing fee methodology.
The FY 2013 budgetary resources for the NRC's fee-relief activities are $89.8 million. The NRC's 10 percent fee-relief amount in FY 2013 is $96.0 million, leaving a $6.2 million fee-relief surplus that will reduce all licensees' annual fees based on their percentage share of the budget. The FY 2013 budget for fee-relief activities decreased from FY 2012 mainly due to a decrease in the FY 2013 NRC appropriated budget even though there was an increase of $1.2 million in the small entity subsidy.
Table III shows the budgeted costs for fee-relief activities and the fee-relief adjusted amount to be allocated to annual fees. The FY 2012 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
Table IV shows how the NRC is allocating the $6.2 million fee-relief surplus adjustment to each license fee class. As explained previously, the NRC is allocating this fee-relief adjustment to each license fee class based on the percent of the budget for that fee class compared to the NRC's total budget. The fee-relief surplus adjustment is subtracted from the required annual fee recovery for each fee class.
Separately, the NRC has continued to allocate the LLW surcharge based on the volume of LLW disposal of three classes of licenses: Operating reactors, fuel facilities, and materials users. Because LLW activities support NRC licensees, the costs of these activities are recovered through annual fees. In FY 2013, this allocation percentage was updated based on review of recent data which reflects the change in the support to the various fee classes. The allocation percentage of LLW surcharge decreased for operating reactors and increased for fuel facilities and materials users compared to FY 2012.
Table IV also shows the allocation of the LLW surcharge activity. For FY 2013, the total budget allocated for LLW activity is $3.4 million. (Individual values may not sum to totals due to rounding.)
The NRC is revising its annual fees in §§ 171.15 and 171.16 for FY 2013 to recover approximately 90 percent of the NRC's FY 2013 budget authority, after subtracting the non-fee amounts and the estimated amount to be recovered through 10 CFR part 170 fees. The 10 CFR part 170 collections estimates for this final fee rule is $348 million, an increase of $2.8 million from the FY 2012 final fee rule. The total amount to be recovered through annual fees for this final fee rule is $511.6 million, a decrease of $44.3 million from the FY 2012 final fee rule. The required annual fee collection in FY 2012 was $555.8 million.
The Commission has determined (71 FR 30721; May 30, 2006) that the agency should proceed with a presumption in favor of rebaselining when calculating annual fees each year. Under this method, the NRC's budget is analyzed in detail, and budgeted resources are allocated to fee classes and categories of licensees. The Commission expects that for most years there will be budgetary and other changes that warrant the use of the rebaselining method.
As compared with the FY 2012 annual fees, the FY 2013 final rebaselined fees decrease for two classes of licensees: operating reactors and DOE Transportation Activities. The annual fees increase for five classes of licensees: spent fuel storage/reactor and decommissioning, research and test reactors, fuel facilities and most materials and uranium recovery licensees.
The NRC's total fee recoverable budget, as mandated by law, decreases by $45.6 million for FY 2013 compared to FY 2012. The FY 2013 budget was allocated to the fee classes that the budgeted activities support. The annual fees increase for spent fuel storage/reactor and decommissioning, research and test reactors, fuel facilities, and most materials and uranium recovery licensees while annual fees for operating reactors and DOE Transportation Activities decrease.
The factors affecting all annual fees include the distribution of budgeted costs to the different classes of licenses (based on the specific activities the NRC will perform in FY 2013); the estimated 10 CFR part 170 collections for the various classes of licenses, and allocation of the fee-relief surplus adjustment to all fee classes. The percentage of the NRC's budget not subject to fee recovery remained at 10 percent from FY 2012 to FY 2013.
Table V shows the rebaselined fees for FY 2013 for a representative list of categories of licensees. The FY 2012 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)
The work papers (ADAMS Accession No. ML13154A025) that support this final fee rule show in detail the allocation of the NRC's budgeted resources for each class of licenses and how the fees are calculated. The work papers are available as indicated in Section V, “Availability of Documents,” of this document.
Paragraphs a. through h. of this section describes budgetary resources allocated to each class of licenses and the calculations of the rebaselined fees. Individual values in the tables presented in this section may not sum to totals due to rounding.
The FY 2013 budgeted costs to be recovered in the annual fees assessment to the fuel facility class of licenses (which includes licensees in fee categories 1.A.(1)(a), 1.A.(1)(b), 1.A.(2)(a), 1.A.(2)(b), 1.A.(2)(c), 1.E., and 2.A.(1) under § 171.16) are approximately $32.9 million. This value is based on the full cost of budgeted resources associated with all activities that support this fee class, which is reduced by estimated 10 CFR part 170 collections and adjusted for allocated generic transportation resources and fee-relief. In FY 2013, the LLW surcharge for fuel facilities is added to the allocated fee-relief adjustment (see Table IV in Section III.B.1, “Application of Fee-Relief and Low-Level Waste Surcharge,” of this document). The summary calculations used to derive this value are presented in Table VI for FY 2013, with FY 2012 values shown for comparison. (Individual values may not sum to totals due to rounding.)
The decrease in total budgeted resources for the fuel facilities fee class from FY 2012 to FY 2013 is primarily due to reduced licensing actions. Although fuel facilities received an adjustment of approximately $153,000 for prior year unbilled 10 CFR part 170 adjustments, the annual fee for fuel facilities increases from FY 2012 to FY 2013 primarily due to the estimated decreased 10 CFR part 170 billings due to reduced budgetary resources for licensing actions. The NRC allocates the total required annual fee recovery amount to the individual fuel facility licensees, based on the effort/fee determination matrix developed for the FY 1999 final fee rule (64 FR 31447; June 10, 1999). In the matrix included in the publicly available NRC work papers, licensees are grouped into categories according to their licensed activities (i.e., nuclear material enrichment, processing operations, and material form) and the level, scope, depth of coverage, and rigor of generic regulatory programmatic effort applicable to each category from a safety and safeguards perspective. This methodology can be applied to determine fees for new licensees, current licensees, licensees in unique license situations, and certificate holders.
This methodology is adaptable to changes in the number of licensees or certificate holders, licensed or certified material and/or activities, and total programmatic resources to be recovered through annual fees. When a license or certificate is modified, it may result in a change of category for a particular fuel facility licensee, as a result of the methodology used in the fuel facility effort/fee matrix. Consequently, this change may also have an effect on the fees assessed to other fuel facility licensees and certificate holders. For example, if a fuel facility licensee amends its license/certificate (e.g., decommissioning or license termination) that results in it not being subject to 10 CFR part 171 costs applicable to the fee class, then the budgeted costs for the safety and/or safeguards components will be spread among the remaining fuel facility licensees/certificate holders.
The methodology is applied as follows. First, a fee category is assigned,
Each year, the NRC's fuel facility project managers and regulatory analysts determine the level of effort associated with regulating each of these facilities. This is done by assigning, for each fuel facility, separate effort factors for the safety and safeguards activities associated with each type of regulatory activity. The matrix includes 10 types of regulatory activities, including enrichment and scrap/waste-related activities (see the work papers for the complete list). Effort factors are assigned as follows: One (low regulatory effort), five (moderate regulatory effort), and 10 (high regulatory effort). The NRC then totals separate effort factors for safety and safeguard activities for each fee category.
The effort factors for the various fuel facility fee categories are summarized in Table VII. The value of the effort factors shown, as well as the percent of the total effort factor for all fuel facilities, reflects the total regulatory effort for each fee category (not per facility). This results in spreading of costs to other fee categories. The Uranium Enrichment fee category factors have shifted with minimal increases and decreases between safety and safeguards factors compared to FY 2012.
For FY 2013, the total fee recovery budget for safety activities, before the fee-relief adjustment is made, are $16.9 million. This amount is allocated to each fee category based on its percent of the total regulatory effort for safety activities. For example, if the total effort factor for safety activities for all fuel facilities is 100, and the total effort factor for safety activities for a given fee category is 10, that fee category will be allocated 10 percent of the total budgeted resources for safety activities. Similarly, the total fee recovery budget of $15 million for safeguards activities is allocated to each fee category based on its percent of the total regulatory effort for safeguards activities. The fuel facility fee class' portion of the fee-relief adjustment of $0.4 million is allocated to each fee category based on its percent of the total regulatory effort for both safety and safeguards activities. The annual fee per licensee is then calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category. The fee (rounded) for each fuel facility is summarized in Table VIII.
The total FY 2013 budgeted costs to be recovered through annual fees assessed with the uranium recovery class (which includes licensees in fee categories 2.A.(2)(a), 2.A.(2)(b), 2.A.(2)(c), 2.A.(2)(d), 2.A.(2)(e), 2.A.(3), 2.A.(4), 2.A.(5), and 18.B. under § 171.16) are approximately $1 million. The derivation of this value is shown in Table IX, with FY 2012 values shown for comparison purposes.
The increase in total budgeted resources allocated to this fee class in FY 2013 is primarily due to an increase in licensing board activities. The annual fees increase for uranium recovery facilities primarily due to rulemaking and licensing board activities as well as a decrease in budgeted cost for the Uranium Mill Tailings Radiation Control Act (UMTRCA).
Since FY 2002, the NRC has computed the annual fee for the uranium recovery fee class by allocating the total annual fee amount for this fee class between the DOE and the other licensees in this fee class. The NRC regulates DOE's Title I and Title II activities under the UMTRCA. The Congress established the two programs, Title I and Title II under UMTRCA, to protect the public and the environment from uranium milling. The UMTRCA Title I program is for remedial action at abandoned mill tailings sites where tailings resulted largely from production of uranium for the weapons program. The NRC also regulates DOE's UMTRCA Title II program, which is directed toward uranium mill sites licensed by the NRC or Agreement States in or after 1978.
In FY 2013, the annual fee assessed to DOE includes recovery of the costs specifically budgeted for the NRC's UMTRCA Title I and II activities, plus 10 percent of the remaining annual fee amount, including generic/other costs (minus 10 percent of the fee relief adjustment), for the uranium recovery class. The NRC assesses the remaining 90 percent generic/other costs minus 90 percent of the fee relief adjustment, to the other NRC licensees in this fee class that are subject to annual fees.
The costs to be recovered through annual fees assessed to the uranium recovery class are shown in Table X.
The DOE fee decreases by 10 percent in FY 2013 compared to FY 2012 due to reduced UMTRCA budgeted costs. The annual fee for most uranium recovery licensees increases due to licensing board activities.
The NRC will continue to use a matrix which is included in the work papers to determine the level of effort associated with conducting the generic regulatory actions for the different (non-DOE) licensees in this fee class. The weights derived in this matrix are used to allocate the approximately $300,621 annual fee amount to these licensees. The use of this uranium recovery annual fee matrix was established in the FY 1995 final fee rule (60 FR 32217; June 20, 1995). The FY 2013 matrix is described as follows.
First, the methodology identifies the categories of licenses included in this fee class (besides DOE). These categories are conventional uranium mills and heap leach facilities, uranium
Second, the matrix identifies the types of operating activities that support and benefit these licensees. The activities related to generic decommissioning/reclamation are not included in the matrix because they are included in the fee-relief activities. Therefore, they are not a factor in determining annual fees. The activities included in the matrix are operations, waste operations, and groundwater protection. The relative weight of each type of activity is then determined, based on the regulatory resources associated with each activity. The operations, waste operations, and groundwater protection activities have weights of zero, five, and 10, respectively, in the matrix.
Each year, the NRC determines the level of benefit to each licensee for generic uranium recovery program activities for each type of generic activity in the matrix. This is done by assigning, for each fee category, separate benefit factors for each type of regulatory activity in the matrix. Benefit factors are assigned on a scale of zero to 10 as follows: zero (no regulatory benefit), five (moderate regulatory benefit), and 10 (high regulatory benefit). These benefit factors are first multiplied by the relative weight assigned to each activity (described previously). The NRC then calculates total and per licensee benefit factors for each fee category. These benefit factors reflect the relative regulatory benefit associated with each licensee and fee category.
The benefit factors per licensee and per fee category, for each of the non-DOE fee categories included in the uranium recovery fee class are shown in Table XI.
Applying these factors to the approximately $300,621 in budgeted costs to be recovered from non-DOE uranium recovery licensees results in the total annual fees for each fee category. The annual fee per licensee is calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category, as summarized in Table XII.
The total budgeted costs to be recovered from the power reactor fee class in FY 2013 in the form of annual fees is $424.2 million as shown in Table XIII. The FY 2012 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
The decrease in budgetary resources for FY 2013 is primarily due to reduced licensing actions and the completion of three major licensing reviews (Vogtle, Summer and Westinghouse Advanced Passive 1000 (AP 1000). Consequently, more resources are being applied to the implementation of the task force recommendations regarding the Fukushima Dai-ichi accident in Japan (“Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident” (ADAMS Accession No. ML111861807), dated July 12, 2011.
The annual fees for power reactors decrease in FY 2013 due to increased 10 CFR part 170 estimates and an adjustment of $20.7 million for prior year unbilled invoices under 10 CFR part 170. The budgeted costs to be recovered through annual fees to power reactors are divided equally among the 102 power reactors licensed to operate due to the withdrawal of two operating reactors, Crystal River and Kewaunee which results in annual fee of $4,159,000 per reactor for FY 2013. The withdrawal also results in a credit of $4.6 million for the 10 CFR part 171 collections for FY 2013. Additionally, each power reactor licensed to operate would be assessed the FY 2013 spent fuel storage/reactor decommissioning annual fee of $231,000. The total FY 2013 annual fee is $4,390,000 for each power reactor licensed to operate. The annual fees for power reactors are presented in § 171.15.
For FY 2013, budgeted costs of $33.4 million for spent fuel storage/reactor decommissioning are to be recovered through annual fees assessed to 10 CFR part 50 power reactors, and to 10 CFR
The value of total budgeted resources for this fee class is higher in FY 2013 than in FY 2012 due to rulemaking activities regarding the update of the Waste Confidence rule. The required annual fee recovery amount is divided equally among 123 licensees, resulting in an FY 2013 annual fee of $231,000 per licensee.
Approximately $330,000 in budgeted costs is to be recovered through annual fees assessed to the test and research reactor class of licenses for FY 2013. Table XV summarizes the annual fee calculation for the research and test reactors for FY 2013. The FY 2012 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
Although research and test reactors received an adjustment of approximately $112,000 for prior year 10 CFR part 170 unbilled adjustments, the increase in annual fees for research and test reactors from FY 2012 to FY 2013 is primarily due to reduced activity under 10 CFR part 170. The required annual fee recovery amount is divided equally among the four research and test reactors subject to annual fees and results in an FY 2013 annual fee of $81,600 for each licensee.
The agency does not anticipate receiving an application for a rare earth facility this fiscal year, so no budgeted resources are allocated to this fee class, and no annual fee will be published in FY 2013.
For FY 2013, budget costs of $31.2 million for material users are to be recovered through annual fees assessed to 10 CFR part 30 licensees. Table XVI shows the calculation of the FY 2013 annual fee amount for materials users licensees. The FY 2012 values are shown for comparison. Note the following fee categories under § 171.16 are included in this fee class: 1.C., 1.D., 1.F., 2.B. through 2.F., 3.A. through 3.S., 4.A. through 4.C., 5.A., 5.B., 6.A., 7.A. through 7.C., 8.A., 9.A. through 9.D., 16, and 17. (Individual values may not sum to totals due to rounding.)
The total required annual fees to be recovered for most materials users licensees increase in FY 2013 mainly for oversight activities and changes resulting from biennial review hours and inspection priorities.
To equitably and fairly allocate the $31.2 million in FY 2013 budgeted costs to be recovered in annual fees assessed to the approximately 3,000 diverse materials users licensees, the NRC will continue to base the annual fees for each fee category within this class on the 10 CFR part 170 application fees and estimated inspection costs for each fee category. Because the application fees and inspection costs are indicative of the complexity of the license, this approach continues to provide a proxy for allocating the generic and other regulatory costs to the diverse categories of licenses based on the NRC's cost to regulate each category. This fee calculation also continues to consider the inspection frequency (priority), which is indicative of the safety risk and resulting regulatory costs associated with the categories of licenses.
The annual fee for these categories of materials users' licenses is developed as follows:
The constant is the multiple necessary to recover approximately $22.6 million in general costs (including allocated generic transportation costs) and is 1.52 for FY 2013. The average inspection cost is the average inspection hours for each fee category multiplied by the hourly rate of $272. The inspection priority is the interval between routine inspections, expressed in years. The inspection multiplier is the multiple necessary to recover approximately $8.2 million in inspection costs, and is 2.3 for FY 2013. The unique category costs are any special costs that the NRC has budgeted for a specific category of licenses. For FY 2013, approximately $153,000 in budgeted costs for the implementation of revised 10 CFR part 35, Medical Use of Byproduct Material (unique costs), has been allocated to holders of NRC human-use licenses.
The annual fee to be assessed to each licensee also includes a share of the fee-relief surplus adjustment of approximately $175,000 allocated to the materials users fee class (see Section III.B.1, “Application of Fee-Relief and Low-Level Waste Surcharge,” of this document), and for certain categories of these licensees, a share of the approximately $338,000 surcharge costs allocated to the fee class. The annual fee for each fee category is shown in § 171.16(d).
Table XVII shows the calculation of the FY 2013 generic transportation budgeted resources to be recovered through annual fees. The FY 2012 values are shown for comparison. (Individual values may not sum to totals due to rounding.)
The NRC must approve any package used for shipping nuclear material before shipment. If the package meets NRC requirements, the NRC issues a Radioactive Material Package Certificate of Compliance (CoC) to the organization requesting approval of a package. Organizations are authorized to ship radioactive material in a package approved for use under the general licensing provisions of 10 CFR part 71, “Packaging and Transportation of Radioactive Material.” The resources associated with generic transportation activities are distributed to the license fee classes based on the number of CoCs benefitting (used by) that fee class, as a proxy for the generic transportation resources expended for each fee class.
