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Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new noise standard for certain newly certificated subsonic jet airplanes and subsonic transport category large airplanes. This noise standard, known as Stage 5, applies to any person submitting an application for a new airplane type design with a maximum certificated takeoff weight of 121,254 pounds (55,000 kg) or more on or after December 31, 2017; or with maximum certificated takeoff weight of less than 121,254 pounds (55,000 kg) on or after December 31, 2020. This change will set a lower noise limit for newly certificated airplanes and harmonize the noise certification standards for those airplanes certificated in the United States with those certificated under international standards.
This rule is effective November 3, 2017. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of November 3, 2017.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the
Mehmet Marsan, Office of Environment and Energy, AEE–100, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267–7703; email
The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44715 Controlling aircraft noise and sonic boom. Under that section, the FAA is charged with prescribing regulations to measure and abate aircraft noise. This regulation is within the scope of that authority since it would establish stricter noise limits for certain newly certificated airplanes. Applicants for type certificates and changes in type design made after the dates in this rulemaking will be required to comply with the new regulation.
This rulemaking adopts a new noise standard for newly certificated subsonic jet airplanes and subsonic transport category large airplanes. By lowering the noise limit, this standard requires quieter designs and encourages manufacturers to adopt the latest available noise reduction technology into their aircraft designs. This rulemaking adopts new noise certification standards for airplanes certificated in the United States (known as Stage 5) that are equivalent to the International Civil Aviation Organization (ICAO) Annex 16, Volume I standard known as Chapter 14.
In a Notice of Proposed Rulemaking (NPRM) titled Stage 5 Airplane Noise Standards, the FAA proposed a new noise standard for certain aircraft to (81 FR 1923, January 14, 2016). A brief history of the FAA's regulation of aircraft noise since 1969 was presented in the preamble to that NPRM.
The new Stage 5 noise standard applies to any person submitting an application for a new airplane type design that has a maximum certificated takeoff weight (MTOW) of 121,254 pounds (maximum certificated takeoff mass (MTOM) 55,000 kg) or more on or after December 31, 2017; or that has a MTOW of less than 121,254 pounds (MTOM less than 55,000 kg) on or after December 31, 2020. This change reduces the noise that may be produced by newly certificated airplanes and harmonizes the noise certification standards for airplanes certificated in the United States with the standard adopted by the International Civil Aviation Organization in Annex 16, Volume 1 Chapter 14, effective July 14, 2014.
Much of the development of a Stage 5 noise standard took place in the international arena through ICAO. The Committee on Aviation Environmental Protection (CAEP) is a technical committee of the ICAO Council. The CAEP assists the Council specifically in formulating new policies and adopting new standards for aircraft noise and emissions, and more generally on matters of the environmental impacts of aviation. The development of ICAO standards follows a structured, transparent and multi-staged process involving a number of technical and non-technical working groups. These working groups are either part of the ICAO or closely associated with it. The activities of the CAEP working groups are guided by the CAEP Steering Group as their oversight committee.
The United States is an active member in CAEP, and has at least one member on each of the five working groups of CAEP. These working groups are named for their focus areas: WG1 for Noise, WG2 for Airports and Operations, WG3 for Emissions, MDG for Modeling and Databases, and FESG for Forecast Economic Analysis Support.
In 2010, the CAEP Working Group for Noise (WG1) was tasked to develop options that would further reduce permissible airplane noise levels. The group met several times over the following two years. Representatives from WG3, the MDG, and the FESG participated in the WG1 meetings to become familiar with the noise stringency options that would be considered when future noise standards were set, and to assist WG1 in setting up databases for comparing the options for costs and benefits.
In coordination with the other participating working groups, WG1 chose five options for reduced noise limits that were more stringent than Chapter 4. The group noted that the stringencies of earlier Chapter 2 and
The activities of the working groups were overseen by the CAEP Steering Group. The Steering Group met in July 2012 to review the results of the analyses prepared by the working groups in order to formulate specific recommendations on the new standard, and on applicability options that were forwarded to the full CAEP.
In February 2013, the comprehensive costs and benefits analyses for the five stringency options that were prepared by the working groups, as well as a parallel analysis of the same five options prepared by the United States, were presented at the ninth meeting of CAEP (CAEP9). After lengthy discussion, the CAEP9 agreed to an increase in stringency of 7 EPNdB
Similar to Chapter 4 requirements, the noise margins for Chapter 14 are calculated by subtracting the measured noise levels at the three microphone locations from the three corresponding noise limits in Chapter 3. However, Chapter 14 includes a mandatory minimum reduction in the noise limits applicable to subsonic jet airplanes with MTOM less than 8,618 kg (MTOW 19,000 pounds). Figure 1 is a graphical representation of the reduction of noise limits at MTOM lower than 8,618 kg for each of the three measurement points. The figure includes the modified Chapter 3 noise limits that use the same gradient of the limit line at lower masses as the higher masses, and transitions to a flat limit line for airplanes with MTOM less than 2,000kg (MTOW 4,409 pounds). This figure is not included in the regulation since the actual limits are calculated based on the MTOM of the aircraft at certification. This figure is an illustration of how the noise limits compare for airplanes of different weights under Chapter 14.
In March 2014, the 201st Session of the ICAO Council adopted the Chapter 14 noise standards for new airplane type designs. Chapter 14 will apply to new type certificates for airplanes with an MTOM of 55,000 kg (MTOW of 121,254 pounds) or more for which applications are submitted on and after December 31, 2017. For airplanes with an MTOM of less than 55,000 kg (MTOW less than 121,254 pounds) the limits apply to certification applications submitted on and after December 31, 2020.
It was noted in the NPRM, and restated for emphasis here, that the adoption of the Stage 5 noise standard for new airplane type designs does not signal the start of any action by the FAA to change the current operational noise limits for any aircraft in the United States. The current U.S. operating rules require that jet aircraft meet at least Stage 3 noise limits (see 14 CFR 91.853 and 91.881). The current noise limit applicable to new type designs is Stage 4 (see § 36.103(c)). The adoption of the Stage 5 noise standard for new airplane type designs does not affect either of these requirements. Changes to the noise operating rules in the United States would be subject to full notice and comment rulemaking procedures, and have not been proposed. The adoption of Stage 5 does not affect either the operation of the current U.S. fleet or new type designs submitted before the applicable compliance date for Stage 5.
On January 14, 2016, the FAA proposed a new noise standard for certain subsonic jet airplanes and subsonic transport category large airplanes, to be known as Stage 5. As proposed, the new certification standard would apply to any person submitting an application for a new airplane type design that has an MTOW of 121,254 pounds (MTOM 55,000 kg) or more on and after December 31, 2017; or with an MTOW of less than 121,254 pounds (MTOM 55,000 kg) on and after December 31, 2020. The change is intended to reduce the noise produced by new airplanes and harmonize the noise certification standards for those airplanes certificated in the United States with the new Chapter 14 ICAO noise standard that was effective July 14, 2014. Failure to harmonize the standards could result in a certification applicant having to show compliance with two different standards, unnecessarily adding to the cost of noise certification without any benefit.
The proposed rule also included a change to appendix B to part 36, section B36.1(b), which allows the use of Annex 16 standards as an alternative for noise testing. The FAA found that the regulation adopted in 2005 inadvertently omitted the phrase “to paragraph (a) of this section” to designate what the Annex was an alternative to. This phrase is added into section B36.1(b) in this rule so that paragraph (b) and the new paragraph (c) (the alternative for Stage 5) will read the same.
The NPRM invited interested persons to participate in the rulemaking by submitting written comments, data, or views. It also invited comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in the NPRM.
The FAA received seven comments in response to the NPRM. Two commenters supported the rule as proposed, four suggested changes to the rule, and one identified a typographical error in the NPRM.
The Boeing Company and Airlines for America (A4A), an association of U.S. air carriers, supported all aspects of the proposal, with A4A including extensive comments supporting the process of working with ICAO in setting noise standards.
Two organizations, the Los Angeles International Airport/Community Roundtable (Roundtable) and the City of Culver City, California requested that the FAA include a phaseout of existing Stage 3 airplanes as part of the adoption of the new Stage 5 noise standards. The Roundtable is a voluntary organization with members from civil associations and government that work to identify and mitigate noise issues that affect the residential communities surrounding Los Angeles International Airport (LAX). Culver City is a municipality in close proximity to LAX.
Culver City considered the lack of a phaseout for Stage 3 airplanes a notable omission from the NPRM, stating that the Airport Noise and Capacity Act of 1990 (ANCA) mandated the implementation of Stage 3 technology by the end of 1999 along with the phase-out of all Stage 2 aircraft over 75,000 pounds. Culver City requested that the FAA promulgate a staged phaseout of Stage 3 aircraft beginning contemporaneously with the implementation of Stage 5 regulations.
The Roundtable requested the same action as Culver City, stating that a phaseout would reduce aircraft noise in a shorter time frame.
The FAA considers the requests to initiate a phaseout of Stage 3 jet aircraft to be beyond the scope of the proposed rule. The NPRM indicated that the proposed certification action was not to be considered a harbinger of a new operational standard. The previous eliminations of Stage 2 jet operations in the contiguous United States were required under two separate statutory provisions by Congress. For larger jets, the phaseout and ultimate prohibition on operation were mandated in ANCA. For jets under 75,000 pounds, Congress mandated a cessation of operations as of January 1, 2015; that statutory ban did not include a phaseout nor did it require any action by the FAA other than to enforce the operational prohibition. The NPRM noted for this rule that the proposal was limited to the adoption of a Stage 5 certification standard, in part to harmonize domestic U.S. certification standards with those of ICAO. These certification actions are sequential, reflect advances in technology, and serve to prevent backsliding by manufacturers. An operational phaseout, such as the one that took place in the 1990's following Congressional direction, is a significant undertaking affecting a different segment of the aviation industry. The ANCA phaseout had no effect on the noise certification basis of airplanes—Stage 3 had been adopted as the noise certification standard effective in 1975 (see § 36.106(b)) and was the standard included by Congress in the 1990 statute. The comments suggesting a new phaseout of Stage 3 jets did not address the significant differences between certification changes and operational restrictions, the length of time any suggested phaseout should take, nor did they present any indication of the significant costs and benefits that would necessarily form the basis of such an action. The proposed Stage 5 rule does not provide any basis to attach an operational restriction, and none is included in the final rule.
An individual commenter suggested five changes to the proposed rule. First, the commenter suggested that section B36.6 of appendix B to part 36 specify that noise tradeoffs are available only for Stage 1, 2 and 3 airplanes. The FAA disagrees in part. For a Stage 1 airplane, tradeoffs would be available only after recertification to Stage 2 (or higher) noise levels; there were no noise levels established for Stage 1 airplanes from which there could be tradeoffs. While the FAA agrees that the notation might be a helpful clarification for Stage 2 and 3 airplanes, the suggestion is outside the scope of the changes proposed in the NPRM. The FAA will keep note of the comment as a suggested change for any future cleanup rule for part 36.
The second suggestion, which was also made by an anonymous commenter, stated that regardless of the applicable noise stringency level, part 36 should specify the latest versions of referenced documents instead of one or more earlier versions.
The FAA disagrees. There are legal requirements attached to the use of non-FAA standards such as ICAO Annex 16. These requirements for Incorporation by Reference (IBR) allow for a specific document to be incorporated, and it must be submitted at the time IBR is requested. It must be identifiable, dated, and meet a certain level of availability. This ensures that a standard can be referenced as complete at the time a regulation is adopted. The IBR rules of the Office of the Federal Register do not allow for a nebulous “current version” to be referenced, since it would then depend on the time a person read a regulation and would present a shifting requirement. Changes to standards based on incorporated documents, such as a later version, can only be made by rulemaking. While this final rule makes changes to the IBR section of part 36 as discussed in the following section, no changes have been made to the final rule based on this comment. Persons interested in how IBR works can learn more by consulting the Office of the Federal Register's handbook that explains the process at
The third suggestion by the individual commenter is to remove the proposed requirement in § 36.106 to include a Chapter 14 equivalency statement in an Airplane Flight Manual (AFM). The comment did not include any justification for this suggested change, nor state any reason it is inappropriate or ineffective in U.S. regulations. Starting with Stage 4, the equivalency statement became standard in the AFM pages. Over the years, noise-related information in the AFM (including the equivalency statements and other supporting documents) developed into an effective resource in demonstrating certificated noise levels of a U.S. registered aircraft operating outside the United States. The FAA plans to keep the equivalency statements for both Stage 4 and 5. No change was made based on this comment.
For reasons unrelated to this comment, we are amending § 36.105 to remove the reference to an IBR at the end of the paragraph. The required language for the flight manual, indicated by quotes in the rule, is not itself an IBR.
The fourth and fifth comments by the individual commenter requested changes to § 36.6, the IBR section for part 36 for matters of “presentation” and identification of ICAO Annex 16. The FAA is adopting a change to the format of § 36.6 as required by the Office of the Federal Register to update its use as a centralized IBR section. As adopted, the content of the IBR paragraph, including the order of the material as stated, complies with the publication requirements of the Office of the Federal Register. The FAA anticipates that the required update of the section will address the commenters concerns.
An anonymous commenter noted that the Web site address given for the availability of ICAO documents no longer works. The FAA will replace the Web site address in the final rule. The updated address for the ICAO Web site is:
The same anonymous commenter asked why Chapter 4 and Stage 4 (or Chapter 14 and Stage 5) do not have the same definitions in part 91, suggesting that they should all be referenced “as described in part 36 of this chapter.”
The U.S. regulations cannot be used to determine what Chapter 4 or Chapter 14 contains or requires. Since the standards are incorporated by reference, their definitions necessarily cite back to the official source in ICAO Annex 16. Further, the FAA is not authorized to make findings of legal compliance to Chapter 4 or Chapter 14; it only certificates aircraft to Stage 4 or 5 (for example). This has led to the IBR references and eventually to the equivalency statements in AFMs since the U.S. does not make findings under ICAO standards. These equivalency statements are meant to assist operators of U.S.-certificated aircraft when they operate in ICAO countries and need to show the noise compliance of their aircraft.
However, we did find that the addition of the definition of Chapter 14 to part 91 is not necessary since part 91 is limited to domestic operating rules and references aircraft by stage. Accordingly, we are adding that definition only to part 36.
Other than the corrections noted, no changes are being made in this final rule based on the comments received. The rule is adopted as proposed.
The FAA was notified by the Office of the Federal Register that the centralized IBR section for part 36 (§ 36.6) needed to be updated to the new format published in 2016. Accordingly, this final rule includes format changes to § 36.6 and to various sections of part 36 and its appendices that reference incorporated documents. In no case is the content or intent of any regulation to be considered changed by this reformatting. Any changes to the substantive effect of any rule would be preceded by full notice and comment rulemaking.
In revising § 36.6 we discovered materials that are no longer referenced in the regulations and have removed them from that section. Within the text of regulations, we have reformatted the identified documents, removed two IBR references that were incorrect, updated Web site references where available and corrected other minor formatting errors discovered on review.
Also, as part of this review, the FAA discovered that § 36.5 contained an outdated reference to statutory authority. That section is amended to replace the old citation to the authority with the current one.
This final rule incorporates by reference the aircraft noise standards for Chapter 14 of the International Civil Aviation Organization (ICAO) Annex 16, Volume 1, Aircraft Noise, Seventh Edition, July 2014, Amendment 11–B, applicable January 1, 2015. These standards are incorporated into § 36.6, and are referenced in various sections as noted in the amendments. As explained in this document, these standards were developed by the ICAO with the participation of the United States. Airplanes that meet Stage 5 noise standards in the United States are considered equivalent of airplanes that meet the Chapter 14 standards.
The incorporated document is available for purchase through the ICAO Web site:
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96–354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96–39) (Trade Act) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with the base year of 1995).
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it being included in the preamble if a full regulatory evaluation of the costs and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for that that determination follows.
Based on the requirements in Executive Order (EO) 13771, the FAA has completed a further analysis of this rule and determined that this action is expected to be an EO 13771 deregulatory action as it will result in cost-savings. Without this rule, the industry will have to show compliance with two different noise standards—one in the United States and the other in EASA. This double noise certification standard will require revising type certification records, aircraft flight manuals, airline operational specifications that will generate unnecessary costs for both industry and the FAA.
This final rule will establish a new Stage 5 noise standard for subsonic jet airplanes and subsonic transport category large airplanes. The final noise standard will apply to new type designs for applications made on or after December 31, 2017, for airplanes with an MTOW of 121,254 pounds (MTOM of 55,000 kilograms) or more; and after December 31, 2020, for airplanes with an MTOW of less than 121,254 pounds (MTOM 55,000 kilograms).
The final noise standard will provide more stringent noise certification standards for Stage 5 airplanes certificated in the United States and will be consistent with those for airplanes certificated under the new ICAO Annex 16 Chapter 14 noise standards. Documents describing the development of the new ICAO rule in more detail, including cost analyses used by ICAO, are available in the docket. These documents include:
Several airplanes currently in production that have an MTOW of more than 121,254 pounds already meet the final Stage 5 noise limits. These airplanes include the Airbus models A–380 and A–350, and Boeing models 747–8 and 787. The FAA received a comment from Boeing supporting the proposed rule.
The applicability date of December 31, 2020, for airplanes with an MTOW of less than 121,254 pounds (MTOM 55,000 kg) was adopted by the ICAO to accommodate the requests of the manufacturers of lighter jet and propeller-driven airplanes for more time to meet the new requirements. For many of the proposed airplane programs announced prior to CAEP9 (2013), analysis shows that such airplanes will be able to meet the proposed Stage 5 standard without any additional cost.
Technological advances that decrease noise are already being adopted on airplanes in the lower weight class, including the geared turbofan engine and quieter control surfaces. These technological advances support the FAA expectation that all manufacturers will be able to meet the new standards after the December 31, 2020, date. This expectation was crucial to the minimal cost determination in the proposed rule, and the FAA specifically requested comments regarding whether existing and expected technological advancements would be sufficient to achieve compliance with the provisions after December 31, 2020. The FAA received no comments on these regulatory estimates for any size airplanes. Accordingly, the FAA has determined that the final rule will have minimal cost and due to the reduced requirements from a single accepted noise certification standard, rather than two standards, this rule will lower industry and government costs. As these cost savings are clearly evident, the cost estimate of these future actions is too uncertain to provide quantified estimate.
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
In either 2017 or 2020, depending on the maximum certificated takeoff weight of the airplane, when the more stringent noise certification requirements in this final rule become effective, all new type design subsonic transport category jet airplanes and transport category large airplanes will be required to meet the Stage 5 noise limits. In the proposed rule, the FAA stated that all manufacturers of subsonic transport category jet airplanes and transport category large airplanes would be able to meet the new noise standards at minimal cost. The FAA invited industry comments on this determination and requested that all comments be accompanied with clear and detailed supporting data. The FAA received no responses to this request for comments on this determination. Accordingly, the FAA has determined that this rule will result in minimal cost.
If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605 (b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.
The Trade Agreement Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this final rule and determined that it will reduce impediments to international trade by aligning United States standards with ICAO standards.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.
For the reasons stated above regarding the expected minimal cost of complying with these standards, this final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The more stringent noise requirements adopted in this final rule will not require any new collection of information and none is associated with this final rule. The FAA has determined that there will be no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this
The agency did not receive any comments, and has determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.
Executive Order (EO) 13771 titled “Reducing Regulation and Controlling Regulatory Costs,” directs that, unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. In addition, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs. Only those rules deemed significant under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” are subject to these requirements.
This rule is expected to be an EO 13771 deregulatory action. Details on the estimated costs savings of this rule can be found in the rule's economic analysis.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of a rulemaking document may be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267–9677.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Aircraft, Aviation safety, Incorporation by reference, Life-limited parts, Reporting and recordkeeping requirements.
Aircraft, Aviation safety, Incorporation by reference, Life-limited parts, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:
42 U.S.C. 4321
(f) * * *
(12) A “Stage 5 noise level” means a noise level at or below the Stage 5 noise limit prescribed in section B36.5(e) of appendix B to this part.
(13) A “Stage 5 airplane” means an airplane that has been shown under this part not to exceed the Stage 5 noise limit prescribed in section B36.5(e) of appendix B to this part.
(14) A “Chapter 14 noise level” means a noise level at or below the Chapter 14 maximum noise level prescribed in Chapter 14 of the ICAO Annex 16, Volume 1, Seventh Edition, Amendment 11–B (Incorporated by reference, see § 36.6).
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at the locations in this paragraph (a) and may be obtained from the sources detailed in paragraphs (a)(1) through (12) of this section.
(1) The U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590.
(2) Federal Aviation Administration New England Regional Headquarters, 12 New England Executive Park, Burlington, MA 01801.
(3) Federal Aviation Administration Eastern Region Headquarters, Federal
(4) Federal Aviation Administration Southern Region Headquarters, 1701 Columbia Avenue, College Park, GA 30337.
(5) Federal Aviation Administration Great Lakes Region Headquarters, O'Hare Lake Office Center, 2300 East Devon Avenue, Des Plaines, IL 60018.
(6) Federal Aviation Administration Central Region Headquarters, Federal Building, 601 East 12th Street, Kansas City, MO 64106.
(7) Federal Aviation Administration Southwest Region Headquarters, 2601 Meacham Boulevard, Fort Worth, TX 76137.
(8) Federal Aviation Administration Northwest Mountain Region Headquarters, 1601 Lind Avenue SW, Renton, WA 98055.
(9) Federal Aviation Administration Western Pacific Region Headquarters, 15000 Aviation Boulevard, Hawthorne, CA 92007.
(10) Federal Aviation Administration Alaskan Region Headquarters, 222 West 7th Avenue, #14, Anchorage, AK 99513.
(11) Federal Aviation Administration European Office Headquarters, 15 Rue de la Loi, Third Floor, B–1040, Brussels, Belgium.
(12) The National Archives and Records Administration (NARA). For information on the availability of this information at NARA, call 202–741–6030 or go to
(b) International Civil Aviation Organization (ICAO), Document Sales Unit, 999 University Street, Montreal, Quebec, H3C 5H7, Canada.
(1) International Standards and Recommended Practices, Annex 16 to the Convention on International Civil Aviation, Environmental Protection, Volume I, Aircraft Noise, Third Edition, July 1993, Amendment 7 effective March 21, 2002, IBR approved for § 36.1(f), and appendices A and B to part 36.
(2) International Standards and Recommended Practices, Annex 16 to the Convention on International Civil Aviation, Environmental Protection, Volume I, Aircraft Noise, Seventh Edition, July 2014, Amendment 11–B, applicable January 1, 2015, IBR approved for § 36.1(f) and appendices A and B to part 36.
(c) International Electrotechnical Commission (IEC) 3 Rue de Varembe, Case Postale 131, 1211 Geneva 20, Switzerland,
(1) Publication No. 179, Precision Level Sound Meters, (IEC 179) 1973, IBR approved for appendix F to part 36.
(2) Publication No. 561, Electro-acoustical Measuring Equipment for Aircraft Noise Certification, first edition, 1976, (IEC 561), IBR approved for appendices G and J to part 36.
(3) Publication No. 651, Sound Level Meters, first edition, 1979, (IEC 651), IBR approved for appendices G and J to part 36.
(4) Publication No. 804, Integrating-averaging Sound Level Meters, first edition, 1985, (IEC 804), IBR approved for appendix J to part 36.
(5) Publication No. 61094–3, Measurement Microphones—Part 3: Primary Method for Free-Field Calibration of Laboratory Standard Microphones by the Reciprocity Technique, edition 1.0, 1995 (IEC 61094–3) IBR approved for appendix A to part 36.
(6) Publication No. 61094–4, Measurement Microphones—Part 4: Specifications for Working Standard Microphones, edition 1.0, 1995, (IEC 61094–4) IBR approved for appendix A to part 36.
(7) Publication No. 61260, Electroacoustics-Octave-Band and Fractional-Octave-Band Filters, edition 1.0, 1995, (IEC 61260), IBR approved for appendix A to part 36.
(8) Publication No, 60942, Electroacoustics-Sound Calibrators, edition 2.0, 1997, (IEC 60942) IBR approved for appendix A to part 36.
(d) Society of Automotive Engineers, Inc. (SAE), 400 Commonwealth Drive, Warrentown, PA 15096,
(1) ARP 866A, Standard Values at Atmospheric Absorption as a Function of Temperature and Humidity for use in Evaluating Aircraft Flyover Noise, March 15, 1975, IBR approved for appendix H to part 36.
(2) [Reserved]
(e) * * *
(5) If an airplane is a Stage 3 airplane prior to a change in type design, and becomes a Stage 5 airplane after the change in type design, the airplane must remain a Stage 5 airplane.
(f)
(2) If an airplane is a Stage 4 airplane prior to a change in type design, and becomes a Stage 5 airplane after the change in type design, the airplane must remain a Stage 5 airplane.
(g)
(c) Type certification applications between January 1, 2006, and the date specified in paragraph (d) or (e) of this section, as applicable for airplane weight. If application is made on or after January 1, 2006, and before the date specified in paragraph (d) or (e) of this section (as applicable for airplane weight), it must be shown that the noise levels of the airplane are no greater than the Stage 4 noise limit prescribed in section B36.5(d) of appendix B of this part. If an applicant chose to voluntarily certificate an airplane to Stage 4 prior to January 2006, then the requirements of § 36.7(f) apply to that airplane.
(d) For airplanes with a maximum certificated takeoff weight of 121,254 pounds (55,000 kg) or more, type certification applications on or after December 31, 2017. If application is made on or after December 31, 2017, it must be shown that the noise levels of the airplane are no greater than the Stage 5 noise limit prescribed in section B36.5(e) of appendix B of this part. Prior to December 31, 2017, an applicant may seek voluntary certification to Stage 5. If Stage 5 certification is chosen, the requirements of § 36.7(g) will apply.
(e) For airplanes with a maximum certificated take‐off weight of less than 121,254 pounds (55,000 kg), type certification applications on or after December 31, 2020. If application is made on or after December 31, 2020, it must be shown that the noise levels of the airplane are no greater than the Stage 5 noise limit prescribed in section B36.5(e) of appendix B of this part. Prior to December 31, 2020, an applicant may seek voluntary certification to Stage 5. If Stage 5 certification is chosen, the requirements of § 36.7(g) will apply.
For each airplane that meets the requirements for Stage 5 certification, the Airplane Flight Manual or operations manual must include the following statement: “The following noise levels comply with part 36, appendix B, Stage 5 maximum noise level requirements and were obtained by analysis of approved data from noise tests conducted under the provisions of part 36, Amendment [insert part 36 amendment number to which the airplane was certificated]. The noise measurement and evaluation procedures used to obtain these noise levels are considered by the FAA to be equivalent to the Chapter 14 noise levels required by the International Civil Aviation Organization (ICAO) in Annex 16, Volume 1, Aircraft Noise, Seventh Edition, July 2014, Amendment 11–B, applicable January 1, 2015.”
A36.1.4 For Stage 4 airplanes, an acceptable alternative for noise measurement and evaluation is Appendix 2 to ICAO Annex 16, Volume I, Amendment 7 (incorporated by reference, see § 36.6).
A36.1.5 For Stage 5 airplanes, an acceptable alternative for noise measurement and evaluation is Appendix 2 to ICAO Annex 16, Volume 1, Amendment 11–B (incorporated by reference, see § 36.6).
A36.3.1.3
A36.3.7.3 The minimum standard for the one-third octave band analysis system is the class 2 electrical performance requirements of IEC 61260 as amended, over the range of one-third octave nominal midband frequencies from 50 Hz through 10 kHz inclusive (incorporated by reference, see § 36.6).
IEC 61260 specifies procedures for testing of one-third octave band analysis systems for relative attenuation, anti-aliasing filters, real time operation, level linearity, and filter integrated response (effective bandwidth).
A36.3.8.1 The acoustical sensitivity of the measurement system must be determined using a sound calibrator generating a known sound pressure level at a known frequency. The minimum standard for the sound calibrator is the class 1L requirements of IEC 60942 as amended (incorporated by reference, see § 36.6).
The revision and additions read as follows:
(b) For Stage 4 airplanes, an acceptable alternative to paragraph (a) of this section for noise measurement and evaluation is Appendix 2 to ICAO Annex 16, Volume I, Amendment 7 (Incorporated by reference, see § 36.6).
(c) For Stage 5 airplanes, an acceptable alternative to paragraph (a) of this section for noise measurement and evaluation is Appendix 2 to ICAO Annex 16, Volume 1, Amendment 11–B (Incorporated by reference, see § 36.6).
(e) For any Stage 5 airplane, the flyover, lateral, and approach maximum noise levels are prescribed in Chapter 14, Paragraph 14.4, Maximum Noise Levels of ICAO Annex 16, Volume I, Amendment 11–B (Incorporated by reference, see § 36.6).
(b) The characteristics of the system must comply with the recommendations in IEC 179 (incorporated by reference, see § 36.6).
(b) The characteristics of the complete system must comply with the requirements in IEC 651 and IEC 561 (incorporated by reference, see § 36.6). Sound level meters must comply with the requirements for Type 1 sound level meters as specified in IEC 651.
(c) The response of the complete system to a sensibly plane progressive sinusoidal wave of constant amplitude must be within the tolerance limits specified in IEC 651, over the frequency range 45 to 11,200 Hz.
(e) The output noise signal must be read through an “A” filter with dynamic characteristics designated “slow” as defined in IEC 651. A graphic recorder, sound level meter, or digital equipment may be used.
(b)
(d) * * *
(1) * * *
(i) The SEL values from each flyover test may be directly determined from an integrating sound level meter complying with the standards of IEC 804 (Incorporated by reference, see § 36.6) for a Type 1 instrument set at “slow” response.
(ii) The acoustic signal from the helicopter, along with the calibration signals specified under paragraph (e) of this section and the background noise signal required under paragraph (f) of this section, may be recorded on a magnetic tape recorder for subsequent analysis for an integrating sound level meter identified in paragraph (d)(1)(i) of this section. The record/playback system (including the audio tape) of the tape recorder must conform to the requirements prescribed in section A36.3.6 of appendix A to this part. The tape recorder shall comply with the specifications of IEC 561 (Incorporated by reference, see § 36.6).
(iii) The characteristics of the complete system shall comply with the recommendations given in IEC 651 (Incorporated by reference, see § 36.6) with regard to the specifications concerning microphone, amplifier, and indicating instrument characteristics.
(iv) The response of the complete system to a sensibly plane progressive wave of constant amplitude shall lie within the tolerance limits specified in Table IV and Table V for Type 1 instruments in IEC 651 for weighting curve “A” over the frequency range of 45 Hz to 11500 Hz.
(2) [Reserved]
49 U.S.C. 106(f), 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506–46507, 47122, 47508, 47528–47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
Except as provided in § 91.873, after December 31, 1999, no person shall operate to or from any airport in the contiguous United States any airplane subject to § 91.801(c), unless that airplane has been shown to comply with Stage 3, Stage 4, or Stage 5 noise levels.
(a) The airplane complies with Stage 3, Stage 4, or Stage 5 noise levels.
(a) * * *
(2) Obtain modifications to meet Stage 3, Stage 4, or Stage 5 noise levels.
For an airplane subject to § 91.801(c) of this subpart and otherwise prohibited from operation to or from an airport in the contiguous United States by § 91.855, any person may apply for a special flight authorization for that airplane to operate in the contiguous United States for the purpose of obtaining modifications to meet Stage 3, Stage 4, or Stage 5 noise levels.
Except as provided in § 91.883, after December 31, 2015, a person may not operate to or from an airport in the contiguous United States a civil subsonic jet airplane subject to § 91.801(e) of this subpart that weighs less than 75,000 pounds unless that airplane has been shown to comply with Stage 3, Stage 4, or Stage 5 noise levels.
(a) * * *
(3) To obtain modifications to the airplane to meet Stage 3, Stage 4, or Stage 5 noise levels.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a safety zone for all navigable waters on the Upper Mississippi River between mile marker (MM) 147.5 and MM 148.5. This action is necessary to provide for the safety of life, vessels and property on these navigable waters near Crystal City, MO while construction work is completed on new power lines extending across the river. Entry of vessels or persons into this safety zone is prohibited unless authorized by the Captain of the Port Sector Upper Mississippi River (COTP) or a designated representative.
This rule is effective from 7:30 a.m. on October, 17, 2017 through 6:30 p.m. on November 1, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Sean Peterson, Chief of Prevention, U.S. Coast Guard; telephone 314–269–2332, email
The Coast Guard preceded this final rule with a Notice of Proposed Rulemaking (NPRM). The NPRM was published in the
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with power line work over the Upper Mississippi River will cause safety concerns. The purpose of this rule is to ensure safety of life, vessels and the navigable waters in the safety zones, before, during, and after the scheduled work.
As noted above, during the comment period for our NPRM that published August 9, 2017, no comments were received. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a safety zone from 7:30 a.m. on October 17, 2017 through 6:30 p.m. on November 1, 2017. The safety zone will be enforced from 7:30 a.m. through 6:30 p.m. each day. The safety zone will cover all navigable waters between mile marker (MM) 147.5 and MM 148.5 on the Upper Mississippi River in Crystal City, MO. The duration of the zone is intended to ensure the safety of vessels and participants on the navigable waters before, during, and after the power line construction work. Entry of vessels or persons into this safety zone is prohibited without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This final rule establishes a safety zone will only be enforced for a period of eleven hours on each of sixteen days on one mile of navigable waters. Entry into the safety zone established through this rulemaking may be requested from the COTP or a designated representative and will be considered on a case-by-case. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Additionally, notice of the safety zone or any changes in the planned schedule will be made via Broadcast and Local Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security 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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting for eleven hours on each of sixteen days during daylight hours and restricts transit on a section of the Upper Mississippi River extending one mile. It is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or a designated representative via VHF–FM channel 16, or Coast Guard Sector Upper Mississippi River by telephone at 314–269–2332. Those persons authorized to be in the safety zone must comply with all lawful orders or directions given to them by the COTP or a designated representative.
(d)
(e)
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving North Carolina's December 9, 2015, State Implementation Plan (SIP) submission pertaining to the Clean Air Act's (CAA or Act) “good neighbor” provision for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). The good neighbor provision requires each state's SIP to address the interstate transport of air pollution in amounts that contribute significantly to nonattainment, or interfere with maintenance, of a NAAQS in any other state. EPA concludes that North Carolina's SIP contains adequate provisions to prohibit emissions within the state from contributing significantly to nonattainment or interfering with maintenance of the 2008 8-hour ozone NAAQS in any other state.
This rule will be effective November 3, 2017.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2017–0321. All documents in the docket are listed on the
Ashten Bailey, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Bailey can also be reached via telephone at (404) 562–9164 and via electronic mail at
On March 27, 2008, EPA promulgated an ozone NAAQS that revised the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm.
On December 9, 2015, North Carolina submitted a SIP submittal containing a certification that North Carolina is meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS because, based on available emissions and air quality modeling data, emissions activities within North Carolina will not significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in any other state. In a notice of proposed rulemaking (NPRM) published on August 10, 2017 (82 FR 37371), EPA proposed to approve North Carolina's SIP as meeting the requirements of prongs 1 and 2 for the 2008 8-hour ozone NAAQS.