The total FY 2013 budgetary resources for generic transportation activities including those to support DOE CoCs is $5.5 million. The decrease in 10 CFR part 171 resources in FY 2013 is primarily due to decreased budgetary resources for regulatory programs. Generic transportation resources associated with fee-exempt entities are not included in this total. These costs are included in the appropriate fee-relief category (e.g., the fee-relief category for nonprofit educational institutions).
Consistent with the policy established in the NRC's FY 2006 final fee rule (71 FR 30721; May 30, 2006), the NRC will recover generic transportation costs unrelated to DOE as part of existing annual fees for license fee classes. The NRC will continue to assess a separate annual fee under § 171.16, fee category 18.A., for DOE Transportation Activities. The amount of the allocated generic resources is calculated by multiplying the percentage of total CoCs used by each fee class (and DOE) by the total generic transportation resources to be recovered.
The distribution of these resources to the license fee classes and DOE is shown in Table XVIII. The distribution is adjusted to account for the licensees in each fee class that are fee-exempt. For example, if four CoCs benefit the entire research and test reactor class, but only four of 31 research and test reactors are subject to annual fees, the number of CoCs used to determine the proportion
The NRC assesses an annual fee to DOE based on the 10 CFR part 71 CoCs it holds and does not allocate these DOE-related resources to other licensees' annual fees, because these resources specifically support DOE. Note that DOE's annual fee includes a reduction for the fee-relief surplus adjustment (see Section III.B.1, “Application of Fee-Relief and Low-Level Waste Surcharge,” of this document), resulting in a total annual fee of $1,238,000 for FY 2013. The annual fee decreases in FY 2013 are primarily due to reduced budgeted resources for the NRC's transportation activities.
Regarding small entity fees, the NRC conducted its 2013 biennial review of the small entity fees to determine if the fees should be changed. The NRC applied the fee methodology developed in FY 2009 that applies a fixed percentage of 39 percent to the prior 2-year weighted average of materials users' fees. This resulted in an upper-tier small entity fee increase from $2,300 to $3,500 and a lower-tier fee increase from $500 to $800, which is a 52 percent and 60 percent increase, respectively. Implementing this increase would have a disproportionate impact upon the NRC's small licensees compared to other licensees. Therefore, the NRC staff revised the increase to 21 percent for upper-tier fee which is the same limit applied in the FY 2011 biennial review. The NRC staff is amending the upper-tier small entity fee to $2,800 and amending the lower-tier small entity fee to $600 for FY 2013. The NRC staff believes these fees are reasonable and provide relief to small entities while at the same time recovering from those licensees some of the NRC's costs for activities that benefit them.
This final rule makes certain administrative changes for clarity:
a. § 171.16: Footnote 1 is revised for clarity and deletes the following language, “Licensees paying annual fees under category 1.A.(1) are not subject to the annual fees for categories 1.C. and 1.D. for sealed sources authorized in the license.”
b. § 171.16: New Footnote 15 is added for clarity and reads as follows, “Licensees paying annual fees under category 1.A., 1.B., and 1.E. are not subject to the annual fees for categories 1.C., 1.D., and 1.F. for sealed sources authorized in the license.”
c. § 171.16: Reference to Footnote 4 is removed and replaced with reference to Footnote 15 in fee categories 1.C. and 1.D. Fee category 1.F. is revised to reference Footnote 15 for clarity.
d. § 171.16(c): The description for small entities is revised to include “10 CFR part 72 licensees,” as eligible to apply for small entity status. The staff believes this inclusion remedies the unintended consequence of the consolidation of 10 CFR part 72 licenses under § 171.15 being excluded for treatment as a small business entity for fee purposes.
e. The NRC revises the lower-tier receipts-based threshold of $450,000 to $485,000 to reflect approximately the same percentage adjustment as the NRC's upper-tier receipts-based standard adjustment from $6.5 to $7 million which was published as a final rule in the
f. § 171.16: The name for fee category 2.A.(1) includes “deconversion,” to reflect the new description and the description for fee category 2.A.(1) is changed to include “or for deconverting uranium hexafluoride in the production of uranium oxides for disposal,” to capture the deconversion of uranium hexafluoride (UF
g. § 171.16: The descriptions for fee categories 1.C. and 1.D. are changed; and a new fee category 1.F. is created to address licenses authorizing greater than critical mass as defined by § 70.4, “Critical Mass.” Under 10 CFR part 170, the fee category 1.C. description would include “of less than a critical mass as defined in § 70.4 of this chapter.” The fee category 1.D. description is changed to, “All other special nuclear material licenses, except licenses authorizing special nuclear material in sealed or unsealed form in combination that would constitute a critical mass as defined in § 70.4 of this, for which the licensee shall pay the same fees as those under category 1.A.” A new fee category 1.F. reads, “For special nuclear materials licenses in sealed or unsealed form of greater than a critical mass as defined in § 70.4 of this chapter.”
h. § 171.19(d) is revised for clarity and changes “and 3.A. through 9.D.” to “3.A. through 3.F., and 3.H. through 9.D.”
i. § 171.16: Footnote 7 is revised for clarity and deletes the following language, “they are charged an annual fee in other categories while they are licensed to operate,” and adds the following language, “their decommissioning fees are covered by other fees.”
In summary, the NRC is making the following changes to 10 CFR part 171:
1. Uses the NRC's fee-relief surplus to reduce all licensees' annual fees, based on their percentage share of the NRC budget;
2. Establishes rebaselined annual fees for FY 2013;
3. Increases the maximum small entity fee from $2,300 to $2,800, and the lower-tier fee from $500 to $600; and
4. Makes administrative changes to §§ 171.16 and 171.19(d).
The Plain Writing Act of 2010, (Pub. L. 111-274), requires Federal agencies to write documents in a clear, concise, well-organized manner. The NRC has written this document to be consistent with the Plain Writing act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The NRC is making the documents identified in the following table available to interested persons through one or more of the following methods, as indicated. To access documents related to this action, see the
The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 3701) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies, unless using these standards is inconsistent with applicable law or is otherwise impractical. The NRC is amending the licensing, inspection, and annual fees charged to its licensees and applicants, as necessary, to recover approximately 90 percent of its budget authority in FY 2013, as required by the OBRA-90, as amended. This action does not constitute the establishment of a standard that contains generally applicable requirements.
The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental assessment nor an environmental impact statement has been prepared for this final rule. By its very nature, this regulatory action does not affect the environment and, therefore, no environmental justice issues are raised.
This final rule does not contain information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement, unless the requesting document displays a currently valid Office of Management and Budget control number.
Under OBRA-90, as amended, and the AEA, the NRC is required to recover 90 percent of its budget authority, or $985.6 million in FY 2013. The NRC established fee methodology guidelines for 10 CFR part 170 in 1978, and more fee methodology guidelines through the establishment of 10 CFR part 171 in 1986. In subsequent rulemakings, the NRC has adjusted its fees without changing the underlying principles of its fee policy in order to ensure that the NRC continues to comply with the statutory requirements for cost recovery in OBRA-90 and the AEA.
In this rulemaking, the NRC continues this long-standing approach. Therefore, the NRC did not identify any alternatives to the current fee structure guidelines and did not prepare a regulatory analysis for this rulemaking.
Section 604 of the Regulatory Flexibility Act requires agencies to perform an analysis that considers the impact of a rulemaking on small entities. The NRC's regulatory flexibility analysis for this final rule is available as indicated in Section V, Availability of Documents, of this document, and a summary is provided in the following paragraphs.
The NRC is required by the OBRA-90, as amended, to recover approximately 90 percent of its FY 2013 budget authority through the assessment of user fees. The OBRA-90 further requires that the NRC establish a schedule of charges that fairly and equitably allocates the aggregate amount of these charges among licensees.
The FY 2013 final rule establishes the schedules of fees necessary for the NRC to recover 90 percent of its budget authority for FY 2013. The final rule results in some increased annual fees charged to certain licensees and holders of certificates, registrations, and approvals, and decreased annual fees charged to others. Licensees affected by these increased fees include those who qualify as small entities under the NRC's size standards in § 2.810.
The NRC prepared a FY 2013 biennial regulatory analysis in accordance with the FY 2001 final rule (66 FR 32467; June 14, 2001). This rule also stated the small entity fees will be reexamined every 2 years and in the same years the NRC conducts the biennial review of fees as required by the Office of Chief Financial Officer Act.
For this final rule, the small entity fees increase to $2,800 for the maximum upper-tier small entity fee and increase to $600 for the lower-tier small entity as result of the biennial review which factored in the number of increased hours for application reviews and inspections in the fee calculations. The next small entity biennial review is scheduled for FY 2015.
Additionally, the Small Business Regulatory Enforcement Fairness Act requires all Federal agencies to prepare a written compliance guide for each rule for which the agency is required by 5 U.S.C. 604 to prepare a regulatory flexibility analysis. The NRC, in compliance with the law, has prepared the “Small Entity Compliance Guide,” which is available as indicated in Section V, Availability of Documents, of this document.
The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required. A backfit analysis is not required because these amendments do not require the
In accordance with the Congressional Review Act of 1996 (5 U.S.C. 801-808), the NRC has determined that this action is a major rule and has verified the determination with the Office of Information and Regulatory Affairs of the Office of Management and Budget.
Byproduct material, Import and export licenses, Intergovernmental relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, Special nuclear material.
Annual charges, Byproduct material, Holders of certificates, Registrations, Approvals, Intergovernmental relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, Special nuclear material.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 170 and 171.
Independent Offices Appropriations Act sec. 501 (31 U.S.C. 9701); Atomic Energy Act sec. 161(w) (42 U.S.C. 2201(w)); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Chief Financial Officers Act sec. 205 (31 U.S.C. 901, 902); Government Paperwork Elimination Act sec. 1704, (44 U.S.C. 3504 note); Energy Policy Act secs. 623, Energy Policy Act of 2005 sec. 651(e), Pub. L. 109-58, 119 Stat.783 (42 U.S.C. 2201(w), 2014, 2021, 2021b, 2111).
Fees for permits, licenses, amendments, renewals, special projects, 10 CFR part 55 re-qualification and replacement examinations and tests, other required reviews, approvals, and inspections under §§ 170.21 and 170.31 will be calculated using the professional staff-hour rate of $272 per hour.
Consolidated Omnibus Budget Reconciliation Act sec. 7601 Pub. L. 99-272, as amended by sec. 5601, Pub. L. 100-203 as amended by sec. 3201, Pub. L. 101-239, as amended by sec. 6101, Pub. L. 101-508, as amended by sec. 2903a, Pub. L. 102-486 (42 U.S.C. 2213, 2214), and as amended by Title IV, Pub. L. 109-103 (42 U.S.C. 2214); Atomic Energy Act sec. 161(w), 223, 234 (42 U.S.C. 2201(w), 2273, 2282); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005 sec. 651(e), Pub. L. 109-58 (42 U.S.C. 2014, 2021, 2021b, 2111).
(b)(1) The FY 2013 annual fee for each operating power reactor which must be collected by September 30, 2013, is $4,390,000.
(2) The FY 2013 annual fees are comprised of a base annual fee for power reactors licensed to operate, a base spent fuel storage/reactor decommissioning annual fee, and associated additional charges (fee-relief adjustment). The activities comprising the spent storage/reactor decommissioning base annual fee are shown in paragraphs (c)(2)(i) and (ii) of this section. The activities comprising the FY 2013 fee-relief adjustment are shown in paragraph (d)(1) of this section. The activities comprising the FY 2013 base annual fee for operating power reactors are as follows:
(c)(1) The FY 2013 annual fee for each power reactor holding a 10 CFR part 50 license that is in a decommissioning or possession-only status and has spent fuel onsite, and for each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 license, is $231,000.
(2) The FY 2013 annual fee is comprised of a base spent fuel storage/reactor decommissioning annual fee (which is also included in the operating power reactor annual fee shown in paragraph (b) of this section) and a fee-relief adjustment. The activities comprising the FY 2013 fee-relief adjustment are shown in paragraph (d)(1) of this section. The activities comprising the FY 2013 spent fuel storage/reactor decommissioning rebaselined annual fee are:
(d)(1) The fee-relief adjustment allocated to annual fees includes a surcharge for the activities listed in paragraph (d)(1)(i) of this section, plus the amount remaining after total budgeted resources for the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section are reduced by the appropriations the NRC receives for these types of activities. If the NRC's appropriations for these types of activities are greater than the budgeted resources for the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section for a given FY, annual fees will be reduced. The activities comprising the FY 2013 fee-relief adjustment are as follows:
(2) The total FY 2013 fee-relief adjustment allocated to the operating power reactor class of licenses is a $5.3 million fee-relief surplus, not including the amount allocated to the spent fuel storage/reactor decommissioning class. The FY 2013 operating power reactor fee-relief adjustment to be assessed to each operating power reactor is approximately a $33,920 fee relief surplus. This amount is calculated by dividing the total operating power reactor fee-relief surplus adjustment, $5.3 million, by the number of operating power reactors (102).
(3) The FY 2013 fee-relief adjustment allocated to the spent fuel storage/reactor decommissioning class of licenses is a $243,000 fee-relief surplus. The FY 2013 spent fuel storage/reactor decommissioning fee-relief adjustment to be assessed to each operating power reactor, each power reactor in decommissioning or possession-only status that has spent fuel onsite, and to each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 license, is a $2,000 fee-relief surplus. This amount is calculated by dividing the total fee-relief adjustment costs allocated to this class by the total number of power reactor licenses, except those that permanently ceased operations and have no fuel onsite, and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license.
(e) The FY 2013 annual fees for licensees authorized to operate a research and test (nonpower) reactor licensed under part 50 of this chapter, unless the reactor is exempted from fees under § 171.11(a), are as follows:
(c) A licensee who is required to pay an annual fee under this section, in addition to 10 CFR part 72 licenses, may qualify as a small entity. If a licensee qualifies as a small entity and provides the Commission with the proper certification along with its annual fee payment, the licensee may pay reduced annual fees as shown in the following table. Failure to file a small entity certification in a timely manner could result in the receipt of a delinquent invoice requesting the outstanding balance due and/or denial of any refund that might otherwise be due. The small entity fees are as follows:
(d) The FY 2013 annual fees are comprised of a base annual fee and an allocation for fee-relief adjustment. The activities comprising the FY 2013 fee-relief adjustment are shown for convenience in paragraph (e) of this section. The FY 2013 annual fees for materials licensees and holders of certificates, registrations, or approvals subject to fees under this section are shown in the following table:
(e) The fee-relief adjustment allocated to annual fees includes the budgeted resources for the activities listed in paragraph (e)(1) of this section, plus the total budgeted resources for the activities included in paragraphs (e)(2) and (3) of this section, as reduced by the appropriations the NRC receives for these types of activities. If the NRC's appropriations for these types of activities are greater than the budgeted resources for the activities included in paragraphs (e)(2) and (3) of this section for a given FY, a negative fee-relief adjustment (or annual fee reduction) will be allocated to annual fees. The activities comprising the FY 2013 fee-relief adjustment are as follows:
(d) Annual Fees of less than $100,000 must be paid as billed by the NRC. Materials license annual fees that are less than $100,000 are billed on the anniversary date of the license. The materials licensees that are billed on the anniversary date of the license are those covered by fee categories 1.C., 1.D., 1.F., 2.A.(2) through 2.A.(5), 2.B. through 2.F., 3.A. through 3.F., and 3.H. through 9.D.
For the Nuclear Regulatory Commission.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule implements certain functions of the Affordable Insurance Exchanges (“Exchanges”). These specific statutory functions include determining eligibility for and granting certificates of exemption from the individual shared responsibility payment described in section 5000A of the Internal Revenue Code. Additionally, this final rule implements the responsibilities of the Secretary of Health and Human Services, in coordination with the Secretary of the Treasury, to designate other health benefits coverage as minimum essential coverage by providing that certain coverage be designated as minimum essential coverage. It also outlines substantive and procedural requirements that other types of individual coverage must fulfill in order to be certified as minimum essential coverage.
Zachary L. Baron, (301) 492-4478, for provisions related to exemptions from the individual shared responsibility payment. Cam Moultrie Clemmons, (410) 786-1565, for provisions related to minimum essential coverage.
To ensure effective and efficient implementation of the insurance market reforms, the Affordable Care Act requires a nonexempt individual to maintain minimum essential coverage or make a shared responsibility payment. The Affordable Care Act specifies the categories of individuals who are eligible to receive exemptions from the individual shared responsibility payment under section 5000A of the Internal Revenue Code (the Code), which provides nonexempt individuals with a choice: maintain minimum essential coverage for themselves and any nonexempt family members or include an additional payment with their federal income tax return. Some individuals are exempt from the shared responsibility payment, including members of recognized religious sects whose tenets conflict with acceptance of the benefits of private or public insurance and those who do not have an affordable health insurance coverage option available. Section 1311(d)(4)(H) of the Affordable Care Act (42 U.S.C. 18031(d)(4)(H)) directs the new health insurance marketplaces, called Affordable Insurance Exchanges (Exchanges), to issue certifications of exemption from the individual shared responsibility payment to eligible individuals. Section 1411 of the Affordable Care Act (42 U.S.C. 18081) generally provides procedures for determining an individual's eligibility for various benefits relating to health coverage, including exemptions from the application of section 5000A of the Code.
This final rule sets forth standards and processes under which the Exchange will conduct eligibility determinations for, and grant certificates of exemption from, the individual shared responsibility payment. Furthermore, it supports and complements rulemaking conducted by the Secretary of the Treasury with respect to section 5000A of the Code, as added by section 1501(b) of the Affordable Care Act. The intent of this rule is to implement the relevant provisions while continuing to afford states substantial discretion in the design and operation of an Exchange, with greater standardization provided where directed by the statute or where there are compelling practical, efficiency, or consumer protection reasons.
Under section 5000A(f)(1)(E) of the Code, the Secretary of the Department of Health and Human Services (the Secretary), in coordination with the Secretary of the Treasury, may designate other health benefits coverage as minimum essential coverage. This final rule provides standards for determining whether certain other types of health insurance coverage constitute minimum essential coverage and procedures for plan sponsors to follow for a plan to be identified as minimum essential coverage under section 5000A of the Code. This rule also designates certain types of existing health coverage as minimum essential coverage. Other types of coverage, not statutorily specified and not designated as minimum essential coverage in this regulation, may be recognized as minimum essential coverage if certain substantive and procedural requirements are met as set forth in this rule. These additional categories of minimum essential coverage, both those designated per se and those that may apply for recognition are neither group health insurance coverage nor individual health insurance. Consumers with types of coverage that are recognized as minimum essential coverage in accordance with this rule would be determined to have minimum essential coverage if the coverage is certified to be substantially compliant with the requirements of title I of the Affordable Care Act that apply to non-grandfathered plans in the individual market.
Section 1501(b) of the Affordable Care Act added section 5000A of the Internal Revenue Code (the Code) to a new chapter 48 of subtitle D (Miscellaneous Excise Taxes) of the Code effective for months beginning after December 31, 2013. Section 5000A of the Code, which was subsequently amended by the TRICARE Affirmation Act of 2010, Public Law 111-159 (124 Stat. 1123) and Public Law 111-173 (124 Stat. 1215), requires that nonexempt individuals either maintain minimum essential coverage or make a shared responsibility payment. It also describes categories of individuals who may qualify for an exemption from the individual shared responsibility payment, and provides the definition of minimum essential coverage.
Section 1311(d)(4)(H) of the Affordable Care Act specifies that the Exchange will, subject to section 1411 of the Affordable Care Act, grant certifications of exemption from the individual shared responsibility payment specified in section 5000A of the Code. Section 1311(d)(4)(I)(i) of the Affordable Care Act specifies that the Exchange will transfer to the Secretary of the Treasury a list of the individuals to whom the Exchange provided such a certification. Section 1411(a)(4) of the Affordable Care Act provides that the Secretary of Health and Human Services (the Secretary) will establish a program for determining whether a certification of exemption from the individual shared responsibility requirement and penalty will be issued by an Exchange under section 1311(d)(4)(H) of the Affordable Care Act. We interpret this provision as authorizing the Secretary to determine “whether,” with respect to the nine exemptions provided for under section 5000A of the Code, Exchanges would perform the role of issuing certifications of exemption under section 1311(d)(4)(H) of the Affordable Care Act, whether eligibility for the exemption would be claimed solely through tax filing, or whether both processes would be available. Under this interpretation, the responsibility under section 1311(d)(4)(H) of the Affordable Care Act to issue certifications of exemption is “subject to” these determinations by the Secretary under section 1411(a)(4) of the Affordable Care Act, and Exchanges are thus only required to issue certifications of exemption with respect to exemptions not exclusively assigned to the Internal Revenue Service (IRS).
Section 1321 of the Affordable Care Act discusses state flexibility in the operation and enforcement of Exchanges and related requirements. Section 1321(a) of the Affordable Care Act provides broad authority for the Secretary to establish standards and regulations to implement the statutory requirements related to Exchanges and other components of title I of the Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010. Section 1311(k) of the Affordable Care Act specifies that Exchanges may not establish rules that conflict with or prevent the application of regulations promulgated by the Secretary under Subtitle D of title I of the Affordable Care Act.
In accordance with our interpretation of these sections of the Affordable Care Act, and the authority provided by,
On March 27, 2012, HHS published the final rule entitled “Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange Standards for Employers” (77 FR 18309). The provisions of the final rule, herein referred to as the Exchange final rule, encompass the key functions of Exchanges related to eligibility, enrollment, and plan participation and management. In the Exchange final rule, 45 CFR 155.200(b) provided that a minimum function of an Exchange is to grant certificates of exemption consistent with sections 1311(d)(4)(H) and 1411 of the Affordable Care Act. This final rule cross-references several provisions in the Exchange final rule, notably the limited situations where eligibility and verification processes used in determining eligibility for enrollment in a qualified health plan (QHP) through the Exchange and for insurance affordability programs can also be used by Exchanges for the purpose of determining whether an individual is eligible for an exemption from the individual shared responsibility payment.
Section 5000A(f) of the Code designates certain types of coverage as minimum essential coverage. The term “minimum essential coverage” includes all of the following under the statute: Government sponsored programs (the Medicare program under part A of title XVIII of the Social Security Act (the Act); the Medicaid program under title XIX of the Act; the Children's Health Insurance Program (CHIP) program under title XXI of the Act; medical coverage under chapter 55 of title 10, United States Code, including the TRICARE program; a health care program under chapter 17 or 18 of title 38, United States Code, as determined by the Secretary of Veterans Affairs, in coordination with the Secretaries of the Department of Health and Human Services and Treasury; a health plan under section 2504(e) of title 22, United States Code (relating to Peace Corps volunteers); or the Nonappropriated Fund Health Benefits Program of the Department of Defense (established under section 349 of the National Defense Authorization Act for Fiscal Year 1995); coverage under an eligible employer-sponsored plan; coverage under a health plan offered in the individual market within a State; and coverage under a grandfathered health plan. In addition, section 5000A(f)(1)(E) of the Code directs the Secretary, in coordination with the Secretary of
On August 3, 2010, HHS published a request for comment (the RFC) inviting the public to provide input regarding the rules that will govern the Exchanges. In particular, HHS asked states, tribal representatives, consumer advocates, employers, insurers, and other interested stakeholders to comment on the standards Exchanges should meet. The comment period closed on October 4, 2010.
The public response to the RFC yielded comment submissions from consumer advocacy organizations, medical and health care professional trade associations and societies, medical and health care professional entities, health insurers, insurance trade associations, members of the general public, and employer organizations. The majority of the comments were related to the general functions and standards for Exchanges, qualified health plans (QHPs), eligibility and enrollment, and coordination with Medicaid. While this final rule does not directly respond to comments from the RFC, the comments received are described, where applicable, in discussing specific regulatory proposals. These comments are not separately identified, but instead are incorporated into each substantive section of this final rule as appropriate.
In addition to the RFC, HHS received comments on the proposed rule titled “Patient Protection and Affordable Care Act; Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Essential Coverage Provisions” (78 FR 7348) that are, similarly not separately identified, but incorporated into each substantive section of this final rule. HHS has also consulted with stakeholders through regular meetings with the National Association of Insurance Commissioners (NAIC), regular contact with states through the Exchange grant process, and meetings with tribal representatives, health insurance issuers, trade groups, consumer advocates, employers, and other interested parties. HHS initiated and hosted a tribal consultation on February 21, 2013, where we allowed federally-recognized tribal leaders and representatives from tribal health organizations the opportunity to discuss and provide feedback regarding the provisions within the proposed rule. Furthermore, we also received feedback from health care sharing ministries about the process for how individual members can obtain certificates of exemption based on their membership in a health care sharing ministry, and an expression of interest in a process for allowing health care sharing ministries to obtain recognition that they meet the standards under section 5000A(d)(2)(B) of the Code. We also received information from various stakeholder groups regarding types of “other coverage” as described in section 5000A(f)(1)(E) of the Code.
The proposed rule, titled “Patient Protection and Affordable Care Act; Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Essential Coverage Provisions” (78 FR 7348), was published in the
On February 1, 2013, we published a proposed rule, titled “Patient Protection and Affordable Care Act; Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Essential Coverage Provisions” (78 FR 7348), in which we proposed to add subpart G to 45 CFR part 155, which includes standards for Exchanges related to conducting eligibility determinations for and granting certificates of exemption from the individual shared responsibility payment. We also proposed to amend § 155.200(a) to add a reference to indicate that, consistent with existing language in § 155.200(b), granting certificates of exemption is a minimum function of the Exchange. Furthermore, we proposed to add subpart G to 45 CFR part 156, which set forth standards under which the Secretary would designate certain types of existing coverage, not specified under section 5000A, as minimum essential coverage. Additionally, under the proposed regulation, other types of coverage that were neither statutorily nor regulatory designated as minimum essential coverage, may be recognized as minimum essential coverage if certain substantive and procedural requirements are met. These types of coverage, both those designated per se and those recognized by application, are neither group health insurance coverage nor individual health insurance. Consumers with coverage recognized as minimum essential coverage in accordance with this regulation would be determined to have minimum essential coverage for purposes of the individual shared responsibility provision.
We received approximately 220 public comments from state agencies, advocacy groups, health care providers, employers, health insurers, health care associations, and others. The comments ranged from general support or opposition to the proposed provisions to very specific questions or comments regarding the proposed rules.
Some comments were outside the scope of the proposed rule, and therefore are not addressed in this final rule. In some instances, commenters raised policy or operational issues, such as those related to certified application counselors, authorized representatives, and eligibility appeals, that will be addressed through forthcoming regulatory and subregulatory guidance to be provided subsequent to this final rule; therefore, some, but not all comments are addressed in the preamble to this final rule.
Brief summaries of each proposed provision, a summary of the public comments we received (with the exception of specific comments on the paperwork burden or the regulatory impact analysis), and our responses to the comments are below. Comments related to the paperwork burden are addressed in the “Collection of Information Requirements” and section in this final rule. We did not receive comments related to the impact analysis.
We proposed to make a technical correction to the definitions of “applicant” and “application filer” to note that they do not apply to an
We are finalizing the provisions proposed in § 155.20 of the proposed rule with a few technical corrections. We clarify that the term “applicant” in this provision excludes those individuals seeking eligibility for an exemption from the individual shared responsibility payment pursuant to subpart G. We also clarify that our previous inclusion of an authorized representative in the definition refers to the authorized representative of an applicant. We also cite to the applicable Treasury regulation instead of section 36B of the Code.
In paragraph (a), we proposed to add that the Exchange would also perform the minimum functions described in subpart G of this part related to eligibility determinations for exemptions.
We are finalizing the provision proposed in § 155.200 of the proposed rule without modification.
In paragraph (a) of § 155.600, we proposed definitions and sought comments for terms that apply throughout subpart G. First, we proposed to define “applicant” as an individual who is seeking an exemption from the individual shared responsibility payment for him or herself through an application submitted to the Exchange. We proposed to define “application filer” as an applicant; an individual who is liable for the individual shared responsibility payment (in accordance with 26 CFR 1.5000A-1(c) of the Treasury proposed rule) for an applicant; an authorized representative; or if the applicant is a minor or incapacitated, someone acting responsibly for an applicant. We noted that we intended to modify the proposed language in § 155.227 (78 FR 4711) and § 155.225 (78 FR 4710) to clarify that authorized representatives and certified application counselors can assist individuals seeking exemptions, and sought comments about how authorized representatives and certified application counselors could best support individuals seeking certificates of exemption from the Exchange.
We proposed to define “exemption” as an exemption from the individual shared responsibility payment, noting that there is no meaningful distinction between individuals exempt from the shared responsibility payment and individuals who are not “applicable individuals” for purposes of the requirement to maintain minimum essential coverage in section 5000A of the Code.
We proposed to define “health care sharing ministry” in the same manner as provided in 26 CFR 1.5000A-3(b) of the Treasury proposed rule.
We proposed to define “required contribution” in the same manner as provided in 26 CFR 1.5000A-3(e) of the Treasury proposed rule.
We proposed to define “Indian tribe” in the same manner as in 26 CFR
In paragraph (b), we proposed that for purposes of this subpart, any attestation that an applicant is to provide under this subpart may also be provided by an application filer on behalf of the applicant.
In paragraph (c) of § 155.600, we proposed that for the purposes of this subpart, the Exchange must consider information through electronic data sources, other information provided by the applicant, or other information as available in the records of the Exchange to be reasonably compatible with an applicant's attestation if the difference or discrepancy does not impact the eligibility for the relevant exemption or exemptions for which the applicant requested.
We also proposed to add paragraphs (d) and (e) in order to specify that the accessibility and notice requirements in § 155.205(c) and § 155.230, respectively, apply to exemptions as well, given that the definition of applicant in this subpart is otherwise specific to exemptions.
We finalize the provisions proposed in § 155.600 of the proposed rule with one modification and a few non-substantive technical corrections for clarity. We finalize the definition of “Indian tribe” as proposed, but move the definition earlier in paragraph (a). We make a technical correction for the purpose of clarity in finalizing the definition of “shared responsibility payment” to specify that it means the payment imposed with respect to a non-exempt individual. We also include the definition of “tax filer” in paragraph (a) to specify that it has the same meaning in subpart G as it does in § 155.300(a).
Under the program established in accordance with section 1411(a)(4) of the Affordable Care Act for determining whether certificates of exemption are to be issued by Exchanges under section 1311(d)(4)(H) of the Affordable Care Act, we proposed that Exchanges would issue certificates of exemption in the categories of religious conscience and hardship. With respect to the other seven exemptions, for reasons set forth below, we proposed that under the program provided for in section 1411(a)(4) of the Affordable Care Act, Exchanges would also issue certificates of exemption with respect to three additional categories (with exemptions also available through the tax filing process) based on membership in a health care sharing ministry, membership in an Indian tribe, and incarceration. In the four remaining exemption categories, however, we proposed that under the program established under section 1411(a)(4) of the Affordable Care Act, certificates would not be issued by Exchanges under section 1311(d)(4)(H) of the Affordable Care Act, and instead individuals would claim an exemption in one of those categories exclusively through the tax return filing process with the IRS.
In paragraph (a) of § 155.605, we proposed that except as specified in paragraph (g), the Exchange would determine an applicant eligible for and grant a certificate of exemption for a month if the Exchange determines that he or she meets the requirements for one of the categories of exemptions described in this section for at least one day in the month, consistent with 26 CFR 1.5000A-3 of the Treasury proposed rule. We noted that depending on the circumstances for each specific proposed hardship exemption category, the certificate may be provided for an entire calendar year or instead for a specific month or period of months, including periods of time that stretch across more than one calendar year.
We noted that an applicant could apply for multiple exemptions simultaneously in case some are denied, and also receive any exemptions for which he or she is eligible. We solicited comments on this approach.
In paragraph (b), we proposed that except as specified, an applicant is required to submit a new application for each year for which an applicant wants to be considered for an exemption through the Exchange, and that an exemption will only be provided for a calendar year in which the applicant submitted an application for an exemption. We provided exceptions for exemptions provided based on membership in an Indian tribe and for religious conscience, in recognition that an individual's qualification for these exemptions is expected to remain the same from year to year. We also specified an exception for hardship, since some categories of hardship will be provided for one or more months and may be provided for periods of time that stretch across more than one calendar year, and some categories of hardship can only be provided after the close of a calendar year. We welcomed comments on this approach and how the Exchange could expedite and streamline the process.
We considered whether to specify that the Exchange send a notice to each individual who had an exemption certificate from the Exchange for a calendar year, in order to remind him or her about the opportunity to apply to for an exemption for the following calendar year, and whether this notice could be sent only at the individual's direction. We solicited comments regarding the use of such a reminder and on a renewal process more generally.
In paragraph (c), we proposed to codify the statutory eligibility standards for the exemption based on religious conscience. In paragraph (c)(1), we proposed that the Exchange would determine an applicant eligible for an exemption for a month if he or she is a member of a recognized religious sect or division described in section 1402(g)(1) of the Code, and an adherent of established tenets or teachings of such sect or division for such month, in accordance with 26 CFR 1.5000A-3(a) of the Treasury proposed rule.
In paragraph (c)(2), we proposed eligibility standards regarding the duration of the exemption for religious conscience. In paragraph (c)(2)(i), we proposed that the Exchange grant the exemption for religious conscience to an applicant that meets the standards of paragraph (c)(1) of this section for a month on a continuing basis, until such time that the applicant either reaches the age of 18, or reports that he or she no longer meets the standards provided in (c)(1) of this section.
We proposed to add paragraph (c)(2)(ii) to specify how the Exchange should handle a situation in which an individual who has a certificate of exemption based on religious conscience that was granted prior to the individual reaching the age of 18. We proposed that the Exchange send such an individual a notice when he or she reaches the age of 18 that informs the individual that he or she needs to submit a new exemption application if he or she would like to maintain the certificate of exemption.
We proposed to add paragraph (c)(3) to specify that the Exchange will grant an exemption in this category prospectively or retrospectively.
In paragraph (d), we proposed that the Exchange determine an applicant eligible for an exemption for a month if the applicant is a member of a health care sharing ministry for such month in accordance with 26 CFR 1.5000A-3(b) of the Treasury proposed rule. We proposed that an applicant who wanted to retain this exemption for an additional calendar year would re-apply for this exemption each calendar year, and that the Exchange may only provide an exemption in this category retrospectively.
In paragraph (e), we proposed the eligibility standards for the exemption based on incarceration. We specified that the Exchange would determine an individual eligible for an exemption for a month that he or she meets the definition specified in 26 CFR 1.5000A-3(d) of the Treasury proposed rule. We proposed that the Exchange would only provide this exemption for months in which an individual was incarcerated, since there is no assurance that an incarcerated individual will be released on the expected date.
In paragraph (f), we proposed eligibility standards for the exemption based on membership in an Indian tribe. In paragraph (f)(1), we proposed to codify that the Exchange would determine an applicant eligible for an exemption for a month if he or she is a member of an Indian tribe for such month, in accordance with 26 CFR 1.5000A-3(g) of the Treasury proposed rule.
In paragraph (f)(2), we proposed eligibility standards regarding the duration of the exemption for membership in an Indian tribe, such that the Exchange would grant the exemption for membership in an Indian tribe to an applicant who meets the standards of paragraph (f)(1) of this section for a month on a continuing basis, until such time that the individual reports that he or she no longer meets the standards provided in (f)(1) of this section.