EPA is taking final action to approve North Carolina's December 9, 2015, SIP submission addressing the good neighbor infrastructure SIP requirements, section 110(a)(2)(D)(i)(I) (prongs 1 and 2), for the 2008 8-hour ozone NAAQS. EPA is taking final action to approve the SIP submission because it is consistent with section 110 of the CAA. EPA notes that the Agency is not approving any specific rule, but rather concluding that North Carolina's already approved SIP meets certain CAA requirements.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing approval of a State Implementation Plan (SIP) revision submitted by the State of Georgia, Department of Natural Resources, through the Georgia Environmental Protection Division (GA EPD) on January 8, 2014. Georgia's January 8, 2014, SIP revision (Progress Report) addresses requirements of the Clean Air Act (CAA or Act) and EPA's rules that require each state to submit periodic reports describing progress towards reasonable progress goals (RPGs) established for regional haze and a determination of the adequacy of the state's existing SIP addressing regional haze (regional haze plan). EPA is finalizing approval of Georgia's determination that the State's regional haze plan is adequate to meet these RPGs for the first implementation period covering through 2018 and requires no substantive revision at this time.
This rule is effective November 3, 2017.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2016–0634. All documents in the docket are listed on the
Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Notarianni can be reached by phone at (404) 562–9031 and via electronic mail at
States are required to submit a progress report in the form of a SIP revision that evaluates progress towards the RPGs for each mandatory Class I federal area
In a notice of proposed rulemaking (NPRM) published on August 15, 2017 (82 FR 38654), EPA proposed to approve Georgia's January 8, 2014, Progress Report. The details of Georgia's submission and the rationale for EPA's actions are explained in the NPRM. Comments on the proposed rulemaking were due on or before September 14, 2017. EPA received no adverse comments on the proposed action.
EPA is finalizing approval of Georgia's January 8, 2014, Progress Report as meeting the applicable regional haze requirements set forth in 40 CFR 51.308(g) and 51.308(h).
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correction.
This document corrects technical and typographical errors in the final rule that appeared in the August 14, 2017, issue of the
This correction is effective October 1, 2017.
Donald Thompson, (410) 786–4487.
In FR Doc. 2017–16434 of August 14, 2017 (82 FR 37990) there were a number of technical and typographical errors that are identified and corrected by the Correction of Errors section of this correcting document. The provisions in this correcting document are effective as if they had been included in the document that appeared in the August 14, 2017
On page 37990, we are making a conforming correction, removal of the reference to part 488, based on the removal of the regulations text for § 488.5 described in section II.B. of this correcting document.
On pages 38067 and 38068, we are correcting technical errors in our discussion and summary of and response to public comment regarding ICD–10–PCS procedure codes describing procedures involving percutaneous insertion of intraluminal or monitoring device. Specifically, we erroneously referred to a count of 28 procedure codes describing procedures involving the percutaneous insertion of intraluminal and monitoring devices into central nervous system and other cardiovascular body parts rather than 18 procedure codes. Of the 28 codes listed in Table 6P.4b associated with the proposed rule, 10 procedure codes were duplicative, and erroneously included in the table and in the total number of codes referenced in the preamble. As indicated in the final rule, after consideration of the public comments we received, we maintained the designation of 15 procedure codes identified by the commenters. For this reason, we are also correcting Table 6P.4b associated with the final rule (as discussed in section II.E. of this correcting document) to reflect the 3 distinct procedure codes for which we finalized a change in designation, including to remove the listings of ICD–10–PCS procedure codes 00H032Z (Insertion of Monitoring Device into Brain, Percutaneous Approach) and 00H632Z (Insertion of Monitoring Device into Cerebral Ventricle, Percutaneous Approach), which we finalized to maintain as O.R. procedures for FY 2018, and are making conforming changes to the corresponding count of codes listed in that table as indicated on page 38068. Consistent with these corrections, we are also correcting the description of the proposal on page 38067 of the final rule. As a result of the corrections to Table 6P.4b associated with the final rule and the conforming corrections on pages 38067 and 38068, we have made conforming changes to the ICD–10 MS–DRG Definitions Manual Version 35 and ICD–10 MS–DRG Grouper Software Version 35 for FY 2018 to reflect the O.R. designation of ICD–10–PCS procedure codes 00H032Z (Insertion of Monitoring Device into Brain, Percutaneous Approach) and 00H632Z (Insertion of Monitoring Device into Cerebral Ventricle, Percutaneous Approach), as finalized on page 38068 of the final rule for FY 2018.
In addition, after publication of the FY 2018 IPPS/LTCH PPS final rule, we became aware that the logic for the ICD–10 MS–DRG Definitions Manual Version 35 and the ICD–10 MS–DRG Grouper and Medicare Code Editor (MCE) Version 35 Software erroneously designated the following ICD–10–PCS procedure code as a non-O.R. procedure rather than as an O.R. procedure as finalized on page 38072 of the final rule for FY 2018: 0BCC8ZZ (Extirpation of matter from right upper lung lobe, via natural or artificial opening endoscopic). Therefore, we also made changes to the ICD–10 MS–DRG Definitions Manual Version 35 and the ICD–10 MS–DRG Grouper and MCE Version 35 Software to correctly reflect the O.R. designation for this procedure code for FY 2018.
We recalculated the FY 2018 MS–DRG relative weights (and associated statistics, such as average length of stay (ALOS)) as a result of the corrections to the logic for the ICD–10 MS–DRG Grouper Version 35 Software discussed above. In addition, since the MS–LTC–DRGs used under the LTCH PPS for FY 2018 are the same as the MS DRGs used under the IPPS for FY 2018 (and as such use the same ICD–10 MS–DRG Grouper Version 35 Software), we also recalculated the FY 2018 MS–LTC–DRG relative weights (and associated statistics, such as geometric ALOS) for the same reasons.
On page 38119, we made a technical error in describing which ICD–10–PCS procedure codes will be used to identify cases involving ZINPLAVA
On pages 38132 and 38137, in our discussion of the wage indexes, we provided incorrect values for the FY 2018 national average hourly wage (unadjusted for occupational mix) and the FY 2018 occupational mix adjusted national average hourly wage due to inadvertent errors related to the wage data collected from the Medicare cost reports of six hospitals (CMS Certification Numbers (CCNs) 240010, 420033, 420037, 420038, 420078, and 420102).
On page 38144, we made an inadvertent error in the mailing address
On page 38195, in our discussion regarding disproportionate share hospitals (DSHs), we made errors in the June 2017 Office of the Actuary's estimate for FY 2018 Medicare DSH payments.
On page 38225, we made typographical errors in our description of several Hospital Readmissions Reduction Program (HRRP) measures.
On page 38249, in our response to a comment, we advertently referenced the MORT–30–PN measure, instead of the PN Payment measure.
On page 38257 through 38259, in our discussion of the Hospital Value-Based Purchasing (HVBP) Program, we made several typographical and technical errors to references and dates.
On pages 38309 and 38310, we are correcting the MS–LTC–DRG normalization factor and the MS–LTC DRG budget neutrality factor based on the recalculation of the MS–LTC–DRG relative weights due to the corrections to the MS–DRG Grouper Software Version 35 described previously. (Because the MS–LTC–DRGs used under the LTCH PPS are the same as the MS–DRGs used under the IPPS, the corrections to the MS–DRG Grouper Software Version 35 described previously affect the MS–LTC–DRGs groupings by extension.)
On pages 38426, 38434, 38440, and 38458, in our discussion of the LTCH Quality Reporting Program (QRP), we made technical and typographical errors including an error in our description of a quality measure.
On page 38516, we inadvertently retained regulations language from the proposed rule at § 488.5(a)(21), regarding accrediting organizations, after stating in the preamble of the final rule that we had decided not to adopt such language. In addition, on page 38509, we inadvertently retained a description of subjects set out in 42 CFR part 488 in the “List of Subjects.” We are correcting these errors by removing the description of subjects, amendatory instructions, and regulations text for part 488.
On page 38516, in the regulations text provisions for § 495.4 (definitions for the Electronic Health Record (EHR) Incentive Program), we inadvertently omitted the definition of certified electronic health record technology (CEHRT) for 2018.
On page 38517, in the regulations text provisions for § 495.24, we inadvertently omitted an EHR measure change for eligible professionals (EPs) in § 495.24(d)(6)(i)(B)(
As discussed in section II.A. of this correcting document, we are making corrections to the logic for the ICD–10 MS–DRG Grouper Version 35 Software for three ICD–10–PCS procedure codes (0BCC8ZZ, 00H032Z and 00H632Z) that had been erroneously designated as non-O.R. procedures rather than as O.R. procedures as finalized for FY 2018. As a result, we have recalculated the FY 2018 MS–DRG relative weights after applying the changes in the Version 35 MS–DRG groupings to the FY 2016 MedPAR data used for the final rule.
The FY 2018 MS–DRG relative weights are used to calculate the MS–DRG reclassification and recalibration budget neutrality factor when comparing total payments using FY 2017 MS–DRG relative weights to total payments using the FY 2018 MS–DRG relative weights. Additionally, the FY 2018 MS–DRG relative weights are used when determining total payments for purposes of all other budget neutrality factors and the final outlier threshold, which are discussed in this section II.C. of this correcting document.
As discussed in section II.E. of this correcting document, we made several technical errors with regard to the calculation of Factor 3 of the uncompensated care payment methodology. Factor 3 is used to determine the total amount of the uncompensated care payment a hospital is eligible to receive for a fiscal year. This amount is then used to calculate the amount of the interim uncompensated care payments a hospital receives per discharge. Per discharge uncompensated care payments are included when determining total payments for purposes of all of the budget neutrality factors and the final outlier threshold.
As a result, the revisions made to address these technical errors regarding the calculation of Factor 3 directly affected the calculation of total payments and required the recalculation of all the budget neutrality factors and the final outlier threshold.
Because of the errors in the wage data for the six hospitals (CCNs 240010, 420033, 420037, 420038, 420078, and 420102), as discussed in section II.A. of this correcting document, we recalculated the FY 2018 national average hourly wages unadjusted for occupational mix and adjusted for occupational mix which resulted in the recalculation of the final FY 2018 IPPS wage indexes and the geographic adjustment factors (GAFs) (which are computed from the wage index). The final FY 2018 IPPS wage data are used in the calculation of the wage index budget neutrality adjustment when comparing total payments using the final FY 2017 IPPS wage index data to total payments using the final FY 2018 IPPS wage index data. Additionally, the final FY 2018 IPPS wage index data are used when determining total payments for purposes of the rest of the budget neutrality factors (except for the MS–DRG reclassification and recalibration budget neutrality factor) and the final outlier threshold. In addition, the final FY 2018 IPPS wage index data are used to calculate the FY 2018 LTCH PPS wage index values, certain budget neutrality factors, and the LTCH PPS standard Federal payment rate in the FY 2018 IPPS/LTCH PPS final rule.
Due to the correction of the combination of errors listed previously (recalculation of the MS–DRG relative weights, revisions to Factor 3 of the uncompensated care methodology and correction to the final FY 2018 IPPS wage index data), we recalculated all IPPS budget neutrality adjustment factors, the fixed-loss cost threshold, the final wage indexes (and GAFs), and the national operating standardized amounts and capital Federal rate. Therefore, we made conforming changes to the following:
• On page 38522 and 38532, the MS–DRG reclassification and recalibration budget neutrality factor.
• On page 38522, the wage index budget neutrality adjustment.
• On page 38522, the reclassification hospital budget neutrality adjustment.
• On page 38523, the rural and imputed floor budget neutrality adjustment.
• On page 38527, the calculation of the outlier fixed-loss cost threshold, the national outlier adjustment factors, total operating Federal payments, total operating outlier payments, and percentage of capital outlier payments.
• On page 38529, the table titled “Changes From FY 2017 Standardized Amounts to the FY 2018 Standardized Amounts”.
On pages 38532 and 38534 through 38535, in our discussion of the determination of the Federal hospital inpatient capital related prospective payment rate update, due to the recalculation of the MS–DRG relative weights and GAFs we have made conforming corrections to the increase in the capital Federal rate, the capital outlier payment adjustment (budget neutrality) factor, the GAF/DRG budget neutrality adjustment factors, the capital Federal rate, and the outlier threshold (as discussed previously), along with
Also, as a result of these errors, on page 38535, we have made conforming corrections in the tables showing the comparison of factors and adjustments for the FY 2017 capital Federal rate and FY 2018 capital Federal rate and the proposed FY 2018 capital Federal rate and final FY 2018 capital Federal rate.
On pages 38537 and 38539, we are correcting the area wage level budget neutrality factor and making a conforming change to the FY 2018 LTCH PPS standard Federal payment rate due to corrections to the wage data discussed previously.
On page 38544, we are making conforming corrections to the fixed-loss amount for FY 2018 LTCH PPS standard Federal payment rate discharges and the high-cost outlier (HCO) threshold determined in absence of the required changes under the 21st Century Cures Act due to corrections in the MS–LTC–DRG data discussed previously.
On page 38545, we are making conforming corrections to the fixed-loss amount for site neutral discharges due to corrections in the IPPS rates and factors discussed previously.
On pages 38546 and 38547, we are making conforming corrections to the figures used in the example of computing the adjusted LTCH PPS Federal prospective payment for FY 2018.
On page 38548, we have made conforming corrections to the following:
• National adjusted operating standardized amounts and capital standard Federal payment rate (which also include the rates payable to hospitals located in Puerto Rico) in Tables 1A, 1B, 1C, and 1D as a result of the conforming corrections to certain budget neutrality factors and the outlier threshold (as described previously).
• LTCH PPS standard Federal payment rate in Table 1E as a result of the correction to area wage level budget neutrality factor (as discussed previously).
Also, on page 38548, in Table 1E, we are correcting a technical error in our terminology by replacing “Standard Federal Rate” with `Standard Federal Payment Rate”.
On pages 38552 through 38560 and 38572 through 38574 in our regulatory impact analyses, we made conforming corrections to the factors, values, and tables and accompanying discussion of the changes in operating and capital IPPS payments for FY 2018 and the effects of certain budget neutrality factors as a result of the technical errors that lead to conforming changes in our calculation of the operating and capital IPPS budget neutrality factors, outlier threshold, final wage indexes, operating standardized amounts, and capital Federal rate (as described in sections II.A. and II.C. of this correcting document).
In particular, we made changes to the following tables.
• On pages 38552 through 38554, the table titled “Table I.—Impact Analysis of Changes to the IPPS for Operating Costs for FY 2018”.
• On pages 38557 through 38558, the table titled “FY 2018 IPPS Estimated Payments Due To Rural and Imputed Floor With National Budget Neutrality”.
• On pages 38559 and 38560, the table titled “Table II—Impact Analysis of Changes for FY 2018 Acute Care Hospital Operating Prospective Payment System [Payments per Discharge]”.
• On pages 38572 through 38574, the table titled “Table III—Comparison of Total Payments Per Case [FY 2017 Payments Compared to FY 2018 Payments]”.
On pages 38561 through 38564, we are correcting the discussion of the “Effects of the Changes to Medicare DSH and Uncompensated Care Payments for FY 2018” for purposes of the Regulatory Impact Analysis in Appendix A of the FY 2018 IPPS/LTCH PPS final rule in light of the corrections discussed in sections II.D. and II.E. of this correcting document.
On pages 38576 and 38578 through 38579, we made conforming corrections to the area wage level budget neutrality factor and the LTCH PPS standard Federal payment rate as described in section II.C. of this correcting document.
On page 38579, we are making conforming corrections to “Table IV.—Impact of Payment Rate and Policy Changes to LTCH PPS Payments for Standard Payment Rate Cases for FY 2018.” We are also correcting technical errors in the terminology used in the title and column headings of Table IV by ensuring the use of “Standard Federal Payment Rate”.
On page 38585, we made conforming corrections to the estimated increase in capital payments in FY 2018 compared to FY 2017.
We are correcting the errors in the following IPPS tables that are listed on pages 38547 and 38548 of the FY 2018 IPPS/LTCH PPS final rule and are available on the Internet on the CMS Web site at
Table 2—Case-Mix Index and Wage Index Table- FY 2018. The wage data errors related to the six hospitals required the recalculation of the FY 2018 national average hourly wages unadjusted for occupational mix and adjusted for occupational mix which resulted in recalculating the FY 2018 wage indexes. Also, the recalculation of the MS–DRG relative weights, the revisions to Factor 3 of the uncompensated care payment methodology and recalculation of the FY 2018 wage index necessitated the recalculation of the rural and imputed floor budget neutrality factor (as discussed in section II.C. of this correcting document). Therefore, we are correcting the values in the column titled “FY 2018 Wage Index” for all hospitals. Additionally, for the six hospitals for which we inadvertently used the incorrect wage data (as discussed in section II.A. of this correcting document), we are correcting the average hourly wages in the columns titled “Average Hourly Wage FY 2018” and “3-Year Average Hourly Wage (2016, 2017, 2018)”.
Table 3.—Wage Index Table by CBSA–FY 2018. The wage data errors related to the six hospitals required the recalculation of the FY 2018 national average hourly wage adjusted for occupational mix which resulted in recalculating the FY 2018 wage indexes. Also, the recalculation of the MS–DRG relative weights, the revisions to Factor 3 of the uncompensated care payment methodology, and recalculation of the FY 2018 wage index necessitated the recalculation of the rural and imputed floor budget neutrality factor (as discussed in section II.C. of this correcting document). Therefore, we are making corresponding changes to the wage indexes and GAFs of all CBSAs listed in Table 3. Specifically, we are correcting the values and flags in the columns titled “Wage Index”, “Reclassified Wage Index”, “GAF”, “Reclassified GAF”, “Pre-Frontier and/or Pre-Rural or Imputed Floor Wage Index” and “Eligible for Rural or Imputed Floor Wage Index”. Additionally, for the two CBSAs (24860 and 40340) where the six hospitals for which we inadvertently used the incorrect wage data are located (as discussed in section II.A. of this correcting document), we are correcting the average hourly wages in the
Table 5.—List of Medicare Severity Diagnosis-Related Groups (MS–DRGs), Relative Weighting Factors, and Geometric and Arithmetic Mean Length of Stay—FY 2018. We are correcting this table to reflect the recalculation of the FY 2018 MS–DRG relative weights and associated statistics as a result of the corrections to the logic for the ICD–10 MS–DRG Grouper Version 35 Software discussed in section II.A. of this correcting document. Specifically, we are correcting the values in the columns titled “Weights”, “Geometric mean LOS”, and “Arithmetic mean LOS”.
Table 6P.—ICD–10–CM and ICD–10–PCS Code Designations, MCE and MS–DRG Changes—FY 2018. As discussed in section II.A of this correcting document, we are correcting the list of the ICD–10–PCS procedure codes in Table 6P.4b to reflect the three ICD–10–PCS procedure codes relating to the percutaneous insertion of intraluminal or monitoring devices that are finalized as non-O.R. procedures for FY 2018.
Table 7B.—Medicare Prospective Payment System Selected Percentile Lengths of Stay: FY 2016 MedPAR Update—March 2017 GROUPER V35.0 MS–DRGs. We are correcting this table to reflect the recalculation of the FY 2018 MS–DRG relative weights and associated statistics as a result of the corrections to the logic for the ICD–10 MS–DRG Grouper Version 35 Software discussed in section II.A. of this correcting document.
Table 10—New Technology Add-On Payment Thresholds for Applications for FY 2019. We are correcting the thresholds in this table as a result of the corrections to the operating standardized amounts discussed in section II.C. of this correcting document.
Table 18.—Final FY 2018 Medicare DSH Uncompensated Care Payment Factor 3. We are correcting this table to reflect revisions to the Factor 3 calculations for purposes of determining uncompensated care payments for the FY 2018 IPPS/LTCH PPS final rule for the following reasons:
• To apply our finalized policy of double weighting the 2013 Factor 3 instead of developing a 2014 Factor 3 using uncompensated care cost data from Worksheet S–10 for several all-inclusive rate providers.
• To reflect mergers where data for the merged hospital were not combined with the data for the surviving hospital for purposes of calculating Factor 3 for the FY 2018 IPPS/LTCH PPS Final Rule.
• To correct the Factor 3 that was computed for a hospital whose FY 2014 cost report in the March 2017 extract of Healthcare Cost Report Information System (HCRIS) inadvertently omitted amended uncompensated care cost data reported on an amended Worksheet S–10 that had been received timely per CR 9648 issued on July, 15, 2016, and that was inadvertently omitted from the hospital's 2014 cost report when it was uploaded into HCRIS.
• To correct the Factor 3 that was computed for a hospital that only had Factor 3 values for two cost reporting periods, but whose Factor 3 was inadvertently calculated by dividing by three cost reporting periods when averaging the Factor 3 values.
• To correct the misapplication of our new hospital policy, where hospitals with a CMS Certification Number (CCN) established after October 1, 2013, but before October 1, 2014, were inadvertently considered subject to that policy when calculating Factor 3. As stated in the FY 2018 IPPS/LTCH PPS final rule (82 FR 38212), only those hospitals with a CCN established after October 1, 2014, are considered new and subject to the new hospital policy when calculating Factor 3 for FY 2018.
We are revising Factor 3 for all hospitals to correct these errors. We are also revising the amount of the total uncompensated care payment calculated for each DSH-eligible hospital. The total uncompensated care payment that a hospital receives is used to calculate the amount of the interim uncompensated care payments the hospital receives per discharge. Per discharge uncompensated care payments are included when determining total payments for purposes of all of the budget neutrality factors and the final outlier threshold. As a result, these corrections to the uncompensated care payments impacted the calculation of all the budget neutrality factors as well as the outlier fixed-loss cost threshold for outlier payments. These corrections will be reflected in Table 18 and the Medicare DSH Supplemental Data File. In section II.D. of this correcting document, we have made corresponding revisions to the discussion of the “Effects of the Changes to Medicare DSH and Uncompensated Care Payments for FY 2018” for purposes of the Regulatory Impact Analysis in Appendix A of the FY 2018 IPPS/LTCH PPS final rule to reflect the corrections discussed previously.
We are also correcting the errors in the following LTCH PPS tables that are listed on page 38548 of the FY 2018 IPPS/LTCH PPS final rule and are available on the Internet on the CMS Web site at
Table 11.—MS–LTC–DRGs, Relative Weights, Geometric Average Length of Stay, and Short-Stay Outlier (SSO) Threshold for LTCH PPS Discharges Occurring from October 1, 2017 through September 30, 2018. We are correcting this table to reflect the recalculation of the FY 2018 MS–LTC–DRG relative weights and associated statistics as a result of the corrections to the logic for the Version 35 Grouper Software discussed in section II.A. of this correcting document.
Table 12A.—LTCH PPS Wage Index for Urban Areas for Discharges Occurring from October 1, 2017 through September 30, 2018. We are correcting this table to reflect the revisions to the LTCH PPS wage index values discussed in section II.C. of this correcting document.
Table 12B.—LTCH PPS Wage Index for Rural Areas for Discharges Occurring from October 1, 2017 through September 30, 2018. We are correcting this table to reflect the revisions to the LTCH PPS wage index values discussed in section II.C. of this correcting document.
We also note that we have made conforming changes to the ICD–10 MS–DRG Definitions Manual Version 35 for consistency with the ICD–10 MS–DRG Grouper and Medicare Code Editor (MCE) Version 35 Software. First, the ICD–10–CM diagnosis code P05.18 (Newborn small for gestational age, 2000–2499 grams) was displayed in the ICD–10 MS–DRG Definitions Manual Version 35 as grouping to both MS–DRGs 793 (Full Term Neonate with Major Problems) and 795 (Normal Newborn). The correct MS–DRG assignment for diagnosis code P05.18 is only MS–DRG 795; therefore, corrections were made to the ICD–10 MS–DRG Definitions Manual Version 35 to reflect the correct MS–DRG assignment. Second, the following 9 diagnosis codes were not included in the major problem list in the MS–DRG Definitions Manual: K56.600 (Partial intestinal obstruction, unspecified as to cause); K56.601 (Complete intestinal obstruction, unspecified as to cause);
We ordinarily publish a notice of proposed rulemaking in the
Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication in the
We believe that this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document corrects technical and typographic errors in the preamble, regulations text, addendum, payment rates, tables, and appendices included or referenced in the FY 2018 IPPS/LTCH PPS final rule but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the information in the FY 2018 IPPS/LTCH PPS final rule accurately reflects the policies adopted in that final rule.
In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2018 IPPS/LTCH PPS final rule accurately reflects our policies. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply implementing correctly the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the FY 2018 IPPS/LTCH PPS final rule accurately reflects these payment methodologies and policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.
In FR Doc. 2017–16434 of August 14, 2017 (82 FR 37990), we are making the following corrections:
1. On page 37990, first column, line 8 (Part headings), the figures “486, 488, 489, and 495” are corrected to read “486, 489, and 495”.
2. On page 38067—
a. Second column, last partial paragraph, line 1, the figure “28” is corrected to read “18”.
b. Third column—
(1) First partial paragraph—
(a) Line 7, the phrase “28 ICD–10–PCS” is corrected to read “28 (18 discrete) ICD–10–PCS”.
(b) Line 15, the phrase “O.R. procedures. We invite public” is corrected to read “O.R. procedures. (We note that Table 6P.4b. associated with the proposed rule listed 28 rather than 18 ICD–10–PCS codes because we inadvertently included 10 duplicate codes. However only 18 discrete ICD–10–PCS codes were listed in that table.) We invite public”.
(2) First full paragraph—
(a) Line 3, the figure “28” is corrected to read “18”.
(b) Line 9, the figure “28” is corrected to read “18”.
3. On page 38068, top half of the page (between the untitled tables) first column—
a. First paragraph, line 5, the figure “28” is corrected to read “18”.
b. Second paragraph, line 4, the figure “13” is corrected to read “3”.
4. On page 38119, third column, first partial paragraph, lines 25 and 26, the phrase “XW033A3 and XW043A3.” is corrected to read “XW033A3 or XW043A3.”
5. On page 38132—
a. Second column, first paragraph, last line, the figure “$42.1027” is corrected to read “$42.0795”.
b. Third column, first partial paragraph, line 4, the figure $42.1027” is corrected to read “$42.0795”.
6. On page 38137, third column—
a. First full paragraph, last line, the figure $42.0564” is corrected to read “$42.0332”.
b. Last full paragraph, last line, the figure $42.0564” is corrected to read “$42.0332”.
7. On page 38144, first column, first partial paragraph, lines 8 through 10, the phrase “2520 Lord Baltimore Drive, Suite L, Baltimore, MD 21244– 2670.” is corrected to read “1508 Woodlawn Drive, Suite 100, Baltimore, MD 21207.”.
8. On page 38195—
a. Top of the page, third column, first full paragraph, line 19, the figure “$15.533” is corrected to read “$15.553”.
b. Bottom of the page in the table titled “FACTORS APPLIED FOR FY 2015 THROUGH FY 2018 TO ESTIMATE MEDICARE DSH EXPENDITURES USING 2014 BASELINE” last row (FY 2018), last column (Estimated DSH payment), the entry “15.533” is corrected to read “15.553”.
9. On page 38225—
a. First column, last bulleted paragraph, lines 3 through 5, the phrase “(AMI–Version 8.0, HF–Version 8.0, Pneumonia–Version 8.0, COPD–Version 4.0, and Stroke–Version 4.0: 2016” is corrected to read “(AMI–Version 9.0, HF–Version 9.0, Pneumonia–Version 9.0, COPD–Version 5.0, and Stroke–Version 5.0: 2016”.
b. Second column; first bulleted paragraph, lines 2 through 4, the phrase “(THA and/or TKA–Version 4.0, CABG–Version 2.0: 2016” is corrected to read “(THA and/or TKA–Version 5.0, CABG–Version 3.0: 2016)”.
10. On page 38249, second column, last paragraph, lines 23 and 24, the parenthetical phrase “(for example, the MORT–30–PN measure)” is corrected to read “(for example, PN Payment measure)”.
11. On page 38257, third column, footnote paragraph (footnote 69), last line, the date “Mar 1997” is corrected to read “Mar 1977”.
12. On page 38258, first column, third paragraph—
a. Lines 8 and 9, the reference “(78 FR 50074;” is corrected to read “(79 FR 50074;”.
b. Line 9, the reference “80 FR 49588).” is corrected to read “80 FR 49558).”.
13. On page 38259, first column, first partial paragraph, line 14, the date “June 0” is corrected to read “June 30”.
14. On page 38309, third column, first full paragraph, line 29 the figure “1.28590” is corrected to read “1.28593”.
15. On page 38310, first column—
a. First full paragraph, line 29, the figure “0.9907845” is corrected to read “0.9907437”.
b. Second full paragraph—
(1) Line 5, the figure “1.28590” is corrected to read “1.28593”.
(2) Line 6, the figure “0.9907845” is corrected to read “0.9907437”.
16. On page 38426—
a. First column, second full paragraph, line 21, the phrase “an Application of Percent” is corrected to read “Application of Percent”.
b. Third column, third full paragraph, line 10, the phrase “criteria; however should” is corrected to read “criteria. However, the measure should”.
17. On page 38434, in the first column, second paragraph—
a. Line 29, the phrase “Stage 3 or 4 ulcers.” is corrected to read “Stage 3 or 4 pressure ulcers.”.
b. Line 31, the phrase “Stage 1 and 2 ulcers decreased” is corrected to read “Stage 1 and 2 pressure ulcers decreased”.
c. Line 32, the phrase ” of Stage 3 and 4 ulcers” is corrected to read “of Stage 3 and 4 pressure ulcers”.
18. On page 38440, third column, last paragraph—
a. Lines 10 and 11, the phrase “That nearly one third” is corrected to read “The fact that nearly one third”.
b. Lines 16 and 17, the phrase “LTCH, and also indicates” is corrected to read “LTCH. It also indicates”.
19. On page 38458, third column, second full paragraph—
a. Lines 21 through 23, the phrase (measure name) “Functional Outcome Measure: Change in Mobility Among Patients Requiring Ventilator Support (NQF #2632).” is corrected to read “Functional Outcome Measure: Change in Mobility Among Long-Term Care Hospital (LTCH) Patients Requiring Ventilator Support (NQF #2632).”.
b. Lines 31 through 34, the phrase (measure name) “Functional Outcome Measure: Change in Mobility Among Patients Requiring Ventilator Support (NQF #2632)” is corrected to read “Functional Outcome Measure: Change in Mobility Among Long-Term Care Hospital (LTCH) Patients Requiring Ventilator Support (NQF #2632).”
20. On page 38509, second column, eighth full paragraph (List of subjects 42 CFR 488), the paragraph is corrected by removing the paragraph.
1. On page 38516, in the first column, remove the part heading for part 488 and remove amendatory instructions 34 and 35 in their entirety.
2. On page 38516, in the second column, after amendatory instruction 39a, add amendatory instruction a2 to read—
“a2. In the definition of “Certified electronic health record technology (CEHRT)”:
i. In paragraph (1)(iii), removing the phrase “for 2018 subsequent years” and adding in its place the phrase “for 2019 and subsequent years”; and
ii. In the introductory text of paragraph (2), removing the phrase “For 2018 and subsequent years,” and adding in its place the phrase “For 2019 and subsequent years,”.”
3. On page 38517, second column, sixth full paragraph, amendatory instruction 41d is corrected and amendatory instructions 41e and f are correctly added to read as follows:
“d. Revising the paragraph (d) heading.
e. In paragraph (d)(6)(i)(B)(
f. Revising paragraphs (d)(6)(i)(B)(
1. On page 38522 —
a. Second column, first full paragraph—
(1) Line 3, the figure “0.997432” is corrected to read “0.997439”.
(2) Line 8, the figure “0.997432” is corrected to read “0.997439”.
b. Third column—
(1) First full paragraph, line 9, the figure “1.001148” is corrected to read “1.000882”.
(2) Last paragraph, line 11 the figure “0.988008” is corrected to read “0.987985”.
2. On page 38523, second column, first partial paragraph, line 2, the figure “0.993348” is corrected to read “0.993324”.
3. On page 38527, lower two-thirds of the page (after the first untitled table), third column—
a. First partial paragraph—
(1) Line 4, the figure “$26,601” is corrected to read “$26,537”.
(2) Line 5, the figure “85,942,484,975” is corrected to read “$90,203,348,168”.
(3) Line 6, the figure “$4,618,707,285” is corrected to read “$4,600,554,656”.
(4) Line 17, the figure “$26,601” is corrected to read “$26,537”.
b. First full paragraph, line 13, the figure “5.16” is corrected to read “5.17”.
c. Following the third full paragraph, the untitled table is corrected to read as follows:
4. On page 38529, top of the page, the table titled “CHANGES FROM FY 2017 STANDARDIZED AMOUNTS TO THE FY 2018 STANDARDIZED AMOUNTS”, is corrected to read as follows:
5. On page 38532, lower two-thirds of the page (after the untitled table)—
a. First column, second full paragraph, line 13, the figure “0.997432” is corrected to read “0.997439”.
b. Third column, second full paragraph, line 6, the figure “1.61” is corrected to read “1.60”.
6. On page 38534—
a. First column—
(1) First full paragraph—
(a) Line 8, the figure “5.16” is corrected to read “5.17”.
(b) Line 12, the figure “0.9484” is corrected to read “0.9483”.
(2) Second full paragraph—
(a) Lines 5 and 6, the phrase “outlier adjustment of 0.9484 is a 1.04 percent change” is corrected to read “outlier adjustment of 0.9483 is a 1.03 percent change”.
(b) Line 10, the figures “1.0104 (0.9484/0.9386)” are corrected to read “1.0103(0.9483/0.9386)”.
(c) Line 12, the figure “1.04” is corrected to read “1.03”.
(3) Fourth full paragraph—
(a) Line 13, the figure “0.9994” is corrected to read “0.9995”.
(b) Line 16, the figure “0.9844” is corrected to read “0.99845”.
b. Second column—
(1). First partial paragraph, line 8, the figure “0.9837” is corrected to read “0.9838”.
(2). Third full paragraph—
(a) Line 1, the figure “0.9986” is corrected to read “0.9987”.
(b) Line 3, the figure “0.9994” is corrected to read “0.9995”.
c. Third column—
(1). First full paragraph—
(a) Line 4, the figure “1.61” is corrected to read “1.60”.
(b) Line 15, the figure “$453.97” is corrected to read “$453.95”.
(c) Second bulleted paragraph, last line, the figure “0.9986” is corrected to read “0.9987”.
(d) Third bulleted paragraph, last line, the figure “0.9484” is corrected to read “0.9483”.
(e) Last paragraph—
(1) Line 15, the figure “0.14” is corrected to read “0.13”.
(2) Line 18, the figure “1.04” is corrected to read “1.03”.
7. On page 38535—
a. Top of page—
(1) Second column, first partial paragraph, last line, the figure “1.61” is corrected to read “1.60”.
(2) The table titled “COMPARISON OF FACTORS AND ADJUSTMENTS: FY 2017 CAPITAL FEDERAL RATE AND FY 2018 CAPITAL FEDERAL RATE” is corrected to read as follows:
b. Middle of page, the table titled “COMPARISON OF FACTORS AND ADJUSTMENTS: PROPOSED FY 2018 CAPITAL FEDERAL RATE AND FINAL FY 2018 CAPITAL FEDERAL RATE” is corrected to read as follows:
c. Lower third of the page, first column, second full paragraph, last line, the figure, “$26,601” is corrected to read “$26,537”.
8. On page 38537—
a. First column last paragraph—
(1) Line 22, the figure “1.0006434” is corrected to read “1.0002704”.
(2) Line 35, the figure “$41,430.56” is corrected to read “$41,415.11”.
(3) Line 36, the figure “1.0006434” is corrected to read “1.0002704”.
b. Second column, first partial paragraph—
(1) Line 5, the figure “40,610.16” is corrected to read “$40,595.02”.
(2) Line 6, the figure “1.0006434” is corrected to read “1.0002704”.
9. On page 38539, second column, fourth full paragraph—
a. Line 6, the figure “1.0006434” is corrected to read “1.0002704”.
b. Line 11, the figure “1.0006434” is corrected to read “1.0002704”.