We proposed to add paragraph (f)(3) to specify that the Exchange will grant an exemption in this category during the year prospectively or retrospectively.
In paragraph (g), we proposed eligibility standards for the exemption based on hardship, which is defined in section 5000A(e)(5) of the Code as applying to “any applicable individual who for any month is determined by the Secretary under section 1311(d)(4)(H) of the Affordable Care Act to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.” In developing some of these standards, we considered the standards established by the Commonwealth of Massachusetts. We proposed some specific time standards for each category of hardship, but we solicited comments regarding whether these are appropriate, or if we should adopt a more uniform approach across the category.
In paragraph (g)(1) of § 155.605, we proposed that the Exchange provide an exemption for hardship for a month or months in which an applicant experienced financial or domestic circumstances, including an unexpected natural or human-caused event, such that he or she has a significant, unexpected increase in essential expenses; the expense of purchasing minimum essential coverage would have caused him or her to experience serious deprivation of food, shelter, clothing or other necessities; or he or she has experienced other factors similar to those described in paragraphs (g)(1)(i) and (ii) of this section that prevented him or her from obtaining minimum essential coverage. We proposed broad language to include a range of personal scenarios that could negatively impact an applicant such that he or she would be eligible for this exemption, and noted that we expected to clarify these criteria in future guidance. We listed expected standards and solicited comments on these criteria, including on whether additional criteria should be established in regulation or guidance. We also solicited comments regarding whether the proposed time standard could be effectively implemented, or whether we should take a different approach.
In paragraph (g)(2), we proposed that the Exchange provide an exemption for hardship for a calendar year if an applicant, or another individual for whom the applicant attests will be included in the applicant's family (as defined in 26 CFR 1.5000A-1(d)(6) of the Treasury proposed rule), is unable to afford coverage for such calendar year in accordance with 26 CFR 1.5000A-3(e) of the Treasury proposed rule, calculated using projected annual household income. We proposed
We proposed that this exemption is not available for an application that is submitted after the last date on which an applicant could enroll in a QHP through the Exchange for a calendar year for which the exemption is requested to ensure that an applicant can obtain the information needed to make a purchasing decision, including for a catastrophic plan, which is not applicable after the last date on which enrollment would be possible.
We proposed in paragraph (g)(3) of § 155.605 that the Exchange provide an exemption for hardship for a calendar year if an individual taxpayer who was not required to file an income tax return for such calendar year because his or her gross income was below the filing threshold, but who nevertheless filed to receive a tax benefit, claimed a dependent who was required to file a tax return, and as a result had household income exceeding the applicable return filing threshold outlined in 26 CFR 1.5000A-3(f)(2) of the Treasury proposed rule.
We proposed to add paragraph (g)(4) to specify that the Exchange provide an exemption for hardship for a calendar year for an individual who has been determined ineligible for Medicaid for one or more months during the benefit year solely as a result of a State not implementing section 2001(a) of the Affordable Care Act. We sought comments on whether this exemption should be limited to such individuals who are also not eligible for advance payments of the premium tax credit (that is, with projected household income below 100% of the poverty threshold).
We proposed to add paragraph (g)(5) of § 155.605 to specify that the Exchange provide an exemption for hardship for a calendar year if an applicant and one or more employed members of his or her family, as defined in 26 CFR 1.5000A-1(d)(6) of the Treasury proposed rule, are each determined eligible for self-only coverage in separate eligible employer-sponsored plans that are affordable, pursuant to 26 CFR 1.5000A-3(e) of the Treasury proposed rule for one or more months during the calendar year, but for whom the aggregate cost of employer-sponsored coverage for all the employed members of the family exceeds 8 percent of the household income for that month or those months.
Lastly, as noted above, we proposed under our authority in section 1411(d)(4) of the Affordable Care Act that the Exchange would not issue certifications of exemption with respect to household income below the filing threshold (other than the limited hardship exemption proposed in § 155.605(g)(3) and described above); not being lawfully present; short coverage gaps; and inability to afford coverage (other than the limited hardship exemption proposed in § 155.605(g)(2) and described above). We specified that these exemptions would be available solely through the tax filing process. We solicited comments on this approach and if there were alternative approaches that HHS should consider.
We finalize this exemption to generally follow the standards in section 5000A(e)(1) of the Code. As in the proposed rule, we specify in paragraph (g)(2)(i) of the final rule that this exemption differs from the exemption described in section 5000A(e)(1) of the Code in that it relies on projected household income. In order to facilitate implementation of this exemption, we add paragraphs (g)(2)(ii), (iii), and (iv) to clarify the applicable standards. First, in paragraph (g)(2)(ii), we clarify that as described above, the Exchange will only consider the affordability of an eligible employer-sponsored plan for this exemption if it meets the minimum value standard. Second, in paragraph (g)(2)(iii), we describe how the Exchange will determine the cost of coverage for an individual who is eligible to purchase coverage under an eligible employer-sponsored plan.
We note that, under the Treasury proposed rule, the standards for determining the required contribution for coverage through an eligible employer-sponsored plan vary depending on whether an individual is an employee eligible to purchase coverage under an eligible employer-sponsored plan through the employee's employer, or is eligible to purchase coverage under an eligible employer-sponsored plan because of a relationship to an employee, with respect to eligibility for an exemption. For an individual employee who is eligible through his or her own employer, the affordability calculation is based on the lowest cost option for self-only coverage. For all other individuals eligible to purchase coverage under an eligible employer-sponsored plan, the required contribution is the portion of the annual premium that the employee would pay for the lowest cost option for family coverage that would cover the employee and all individuals who are included in the employee's family and are not otherwise exempt. We note that the Exchange will only know whether an individual within the employee's family has been granted an exemption by that Exchange. Accordingly, we specify in paragraph (g)(2)(iii)(C) that the Exchange will consider the lowest cost family coverage that meets the minimum value standard and would cover the employee and all other individuals who are included in the employee's family who have not otherwise been granted an exemption through the Exchange.
We also note that proposed 26 CFR 1.36B-2(c)(3)(v)(A)(4) (78 FR 25914), provides that for purposes of determining eligibility for the premium tax credit, the affordability of coverage in an eligible employer-sponsored plan is determined by assuming that each employee satisfies the requirements of available nondiscriminatory wellness programs related to tobacco use, and does not satisfy the requirements of any available wellness programs that are not related to tobacco use. That is, if a plan includes a nondiscriminatory wellness program for tobacco users, such as smoking cessation classes, the affordability of coverage under that plan will be determined based on the premium that is charged to tobacco
Accordingly, in order to ensure that an individual is not liable for the shared responsibility payment if he or she is ineligible for advance payments of the premium tax credit and cost-sharing reductions as a result of a finding by the Exchange that he or she is eligible for qualifying coverage in an eligible employer-sponsored plan based on incorporating the completion of a tobacco-related wellness program, we specify in paragraph (g)(2)(iii)(A) that the Exchange will determine eligibility for the exemption specified in paragraph (g)(2) for an individual who uses tobacco without incorporating any discount resulting from the completion of a wellness program designed to prevent or reduce tobacco use. We also specify in paragraph (g)(2)(iii)(B) that discounts from wellness incentives offered by an eligible employer-sponsored plan that do not relate to tobacco use are treated as not earned.
In paragraph (g)(2)(iv), we clarify that in the case of an individual who is ineligible to purchase coverage under an eligible employer-sponsored plan, or only eligible to purchase coverage under an eligible employer-sponsored plan that does not meet the minimum value standard, the Exchange will determine the required contribution for coverage in accordance with section 5000A(e)(1)(B)(ii) of the Code, inclusive of all members of the individual's family who have not otherwise been granted an exemption through the Exchange, and who are not treated as eligible to purchase coverage under an eligible employer-sponsored plan that meets the minimum value standard. This determination is based on the premium for the single lowest cost bronze plan available, less any credit allowable under section 36B of the Code, in the individual market through the Exchange serving the rating area in which the individual resides.
Furthermore, we clarify that in finalizing this provision, we specify in paragraphs (g)(2)(v) and (g)(2)(vi) that this exemption will be available throughout the calendar year prospectively for a month or months until the last date on which an individual could enroll in a QHP through the calendar year for which the exemption is requested. This refers not only to the open enrollment period, but to any special enrollment period, notwithstanding special effective dates, for which an individual may potentially be determined eligible during the calendar year under 45 CFR 155.420(b). As such, an individual may be determined eligible for this exemption for the remaining month or months of a calendar year as late as November of that calendar year, as the effective dates for a special enrollment period under § 155.420(b) would still allow such an individual to enroll in a QHP by December of that calendar year. Lastly, in order to reduce administrative burden, we also specify in paragraph (g)(2)(vi) that an exemption in this category will be provided for all remaining months in a coverage year, notwithstanding any change in an individual's circumstances.
We are finalizing the provisions proposed in § 155.605 of the proposed rule with the following modifications: We make technical corrections in paragraphs (c) through (g) for the purpose of clarity to specify when the Exchange must make different exemptions available, whether prospectively or retrospectively. In paragraph (c)(2) concerning the duration of the exemption for religious conscience, we specify that an exemption in this category will be provided on a continuing basis until the month after the month of the individual's 21st birthday, and as such if an Exchange granted such an individual an exemption prior to the age of 21, would have to send the applicant a notice at that point to remind him or her to submit a new application to maintain the certificate of exemption. We make revisions throughout paragraph (g) to specify which hardship exemptions must be granted by the Exchange, and which can be claimed only through the tax filing process. We clarify that an Exchange will determine an applicant eligible for an exemption under paragraph (g)(1) of this section for the month before, a month or months during which they experience the circumstances that qualify as a hardship, and the month after. We make a technical correction in paragraph (g)(1)(i) to clarify that the financial or domestic circumstances caused a significant and unexpected increase in
We add paragraph (g)(2)(ii) to clarify that the Exchange will only consider the affordability of an eligible employer-sponsored plan for the exemption described in paragraph (g)(2) if the eligible employer-sponsored plan meets the minimum value standard. We add paragraph (g)(2)(iii) to clarify the applicable standards if an individual is eligible for coverage through an eligible employer-sponsored plan that meets the minimum value standard, and note in paragraph (g)(2)(iii)(A) that an individual who uses tobacco is treated as not earning any premium incentive related to participation in a wellness program designed to prevent or reduce tobacco use that is offered by an eligible employer-sponsored plan, and in paragraph (g)(2)(iii)(B) that discounts from wellness incentives offered by an eligible employer-sponsored plan that do not relate to tobacco use are treated as not earned. That is, for purposes of this exemption, the cost of an eligible employer-sponsored plan that includes a premium differential for smokers and non-smokers is calculated using the non-smoker premium for non-smokers, and the smoker premium for smokers, without any discounts that may be available through smoking cessation programs. We outline the appropriate methods to determine the required contribution for coverage through an eligible employer-sponsored plan that meets the minimum value standard in paragraphs (g)(2)(iii)(C) and (D), depending on whether an individual is an employee eligible to purchase coverage under an eligible employer-sponsored plan through the employee's employer, or is eligible to purchase coverage under an eligible employer-sponsored plan by reason of a relationship to an employee. We specify in paragraph (g)(2)(iii)(D) that the Exchange will consider the lowest cost family coverage that meets the minimum value standard that would cover the employee and all other individuals who are included in the employee's family who have not otherwise been granted an exemption through the Exchange. We specify in paragraph (g)(2)(iv) that the Exchange will determine the required contribution for coverage in the individual market in the case of an individual who is ineligible to purchase coverage under an eligible employer-sponsored plan in accordance with section 5000A(e)(1)(B)(i) of the Code, or eligible only to purchase coverage under an eligible employer-sponsored plan that does not meet the minimum value standard, inclusive of all members of the individual's family who have not otherwise been granted an exemption through the Exchange, or are treated as eligible to purchase coverage under an eligible employer-sponsored plan that meets the minimum value standard. We also clarify in paragraphs (g)(2)(v) and (g)(2)(vi) that this exemption will be available throughout the calendar year prospectively for a month or months until the last date on which an individual could enroll in a QHP through the calendar year for which the exemption is requested, and that the Exchange will provide an exemption in this category for all remaining months in a coverage year, notwithstanding any change in an individual's circumstances.
We clarify that the Exchange may not grant the hardship exemptions under paragraph (g)(3) and (5) of this section, but rather only the IRS will allow an applicant to claim these exemptions. We add paragraph (g)(6) to provide that an Exchange will determine an applicant eligible for a hardship exemption for any month for which he or she is an Indian eligible for services through an Indian health care provider, as defined in 42 CFR 447.50, or an individual eligible for services through the Indian Health Service in accordance with 25 U.S.C. 1680c(a), (b), or (d)(3). We clarify that the duration for the exemption provided under paragraph (g)(6) of this section is the same as specified in paragraph (f)(2) of this section.
In § 155.610, we proposed the process by which the Exchange would determine an applicant's eligibility for exemptions. In paragraph (a), we proposed to specify that the Exchange would use an application established by HHS in order to collect the information necessary to determine eligibility and grant a certificate of exemption for an applicant, unless the Exchange receives approval to use an alternative application. We also clarified that in cases in which relevant information has already been collected through the eligibility process for enrollment in a QHP and for insurance affordability programs, the Exchange would use this information for the purpose of eligibility for an exemption to the maximum extent possible.
In paragraph (b), we proposed that the Exchange may seek approval from HHS for an alternative application. We further specified that such alternative application must only request the minimum information necessary for the purposes identified in paragraph (a) of this section.
In noting that there are exemptions that share common data and verifications with the eligibility process for enrollment in a QHP and for insurance affordability programs, in paragraph (c) we proposed that if an individual submits the application in 45 CFR 155.405 and then requests an exemption, the Exchange would use the information collected on the application for coverage and not duplicate any verification processes that share the standards specified in this subpart. We solicited comments on how best to coordinate these processes to ensure maximum administrative simplicity for all involved parties.
In paragraph (d), we proposed the Exchange would accept the application for an exemption from an application filer, and provide tools for the submission of an application. We did not specify particular channels for application acceptance, but we solicited comments regarding whether we should specify some or all of the channels included in 45 CFR 155.405.
In paragraph (e), we proposed that the Exchange would specify that an applicant who has a social security number (SSN) will provide such number to the Exchange in order to coordinate information in the tax filing process and provide the Exchange with additional information with which to ensure program integrity. However, we proposed to clarify in paragraphs (e)(2) and (e)(3) that the Exchange may not require an individual who is not seeking an exemption for him or herself to provide a SSN, except that the Exchange would require an application filer to provide the SSN for a non-applicant tax filer only if the applicant attests that the tax filer has a SSN and filed a tax return for the year for which tax data would be utilized to verify household income and family size for a hardship exemption. We solicited comments on the applicability of this provision in the context of the exemption eligibility process.
In paragraph (f), we proposed that the Exchange would grant a certificate of exemption to any applicant determined
In paragraph (g)(1), we proposed that the Exchange determine eligibility for exemptions promptly and without undue delay, which is the same timing threshold used throughout subpart D of this part, including in 45 CFR 155.310(e)(1), with respect to eligibility determinations for enrollment in a QHP and for insurance affordability programs. In paragraph (g)(2), we proposed that the assessment of timeliness of eligibility determinations by the Exchange is based on the period from the date of the application until the date on which the Exchange notifies the applicant of its decision. We solicited comments regarding specific performance standards for the eligibility process described in this subpart, and whether we should define an outer bound in which an eligibility determination will be made.
In paragraph (h), we proposed to clarify that except for the exemptions for religious conscience and membership in an Indian tribe proposed in § 155.605(c) and § 155.605(f), respectively, after December 31 of a given calendar year, the Exchange will not accept an application for an exemption for months for such calendar year. We intended to specify that this provision also apply to the hardship exemption under § 155.605(g), but inadvertently did not include such language in the text of the regulation. We solicited comments regarding this approach, and whether there should be additional categories of exemptions for which the Exchange would grant exemptions after the close of a calendar year.
In paragraph (i), we proposed that the Exchange provide timely written notice to an applicant of any eligibility determination for an exemption made in accordance with this subpart, which could be provided through electronic means, consistent with § 155.230(d).
In paragraph (j), we proposed that an individual who has been certified by an Exchange as qualifying for an exemption retain the records that demonstrate not only receipt of the certificate of exemption but also qualification for the underlying exemption. We noted that to the extent that the Exchange provides a certificate of exemption for which the underlying verification is based in part on the special circumstances exception proposed in § 155.615(h), an individual would retain records that demonstrate receipt of the certificate of exemption, as well as the circumstances that warranted the use of the special circumstances exception.
We are finalizing the provisions proposed in § 155.610 of the proposed rule with a few slight modifications: We clarify that the Exchange must use information collected for purposes of the eligibility determination for enrollment in a QHP and for insurance affordability programs in making the exemption eligibility determination to the extent that the Exchange finds that such information is still applicable. In § 155.610(d)(3), we specify that until October 15, 2014, the Exchange must, at a minimum, permit an individual to apply for an exemption via mail, using a paper application. We correct the oversight in paragraph § 155.610(h) by providing that an applicable exemption that is available retrospectively and described in § 155.605(g) can also be provided for previous tax years based on an application that is submitted after December 31 of a given calendar year, except for § 155.605(g)(1), which may only be provided during one of the 3 calendar years after the month or months during which the applicant attests that the hardship occurred. Due to the range of hardship exemptions available, we redesignate paragraph (h) as paragraph (h)(1), make a technical correction for clarity in paragraph (h)(1), and add paragraph (h)(2) to specify that the Exchange will only accept an application for a hardship exemption specified in § 155.605(g)(1) for a month or months during a calendar year when the application is filed during one of the 3 calendar years after the month or months during which the applicant attests that the hardship occurred. We also modify paragraph (j)(1) to specify that an Exchange will also notify an individual who is determined eligible for an exemption to retain the certificate of exemption, and also records demonstrating his or her qualification for the underlying exemption.
In this section, we proposed language regarding the verification process related to eligibility for exemptions. These processes were designed not only to minimize the burden on applicants, but also to serve a valuable program integrity function in order to assure that applicants are only deemed eligible for exemptions if they meet the standards specified in § 155.605.
In paragraph (a), we proposed that unless HHS grants a request for modification under paragraph (i) of this section, the Exchange will verify or obtain information as provided in this section in order to determine that the applicant is eligible for an exemption.
In paragraph (b), we proposed the verification process concerning the exemption for religious conscience. We specified that for any applicant requesting this exemption, the Exchange will verify that he or she meets the standards as outlined in § 155.605(c). First, in paragraph (b)(1), we proposed that except as specified in paragraph (b)(2) of this section, the Exchange will accept a Form 4029 that reflects that an applicant has been approved for an exemption from Social Security and Medicare taxes under section 1402(g)(1) of the Code by the IRS. Second, in paragraph (b)(2), we proposed that except as specified in paragraphs (b)(3) and (4) of this section, the Exchange will accept an applicant's attestation that he or she is a member of a recognized religious sect or division described in section 1402(g)(1) of the Code, and an adherent of established tenets or teachings of such sect or division. Next, the Exchange will verify that the religious sect or division to which the applicant attests membership is recognized by SSA as a religious sect or division under section 1402(g)(1) of the Code.
Third, in paragraph (b)(3), we proposed that if the information provided by an applicant regarding his or her membership in a recognized religious sect or division is not reasonably compatible with other information provided by the individual or the records of the Exchange, the Exchange will follow the procedures specified in paragraph (g) of this section concerning situations in which the Exchange is unable to verify information.
Fourth, in paragraph (b)(4), we proposed that if an applicant attests to membership in a religious sect or division that is not recognized by SSA as a religious sect or division under section 1402(g)(1) of the Code, the Exchange must provide the applicant with information regarding how his or her religious sect or division can pursue recognition under section 1402(g)(1) of the Code, and determine the applicant ineligible for this exemption until such time as the Exchange obtains information indicating that the religious sect or division has been approved.
In paragraph (c), we proposed the verification process concerning the exemption for membership in a health care sharing ministry. We specified that for any applicant requesting this exemption, the Exchange will verify whether he or she meets the standards in § 155.605(d). First, in paragraph (c)(1), we proposed that except as specified in paragraphs (c)(2) and (3) of this section, the Exchange will first accept an attestation from an applicant that he or she is a member of a health care sharing ministry. Next, we proposed that the Exchange will verify that the health care sharing ministry to which the applicant attests membership is known to the Exchange as a health care sharing ministry, based on a list that would be developed by HHS based on outreach to heath care sharing ministries, which HHS would then make available to Exchanges.
In paragraph (c)(2), we proposed that if the information provided by an applicant regarding his or her membership in a health care sharing ministry is not reasonably compatible with other information provided by the individual or the records of the Exchange, the Exchange will follow the procedures specified in paragraph (g) of
In paragraph (c)(3), we proposed that if an applicant attests to membership in a health care sharing ministry that is unknown to the Exchange as a health care sharing ministry according to the standards in § 155.605(d), the Exchange will then notify HHS and not determine an applicant eligible or ineligible for this exemption until HHS informs the Exchange regarding the attested health care sharing ministry's status with respect to the standards specified in 26 CFR 1.5000A-3(b) of the Treasury proposed rule.
In paragraph (d), we proposed the verification process concerning the exemption for incarceration. We specified that for any applicant requesting this exemption, the Exchange will verify, through the process described in 45 CFR 155.315(e), that he or she was incarcerated. In paragraph (d)(2), we proposed that if the Exchange is unable to verify an applicant's incarceration status through the verification process outlined, the Exchange will follow the procedures in paragraph (g) of this section concerning situations in which the Exchange is unable to verify information.
In paragraph (e), we proposed the verification process concerning the exemption for members of Indian tribes. We specified in paragraph (e)(1) that for any applicant requesting this exemption, the Exchange will verify his or her membership in an Indian tribe through the process outlined in 45 CFR 155.350(c). In paragraph (e)(2), we also proposed that the Exchange follow the procedures specified in paragraph (g) of this section if it is unable to verify an applicant's tribal membership.
In paragraph (f), we proposed the verification process concerning exemptions for hardship. In paragraph (f)(2), we proposed that for an applicant applying for a hardship exemption prospectively based on an inability to afford coverage, as described in § 155.605(g)(2), the Exchange use procedures established under subpart D of this part to verify the availability of affordable coverage through the Exchange based on projected income and eligibility for advance payments of the premium tax credit, as specified in subpart D of this part, which involves verifying several attestations by the applicant, including an attestation related to citizenship, as well as the procedures described in § 155.320(e) to verify eligibility for qualifying coverage in an eligible employer-sponsored plan. We solicited comments regarding appropriate verification procedures for other categories of hardship that will ensure a high degree of program integrity while minimizing administrative burden.
In paragraph (g), we proposed procedures for the Exchange to follow in the event the Exchange is unable to verify information necessary to make an eligibility determination for an exemption, including situations in which an applicant's attestation is not reasonably compatible with information in electronic data sources or other information in the records of the Exchange, or when electronic data are required but unavailable. These procedures mirror those provided in § 155.315(f), with modifications to preclude eligibility pending the outcome of the verification process, made in accordance with the Secretary's authority under section 1411 of the Affordable Care Act.
First, under paragraph (g)(1), we proposed that the Exchange will make a reasonable effort to identify and address the causes of the issue, including through typographical or other clerical errors, by contacting the application filer to confirm the accuracy of the information submitted by the application filer. Second, in paragraph (g)(2)(i), we proposed that if the Exchange is unable to resolve the issue, the Exchange will notify the applicant of the issue. After providing this notice, in paragraph (g)(2)(ii), we proposed that the Exchange will provide 30 days from the date on which the notice is sent for the applicant to present satisfactory documentary evidence via the channels available for the submission of an application, except by telephone, or otherwise resolve the issues. In paragraph (g)(3), we proposed that the Exchange may extend the period for an applicant to resolve the issue if the applicant can provide evidence that a good faith effort has been made to obtain the necessary documentation. And in paragraph (g)(4), we proposed that the Exchange will not grant a certificate of exemption during this period based on the information that is the subject of the request under this paragraph.
In paragraph (g)(5), we proposed that, if after the conclusion of the period described in paragraph (g)(2)(ii) of this section, the Exchange is unable to verify the applicant's attestation, the Exchange will determine the applicant's eligibility based on the information available from the data sources specified in this subpart, as applicable, unless such applicant qualifies for the exception provided under paragraph (h) of this section, and notify the applicant in accordance with the procedures described under § 155.610(i), including the inability to verify the applicant's attestation.
In paragraph (h), we proposed a provision under which the Exchange would provide a case-by-case exception for applicants for whom documentation does not exist or is not reasonably available to account for situations in which documentation cannot be obtained.
In paragraph (i), we proposed that HHS have the flexibility to approve an Exchange Blueprint or a significant change to an Exchange Blueprint to modify the methods for the collection and verification of information as described in this subpart, as well as the specific information to be collected, based on a finding by HHS that the requested modification would reduce the administrative costs and burdens on individuals while maintaining accuracy and minimizing delay, and that any applicable requirements under 45 CFR 155.260, 45 CFR 155.270, paragraph (j) of this section, and section 6103 of the Code with respect to the confidentiality, disclosure, maintenance, or use of information will be met.
In paragraph (j), we proposed that the Exchange will not require an applicant to provide information beyond what is necessary to support the process of the Exchange for eligibility determinations for exemptions, including the process for resolving inconsistencies described in paragraph (g) of this section.
We also clarify in paragraph (c)(1)(iii) that if an applicant attests to membership in a health care sharing ministry that is not known to the Exchange as a health care sharing ministry based on information provided by HHS, the Exchange must provide the applicant with information regarding how an organization can pursue recognition under § 155.615(c)(2), and determine the applicant ineligible for this exemption until such time as HHS notifies the Exchange that the health care sharing ministry's meets the standards specified in section 5000A(d)(2)(B)(ii) of the Code. We note that individual members cannot seek recognition under § 155.615(c)(2) on behalf of their health care sharing ministry, as HHS will only review information submitted by the health care sharing ministry itself.
We are finalizing the provisions proposed in § 155.615 of the proposed rule with several modifications, as follows. First, we make a technical correction in paragraph (b)(1) to specify that the Exchange must accept a form that reflects he or she is exempt from Social Security and Medicare taxes under section 1402(g)(1) of the Code. Second, we clarify that if an applicant attests to membership in a religious sect or division that is not recognized by the SSA as an approved religious sect or division under section 1402(g)(1) of the Code, the Exchange will provide the applicant with information regarding how his or her religious sect or division can pursue recognition under section 1402(g)(1) of the Code, and determine the applicant ineligible for this exemption until such time as the Exchange obtains information indicating that the religious sect or division has been approved. Third, we renumber proposed § 155.615(c), move the language from previous paragraph (c)(1) into paragraph (c), redesignating paragraphs (c)(2) and (c)(3) as paragraphs (c)(1)(i) and (ii), and add § 155.615(c)(2) to specify a process for establishing the list of health care sharing ministries that meet the statutory standards that is substantially similar to the approach discussed in § 155.604(c) regarding how HHS will determine that certain types of coverage meet the substantive and procedural requirements for consideration as minimum essential coverage. We also specify in paragraph (c)(1)(i) that the Exchange may not consider an applicant's prior or current enrollment in health coverage as not reasonably compatible with an applicant's attestation of membership in a health care sharing ministry, and we specify in paragraph (c)(1)(ii) that if an applicant attests to membership in a health care sharing ministry that is not known to the Exchange as a health care sharing ministry based on information provided by HHS, the Exchange will provide the applicant with information regarding how an organization can pursue recognition under § 155.615(c)(2), and determine the applicant ineligible for this exemption until such time as HHS notifies the Exchange that the health care sharing ministry's meets the standards specified in section 5000A(d)(2)(B)(ii) of the Code.
We specify in paragraph (f)(1) that the Exchange will not verify whether an applicant experienced a hardship under § 155.605(g)(3) or (5); rather, these exemptions will be claimed directly with the IRS at tax filing. We redesignate paragraph (f)(2) as paragraph (f)(2)(i), make a technical correction in redesignated paragraph (f)(2)(i) to clarify that the procedures used to determine eligibility for advance payments of the premium tax credit in subpart D include § 155.315(c)(1). We note that at 78 FR 4638, we proposed to consolidate § 155.320(d) and (e) into § 155.320(d). To the extent that we finalize this redesignation, we intend to make a simultaneous technical correction to this cross-reference. We add new paragraph (f)(2)(ii) to clarify that in determining eligibility for the lack of affordable coverage based on projected income hardship exemption, the Exchange will accept an application filer's attestation for an applicant regarding eligibility for minimum essential coverage other than through an eligible employer-sponsored plan. We redesignate paragraph (f)(3) as paragraph (f)(4), and add new paragraph (f)(3) to specify that the Exchange will use the same verification procedures for
In 78 FR 4636, we proposed to modify § 155.315(f) to specify that the Exchange would trigger an inconsistency when electronic data is required but not reasonably expected to be available within 2 days. To ensure alignment across the eligibility process for enrollment in a QHP through the Exchange and insurance affordability programs with the eligibility process for exemptions, we make a technical correction to specify that the Exchange will trigger the process under § 155.615(g) when electronic data is required but not reasonably expected to be available within the time period specified as § 155.315(f). We modify § 155.615(g)(2)(ii) to allow an applicant 90 days to present satisfactory documentary evidence to resolve an inconsistency. Lastly, we add paragraph (k) to mirror the Exchange's requirement regarding the validation of a Social Security number for an individual applying for an exemption from the shared responsibility payment with the same validation process for purposes of individual seeking coverage as described in § 155.315(b).
In § 155.620, we proposed in paragraph (a) to implement section 1411(f) of the Affordable Care Act by providing that the Exchange will redetermine an individual's eligibility for an exemption if the Exchange receives and verifies new information as reported by an individual. In paragraph (b)(1), we proposed that the Exchange will require an individual with a certificate of exemption to report any changes related to the eligibility standards described in § 155.605. We solicited comments as to whether we should provide flexibility such that the Exchange may establish a reasonable threshold for changes in income, such that an individual who experiences a change in income that is below the threshold is not required to report such change.
In paragraph (b)(2), we proposed that the Exchange would allow an individual to report changes through the channels acceptable for the submission of an exemption application.
In paragraph (c), we proposed that the Exchange use the verification processes used at the point of initial application, as described in § 155.615, in order to verify any changes reported by an individual prior to using the self-reported information in an eligibility determination for an exemption. In paragraph (c)(2), we proposed that the Exchange notify an individual in accordance with § 155.610(i) after re-determining his or her eligibility based on a reported change. Lastly, in paragraph (c)(3), we proposed that the Exchange provide periodic electronic notifications regarding the requirements for reporting changes and an individual's opportunity to report any changes, to an individual who has a certificate of exemption and who has elected to receive electronic notifications, unless he or she has declined to receive such notifications. We noted that unlike § 155.330, we did not propose that the Exchange conduct periodic data matching regarding an individual's eligibility for an exemption. We solicited comments as to whether we should establish similar data matching provisions, and if so, whether we should specify that the Exchange should handle changes identified through the matching process in a similar manner as to that specified in § 155.330, or take a different approach.
Also unlike the eligibility process for enrollment in a QHP and for insurance affordability programs, we did not propose an annual Exchange redetermination process for exemptions. We solicited comments regarding how the Exchange could expedite and streamline the process for individuals with a certificate of exemption that is not approved indefinitely who wish to maintain the exemption for a subsequent year.
We are finalizing the provisions proposed in § 155.620 of the proposed rule with a few slight modifications. We clarify in paragraph (a) that the Exchange only must redetermine the eligibility of an individual with an exemption granted by the Exchange, and that it will not conduct redeterminations for the exemption described in § 155.605(g)(2). In paragraph (b), we specify that the Exchange will not require an individual who has an exemption under § 155.605(g)(2) to report changes with respect to his or her eligibility for this exemption; accordingly, in paragraph (c)(3), we clarify that the Exchange will not provide periodic reminders to report changes to this group of individuals. We also add paragraph (d) to specify that the Exchange will implement a change resulting from a redetermination under this section for the month or months after the month in which the redetermination occurs, such that a certificate that was provided for the month in which the redetermination occurs, and for prior months, remains effective.
In § 155.625, we proposed that a state-based Exchange can satisfy the requirements of subpart G if it uses a federally-managed service to make eligibility determinations for exemptions, and we solicited comments regarding the specific configuration of a service that would be useful for states and also feasible within the time remaining for implementation.
First, in paragraph (a), we proposed that the Exchange may satisfy the requirements of this subpart by either executing all eligibility functions, directly or through contracting arrangements described in 45 CFR 155.110(a), or through the use of a federally-managed service described in paragraph (b) of § 155.625.
Second, in paragraph (b), we proposed that the Exchange may implement an eligibility determination for an exemption made by HHS, provided that the Exchange accepts the application, as specified in § 155.610(d), and issues the eligibility notice, as specified in § 155.610(i), and that verifications and other activities required in connection with eligibility determinations for exemptions are performed by the Exchange in accordance with the standards identified in this subpart or by HHS in accordance with the agreement described in paragraph (b)(4) of this section. We also proposed that under this option, the Exchange will transmit all applicant information and other information obtained by the Exchange to HHS, and adhere to HHS' determination. Lastly, in paragraph (b)(4), we proposed that the Exchange and HHS enter into an agreement specifying their respective responsibilities in connection with eligibility determinations for exemptions.
In paragraph (c), we proposed the standards to which the Exchange will adhere when eligibility determinations are made in accordance with paragraph (b) of this section. Such standards included that the arrangement does not increase administrative costs and burdens on individuals, or increase delay, and that applicable requirements under § 155.260, § 155.270, and § 155.315(i), and section 6103 of the Code are met with respect to the confidentiality, disclosure, maintenance or use of information.
We specify that for an application submitted prior to October 15, 2014, the Exchange may rely on HHS to process exemptions applications, complete the necessary verifications, determine eligibility, and issue notices, including any certificates of exemption. Exchanges will still assist individuals seeking a lack of affordable coverage based on projected income hardship exemption by providing an individual with the resulting cost of his or her lowest-cost bronze plan that incorporates any advance payments of the premium tax credit allowable under section 36B of the Code. Additionally, the Exchange call center and Internet Web site as specified in 45 CFR 155.205(a) and (b) respectively, must be responsible for providing information to consumers regarding the exemption eligibility process.
For an application submitted on or after October 15, 2014, the Exchange may adopt an exemption eligibility determination made by HHS provided that the Exchange accepts the application and issues the eligibility notice in the same manner as discussed in the proposed rule. As a result of clarifying the flexibility for Exchanges prior to October 15, 2014, we accordingly remove paragraph (c).
We also note that comments regarding the appeals process for exemptions will be addressed in a future regulation. We expect that future rulemaking will clarify that if an Exchange relies on HHS to make an eligibility determination for an exemption, the Exchange may also rely on HHS to administer the exemptions appeals process as well, provided that any underlying decisions made by the Exchange are addressed through the appropriate Exchange appeals process.
We are modifying the provisions proposed in § 155.625 to eliminate proposed paragraph (c). We redesignate paragraphs (b)(1) through (b)(5) as (b)(2)(i) through (b)(2)(v) to clarify that the standards discussed therein apply to an Exchange seeking to rely on an exemption eligibility determination made by HHS on or after October 15, 2014. We add (b)(1) to reflect that HHS will administer the entire eligibility process for exemptions for Exchanges that decide to rely on HHS to conduct eligibility determinations for an application submitted before October 15, 2014, provided that the Exchange adheres to the eligibility determination made by HHS furnishes any information available through the Exchange that is necessary for an applicant to utilize the process administered by HHS, and the Exchange call center and Internet Web site provide information to assist consumers regarding the exemption eligibility process.