10. On page 38544—
a. First column—
(1) First partial paragraph—
(a) Line 6, the figure “27,382” is corrected to read “27,381”.
(b) Last line, the figure “27,382” is corrected to read “27,381”.
(2) First full paragraph—
(a) Line 4, the figure “27,382” is corrected to read “27,381”.
(b) Line 27, the figure “27,240” is corrected to read “27,239”.
(3) Second column, first partial paragraph, line 25, the figure “27,382” is corrected to read “27,381”.
10. On page 38545—
a. Second column, second full paragraph—
(1) Line 14, the figure, “$26,601” is corrected to read “$26,537”.
(2) Last line, the figure, “$26,601” is corrected to read “$26,537”.
b. Third column, second full paragraph, line 3, the figure, “$26,601” is corrected to read “$26,537”.
11. On page 38546, third column—
a. Second full paragraph, line 27, the figure “$41,430.56” is corrected to read “$41,415.11”.
b. Last paragraph, line 7, the figure “1.0547” is corrected to read “1.0553”.
12. On page 38547, top of the page—
a. Second column, partial paragraph—
(1) Line 2, the figure “$41,430.56” is corrected to read “$41,415.11”.
(2) Line 3, the figure “1.0547” is corrected to read “1.0553”.
b. Third column, partial paragraph, line 5, the figure “$41,449.71” is corrected to read “$41,450.13”.
c. Untitled table, the table is corrected to read as follows:
13. On page 38548—
a. Middle of the page,
(1) The table titled “TABLE 1A.—NATIONAL ADJUSTED OPERATING STANDARDIZED AMOUNTS, LABOR/NONLABOR [(68.3 PERCENT LABOR SHARE/31.7 PERCENT NONLABOR SHARE IF WAGE INDEX IS GREATER THAN 1)—FY 2018”] is corrected to read as follows:
(2) The table titled “TABLE 1B.—NATIONAL ADJUSTED OPERATING STANDARDIZED AMOUNTS, LABOR/NONLABOR [(62 PERCENT LABOR SHARE/38 PERCENT NONLABOR SHARE IF WAGE INDEX IS LESS THAN OR EQUAL TO 1)—FY 2018]” is corrected to read as follows:
(3) The table titled “TABLE 1C.—ADJUSTED OPERATING STANDARDIZED AMOUNTS FOR HOSPITALS IN PUERTO RICO, LABOR/NONLABOR [(NATIONAL: 62 PERCENT LABOR SHARE/38 PERCENT NONLABOR SHARE BECAUSE WAGE INDEX IS LESS THAN OR EQUAL TO 1);—FY 2018]” is corrected to read as follows:
b. Bottom of the page—
(1) The table titled “TABLE 1D.—CAPITAL STANDARD FEDERAL PAYMENT RATE [FY 2018]” is corrected to read as follows:
(2) The table titled “TABLE 1E.—LTCH PPS STANDARD FEDERAL PAYMENT RATE [FY 2018]” is corrected to read as follows:
1. On pages 38552 through 38554, the table and table notes for the table titled “TABLE I.—IMPACT ANALYSIS OF CHANGES TO THE IPPS FOR OPERATING COSTS FOR FY 2018” are corrected to read as follows:
2. On page 38555,
a. Second column, second full paragraph—
(1) Line 6, the figure “0.997432” is corrected to read “0.997439”.
(2) Line 14, the figure “0.2” is corrected to read “0.1”.
b. Third column, first full paragraph, line 26, the figure “1.001148” is corrected to read “1.000882”.
3. On page 38556, lower half of the page—
a. First column, third full paragraph, line 6, the figure “0.988008” is corrected to read “0.987985”.
b. Third column—
(1) First full paragraph, line 8, the figure “0.993348” is corrected to read “0.993324”.
(2) Last paragraph, line 5, the figure “0.993348” is corrected to read “0.993324”.
4. On page 38557, top of the page, first column, first partial paragraph, line 20, the figure “$44 million” is corrected to read “$43 million”.
5. On pages 38557 and 38558, the table titled “FY 2018 IPPS ESTIMATED PAYMENTS DUE TO RURAL AND IMPUTED FLOOR WITH NATIONAL BUDGET NEUTRALITY” is corrected to read as follows:
6. On pages 38559 and 38560, the table titled “TABLE II.—IMPACT ANALYSIS OF CHANGES FOR FY 2018 ACUTE CARE HOSPITAL OPERATING PROSPECTIVE PAYMENT SYSTEM (PAYMENTS PER DISCHARGE)” is corrected to read as follows:
7. On pages 38561 through 38564 in the section titled “Effects of the Changes to Medicare DSH and Uncompensated Care Payments for FY 2018” (which begins with the phrase “As discussed in section V.G of the preamble” and ends with the phrase “hospitals are projected to receive large increases”) the section is corrected to read as follows:
“5. Effects of the Changes to Medicare DSH and Uncompensated Care Payments for FY 2018.
As discussed in section V.G. of the preamble of this final rule, under section 3133 of the Affordable Care Act, hospitals that are eligible to receive Medicare DSH payments will receive 25 percent of the amount they previously would have received under the statutory formula for Medicare DSH payments under section 1886(d)(5)(F) of the Act. The remainder, equal to an estimate of 75 percent of what formerly would have been paid as Medicare DSH payments (Factor 1), reduced to reflect changes in the percentage of uninsured individuals and additional statutory adjustments (Factor 2), is available to make additional payments to each hospital that qualifies for Medicare DSH payments and that has uncompensated care. Each hospital eligible for Medicare DSH payments will receive an additional payment based on its estimated share of the total amount of uncompensated care for all hospitals eligible for Medicare DSH payments. The uncompensated care payment methodology has redistributive effects based on the proportion of a hospital's uncompensated care relative to the uncompensated care for all hospitals eligible for Medicare DSH payments (Factor 3).
For FY 2018, we are establishing a Factor 2 of 58.01 percent determined using the uninsured estimates produced by CMS' Office of the Actuary (OACT) as part of the development of the National Health Expenditure Accounts (NHEA). Although we are continuing to use low-income insured patient days as a proxy for uncompensated care, for the first time, we are using these data in combination with data on uncompensated care costs from Worksheet S–10 in the calculation of Factor 3. The uncompensated care payment methodology has redistributive effects based on the proportion of a hospital's uncompensated care relative to the total uncompensated care for all hospitals eligible for Medicare DSH payments. The change to Medicare DSH payments under section 3133 of the Affordable Care Act is not budget neutral.
In this final rule, we are establishing the amount to be distributed as uncompensated care payments to DSH eligible hospitals, which for FY 2018 is $6,766,695,163.56. This figure represents 75 percent of the amount that otherwise would have been paid for Medicare DSH payment adjustments adjusted by a Factor 2 of 58.01 percent. For FY 2017, the amount available to be distributed for uncompensated care was $5,977,483,146.86, or 75 percent of the amount that otherwise would have been paid for Medicare DSH payment adjustments adjusted by a Factor 2 of 55.36 percent. To calculate Factor 3 for FY 2018, we used an average of data computed using Medicaid days from hospitals' 2012 and 2013 cost reports from the March 2017 update of the HCRIS database, uncompensated care costs from hospitals' 2014 cost reports from the same extract of HCRIS, Medicaid days from 2012 cost report data submitted to CMS by IHS hospitals, and SSI days from the FY 2014 and FY 2015 SSI ratios. For each eligible hospital, we calculated an individual Factor 3 for cost reporting years FYs 2012, 2013, and 2014. We then added the individual amounts and divided the sum by the number of cost reporting periods with data to calculate an average Factor 3 for FY 2018. For purposes of this final rule, as we proposed, we used the most recent data from the March 2017 update of the HCRIS database for the Medicaid days component of the Factor 3 calculation as well as for the Worksheet S–10 uncompensated care cost component.
The FY 2018 policy of using data from hospitals' FY 2012, FY 2013, and FY 2014 cost reporting years to determine Factor 3 is based on our FY 2017 final policy (81 FR 56943 through 56973), which is in contrast to the methodology used in FY 2016, when we used Medicaid days from the more recent of a hospital's full year 2012 or 2011 cost report from the March 2015 update of the HCRIS database, Medicaid days from 2012 cost report data submitted to CMS by IHS hospitals, and SSI days from the FY 2013 SSI ratios to calculate Factor 3. In addition, as explained in section V.G.4.c. of the preamble of this final rule, we are making several additional modifications to the Factor 3 methodology: (1) To annualize Medicaid data and uncompensated care data if a hospital's cost report does not equal 12 months of data; (2) to apply a scaling factor to the uncompensated care payment amount calculated for each DSH eligible hospital so that total uncompensated care payments are consistent with the estimated amount available to make uncompensated care payments for FY 2018; (3) to apply statistical trims to the CCRs on Worksheet S–10 that are considered anomalies to ensure reasonable CCRs are used to convert charges to costs for purposes of determining uncompensated care costs; (4) to calculate Factor 3 for Puerto Rico hospitals, all-inclusive rate providers, and Indian Health Service and Tribal hospitals by substituting data regarding low-income insured days for FY 2013 for the Worksheet S–10 data on uncompensated care costs from FY 2014 cost reports; and (5) to determine the ratio of uncompensated care costs relative to total operating costs on the hospital's 2014 cost report (as of March 2017), and in cases where the ratio of uncompensated care costs relative to total operating costs exceeds 50 percent, to determine the ratio of uncompensated care costs to total operating costs from the hospital's 2015 cost report (as of March 2017) and apply that ratio to the hospital's total operating costs from its 2014 cost report to determine uncompensated care costs for FY 2014.
We also are continuing the policies that were finalized in the FY 2015 IPPS/LTCH PPS final rule (79 FR 50020 through 50022) to address several specific issues concerning the process and data to be employed in determining Factor 3 in the case of hospital mergers for FY 2018 and subsequent years, as well as continuing the policies finalized in the FY 2017 IPPS/LTCH PPS final rule concerning the methodology for calculating each hospital's relative share of uncompensated care, such as combining data from multiple cost reports beginning in the same fiscal year and calculating Factor 3 based on an average of the three individual Factor 3s for FYs 2012, 2013, and 2014, determined by adding the Factor 3 values for these years, and dividing by the number of cost reporting periods with data.
To estimate the impact of the combined effect of changes in Factors 1 and 2, as well as the changes to the data used in determining Factor 3, on the calculation of Medicare DSH payments, including both empirically justified Medicare DSH payments and uncompensated care payments, we compared total DSH payments estimated in the FY 2017 IPPS/LTCH PPS final rule to total DSH payments estimated in this FY 2018 IPPS/LTCH PPS final rule. For FY 2017, for each hospital, we calculated the sum of: (1) 25 percent of the estimated amount of what would have been paid as Medicare DSH in FY 2017 in the absence of section 3133 of the Affordable Care Act; and (2) 75 percent of the estimated amount of what would have been paid as Medicare DSH payments in the absence of section 3133 of the Affordable Care Act, adjusted by a Factor 2 of 55.36 percent and multiplied by a Factor 3 calculated as described in the FY 2017 IPPS/LTCH PPS final rule. For FY 2018, we calculated the sum of: (1) 25 percent of the estimated amount of what would be paid as Medicare DSH payments in FY 2018 absent section 3133 of the Affordable Care Act; and (2) 75 percent of the estimated amount of what would be paid as Medicare DSH payments absent section 3133 of the Affordable Care Act, adjusted by a Factor 2 of 58.01 percent and multiplied by a Factor 3 calculated using the methodology described previously.
Our analysis included 2,438 hospitals that are projected to be eligible for DSH in FY 2018. It did not include hospitals that had terminated their participation in the Medicare program as of July 1, 2017, Maryland hospitals, and SCHs that are expected to be paid based on their hospital specific rates. In addition, data from merged or acquired hospitals were combined under the surviving hospital's CCN, and the non-surviving CCN was excluded from the analysis. The estimated impact of the changes to Factors 1, 2, and 3 across all hospitals projected to be eligible for DSH payments in FY 2018, by hospital characteristic, is presented in the following table.
Changes in projected FY 2018 DSH payments from DSH payments in FY 2017 are primarily driven by (1) changes to Factor 1, which increased from $10.797 billion to $11.665 billion; (2) changes to Factor 2, which increased
As seen in the above table, percent changes in DSH payments of less than 11.3 percent indicate that hospitals within the specified category are projected to experience a smaller increase in DSH payments, on average, compared to the universe of projected FY 2018 DSH hospitals. Conversely, percent changes in DSH payments that are greater than 11.3 percent indicate a hospital type is projected to have a larger increase than the overall percent change on average, a larger increase than the overall percent change. The variation in the distribution of DSH payments by hospital characteristic is largely dependent on the change in a given hospital's number of Medicaid days and SSI days for purposes of the low-income insured days proxy between FY 2017 and FY 2018, as well as on its uncompensated care costs as reported on its FY 2014 Worksheet S–10.
Many rural hospitals, grouped by geographic location, payment classification, and bed size, are projected to experience a larger increase in DSH payments than their urban counterparts. Overall, rural hospitals are projected to receive an 18.3 percent increase in DSH payments, and urban hospitals are projected to receive a 10.9 percent increase. However, only smaller and medium-sized rural hospitals are projected to receive increases in DSH payments that are, on average, higher than the 11.3 percent change across all hospitals that are projected to be eligible for DSH in FY 2018. Rural hospitals that have 0–99 beds are projected to experience a 25.2 percent payment increase, those with 100–249 beds are projected to receive a 14.6 percent increase, and larger rural hospitals with 250+ beds are projected to experience an 8.2 percent payment increase. This trend is somewhat consistent with urban hospitals, in which the smallest urban hospitals (0– 99 beds) are projected to receive an increase in DSH payments of 30.7 percent. Medium sized hospitals (100–250 beds) and larger hospitals (250+ beds) are projected to receive increases of 10.8 and 10.4 percent in DSH payments, respectively, which are relatively consistent with the overall average.
By region, projected DSH payment increases for urban hospitals are smaller than the overall percent change in the New England, Middle Atlantic, East North Central, East South Central, and Pacific regions. Hospitals in the South Atlantic and West South Central regions are projected to receive increases in DSH payments that are, on average, larger than the 11.3 percent change across all hospitals projected to be eligible for DSH in FY 2018. Increases in the West North Central, Mountain, and Puerto Rico regions are generally consistent with the overall average percent increase of 11.3 percent. Regionally, rural hospitals are projected to receive a wider range of increases. Rural hospitals in the Middle Atlantic and Pacific regions are expected to receive a decrease in DSH payments, while those in the East South Central region are projected to receive an increase in DSH payments smaller than the 11.3 overall percent change. Increases are projected to be substantially larger than the overall average in many regions, including New England, South Atlantic, East North Central, West North Central, West South Central, and Mountain.
Nonteaching hospitals and teaching hospitals with fewer than 100 residents are projected to receive smaller increases than the overall percent change, at 10.9 and 9.0 percent respectively. Conversely, teaching hospitals with 100 or more residents are projected to receive, on average, larger increases than the overall percent change of 11.3 percent, with a projected increase of 13.8 percent. Voluntary hospitals are expected to receive a 9.4 percent increase, which is somewhat smaller than the overall percent change, while proprietary hospitals are expected to receive almost no change in DSH payments. Government hospitals are projected to receive a larger than average 30.0 percent increase. Hospitals with 25 to 50 percent Medicare utilization are projected to receive increases in DSH payments slightly below the overall average at 9.8 percent, while all other hospitals are projected to receive larger increases.”
8. On page 38572 top of the page—
a. First column, fourth bulleted paragraph—
(1) Line 4, the figure “0.9986” is corrected to read “0.9987”
(2) Line 5, the figure “0.9484” is corrected to read “0.9483”
b Second column, first full paragraph—
(1) Line 8, the figure “0.9484” is corrected to read “0.9483”
(2) Line 9, the figure “1.04” is corrected to read “1.03”.
c. Third column—
(1) First partial paragraph—
(a) Line 1, the figure “2.9” is corrected to read “3.0”
(b) Line 4, the figure 2.0” is corrected to read “1.9”.
(2) First full paragraph –
(a) Line 4, the figure “3.7” is corrected to read “3.8”.
(b) Line 9, the figure “5.2” is corrected to read “5.3”.
(c) Line 12, the figure “1.9” is corrected to read “2.0”.
(3) Second full paragraph—
(a) Line 7, the figure “2.3” is corrected to read “2.2”.
(b) Lines 10 and 11, the phrase “3.2 percent.” is corrected to read “3.2 percent and 3.3 percent, respectively.”.
(4) Last paragraph—
(a) Line 14, the figure “1.6” is corrected to read “1.7”.
(b) Line 27, the figure “6.6” is corrected to read “6.5”.
9. On pages 38572 through 38574, the table titled “TABLE III.—COMPARISON OF TOTAL PAYMENTS PER CASE [FY 2017 PAYMENTS COMPARED TO FY 2018 PAYMENTS]
10. On page 38576—
a. First column, last paragraph, line 4, the figure “$41,430.56” is corrected to read “$41,415.11”.
b. Second column—
(1) First partial paragraph—
(a) Line 1, the figure “1.0006434” is corrected to read “1.0002704”.
(b) Line 12, the figure “$40,610.16” is corrected to read “$40,595.02”.
(2) Second full paragraph, line 14, the figure “1.0006434” is corrected to read “1.0002704”.
11. On page 38578, second column, second full paragraph—
a. Line 21, the figure “$41,430.56” is corrected to read “$41,415.11”.
b. Line 22, the figure “$40,610.16” is corrected to read “$40,595.02”.
12. On page 38579—
a. Top of the page, the table title and the table titled “TABLE IV: IMPACT OF PAYMENT RATE AND POLICY CHANGES TO LTCH PPS PAYMENTS FOR STANDARD PAYMENT RATE CASES FOR FY 2018 [Estimated FY 2017 payments compared to estimated FY 2018 payments]” are corrected to read as follows:
b. Lower fourth of the page, third column, partial paragraph, line 5, the figure “1.0006434” is corrected to read “1.0002704”.
13. On page 38585, middle of the page, first column, first paragraph—
a. Lines 34, the figure “2.7” is corrected to read “2.5”.
b. Line 38, the figure “$226” is corrected to read “$227”.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correction.
This document corrects technical errors in the final rule that appeared in the August 4, 2017
This correction is effective October 1, 2017.
John Kane, (410) 786–0557.
In FR Doc. 2017–16256 (82 FR 36530), the final rule entitled “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities for FY 2018, SNF Value-Based Purchasing Program, SNF Quality Reporting Program, Survey Team Composition, and Correction of the Performance Period for the NHSN HCP Influenza Vaccination Immunization Reporting Measure in the ESRD QIP for PY 2020”, there were a number of technical errors that are identified and corrected in section IV., Correction of Errors. The provisions in this correcting document are effective as if they had been included in the document that appeared in the August 4, 2017,
As discussed in the FY 2018 SNF PPS final rule (82 FR 36539), in developing the wage index to be applied to skilled nursing facilities (SNFs) under the SNF prospective payment system (PPS), we use the updated, pre-reclassified hospital inpatient prospective payment system (IPPS) wage data, exclusive of the occupational mix adjustment. For FY 2018, the updated, unadjusted, pre-reclassified IPPS wage data used under the SNF PPS are for hospital cost reporting periods beginning on or after October 1, 2013, and before October 1, 2014 (FY 2014 cost report data), as discussed in the FY 2018 IPPS final rule (82 FR 38130). In calculating the wage index under the FY 2018 IPPS final rule, we made inadvertent errors related to the wage data collected from the Medicare cost reports of six hospitals which are located in CBSAs 24860 and 40340. Specifically, we used incorrect wage data for these six hospitals to calculate the final FY 2018 IPPS wage indexes, the geographic adjustment factor (GAF) (which is computed from the wage index), as well as certain other IPPS factors and adjustments.
These errors are identified, discussed and corrected in the Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2018 Rates; Quality Reporting Requirements for Specific Providers; Medicare and Medicaid Electronic Health Record (EHR) Incentive Program Requirements for Eligible Hospitals, Critical Access Hospitals, and Eligible Professionals; Provider-Based Status of Indian Health Services and Tribal Facilities and Organizations; Cost Reporting and Provider Requirements; Agreement Termination Notices; Correction (CMS–1677–CN) that appears elsewhere in this issue of the
As discussed above, we use the updated, pre-reclassified, unadjusted IPPS wage data in developing the wage index used under the SNF PPS. Due to the technical errors described above, the published FY 2018 SNF PPS wage indexes were incorrect. Thus, the use of the corrected wage data for the six hospitals required the recalculation of the final FY 2018 SNF PPS wage indexes. Additionally, as discussed on page 36543 of the FY 2018 SNF PPS final rule, section 1888(e)(4)(G)(ii) of the Act requires that we apply the wage index in a manner that does not result in aggregate payments under the SNF PPS that are greater or less than would otherwise be made if the wage index adjustment had not been made. To achieve this, we apply a budget neutrality factor to the unadjusted SNF PPS federal per diem base rates. Due to the recalculation and subsequent revision of the final FY 2018 SNF PPS wage indexes, it was necessary to recalculate the FY 2018 SNF PPS wage index budget neutrality factor as well. Revising the wage index budget neutrality factor causes a change in the unadjusted SNF PPS federal per diem rates (provided in Tables 2 and 3 of the FY 2018 SNF PPS final rule (82 FR 36535)), which then causes changes in the case-mix adjusted SNF PPS rates (provided in Tables 4 and 5 in the FY 2018 SNF PPS final rule (82 FR 36537 through 36538), as well as the labor adjusted SNF PPS rates (provided in Tables 6 and 7 of the FY 2018 SNF PPS final rule (82 FR 36541 through 36543). Finally, due to the recalculated wage indexes, we recalculated the impact analysis provided in Table 26 of the FY 2018 SNF PPS final rule (82 FR 36629). The corrections to these errors are found in section IV. of this document.
We are correcting the wage indexes in Tables A and B setting forth the wage indexes for urban (Table A) and non-urban (Table B) areas based on CBSA labor market areas, which are available exclusively on the CMS Web site at
We are republishing the wage indexes in Tables A and B accordingly on the CMS Web site at
We ordinarily publish a notice of proposed rulemaking in the
Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the
We believe that this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. The document corrects technical errors in the FY 2018 SNF PPS final rule and in the tables referenced in the final rule, but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the information in the FY 2018 SNF PPS final rule accurately reflects the policies adopted in that final rule.
In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2018 SNF PPS final rule and the tables referenced in the final rule accurately reflect our methodologies, payment rates, and policies. Furthermore, such procedures would be unnecessary, as we are not making substantive changes to our payment methodologies or policies, but rather, we are simply implementing correctly the methodologies and policies that we previously proposed, requested comment on, and subsequently finalized. This correcting document is intended solely to ensure that the FY 2018 SNF PPS final rule and the tables referenced in the final rule accurately reflect these methodologies and policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.
In FR Doc. 2017–16256 of August 4, 2017 (82 FR 36530), make the following corrections:
1. On page 36535, TABLE 2—FY 2018 UNADJUSTED FEDERAL RATE PER DIEM URBAN is corrected to read as follows:
2. On page 36535, TABLE 3—FY 2018 UNADJUSTED FEDERAL RATE PER DIEM RURAL is corrected to read as follows:
3. On page 36536, third column, first full paragraph,
a. Line 21, the figure “$443.08” is corrected to read “$442.95”.
b. Line 26, the figure “$1,010.22.” is corrected to read “$1,009.93.”.
4. On page 36537, TABLE 4—RUG-IV CASE-MIX ADJUSTED FEDERAL RATES AND ASSOCIATED INDEXES—URBAN is corrected to read as follows:
5. On page 36538, TABLE 5—RUG-IV CASE-MIX ADJUSTED FEDERAL RATES AND ASSOCIATED INDEXES—RURAL is corrected to read as follows:
6. On pages 36541 through 36542, TABLE 6—RUG-IV CASE–MIX ADJUSTED FEDERAL RATES FOR URBAN SNFS BY LABOR AND NON-LABOR COMPONENT is corrected to read as follows:
7. On pages 36542 through 36543, TABLE 7–RUG-IV CASE-MIX ADJUSTED FEDERAL RATES FOR RURAL SNFS BY LABOR AND NON-LABOR COMPONENT is corrected to read as follows:
8. On page 36543, under Table 7,
a. Second column, first partial paragraph, line 15, the figure “1.0013” is corrected to read “1.0010”.
b. Third column, first full paragraph, line 16, the figure “$47,596.42” is corrected to read “$47,602.52”.
9. On page 36543, TABLE 8—ADJUSTED RATE COMPUTATION EXAMPLE SNF XYZ: LOCATED IN FREDERICK, MD (URBAN CBSA 43524) WAGE INDEX: 0.9863 [See Wage Index in Table A]
10. On pages 36629, TABLE 26—PROJECTED IMPACT TO THE SNF PPS FOR FY 2018 is corrected to read as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary delay in reporting requirements; determination of catastrophic conditions.
In accordance with the regulations implementing the individual fishing quota (IFQ) and Federal dealer reporting programs specific to the commercial reef fish fishery in the Gulf of Mexico (Gulf), the coastal migratory pelagic (CMP) fisheries in the Gulf and the Atlantic, the spiny lobster fishery of the Gulf and Atlantic, and the snapper-grouper and dolphin-wahoo fisheries in the South Atlantic, the Regional Administrator, Southeast Region, NMFS (RA) has determined that Hurricane Irma has caused catastrophic conditions in the following Florida counties: Manatee, Sarasota, DeSoto, Charlotte, Lee, Collier, Monroe, Miami-Dade, and Broward. Consistent with those regulations, the RA has authorized any dealer in the affected area who does not have access to electronic reporting to delay reporting of trip tickets to NOAA Fisheries from September 29, 2017, through October 31, 2017. The RA has also authorized IFQ participants within this affected area to use paper-based forms, if necessary, for basic required administrative functions,
The RA is authorizing applicable Federal dealers and IFQ participants reporting within this affected area to use revised reporting methods from September 29, 2017, through October 31, 2017.
IFQ Customer Service, telephone: 866–425–7627, fax: 727–824–5308, email:
The reef fish fishery of the Gulf is managed under the Fishery Management Plan (FMP) for Reef Fish Resources of the Gulf of Mexico, prepared by the Gulf of Mexico Fishery Management Council. The snapper-grouper fishery of the South Atlantic is managed under the Snapper-Grouper FMP of the South Atlantic, prepared by the South Atlantic Fishery Management Council. The dolphin-wahoo fishery of the South Atlantic is managed under the Dolphin-Wahoo FMP of the South Atlantic, prepared by the South Atlantic Fishery Management Council. The fishery for CMP fish (king mackerel, Spanish mackerel, and cobia) is managed under the FMP for the CMP Resources of the Gulf of Mexico and South Atlantic, prepared by both Councils. The fishery for spiny lobster is managed under the FMP for Spiny Lobster of the Gulf of Mexico and South Atlantic, prepared by both Councils. All FMPs are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Generic Dealer Amendment established Federal dealer reporting requirements for federally permitted dealers in the Gulf and South Atlantic (79 FR 19490, April 9, 2014). Amendment 26 to the FMP established an IFQ program for the commercial red snapper component of the Gulf reef fish fishery (71 FR 67447, November 22, 2006). Amendment 29 to the FMP established an IFQ program for the commercial grouper and tilefish components of the Gulf reef fish fishery (74 FR 44732, August 31, 2009). Regulations implementing these IFQ programs (50 CFR 622.21 and 622.22) and the dealer reporting requirements (50 CFR 622.5(c)) require that Federal dealers and IFQ participants have access to a computer and Internet and that they conduct administrative functions associated with dealer reporting and the IFQ program,
Hurricane Irma made landfall in the U.S. near Cudjoe Key, Florida, as a Category 4 hurricane then made a subsequent landfall near Marco Island, Florida, as a Category 3 hurricane on September 10, 2017. Strong winds and flooding from this hurricane impacted communities throughout Florida, resulting in power outages and damage to homes, businesses, and infrastructure. As a result, the RA has determined that catastrophic conditions exist in the following Florida counties: Manatee, Sarasota, DeSoto, Charlotte, Lee, Collier, Monroe, Miami-Dade, and Broward. Through this temporary rule, the RA is authorizing Federal dealers to delay reporting of trip tickets to NOAA Fisheries and IFQ participants within this affected area to use paper-based forms, from September 29, 2017, through October 31, 2017. NMFS will provide additional notification to affected participants via NOAA Weather Radio, Fishery Bulletins, and other appropriate means. NOAA Fisheries will continue to monitor and re-evaluate the areas and duration of the catastrophic conditions.
Dealers may delay electronic reporting of trip tickets to NMFS during catastrophic conditions. Dealers are to report all landings to NMFS as soon as possible. Assistance for Federal dealers in effected areas is available from the Fisheries Monitoring Branch at 1–305–361–4581. NMFS previously provided IFQ dealers with the necessary paper forms (sequentially coded) and instructions for submission in the event of catastrophic conditions. Paper forms are also available from the RA upon request. The electronic systems for submitting information to NMFS will continue to be available to all participants, and participants in the affected area are encouraged to continue using these systems, if accessible.
The administrative program functions available to IFQ participants in the area
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of reef fish, CMP species, spiny lobster, dolphin-wahoo, and snapper-grouper, managed under the Gulf IFQ Programs and the Federal dealer reporting programs, as applicable, and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.5(c), 622.21(a)(3)(iii), and 622.22(a)(3)(iii), and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because this temporary rule is issued without opportunity for prior notice and comment.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because the final rules implementing the Gulf IFQ programs and the Gulf and Atlantic Federal dealer reporting have already been subject to notice and public comment. These rules authorize the RA to determine when catastrophic conditions exist, and which participants or geographic areas are deemed affected by catastrophic conditions. The final rules also authorize the RA to provide timely notice to affected participants via publication of notification in the
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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure.
NMFS is opening directed fishing for Pacific ocean perch in the Bering Sea subarea of the Bering Sea and Aleutian Islands management area. This action is necessary to fully use the 2017 total allowable catch of Pacific ocean perch specified for the Bering Sea subarea of the Bering Sea and Aleutian Islands management area.
Effective 1200 hrs, Alaska local time (A.l.t.), October 1, 2017, through 1200 hrs, A.l.t., December 31, 2017. Comments must be received at the following address no later than 4:30 p.m., A.l.t., October 19, 2017.
Submit your comments, identified by NOAA–NMFS–2016–0140, by either of the following methods:
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Steve Whitney, 907–586–7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
NMFS closed directed fishing for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (82 FR 11826, February 27, 2017).
NMFS has determined that approximately 3,800 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2017 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 1, 2017, through 1200 hrs, A.l.t., December 31, 2017. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.
The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of POP directed fishing in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 20, 2017.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 19, 2017.
This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Credit Union Administration (NCUA).
Proposed rule with request for comments.
The NCUA Board (Board) proposes to revise certain provisions of NCUA's advertising rule to provide regulatory relief to federally insured credit unions (FICUs). The advertising rule requires FICUs to use NCUA's “official advertisement statement” when advertising. In addition to being permitted to use any of the three current versions of the official advertising statement, the Board proposes to allow FICUs the option of using a fourth version, namely by stating “Insured by NCUA.” To provide additional regulatory relief, the Board proposes to expand a current exemption from the advertising statement requirement regarding radio and television advertisements, and eliminate the requirement to include the official advertising statement on statements of condition required to be published by law.
Comments must be received on or before December 4, 2017.
You may submit comments by any of the following methods (Please send comments by one method only):
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Marvin Shaw, Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518–6553.
The Federal Credit Union Act (Act) requires each FICU to display NCUA's “official sign” regarding National Credit Union Share Insurance Fund insurance of the FICU's share accounts. The sign includes language that the coverage is backed by the full faith and credit of the United States Government.
Part 740 applies to all FICUs. It prescribes requirements for both the NCUA's official sign that FICUs must display and the NCUA's official advertisement statement that FICUs must make when advertising. In relevant part, part 740 prohibits any FICU from using advertising
NCUA's official advertising statement is “This credit union is federally insured by the National Credit Union Administration” or the shorter version “Federally insured by the NCUA.” As a third option, the official sign may be displayed in advertisements in lieu of the advertising statement.
Section 740.5(c) of NCUA's regulations enumerates several kinds of advertisements that, for practical reasons, are exempted from the general rule requiring the use of the official advertising statement. With respect to these exempted advertisements, the Board is focusing on the exemptions relating to radio advertisements that are less than 15 seconds in duration
For many years, NCUA's advertising and official sign regulations were essentially the same as those of the Federal Deposit Insurance Corporation (FDIC).
The 2011 NCUA rule change also required FICUs to include the advertising statement on statements of condition required to be published by law, whereas banks are exempt from this. The Board also proposes to relieve FICUs from this additional burden, which the Board believes is unnecessary.
Additionally, as a result of information we have received from the public, the Board proposes to amend part 740 to permit a fourth iteration of the official advertising statement, namely by stating “Insured by NCUA.” This change would provide FICUs with more flexibility without diminishing the purpose of the rule.
The current part 740 addresses conventional forms of advertising such as print, radio, and television. The Board requests comment about whether the regulation should be modified to facilitate the trend in advertising via new types of social media, mobile banking, text messaging and other digital communication platforms, including Twitter and Instagram. The comments should focus on specific recommendations that balance the regulation's goal to inform the public with space and other constraints inherent in new forms of advertising.
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small entities.
The Paperwork Reduction Act of 1995 (“PRA”) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The proposed rule would not have substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this proposed rule does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA has determined that this proposed rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999.
Advertisements, Credit unions, Share insurance, Signs and symbols.
For the reasons discussed above, the NCUA Board proposes to amend 12 CFR part 740 as follows:
12 U.S.C. 1766, 1781, 1785, and 1789.
(a) Each insured credit union must include the official advertising statement, prescribed in paragraph (b) of this section, in all of its advertisements, including on its main Internet page, except as provided in paragraph (c) of this section.
(b) The official advertising statement is in substance one of the following:
(1) This credit union is federally insured by the National Credit Union Administration;
(2) Federally insured by NCUA;
(3) Insured by NCUA; or
(4) A reproduction of the official sign as described in § 740.4(b) may be used in lieu of the other statements included in this section. If the official sign is used as the official advertising statement, an insured credit union may alter the font size to ensure its legibility as provided in § 740.4(b)(2).
(5) The official advertising statement must be in a size and print that is clearly legible and may be no smaller than the smallest font size used in other portions of the advertisement intended to convey information to the consumer.
(c) * * *
(7) Advertisements by radio that are less than thirty (30) seconds in time;
(8) Advertisements by television, other than display advertisements, that are less than thirty (30) seconds in time;
Environmental Protection Agency (EPA).
Availability of supplemental information; request for further comment.
This document provides additional data and an opportunity to comment on that data and potential options for reductions in the 2018 biomass-based diesel, advanced biofuel, and total renewable fuel volumes, and/or the 2019 biomass-based diesel volume under the Renewable Fuel Standard (RFS) program. In a July 21, 2017 notice of proposed rulemaking, the EPA proposed certain reductions in the statutory volume targets for advanced biofuel and total renewable fuel for 2018, and requested comment on further reductions based on various considerations. This document presents additional data on production, imports and cost of renewable fuel and several options for how we may consider such
Comments must be received on or before October 19, 2017.
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2017–0091, at
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: 734–214–4131; email address:
Entities potentially affected by the July 21, 2017 proposed rule
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to engage in activities that may be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your entity would be affected by this rule, if finalized, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of the July proposal to a particular entity, consult the person listed in the
On July 21, 2017, EPA proposed reductions in the statutory volume targets for advanced biofuel and total renewable fuel using the cellulosic waiver authority in Clean Air Act (CAA) section 211(o)(7)(D).
We did not specifically request comment in the proposed rule on a possible reduction of the 2018 volume requirement for BBD, which was set at 2.1 billion gallons in 2016.
We note that the statute also provides EPA the authority to waive a portion of the BBD standard if there is a significant renewable feedstock disruption or other
As EPA indicated in the July proposal, the cost of advanced biofuels is high on a per gallon basis compared to the petroleum fuels they replace. The expiration of the biodiesel tax credit in the U.S. at the end of 2016 has already impacted the effective price of biodiesel to blenders, as well as the price of biodiesel blends to consumers. While it does not appear that the expiration of the tax credit has had a direct impact on the price of unblended biodiesel (B100) in 2017, we expect that the expiration of the tax credit has had a significant impact on the effective price of biodiesel sold to blenders. This is because the biodiesel tax credit that expired at the end of 2016 was received by biodiesel blenders, rather than biodiesel producers. The price of biodiesel and EPA's estimated effective price of biodiesel to blenders (net the $1/gallon tax credit when applicable) from January 2016 through August 2017 are shown in Figure III–1 below.
The level of imports and exports can also affect the price of renewable fuel used in the U.S., and both imports and export volumes have varied considerably over the last several years. Based on data collected on RIN generation and retirement from the EPA-Moderated Transaction System (EMTS), we have determined gross domestic production and import and export volumes for advanced biofuels and
Commenters raised concerns that along with affecting prices of renewable fuels in the U.S., imports may also have an impact on the energy independence and security status of the U.S.
EPA remains concerned about the high cost of advanced biofuels. As a result, and in light of the pending action on countervailing duties on imported biodiesel from Argentina and Indonesia which we believe could, if finalized, further increase the cost and/or decrease the supply of advanced biofuel in the U.S., we believe it is appropriate to request further comment on appropriate ways to determine the applicable volume requirements for 2018, and the BBD volume requirement for 2019.
Section 211(o)(7)(A) of the CAA provides that EPA, in consultation with the Secretary of Agriculture and the Secretary of Energy, may waive the applicable volumes specified in the Act in whole or in part based on a petition by one or more States, by any person subject to the requirements of the Act, or by the EPA Administrator on his own motion. Such a waiver must be based on a determination by the Administrator, after public notice and opportunity for comment that: (1) Implementation of the requirement would severely harm the economy or the environment of a State, a region or the United States, or (2) there is an inadequate domestic supply. We sought comment on the possible use of the general waiver authority in the proposal, and here are once again seeking comment in light of the data provided in Section III of this document and a possible revised interpretation of the inadequate domestic supply waiver authority, as discussed below. We also solicit further comment on our use of the general waiver authority under a determination of either inadequate domestic supply or severe economic harm to reduce volumes of renewable fuel.
In the annual rule establishing the 2014–2016 renewable fuel standards, we determined that there would be an “inadequate domestic supply” of renewable fuel to consumers in 2016, and so exercised the general waiver authority to reduce volumes to levels we believed could be supplied.
Some commenters suggested that this interpretation would rely on common dictionary definitions of “domestic,” as meaning “of, or relating to, or originating within a country and especially one's own country,”
We note that this interpretation of the statutory phrase “inadequate domestic supply,” would not in any way limit the use of qualifying imported biofuel by obligated parties to ultimately comply with the annual percentage standards. Imported and domestically produced biofuels would still have the same opportunities to compete in the U.S. market as they do now. The interpretation would only affect the way in which EPA calculates the volumes used to set the percentage standards with which obligated parties must comply, by allowing EPA to consider the supply of domestically produced biofuels in deciding whether to use the general waiver authority. Once the standards were established, however, qualifying imported renewable fuel could still be used to comply with the established standards, exactly as it is currently.
We request comment on whether this interpretation would comply with the Court's direction in
We believe there are a number of reasons why this interpretation of the phrase “inadequate domestic supply” may be appropriate. First, as noted by commenters, this interpretation may be consistent with a straightforward reading of the term “domestic supply” as referring to volumes of domestically-produced renewable fuels. Second, as also noted by commenters, basing EPA's use of the general waiver authority on domestic supply only may better meet the energy independence and security purposes of EISA. Third, as EPA has noted in past rulemakings,
We invite comment on this possible interpretation of the term “inadequate domestic supply,” and the possibility of applying this interpretation to reduce the final 2018 advanced biofuel volume requirement beyond the level proposed. In Section III of this document we provide data on the domestic production of advanced biofuels for 2013 through 2016. We solicit comment on data and methodologies we should use for estimating the 2018 supply of domestically-produced BBD and other advanced biofuels if we adopt this interpretation. We also invite comment on the potential impact on imports and the domestic production of advanced biofuel if EPA were to further reduce the proposed applicable volume of advanced biofuel on the basis of an interpretation of the term “inadequate domestic supply” as discussed in this section. We also request comment on whether and how EPA should consider the potential level of imports in determining whether to use its discretionary general waiver authority to reduce the required volume requirements should this interpretation be adopted.
Considering the nested nature of the standards, we also seek comment on the appropriateness of (and possible basis for) providing a reduction in the total renewable fuel applicable volume requirement commensurate with any reduction in the advanced biofuel volume requirement that may be finalized based on a reinterpretation of the inadequate domestic supply waiver authority as discussed in this section. We note that absent a commensurate reduction, the implied volume for conventional biofuels (
Section 211(o)(7)(A)(1) of the CAA provides that EPA may waive the applicable volume based on a determination that implementation of the requirement would severely harm the economy or environment of a State, a region, or the United States. We received comments from several
CAA section 211(o)(7)(E)(ii) provides that if EPA determines that there is a significant renewable feedstock disruption or other market circumstance that would make the price of BBD increase significantly, EPA shall, in consultation with the Secretary of Energy, and the Secretary of Agriculture, issue an order to reduce, for up to a 60-day period, the annual volume requirement for BBD by an appropriate quantity that does not exceed 15 percent. The statute also stipulates that EPA is authorized to reduce applicable volumes of advanced biofuel and total renewable fuel by the same or a lesser volume than the reduction in BBD. Also, the statute provides that EPA may provide additional 60-day waivers, with an appropriate additional reduction in the annual requirement of up to 15%, if EPA determines that the feedstock disruptions or circumstances warranting the initial waiver are continuing.
We note that the renewable fuels standards apply on an annual basis and compliance is determined three months after the end of the year. Waiving the standard for 60 days without adjusting the annual standard would provide no relief. We thus solicit comment on whether it would be appropriate to implement the provision by waiving the annual standard (in circumstances where use of the provision is authorized) by a volume that does not exceed 15%. Alternatively, it may be possible to implement the provision by allowing each refiner or importer to subtract from its compliance obligation calculations an amount of gasoline and diesel produced or imported during a specific 60-day period, subject to a 15% limitation on the reduction in their annual RVO. We note that the statute also allows for an extension of any initial waiver for additional 60-day periods if the feedstock disruption or other market circumstance persists. We invite comment on how to interpret and implement the BBD waiver provision consistent with the text and goals of the Act.
As described in Section III of this action, the price of biodiesel, particularly advanced biodiesel, has been impacted by the expiration of the federal tax credit at the end of 2016 and may be expected to be impacted further by the imposition of new duties on imports of biodiesel from Argentina and Indonesia.
This statutory provision also indicates that EPA may reduce the applicable volume of renewable fuel and advanced biofuels requirement by the same or a lesser volume as the reduction in the BBD volume requirement. Were we to exercise this BBD waiver authority, we believe it would be appropriate to lower the advanced biofuel and total renewable fuel volumes by the same amount, since the predominant form of advanced biofuel is BBD and a reduction in the BBD volume requirement may have little or no impact on BBD prices if there is no commensurate reduction in advanced biofuel and total renewable fuel volumes. If the BBD volume requirement were to be reduced by 315 million gallons, an equivalent reduction in advanced biofuel and total renewable fuel would be 473 million ethanol equivalent RINs.
We request comment on the possible use of the waiver authority provided in CAA section 211(o)(7)(E)(ii) to reduce the 2018 volume requirement for BBD by as much as 315 million gallons, and to concurrently reduce the advanced biofuel and total renewable fuel volume requirements by as much as 473 million gallons. In particular, we seek data on recent BBD price increases and expectations for additional price increases, and we seek comment on the extent to which these price increases should be considered `significant” for purposes of the CAA section 211(o)(7)(E)(ii) waiver authority and the extent of a waiver (up to 15%) that would be necessary to address or avoid a significant price increase.
The statute establishes applicable volume targets for BBD only through 2012. For years after those for which
1. The impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
2. The impact of renewable fuels on the energy security of the United States;
3. The expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and BBD);
4. The impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel;
5. The impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and
6. The impact of the use of renewable fuels on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, and food prices.
The statute also specifies that the volume requirement for BBD cannot be less than the applicable volume specified in the statute for calendar year 2012, which is 1.0 billion gallons. The statute does not, however, establish any other numeric criteria, or specify how EPA should weigh the importance of the often competing factors, and the overarching goals of the statute when EPA sets the applicable volumes of BBD in years after those for which the statute specifies such volumes. In the period 2013–2022, the statute specifies increasing applicable volumes of cellulosic biofuel, advanced biofuel, and total renewable fuel, but does not do so for BBD, instead specifying only a 1.0 billion gallon minimum and factors that EPA must evaluate in determining the volume requirement that EPA is to set.
We received comments on our July proposal requesting that EPA reduce the proposed applicable volume of BBD for 2019 due to the large volume of imported biodiesel and renewable diesel in recent years (See Table 2 for import volumes of BBD),
In our proposed assessment of the statutory factors listed above, we noted that the proposed BBD standard for 2019, if finalized, would not likely impact the advanced biodiesel and renewable diesel supply to the U.S. market. Instead, the higher advanced biofuel volume requirement would be the determinant, and the market would supply more advanced biodiesel and renewable diesel than the BBD standard would require. We further noted in the July proposal our expectation that the historic trend in establishing the advanced volume requirements (
In addition to these considerations, we seek comment on the extent to which the successful BBD industry requires the proposed level of guaranteed support, or if the advanced standard together with a significantly lower BBD standard would be sufficient for that purpose while advancing the goals of energy independence and security by providing additional encouragement for the growth of other types of advanced biofuels.
We request comment on how EPA should take into consideration the costs of biodiesel and the factors that influence those costs, together with other relevant factors discussed above or which commenters may wish to bring to our attention, in setting the appropriate required volume of BBD for 2019. We also request comment on what the volume requirement should be, noting that it could be equal to or greater than the statutory minimum of 1.0 billion gallons.
This rulemaking is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review, as it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Any changes made in response to OMB recommendations have been documented in the docket.
Centers for Medicare & Medicaid Services (CMS), HHS.
Withdrawal of proposed rule.
This document withdraws a proposed rule that was published in the
As of October 4, 2017, the proposed rule published December 12, 2014, at 79 FR 73873, is withdrawn.
Ronisha Blackstone, 410–786–6882.
On December 12, 2014, we published a proposed rule in the
The December 2014 rulemaking proposed to revise certain conditions of participation (CoPs), conditions for coverage (CfCs), and requirements for certain Medicare- and Medicaid-participating facilities to ensure that the requirements at issue were consistent with the
Accordingly, the proposed rule published December 12, 2014, at 79 FR 73873, is withdrawn.
Centers for Medicare & Medicaid Services (CMS), HHS.
Withdrawal of proposed rule.
This document withdraws a proposed rule that was published in the
As of October 4, 2017, the proposed rule published January 12, 2017, at 82 FR 3678, is withdrawn.
John Spiegel, (410) 786–1909.
In the January 12, 2017
We received over 5,000 public comments in response to the January 12, 2017 proposed rule.
In light of the cost and time burdens that the proposed rule would create for many providers and suppliers, particularly the cost and burden for those providers and suppliers that are small businesses, and the complexity of the issues raised in the detailed public comments received, we are withdrawing the January 12, 2017 proposed rule in order to assure agency flexibility in re-examining the issues and exploring options and alternatives with stakeholders.
Accordingly, the proposed rule published January 12, 2017, at 82 FR 3678, is withdrawn.
Centers for Medicare & Medicaid Services (CMS), HHS.
Withdrawal of proposed rule.
This document withdraws a proposed rule that was published in the
As of October 4, 2017, the proposed rule published March 11, 2016, at 81 FR 13230, is withdrawn.
Rasheeda Johnson, (410) 786–3434.
On March 11, 2016, we published a proposed rule in the
We received 1,350 timely public comments in response to the March 11, 2016, proposed rule. Some commenters signaled their support for the proposed rule, however, a number of commenters expressed concerns about the proposed model. As we worked to address these concerns, the complexity of the issues related to the proposed model design and the desire to increase stakeholder input led us to the decision to withdraw the March 11, 2016 proposed rule. Moving forward, we want to ensure agency flexibility in re-examining these important issues and exploring new options and alternatives with stakeholders as we develop potential payment models that support innovative approaches to improve quality, accessibility, and affordability, reduce Medicare program expenditures, and empower patients and doctors to make decisions about their health care.
Accordingly, the proposed rule published March 11, 2016, at 81 FR 13230, is withdrawn.
Office of the Secretary, HHS.
Withdrawal of proposed rule.
This document withdraws the January 2, 2014, proposed rule that would have required a controlling health plan (CHP) to submit information and documentation demonstrating that it is compliant with certain standards and operating rules adopted by the Secretary of Health and Human Services (the Secretary) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This proposed rule would have also established penalty fees for a CHP that failed to comply with the certification of compliance requirements.
As of October 4, 2017, the proposed rule published January 2, 2014, at 79 FR 298, is withdrawn.
Geanelle G. Herring, (410) 786–4466.
In the January 2, 2014,
We received approximately 72 public comments in response to the January 2, 2014 proposed rule. In light of the issues raised in the public comments received, we have decided to withdraw the January 2014 proposed rule in order to re-examine the issues and explore options and alternatives to comply with the statutory requirements. We note that the Secretary has established regulations pertaining to compliance with, and enforcement of, HIPAA Administrative Simplification standards and operating rules. The withdrawal of this proposed rule does not remove the requirements for covered entities to comply with any of those regulations codified at 45 CFR parts 160 and 162.
Accordingly, the proposed rule published January 2, 2014, at 79 FR 298, is withdrawn.
Fish and Wildlife Service, Interior.
Proposed rule; 12-month petition findings.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list three species, the holiday darter (
We will accept comments received or postmarked on or before December 4, 2017. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526; telephone 251–441–5181; or facsimile 251–441–6222. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339.
A species status assessment (SSA) team prepared SSA reports for all three darter species. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA reports represent a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting each species. All three SSA reports underwent independent peer review by scientists with expertise in fish or amphibian biology, habitat management, and stressors (factors negatively affecting the species). The SSA reports and other materials relating to this proposal can be found on the Southeast Region Web site at
We intend that any final action resulting from the proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The trispot darter's biology, range, and population trends, including:
(a) Biological or ecological requirements of trispot darter, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to the species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of the species, including the locations of any additional populations of the species.
(5) Specific prohibitions and exceptions to those prohibitions that may be necessary and advisable for the trispot darter's conservation. We are considering publishing a more tailored proposed rule with provisions set forth under section 4(d) of the Act for public review and comment in the future.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
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Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received the dates specified above in
In accordance with our joint policy on peer review published in the
The trispot darter was one of 29 fish species included in a March 18, 1975, notice of review published by the Service in the
On April 20, 2010, we received a petition from Center for Biological Diversity and others to list 404 aquatic species in the southeastern United States, including the two aforementioned species as well as the bridled darter. In response to the petition, we completed a partial 90-day finding on September 27, 2011 (76 FR 59836), in which we announced our finding that the petition contained substantial information that listing may be warranted for these three darter species. We conducted a status review for each species.
A thorough review of the taxonomy, life history, and ecology of the trispot darter (
The trispot darter is a freshwater fish found in the Coosa River System in the Ridge and Valley ecoregion of Alabama, Georgia, and Tennessee. This fish has a historical range from the middle to upper Coosa River Basin with collections in the mainstem Coosa, Oostanaula, Conasauga, and Coosawattee Rivers, and their tributaries. All known records of the trispot darter occur above the fall line in the Ridge and Valley ecoregion. Currently, the trispot darter is known to occur in Little Canoe Creek and tributaries (Coosa River), Ballplay Creek tributaries (Coosa River), Conasauga River and tributaries, and Coosawattee River and one tributary.
The trispot darter is a small-bodied, benthic fish ranging in size from 1.3 to 1.6 inches (in) (3.3 to 4.1 centimeters (cm)) as adults. The darter has three prominent black dorsal saddles, pale undersurface, and a dark bar below the eye. Scattered dark blotches exist on the fins' rays. During breeding season males are a reddish-orange color and have green marks along their sides and a red band through their spiny dorsal fin.
The trispot darter is a migratory species that utilizes distinct breeding and non-breeding habitats. From approximately April to October, the species inhabits its non-breeding habitat, which consists of small to medium river margins and lower reaches of tributaries with slower velocities. It is associated with detritus, logs, and stands of water willow, and the substrate consists of small cobbles, pebbles, gravel, and often a fine layer of silt. During low flow periods, the darters move away from the peripheral zones and toward the main channel; edges of
Trispot darters can live a maximum of 3 years, but most individuals die after the end of their second year. Females lay approximately 300 adhesive eggs that attach to vegetation or rocky substrate. Once laid, the eggs are abandoned and incubate for 30 days. Upon hatching, the trispot darter spends approximately 41 days as larvae.
A thorough review of the taxonomy, life history, and ecology of the holiday darter (
The holiday darter is a small, 2-in-long (5-cm-long) snubnose darter, so named because it is a colorful fish, with notable red blotches surrounded by white or yellow halos on the lower side of the body. Unique from similar species with which it co-occurs, the holiday darter has a distinct median red band across the generally blue-green anal fin in males in spawning color. The holiday darter is found in small creeks to moderate-sized rivers above the fall line in the Ridge and Valley, Blue Ridge, and Piedmont ecoregions of Alabama, Georgia, and Tennessee. Currently, the holiday darter is known to occur in parts of Shoal Creek, Conasauga River, Talking Rock Creek, Mountaintown Creek, tributaries of the Ellijay River, Amicalola Creek, and the Etowah River. The holiday darter prefers clear streams with riffles and shallow areas of rivers that contain boulders, cobble, and gravel substrate. While no complete life-history studies of the species are available, it is likely a benthic omnivore that eats aquatic insect larvae and microcrustaceans.
Breeding behavior begins in April and lasts through May. Females are followed by males as they select suitable spawning substrates of gravel, rock, or wood on which the pair orients vertically to spawn and attach eggs. Females have the potential to produce from 50–150 eggs over multiple spawning sites, and those eggs are then fertilized by the male, or multiple different males. No studies have been published on the lifespan of the holiday darter, but similar species live approximately 3 years.
A thorough review of the taxonomy, life history, and ecology of the bridled darter (
The bridled darter is a small freshwater fish native to the upper Coosa River basin in Georgia and Tennessee. This fish's current distribution includes the main channel of the Conasauga River in Murray and Whitfield Counties, Georgia, and Bradley and Polk Counties, Tennessee, Etowah River in Dawson and Lumpkin Counties, Georgia, Amicalola Creek in Dawson County, Georgia, Long Swamp Creek in Pickens County, Georgia, and Talking Rock Creek in Pickens County, Georgia. These are all considered small rivers with good water quality. It was also known to occur in short reaches of several tributaries to both the Conasauga and Etowah Rivers. Morphological variation exists between the darters in the Conasauga River and those in the Etowah River, but genetic studies do not conclude that they are separate species.
Adult bridled darters are about 3 in (4 cm) in length and are muted in color. Dark oval blotches are fused to form a lateral stripe. The lateral stripe merges with a dark stripe behind the eye and continues forward of the eye; these stripes resemble a horse's bridle and lend the species its common name. These darters are typically found in flowing pools and backwaters adjacent to runs in small rivers and lower reaches of tributary creeks. They are often found near submerged logs or vegetation and prefer a substrate of sand, gravel, cobble, and bedrock.
The bridled darter is a sight feeder that has been observed to pluck food from submerged objects as well as the water column by drift-feeding. When drift-feeding, it positions itself downstream of rocks, away from fast currents, and feeds on invertebrates that are washed downstream and thrusted upward by turbulence. Feeding peaks in late afternoon before dusk. Stomach contents for individuals from the Conasauga River contained small mayfly nymphs and blackfly larvae.
Reproduction and spawning takes place approximately mid-April through mid-July. Spawning sites are selected by females as they are followed by courting males. Competitive behavior between males for the site-selecting female has been observed, with the larger males attempting to chase away smaller males. In the Conasauga River, sneaker males (smaller males that join with a spawning pair and mate with the female) have been observed. Rapid quivering of the pair during spawning helps to bury fertilized eggs in sand. A spawning pair may undertake multiple spawning events at different locations. Females have the potential to produce up to 75 eggs per year, and their lifespan has been estimated to be approximately 3 years.
The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. The SSA reports document the results of our comprehensive biological status review for the holiday, bridled, and trispot darters, including an assessment of the potential stressors to the species. The SSA reports do not represent a regulatory decision by the Service on whether the species should be proposed for listing as endangered or threatened species under the Act. They do, however, provide the scientific basis that informs that decision, which involves the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA reports; the full SSA reports can be found on the Southeast Region Web site at
To assess viability for the holiday, bridled, and trispot darters, we used the three conservation biology principles of resiliency, representation, and redundancy (together, the 3Rs). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In
The SSA process can be categorized into three sequential stages. During the first stage, we used the 3Rs to evaluate individual life-history needs of all three darters. In the next stage, we assessed the historical and current condition of each species' demographics and habitat characteristics, including an explanation of how the species arrived at their current conditions. In the final stage of the SSA we made predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of each species to sustain populations in the wild over time. We utilized this information to inform our regulatory decision in the 12-month findings.
To evaluate the current and future viability of the three darters, we assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. U.S. Geological Survey delineated all watersheds within the United States at several different scales (or units) using a standardized system. Each hydrologic unit is identified by a unique hydrologic unit code (HUC) consisting of two to twelve digits based on six different levels of classification. For this analysis, the 10-digit Hydrologic Unit Codes (HUC 10s) were used as a spatial framework to delineate areas within the geographical range of each species for further analysis. Field collections were used to identify species presence within HUC10 watersheds. For holiday and bridled darters, populations were defined as occupied HUC10 watersheds and were used for analysis. Management units (MUs) were described for the trispot darter and are defined as one or more HUC10 watersheds that the species currently occupies. MUs were grouped using population genetics information and by expected management requirements.
To qualitatively assess resilience, we considered seven components that broadly relate to either the physical environment (“Habitat Elements”) or characteristics about the population specifically (“Population Elements”). Habitat elements consisted of an evaluation of physical habitat, connectivity, water quality, and hydrologic regime. Population elements consisted of an estimation of approximate abundance, the extent of occurrence (total length of occupied streams), and an assessment of occurrence complexity. Representation describes the ability of a species to adapt to changing environmental conditions over time. For these darters to exhibit high representation, resilient populations should occur in all ecoregions to which they are native, and maintain some level of connectivity between populations. These occupied physiographic provinces represent the ecological setting in which the darters have evolved. Redundancy for all three darters is characterized by having multiple resilient and representative populations distributed throughout its range. Furthermore, these populations should maintain natural levels of connectivity between them. Connectivity allows for immigration and emigration between populations and increases the likelihood of recolonization should a population become extirpated. An overall resiliency condition was estimated by combining habitat and population elements. Population elements were weighted two times higher than habitat elements because they are considered direct indicators of population condition. Conditions were classified as “Low”, “Moderate”, or “High”.
After analyzing current conditions for each species, we described how current viability of the three darters may change over a period of 50 years. As with current conditions, we evaluated species viability in terms of resiliency at the population scale, and representation and redundancy at the species scale. In the SSA report, we described three plausible future scenarios and whether there will be a change, from current conditions, to resiliency, representation, or redundancy under each scenario. These scenarios capture the range of likely viability outcomes that the darters will exhibit by the end of 2070. The future scenarios differ in two main elements of predicted change: urbanization and climate. To forecast future urbanization, we considered future scenarios that incorporate the SLEUTH (Slope, Land use, Excluded area, Urban area, Transportation, Hillside area) model. This model simulates patterns of urban expansion that are consistent with spatial observations of past urban growth and transportation networks. Regarding climate, the Intergovernmental Panel on Climate Change utilized a suite of alternative scenarios in the Fifth Assessment Report to make near-term and long-term climate projections. In our assessments, we used these projections to help understand how climate may change in the future and what effects may be observed that impact the three darter species.
For our analysis we considered four extant MUs: Little Canoe Creek Basin, Ballplay Creek Basin, Conasauga River Basin, and Coosawattee River Basin. Genetic research has defined distinct trispot darter populations in Little Canoe Creek, Ballplay Creek, and Conasauga River. It is unknown if trispot darters in the Coosawattee River basin are genetically distinct; however, we analyzed it as a separate MU because this river would require a distinct management strategy due to hydroelectric operations at Carters Dam. Historical collections of the trispot darter are known from Cowans Creek, a tributary to Spring Creek, which is in turn a tributary to the Coosa River, and Johns and Woodward Creeks, tributaries to the Oostanaula River. Currently, the trispot darter occupies approximately 20 percent of its historically known range.
Of the four current MUs for the trispot darter, one has resiliency ranked as “moderate,” and three have resiliency ranked as “low” in the analysis (see Table 2 below). For example, the Little Canoe Creek MU is expected to have a moderate resiliency to stochastic events because water quality is low, the abundance is qualitatively low, the occurrence complexity is high, Coosa River reservoirs remove connectivity to other MUs, and the extent of the occupied habitat is small. The Conasauga River MU has “low” resiliency due to low water quality in the middle and lower river, low abundance of fish per collection record, a small and reduced population, and overall simple occurrence spatial arrangement. A full analysis for each unit's resiliency can be found in the SSA report.
For our analysis we considered seven populations: Conasauga River, Talking Rock Creek, Ellijay River, Mountaintown Creek, Amicalola Creek, Etowah River, and Shoal Creek.
Six of the seven populations for holiday darter are estimated to have low resiliency. The exception is Amicalola Creek, where the fish is still found in 80 percent of the watershed that it occupied historically, and because it is known to occur in Amicalola Creek, Little Amicalola Creek, Cochran Creek, and Gab Creek, it has a moderate spatial occurrence complexity. The habitat elements were also ranked as moderate for Amicalola Creek, giving that population an overall condition of moderate. By comparison, the habitat elements were also moderate or high for the Etowah River, but this population had low population element rankings, leading to an estimate of low overall resiliency. A full analysis for each population's resiliency can be found in the SSA report.
Connectivity is an important aspect of representation because it provides for the exchange of novel and beneficial adaptations and migration to more suitable habitat (should it be necessary). Currently, all historically occupied ecoregions continue to be occupied by holiday darters, so we can conclude that all known genetic, morphological, and behavioral variability are still represented across the range. However, connectivity is reduced for the species range-wide. Dams have completely isolated the seven populations into four groups. The upper Etowah River-Amicalola Creek populations are isolated by Alatoona Dam; the Talking Rock Creek population is isolated by Carters Re-regulation Dam; and the Ellijay River and Mountaintown Creek populations are isolated by Carters Dam. The Conasauga River and Holly Creek populations are prevented from dispersing to the other populations by those same dams. The Shoal Creek population is isolated by large dams on the Coosa River. Where dams do not fragment habitat, long reaches of unoccupied habitat are present between populations, indicating that migration between populations is uncommon or unlikely. Finally, all populations of holiday darter exist on the periphery of the Coosa River basin and have likely reached the upstream limits for the species. It is unlikely that individuals within a population will be able to migrate further upstream if necessary due to changes in environmental conditions, further decreasing the ability of the species to adapt to changing environmental conditions.
We estimate that the holiday darter currently may have low adaptive potential due to limited representation in six occupied watersheds, decreased connectivity, and confinement to upper reaches of occupied watersheds. Overall representation is considered to be low. Redundancy is characterized by having multiple resilient and representative populations distributed throughout its range. Because all but one population of holiday darter exhibit low resiliency, the species is considered to also have low redundancy. All populations have experienced some declines, may have low numbers, or have low spatial complexity. Redundancy is present within the Coosawattee River, with three populations still extant, but is still classified as “low” due to low resiliency of three populations.
In the occupied areas of the Conasauga and Etowah Rivers, the majority of the records for the species are on U.S. Forest Service (USFS) land, which is noted for having good water quality and suitable habitat for holiday darters. For our analysis, we gave populations low resilience if they had poor population elements, even if the habitat elements were moderate or high. Second, we declined to consider the species to have better than low representation and redundancy if the populations didn't have better than low resiliency. Inconsistent survey methodologies and lack of standard collection records also creates uncertainty in any analysis of trends or the ability to compare data across years. The best available data does not indicate a declining trend in abundance, and it is likely that the low abundance (and, therefore, low resiliency) indicated in our analysis is due to the species being naturally rare and difficult to detect.
For our analysis of the bridled darter we considered six populations: Conasauga River, Holly Creek, Talking Rock Creek, Long Swamp Creek, Amicalola Creek, and the Etowah River.
All six populations of bridled darter were classified as having low resiliency. Although habitat conditions were
In the occupied areas of the Conasauga and Etowah Rivers, the majority of the records for the species are on USFS land, which is noted for having good water quality and suitable habitat for bridled darters. For our analysis, we gave populations low resilience if they had poor population elements, even if the habitat elements were moderate and high. Second, we declined to consider the species to have better than low representation and redundancy if the populations didn't have better than low resiliency. Inconsistent survey methodologies and the lack of standard collection records creates uncertainty in any analysis of trends or the ability to compare data across years. The best available data does not indicate a declining trend in abundance, and it is likely that the low abundance (and, therefore, low resiliency) indicated in our analysis is due to the species being naturally rare and difficult to detect.
As required by the Act, we considered the five factors in assessing whether the three species meet the definition of threatened or endangered species. A multitude of natural and anthropogenic factors may impact the status of species within aquatic systems. The largest threats to the future viability of the trispot, holiday, and bridled darters involve habitat degradation from stressors influencing four habitat elements: Water quality, water quantity, instream habitat, and habitat connectivity (Factor A). All of these factors are exacerbated by the effects of climate change (Factor E). A brief summary of these primary stressors is presented below; for a full description, refer to chapter 4 of the SSA reports for each species.
Hydrologic alteration in this system has two components: Increases in storm flow frequency and intensity and a decrease in base flows, which together create a “flashy” hydrologic regime. Activities that lead to hydrologic alteration include reservoir construction and operation, water withdrawals, and an increase in impervious surfaces. In a natural forested system, most rainfall soaks into the soil and is carried into nearby streams via subsurface flow. Some evaporates or transpires, and a relatively small amount becomes surface runoff. In an urbanized system with high levels of impervious cover, such as roads, parking lots, and rooftops, this cycle is altered; most stormwater hits impervious surfaces and becomes runoff, which then is channeled quickly to streams via stormwater drain pipes or ditches. Relatively little infiltrates into the soil. As a result, storm flows in the receiving stream are higher and more frequent, although briefer in duration, and base flows are lower. The storm discharge of urban streams can be twice that of rural streams draining a watershed of similar size, and the frequency of channel-forming events can be ten times that of pre-development conditions. These flashy stream flows and frequent, smaller high-flow events negatively affect structural habitat on which the species depends. Increases in flow frequency or intensity can result in channel widening through bank erosion or deepening to accommodate the additional discharge. This results in increased downstream sedimentation and unstable beds, both of which degrade channel complexity, feeding, and refugia habitat for fish species. Increased storm flows, in addition, can cause physical washout of eggs and larval fishes, stress on adults, and negatively alter the stream's food web, affecting many fish species. There is also a decrease in channel complexity and a reduction in in-stream cover and natural substrates like boulders, cobble, and gravel. Hydrologic alteration can also lead to other stressors that negatively affect fish, such as sedimentation and a loss of connected suitable habitat.
Sedimentation can affect fish species by degrading physical habitat used for foraging, sheltering, and spawning; altering food webs and decreasing stream productivity; forcing fish to change their behaviors; and even injuring or killing individual fish. Chronic exposure to sediment has been shown to have negative impacts to fish gills, which in addition to causing gill damage can possibly reduce growth rates. Sedimentation causes reduced visibility, impacting fishes' abilities to feed and communicate.
A wide range of activities can lead to sedimentation within streams, including agriculture, construction activities,
Connectivity is a species' ability to disperse to and from habitat patches. Excess groundwater withdrawal can contribute to reduced connectivity if sections of streams become dry for parts of the year. Dams and reservoirs reduce connectivity by creating a physical barrier between fish populations and changing habitat from flowing streams to standing water, which is not suitable habitat for these three darters. Road crossings are also more prevalent in highly populated urban areas, and some road crossings have impassable culverts that reduce connectivity.
Loss of riparian vegetation means the removal of natural plant communities from the riparian zone of rivers and streams. Removal of riparian vegetation can destabilize stream banks, increasing sedimentation and turbidity; increase the contaminants and nutrients that enter the water from runoff; increase water temperatures and light penetration, which also increases algae production; and alter available habitat by reducing woody plant debris and leaf litter, which in turn decreases overall stream productivity. These fish have adapted to occupy habitats that are surrounded by vegetation, which moderates temperature by blocking solar radiation; provides a source for terrestrial plant material that forms the base of the food web and provides shelter and foraging habitat for the fishes; and helps to maintain clear, clean water and substrate through filtration. Loss of riparian vegetation decreases habitat suitability for the trispot, holiday, and bridled darters. Removal of riparian vegetation has occurred where urban and agricultural activities are prevalent such as increases in development in Dalton, Chatsworth, and Ellijay, and row crop and pastures in the Conasauga basin.
Contaminants, including metals, hydrocarbons, pesticides, and other potentially harmful organic and inorganic compounds, can be toxic to fish and are common in urban streams including those within the range of these three darters. Pesticides are frequently found in streams draining agricultural lands, with herbicides being the most commonly detected. Pesticides also are heavily used in urban and suburban areas, and many of these find their way into streams and groundwater. The contamination of the Coosa River with polychlorinated biphenyl (PCBs) has been attributed to the General Electric facility in Rome, Georgia. Although the facility closed in 1998, contaminated sediments are still documented there. In the Coosawattee River, PCBs are also listed as a source of impairment caused by nonpoint sources. These chemicals have toxic effects to the endocrine system, nervous system, reproductive system, blood, skin, and liver of animals and have likely impacted these three darters in the Coosa and Coosawattee Rivers.
Pesticides and herbicides are frequently found in streams draining agricultural land uses, with herbicides being the most commonly detected. Many agricultural streams still contain dichlorodiphenyltrichloroethan (DDT) and its degradation products. Glyphosates and other inert ingredients found in Roundup can be toxic to fish and other aquatic organisms, causing stress and reduced fitness; Roundup use within the range of these species is prevalent and increasing due to the adoption of “Roundup Ready” crops.
Agriculture is another predominant land use within the range of all three darters. Livestock grazing is prevalent in some areas, and poultry farming is also common.
Urbanization refers to a change in land cover and land use from forests or agriculture to increased density of residential and commercial infrastructure. Urbanization includes a wide variety of stressors on aquatic systems that affect water quantity, water quality, channel structure, and connectivity. Therefore, urbanization is anticipated to increase the magnitude of nearly all other stressors, and urbanization is expected to affect the darters across their range due to their known localities occurring in close vicinity to the growing Atlanta metropolitan area, Chattanooga, Birmingham, and intervening areas with growing human populations and increasing development.