In § 155.630, we proposed to codify the provisions specified in section 1311(d)(4)(I)(i) of the Affordable Care Act regarding reporting by the Exchange to IRS regarding eligibility determinations for exemptions. If the Exchange grants an individual a certificate of exemption in accordance with § 155.610(i), we proposed that the Exchange will transmit to IRS the individual's name and SSN, exemption certificate number, and any additional information specified in additional guidance published by IRS in accordance with 26 CFR 601.601(d)(2). We solicited comments as to how this interaction could work as smoothly as possible.
We are finalizing the provisions proposed in § 155.630 of the proposed rule without modification.
In § 155.635, we proposed that the Exchange will include notice of the right to appeal and instructions for how to appeal in any notification issued in accordance with § 155.610(i) and § 155.625(b)(1). We proposed that an individual may appeal any eligibility determination or redetermination made by the Exchange in relation to an exemption. Additional detail about the appeal process is described in subpart F of the proposed rule titled, “Medicaid, Children's Health Insurance Programs, and Exchanges: Essential Health Benefits in Alternative Benefit Plans, Eligibility Notices, Fair Hearing and Appeal Processes for Medicaid and Exchange Eligibility Appeals and Other Provisions Related to Eligibility and Enrollment for Exchanges, Medicaid and CHIP, and Medicaid Premiums and Cost Sharing” (78 FR 4719).
We are finalizing the provisions proposed in § 155.635 of the proposed rule with three modifications. First, we are deleting the reference to § 155.625(b)(1), as we are modifying proposed § 155.625 to specify that an Exchange that relies on HHS to make eligibility determinations for exemptions will not issue the eligibility notice. Second, we also make a technical correction in paragraph (b) to replace the reference to the Commissioner of the IRS with the Secretary of the Treasury. Third, we make a technical correction to remove the introductory text, which is not substantive.
The proposed rule cross referenced the Treasury regulation under section 5000A of the Code for the definition of minimum essential coverage.
We made minor changes to the provisions of § 156.600 to clarify the meaning of the final rule.
The proposed rule specifically designated the following types of coverage as minimum essential coverage for purposes of the Code: Self-funded student health insurance plans; foreign health coverage; Refugee Medical Assistance supported by the Administration for Children and Families (45 CFR Part 400 Subpart G); Medicare advantage plans; AmeriCorps coverage (45 CFR 2522.10 through 2522.950), and state high risk pools (as defined in § 2744 of the Public Health Service Act (PHS Act)). We solicited comments on these types of coverage
Under the proposed rule, state high risk pools were designated as minimum essential coverage for a period of time to be determined by the Secretary. We reserved the right to review and monitor the extent and quality of coverage, and in the future to reassess whether they should be designated minimum essential coverage or should be required to go through the process outlined in § 156.604 of this proposed rule. We solicited comments on whether state high risk pools should automatically be designated as minimum essential coverage or whether they should be required to follow the process outlined in § 156.604 of this proposed rule.
The comments and our responses are set forth below.
In the proposed rule we designated state high risk pools as minimum essential coverage for a transition period and solicited comments on whether state high risk pools should be recognized as minimum essential coverage. We did not receive any comments on state high risk pools and we are finalizing the proposed rule. To be consistent with the treatment of self-funded student health plans which under the final rule are designated as minimum essential coverage for plan or policy years beginning on or before December 31, 2014, we are applying the same one-year transitional period to state high risk pools. For coverage beginning after December 31, 2014, sponsors of state high risk pools may apply to be recognized as minimum essential coverage through the process outlined in § 156.604 of the final rule. In addition, the Department of the Treasury intends to publish guidance under section 36B of the Code about whether individuals who are eligible to enroll in state high risk pools will be treated as eligible for qualified health plan coverage subsidized by the premium tax credit.
Other commenters opposed designating the coverage provided by AmeriCorps programs to AmeriCorps volunteers as minimum essential coverage because some of the provided benefits fall below the minimal coverage requirements required by the Affordable Care Act. In addition, commenters noted that stipends for most volunteers are between 100-200 percent FPL, meaning that they may either qualify for a premium assistance program or a hardship exemption.
As proposed in the proposed rule, in § 156.602 we designate Medicare Advantage, and Refugee Medical Assistance supported by the Administration for Children and Families (45 CFR Subpart G), as minimum essential coverage. We also designate self-funded student health plans and state high risk pools as minimum essential coverage for plan or policy years beginning on or before December 31, 2014. For coverage beginning after December 31, 2014, sponsors of self-funded student health plans and state high risk pools may apply to be recognized as minimum essential coverage through the process outlined in § 156.604 of the final rule. Section 156.602 no longer specifically designates foreign health coverage or coverage provided by AmeriCorps programs to AmeriCorps volunteers as minimum essential coverage. However, plans that provide coverage to AmeriCorps volunteers as well as coverage provided by foreign governments may receive designation as minimum essential coverage by following the process for recognition explained in § 156.604.
The proposed rule outlined a process by which other types of coverage could seek to be recognized as minimum essential coverage. Coverage recognized as minimum essential coverage through this process would need to offer substantially the same consumer protections as those enumerated in the Title I of Affordable Care Act relating to non-grandfathered, individual coverage to ensure consumers are receiving the protections of the Affordable Care Act. We solicited comments on the proposed “substantially comply” standard as it applies to other types of individual coverage. We also solicited comments on the process for recognizing other coverage as minimum essential coverage.
In the proposed regulation, sponsors of minimum essential coverage must also meet other criteria specified by the Secretary. We solicited comments on the types of criteria the Secretary should consider in this process as well as whether they should be added to the final rule. We proposed that sponsors of a plan that seeks to have such coverage recognized as minimum essential coverage adhere to certain procedures. Sponsors would submit to HHS electronically the following information: (1) Name of the organization sponsoring the plan; (2) name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization; (3) address of the individual named above; (4) phone number of the individual named above; (5) number of enrollees; (6) eligibility criteria; (7) cost sharing requirements, including deductible and out-of-pocket maximum; (8) essential health benefits covered (as defined in § 1302(b) of the Affordable Care Act and its implementing regulations); and (9) a certification that the plan substantially complies with the provisions of Title I of the Affordable Care Act as applicable to non-grandfathered individual health insurance coverage. If at any time HHS determines that a type of coverage previously recognized as minimum essential coverage no longer meets the coverage requirements, HHS may revoke the recognition of such coverage. We solicited comments on whether there should be an appeal process for sponsors of coverage that had the minimum essential coverage status revoked by the Secretary. We also solicited comment on whether this appeal process should be available to sponsors whose initial request for recognition of minimal essential coverage status for their coverage was denied by HHS.
The comment and our response are set forth below.
As previously stated, we solicited comments on the types of criteria that the Secretary should require a sponsor to meet in order for HHS to recognize the coverage of the organization as minimum essential coverage and indicated that we might specify criteria for sponsoring organizations. We did not get any comments specifically addressing this issue, and we have decided that the focus of the CMS review of applications for health coverage to be recognized as minimum essential coverage will not be on the type of organization providing coverage but on the extent of the coverage itself and the protections provided in the coverage. We made minor changes to certification requirement to clarify that the organization must certify that the coverage substantially complies with the requirements of title I of the Affordable Care Act that apply to non-grandfathered plans in the individual market and the organization must submit any plan documentation or other information that demonstrate that the coverage substantially comply with these requirements.
We made minor changes to the provisions of § 156.604 to clarify that, in addition to the organization certifying that the coverage substantially complies with the requirements of title I of the Affordable Care Act that apply to non-grandfathered plans in the individual market, the organization must submit any plan documentation or other information that demonstrates that the coverage substantially complies with these requirements.
Under this proposed rule, HHS would have the ability to audit plans to ensure the accuracy of the certification either randomly or when triggered by certain information. We solicited comments on the proposed procedures and if and when audits should be conducted. We also solicited comments on whether sponsors of the types of coverage that have been designated as minimum essential coverage in the proposed rule should also submit the above information required to HHS.
Under the proposed rule, once recognized as minimum essential coverage, a plan would have to provide notice to its enrollees, specifying that the plan has been recognized as minimum essential coverage for the purposes of the individual shared responsibility provision. The sponsor of any plan recognized as minimum essential coverage would also be required to provide the annual information reporting to the IRS specified in section 6055 of the Code and implementing regulations and furnish statements to individuals enrolled in such coverage to assist them in establishing that they are not liable for the shared responsibility payment under section 5000A of the Code. We requested comments on whether all plans and programs designated as minimum essential coverage under this regulation must provide notice to enrollees, or only plans recognized through the process in § 156.604 of this regulation.
We made minor changes to the provisions of section 156.606 to clarify the meaning of the final regulation.
For the most part, this final rule incorporates the provisions of the proposed rule. Those provisions of this final rule that differ substantively from the proposed rule are as follows:
• Modifies eligibility standards for the religious conscience exemption such that if an exemption is provided to an individual under the age of 21, an exemption will be provided on a continuing basis until the month after the individual's 21st birthday, which triggers a corresponding notice and opportunity for the individual turning 21 to file another application to maintain this exemption.
• Clarifies which hardship exemptions must be granted by the Exchange and which are available solely through the tax filing process.
• Clarifies that hardship exemption under paragraph (g)(1) of this section must be granted for the month before, the month or months during which an individual experiences the circumstances that qualify as a hardship preventing him or her from purchasing a qualified health plan, and the month after.
• Clarifies that an eligible employer-sponsored plan is only considered for the lack of affordable coverage based on projected income hardship exemption if it meets the minimum value standard.
• Specifies how the Exchange will determine the required contribution to purchase coverage under an eligible employer-sponsored plan or in the individual market for the lack of affordable coverage based on projected income hardship exemption, including clarifying that in determining the required contribution for an eligible employer-sponsored plan, an individual who uses tobacco is treated as not earning any premium incentive related to participation in a wellness program designed to prevent or reduce tobacco use that is offered by an eligible employer-sponsored plan, and wellness incentives offered by an eligible employer-sponsored plan that do not relate to tobacco use are treated as not earned.
• Clarifies that the lack of affordable coverage based on projected income hardship exemption is only available prospectively for the month or months of a calendar year after which the exemption is requested, and that it will be provided for all remaining months in a coverage year, notwithstanding any change in an individual's circumstances.
• Adds a hardship exemption for any month in which an individual is an Indian eligible for services through an Indian health care provider, as defined in 42 CFR 447.50, or an individual eligible for services through the Indian Health Service in accordance with 25 USC 1680c(a), (b), or (d)(3), and specifies that the duration of this exemption is the same as that for a member of an Indian tribe.
• Clarifies that the Exchange must use information collected for purposes of the eligibility determination for enrollment in a QHP and for insurance affordability programs in making the exemption eligibility determination to the extent that the Exchange finds that such information is still applicable.
• Specifies that at a minimum, the Exchange must provide a paper application process for applications submitted prior to October 15, 2014.
• Clarifies that hardship exemptions can also be provided for previous tax years after December 31 of a given calendar year, noting that the Exchange will only accept an application for an exemption described in § 155.605(g)(1) during one of the 3-calendar years after the month or months during which the applicant attests that the hardship occurred.
• Clarifies that the Exchange will notify an individual to retain records that demonstrate the receipt of a certificate of exemption, as well as records demonstrating his or her qualification for the underlying exemption.
• Clarifies how the Exchange will address a situation in which an applicant attests to membership in a religious sect or division that is not recognized under section 1402(g)(1) of the Code.
• Clarifies how the Exchange will address a situation in which an applicant attests to membership in an organization that is not known to the Exchange as a health care sharing ministry based on information provided by HHS.
• Provides a process for establishing the list of health care sharing ministries that meet the statutory standards.
• Clarifies that the Exchange will not find that an applicant's previous or current enrollment in health coverage is not reasonably compatible with his or her attestation of membership in a health care sharing ministry.
• Clarifies that the Secretary of the Treasury will administer the exemptions specified in § 155.605(g)(3) and (5).
• Clarifies the applicability of verification procedures specified in 45 CFR subpart D to the lack of affordable coverage based on projected income hardship exemption.
• Specifies that the Exchange will use the same verification procedures for the exemption for an individual who is eligible for services through an Indian health care provider as it will use for the exemption for members of a federally-recognized tribe.
• Clarifies when an inconsistency process should be triggered when certain data sources are not reasonably expected to be available.
• Allows an applicant 90 days to present satisfactory documentary evidence to resolve an inconsistency.
• Specifies how an Exchange must validate a Social Security number for an individual seeking an exemption.
• Specifies that the Exchange will not conduct mid-year redeterminations for the hardship exemption for an individual who has a lack of affordable coverage based on projected household income, will not require individuals receiving this exemption to report changes, and will not send periodic reminders to report changes to individuals who have this exemption.
• Specifies that the Exchange will implement a change resulting from a redetermination under this section for the month or months after the month in which the redetermination occurs, such that a certificate that was provided for the month in which the redetermination occurs, and for prior months remains effective.
• Specifies that for applications submitted before October 15, 2014, a state-based Exchange can be approved if relying on HHS to administer the entire eligibility process for exemptions, provided that the Exchange furnishes any information available through the Exchange that is necessary for an applicant to utilize the process administered by HHS, and the Exchange call center and Internet Web site assist consumers seeking exemptions.
• Clarifies that an Exchange relying on HHS to make eligibility determinations for exemptions will not issue the eligibility notice for applications submitted prior to October 15, 2014.
• Makes minor changes to the provisions of 45 CFR § 156.600 to clarify the meaning of the regulation.
• Designates self-funded student health plans and state high risk pools as minimum essential coverage for a one year transitional period, and allows self-funded student health plans and state high risk pools to apply to be recognized as minimum essential coverage through the process outlined in § 156.604 of the final rule after January 1, 2015.
• Removes the designation of foreign health coverage and AmeriCorps as minimum essential coverage. In order to be recognized as minimum essential coverage, foreign health coverage and coverage for AmeriCorps must follow the process for recognition explained in § 156.604.
• Makes minor changes to the provisions of § 156.604 to clarify the meaning of the regulation.
• Makes minor changes to the provisions of 45 CFR § 156.606 to clarify the meaning of the regulation.
The final rule entitled “Exchange Functions: Eligibility for Exemptions; Miscellaneous Minimum Essential Coverage Provisions” finalizes standards with regard to the minimum function of an Exchange to perform eligibility determinations and issue certificates of exemption from the individual shared responsibility payment. The rule also finalizes standards related to eligibility for exemptions, including the verification and eligibility determination process, eligibility redeterminations, options for conducting eligibility determinations, and reporting related to exemptions. In addition, the rule finalizes rules designating certain types of coverage as minimum essential coverage and outlining substantive and procedural requirements that other types of coverage must fulfill in order to be recognized as minimum essential coverage under section 5000A(f)(5) of the Code.
This section outlines the information collection requirements in the proposed regulation on which we solicited public comment in the exemptions proposed rule. We used data from the Bureau of Labor Statistics to derive average costs for all estimates of salary in establishing the information collection requirements. Salary estimates included the cost of fringe benefits, calculated at 30.4 percent of salary, which is based on the June 2012 Employer Costs for Employee Compensation report by the U.S. Bureau of Labor Statistics. Additionally, we used estimates from the Congressional Budget Office to derive estimates of the number of exemption applications we anticipate Exchanges to receive, and the number of exemption eligibility determination notifications we anticipate Exchanges to generate.
Finally, this final rule describes an information collection requirement for which we did not solicit public comment in the exemptions proposed rule. The information collection requirement related to Health Care Sharing Ministries will be addressed through a separate notice and comment process under the Paperwork Reduction Act (PRA).
Throughout this subpart, we specify that the Exchange will collect attestations from applicants for a certificate of exemption. These attestations will be collected using the application described in § 155.610(a). In § 155.610(a), we provide that the Exchange use an application created by HHS to collect the information necessary for determining eligibility for and granting certificates of exemption from the individual shared responsibility payment. The burden associated with this requirement is the time and effort estimated for an applicant to complete an application. The exemption application may be available in both paper and electronic formats. An electronic application process would vary depending on each applicant's circumstances and which exemption an applicant is applying for, such that an applicant is only presented with questions relevant to the exemption for which he or she is applying. The goal is to solicit sufficient information so that in most cases no further inquiry will be needed. We estimate that on average, it will take .27 hours (16 minutes) for an application filer to complete an application, which is based on the estimates created for the single, streamlined application for enrollment in a QHP
We do not estimate any cost to the Exchanges of evaluating the exemption applications. For the purposes of this estimate, we expect all applications to be submitted electronically and processed through the system, which would result in no additional labor costs to evaluate and review the exemption applications. We requested comment on this assumption.
We estimate that the cost to develop the exemption application will be significantly less than the estimated cost of developing the coverage application because the coverage application takes into account additional factors necessary in order to perform eligibility determinations for insurance affordability programs. We also note that as with the coverage application, HHS will be releasing a model application for use by Exchanges, which will significantly decrease the burden associated with the implementation of the application. On average, we estimate that the implementation of the exemption application will take approximately 1,059 hours of software development at a labor cost of $98.50 per hour, for a total cost of $104,312 per Exchange and a total cost of $1,877,607 for 18 state-based Exchanges.