Weather events that affect stream flows are considered to be most relevant to these species. Broadly, these events include extreme storms and droughts. Increased flows can cause physical washout of eggs and larval fishes, stress on adults, and alter the production in a stream. Within the range of these darters, extreme flows associated with hurricanes have been reported to have
In our analysis of the factors affecting these species, we found no evidence of population- or species-level impacts from overutilization for commercial, recreational, scientific, or educational purposes. Also, there was no evidence of any impacts due to disease or predation.
The trispot darter is recognized by Alabama, Georgia, and Tennessee as a species of concern. This species is listed as Priority 2/High Conservation Concern by the State of Alabama, endangered by the State of Georgia, and threatened by the State of Tennessee. Priority watersheds within the range of the trispot darter have been designated as Strategic Habit Units by the Alabama Rivers and Streams Network. The Strategic Habit Unit project was developed for species restoration and enhancement. Alabama is conducting an analysis and the results are intended to contribute to restoration projects that will improve habitat and water quality for at risk and listed species. The Atlantic Coast Conservancy holds a tract of land within Ballplay Creek that could offer some protection in the watershed. Natural Resources Conservation Service's Working Lands for Wildlife partnership within the basin will help farmers develop and implement strategies to improve water quality.
The holiday darter is recognized by Alabama, Georgia, and Tennessee as a species of concern. It is listed as Priority 1/Highest Conservation Concern by the State of Alabama, endangered by the State of Georgia, and threatened by the State of Tennessee. In general, protections accorded to the holiday darter by the States prohibit direct exploitation of the species.
Some populations of holiday darter are known from watersheds in which a substantial percentage of lands are owned and managed by the USFS. These populations are found in the Conasauga River, upper Etowah River, and Shoal Creek. In the Conasauga River and Shoal Creek, the majority of current records for the holiday darter are within the boundary of USFS lands. Cherokee National Forest in Tennessee, Chattahoochee National Forest in Georgia, and Talladega National Forest in Alabama own and manage natural resources in occupied watersheds in those portions of the holiday darter's range. Management prescriptions implemented by the USFS in areas that overlap with the range of the holiday darter are expected to benefit the species. Specifically, 4.5 miles (mi) (7.2 kilometers (km)) of the Conasauga River is eligible for Congressional Wild River designation and is managed to protect and perpetuate the features that led to the eligibility status. The river is also recognized for its aquatic biodiversity by the USFS, and management strategies employed by both Cherokee and Chattahoochee National Forests within the watershed include designated wilderness areas, recommended wild river, recommended recreational river, black bear habitat management, restoration and maintenance of rare communities, restoration and management of old growth characteristics, and scenic corridors and sensitive viewsheds. These management strategies, which emphasize natural forest communities and water quality are expected to benefit holiday darter within the Conasauga River watershed. The Chattahoochee National Forest management prescriptions within the upper Etowah River also broadly emphasize and promote natural plant communities and so are expected to benefit holiday darter within this watershed. Standards outlined in the Revised Land and Management Plan for National Forests in Alabama (2004) generally protect water and habitat quality in streams. Direct observations of Shoal Creek have found the stream to have good water quality with high levels of dissolved oxygen, stable pH levels, and low sedimentation, confirming the benefits of USFS management strategies to holiday darter habitat.
Approximately 13.6 mi (21.9 km) of Amicalola Creek are bounded by lands owned and managed by the State of Georgia. Georgia's stated goals for this area are maintenance or enhancement of populations of sensitive species and management of riparian areas to benefit water quality, aquatic resources, and aesthetics. We expect that this provides some benefit to holiday darters in that location. Additionally, approximately 488 acres (ac) (197 hectares (ha)) of these lands were purchased with the assistance of a Recovery Land Acquisition Grant that prioritized the conservation of aquatic resources and species. Therefore, it is anticipated that State ownership and management within the Amicalola Creek watershed will benefit the long-term survival of holiday darters.
Within the Conasauga River basin, Natural Resources Conservation Service has begun a Working Lands for Wildlife project that provides technical and financial assistance to help landowners improve water quality and help producers plan and implement a variety of conservation activities or practices that benefit aquatic species. Holiday darter may benefit in the future from water quality improvements in portions of the Conasauga River that are affected by agricultural practices as a result of the Working Lands for Wildlife project.
Priority watersheds within the range of the holiday darter have been designated as Strategic Habit Units by the Alabama Rivers and Streams Network. The Strategic Habit Unit project was developed for species restoration and enhancement. Watersheds occupied by holiday darter that have been designated as Strategic Habit Units are the Choccolocco Creek watershed (which includes the Shoal Creek populations) and the Oostanaula River watershed (which includes the Conasauga and Coosawattee River populations).
The bridled darter is recognized by Georgia and Tennessee as a species of concern. It is listed as endangered by the State of Georgia. In general, protections accorded to species that are listed by the States prohibit their direct exploitation.
Some populations of bridled darter are known from watersheds in which a substantial percentage of lands are owned and managed by the USFS. These populations are found in the Conasauga River and upper Etowah River. In the Conasauga River, the majority of current records for the bridled darter are within the proclamation boundary of USFS lands. Cherokee National Forest in Tennessee and Chattahoochee National Forest in Georgia own and manage lands and
For the purpose of this assessment, we define viability as the ability of the species to sustain populations in the wild over time. To address uncertainty associated with the degree and extent of potential future stressors and their impacts on species' requisites, the 3Rs were assessed using three plausible future scenarios. These scenarios were based, in part, on the results of urbanization and climate models that predict changes in habitat used by the trispot, holiday, and bridled darters. The models that were used to forecast both urbanization and climate change projected 50 years into the future. Using the best available data to forecast plausible future scenarios allows the Service to determine if a species may become an endangered species in the foreseeable future. For more detailed information on these models and their projections, please see the SSA reports.
In the Status Quo scenario, current environmental regulations and policy, land use management techniques, and conservation measures remain the same over the next 50 years. We anticipate the current trend in greenhouse gas emissions to continue and moderate impacts from extreme weather events including intense drought, floods, and storm events to occur. In this scenario, rapid urbanization will continue at the current estimated rate for the Piedmont region of the southeastern United States, which will increase demand for water resources.
In the Best Case scenario, we predict wider adoption of conservation measures and policies, which involves watershed-scale conservation plans (Working Lands for Wildlife and watershed habitat conservation plans) and enacting a water policy for Alabama. In this scenario, we still expect rapid urban growth, albeit at a slower rate than under the other two scenarios. Under the Best Case scenario, rapidly growing urban areas would address environmental concerns and implement water conservation measures and green infrastructure. If implemented, these actions should lessen the demand on water resources (requiring fewer drinking water supply reservoirs) and minimize urban effects on streams. While large numbers of roads will still be constructed, under the Best Case scenario road crossings will be constructed that allow for fish passage. In this scenario we expect carbon emissions to peak before 2020 resulting in a lower probability of extreme weather conditions negatively affecting stream fishes, as compared to the Status Quo or Worst Case scenarios.
In the Worst Case scenario, we anticipate major negative effects in aquatic ecosystems as a result of rapid urbanization. In conjunction with rapid urban growth, we project that there will be a general lack of conservation measures and policies being implemented at the local, regional, or national levels. Water demand will increase with population, and new reservoir construction will take place. In addition to rapid urbanization, carbon emissions are projected to continue to increase above the current levels in this scenario, resulting in a higher probability of extreme weather events that can negatively affect fish species. In areas that remain in agricultural use, there will be an increased amount of herbicide and poultry litter spreading and no protective measures implemented to address water quality issues. Under this scenario, we anticipate a general decline in available suitable habitat, population size, and abundance.
While we consider all three of these scenarios to be plausible, we acknowledge that each has a different probability of materializing at different times. A discrete range of probabilities was used to describe the likelihood that each scenario will occur. The Status Quo scenario was seen as “very likely” to occur in 10 years and “likely” to occur at 50 years. The Best Case and Worst Case scenarios were seen as less likely to occur (ranging from “unlikely,” “as likely as not,” and “likely”). Although they were part of the analysis, and the range of possibilities considered, because of the significantly lower probability of their occurrence they are not discussed in detail below. However, a table summarizing all scenarios for each species is provided below, and a full description of all three analyses can be found in the SSA report for each species.
In the Status Quo scenario, two populations of trispot darter, Ballplay Creek and Conasauga River, are expected to become extirpated, while the remaining two, Little Canoe Creek and Coosawattee River, are projected to persist in low resiliency condition. Because of the loss of darters predicted for Salacoa Creek, the fish will be found only in the Coosawattee River mainstem (no longer in any tributaries), making it more vulnerable to catastrophic events. Redundancy decreases to two populations, which are completely isolated from one another due to the Weiss Dam. Genetic material will not be exchanged, reducing adaptive potential of the species. Summaries of the analysis of all three scenarios are provided in the table below.
In the Status Quo scenario, three extant populations of holiday darter are expected to become extirpated, while four populations will continue to be extant 50 years in the future. This will decrease overall redundancy for the species as well as representation (the Coosawattee River will no longer be represented with the extirpation of the Talking Rock Creek, Ellijay River, and Mountaintown Creek populations). Physiographic representation is projected to decline over the next 50 years because the holiday darter's range is expected to contract to the upstream stream reaches that are owned and managed by State and Federal agencies within the Blue Ridge physiographic province. Representation is projected to remain within the Ridge and Valley of Alabama. Summaries of the analysis of all three scenarios are provided in the table below.
In the Status Quo scenario, two populations of bridled darter are expected to become extirpated (Talking Rock Creek and Long Swamp Creek). This will decrease overall redundancy for the species as well as representation (the Coosawattee River will no longer be represented with the extirpation of the Talking Rock Creek population). Physiographic representation is projected to decline over the next 50 years because the bridled darter's range is expected to contract to upstream stream reaches that are owned and managed by state and federal agencies within the Blue Ridge physiographic province. Summaries of the analysis of all three scenarios are provided in the table below.
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.”
As required by the Act, we considered the five factors in assessing whether the three species are endangered or threatened throughout all of their ranges. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species. We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with recognized fish experts and other Federal and State agencies.
Stressors identified for the bridled darter include destruction of habitat due to urbanization, channel modification and loss of riparian vegetation, decreased water quality from agricultural activities, severity of climate events like storms and droughts, contaminants, and reduced connectivity from dams, road crossings, and culverts. While the species may be exposed to some or all of these stressors, it continues to persist in all of the streams it occupied historically. Our future scenarios were developed using models that predicted out 50 years; however, the short lifespan of the species (2–3 years) and the lack of evidence of threats directly impacting the species creates uncertainty when predicting the species' response to threats into the future. Forecasting beyond eight to ten generations would be speculative, and we do not have robust population data that could predict how the bridled darter may respond to threats beyond a 20-year timeframe. Accordingly, we have concluded that 20 years is the foreseeable future for the bridled darter.
While our analysis indicates a low abundance for the species currently, the best available data do not indicate a declining trend in abundance. Rather, it is likely that the low abundance (and, therefore, low resiliency) is due to the species being naturally rare and difficult to detect. The inconsistent survey methodology and lack of standard collection records also creates uncertainty in any analysis of trends or the ability to compare data across years. More importantly, within the occupied areas of the Conasauga and Etowah Rivers, the majority of the records for the species are on USFS land, which is noted for having good water quality and suitable habitat for bridled darters, and we expect this situation to continue into the foreseeable future. In fact, even 30 years beyond our foreseeable future timeframe, under the most likely scenario, we expect that the bridled darter will still persist in four of six populations (Conasauga River, Holly Creek, Amicalola Creek, and Etowah River).
Our review of the best available scientific and commercial information indicates that the bridled darter is not in danger of extinction nor likely to become endangered within the foreseeable future throughout all of its range.
Because we determined that the bridled darter is not in danger of extinction or likely to become so in the
Threats previously identified for the holiday darter include destruction of habitat due to urbanization, channel modification and loss of riparian vegetation, decreased water quality from agricultural activities, severity of climate events like storms and droughts, contaminants, and reduced connectivity from dams, road crossings, and culverts. Our analysis shows that while the species may be exposed to some or all of these stressors, it continues to persist in all of the streams it occupied historically. While our future scenarios were developed using models that predicted out 50 years, the short lifespan of the species (3 years) and the lack of evidence of threats directly impacting the species creates uncertainty when predicting the species' response to threats into the future. Forecasting beyond eight to ten generations would be speculative, and we do not have robust population data to support a foreseeable future that could predict how the holiday darter may respond to threats beyond a 20-year timeframe. Accordingly, we have concluded that 20 years is the foreseeable future for the holiday darter.
While our analysis indicates a low abundance for the species, the best available data do not indicate a declining trend in abundance. Rather, it is likely that the low abundance (and, therefore, low resiliency) is due to the species being naturally rare and difficult to detect. The inconsistent survey methodology and lack of standard collection records also creates uncertainty in any analysis of trends or the ability to compare data across years. For example, nearly half of the collection records for holiday darters in the Conasauga River did not provide numeric data for the number of individuals collected, so they represent only presence data. In the occupied areas of the Conasauga and Etowah Rivers, the majority of the records for the species are on USFS land, which is noted for having good water quality and suitable habitat for holiday darters, and we expect this situation to continue into the foreseeable future. We expect that, for the foreseeable future, the holiday darter will continue to have four to six populations, with only the Talking Rock Creek and Long Swamp Creek populations projected to be extirpated. We expect this scenario to continue under the `status quo' scenario to the 50-year timeframe, 30 years beyond the foreseeable future. Even under the `worst case' scenario, three populations are expected to remain extant into the future.
Our review of the best available scientific and commercial information indicates that the holiday darter is not in danger of extinction nor likely to become endangered within the foreseeable future, throughout all of its range.
Because we determined that the holiday darter is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we will consider whether there are any significant portions of its range in which the holiday darter is in danger of extinction or likely to become so. See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014). We evaluated whether there is substantial information indicating that there are any portions of the species' range: (1) That may be “significant,” and (2) where the species may be in danger of extinction. In practice, a key part of identifying portions appropriate for further analysis is whether the threats are geographically concentrated. The threats affecting the holiday darter are occurring throughout its entire range; therefore, there is not a meaningful geographical concentration of threats. As a result, even if we were to undertake a detailed “significant portion of its range” analysis, there would not be any portions of the species' range where the threats are harming the species to a greater degree such that it may be in danger of extinction in that portion. Our review of the best available scientific and commercial information indicates that the holiday darter is not in danger of extinction or likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, we find that listing the holiday darter as an endangered or threatened species under the Act is not warranted at this time.
Our analysis of the trispot darter's current and future conditions, as well as the conservation efforts discussed above, show that the population and habitat factors used to determine the resiliency, representation, and redundancy for trispot darter will continue to decline such that it is likely to become in danger of extinction throughout all or a significant portion of the range within the foreseeable future.
We considered whether the trispot darter is presently in danger of extinction and determined that proposing endangered status is not appropriate. The current conditions as assessed in the trispot darter SSA report show extant populations in four river systems (MUs), including 39 river mi (63 river km) of occupied habitat in the Conasauga River and the Little Canoe Creek population with moderate resiliency. As with the other two darter species, the best available data do not indicate a declining trend in abundance, and it is likely that the low abundance (and, therefore, low resiliency) indicated in our analysis is due to the species being naturally rare and difficult to detect. The inconsistent survey methodology and lack of standard collection records also creates uncertainty in any analysis of trends or the ability to compare data across years. The trispot darter continues to exhibit representation across its range, and extant populations remain across the range. While threats are currently acting on the species and many of those threats are expected to continue into the future, we did not find that the species is currently in danger of extinction throughout all of its range.
After reviewing our analysis of current and plausible future conditions of the trispot darter, we concluded that the resiliency, redundancy, and representation are being impacted by threats and the species has reduced viability. While our future scenarios were developed using models that predicted out 50 years, the short lifespan of the species (2–3 years) and the lack of evidence of threats directly impacting the species creates uncertainty when predicting the species' response to threats into the future. Forecasting beyond eight to ten generations would be speculative, and we do not have robust population data to support a foreseeable future that could predict how the trispot darter may respond to threats beyond a 20-year timeframe. Accordingly, we have concluded that 20 years is the foreseeable future for the bridled darter.
It is true that 30 years beyond our foreseeable future timeframe, the Status Quo scenario predicts the trispot darter will persist in both the Little Canoe and Coosawattee populations. However, considering this species' vulnerability to a loss of connectivity between breeding and non-breeding habitats and the effect that situation has on reproductive success, we expect negative impacts to the resiliency, redundancy, and representation of the species in the foreseeable future. The trispot darter's unique reproductive strategy of utilizing distinct areas of rivers and streams for breeding and non-breeding habitats makes the loss of connectivity especially detrimental to viability. In contrast to the holiday and bridled darters, a lack of protected lands within the current range of trispot darters creates more uncertainty regarding land use, threats, and the ability of these four populations to withstand the expected loss of one or two populations. This expected reduction in both the number and distribution of resilient populations is likely to make the species vulnerable to catastrophic disturbance, and thus put the species at an increased risk of extinction in the foreseeable future. Therefore, on the basis of the best available scientific and commercial information, we find that listing the trispot darter is warranted and propose to list the species as threatened in accordance with sections 3(20) and 4(a)(1) of the Act.
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the trispot darter is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014). While it is the Service's position under this policy that undertaking no further analysis of “significant portion of its range” in this circumstance is consistent with the language of the Act, we recognize that the policy is currently under judicial review, so we also took the additional step of considering whether there could be any significant portions of the species' range where the species is in danger of extinction. We evaluated whether there is substantial information indicating that there are any portions of the species' range: (1) That may be “significant,” and (2) where the species may be in danger of extinction. In practice, a key part of identifying portions appropriate for further analysis is whether the threats are geographically concentrated. The threats affecting the species are throughout its entire range; therefore, there is not a meaningful geographical concentration of threats. As a result, even if we were to undertake a detailed “significant portion of its range” analysis, there would not be any portions of the species' range where the threats are harming the species to a greater degree such that it may be in danger of extinction in that portion.
Section 4(a)(3) of the Act, as amended, and implementing regulations in 50 CFR 424.12, require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features
(a) essential to the conservation of the species, and
(b) which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary of the Interior that such areas are essential for the conservation of the species.
Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when any of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation of critical habitat would not be beneficial to the species, the factors that the Service may consider include but are not limited to whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).
As discussed above, we did not identify any imminent threat of take attributed to collection or vandalism for the trispot darter, and there is no indication that identification and mapping of critical habitat is likely to initiate any such threats. Therefore, in the absence of finding that the designation of critical habitat would increase threats to the species, if there are benefits to the species from a critical habitat designation, a finding that designation is prudent is appropriate.
The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat would not likely increase the degree of threat to the species and may provide some measure of benefit, designation of critical habitat is prudent for the trispot darter.
Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analyses of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. For the trispot darter, a careful assessment of the economic impacts that may occur due to a critical habitat designation is ongoing, and we are in
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries, and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from the List of Endangered and Threatened Wildlife or Plants (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outlines, draft recovery plans, and the final recovery plans will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the trispot darter is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph may include, but are not limited to, management and any other landscape-altering activities on Federal lands administered by the Service, USFS, and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251
Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under
Section 4(d) of the Act specifies that, for threatened species, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of the species. This discretion includes authority to prohibit by regulation with respect to a threatened species any act prohibited by section 9(a)(1) of the Act. At 50 CFR 17.31(a), the Service, by delegation from the Secretary, exercised this discretion to extend the take and other prohibitions set forth in section 9(a)(1) of the Act to all threatened species. The provisions at 50 CFR 17.31(c), however, also provide that the blanket prohibitions included in § 17.31(a) do not apply if the Service promulgates a rule under section 4(d) of the Act tailored to provide for the conservation needs of a specific threatened species. During the public comment period on this proposed rule, we are seeking comments on whether a section 4(d) rule is appropriate for trispot darter.
It is our policy, as published in the
Activities that the Service believes could potentially harm the trispot darter and result in “take” include, but are not limited to:
(1) Unauthorized handling or collecting of the species;
(2) Destruction or alteration of the species' habitat by discharge of fill material, dredging, snagging, impounding, channelization, or modification of stream channels or banks;
(3) Destruction of riparian habitat directly adjacent to stream channels that causes significant increases in sedimentation and destruction of natural stream banks or channels;
(4) Discharge of pollutants into a stream or into areas hydrologically connected to a stream occupied by the species;
(5) Diversion or alteration of surface or ground water flow; and
(6) Pesticide/herbicide applications in violation of label restrictions.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Alabama Ecological Services Field Office (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribal lands located within the range of this species.
A complete list of references cited in the SSA report is available on the Internet at
The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Unified Listing Team and the Alabama Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
(h) * * *
Fish and Wildlife Service, Interior.
Proposed rule; 12-month finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the candy darter (
We will accept comments received or postmarked on or before December 4, 2017. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
John Schmidt, Project Leader, West Virginia Ecological Services Field Office, 694 Beverly Pike, Elkins, WV 26241–9475; by telephone 304–636–6586 or by facsimile 304–636–7824. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339.
Why we need to publish a rule.
This rule proposes adding the candy darter (
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek new information not already included in the SSA Report concerning:
(1) The candy darter's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) The historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) The occurrence of variegate darters within the range of candy darters and evidence of further hybridization between the two species.
(6) The potential for, and timeframe associated with, additional introductions of the variegate darter into unaffected watersheds.
(7) Specific prohibitions and exceptions to those prohibitions that may be necessary and advisable for the candy darter's conservation. We intend to publish, as appropriate, a more tailored proposed rule with provisions set forth under section 4(d) of the Act for public review and comment in the future. Activities we are considering for potential exemption under a section 4(d) rule include, but are not necessarily limited to, exceptions for:
(a) Specific instream and bank habitat restoration activities that will benefit the candy darter, including revegetation of riparian corridors, natural stream channel design, and redesigning and removal of stream crossing structures;
(b) water quality improvement actions such as stream liming;
(c) genetic and population monitoring;
(d) captive propagation in conjunction with a Service-approved Captive Propagation Plan;
(e) sustainable forestry practices that primarily occur adjacent to, or upslope from, but do not occur within streams occupied or likely to be occupied by the candy darter and that are implemented according to well-defined and enforceable best management practices (
(f) other activities that do not:
(i) Facilitate the spread of candy darter/variegate darter hybridization;
(ii) increase sedimentation that negatively affects feeding, breeding, sheltering, or dispersal; and
(iii) cause a change in water temperature that negatively affects feeding, breeding, sheltering, or dispersal.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
In accordance with our joint policy on peer review published in the
We identified the candy darter as a Category 2 candidate species in the December 30, 1982, Review of Vertebrate Wildlife; Notice of Review (50 FR 58454). Category 2 candidates were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at that time. The species remained so designated in subsequent annual Candidate Notices of Review (CNOR) (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; and 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates;
In 2010, the Center for Biological Diversity (CBD) petitioned the Service to list 404 aquatic, riparian, and wetland species from the Southeastern United States under the Act. The candy darter was among these 404 species. On September 27, 2011, the Service published a substantial 90-day finding for 374 of the 404 species, including the candy darter, soliciting information about, and initiating status reviews for, those species (76 FR 59836). In 2015, CBD filed a complaint against the Service for failure to complete a 12-month finding for the candy darter within the statutory timeframe. The Service entered into a settlement agreement with CBD to address the complaint; the court-approved settlement agreement specified that a 12-month finding for the candy darter would be delivered to the
We will also be providing a proposal to designate critical habitat for the candy darter under the Act in the near future.
A thorough review of the taxonomy, life history, and ecology of the candy darter (
The candy darter is a small, freshwater fish endemic to second order and larger streams and rivers within portions of the upper Kanawha River basin, which is synonymous with the Gauley and greater New River watersheds in Virginia and West Virginia. The species is described as a habitat specialist, being most often associated with faster flowing stream segments with coarse bottom substrate (
The available candy darter occurrence data, all of which were collected after the aquatic habitat in the region was degraded in the late 1800s by widespread forest clearing, indicate that the species prefers cool or cold water temperatures, but that warm water conditions may also be tolerated. The fish are opportunistic feeders, eating mostly benthic macroinvertebrates such as mayflies and caddisflies. In streams maintaining favorable habitat conditions, candy darters can be abundant throughout the stream continuum.
Candy darters are sexually mature at 2 years of age and live to a maximum age of 3 years. They are classified as brood-hiding, benthic spawners. In this reproductive strategy, the female deposits her eggs in the pebble and gravel substrate between larger cobbles and boulders, and an attendant male simultaneously fertilizes the eggs as they are released. During spawning, males become aggressively territorial, and in all observed instances of spawning aggression, the larger male prevailed and fertilized the female's eggs. Female candy darters produce a relatively low number of eggs (average 170 per individual) as compared to other fish, with no significant deviation from 1:1 sex ratios.
We are uncertain whether individual candy darters complete their lifecycle within single riffles or riffle complexes spanning just a few hundred meters or are capable of longer, seasonally mediated movements within suitable habitat. While data are sparse regarding the minimum habitat size and degree of genetic connectivity required for candy darter population viability, the historical distribution of the species and the fundamentals of conservation biology suggest these factors are important to the species.
The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the candy darter and prepared a report of the assessment (SSA Report), which provides a thorough account of the species' overall viability using the conservation biology principles of resiliency, redundancy, and representation (collectively, the “3Rs”). We have used the SSA Report's assessment of the candy darter's current and potential future status, based on the factors influencing the species, framed in the context of the 3Rs, to inform our determination of whether the candy darter meets the definition of a threatened or an endangered species (see the Determination section below).
Because we have included information below about the candy darter's 3Rs, we further define those terms here. Resiliency means having sufficiently large populations for the species to withstand stochastic events (arising from random factors). We can measure resiliency based on metrics of population health; for example, birth versus death rates and population size, if that information exists. Resilient populations are better able to withstand disturbances such as random fluctuations in birth rates (demographic stochasticity), variations in rainfall (environmental stochasticity), or the effects of human activities. Redundancy means having a sufficient number of populations for the species to withstand catastrophic events (such as a rare destructive natural event or episode involving many populations). Redundancy is about spreading the risk and can be measured through the duplication and distribution of populations across the range of the species. Generally, the greater the number of populations a species has distributed over a larger landscape, the better it can withstand catastrophic events. Representation means having the breadth of genetic makeup of the species to adapt to changing environmental conditions. Representation can be measured through the genetic diversity within and among populations and the ecological diversity (also called environmental variation or diversity) of populations across the species' range. The more representation, or diversity, a species has, the more it is capable of adapting to changes (natural or human caused) in its environment.
In the absence of species-specific genetic and ecological diversity information, we evaluate representation based on the extent and variability of habitat characteristics within the geographical range. We define viability here as the ability of the species to persist in the wild over time and, conversely, to avoid extinction.
In this section, we summarize the conclusions of that assessment, which can be accessed at Docket FWS–R5–ES–201X–0056 on
Historically, the candy darter occurred in 35 populations distributed across 7 metapopulations located in the Bluestone, Lower New River, Upper Gauley, Lower Gauley, and Middle New watersheds in the Appalachian Plateaus physiographic province and the Upper New River and Greenbrier watersheds in the Valley and Ridge physiographic province.
Within these two physiographic provinces, the candy darter has been extirpated from almost half of its historical range; (17 (49 percent) of 35 known populations and 2 (29 percent) of 7 known metapopulations), with the extirpations representing a complete loss of resiliency in those populations (or metapopulations). We qualitatively assessed the remaining (extant) populations, placing them in “low,” “moderate,” or “high” categories that represent the populations' potential to bounce back after stochastic events. These categories were based on a combination of physical habitat metrics, nonnative competition metrics, and candy darter demographic metrics (see Service 2017, pp. 45, B1–B16). Of the 18 extant populations, 6 (33 percent) have a current score of high resiliency, 6 (33 percent) have moderate resiliency, and 6 (33 percent) have low or moderate to low resiliency. The six populations with high resiliency occur in two metapopulations (the Upper Gauley in the Appalachian Plateaus physiographic province and the Greenbrier in the Valley and Ridge physiographic province); the remaining three extant metapopulations (the Lower Gauley and Middle New in the Appalachian Plateaus physiographic province and the Upper New River in the Valley and Ridge physiographic province) maintain populations with moderate or low resiliency. Therefore, we conclude the candy darter's populations currently have moderate to low resiliency because the majority of metapopulations fall into those categories.
This loss of candy darter populations and the areas they represented within the species' historical range, as well as the fragmentation of extant populations, has compromised the species' ability to repatriate those areas or avoid species-level effects of a catastrophic event. Based on the species' current distribution across its historical range and the species' distribution and condition within each of the seven historical metapopulations (one with moderate to high internal redundancy, one with moderate internal redundancy, one with low internal redundancy, two with no internal redundancy, and two that have been extirpated), we conclude that the candy darter's current redundancy is moderate to low (Service 2017, pp. 27–28, 43–49).
While the candy darter currently maintains representation in both the Appalachian Plateaus and Valley and Ridge physiographic provinces, only a single metapopulation in each province has a moderate to high resiliency score. As related to the species' occupation in a diversity of environmental settings, candy darters have lost representation from lower mainstem rivers and tributaries. Researchers have noted differences in the genetic, physical, behavioral, or developmental characteristics of some stream fish species based on the species' longitudinal position in the watershed (
The candy darter is currently distributed in five of the historical seven metapopulations. The populations within those metapopulations generally have moderate to low resiliency and redundancy scores. While the candy darter is present in the two physiographic provinces from which it is historically known, the species is absent from some ecological settings in which it once existed. This fact leads us to conclude the candy darter's representation is also moderate to low. Therefore, our analysis under the 3Rs leads us to conclude that the condition of the candy darter is currently moderate to low.
Based on the candy darter's life history and habitat needs, and in consultation with species' experts from Virginia and West Virginia State and Federal agencies and academic institutions, we identified the potential stressors (negative influences), the contributing sources of those stressors, and conservation measures to address those stressors that are likely to affect the species' current condition and viability (Service 2017, pp. 31–43). We evaluated how these stressors may be currently affecting the species and whether, and to what extent, they would affect the species in the future (Service 2017, pp. 50–65). Water temperature, excessive sedimentation, habitat fragmentation, water chemistry, water flow, and nonnative competition likely influenced the species in the past and contributed to its current condition, and may continue to affect some individual populations in the future. Hybridization with the closely related variegate darter (
As mentioned above, the primary stressor to the candy darter is hybridization with the variegate darter (Service 2017, pp. 31–36, 50), a species that is native to the Kanawha River basin below the Kanawha Falls in Fayette County, West Virginia. The Kanawha Falls serve as a natural barrier to fish dispersal from the lower Kanawha River basin (and greater Ohio River basin) upstream into the range of the candy darter in the upper Kanawha River basin. However, in the late 20th century, the variegate darter was introduced into the upper Kanawha
We modeled a total of five scenarios to assess the potential viability of the candy darter at a point up to 25 years in the future (Service 2017, pp. 50–65). Two scenarios were focused on habitat change (one positive and the other negative), and three scenarios were focused on variegate darter invasion. However, the habitat change scenarios, by themselves, are not plausible scenarios because variegate darter hybridization is ongoing and likely to continue (see Chapter 4 and Appendix B of the SSA Report for additional information). We chose to model all scenarios out to 25 years because we have data to reasonably predict potential habitat and variegate darter changes and their effects on the candy darter within this timeframe.
Under the three most plausible scenarios, the predicted rate of variegate darter expansion and hybridization remains the same, and at the end of 25 years, the candy darter will likely occur in four isolated populations and maintain little resilience, redundancy, or representation. The effects of significant positive or negative habitat changes do not alter this outcome; although it is possible that, because variegate darters may be more tolerant of a wider range of habitat conditions, negative habitat changes could selectively benefit variegate darters and therefore increase the rate at which candy darters are extirpated.
The candy darter SSA Report contains a more detailed discussion of our evaluation of the biological status of the candy darter and the influences that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data, including the expert opinion of the species' experts (fishery biologists, aquatic ecologists, and geneticists from State and Federal agencies and academic institutions). Please see the SSA report for a complete list of the species experts and peer reviewers and their affiliations).
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the candy darter. Our analysis of this information indicates that, at the species level, hybridization with variegate darters (Factor E) is the most influential factor affecting the candy darter now and into the future. Excessive sedimentation and increased water temperatures degraded once-suitable habitat (Factor A) and likely caused historical declines of the candy darter; these factors continue to affect some of the remaining populations despite regulatory mechanisms (Factor D) to reduce or eliminate sedimentation. There may be additional infrastructure projects (
Hybridization with variegate darters has occurred or is currently occurring in multiple streams within the Lower New, Lower Gauley, and Greenbrier River watersheds in West Virginia (Service 2017, p. 34). Variegate darters have not yet been detected in the remainder of the candy darter's range (
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range.” We find that an endangered species status is not appropriate for the candy darter because the species still occurs throughout approximately half of its historical range and the risk is low that the species would not persist in the near term; in other words, the risk of the candy darter significantly declining in the near term is low given that it has persisted despite historical levels of habitat loss. Further, variegate darters are not known to be present in the Virginia areas of the species' range, thus the risk of significant declines in the near term due to hybridization is low in those areas. The persistence of occupied habitat within the species' range provides redundancy, resiliency, and representation levels that are likely sufficient to sustain the species beyond the near term. Therefore, we conclude that the current risk of extinction of the candy darter is sufficiently low that it does not meet the definition of an endangered species under the Act.
The Act defines a threatened species as any species that is “likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the status of the candy darter meets the definition of a threatened species. Because the risk is high that hybridization between the candy darter and the variegate darter will continue to occur, we can reasonably predict that within 20 years hybridization between the two species is likely to increase within the range of the candy darter to an extent causing the species to become in danger of extinction (see table 6 and Chapter 4 in the SSA report). We cannot precisely predict the timing of introduction of the variegate darter into additional areas within the candy darter's range, the rate of hybridization once introduction occurs, and the time at which candy darters will be replaced by variegate darters or hybrids; however, the time period over which the variegate darter has spread into the candy darter's range in the past and the documented effects of hybridization between the two species give us reasonable confidence in our determination that the candy darter is
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the candy darter is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014). While it is the Service's position under the SPR Policy that undertaking no further analysis of “significant portion of its range” in this circumstance is consistent with the language of the Act, we recognize that the Policy is currently under judicial review, so we also took the additional step of considering whether there could be any significant portions of the species' range where the species is in danger of extinction. We evaluated whether there is substantial information indicating that there are any portions of the species' range: (1) that may be “significant,” and (2) where the species may be in danger of extinction. In practice, a key part of identifying portions appropriate for further analysis is whether the threats are geographically concentrated. The threats affecting the species are throughout its entire range; therefore, there is not a meaningful geographical concentration of threats. As a result, even if we were to undertake a detailed SPR analysis, there would not be any portions of the species' range where the threats are harming the species to a greater degree such that it is in danger of extinction in that portion.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, state, tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop the recovery plan. A recovery team (composed of species experts, Federal and state agencies, nongovernmental organizations, and stakeholders) is sometimes established to develop the recovery plan. The recovery plan identifies recovery criteria that indicate when a species may be ready for downlisting or delisting, actions necessary to achieve recovery and their estimated costs, and methods for monitoring recovery progress. The recovery plan may be revised to address continuing or new threats to the species, as new substantive information becomes available. When completed, the recovery outline, draft recovery plan, and final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, states, tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the candy darter is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include, but are not limited to, management and any other landscape-altering activities on lands administered by the U.S. Forest Service, National Park Service, and the U.S. Army Corps of
Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and state conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
For the candy darter, we are considering developing a rule under section 4(d) of the Act that is tailored to the specific threats and conservation needs of this species. Please see the Information Requested—
It is our policy, as published in the
• Normal agricultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:
(1) Introduction of variegate darters into suitable candy darter habitat.
(2) Stocking of nonnatives into suitable candy darter habitat.
(3) Unlawful destruction or alteration of the habitat of the candy darter (
(4) Unauthorized discharges or dumping of toxic chemicals or other pollutants into waters supporting the candy darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as breeding, feeding, or finding shelter.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the appropriate office:
• Southwestern Virginia Ecological Services Field Office, 330 Cummings Street, Abingdon, VA 24210; telephone (276) 623–1233; facsimile (276) 623–1185.
• West Virginia Ecological Services Field Office (see
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.
There is currently no imminent threat of take attributed to collection or vandalism under Factor B for the candy darter, and identification and mapping of critical habitat is not likely to increase any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. The potential benefits of designation include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to these species and may provide some measure of benefit, we find that designation of critical habitat is prudent for the candy darter.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.
As discussed above, we have reviewed the available information pertaining to the biological needs of the candy darter and habitat characteristics where the species is located. Because we are seeking, through this document, additional information regarding updated candy darter occurrence records, updated documentation of variegate darter presence and risk for additional variegate darter introductions, and other analyses, we conclude that the designation of critical habitat is not determinable for the candy darter at this time. We will make a determination on critical habitat no later than 1 year following any final listing determination.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rule are the staff members of the Northeast Regional Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; and 4201–4245; unless otherwise noted.
(h) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 17B to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico U.S. Waters, (FMP), as prepared and submitted by the Gulf of Mexico (Gulf) Fishery Management Council (Council). This proposed rule would allow for the creation of a Federal Gulf shrimp reserve pool permit when certain conditions are met, and would allow non-federally permitted Gulf shrimp vessels to transit through the Gulf exclusive economic zone (EEZ). Amendment 17B would also define the aggregate maximum sustainable yield (MSY) and aggregate optimum yield (OY), and determine a minimum number of commercial vessel moratorium permits in the fishery. This proposed rule also would make technical corrections to the regulations that would revise the coordinates for the Tortugas shrimp sanctuary in the Gulf, and correct the provisions regarding the harvest and possession of wild live rock in Gulf Federal waters. The purpose of this proposed rule and Amendment 17B is to protect federally managed Gulf shrimp stocks while maintaining catch efficiency, economic efficiency, and stability in the fishery.
Written comments must be received on or before November 3, 2017.
You may submit comments on the proposed rule, identified by “NOAA–NMFS–2017–0040” by either of the following methods:
•
•
Electronic copies of Amendment 17B, which includes an environmental assessment, a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at
Frank Helies, telephone: 727–824–5305, or email:
The shrimp fishery in the Gulf is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
This document also proposes to designate the unidentified tables in § 622.55 to bring the section into compliance with the requirements of 1 CFR 8.1 and 8.2 and with the Office of the Federal Register's Document Drafting Handbook (
From 2003 to 2006, the Gulf shrimp fishery experienced significant economic losses, primarily as a result of high fuel costs and reduced prices caused by competition with imports. These economic losses contributed to a reduction in the number of vessels in the fishery, and consequently, a reduction of commercial effort. During that time, commercial vessels in the Gulf shrimp fishery were required to have an open-access permit. In 2006, to prevent overcapitalizing the fishery when it became profitable again, the Council established a 10-year freeze on the issuance of new shrimp permits and created a limited access Federal Gulf shrimp moratorium permit (moratorium permit) (71 FR 56039, September 26, 2006). In 2016, the Council extended the duration of the Gulf shrimp moratorium permit program for another 10 years in Amendment 17A to the FMP (81 FR 47733, July 22, 2016).
During the development of Amendment 17A, the Council identified several other issues with the Gulf shrimp fishery that it wanted addressed. First, MSY and OY (equal to MSY), are defined individually for the three penaeid shrimp species and for royal red shrimp. Second, the number of moratorium permits has continued to decline and the Council is concerned that the decline in total permits will continue indefinitely. Finally, transit through Federal waters (Gulf EEZ) with shrimp on board currently requires a moratorium permit, which limits the
This proposed rule would allow for the creation of a Federal Gulf shrimp reserve pool permit when certain conditions are met and would allow non-federally permitted Gulf shrimp vessels to transit through the Gulf EEZ.
Currently, moratorium permits are valid for 1 year and are required to be renewed annually. If the permit is not renewed within 1 year of its expiration date, the permit is no longer renewable and is terminated. A terminated permit cannot be reissued by NMFS and is lost to the fishery.
As of December 31, 2016, there were 1,441 moratorium permits that were valid or renewable. Since the start of the permit moratorium, a total of 493 moratorium permits have been terminated. As described in Amendment 17B, when the number of valid or renewable moratorium permits reaches 1,072, then any moratorium permits that are not renewed within 1 year of expiration would be converted to a Gulf shrimp reserve pool permit. This number is based on the predicted number of active permitted vessels needed to attain aggregate OY in the offshore fishery. As explained further below, the aggregate OY accounts for relatively high catch per unit effort (CPUE) and landings while reducing the risk of exceeding sea turtle and juvenile red snapper bycatch.
As described in Amendment 17B, the Council estimates that it could take up to 24 years to reach the threshold value of 1,072 valid or renewable moratorium permits. Therefore, any Gulf shrimp reserve pool permit that is created would not be issued until eligibility requirements are developed by the Council and implemented through subsequent rulemaking. Depending on such future Council action on eligibility requirements, Gulf shrimp reserve pool permits could be used as a method to allow new entrants into the fishery or to allow persons who previously held a moratorium permit to re-enter the fishery.
Currently, to possess Gulf shrimp in the Gulf EEZ, a vessel must have been issued a moratorium permit. In the Gulf, there are some areas where state-only licensed shrimpers would like to transit with shrimp on board from state waters through Federal waters to return to state waters and port. However, because these state-licensed shrimping vessels do not possess a moratorium permit, they cannot legally transit through the Gulf EEZ while possessing shrimp. This results in some of these vessels spending increased time at sea and incurring additional fuel costs because of longer transit times.
The proposed rule would allow a vessel possessing Gulf shrimp to transit the Gulf EEZ without a valid moratorium permit if fishing gear is appropriately stowed. Transit would be defined as non-stop progression through the area; fishing gear appropriately stowed would mean trawl doors and nets must be out of the water and the bag straps must be removed from the net. This transit exemption is expected to reduce the time at sea required for some shrimpers, while allowing enforcement to easily determine that the gear is not being used for fishing.
Amendment 17B would specify the aggregate MSY and aggregate OY for the Federal Gulf shrimp fishery, and determine a minimum number of moratorium permits in the fishery.
After extending the duration of the Gulf shrimp moratorium permit program for another 10 years, and recognizing that the moratorium results in a passive loss of permits from the fishery, the Council decided to determine an appropriate minimum number of moratorium permits. To facilitate this determination, the Council decided to establish an aggregate MSY and OY for the Federal Gulf shrimp fishery. In Amendment 15 to the FMP, the Council established species specific MSYs and OYs for penaeid shrimp (80 FR 74711, November 30, 2015). MSY and OY were established for royal red shrimp in the original FMP (46 FR 27489, May 20, 1981). Additionally, Amendment 13 to the FMP revised the MSY and OY for royal red shrimp (71 FR 56039, September 26, 2006). However, the shrimp permit is not species specific and an aggregate MSY and OY for all federally managed shrimp species (penaeid and royal red) can be used as references points for the shrimp fishery as whole.
In March 2016, the Council convened a working group to determine the appropriate aggregate MSY and aggregate OY for the Gulf shrimp fishery in Federal waters. To determine the aggregate MSY, the working group used the same general approach established by a 2006 working group, but included the most recent years of catch and effort data through 2014. The working group also determined that there were four important factors to consider when establishing aggregate OY: Landings, CPUE, sea turtle bycatch threshold, and juvenile red snapper bycatch. The working group concluded that the predicted effort and associated landings in 2009 balanced all of these criteria relative to observed levels in other years.
Amendment 17B proposes using the method developed by the working group to establish aggregate MSY for the Federal Gulf shrimp fishery at 112,531,374 lb (51,043,373 kg), tail weight. Amendment 17B also would establish aggregate OY for the Gulf shrimp fishery equal to 85,761,596 lb (38,900,806 kg), tail weight, which is the aggregate MSY reduced for the ecological, social, and economic factors described above.
As noted above, as of December 31, 2016, there were 1,441 moratorium permits that were valid or renewable, and, at the current rate of termination, the minimum threshold number of permits selected by the Council, 1,072 permits, will be reached in 24 years. This minimum threshold number of valid or renewable moratorium permits is based on the predicted number of active permitted vessels needed to achieve aggregate OY in the offshore fishery. Aggregate OY accounts for relatively high CPUE and landings, while reducing the risk of exceeding sea turtle and juvenile red snapper bycatch. Neither this proposed rule nor Amendment 17B actively removes any moratorium permits. The minimum threshold is only for purposes of monitoring changes in fishery participation and determining whether additional management measures should be established.
As specified in Amendment 17B, when the number of moratorium permits declines to 1,175, the Council would form a panel to review details of the reserve permit pool and other options for management. The Council's Shrimp Advisory Panel (AP) suggested
In addition to the measures described in Amendment 17B, this proposed rule would revise the coordinates for the Tortugas shrimp sanctuary in the Gulf that were established in the original Shrimp FMP; and clarify the regulations for the harvest and possession of wild live rock in Gulf Federal waters, as established in the FMP for Coral and Coral Reefs of the Gulf of Mexico (Coral FMP).
The original FMP established the Tortugas shrimp sanctuary on May 20, 1981, which was implemented with cooperation from of the state of Florida (46 FR 27489, May 20, 1981), and which is currently defined at 50 CFR 622.55(c)(1). Since that time, there have been numerous advances in geographical positioning systems that describe the physical locations (such as lights) used to define the boundary of the Tortugas shrimp sanctuary. NMFS and the state of Florida have determined that several positions for the points defining the boundary of the sanctuary are no longer consistent with the most recent published coordinates in Federal navigation references and current positioning systems, such as Global Positioning Systems. For example, Point N (Coon Key Light) is currently described as being located at 25°52′9″ North Latitude and 81°37′9″ West Longitude. However, using current technology that is reflected in recently U.S navigational publications, NMFS and the state of Florida have noted that this point is actually located at 25°52′54″ North Latitude and 81°37′56″ West Longitude. Therefore, this proposed rule would revise the positions for Points N, F, G, H, and P to reflect current technology, for consistency with the current U.S. Coast Guard Light List, the U.S. Coast Pilot, and the state of Florida, and for consistency in units of position. For consistency, the state of Florida is also updating these positions. Only these technical corrections for the coordinates would be made to the language of the regulations; this proposed rule would not make any substantive changes in the regulations specific to the management measures for the Tortugas shrimp sanctuary.
This proposed rule also would revise the prohibited species regulations for wild live rock, as established in the Coral FMP. In 1994, the final rule implementing Amendment 2 to the Coral FMP established a prohibition on the harvest and possession of wild live rock in the Gulf EEZ to begin on January 1, 1997 (59 FR 66776, December 28, 1994). The following year, the final rule implementing Amendment 3 to the Coral FMP established an annual quota for wild live rock from the Gulf EEZ to apply before the prohibition would take effect (60 FR 56533, November 9, 1995). The prohibition on harvest beginning in 1997, and the quota were originally codified at 50 CFR 638.26(c) and (d), and the quota provision included prohibitions on harvest and possession and on sale and purchase when a quota closure occurs. When NMFS reorganized the 50 CFR part 622 regulations in 1996, the prohibition on harvest and possession and the quota provisions were moved to 50 CFR 622.42(b)(2) and 622.43(a)(2)(ii) (61 FR 34930, July 3, 1996). In 1999, NMFS issued a final rule for a Technical Amendment to its regulations in 50 CFR part 622 in order to revise a variety of regulations for clarity, consistency in terms, and the removal of outdated regulations (64 FR 59125, November 2, 1999). Because the harvest of wild live rock in the Gulf was discontinued at the end of 1996, the final rule for the Technical Amendment removed several provisions related to harvest, including the quota and the associated prohibitions on harvest and possession and on sale and purchase, when a quota closure occurs. That final rule also added a general restriction on sale and purchase of wild live rock from the Gulf EEZ, which remains in effect today. However, NMFS recently became aware that the rule inadvertently failed to also add the general restriction on the harvest and possession of wild live rock in or from the Gulf EEZ. In this proposed rule, NMFS corrects this error by adding the Gulf EEZ wild live rock prohibition at 622.73(c).
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 17B, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Magnuson-Stevens Act provides the legal basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting and record-keeping requirements are introduced by this proposed rule. Accordingly, the Paperwork Reduction Act does not apply to this proposed rule. A description of this proposed rule, why it is being considered, and the purposes of this proposed rule are contained in the preamble and in the
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. A description of the factual basis for this determination follows. Estimates in the factual basis are based on 2011–2014 data, and all monetary estimates are in 2014 dollars, consistent with the data and estimates in Amendment 17B.
This proposed rule, if implemented, would establish an aggregate MSY of 112,531,374 lb (51,043,373 kg), tail weight, and an aggregate OY of 85,761,596 lb (38,900,806 kg), tail weight, for the Federal Gulf shrimp fishery; establish a minimum threshold of 1,072 Gulf shrimp moratorium permits; establish how the Council will respond if and when the minimum threshold is reached; and allow shrimp vessels without Federal permits to transit through Federal waters in the Gulf when they have shrimp on board. This proposed rule also would make technical corrections to the regulations
The action to revise the coordinates for the Tortugas shrimp sanctuary in the Gulf is purely administrative in nature and thus would not directly regulate or affect any entities. In addition, the action to correct the regulations for wild live rock in Gulf Federal waters adds the previously established prohibition on the harvest and possession, consistent with the regulations implemented as a result of Amendment 2 and Amendment 3 to the Coral FMP. Currently, because the sale of wild live rock is prohibited under the existing regulations, harvest of wild live rock for commercial purposes, and thus by business entities, is prohibited. As such, any harvest that may be occurring as a result of uncertainty regarding the current regulations would be by individuals who are retaining wild live rock for personal use. However, individuals engaged in such activities are not considered entities under the RFA.
This proposed rule is expected to directly regulate businesses that possess Federal Gulf shrimp moratorium permits as well as shrimp vessels that do not possess these permits but transit through Federal waters. As of January 1, 2017, there were 1,440 vessels with valid or renewable Gulf shrimp moratorium permits. Although some vessels are thought to be owned by businesses with the same or very similar individual owners, ownership data regarding the businesses that possess these permits is incomplete, and thus it is not currently feasible to accurately determine affiliations between vessels and the businesses that own them. NMFS is making changes to its permit application forms so that such determinations can be accurately made for future regulatory actions in this fishery. Also, NMFS does not possess data that would indicate how many vessels without Federal permits could harvest shrimp in the Gulf and choose to transit through Federal waters. However, available landings data in recent years indicate that as many as 3,800 vessels without Federal permits harvested shrimp in the Gulf. NMFS does not possess any ownership data for these vessels. Thus, it is not currently feasible to accurately determine the number of individual businesses these 3,800 vessels represent. While it will result in an overestimate of the actual number of businesses directly regulated by this proposed rule, for the purposes of this analysis, it is assumed that each vessel is independently owned by a single business. Therefore, this proposed rule would be expected to directly regulate 5,240 businesses.
For vessels with Gulf shrimp moratorium permits, annual gross revenue was about $381,000 on average from 2011 through 2014, of which approximately $343,000 came from commercial fishing operations. Net revenue for these vessels was about $43,000, while net revenue from commercial fishing operations was approximately $8,300. For vessels without Gulf shrimp moratorium permits, annual gross revenue was about $85,000 on average in 2012, of which approximately $64,000 came from commercial fishing operations. Net revenue was about $16,000, while net revenue from commercial fishing operations was approximately −$5,000. From 2011 through 2014, the greatest average annual gross revenue earned by a single vessel (business) was approximately $1.85 million.
On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates).
Based on the information above, all businesses directly regulated by this proposed rule are determined to be small businesses for the purpose of this analysis. Therefore, it is determined that this proposed rule will affect a substantial number of small businesses.
Aggregate MSY is a biological reference point. In general, establishing biological and other reference points in fisheries does not directly regulate any entities and therefore is not expected to alter domestic prices, landings, or the harvesting behavior of vessels. As such, the action to establish aggregate MSY is not expected to directly affect any small entities in the Gulf shrimp fishery. Similarly, aggregate OY specifies the level of harvest that is expected to maximize net benefits to the Nation. Though not purely biological, aggregate OY is also a reference point. Thus, the action to establish aggregate OY does not directly regulate any entities and would also not be expected to alter domestic prices, landings, or the harvesting behavior of vessels in the Gulf shrimp fishery. As such, the action to establish aggregate OY is not expected to directly affect any small entities.
The action to establish a minimum number of 1,072 Gulf shrimp moratorium permits would not actively remove Gulf shrimp moratorium permits from the Federal fishery. Rather, it would continue to allow a passive reduction in the number of valid or renewable Gulf shrimp moratorium permits, as permits terminate due to not being renewed in a timely manner, until the minimum number is reached. As a result, this action is not expected to directly regulate or affect any small entities.
The action to establish the Council's response when the number of valid and renewable permits reaches or approaches the minimum number of permits is also administrative, or procedural, in nature. If the number of valid and renewable permits reaches the minimum number, any permits that are not renewed within 1 year of the expiration date on the permit will go into a reserve pool. However, these reserve pool permits will not be issued, and therefore cannot be used to harvest shrimp in Federal waters, until eligibility requirements are established. This action also establishes a requirement for the Council to convene a review panel once the number of valid and renewable permits reaches 1,175. This action would not be expected to alter domestic shrimp prices, landings, or the harvesting behavior of shrimp vessels in the Gulf, and therefore is also not expected to directly affect any small entities.
The action to allow vessels without a Gulf shrimp moratorium permit to possess shrimp when transiting through Federal waters if the gear is appropriately stowed would be expected to directly affect these vessels. Specifically, under current regulations, these vessels are not allowed to transit through Federal waters and instead must often take a longer route between their home ports and where they harvest shrimp, resulting in longer transiting times and distances, and therefore higher fuel expenses. Although quantitative estimates of these additional fuel expenses are not available, this action would be expected to reduce fuel expenses for these vessels, which would result in direct but positive economic effects on these small entities.
Based on the information above, a reduction in profits for a substantial number of small entities is not expected as a result of this proposed rule. Thus, an initial regulatory flexibility analysis is not required and none has been prepared.
Commercial, Fisheries, Fishing, Gulf, Permits, Shrimp.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(b) * * *
(3) * * *
(ii) Except as provided for in paragraph (b)(3)(iii) of this section, a commercial vessel moratorium permit for Gulf shrimp that is not renewed will be terminated and will not be reissued during the moratorium. A permit is considered to be not renewed when an application for renewal, as required, is not received by the RA within 1 year of the expiration date of the permit.
(iii) When NMFS has determined that the number of commercial vessel moratorium permits for Gulf shrimp has reached the threshold number of permits as described in the FMP, then a commercial vessel moratorium permit for Gulf shrimp that is not renewed will be converted to a Gulf shrimp reserve pool permit and held by NMFS for possible reissuance. Gulf shrimp reserve pool permits will not be issued until eligibility requirements are developed and implemented through subsequent rulemaking.
(e)
The revision to read as follows:
(c) * * *
(1) The Tortugas shrimp sanctuary is closed to trawling. The Tortugas shrimp sanctuary is that part of the EEZ off Florida shoreward of rhumb lines connecting, in order, the following points:
(c) Wild live rock may not be harvested or possessed in or from the Gulf EEZ.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Advanced notice of proposed rulemaking; request for comments.
This advanced notice of proposed rulemaking provides information on a request by the Pacific Fishery Management Council (Council) to announce deliberations of potential accumulation limits for Catcher Processor Permit use or ownership in the Pacific Coast groundfish fishery. The Council may not count any acquisition and usage of Catcher Processor permits and/or usage of Catcher Processor allocation after the date of June 13, 2017, in any decision setting accumulation limits. NMFS invites comments on this document.
Written comments must be received by November 3, 2017.
You may submit comments on the proposed rule identified by “NOAA–NMFS–2017–0109” by either of the following methods:
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Frank Lockhart, NMFS West Coast Regional Office, telephone: 206–526–6142, or email:
The Pacific Fishery Management Council (Council) recommended and the National Marine Fisheries Service (NMFS) implemented the Pacific Coast groundfish trawl catch share program (Program) off Washington, Oregon and California, starting on January 11, 2011. The Program changed management of harvest in the trawl fishery from a trip limit system with cumulative vessel trip limits to a quota system in which each quota share could generally be harvested at any time during an open season. The Program has increased fishermen's flexibility in making decisions on when and how much quota to fish.
The Magnuson-Stevens Act requires that councils undertake reviews within 5 years after implementation of limited access privilege programs such as the Pacific Coast groundfish trawl catch share program. The Council initiated its review in 2016, and expects to recommend changes to the Program in the coming months.
One of the issues that the Council is considering is accumulation limits for the Catcher Processor (CP) sector. In establishing the initial Program, the Council addressed accumulation limits for the ownership or control within the shoreside IFQ sector and the mothership sector, but not the CP sector. The accumulation limits were meant to prevent consolidation at levels that could result in an excessive share being acquired by a single entity. At the June 2017 Council meeting, the Council began considering whether or not similar accumulation limits on ownership or control should be applied to the CP sector as well, and it recommended that NMFS announce the start of these deliberations in the
In advance of a rulemaking on changes to the Program, this document announces that the Council may not count any activities related to acquisition and usage of CP permits and/or usage of CP allocation after the date of June 13, 2017, when establishing accumulation limits for the CP sector. This is intended to discourage increased acquisition and usage of CP permits and/or usage of CP allocation for the purpose of economic speculation while the Council develops and considers changes to the Program.
This announcement does not commit the Council or the NMFS to any particular outcome. The Council may or may not make use of this date as part of any deliberations and decisions on acquisition and usage of CP permits and/or usage of CP allocation. Fishery participants are not guaranteed future participation in the program, regardless of their entry date or level of participation in the fishery before or after June 13, 2017. It is important to note that continuation of levels of accumulation that predate June 13, 2017 are not guaranteed. The Council also may choose to take no further action.
16 U.S.C. 1801
Federal Crop Insurance Corporation, USDA.
Renewal and revision of the currently approved information collection.
In accordance with the Paperwork Reduction Act of 1995 this notice announces the Federal Crop Insurance Corporation's (FCIC) intention to request an extension to a currently approved information collection for the submission of policies, provisions of policies, rates of premium, and non-reinsured supplemental policies under section 508(h) of the Federal Crop Insurance Act. This notice announces a public comment period on the information collection requests (ICRs) associated with the submission of policies, provisions of policies, rates of premium, and non-reinsured supplemental policies under section 508(h) of the Federal Crop Insurance Act.
Written comments on this notice will be accepted until close of business December 4, 2017.
FCIC prefers that comments be submitted electronically through the Federal eRulemaking Portal. You may submit comments, identified by Docket ID No. FCIC–17–0001, by any of the following methods:
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•
All comments received, including those received by mail, will be posted without change to
Tim Hoffmann, Director, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, Beacon Facility, Stop 0812, Room 421, P.O. Box 419205, Kansas City, MO 64141–6205, telephone (816) 926–7730.
The submission's per-response time was adjusted because FCIC reviewed each line item and consulted with Risk Management Agency subject matter experts. In this review, FCIC determined the total number of product submissions were overestimated, therefore, lowering the amount of product submissions for the information collection.
FCIC is requesting the Office of Management and Budget (OMB) to extend the approval of this information collection for an additional 3 years.
The purpose of this notice is to solicit comments from the public concerning this information collection. These comments will help us:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Office of the Deputy Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Deputy Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), are sponsoring a public meeting on November 7, 2017. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions to be discussed at the 5th Session of the Ad Hoc Codex Intergovernmental Task Force on Antimicrobial Resistance (TFAMR) of the Codex Alimentarius Commission (Codex), taking place in Jeju, Republic of Korea, November 27, 2017 through December 1, 2017. The Deputy Under Secretary for Food Safety and the FDA recognize the importance of providing interested parties with the opportunity to obtain background information on the 5th Session of the TFAMR and to address items on the agenda.
The public meeting is scheduled for Tuesday, November 7, 2017, from 1:00 p.m.–4:00 p.m.
The public meeting will take place at the United States Department of Agriculture (USDA), Jamie L. Whitten Building, 1400 Independence Avenue SW., Room 107–A, Washington, DC 20250.
Documents related to the 5th Session of the TFAMR will be accessible via the Internet at the following address:
Donald Prater, U.S. Delegate to the 5th Session of the TFAMR, invites U.S. interested parties to submit their comments electronically to the following email address:
If you wish to participate in the public meeting for the 5th Session of the TFAMR by conference call, please use the call-in-number below:
Attendees may register to attend the public meeting by emailing
The Office of Foods and Veterinary Medicine, FDA, 10903 New Hampshire Avenue, Silver Spring, MD 20993, Email:
Kenneth Lowery, U.S. Codex Office, 1400 Independence Avenue SW., Room 4861, Washington, DC 20250, Telephone: (202) 690–4042, Fax: (202) 720–3157, Email:
Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, the Codex seeks to protect the health of consumers and ensure fair practices in the food trade.
The TFAMR is responsible for:
(a) Reviewing and revising as appropriate the Code of Practice to Minimize and Contain Antimicrobial Resistance (CAC/RCP 61–2005) to address the entire food chain, in line with the mandate of Codex.
(b) Considering the development of Guidance on Integrated Surveillance of Antimicrobial Resistance, taking into account the guidance developed by the WHO Advisory Group on Integrated Surveillance of Antimicrobial Resistance (AGISAR) and relevant the World Organization for Animal Health (OIE) documents.
The Committee is hosted by the Republic of Korea.
The following items on the Agenda for the 5th Session of the TFAMR will be discussed during the public meeting:
• Matters referred by Codex and other Subsidiary Bodies;
• Matters arising from the work of the FAO, WHO and other international intergovernmental organizations:
(a) Progress report on the request for scientific advice on foodborne antimicrobial resistance from the FAO and WHO in collaboration with OIE.
(b) Information on the work of the FAO, WHO, OIE and other relevant international organizations on antimicrobial resistance.
• Proposed draft revision of the Code of Practice to Minimize and Contain Antimicrobial Resistance (CAC/RCP 61–2005); and
• Proposed draft Guidelines on integrated surveillance of antimicrobial resistance.
Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat before the Meeting. Members of the public may access or request copies of these documents (see
At the November 7, 2017, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to Donald Prater for the 5th Session of the TFAMR (see
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations,
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720–2600 (voice and TDD).
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Oregon Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Pacific Time) Monday, November 6, 2017. The purpose of the meeting is for the Committee to begin planning for a briefing focused on human trafficking in Oregon.
The meeting will be held on Monday, November 6, 2017, at 1:00 p.m. PDT.
Public call information:
Ana Victoria Fortes (DFO) at
This meeting is available to the public through the following toll-free call-in number: 877–675–4757, conference ID number: 7967234. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894–0508, or emailed Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the California State Advisory Committee (Committee) to the Commission will be held at 10 a.m. (Pacific Time) Wednesday, October 25, 2017. The purpose of the meeting is for the Committee to discuss outreach strategies to circulate Voting Integrity report.
The meeting will be held on Wednesday, October 25, at 10 a.m. PT.
Public call information:
Ana Victoria Fortes at
This meeting is available to the public
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894–0508, or emailed Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), thata meeting of the ConnecticutAdvisory Committee to the Commission will convene by conference call at 12:00 p.m. (EDT) on: Wednesday, November 8, 2017. The purpose of the meeting is to review and approve (vote) on the Advisory Memorandum on Solitary Confinement.
Wednesday, November 8, at 12:00 p.m. EDT.
Barbara Delaviez, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1–888–438–5448 and conference call 3640132. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1–800–977–8339 and providing the operator with the toll-free conference call-in number: 1–888–438–5448 and conference call 3640132.
Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376–7548, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Arizona Advisory Committee (Committee) to the Commission will be held at 12:00 p.m. (Pacific Time) Wednesday, November 1, 2017. The purpose of the meeting is for the Committee to discuss civil rights topics of study.
The meeting will be held on Wednesday, November 1, 2017, at 12:00 p.m. PT.
Public call information:
Ana Victoria Fortes (DFO) at
This meeting is available to the public through the following toll-free call-in
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894–0508, or emailed Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Texas Advisory Committee (Committee) to the Commission will be held at 2:00 p.m. (Central Time) October 25, 2017. The purpose of the meeting is for the Committee to discuss proposal on voting rights.
The meeting will be held on Wednesday, October 25, 2017, at 2:00 p.m. CDT.
Public call information:
Ana Victoria Fortes (DFO) at
This meeting is available to the public through the following toll-free call-in number: 888–318–7469, conference ID number: 3641351. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894–0508, or emailed Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Fuling Plastic USA, Inc. (Fuling Plastic) submitted a notification of proposed production activity to the FTZ Board for its facility in Allentown, Pennsylvania within Subzone 272C. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 27, 2017.
The Fuling Plastic facility is used for the receipt, quality control, warehousing, manipulation, testing, and production of disposable plastic and paper service ware and kitchenware products. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Fuling Plastic from
The components and materials sourced from abroad include: Polypropylene Resin; Polypropylene Resin (Modified Granulation with Color); Plastic Film; Plastic Bags; Paper Wrap; and, Paper Cartons, Boxes, and Cases (duty rate ranges from duty-free to 6.5%).
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 November 13, 2017.
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
For further information, contact Juanita Chen at
The Richland-Lexington Airport District, grantee of FTZ 127, submitted a notification of proposed production activity to the FTZ Board on behalf of BGM America, Inc. (BGM), located in Marion, South Carolina. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 27, 2017.
The BGM facility is located within Subzone 127C. The facility is used for the production of sailboats, cabin cruiser powerboats, and outboard motor boats. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt BGM from customs duty payments on the foreign-status materials/components used in export production (estimated 5–20 percent of production). On its domestic sales, for the foreign-status materials/components noted below, BGM would be able to choose the duty rates during customs entry procedures that apply to sailboats, cabin cruiser powerboats with inboard engines, and outboard motorboats (duty rates range from 1%–1.5%). BGM would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The materials/components sourced from abroad include: Primers; adhesive acrylic; surface cleaning kits; liquid adhesives; spray adhesives; polyvinyl chloride profiles; plastic pipes and fittings; plastic flexible hoses; plastic tubes; plastic hoses; plastic pipes; plastic elbow fittings; wall and ceiling non-skid molding kits with adhesive backing; pavement marking tape; decal tape rolls; velcro; acrylic vessel covers; engine room foam (non-textile); plastic straps (non-textile); lamination and edge banding (non-textile); paper reinforced laminate; lavatories; plastic crates; plastic bags; plastic carboys and bottles; plastic waste bins; plastic dinnerware sets; plastic cups and serving ware; plastic kitchenware; plastic window screens; plastic doors; plastic container doors; plastic screens; plastic and woven fabric blinds; plastic boxes with lids; plastic door and cabinetry knobs; stern tube epoxy; fiberglass reinforced plastic deck parts and components; plastic wrap; plastic bushings; rubber profiles; rubber hoses with fittings; rubber hose harnesses; rubber non-skid mats; silicone gaskets and seals; rubber door stops; rubber noise dampening components; wood moldings; hardwood marine plywood with high pressure laminate outer covering; hardwood plywood veneer panels; hardwood marine plywood with hardwood veneer outer plywood; densified wood blocks; composite wood blocks; marine wood cabinetry; log books; binders and folders; watertight labels; self-adhesive labels; coated paper gaskets and washer seals; manuals; decal transfers; woven nylon strips; rubber thread and cord bungee cords; synthetic fiber braided cord cut to length; cotton netting; twine, cordage and rope safety ladders; twine and cordage rope; nylon woven ribbons; marine vinyl composed of polyvinyl chloride, polyester and cotton (coated with over 70 percent polyvinyl chloride); rubberized textile adhesive tape; textile felt seals and gaskets; synthetic fiber curtains; synthetic fiber textile blinds; synthetic fiber table covers; synthetic fiber textile wheel covers; sails of synthetic fibers; cotton dust cloths; polyester web fabric straps; abrasive deck surface coating; mirrors; nonwoven fiberglass mats; woven fiberglass with fibers; fiberglass in bulk; stainless steel threaded pipes; stainless steel support posts; stainless steel anchoring mechanisms—wire, ropes and cables; iron and nonalloy steel anchoring chains; steel nails; steel screw hooks; self-tapping steel wood screws; steel flat screws; steel bolts; steel screws; steel metal disc fasteners; steel nuts; steel finish nuts; steel spacer washers; steel cotters and cotter pins; steel nuts with flat head; iron and steel stoves; steel and iron stove parts and accessories—cooking chambers, surface panels, door assemblies, panels, windows and insulation; iron and steel sheaths for air heaters; stainless steel sinks; cast iron centerboards; steel ladders; steel flush rings; brass inserts; threaded brass reducers; copper and stainless steel pin cables; copper and stainless steel barrel bolts; brass plumbing fittings; copper hooks; aluminum tubes; aluminum pipe fittings and inserts; aluminum profiles for door and window frames; aluminum door steps; aluminum fuel tanks; aluminum blind rivets; aluminum screens; aluminum plates and castings; lead sealed in bags, used as weight; zinc thrusters; metal drill heads; metal hand tools; stainless steel kitchen utensils; base metal locks; base metal spring bolts; iron and steel interior hinges; brass hinges; iron and steel straps and buckles; iron and steel mountings, fittings, and door closers; iron and steel handles; iron and steel doorstops, chain door fasteners, door pulls and kick plates; iron and steel lid supports; iron and steel knobs and arms; iron and steel racks; iron and steel staples; marine
The request indicates that solar panels are subject to antidumping/countervailing duty (AD/CVD) orders and hardwood plywood is subject to an AD/CVD investigation when imported from certain countries. The FTZ Board's regulations (15 CFR 400.14(e)) require that merchandise subject to AD/CVD orders, or items which would be otherwise subject to suspension of liquidation under AD/CVD procedures if they entered U.S. customs territory, be admitted to the zone in privileged foreign status (19 CFR 146.41).
The applicant also indicates that the following foreign-sourced materials/components will be admitted to the subzone in privileged foreign status, thereby precluding inverted tariff benefits on such items (where applicable): Plastic and woven fabric blinds; woven nylon strips; rubber thread and cord bungee cords; synthetic fiber braided cord cut to length; cotton netting; twine, cordage and rope safety ladders; twine and cordage rope; nylon woven ribbons; marine vinyl composed of polyvinyl chloride, polyester and cotton (coated with over 70 percent polyvinyl chloride); rubberized textile adhesive tape; textile felt seals & gaskets; synthetic fiber curtains; synthetic fiber textile blinds; synthetic fiber table covers; synthetic fiber textile wheel covers; sails of synthetic fibers; cotton dust cloths; polyester web fabric straps; nonwoven fiberglass mats; woven fiberglass with fibers; fiberglass in bulk; mattresses; and, cotton seat cushions and pillows.
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 November 13, 2017.