Several provisions in subpart G outline specific notices that the Exchange will send to individuals during the exemption eligibility determination process, including the notice of eligibility determination described in § 155.610(i). The purpose of these notices is to alert an applicant of his or her eligibility determination for an exemption and related actions taken by the Exchange. To the extent that an applicant is determined eligible for an exemption, the notice of eligibility determination described in § 155.610(i) will serve as the certificate of exemption. Accordingly, we do not provide a separate burden estimate for the certificates of exemption described throughout this subpart. When possible, we anticipate that the Exchange will consolidate notices when multiple members of a household are applying together and receive an eligibility determination at the same time. Consistent with 45 CFR 155.230(d), the notice may be in paper or electronic format, based on the election of an individual, will be in writing, and will be sent after an eligibility determination has been made by the Exchange; these are the same standards that are used for eligibility notices for enrollment in a QHP through the Exchange and for insurance affordability programs, as described in 45 CFR 155.310(g). It is difficult to estimate the number of applicants that will opt for electronic versus paper notices, although we anticipate that a large volume of applicants will request electronic notification. We estimated the associated mailing costs for the time and effort needed to mail notices in bulk to applicants who request paper notices.
We expect that the exemption eligibility determination notice will be dynamic and include information tailored to all possible outcomes of an application throughout the eligibility determination process. A health policy analyst, senior manager, and an attorney would review the notice. HHS is currently developing model notices, which will decrease the burden on Exchanges associated with developing such notices. If a state opts to use the model notices provided by HHS, we estimate that the Exchange effort related to the development and implementation of the exemption eligibility determination notice will necessitate 44 hours from a health policy analyst at an hourly cost of $49.35 to learn exemptions rules and draft notice text; 20 hours from an attorney at an hourly cost of $90.14, and four hours from a senior manager at an hourly cost of $79.08 to review the notice; and 32 hours from a computer programmer at an hourly cost of $52.50 to conduct the necessary development. In total, we estimate that this will take a total of 100 hours for each Exchange, at a cost of approximately $5,971 per Exchange and a total cost of $107,469 for 18 state-based Exchanges. For most notices outlined in subpart G of this proposed rule, we estimate that the notice development as outlined in the paragraph above, including the systems programming, would take each Exchange an estimated 100 hours to complete in the first year.
We expect that the burden on the Exchange to maintain this notice will be significantly lower than to develop it. We estimate that it will take each professional approximately a quarter of the time to maintain the notice as compared to developing the notice. Accordingly, we estimate the maintenance of the eligibility determination notice in subsequent years will necessitate 11 hours from a health policy analyst at an hourly cost of $49.35; 5 hours from an attorney at an hourly cost of $90.14; one hour from a senior manager at an hourly cost of $79.08 and eight hours from a computer programmer at an hourly cost of $52.50. In total, we estimate that this will take a total of 25 hours for each Exchange, at a cost of approximately $1,492 per Exchange and a total cost of $26,856 for 18 state-based Exchanges.
Pursuant to section 5000A of the Code, the IRS must collect the necessary data from QHP issuers to determine the national average bronze monthly premiums in order to assist in the computation of the shared responsibility payment. To assist the IRS, HHS must request the monthly premium for all bronze level QHP's through all 51 Exchanges from QHP issuers. The burden associated on states and QHP issuers is already included in the information collection request entitled, “Initial Plan Data Collection to Support QHP Certification and other Financial Management and Exchange Operations,” and as such, we do not include a separate burden estimate here. As this information is already being collected for another purpose, there will be no additional burden on QHP issuers or states.
Section 155.615 specifies that the Exchange will utilize applicable procedures established under subpart D of the Exchange final rule in order to obtain data through electronic data sources for purposes of determining eligibility for and granting certificates of exemption. This involves the electronic transmission of data through procedures established under subpart D in order to verify an applicant's incarceration status, to verify eligibility for qualifying coverage in an eligible employer-sponsored plan, and to determine eligibility for advance payments of the premium tax credit. Section 155.615 also includes additional electronic transmissions that are specific to the eligibility process for exemptions, including those related to health care
The Exchange will use the same verification processes for new applications and for changes that are reported during the year. This includes the process for situations in which the Exchange is unable to verify the information necessary to determine an applicant's eligibility, which is described in section 155.615(g). It is not possible at this time to provide estimates for the number of applicants for whom additional information will be required to complete an eligibility determination, but we anticipate that this number will decrease as applicants become more familiar with the eligibility process for exemptions and as more data become available electronically. As such, for now, we estimate the burden associated with the processing of documentation for one submission from an applicant. We note that the burden associated with this provision is one hour for an individual to collect and submit documentation, and 12 minutes for eligibility support staff at an hourly cost of $28.66 to review the documentation, for a total cost of $6 per document submission.
In order to facilitate the provision of an exemption for membership in a health care sharing ministry to the members of such ministry, we specify in § 155.615(c)(2) that an organization that believes that it meets the statutory standards to be considered a health care sharing ministry will submit certain information to HHS. We are aware of four organizations that have made public statements regarding their status as a health care sharing ministry. We note that we will account for the additional burden associated with healthcare sharing ministries in a future information collection request that will go through the requisite notice and comment period and subsequent OMB review and approval process.
These provisions specify that an Exchange that decides to utilize the HHS service for making eligibility determinations for exemptions for application submitted on or after October 15, 2014, will enter into a written agreement with HHS. These agreements are necessary to ensure that the use of the service will minimize burden on individuals, ensure prompt determinations of eligibility without undue delay, and provide for secure, timely transfers of application information.
The burden associated with these provisions is the time and effort necessary for the Exchange to establish an agreement with HHS. We estimate that the creation of the necessary agreement will necessitate 35 hours from a health policy analyst at an hourly cost of $49.35, and 35 hours from an operations analyst at an hourly cost of $54.45 to develop the agreement; and 30 hours from an attorney at an hourly cost of $90.14 and five hours from a senior manager at an hourly cost of $79.14 to review the agreement. For the purpose of this estimate, we assume that the 18 state-based Exchanges will utilize the HHS service for exemptions. Accordingly, the total burden on the Exchange associated with the creation of the necessary agreement will be approximately 105 hours and $6,733 per Exchange, for a total cost of $121,194 for 18 Exchanges.
Organizations that currently provide health coverage that are not statutorily specified and not designated as minimum essential coverage in this regulation may submit a request to CMS that their coverage be recognized as minimum essential coverage. As described in § 156.604(a)(3), sponsoring organizations would have to electronically submit to CMS information regarding their plans and certify that their plans meet substantially all of the requirements in the Title I of Affordable Care Act, as applicable to non-grandfathered, individual coverage. Some commenters suggested that organizations submitting such requests provide more information regarding their plans rather than simply certifying that their plans meet substantially all of the requirements in the Title I of Affordable Care Act. We have revised the certification to request plan documentation or other information that demonstrate that the coverage sponsored by the organization substantially complies with the provisions of Title I of the Affordable Care Act applicable to non-grandfathered individual health insurance coverage.
We sought comments on how many organizations are likely to submit such requests but did not receive any information that would allow us to estimate the number of requests. We assume that at least 10 organizations will submit such a request. The burden associated with this certification includes the time needed to collect and input the necessary plan information, and maintain a copy for recordkeeping by clerical staff and for a manager and legal counsel to review it and for a senior executive to review and sign it. The certification and attachments will be submitted to CMS electronically at minimal cost. We estimate that it will take a combined total of 5.25 hours (4 hours for clerical staff at an hourly cost of $30.64, 0.5 hours for a manager at an hourly cost of $55.22, 0.5 hours for legal counsel at an hourly cost of $83.10 and 0.25 hours for a senior executive at an hourly cost of $112.43) to prepare and submit the information and certification to CMS and to retain a copy for recordkeeping purposes. The total cost for one organization is estimated to be approximately $220. Therefore, the total burden for 10 organizations will be 52.5 hours, with an equivalent cost of $2,200.
Section 156.604(d) specifies that sponsoring organizations whose health coverage are recognized as minimum essential coverage will have to provide a notice to enrollees informing them that the plan has been recognized as minimum essential coverage for the purposes of the Code. The notice requirement may be satisfied by inserting a statement into existing plan documents. Plan documents are usually reviewed and updated annually before a new plan year begins. Sponsoring organizations may insert the statement in their plan documents at that time at minimal cost. Once the notice is included in the plan documents the first year, no additional cost will be incurred in future years. Therefore this notice is not subject to the Paperwork Reduction Act of 1995. Commenters suggested that a sponsoring organization should be required to provide a notice to enrollees if its request is denied and its plan is not recognized as minimum essential coverage. To minimize the burden on
The sponsor of any type of coverage recognized as minimum essential coverage is also required to provide the annual information reporting to the IRS specified in section 6055 of the Code and furnish statements to individuals enrolled in such coverage to assist them in establishing that they are not liable for the shared responsibility payment under section 5000A of the Code. The Department of Treasury plans to publish for public comment, in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the required ICRs in the near future.
We have submitted a copy of this final rule to OMB for its review of the rule's information collection and recordkeeping requirements. These requirements are not effective until they have been approved by OMB.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access the CMS Web site at
As stated earlier in this preamble, this final rule implements certain functions of the Exchanges. These specific statutory functions include determining eligibility for and granting certificates of exemption from the individual shared responsibility payment described in section 5000A of the Internal Revenue Code. Additionally, this final rule implements the responsibility of the Secretary of Health and Human Services, in coordination with the Secretary of the Treasury, to designate other health benefits coverage as minimum essential coverage by designating certain coverage as minimum essential coverage. It also outlines substantive and procedural requirements that other types of individual coverage must fulfill in order to be recognized as minimum essential coverage under the Internal Revenue Code.
HHS has crafted this rule to implement the protections intended by Congress in an economically efficient manner. We have examined the effects of this rule as required by Executive Order 12866 (58 FR 51735, September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804(2)). In accordance with OMB Circular A-4, CMS has quantified the benefits, costs and transfers where possible, and has also provided a qualitative discussion of some of the benefits, costs and transfers that may stem from this final rule.
Executive Order 12866 (58 FR 51735) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects; distributive impacts; and equity). Executive Order 13563 (76 FR 3821, January 21, 2011) is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866.
Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a final rule—(1) having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year), and a “significant” regulatory action is subject to review by the OMB. This rule has been designated a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has reviewed this final regulation pursuant to the Executive Order.
This final rule sets forth standards and processes under which the Exchange will conduct eligibility determinations for and grant certificates of exemption from the individual shared responsibility payment. Furthermore, it supports and complements rulemaking conducted by the Secretary of the Treasury with respect to section 5000A of the Code, as added by section 1501(b) of the Affordable Care Act. The intent of this rule is to implement the relevant provisions while continuing to afford states substantial discretion in the design and operation of an Exchange, with greater standardization provided where directed by the statute or where
In developing this final rule, HHS carefully considered its potential effects including costs and benefits. Because of data limitations, HHS did not attempt to quantify the benefits, costs and transfers resulting from this final rule. Nonetheless, HHS was able to identify several potential impacts which are discussed qualitatively below.
The exemption provisions of this final rule set forth how and what exemptions can be received through the Exchange. Given the statute, these rules would generate exemption request activity; the final rules could also potentially affect the amount of shared responsibility payments made in a given year and the number of individuals who would enroll in health insurance plans to avoid shared responsibility payments. The impact of the minimum essential coverage provisions would be similar; individuals whose coverage would be designated minimum essential coverage, under the authority of the Secretary of Health and Human Services to designate other health benefit coverage as minimum essential coverage, would, in the absence of the rule, pay shared responsibility payments or switch health insurance coverage so as not to incur those penalties.
As noted in our discussion, above, of information collection requirements, while CBO estimates that 24 million individuals would be exempt from the penalty in 2016, it is unclear how many individuals will seek these exemptions from an Exchange. These submissions would be associated with a variety of effects, including: costs to Exchanges to review the exemption requests; costs to applicants to request exemptions and retain documents; potential effects on enrollment in health coverage and its benefits; and a transfer from the federal government to individuals receiving exemptions in cases in which there is a foregone shared responsibility payment.
We note that the cost to an applicant of submitting a request and retaining documents is bounded by the expected shared responsibility payment; otherwise, he or she would not necessarily apply for the exemption. Though we lack data to precisely characterize the effects of these provisions, we note that the potential number of individuals seeking exemptions through the Exchange could place the overall impact of the final rule over the $100 million threshold for economic significance, even at a low economic cost per individual.
The minimum essential coverage provisions included in this final rule could lead to transfers from the federal government to affected individuals (in this case, individuals whose coverage is designated to be minimum essential coverage) and have effects on health coverage enrollment (for example, decreased switching between plans). Decreased switching between plans would entail time savings for affected individuals and uncertain effects on premium payments and use of medical services and products. We currently lack data to estimate the number of individuals whose coverage would be designated minimum essential coverage by this rule.
Under the Executive Order, HHS is required to consider alternatives to issuing rules and alternative regulatory approaches. HHS considered the regulatory alternatives below:
Section 155.605 provides the eligibility standards for exemptions that will be granted by the Exchange. The preamble to this section notes that Exchanges will not grant certificates of exemption in four categories: (1) Lack of affordable coverage; (2) household income below the filing threshold; (3) not lawfully present; and (4) short coverage gaps. Also, Exchanges will not grant certificates of exemptions for certain hardship exemptions, specifically § 155.605(g)(3) and (5). These exemptions instead are solely available during the tax filing process, as we believe that the IRS is in a better position to issue these exemptions.
The alternative model would specify that the Exchange would provide certificates of exemption in all nine categories described in section 5000A of the Code. This alternative model was not selected for practical and administrative reasons; the specific reasons for taking this approach are discussed in the preamble associated with this section of the final regulation. For example, for certain categories of exemptions, the information needed will only be available on a retrospective basis, and is most efficiently available through the tax filing process. Thus, we believe that the least burdensome approach for individuals and Exchanges is to make these exemptions available only through the tax filing process.
We considered designating state high risk pools, self-funded student health plans, foreign health coverage and AmeriCorps as minimum essential coverage in section 156.602. After careful review of comments received, state high risk pools and self-funded student health plans will be designated as minimum essential coverage for plan or policy years beginning on or before December 31, 2014. For coverage beginning after December 31, self-funded student health plans and state high risk pools may apply to be recognized as minimum essential coverage. HHS hopes that during this transitional year, such plans will voluntarily adopt Affordable Care Act consumer protections to ensure their qualification as minimum essential coverage. We also considered automatically designating AmeriCorps and foreign health coverage as minimum essential coverage but did not adopt that policy in this final rule. These types of coverage may be recognized as minimum essential coverage through the certification process outlined in § 156.604 of this final rule. We believe that the options adopted in this final rule provide the best balance between allowing individuals to retain their current coverage and ensuring that they receive the consumer protections in the Affordable Care Act.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) requires agencies to prepare an initial regulatory flexibility analysis to describe the impact of the rule on small entities, unless the head of the agency can certify that the rule will not have a significant economic impact on a substantial number of small entities. The Act generally defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a not-for-
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation, by state, local, or tribal governments, in the aggregate, or by the private sector. In 2013, that threshold is approximately $141 million. This final rule does not mandate expenditures by state governments, local governments, tribal governments, in the aggregate, or the private sector, of $141 million. The majority of state, local, and private sector costs related to implementation of the Affordable Care Act were described in the RIA accompanying the March 2012 Medicaid eligibility rule. Furthermore, this final rule does not set any mandate on states to set up an Exchange.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a final rule that imposes substantial direct effects on states, preempts state law, or otherwise has federalism implications. We note again that the impact of changes related to implementation of the Affordable Care Act was described in the RIA associated with the Exchange final rule. As discussed in the Exchange final rule RIA, we have consulted with states to receive input on how the various Affordable Care Act provisions codified in this proposed rule would affect states.
Because states have flexibility in designing their Exchange, state decisions will ultimately influence both administrative expenses and overall premiums. However, because states are not required to create an Exchange, these costs are not mandatory. For states electing to create an Exchange, the initial costs of the creation of the Exchange will be funded by Exchange Planning and Establishment Grants. After this time, Exchanges will be financially self-sustaining with revenue sources left to the discretion of the state. In the Department's view, while this proposed rule does not impose substantial direct costs on state and local governments, it has federalism implications due to direct effects on the distribution of power and responsibilities among the state and federal governments relating to determining standards relating to health insurance coverage (that is, for QHPs) that is offered in the individual and small group markets. Each state electing to establish a state-based Exchange must adopt the federal standards contained in the Affordable Care Act and in this proposed rule, or have in effect a state law or regulation that implements these federal standards. However, the Department anticipates that the federalism implications (if any) are substantially mitigated because states have choices regarding the structure and governance of their Exchanges. Additionally, the Affordable Care Act does not require states to establish an Exchange; but if a state elects not to establish an Exchange or the state's Exchange is not approved, HHS, will establish and operate an Exchange in that state. Additionally, states will have the opportunity to participate in state Partnership Exchanges that would allow states to leverage work done by other states and the federal government, and will be able to leverage a federally-managed service for eligibility determination for exemptions.
In compliance with the requirement of Executive Order 13132 that agencies examine closely any policies that may have federalism implications or limit the policy making discretion of the states, the Department has engaged in efforts to consult with and work cooperatively with affected states, including participating in conference calls with and attending conferences of the National Association of Insurance Commissioners, and consulting with state officials on an individual basis.
Pursuant to the requirements set forth in section 8(a) of Executive Order 13132, and by the signatures affixed to this regulation, the Department certifies that CMS has complied with the requirements of Executive Order 13132 for the attached final regulation in a meaningful and timely manner.
This rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), which specifies that before a rule can take effect, the federal agency promulgating the rule shall submit to each House of the Congress and to the Comptroller General a report containing a copy of the rule along with other specified information, and has been transmitted to the Congress and the Comptroller General for review.
Administrative practice and procedure, Advertising, Brokers, Conflict of interest, Consumer protection, Grant programs—health, Grants administration, Health care, Health insurance, Health maintenance organization (HMO), Health records, Hospitals, Indians, Individuals with disabilities, Loan programs-health, Organization and functions (Government agencies), Medicaid, Public assistance programs, Reporting and recordkeeping requirements, Safety, State and local governments, Technical assistance, Women, and Youth.