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
For further information, contact Diane Finver at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482–4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (the Department) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after October 2017, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping
Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
The Department no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 25, 2017, the United States Court of International Trade (CIT or the Court) entered a final judgment sustaining the Department of Commerce's (Department) results of remand redetermination concerning the antidumping duty (AD) investigation of certain passenger vehicle and light truck tires (passenger tires) from the People's Republic of China (PRC). The Department is notifying the public that the Court's final judgment in this case is not in harmony with the Department's amended final determination, and is therefore amending that determination with respect to the cash deposit rate for Cooper Tire & Rubber Company, Cooper (Kunshan) Tire Co., Ltd., and Cooper Chengshan (Shandong) Tire Co., Ltd. (collectively, Cooper), exporters and producers of subject merchandise.
Applicable: October 5, 2017.
Toni Page, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401
On June 18, 2015, the Department published its final determination in the AD investigation of passenger tires from the PRC.
On March 29, 2017, the Court remanded this case to the Department. Specifically, the Court directed the Department on remand to determine Cooper's AD cash deposit rate on the same basis as all other separate rate respondents and to inform the Court of the date by which the redetermined cash deposit rate would be put into effect.
On April 13, 2017, the Department issued its
On September 25, 2017, the Court sustained the Department's
In its decision in
Because there is now a final court decision, the Department is amending the
Since the
This notice is issued and published in accordance with sections 516A(e)(1), 735(d), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (the Department) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) listed below. The International Trade Commission (the Commission) is publishing concurrently with this notice its notice of
Applicable October 1, 2017.
The Department official identified in the “Initiation of Review” section below at AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230. For information from the Commission contact Mary Messer, Office of Investigations, U.S. International Trade Commission at (202) 205–3193.
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):
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 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 modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the
Domestic interested parties, as 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).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) is simultaneously initiating and issuing the preliminary results of a changed circumstances review (CCR) of the antidumping duty order on carbon and certain alloy steel wire rod (wire rod) from Mexico to determine whether ArcelorMittal Mexico, S.A. de C.V. (AMM) is the successor-in-interest to ArcelorMittal Las Truchas, S.A. de C.V. (AMLT). Based on the information on the record, we preliminarily determine that AMM is the successor-in-interest to AMLT. Interested parties are invited to comment on these preliminary results.
Applicable October 4, 2017.
Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5139.
On October 29, 2002, the Department published in the
The merchandise covered by the
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and the Department's regulations (19 CFR 351.216 and 351.221(c)(3)), the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an order which shows changed circumstances sufficient to warrant a review of the order. Generally, in the past, the Department has used CCRs to address the applicability of cash deposit rates after there have been changes in the name or structure of a respondent, such as a merger or spinoff (
Specifically, AMM states that as of May 2, 2017, AMLT, which received its own cash deposit rate as a mandatory respondent in the most recently completed administrative review of the
When it concludes that expedited action is warranted, the Department may publish the notice of initiation and preliminary results of a CCR in a single notice.
In a CCR, we generally consider a company to be the successor to another company for antidumping (AD) cash deposit purposes if the operations of the successor are not materially dissimilar from those of its predecessor.
In its CCR Request, AMM provided evidence demonstrating that its operations are not materially dissimilar from those of its predecessor, AMLT.
Interested parties may submit case briefs not later than 30 days after the date of publication of this notice.
Any interested party may request a hearing within 30 days of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). An electronically filed document must be received successfully in its entirety by 5 p.m. Eastern Time (ET) on the due date. Documents excepted from the electronic submission requirements must be filed manually (
Unless extended, consistent with 19 CFR 351.216(e), we intend to issue the final results of this changed-circumstances review no later than 270 days after the date on which this review was initiated or within 45 days if all parties agree to the outcome of the review. We intend to issue and publish this initiation and preliminary results notice in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216 and 351.221(c)(3) of the Department's regulations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
NMFS announces, in consultation with U.S. Customs and Border Protection (CBP), a test of the International Trade Data System (ITDS) involving the electronic submission of data, related to importation of fish products regulated by NMFS under the Seafood Import Monitoring Program (SIMP), using the import Partner Government Agency (PGA) data set via the Automated Commercial Environment (ACE) Secure Data Portal. CBP and NMFS have developed a plan to test and assess the electronic transmission of harvest and traceability data for fish imports of the Harmonized Tariff Schedule (HTS) codes covered by the SIMP.
The test will involve using the above referenced methods to transmit the data required for processing imports of products specified in the SIMP. Under this test, data may be submitted for the covered fish products imported in any operational port. SIMP does not require or allow for submission of forms through the Document Imaging System (DIS). All ports are operational for the test.
The test will commence after October 1, 2017, and will continue until concluded by publication of a notice in the
To submit comments concerning this test program, send an email to Josephine Baiamonte (
Any party seeking to participate in this test should contact their client representative. Interested parties without an assigned client representative should submit an email to John Handy at
For technical questions related to the Automated Commercial Environment (ACE) transmissions, contact your assigned client representative. Interested parties without an assigned client representative should direct their questions to John Handy at
ACE is an automated and electronic system for commercial trade processing, which is intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for CBP and all of its communities of interest. The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions.
CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to replace a specific function of the legacy Automated Commercial System (ACS) function. Each release will begin with a test and will end with mandatory use of the new ACE feature, thus retiring the legacy ACS function. Each release builds on previous releases and sets the foundation for subsequent releases.
This test is in furtherance of the ITDS, which is statutorily authorized by section 405 of the Security and Accountability for Every (SAFE) Port Act of 2006, Public Law 109–347. The purpose of ITDS, as defined by section 4 of the SAFE Port Act of 2006, is to eliminate redundant information filing requirements, efficiently regulate the flow of commerce, and effectively enforce laws and regulations relating to international trade, by establishing a single portal system, operated by CBP, for the collection and distribution of standard electronic import and export data required by all participating Federal agencies.
At this time, ACE is prepared to accept certain PGA data elements for NMFS regulated fish imports included in the test. The PGA data elements comprising the test are generally related to harvest and landing of seafood, additional information on the Seafood Import Monitoring Program is available at
This ITDS test is in furtherance of key CBP ITDS initiatives as provided in the SAFE Port Act of 2006. Under this test, NMFS required data will be transmitted electronically through ACE for any merchandise or combination thereof covered by any of these programs.
For approved participants, the test may include all modes of transport and all commodities regulated under the Seafood Import Monitoring Program. The import entry filing process for NMFS will require the submission of specifically designated data/information at the time of filing entry with CBP. The transmission of the required data for NMFS will be utilized to collect the specified information that is required by NMFS. The data will be transmitted in ACE, using the Automated Broker Interface (ABI) at the time of filing an entry to CBP and it will accompany other required import data.
Examples of the kind of data that will be transmitted as part of this test are: The International Fisheries Trade Permit number, 3-alpha species codes, and fishing area. For information regarding fish products regulated by NMFS and data, information, forms and documents required by NMFS, see the implementation guidelines for the NMFS at:
Any party seeking to participate in this test must provide CBP, in their request to participate, their ABI filer code and the port(s) at which they are interested in filing the appropriate PGA data set. Requests to participate in this test will be accepted throughout the duration of the test. To be eligible to apply for this test, the applicant must be a self-filing importer who has the ability to file import entries or a broker who has the ability to file import entries; and the applicant files or intends to file entries for NMFS commodities that are the subject of this test. All test
At this time, data submissions may be submitted for imports filed at any CBP port. Test participants should contact their client representative regarding import filings eligible for the test (see
A final rule establishing the Seafood Import Monitoring Program (SIMP)—was effective on January 9, 2017, and has a compliance date of January 1, 2018 (81 FR 88975; December 9, 2016). This test covers communication and coordination among the agencies and the filers for the importation of these fisheries products. The agencies will also be testing new operational processes in real time with actual ACE filings in the production environment that include test messages to communicate errors in filing and release status updates to the port and to the filer.
All data submitted and entered into ACE is subject to the Trade Secrets Act (18 U.S.C. 1905) and is considered confidential, except to the extent as otherwise provided by law. As stated in previous notices, participation in this or any of the previous ACE tests is not confidential and upon a written Freedom of Information Act (FOIA) request, a name(s) of an approved participant(s) will be disclosed by CBP in accordance with 5 U.S.C. 552.
Commodity Futures Trading Commission.
Notice of availability.
The Commodity Futures Trading Commission (“CFTC”) is publishing this notice to advise the public of the availability of CFTC's Fiscal Year 2016 Service Contract Inventory.
Questions regarding the service contract inventory should be directed to Kathryn Rison, Contracting Officer, at 202–418–5419 or
In accordance with section 743 of division C of the Consolidated Appropriations Act of 2010, Public Law 111–117, 123 Stat. 3034, CFTC is publishing this notice to advise the public of the availability of the Fiscal Year (“FY”) 2016 Service Contract Inventory. CFTC has posted its inventory documents on the agency Web site at the following link:
This inventory provides information on service contracts above the Simplified Acquisition Threshold ($150,000), as determined by the base and all options value, that were awarded in FY 2016. CFTC's service contract inventory data is included in the government-wide inventory, which can be filtered to display the CFTC-specific data. A link to the government-wide inventory is included in the posting on the CFTC Web site, or it can be accessed directly at
The inventory documents posted on the CFTC Web site also include the following:
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Air Force Materiel Command, Department of the Air Force, Department of Defense.
Notice of intent.
Pursuant to the Bayh-Dole Act and implementing regulations, the Department of the Air Force hereby gives notice of its intent to grant an exclusive patent license agreement to The Regents of the University of California, a corporation of the State of California, having a place of business at 1111 Franklin Street, 5th Floor, Oakland, CA 94607–5200.
Written objections must be filed no later than fifteen (15) calendar days after the date of publication of this Notice.
Submit written objections to the Air Force Materiel Command Law Office, AFMCLO/JAZ, 2240 B Street, Room 260, Wright-Patterson AFB, OH 45433–7109; Facsimile: (937) 255–3733; or Email:
Air Force Materiel Command Law Office, AFMCLO/JAZ, 2240 B Street, Rm 260, Wright-Patterson AFB, OH 45433–7109; Facsimile: (937) 255–3733; Email:
The Department of the Air Force intends to grant the exclusive patent license agreement for the invention described in:
35 U.S.C. 209; 37 CFR 404.
The Department of the Air Force may grant the prospective license unless a timely objection is received that sufficiently shows the grant of the license would be inconsistent with the Bayh-Dole Act or implementing regulations. A competing application for a patent license agreement, completed in compliance with 37 CFR 404.8 and received by the Air Force within the period for timely objections, will be treated as an objection and may be considered as an alternative to the proposed license.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments regarding a proposed extension of an approved information collection requirement.
In compliance with the Paperwork Reduction Act of 1995, DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof.
DoD will consider all comments received by December 4, 2017.
You may submit comments, identified by OMB Control Number 0704–0259, using any of the following methods:
○
Comments received generally will be posted without change to
Ms. Carrie Moore, 571–372–6093. The information collection requirements addressed in this notice are available electronically on the Internet at:
Paragraph (c) of the clause at DFARS 252.216–7000, Economic Price Adjustment—Basic Steel, Aluminum, Brass, Bronze, or Copper Mill Products, requires the contractor to notify the contracting officer of the amount and effective date of each decrease in any established price. Paragraph (d) of the clause permits the contractor to submit a written request to the contracting officer for an increase in contract price.
Paragraph (f)(2) of the clause at DFARS 252.216–7001, Economic Price Adjustment—Nonstandard Steel Items, requires the contractor to furnish a statement identifying the correctness of the established prices and employee hourly earnings that are relevant to the computation of various indices. Paragraph (f)(3) of the clause requires the contractor to make available all records used in the computation of labor indices upon the request of the contracting officer.
Paragraph (b)(1) of the clause at DFARS 252.216–7003, Economic Price Adjustment—Wage Rates or Material Prices Controlled by a Foreign Government, permits the contractor to provide a written request for contract adjustment based on increases in wage rates or material prices that are controlled by a foreign government. Paragraph (c) of the clause requires the contractor to make available its books and records that support a requested change in contract price.
Office of Science, Department of Energy.
Notice of renewal.
Pursuant to the Federal Advisory Committee Act, App. 2, and the Code of Federal Regulations, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Basic Energy Sciences Advisory Committee's (BESAC) charter will be renewed for a two-year period.
The Committee will provide advice and recommendations to the Office of Science on the Basic Energy Sciences program.
Additionally, the renewal of the BESAC has been determined to be essential to conduct business of the Department of Energy and to be in the public interest in connection with the performance of duties imposed upon the Department of Energy, by law and agreement. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, and the rules and regulations in implementation of that Act.
Dr. Harriet Kung at (301) 903–3081.
Office of Science, Department of Energy.
Notice of renewal.
Pursuant to the Federal Advisory Committee Act, App. 2, and Code of Federal Regulations, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the DOE/NSF High Energy Physics Advisory Panel (HEPAP) has been renewed for a two-year period.
The Panel will provide advice and recommendations to the Director, Office of Science (DOE), and the Assistant Director, Directorate for Mathematical and Physical Sciences (NSF), on scientific priorities within the field of high energy physics.
Additionally, the Secretary of Energy has determined that renewal of the HEPAP is essential to conduct business of the Department of Energy and the National Science Foundation and is in the public interest in connection with the performance duties imposed by law upon the Department of Energy. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, the Department of Energy Organization Act (Pub. L. 95–91), and the rules and regulations in implementation of these acts.
Dr. John Boger at (301) 903–4520.
Office of Science, Department of Energy.
Notice of Renewal.
Pursuant to the Federal Advisory Committee Act, and in accordance with Title 41 of the Code of Federal Regulations, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Advanced Scientific Computing Advisory Committee will be renewed for a two-year period beginning on June 30, 2017.
The Committee will provide advice to the Director, Office of Science (DOE), on the Advanced Scientific Computing Research Program managed by the Office of Advanced Scientific Computing Research.
Additionally, the renewal of the Advanced Scientific Computing Advisory Committee has been determined to be essential to the conduct of the Department of Energy business and to be in the public interest in connection with the performance of duties imposed upon the Department of Energy, by law and agreement. The Committee will operate in accordance with the provisions of the Federal Advisory Committee Act, adhering to the rules and regulations in implementation of that Act.
Christine Chalk at (301) 903–5152,
This document was received for publication by the Office of the Federal Register on September 29, 2017.
Take notice that on September 21, 2017, Buckeye Power, Inc. submitted its tariff filing: Buckeye Rate Schedule Filing, to be effective 9/21/2017.
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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at
This filing is accessible on-line at
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene and protests, comments, recommendations, terms and conditions, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file motions to intervene and protests, comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person 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. This application has been accepted for filing and is now is ready for environmental analysis.
l. The existing American Tissue Project consists of: (1) A 256-foot-long, 23-foot-high cut granite, stone and brick masonry dam that includes a 61-foot-long, 26-foot-high west abutment section with 2-foot-high permanent flashboards, a 100-foot-long, 19- to 23-foot-high spillway section with 12-inch-high flashboards and a crest elevation of 122.3 feet mean sea level (msl), and a 95-foot-long, 27-foot-high east abutment section with a 34-foot-wide, 19-foot-high intake structure that includes: (a) A 17-foot-wide, 25.5-foot- high trashrack with 2-inch clear spacing, (b) a manually-operated headgate that controls flow to the penstock, and (c) three 4.67-foot-diameter low level outlets at an elevation of about 100 feet msl for releasing minimum flows to the bypassed reach; (2) an approximately 5.5-acre, 1,000-foot-long impoundment with a normal maximum water surface elevation of 123.3 feet msl; (3) a 280-foot-long, 7-foot-diameter underground steel penstock; (4) a 37-foot-long, 34-foot-wide concrete and wooden powerhouse containing a single 1.0-megawatt turbine-generator unit; (5) a 250-foot-long, 12-kilovolt transmission line; (6) a tailrace; and (7) appurtenant facilities. KEI Power operates the project in a run-of-river mode, with an average annual generation of 5,430 megawatt-hours.
KEI Power proposes to release the following minimum flows from the dam to provide downstream passage in the bypassed reach for alewives and adult eels: 10 cubic feet per second (cfs) from January 1 to May 31; 29 cfs from June 1 to August 31; 69 cfs from September 1 to November 15; and 10 cfs from November 16 to December 31, or inflow to the impoundment, whichever is less. KEI Power also proposes to release a minimum flow of 52 cfs (or inflow, whichever is less) to the tailrace, which includes the minimum flows to the bypassed reach, to protect aquatic resources in the downstream reach. In addition, KEI Power proposes to
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title PROTEST, MOTION TO INTERVENE, COMMENTS, REPLY COMMENTS, RECOMMENDATIONS, TERMS AND CONDITIONS, or PRESCRIPTIONS; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
o. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding Estill Solar I, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 18, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests,
Federal Energy Regulatory Commission.
Notice of information collections and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the requirements and burden of information collection, FERC–505 (Small Hydropower Projects and Conduit Facilities including License/Relicense, Exemption and Qualifying Conduit Facility Determination) and FERC–512 (Preliminary Permit) which will be submitted to the Office of Management and Budget (OMB) for a review of the information collection requirements.
Comments on the collection of information are due December 4, 2017.
You may submit comments identified by Docket No. IC17–15–000 by either of the following methods:
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Please reference the specific collection number and/or title in your comments.
Ellen Brown may be reached by email at
Take notice that on September 27, 2017, Bonneville Power Administration submitted a Notice of Inadvertent Error in the July 31, 2017 BP–18 Wholesale Power Rate Filing.
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
This is a supplemental notice in the above-referenced proceeding of EGP Stillwater Solar PV II, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 18, 2017.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
On September 11, 2017, Watterra Energy, LLC (Watterra Energy) filed a preliminary permit application pursuant to section 4(f) of the Federal Power Act proposing to study the feasibility of the proposed Saylorville Dam Hydroelectric Project No. 14857–000, to be located at the existing Saylorville Dam on the Des Moines River, near the City of Des Moines in Polk County, Iowa. Saylorville Dam is owned by the United States government and operated by the United States Army Corps of Engineers.
The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owner's express permission.
Watterra Energy's proposed project would consist of: (1) A new 20-foot-diameter steel penstock that would be inserted into an existing 22-foot-diameter by 640-foot-long concrete conduit; (2) a new 55-foot-wide by 70-foot-long by 30-foot-high concrete powerhouse; (3) three new 5.22-megawatt (MW) turbines, with a combined generating capacity of 15.66 MW; (4) a new 70-foot-long by 55-foot-wide substation; (5) a new 7,000-foot-long, 13.8-kilovolt transmission line; and (6) appurtenant facilities. The project would have an estimated annual generation of 58 gigawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the eLibrary link of Commission's Web site at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a draft supplemental environmental impact statement (SEIS) for the Southeast Market Pipelines Project (SMP Project). The SMP Project is composed of three separate, but related, interstate natural gas transmission pipeline projects. These projects are: Transcontinental Gas Pipe Line Company, LLC's Hillabee Expansion Project in Docket No. CP15–16–000; Sabal Trail Transmission, LLC's Sabal Trail Project in Docket No. CP15–17–000; and Florida Southeast Connection, LLC's Florida Southeast Connection Project in Docket No. CP14–554–000. Together, these projects involve the construction and operation of approximately 685 miles of pipeline and associated facilities.
The draft SEIS has been prepared to address the August 22, 2017 Opinion issued by the United States Court of Appeals for the District of Columbia regarding the Commission's environmental review of the SMP Project. The draft SEIS incorporates by reference and expands upon the analysis contained within the December 2015 final environmental impact statement (FEIS) for the SMP Project. The draft SEIS estimates the greenhouse gas emissions generated by the SMP Project's customers' downstream facilities, describes the methodology used to determine these estimates, discusses context for understanding the magnitude of these emissions, and addresses the value of using the social cost of carbon tool.
As described in the executive summary of the FEIS, and based on the environmental analysis section of the FEIS and this draft SEIS, we conclude that constructing and operating the SMP Project would result in temporary and permanent impacts on the environment. We also conclude that with the applicants' implementation of their respective impact avoidance, minimization, and mitigation measures, as well as their adherence to the measures we have required to further avoid, minimize, and mitigate these impacts, operating the SMP Project would not result in a significant impact on the environment.
Commission staff has mailed copies of the draft SEIS to federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American tribes; potentially affected landowners, other interested individuals and groups; and newspapers and libraries in the project area. Additionally, the draft SEIS is available for public viewing on the FERC's Web site (
Any person wishing to comment on the draft SEIS may do so. The Commission will only consider comments on the draft SEIS, and not on the FEIS or the Commission's orders in this proceeding, on which the public
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference docket numbers CP14554–002; CP15–16–003; and CP15–17–002 with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket numbers (CP14554–002, CP15–16–003, and CP15–17–002) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Additional information about the SMP Project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Take notice that on September 26, 2017, MPS Merchant Services, Inc., Aquila Power Corporation and the California Parties filed a Joint Compliance Filing in Support of a Settlement.
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
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests is 30 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, or comments using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following hydroelectric license application has been filed with the Commission and is available for public inspection.
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The Commission strongly encourages electronic filing. Please file scoping comments using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person 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. This application is not ready for environmental analysis at this time.
l. The existing Great Falls Project consists of: (1) A 160-foot-long, 32-foot-high curved, concrete dam with 2-foot-high flashboards; (2) an approximately 12-acre impoundment having a storage capacity of 135-acre-feet at a normal full pond water surface elevation of 668.38 feet above mean sea level; (3) an 18.5-foot-wide headworks structure with two headgates; (4) a headworks gate house; (5) an intake structure and bypass pipe that are integral to the dam; (6) a 290-foot-long power canal; (7) two sluice gates; (8) an intake gate house with two trashracks; (9) a 200-foot-long metal penstock; (10) a 47-foot-long, 25-foot-wide powerhouse containing a 1,350-kilowatt (kW) turbine-generator unit and a 40-foot-long, 40-foot-wide powerhouse containing two 350-kW turbine-generator units, for a total capacity of 2,050-kW; (11) a 350-foot-long, 2.4-kilovolt (kV) above-ground generator lead that connects the turbine-generator units to a step-up transformer; (12) a 1.75-mile-long, 12.5-kV above-ground transmission line; and (13) appurtenant facilities.
The Village of Lyndonville Electric Department (Lyndonville) operates the project in a run-of-river mode with an annual average energy production of approximately 3,960 megawatt-hours. Lyndonville is not proposing any changes in project operation. Lyndonville proposes to continue to release a year-round minimum flow of 10 cfs (or inflow, whichever is less) to the bypassed reach to maintain habitat for fish and aquatic organisms and release a minimum flow of 75 cfs (or inflow, whichever is less) from the powerhouse during project shutdowns to protect fish and aquatic resources in the downstream reach. Lyndonville proposes to install an automatic pond level control system to improve control of impoundment water surface level fluctuations. Lyndonville also proposes to develop a minimum flow monitoring plan to ensure adequate flow is provided to the bypassed reach and downstream of the powerhouse.
Lyndonville also proposes to construct and maintain a new carry-in boat access trail downstream of the tailrace, on the west bank of the Passumpsic River, designate a new bank fishing area, and install a designated parking area outside of the project gates along the access road to the project. To ensure the adequacy of project recreation facilities, Lyndonville proposes to conduct a Recreation Inventory, Use and Needs Assessment within one year of completion of recreational improvements. Finally, Lyndonville proposes to develop a Historic Properties Management Plan to protect historic resources.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
n. You may also register online at
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Commission staff intends to prepare a single Environmental Assessment (EA) for the Great Falls Hydroelectric Project in accordance with the National Environmental Policy Act. The EA will consider both site-specific and cumulative environmental impacts, and reasonable alternatives to the proposed action.
Commission staff does not propose to conduct on-site scoping meetings at this time. Instead, we are soliciting comments, recommendations, and information on the Scoping Document 1 (SD1) issued on September 27, 2017.
Copies of SD 1 outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list and the applicant's distribution list. Copies of SD 1 may be viewed on the web at
Export-Import Bank of the U.S.
Submission for OMB review and comments request.
The Export-Import Bank of the United States (Ex-Im Bank), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
This collection will provide information needed to determine compliance and creditworthiness for transaction requests involving previously-owned equipment submitted to Ex-Im Bank under its insurance, guarantee, and direct loan programs. Information presented in this form will be considered in the overall evaluation of the transaction, including Export-Import Bank's determination of the appropriate term for the transaction.
The form can be viewed at:
Comments should be received on or before December 4, 2017
Comments may be submitted electronically on
This form affects entities involved in the export of U.S. goods and services.
Export-Import Bank of the United States.
Submission for OMB review and comments request.
The Export-Import Banks of the United States (Ex-Im Bank), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
The Letter of Interest (LI) is an indication of Export-Import (Ex-Im) Bank's willingness to consider financing a given export transaction. Ex-Im Bank uses the requested information to determine the applicability of the proposed export transaction and determines whether or not to consider financing that transaction.
The form can be reviewed at:
Comments must be received on or before December 4, 2017 to be assured of consideration.
Comments may be submitted electronically on
Farm Credit Administration.
Notice, Regular Meeting.
Notice is hereby given, pursuant to the Government in the Sunshine Act, of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on October 12, 2017, from 9:00 a.m. until such time as the Board concludes its business.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102–5090. Submit attendance requests via email to
Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883–4009, TTY (703) 883–4056.
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. Please send an email to
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10086—Security Bank of Gwinnett County, Suwanee, Georgia (Receiver) has been authorized to take all actions necessary to terminate the Receivership Estate of Security Bank of Gwinnett County (Receivership Estate); the Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary;
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 30, 2017.
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Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent orders—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 27, 2017.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Aylin M. Skroejer, (202–326–2459), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 27, 2017), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 27, 2017. Write “Integra LifeSciences et al.; FTC File No. 1710084” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you prefer to file your comment on paper, write “Integra LifeSciences et al.; FTC File No. 1710084” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC Web site at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from Integra LifeSciences Holdings Corporation (“Integra”) and Johnson & Johnson designed to remedy the anticompetitive effects resulting from Integra's proposed purchase of certain assets of Johnson & Johnson's Codman Neuro (“Codman”) division. The proposed Decision and Order (“Order”) contained in the Consent Agreement requires the parties to divest all rights and assets to Natus Medical Incorporated (“Natus”) related to Integra's intracranial pressure monitoring systems and fixed pressure valve shunt systems, as well as Codman's cerebrospinal fluid collection systems, non-antimicrobial external ventricular drainage catheters, and dural grafts.
The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will review the comments received and decide whether it should withdraw, modify, or make the Consent Agreement final.
Under the terms of the Asset Purchase Agreement signed on February 14, 2017, Integra will acquire Codman in a transaction valued at approximately $1.0 billion (the “Acquisition”). The Commission's Complaint alleges that the proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by substantially lessening competition in the U.S. markets for intracranial pressure monitoring systems, cerebrospinal fluid collection systems, non-antimicrobial external ventricular drainage catheters, fixed pressure valve shunt systems, and dural grafts. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that otherwise would be lost in these markets as a result of the proposed Acquisition.
Integra, headquartered in Plainsboro, New Jersey, is a medical device company with worldwide operations and one of the largest surgical instrument suppliers in the United States. The company has two U.S. business units: Specialty Surgical Solutions and Orthopedics and Tissue Technologies. The Specialty Surgical Solutions division offers instruments and systems for, among other specialties, neurosurgery and critical care.
Codman, part of Johnson & Johnson's DePuy Synthes Inc. business unit, is a global medical device company that offers a diverse portfolio of neurosurgery, neurovascular, and drug delivery products, including instruments and systems for hydrocephalus management, neurointensive care, and cranial surgery, as well as implantable drug infusion systems. The proposed transaction excludes Codman's neurovascular and drug delivery businesses.
Intracranial pressure monitoring systems are used in intensive care units and operating rooms to measure pressure inside the skull, which can increase in the event of traumatic brain injury, hydrocephalus, intracranial tumors, and other medical conditions. An increase in intracranial pressure can severely damage the brain or spinal cord and is a common cause of death in neurosurgical patients, making quick detection of pressure buildup critical. Intracranial pressure monitoring systems use a pressure-sensitive probe inserted through the skull to send measurements via a transducer cable to a monitor at the patient's bedside. Customers would not switch to an alternative product in response to a small but significant increase in the price of intracranial pressure monitoring systems.
Integra and Codman are the only significant suppliers in the U.S. market for intracranial pressure monitoring systems, accounting for 68% and 26% of 2016 sales, respectively. The remainder of the market is comprised of small, fringe competitors that have limited competitive significance.
Cerebrospinal fluid collection systems drain excess cerebrospinal fluid and monitor pressures within the fluid. They consist of a plastic drainage bag, tubing, and other accessories that connect to a patient through an external ventricular drainage catheter. There are no viable alternatives to cerebrospinal fluid collection systems.
Integra, Codman, and Medtronic are the only competitively significant suppliers of cerebrospinal fluid collection systems in the United States. Integra is the leading supplier with 57%
External ventricular drainage catheters funnel excess cerebrospinal fluid from the brain to cerebrospinal fluid collection systems to relieve intracranial pressure. External ventricular drainage catheters are either antimicrobial or non-antimicrobial, and the two types constitute distinct antitrust markets because of the substantial differences between them. Non-antimicrobial external ventricular drainage catheters lack an antibiotic coating and are suitable for less critical patients; they also may be used to avoid the risk of antibiotic interference when diagnosing infections. They are significantly less expensive than antimicrobial external ventricular drainage catheters. Customers would not switch from non-antimicrobial external ventricular drainage catheters to the antimicrobial versions or any other product in response to a 5% to 10% increase in the price of non-antimicrobial external ventricular drainage catheters, in part because even with such a price increase, antimicrobial external ventricular drainage catheters would still be considerably more expensive.
Integra and Codman account for 29% and 17% of the relevant market in the United States. The only other competitively significant firm is Medtronic, with a 51% share.
Shunts are the primary tool that neurosurgeons use to treat hydrocephalus, or excessive accumulation of cerebrospinal fluid. Shunt systems redirect excess cerebrospinal fluid from the brain or spinal cord to another area of the body, usually the abdomen, for reabsorption. Shunt systems consist of three components: A ventricular catheter inserted into the brain, a valve to regulate the flow of the fluid, and another catheter that is threaded to the location where the fluid is emptied. Once implanted, the one-way valve in the shunt system regulates the pressure in the brain by governing the amount and pressure of cerebrospinal fluid passing through the catheter.
There are two main types of hydrocephalus shunts: Fixed pressure valve shunts and programmable valve shunts. Fixed pressure valve shunts allow cerebrospinal fluid to pass through the shunt only when the pressure has exceeded some predetermined setting, which medical providers cannot adjust once implanted without another surgery. The settings on a programmable valve shunt system, which is significantly more expensive, can be adjusted non-invasively using specially designed magnetic tools. An insufficient number of customers are likely to switch to programmable valve shunts to prevent a small but significant increase in the price of fixed pressure valve shunt systems.
Integra, Codman, and Medtronic are the only significant suppliers of fixed pressure valve shunt systems. Medtronic accounts for 55% of U.S. sales, and Integra follows at 23% share and Codman at 15% share. Aesculap and Sophysa hold small, fringe positions in the market and their products are not close substitutes to those of Integra and Codman.
Dural grafts are used to repair or replace a patient's dura mater, the thick membrane that surrounds the brain and spinal cord and keeps cerebrospinal fluid in place. Integra leads the U.S. market with 66% share of 2016 sales. In addition, Integra manufactures approximately 77% of the dural grafts sold in the United States. Medtronic, Codman, and Stryker account for 11%, 9%, and 8% of sales, respectively. Other suppliers account for only a nominal share of the market.
The United States is the relevant geographic market in which to analyze the effects of the proposed Acquisition. These products are medical devices regulated by the U.S. Food and Drug Administration (“FDA”). Medical devices sold outside of the United States, but not approved for sale in the United States, do not provide viable competitive alternatives for U.S. consumers.
The proposed Acquisition would cause substantial competitive harm in the relevant markets. The parties are the only significant suppliers of intracranial pressure monitoring systems in the U.S. market, and two of only three significant suppliers of cerebrospinal fluid collection systems, non-antimicrobial external ventricular drainage catheters, and fixed pressure valve shunt systems in the United States. In the dural grafts market, a combined Integra/Codman would control the vast majority of the U.S. market and eliminate the close competition that exists between the parties today. Eliminating the head-to-head competition between Integra and Codman in all of these highly concentrated markets would allow the combined firm to exercise market power unilaterally, resulting in higher prices and reduced choice for customers in these markets.
Entry in the relevant markets would not be timely, likely, or sufficient in magnitude, character, and scope to deter or counteract the anticompetitive effects of the proposed Acquisition. New entry would require significant investment of time and money to design and develop an effective product, obtain FDA approval, and develop clinical history supporting the long-term efficacy of a product. A new entrant must also establish a sales and marketing infrastructure, have or develop a track record of service and support, and offer a robust line of neurosurgical products sufficient to convince potential customers of the viability of its new product offerings. Such development efforts are difficult, time-consuming, and expensive, and often fail to result in a competitive product reaching the market.
The proposed Consent Agreement and Order remedy the competitive concerns raised by the proposed Acquisition by requiring the parties to divest to Natus all assets and rights to research, develop, manufacture, market, and sell Integra's intracranial pressure monitoring systems and fixed pressure valve shunt systems, as well as Codman's cerebrospinal fluid collection systems, non-antimicrobial external ventricular drainage catheters, and dural grafts. Integra is also required to divest its San Diego, California facility that manufactures a key component of its intracranial pressure monitoring systems. Additionally, to further ensure the divestitures are successful, the proposed Order requires the parties to supply Natus with cranial access kits for a limited time until Natus is able to secure supply of that product independently. The kit, which is often sold with the divestiture assets, includes items such as a hand drill, forceps, and sutures used during cranial surgery. The provisions of the Consent Agreement ensure that Natus becomes an independent, viable, and effective competitor in the respective U.S. markets in order to maintain the competition that currently exists.
Based in Pleasanton, California, Natus is a global healthcare company that provides screening, diagnostic, and monitoring solutions for its three business units: Neurology, newborn care, and hearing and balance care. Its neurology business includes systems that are highly complementary to the divestiture assets and test for a variety of medical conditions, including epilepsy, head injury, tumors, Parkinson's, and sleep apnea. Natus is well positioned to restore the competition that otherwise would have been lost pursuant to the proposed Acquisition.
The parties must accomplish the divestitures and relinquish their rights to Natus no later than ten days after consummating the proposed Acquisition. If the Commission determines that Natus is not an acceptable acquirer, or that the manner of the divestitures is not acceptable, the proposed Order requires the parties to unwind the sale of rights to Natus and then divest the products to a Commission-approved acquirer(s) within six months of the date the Order becomes final.
To ensure compliance with the Order, the Commission has agreed to appoint a Monitor to ensure that Integra and Johnson & Johnson comply with all of their obligations pursuant to the Consent Agreement and to keep the Commission informed about the status of the transfer of the rights and assets to Natus. The proposed Order further allows the Commission to appoint a trustee in the event the parties fail to divest the products as required.
The purpose of this analysis is to facilitate public comment on the Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent orders—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 30, 2017.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Aylin M. Skroejer, (202–326–2459), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for September 28, 2017), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 30, 2017. Write “In the Matter of Abbott Laboratories and Alere Inc., File No. 161–0084” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you prefer to file your comment on paper, write “In the Matter of Abbott Laboratories and Alere Inc., File No. 161–0084” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC Web site at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from Abbott Laboratories (“Abbott”) and Alere Inc. (“Alere”) designed to remedy the anticompetitive effects resulting from Abbott's proposed acquisition of Alere. The proposed Decision and Order (“Order”) contained in the Consent Agreement requires the parties to divest all rights and assets related to Alere's point-of-care blood gas testing business to Siemens Aktiengelsellschaft (“Siemens”), and all rights and assets related to Alere's point-of-care cardiac marker testing business to Quidel Corporation (“Quidel”).