Administrative practice and procedure, Advertising, Advisory committees, Brokers, Conflict of interest, Consumer protection, Grant programs—health, Grants administration, Health care, Health insurance, Health maintenance organization (HMO), Health records, Hospitals, Indians, Individuals with disabilities, Loan programs-health, Organization and functions (Government agencies), Medicaid, Public assistance programs, Reporting and recordkeeping requirements, Safety, State and local governments, Sunshine Act, Technical Assistance, Women, and Youth.
For the reasons set forth in the preamble, the Department of Health and Human Services amends 45 CFR subtitle A, subchapter B, as set forth below:
Title I of the Affordable Care Act, sections 1301, 1302, 1303, 1304, 1311, 1312, 1313, 1321, 1322, 1331, 1334, 1402, 1411, 1412, 1413, Pub. L. 111-148, 124 Stat. 119 (42 U.S.C. 18021-18024, 18031-18033, 18041-18042, 18051, 18054, 18071, and 18081-18083.
(1) An individual who is seeking eligibility for him or herself through an application submitted to the Exchange, excluding those individuals seeking eligibility for an exemption from the individual shared responsibility payment pursuant to subpart G of this part, or transmitted to the Exchange by an agency administering an insurance affordability program for at least one of the following:
(a)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(2)
(ii) If the Exchange granted a certificate of exemption in this category to an applicant prior to his or her reaching the age of 21, the Exchange must send the applicant a notice upon reaching the age of 21 informing the applicant that he or she must submit a new exemption application to maintain the certificate of exemption.
(3) The Exchange must make an exemption in this category available prospectively or retrospectively.
(d)
(2) The Exchange must make an exemption in this category available only retrospectively.
(e)
(2) The Exchange must make an exemption in this category available only retrospectively.
(f)
(2)
(3) The Exchange must make an exemption available in this category prospectively or retrospectively.
(g)
(i) He or she experienced financial or domestic circumstances, including an unexpected natural or human-caused event, such that he or she had a significant, unexpected increase in essential expenses that prevented him or her from obtaining coverage under a qualified health plan;
(ii) The expense of purchasing a qualified health plan would have caused him or her to experience serious deprivation of food, shelter, clothing or other necessities; or
(iii) He or she has experienced other circumstances that prevented him or her from obtaining coverage under a qualified health plan.
(2)
(i) Eligibility for this exemption is based on projected annual household income;
(ii) An eligible employer-sponsored plan is only considered under paragraphs (g)(2)(iii) and (iv) of this section if it meets the minimum value standard described in § 156.145 of this subchapter.
(iii) For an individual who is eligible to purchase coverage under an eligible employer-sponsored plan, the Exchange determines the required contribution for coverage such that—
(A) An individual who uses tobacco is treated as not earning any premium incentive related to participation in a wellness program designed to prevent or reduce tobacco use that is offered by an eligible employer-sponsored plan;
(B) Wellness incentives offered by an eligible employer-sponsored plan that do not relate to tobacco use are treated as not earned;
(C) In the case of an employee who is eligible to purchase coverage under an eligible employer-sponsored plan sponsored by the employee's employer, the required contribution is the portion of the annual premium that the employee would pay (whether through salary reduction or otherwise) for the lowest cost self-only coverage.
(D) In the case of an individual who is eligible to purchase coverage under an eligible employer-sponsored plan as a member of the employee's family, as defined in 26 CFR 1.36B-1(d), the required contribution is the portion of the annual premium that the employee would pay (whether through salary reduction or otherwise) for the lowest cost family coverage that would cover the employee and all other individuals who are included in the employee's family who have not otherwise been granted an exemption through the Exchange.
(iv) For an individual who is ineligible to purchase coverage under an eligible employer-sponsored plan, the Exchange determines the required contribution for coverage in accordance with section 5000A(e)(1)(B)(ii) of the Code, inclusive of all members of the family, as defined in 26 CFR 1.36B-1(d), who have not otherwise been granted an exemption through the Exchange and who are not treated as eligible to purchase coverage under an eligible employer-sponsored plan, in accordance with paragraph (g)(2)(ii) of this section; and
(v) The applicant applies for this exemption prior to the last date on which he or she could enroll in a QHP through the Exchange for the month or months of a calendar year for which the exemption is requested.
(vi) The Exchange must make an exemption in this category available prospectively, and provide it for all remaining months in a coverage year, notwithstanding any change in an individual's circumstances.
(3)
(4
(5)
(6)
(ii) The Exchange must grant the exemption specified in paragraph (g)(6) of this section to an applicant who meets the standards specified in paragraph (g)(6) of this section for a month on a continuing basis, until such time that the applicant reports that he or she no longer meets the standards provided in paragraph (g)(6) of this section.
(a)
(b)
(c)
(d)
(1) Accept the application from an application filer; and
(2) Provide the tools to file an application.
(3) For applications submitted before October 15, 2014, the Exchange must, at a minimum, accept the application by mail.
(e)
(2) The Exchange may not require an individual who is not seeking an exemption for himself or herself to provide a Social Security number, except as specified in paragraph (e)(3) of this section.
(3) The Exchange must require an application filer to provide the Social Security number of a tax filer who is not an applicant only if an applicant attests that the tax filer has a Social Security number and filed a tax return for the year for which tax data would be utilized for verification of household income and family size for an exemption under § 155.605(g)(2) that requires such verification.
(f)
(g)
(2) The Exchange must assess the timeliness of eligibility determinations made under this subpart based on the period from the date of application to the date the Exchange notifies the applicant of its decision.
(h)
(2) The Exchange will only accept an application for an exemption described in § 155.605(g)(1) during one of the 3 calendar years after the month or months during which the applicant attests that the hardship occurred.
(i)
(j)
(2) In the case of any factor of eligibility that is verified through use of the special circumstances exception described in § 155.615(h), the records that demonstrate qualification for the underlying exemption are the information submitted to the Exchange regarding the circumstances that warranted the use of the exception, as well as records of the Exchange decision to allow such exception.
(a)
(b)
(1) Except as specified in paragraph (b)(2) of this section, accepting a form that reflects that he or she is exempt from Social Security and Medicare taxes under section 1402(g)(1) of the Code;
(2) Except as specified in paragraphs (b)(3) and (4) of this section, accepting his or her attestation of membership in a religious sect or division, and verifying that the religious sect or division to which the applicant attests membership is recognized by the Social Security Administration as an approved religious sect or division under section 1402(g)(1) of the Code.
(3) If information provided by an applicant regarding his or her membership in a religious sect or division is not reasonably compatible with other information provided by the individual or in the records of the Exchange, the Exchange must follow the procedures specified in paragraph (g) of this section.
(4) If an applicant attests to membership in a religious sect or division that is not recognized by the Social Security Administration as an approved religious sect or division under section 1402(g)(1) of the Code, the Exchange must provide the applicant with information regarding how his or her religious sect or division can pursue recognition under section 1402(g)(1) of the Code, and determine the applicant ineligible for this exemption until such time as the Exchange obtains information indicating that the religious sect or division has been approved.
(c)
(i) If information provided by an applicant regarding his or her membership in a health care sharing ministry is not reasonably compatible with other information provided by the individual or in the records of the Exchange, the Exchange must follow the procedures specified in paragraph (g) of this section. The Exchange may not consider an applicant's prior or current enrollment in health coverage as not reasonably compatible with an applicant's attestation of membership in a health care sharing ministry.
(ii) If an applicant attests to membership in a health care sharing ministry that is not known to the Exchange as a health care sharing ministry based on information provided by HHS, the Exchange must provide the applicant with information regarding how an organization can pursue recognition under § 155.615(c)(2), and determine the applicant ineligible for this exemption until such time as HHS
(2) To be considered a health care sharing ministry for the purposes of this subpart, an organization must submit information to HHS that substantiates the organization's compliance with the standards specified in section 5000A(d)(2)(B)(ii) of the Code. If at any time HHS determines that an organization previously considered a health care sharing ministry for the purposes of this subpart no longer meets the standards specified in section 5000A(d)(2)(B)(ii) of the Code, HHS may revoke its earlier decision regarding the status of the health care sharing ministry.
(d)
(2) To the extent that the Exchange is unable to verify an applicant's attestation that he or she was incarcerated for a given month in accordance with the standards specified in § 155.605(e) through the process described in § 155.315(e), the Exchange must follow the procedures specified in paragraph (g) of this section.
(e)
(2) To the extent that the Exchange is unable to verify an applicant's status as a member of an Indian tribe through the process described in § 155.350(c), the Exchange must follow the procedures specified in paragraph (g) of this section.
(f)
(2)
(ii) The Exchange must accept an application filer's attestation for an applicant regarding eligibility for minimum essential coverage other than through an eligible employer-sponsored plan, instead of following the procedures specified in § 155.320(b).
(3)
(4) To the extent that the Exchange is unable to verify any of the information needed to determine an applicant's eligibility for an exemption based on hardship, the Exchange must follow the procedures specified in paragraph (g) of this section.
(g)
(1) Must make a reasonable effort to identify and address the causes of such inconsistency, including typographical or other clerical errors, by contacting the application filer to confirm the accuracy of the information submitted by the application filer;
(2) If unable to resolve the inconsistency through the process described in paragraph (g)(1) of this section, must—
(i) Provide notice to the applicant regarding the inconsistency; and
(ii) Provide the applicant with a period of 90 days from the date on which the notice described in paragraph (g)(2)(i) of this section is sent to the applicant to either present satisfactory documentary evidence via the channels available for the submission of an application, as described in § 155.610(d), except for by telephone, or otherwise to resolve the inconsistency.
(3) May extend the period described in paragraph (g)(2)(ii) of this section for an applicant if the applicant demonstrates that a good faith effort has been made to obtain the required documentation during the period.
(4) During the period described in paragraph (g)(1) and (g)(2)(ii) of this section, must not grant a certificate of exemption based on the information subject to this paragraph.
(5) If, after the period described in paragraph (g)(2)(ii) of this section, the Exchange remains unable to verify the attestation, the Exchange must determine the applicant's eligibility for an exemption based on any information available from the data sources used in accordance with this subpart, if applicable, unless such applicant qualifies for the exception provided under paragraph (h) of this section, and notify the applicant of such determination in accordance with the notice requirements specified in § 155.610(i), including notice that the Exchange is unable to verify the attestation.
(h)
(i)
(j)
(k)
(2) To the extent that the Exchange is unable to validate an individual's Social Security number through the Social Security Administration, or the Social Security Administration indicates that the individual is deceased, the Exchange must follow the procedures specified in paragraph (g) of this section, except that the Exchange must provide the individual with a period of 90 days from the date on which the notice described in paragraph (g)(2)(i) of this section is received for the applicant to provide satisfactory documentary evidence or resolve the inconsistency with the Social Security Administration. The date on which the notice is received means 5 days after the date on the notice, unless the individual demonstrates that he or she did not receive the notice within the 5 day period.
(a)
(b)
(2) The Exchange must allow an individual with a certificate of exemption to report changes via the channels available for the submission of an application, as described in § 155.610(d).
(c)
(1) Verify any information reported by an individual with a certificate of exemption in accordance with the processes specified in § 155.615 prior to using such information in an eligibility redetermination.
(2) Notify an individual in accordance with § 155.610(i) after redetermining his or her eligibility based on a reported change.
(3) Provide periodic electronic notifications regarding the requirements for reporting changes and an individual's opportunity to report any changes, to an individual who has a certificate of exemption for which changes must be reported in accordance with § 155.620(b) and who has elected to receive electronic notifications, unless he or she has declined to receive such notifications.
(d)
(a)
(1) Directly or through contracting arrangements in accordance with § 155.110(a); or (2) Through the approach described in paragraph (b) of this section.
(b)
(1) For an application submitted before October 15, 2014, the Exchange may adopt an exemption eligibility determination made by HHS, provided that—
(i) The Exchange adheres to the eligibility determination made by HHS;
(ii) The Exchange furnishes to HHS any information available through the Exchange that is necessary for an applicant to utilize the process administered by HHS; and
(iii) The Exchange call center and Internet Web site specified in § 155.205(a) and (b), respectively, provide information to consumers regarding the exemption eligibility process.
(2) For an application submitted on or after October 15, 2014, the Exchange may adopt an exemption eligibility determination made by HHS, provided that—
(i) The Exchange accepts the application, as specified in § 155.610(c), and issues the eligibility notice, as specified in § 155.610(i);
(ii) Verifications and other activities required in connection with eligibility determinations for exemptions are performed by the Exchange in accordance with the standards identified in this subpart or by HHS in accordance with the agreement described in paragraph (b)(2)(v) of this section;
(iii) The Exchange transmits to HHS promptly and without undue delay and via secure electronic interface, all information provided as a part of the application or update that initiated the eligibility determination, and any information obtained or verified by the Exchange;
(iv) The Exchange adheres to the eligibility determination made by HHS; and
(v) The Exchange and HHS enter into an agreement specifying their respective responsibilities in connection with eligibility determinations for exemptions.
(a) The individual's name, Social Security number, and exemption certificate number;
(b) Any other information required in guidance published by the Secretary of the Treasury in accordance with 26 CFR 601.601(d)(2).
(a) For an application submitted before October 15, 2014, the Exchange must include the notice of the right to appeal and instructions regarding how to file an appeal in any notification issued in accordance with § 155.610(i).
(b) For an application submitted on or after October 15, 2014, the Exchange must include the notice of the right to appeal and instructions regarding how to file an appeal in any notification issued in accordance with § 155.610(i) and § 155.625(b)(2)(i).
Title I of the Affordable Care Act, Sections 1301-1304, 1311-1312, 1321, 1322, 1324, 1334, 1341-1343, and 1401-1402, 1501, Pub. L. 111-148, 124 Stat. 119 (42 U.S.C. 18042).
The term
The following types of coverage are designated by the Secretary as minimum essential coverage for purposes of section 5000A(f)(1)(E) of the Code:
(a)
(b)
(c)
(d)
(e)
(a) The Secretary may recognize “other coverage” as minimum essential coverage provided HHS determines that the coverage meets the following substantive and procedural requirements:
(1)
(2)
(i) Identity of the plan sponsor and appropriate contact persons;
(ii) Basic information about the plan, including:
(A) Name of the organization sponsoring the plan;
(B) Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization;
(C) Address of the individual named above;
(D) Phone number of the individual named above;
(E) Number of enrollees;
(F) Eligibility criteria;
(G) Cost sharing requirements, including deductible and out-of-pocket maximum limit;
(H) Essential health benefits covered; and
(I) A certification by the appropriate individual, named pursuant to paragraph (a)(3)(ii)(b), that the organization substantially complies with the requirements of title I of the Affordable Care Act that apply to non-grandfathered plans in the individual market and any plan documentation or other information that demonstrate that the coverage substantially comply with these requirements.
(b) CMS will publish a list of types of coverage that the Secretary has recognized as minimum essential coverage pursuant to this provision.
(c) If at any time the Secretary determines that a type of coverage previously recognized as minimum essential coverage no longer meets the coverage requirements of paragraph (a)(1) of this section, the Secretary may revoke the recognition of such coverage.
(d)
The Secretary may audit a plan or program recognized as minimum essential coverage under § 156.604 at any time to ensure compliance with the requirements of § 156.604(a).
In Title 30 of the Code of Federal Regulations, Parts 1 to 199, revised as of July 1, 2012, on page 264, in § 49.11, in paragraph (b), in the table, the last two entries are corrected to read as follows:
(b) * * *
(b)
(c)
(b) Nothing in this memorandum shall be construed to impair or otherwise affect:
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) You are hereby authorized and directed to publish this memorandum in the
(a) promoting sustainable economic development, particularly energy, transportation, housing, other infrastructure, entrepreneurial, and workforce development to drive future economic growth and security;
(b) supporting greater access to, and control over, nutrition and healthcare, including special efforts to confront historic health disparities and chronic diseases;
(c) supporting efforts to improve the effectiveness and efficiency of tribal justice systems and protect tribal communities;
(d) expanding and improving lifelong educational opportunities for American Indians and Alaska Natives, while respecting demands for greater tribal control over tribal education, consistent with Executive Order 13592 of December 2, 2011 (Improving American Indian and Alaska Native Educational Opportunities and Strengthening Tribal Colleges and Universities); and
(e) protecting tribal lands, environments, and natural resources, and promoting respect for tribal cultures.
(b) A member of the Council may designate a senior-level official, who is a full-time officer or employee of the Federal Government, to perform his or her functions.
(c) The Department of the Interior shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations.
(d) The Council shall coordinate its policy development through the Domestic Policy Council.
(e) The Council shall coordinate its outreach to federally recognized tribes through the White House Office of Public Engagement and Intergovernmental Affairs.
(f) The Council shall meet three times a year, with any additional meetings convened as deemed necessary by the Chair.
(a) make recommendations to the President, through the Director of the Domestic Policy Council, concerning policy priorities, including improving the effectiveness of Federal investments in Native American communities, where appropriate, to increase the impact of Federal resources and create greater opportunities to help improve the quality of life for Native Americans;
(b) coordinate, through the Director of the Office of Public Engagement and Intergovernmental Affairs, Federal engagement with tribal governments and Native American stakeholders regarding issues important to Native Americans, including with tribal consortia, small businesses, education and training institutions including tribal colleges and universities, health-care providers, trade associations, research and grant institutions, law enforcement, State and local governments, and community and non-profit organizations;
(c) coordinate a more effective and efficient process for executive departments, agencies, and offices to honor the United States commitment to tribal consultation as set forth in Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation); and
(d) assist the White House Office of Public Engagement and Intergovernmental Affairs in organizing the White House Tribal Nations Conference each year by bringing together leaders invited from all federally recognized Indian tribes and senior officials from the Federal Government to provide for direct government-to-government discussion of the Federal Government's Indian country policy priorities.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) For purposes of this order, “federally recognized tribe” means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
(e) For purposes of this order, “American Indian and Alaska Native” means a member of an Indian tribe, as membership is defined by the tribe.
(f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.