The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will review the comments received and decide whether it should withdraw, modify, or make the Consent Agreement final.
Under the terms of the Amendment to Agreement and Plan of Merger signed on April 13, 2017, which amends the Agreement and Plan of Merger signed on January 30, 2016, Abbott will acquire Alere in a transaction valued at approximately $8.3 billion, which includes Abbott's assumption of $3.0 billion in debt (the “Acquisition”). The Commission's Complaint alleges that the proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by substantially lessening competition in the U.S. markets for point-of-care blood gas testing systems and point-of-care cardiac marker testing systems. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that otherwise would be lost in these markets as a result of the proposed Acquisition.
Abbott, headquartered in Abbott Park, Illinois, is a global healthcare company with three business units in the United States: Diagnostic, nutritional, and vascular. Its diagnostic testing division provides an expansive portfolio of instruments, tests, software, and training to hospitals, laboratories, blood banks, and physician offices.
Alere, headquartered in Waltham, Massachusetts, is a global leader in rapid diagnostic testing. Alere provides diagnostic equipment, consumables, and patient self-management tools for cardiometabolic disease, infectious disease, and toxicology.
Point-of-care blood gas testing systems are small, portable medical instruments that measure a patient's blood pH, oxygen, carbon dioxide, and electrolyte levels to assess lung and kidney function, as well as whether an acute patient requires oxygen or other urgent treatment. They provide results in less than five minutes at a patient's bedside or other acute care settings where fast turnaround time is critical, and rely on single-use, disposable test cartridges. Abbott and Alere offer the only handheld point-of-care blood gas testing devices, and other firms offer portable point-of-care models that range up to ten pounds in weight. Hospitals pay a substantial premium for the convenience of point-of-care blood gas testing equipment over the closest alternative, using larger benchtop analyzers that employ multi-use packs of reagents and are typically located in a hospital laboratory or other centralized location for analysis. The vast majority of customers would not switch to benchtop blood gas testing systems in response to a small but significant increase in the price of point-of-care blood gas testing systems.
Abbott and Alere are each other's closest competitors and the only significant suppliers in the U.S. market for point-of-care blood gas testing systems, accounting for 82% and 15% of 2016 sales, respectively. While IDEXX Laboratories, Inc. and LifeHealth LLC offer single-use, portable (but not handheld) systems, they are more distant competitors to Abbott and Alere and maintain fringe positions in the market.
Point-of-care cardiac marker testing systems are small, portable medical instruments that measure specific proteins released into the blood to assess whether a patient experiencing chest pains is having a myocardial infarction or congestive heart failure. They allow for quick initial diagnoses at a patient's bedside, which is critical because the time between a cardiac event and treatment increases the likelihood the patient will suffer permanent loss of heart muscle. The convenience of point-of-care cardiac marker testing systems differentiates them from larger benchtop models that can only be located in a hospital laboratory or some other central area of larger emergency departments. A small but significant increase in the price of point-of-care cardiac marker testing systems would not cause customers to switch to benchtop cardiac marker testing systems.
Abbott and Alere are the only significant suppliers of point-of-care cardiac marker testing systems, accounting for approximately 87% and 13%, respectively, of the 2016 U.S. market. Abbott offers point-of-care cardiac marker testing on a handheld analyzer, and Alere on a two-pound portable analyzer. The next closest competitor to the parties is Response Biomedical, which offers a more complex technology and accounts for only a nominal share of the market.
The relevant geographic market for point-of-care blood gas testing systems and point-of-care cardiac marker testing systems is the United States. These products are medical devices regulated by the U.S. Food and Drug Administration (“FDA”). Medical devices sold outside of the United States, but not approved for sale in the United States, do not provide viable competitive alternatives for U.S. consumers.
The proposed Acquisition would likely result in significant competitive harm to consumers in the markets for point-of-care blood gas testing systems and point-of-care cardiac marker testing systems. In each relevant market, customers are able to leverage Abbott and Alere against each other to obtain better prices and improved products. By eliminating this direct and substantial head-to-head competition, the proposed Acquisition likely would allow the combined firm to exercise market power unilaterally, resulting in higher prices, reduced innovation, and less choice for consumers.
Entry in the relevant markets would not be timely, likely, or sufficient in magnitude, character, and scope to deter or counteract the anticompetitive effects of the proposed Acquisition. New entry would require significant investment of time and money for product research and development, regulatory approval by the FDA, and establishment of a U.S. sales and service infrastructure. Such development efforts are difficult, time-consuming, and expensive, and often fail to result in a competitive product reaching the market.
The Consent Agreement eliminates the competitive concerns raised by the proposed Acquisition by requiring Alere to divest: (1) Its point-of-care blood gas testing business, including its Ottawa, Canada facilities, to Siemens; and (2) its point-of-care cardiac marker testing business, including its San Diego, California facility, to Quidel. Alere must divest all assets and rights to research, develop, manufacture, market, and sell its point-of-care blood gas testing and point-of-care cardiac marker testing product lines, including all related intellectual property and other confidential business information. Further, Siemens and Quidel intend to hire substantially all of Alere's employees whose responsibilities primarily relate to the research, development, manufacture, or sale of the relevant products. The provisions of the Consent Agreement ensure that Siemens and Quidel become independent, viable, and effective competitors in the respective markets in order to maintain the competition that currently exists.
Siemens is a global conglomerate with a healthcare division that is one of the world's largest suppliers of technology to the healthcare industry and a leader in medical imaging and laboratory diagnostics. Siemens currently supplies a benchtop blood gas testing system, and Alere's handheld system will be highly complementary to Siemens' portfolio in the United States. Siemens has the expertise, U.S. sales infrastructure, and resources to restore the competition that otherwise would have been lost pursuant to the proposed Acquisition.
Based in San Diego, California, Quidel develops, manufactures, and markets point-of-care diagnostic testing solutions globally. The company has expertise with immunoassay testing and currently focuses on infectious diseases, women's and general health, and gastrointestinal diseases. The acquisition of Alere's point-of-care cardiac marker testing business will complement Quidel's portfolio of rapid diagnostic testing solutions. Moreover, Quidel's chairman was co-inventor of Alere's point-of-care cardiac marker testing system, providing Quidel with additional understanding and background of the divestiture business.
The parties must accomplish the divestitures no later than thirty days after the consummation of the Proposed Acquisition. If the Commission determines that either Siemens or Quidel is not an acceptable acquirer, or that the manner of the divestitures is not acceptable, the proposed Order requires the parties to unwind the sale of rights to Siemens and/or Quidel and then divest the products to a Commission-approved acquirer(s) within six months of the date the Order becomes final.
The Commission has agreed to appoint a Monitor to ensure that Abbott and Alere comply with all of their obligations pursuant to the Consent Agreement and to keep the Commission informed about the status of the transfer of the rights and assets to Siemens and Quidel. The proposed Order further allows the Commission to appoint a trustee in the event the parties fail to divest the products as required.
The purpose of this analysis is to facilitate public comment on the Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before October 30, 2017.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Amanda Kostner (202–326–2880) and Jock Chung (202–326–2984), Bureau of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 30, 2017. Write “In the Matter of Moonlight Slumber, LLC, File No. 1623128” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you prefer to file your comment on paper, write “In the Matter of Moonlight Slumber, LLC, File No. 1623128” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible FTC Web site at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC Web site at
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Moonlight Slumber, LLC (“respondent”).
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
This matter involves the deceptive environmental and health claims respondent made regarding its baby mattresses. According to the FTC complaint, respondent made unsubstantiated representations that its mattresses are organic, natural, or plant-based and that its mattresses will not emit any substance, including volatile organic compounds, or off gas; claimed that testing proved that its mattresses do not emit volatile organic compounds; and represented that its mattresses have been certified by Green Safety Shield, yet failed to disclose that it has a material connection to the Green Safety Shield seal. Consumers likely interpret such seals as a claim that an independent third party certified the product. The complaint alleges that all of these claims are deceptive in violation of Section 5(a) of the FTC Act.
The proposed consent order contains five provisions designed to prevent respondent from engaging in similar acts and practices in the future. Part I prohibits misleading representations regarding whether any mattress, blanket, pillow, pad, foam-containing product, or sleep-related product is organic, natural, or plant-based; regarding the emissions from such product; and regarding the general environmental and health benefits of such product. The order requires respondent to possess competent and reliable evidence, including scientific evidence when appropriate, to substantiate these representations.
Part II prohibits misleading representations regarding emissions-free and VOC-free claims. The order requires competent and reliable scientific evidence to substantiate that a product does not emit more than a trace level of emissions of the substance about which the claim is made. The order defines “emission” to include all emissions (not just VOCs that cause smog). This definition reflects the Commission's Enforcement Policy Statement and consumer expectations: Consumers are likely concerned about the potential health effects from exposure to chemical emissions found in indoor air, not just
Part III prohibits respondent from mispresenting the results of any tests or studies, or from misrepresenting that any product benefit is scientifically or clinically proven. Parts IV and V prohibit respondent from misrepresenting certifications or failing to adequately disclose a material connection to a party making a representation,
Parts VI through X are reporting and compliance provisions. Part VI mandates that respondent acknowledge receipt of the order, distribute the order to certain employees and agents, and secure acknowledgments from recipients of the order. Part VII requires that respondent submit compliance reports to the FTC within ninety (90) days of the order's issuance and submit additional reports when certain events occur. Part VIII requires that respondent create and retain certain records for five (5) years. Part IX provides for the FTC's continued compliance monitoring of respondent's activity during the order's effective dates. Part X is a provision “sunsetting” the order after twenty (20) years, with certain exceptions.
The purpose of the analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.
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 on the collection(s) of information must be received by the OMB desk officer by November 3, 2017.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs,
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 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.
William Parham at (410) 786–4669.
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 (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Administration on Intellectual and Developmental Disabilities (AIDD), Administration for Community Living (ACL), Department of Health and Human Services (HHS).
Notice.
The Administration for Community Living (ACL) is announcing an opportunity for the public to comment on ACL's intention to collect information necessary to determine grantee compliance with Part B of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (DD Act). Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are required to publish a notice in the
Submit written or electronic comments on the collection of information by December 4, 2017.
Submit electronic comments on the collection of information to:
Sara Newell-Perez at (202) 795–7413 or
Under the PRA (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “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 (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
The proposed data collection represents a revision of a currently approved information collection (ICR-Rev). In compliance with the requirements of Section 506 (c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration on Community Living is soliciting public comment on the information collection described above. The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (b) 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; (c) the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology. Consideration will only be given to comments and suggestions submitted within 60 days of this publication. The proposed State Councils on Developmental Disabilities Annual Program Performance Report can be found on the ACL Web site at:
ACL estimates the burden of this collection of information as follows:
The total estimated hour burden per respondent for the proposed DD Council PPR will increase from the 138 hours estimated in 2015 to 172 burden hours per response. The number of hours is multiplied by 56 State Council programs, resulting in a total estimated hour aggregate burden of 9,632.
The increase in burden is primarily due to the incorporation of new performance measures into the FFY 2017–2021 state plan cycle. These measures will hone in on individual and family advocacy, as well as systems change advocacy. One example of these measures is a reporting of the number of promising and/or best practices improved as a result of systems change activities. The Program Performance Report (PPR) is an opportunity for Councils to report on the actual data and outcomes that resulted from carrying out the new State Plan activities. The proposed revisions to the PPR form were reviewed and pilot tested by a Performance Measures Workgroup consisting of nine (9) State Council representatives. This workgroup deemed the PPR revisions necessary to accurately capture and report on the progress of the State Councils. A separate workgroup consisting of nine (9) different State Council representatives further discussed data collection methodologies as it relates to the proposed PPR template. The new performance measures will offer a comprehensive categorization and approach to collecting data necessary to report to Congress and other interested entities.
The burden calculation takes into account that 40% percent of the change Councils estimated for data collection burden will be pre-populated for them through their web-based reporting system, ACL Reporting. The increase of 24.6% for burden is consistent with the development of new performance measures and were approved and anticipated by the State Councils.
Administration for Community Living, Department of Health and Human Services.
Notice.
The Administration for Community Living (ACL) is announcing that the proposed collection of information listed above has been submitted to the Office of Management and Budget (OMB) for review and clearance as required under the Paperwork Reduction Act of 1995 (the PRA). This 30-day notice requests comments on the information collection requirements related to a proposed Revision of a Currently Approved Information Collection (ICR-Rev). The revision would allow ACL to continue to collect information necessary to determine grantee compliance with Section 4 of the Assistive Technology Act of 1998, as Amended (AT Act).
Submit written comments on the collection of information by November 3, 2017.
Submit written comments on the collection of information: by fax at (202) 395–5806 or by email to
Robert Groenendaal at (202) 795–7356 or
Under the PRA (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “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 (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
The AT APR is submitted annually by all State Grants for AT programs receiving formula funds under Section 4 of the Assistive Technology Act of 1998, as Amended (AT Act). The AT APR is used by ACL to assess grantees' compliance with Section 4 of the AT Act, with section 1329 of the Code of Federal Regulations, and with applicable provisions of the HHS regulations at 45 CFR part 75. The AT APR enables ACL to analyze qualitative and quantitative data to track performance outcomes and efficiency measures of the State Grants for AT programs; support budget requests; comply with the GPRA Modernization Act of 2010 (GPRAMA) reporting requirements; provide national benchmark information; and inform program development and management activities. This information collection has 3 pieces: (a) Web-based system that collects data from states; (b) performance measure survey on the access and acquisition of AT devices and services that states collect from individuals; and, (c) customer satisfaction survey that states collect from individuals on their experiences accessing and acquiring AT through the State AT program. The burden table below identifies the data collection activities for the three surveys above as well as the estimates for record keeping and entry of aggregate data. In addition to submitting a State Plan every three years, states and outlying areas are required to submit annual progress reports on their activities. The data required for these progress reports is specified in Section 4(f) of the AT Act. The State Grants for AT program conduct the following state-level and state leadership activities: State financing, device demonstration, device loans, device reutilization, training and technical assistance, public awareness, and information and referral.
A 60-Day notice was published in the
The proposed State Grants for Assistive Technology Program Annual Progress Report (AT APR) may be found on the ACL Web site at:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by December 4, 2017.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before December 4, 2017. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–5733,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 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 (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports Agency regulations regarding the content and format requirements for pregnancy and lactation labeling. In the
The content and format requirements apply to:
• Applications submitted on or after June 30, 2015 (§§ 314.50 (21 CFR 314.50), 314.70(b), 601.2 (21 CFR 601.2), and 601.12(f)(1));
• amendments to applications pending on June 30, 2015 (§§ 314.60 (21 CFR 314.60), 601.2, and 601.12(f)(1));
• supplements to applications approved from June 30, 2001 to June 30, 2015 (§§ 314.70(b) and 601.12(f)(1)); and
• annual reports for applications approved before June 30, 2001, that contain a pregnancy category, to report removal of the pregnancy category letter in their labeling (§§ 314.70(d) and 601.12(f)(3)).
Under 21 CFR 201.57(c)(9)(i) and (ii)), holders of approved applications must provide new labeling content in a new format—that is, to rewrite the pregnancy and lactation portions of each drug's labeling. Section 201.57(c)(9)(iii) requires that labeling must include the new subsection 8.3, “Females and males of reproductive potential.” Application holders are required to submit prior approval supplements to their approved applications before distribution of the new labeling, as required in § 314.70(b) (21 CFR 314.70(b)) or § 601.12(f)(1) (21 CFR 601.12(f)(1)).
Under 21 CFR 201.80(f)(6)(i), holders of approved applications are required to remove the pregnancy category designation (
As indicated in Tables 1 and 2 of this document, we estimate that the burden associated with the information collection to be 1,598,000 hours.
FDA estimates the burden of this collection of information as follows:
FDA estimates that approximately 4,000 applications containing the subject labeling will be submitted by approximately 390 applicants and repackagers and relabelers to FDA over the 10-year period beginning June 30, 2015. This figure (4,000 applications) includes labeling for approximately 800 applications submitted under section 505(b) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 505(b)) or section 351 of the Public Health Service Act (42 U.S.C. 262), 1,200 applications submitted under section 505(j) of the FD&C Act, and 2,000 revised drug product labeling from repackagers and relabelers for approximately 2,000 applications. This estimate also includes labeling amendments submitted to FDA for applications pending as of the effective date of the final rule. FDA estimates that it will take applicants approximately 40 hours to prepare and submit the subject labeling. This estimate applies only to the requirements of the final rule and does not indicate the total hours required to prepare and submit complete labeling for these applications. The information collection burden to prepare and submit labeling in accordance with §§ 201.56 (21 CFR 201.56), 201.57, and 201.80 is approved by OMB under control numbers 0910–0572 and 0910–0001.
In addition, during the 3rd, 4th, and 5th years after the effective date of the final rule, the Agency estimates that it will receive approximately 10,150 supplements to applications that were either approved from June 30, 2001, to the effective date or were pending as of the effective date. This estimate includes supplements for approximately 1,080 NDAs, BLAs, and efficacy supplements; 1,320 ANDA supplements; and 7,750 drug product labeling supplements from repackagers and relabelers. FDA estimates that approximately 390 application holders, repackagers, and relabelers will submit these supplements, and that it will take approximately 120 hours to prepare and submit each supplement.
FDA also estimates that application holders will submit approximately 5,500 annual reports to FDA during the third year after the effective date for applications that contain a pregnancy category, approved before June 30, 2001. This estimate includes approximately 1,340 NDAs and BLAs, and approximately 4,160 ANDAs containing labeling changes as a result of the final rule. FDA estimates that approximately 320 application holders will submit these annual reports, and that it will take approximately 40 hours for each submission.
Food and Drug Administration, HHS.
Notice; amendment.
The Food and Drug Administration (FDA) is announcing amendments to the notice of meeting of the Patient Engagement Advisory Committee. This meeting was announced in the
Letise Williams, Center for Devices and Radiological Health, Food and Drug
In the
On page 34682, in the first column, in the
On page 34682, in the second column, a
The meeting will be held on October 11, 2017, from 12:30 p.m. to 6 p.m. and October 12, 2017, from 8 a.m. to 5 p.m.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to the advisory committees.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that false Western blot data were included in:
•
•
•
As a result of its investigation, UGCP recommended that
ORI found that Respondent intentionally, knowingly, or recklessly used the same Western blot bands to represent different experimental results. Specifically, Respondent reused and relabeled bands in:
1. Figure 3B,
2. Figure 4A,
3. Figure 4B,
4. Figure 4A,
5. Figure 3,
Dr. El-Remessy entered into a Voluntary Settlement Agreement (Agreement) to resolve this matter without further expenditure of time or other resources. Dr. El-Remessy accepts ORI's findings of research misconduct as set forth above but neither admits nor denies ORI's findings of research misconduct. The settlement is not an admission of liability on the part of the Respondent. Dr. El-Remessy voluntarily agreed, beginning on September 12, 2017:
(1) To have her research supervised for a period of three (3) years beginning with the effective date of the Agreement; Respondent agreed that prior to the submission of an application for U.S. Public Health Service (PHS) support for a research project on which the Respondent's participation is proposed and prior to Respondent's participation in any capacity on PHS-supported research, Respondent shall ensure that a plan for supervision of Respondent's duties is submitted to ORI for approval; the supervision plan must be designed to ensure the scientific integrity of Respondent's research contribution; Respondent agreed that she shall not participate in any PHS-supported research until such a supervision plan is submitted to and approved by ORI; Respondent agreed to maintain responsibility for compliance with the agreed upon supervision plan;
(2) that for three (3) years beginning with the effective date of the Agreement,
(3) to exclude herself voluntarily from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant for a period of three (3) years, beginning with the effective date of the Agreement; and
(4) that as a condition of the Agreement, Respondent will request that
Director, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453–8200.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of Microbiology, Infectious Diseases and AIDS Initial Review Group Microbiology and Infectious Diseases Research Committee.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting of the Board of Scientific Counselors, NIDA.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute on Drug Abuse, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Melba Rojas, NIMH Project Clearance Liaison, Science Policy and Evaluation Branch, Office of Science Policy, Planning and Communications, NIMH, Neuroscience Center, 6001 Executive Boulevard, MSC 9667, Bethesda, Maryland 20892, call 301–443–4335, or email your request, including your mailing address, to
The National Institute of Mental Health (NIMH), National Institutes of Health, may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 1,500.
Office of the Secretary, Department of Homeland Security.
Notice.
Hurricane Maria struck Puerto Rico resulting in widespread damage to its infrastructure. In light of this devastation, the Department of Defense (DoD) has requested a 10-day waiver of the Jones Act in the interest of national defense, commencing immediately.
The Jones Act, 46 United States Code (U.S.C.) 55102, states “a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port” unless the vessel was built in and documented under the laws of the United States and is wholly owned by persons who are citizens of the United States. Such a vessel, after obtaining a coastwise endorsement from the U.S. Coast Guard, is “coastwise-qualified.” The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline.
The navigation laws, including the coastwise laws, can be waived under the authority provided by 46 U.S.C. 501. The statute provides in relevant part, “On request of the Secretary of Defense, the head of an agency responsible for the administration of the navigation or vessel-inspection laws shall waive compliance with those laws to the extent the Secretary considers necessary in the interest of national defense.” 46 U.S.C. 501(a).
For the reasons stated above, and in light of the request from the Department of Defense, I am exercising my authority to waive the Jones Act for a 10-day period, commencing immediately, to facilitate movement of all products to be shipped from U.S. coastwise points to Puerto Rico. This waiver applies to covered merchandise laded on board a vessel within the 10-day period of the waiver and delivered by October 18, 2017. Carriers or shippers who conduct transportation pursuant to this waiver should provide notice of the vessel, dates of embarkation and disembarkation, type and quantity of cargo, and port of embarkation to
Office of Strategic Planning and Management, HUD.
Notice.
In accordance with the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in competitions for funding under the Notices of Funding Availability (NOFAs) for the following programs: Fiscal Year (FY) 2016 Resident Opportunity and Self-Sufficiency Program; FY2016 Family Self-Sufficiency Program; FY2016 Jobs Plus Initiative; FY2016 Research and Evaluation, Demonstration, and Data Analysis and Utilization; FY2017 Comprehensive Housing Counseling Grant Program; FY2017 Lead-Based Paint Hazard Control Grant Program; and FY2017 Lead Hazard Reduction Demonstration Grant Program.
The
The
The
The
The
The
The
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545(a)(4)(C)), the Department is publishing the awardees and the
[FR–6000–FA–05]
[FR–6000–FA–04]
[FR–6000–FA–14]
[FR–6000–FA–29]
[FR–6100–FA–12]
[FR–6100–FA–13]
[FR–6100–FA–33]
Bureau of Land Management, Interior.
Notice.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) prepared a Record of Decision (ROD) for the Bull Mountain Unit Master Development Plan (MDP) and by this notice is announcing its availability.
Requests for BLM Colorado State Director review of the Decision must be filed within 20 business days from the date of receipt of the Decision.
Copies of the Bull Mountain Unit MDP ROD are available for public inspection at the BLM Uncompahgre Field Office, 2465 South Townsend Ave., Montrose, CO 81401. Interested persons may also review the ROD and the Final Environmental Impact Statement (EIS) on the project Web site at
Mail requests for BLM Colorado State Director review of the Decision to the BLM Colorado State Director, BLM Colorado State Office, 2850 Youngfield Street, Lakewood, CO 80215.
Gina Phillips, Southwest District NEPA Coordinator; telephone (970) 240–5300; email
The BLM Uncompahgre Field Office received a proposed MDP for natural gas exploration and development from SG Interests I, Ltd. (SGI) for the Bull Mountain Unit. An MDP provides information common to multiple planned wells, including drilling plans, Surface Use Plans of Operations, and plans for future production.
The Bull Mountain Unit MDP ROD identifies the Preferred Alternative (Alternative D from the Final EIS), with minor modifications, as the BLM's Selected Alternative. Approval of the Preferred Alternative as described in the Final EIS (2016) meets the BLM's purpose and need, provides for natural gas exploration and development, and approves the Federal 12–89–7–1 Application for Permit to Drill (APD). The Selected Alternative approves a plan for the exploration and development of up to 146 natural gas wells, four water disposal wells, and associated infrastructure on Federal and private mineral leases within a Federally-unitized area known as the Bull Mountain Unit. SGI requested and obtained the BLM's approval of the unit after exploration wells demonstrated the potential for economically viable reserves of natural gas.
The Bull Mountain Unit is located within the Colorado River basin, approximately 30 miles northeast of the Town of Paonia, and is bisected by State Highway 133. The boundaries of the unit encompass approximately 19,670 acres of Federal and private oil and gas mineral estate in Gunnison County, Colorado. The unit consists of 440 acres of BLM Federal surface lands and subsurface mineral estate; 12,900 acres of split-estate lands consisting of private surface and Federal mineral estate administered by the BLM; and 6,330 acres of fee land consisting of private surface and private mineral estate. Work on the MDP began with a preliminary Environmental Assessment in 2008. In 2012, the BLM determined that an EIS was necessary due to potential significant impacts to air quality in nearby Class 1 air sheds, water, socioeconomics, and wildlife. The BLM released the Draft EIS on January 16, 2015, for a 90-day public comment period (80 FR 2438). The BLM received 565 unique comment letters and 83 form letters. Based on these public comments, internal reviews, and cooperating agency input, the BLM revised the Draft EIS and published the Final EIS on July 8, 2016 (81 FR 44652).
The BLM also consulted with the U.S. Fish and Wildlife Service (FWS), which concurred with the BLM's finding that the project “may affect, but is not likely to adversely affect” the green lineage Colorado River cutthroat trout and Canada Lynx and designated habitat for both species, and that it “may affect, is likely to adversely affect” four endangered Colorado River fish, but that anticipated water depletions from the Colorado River basin are within the amounts addressed in the FWS's 2008 programmatic biological opinion. Finally, the BLM consulted with the Colorado State Historic Preservation Office, which raised no concerns as to the project's potential to affect historic properties.
Based on public comments, internal BLM comments, and updated information provided by SGI, the BLM selected the BLM's Preferred Alternative (Alternative D), as modified, for approval in the ROD. The decision includes a suite of design features, mitigation measures and best management practices that specifically address impacts to air resources and air quality related values, water resources, and wildlife.
The BLM's decision, which is based on Alternative D in the Final EIS, is the environmentally preferred action because it best meets the following criteria:
• Satisfies statutory requirements (true for all alternatives).
• Represents what the BLM considers to be the best combination of actions and best meets the purpose and need as described in Chapter 1 of the Final EIS.
• Provides the best approach to address key resource and planning issues.
• Provides resource protection and a viable strategy for development of the mineral resource.
• Responds to public comments.
• Includes input from cooperating agencies, stakeholders, the public, and BLM specialists.
An adversely affected party may seek administrative review of the Decision by the Colorado State Director, as provided in 43 CFR 3165.3. A request for State Director review must be filed in the BLM Colorado State Office within 20 business days from the date of receipt of the Decision.
40 CFR 1506.6, 40 CFR 1506.10.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before September, 9, 2017, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by October 19, 2017.
Comments may be sent via U.S. Postal Service and all other carriers to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 7228, Washington, DC 20240.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before September, 9, 2017. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
Nominations submitted by State Historic Preservation Officers:
An additional documentation has been received for the following resource(s):
Nominations submitted by Federal Preservation Officers:
The State Historic Preservation Officer reviewed the following nomination and responded to the Federal Preservation Officer within 45 days of receipt of the nomination and supports listing the property in the National Register of Historic Places.
60.13 of 36 CFR part 60
Bureau of Reclamation, Interior.
Notice of public meeting.
The Bureau of Reclamation (Reclamation) is publishing this notice to announce that a Federal Advisory Committee meeting of the Yakima River Basin Conservation Advisory Group (CAG) will take place.
The meeting will be held on Thursday, October 19, 2017, from 1:00 p.m. to approximately 4:00 p.m.
The meeting will be held at the Bureau of Reclamation, Yakima Field Office, 1910 Marsh Road, Yakima, Washington 98901.
Gwendolyn Christensen, Bureau of Reclamation, telephone (509) 575–5848 x203; email at
This meeting is being held under the provisions of the Federal Advisory Committee Act (5 U.S.C. Appendix 2, as amended.
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of YETI Coolers, LLC on September 28, 2017. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain insulated beverage containers, components, labels, and packaging materials thereof. The complaint names as respondents Alibaba (China) Technology Co., Ltd. of Hong Kong; Alibaba Group Holding Limited c/o Alibaba Group Services Limited of Hong Kong; Alibaba.com Hong Kong Limited of Hong Kong; Alibaba.com Singapore E-Commerce Private Limited of Hong Kong; Bonanza.com, Inc. of Seattle, WA; ContextLogic, Inc. d/b/a Wish of San Francisco, CA; Dunhuang Group of China; Hangzhou Alibaba Advertising Co., Ltd. of Hong Kong; Huizhou Dashu Trading Co., Ltd. of China; Huagong Trading Co., Ltd. of China; Tan Er Pa Technology Co., Ltd. of Hong Kong; Shenzhen Great Electronic Technology Co., Ltd of China; and SZ Flowerfairy Technology Ltd. of China. The complainant requests that the Commission issue a limited exclusion, cease and desist orders, and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3261”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Tessera Advanced Technologies, Inc. on September 28, 2017. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wafer-level packaging semiconductor devices and products containing same (including cellular phones, tablets, laptops, and notebooks) and components thereof. The complaint names as respondents Samsung Electronics Co., Ltd. of Korea; Samsung Electronics America, Inc. of Ridgefield Park, NJ; and Samsung Semiconductor, Inc. of San Jose, CA. The complainant requests that the Commission issue a limited exclusion and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant,
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3262”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation Nos. 701–TA–588 and 731–TA–1392–1393 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of Polytetrafluoroethylene (“PTFE”) Resin from China and India, provided for in statistical reporting numbers 3904.61.0010 and 3904.61.0090 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and alleged to be subsidized by the Government of India. Unless the Department of Commerce extends the time for initiation, the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by November 13, 2017. The Commission's views must be transmitted to Commerce within five business days thereafter, or by November 20, 2017.
September 28, 2017.
Fred Ruggles (202–205–3187), 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 (
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
Advisory Committee on the Federal Rules of Evidence, Judicial Conference of the United States.
Notice of cancellation of public hearing.
The following public hearing on proposed amendments to the Federal Rules of Evidence has been canceled: Evidence Rules Hearing on October 27, 2017, in Boston, Massachusetts.
Rebecca A. Womeldorf, Rules Committee Secretary, Rules Committee Staff, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502–1820.
Announcement for this hearing was previously published in 82 FR 37610.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until November 3, 2017.
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any other additional information, please contact Desiree M. Dickinson, ATF Firearms and Explosives Imports Branch either by mail at 244 Needy Road, Martinsburg, WV 25405, or by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405A, Washington, DC 20530.
Federal Bureau of Investigation, DOJ.
Meeting notice.
The purpose of this notice is to announce a meeting of the National Crime Prevention and Privacy Compact Council (Council) created by the National Crime Prevention and Privacy Compact Act of 1998 (Compact). Thus far, the Federal Government and 31 states are parties to the Compact which governs the exchange of criminal history records for licensing, employment, and similar purposes. The Compact also provides a legal framework for the establishment of a cooperative federal-state system to exchange such records.
The United States Attorney General appointed 15 persons from state and federal agencies to serve on the Council. The Council will prescribe system rules and procedures for the effective and proper operation of the Interstate Identification Index system for noncriminal justice purposes.
The Council will meet in open session from 9 a.m. until 5 p.m., on November 1–2, 2017.
The meeting will take place at the Hyatt Regency Jacksonville Riverfront, 225 East Coastline Drive, Jacksonville, Florida, telephone (904) 588–1234.
Inquiries may be addressed to Mrs. Chasity S. Anderson, FBI Compact Officer, Module D3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306, telephone (304) 625–2803, facsimile (304) 625–2868.
Matters for discussion are expected to include:
The meeting will be open to the public on a first-come, first-seated basis. Any member of the public wishing to file a written statement with the Council or wishing to address this session of the Council should notify the Federal Bureau of Investigation (FBI) Compact Officer, Mrs. Chasity S. Anderson at (304) 625–2803, at least 24 hours prior to the start of the session. The notification should contain the individual's name and corporate designation, consumer affiliation, or government designation, along with a short statement describing the topic to be addressed and the time needed for the presentation. Individuals will ordinarily be allowed up to 15 minutes to present a topic.
On September 22, 2017, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of New Mexico in the lawsuit titled
This case relates to contamination associated with past uranium mining operations conducted by United Nuclear
The proposed Consent Decree would resolve claims and counterclaims asserted by the mining companies and the United States. The United States will pay $1.595 million to the mining companies and the mining companies will pay $25,000 to the EPA Hazardous Substance Superfund (“Superfund”). The United States covenants to not sue the mining companies under Section 106 or 107 of CERCLA, 42 U.S.C. 9606 and 9607, for past and future work by the mining companies related to implementation of the UAO or the United States' response costs. The mining companies will be entitled to protection from contribution actions or claims under Section 113(f)(2) of CERCLA, 42 U.S.C. 9613(f)(2), for matters addressed in the proposed Consent Decree. Pursuant to the proposed Consent Decree, the mining companies covenant not to bring any claims against the United States for the work related to implementation of the UAO, other response actions, the United States' response costs, or the mining companies' response costs. The USFS, USDA, and the United States Department of Energy, as settling federal agencies, agree not to assert a claim for reimbursement from the Superfund with respect to work related to the implementation of the UAO, past response actions, United States response costs, or the mining companies' response costs.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $24.00 (25 cents per page reproduction cost) payable to the United States Treasury.
On September 27, 2017, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Nevada in the lawsuit entitled
In this action, the United States and the State of Nevada filed a complaint alleging claims against the City of North Las Vegas (City) for the City's violations of Sections 307 and 308 of the Clean Water Act (CWA), 33 U.S.C. 1317–1318, the terms of the City's National Pollutant Discharge Elimination System permit (NPDES permit), federal pretreatment regulations found at 40 CFR 403, and State laws NRS 445A.500–530.
The proposed settlement requires the City to comply with its NPDES permit issued under the CWA, the federal pretreatment regulations (40 CFR 403) and State laws NRS 445A.500–530. The proposed settlement also requires the City to submit its recently developed pretreatment program to the United States Environmental Protection Agency for final approval and to pay a civil penalty amount of $385,000 to be divided equally between the United States and the State.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $7.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
On September 29, 2017, the Department of Labor (DOL) will submit the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Delinquent Filer Voluntary Compliance Program,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 3, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Delinquent Filer Voluntary Compliance Program (DFVC) information collection. The DFVC Program is intended to encourage, through the assessment of reduced civil penalties, delinquent plan administrators voluntarily to comply with their annual reporting obligations under Employee Retirement Income Security Act of 1974 (ERISA) Title I. The only information collection requirement included in the DFVC Program is to provide data necessary to identify the plan along with the penalty payment. ERISA section 502(c)(2) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice.
On September 29, 2017, the Department of Labor (DOL) will submit the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Mine Accident, Injury, and Illness Report and Quarterly Mine Employment and Coal Production Report,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 3, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Mine Accident, Injury, and Illness Report and Quarterly Mine Employment and Coal Production Report information collection. The reporting and recordkeeping provisions in regulations 30 CFR part 50, Notification, Investigation, Reports and Records of Accidents, Injuries and Illnesses, Employment and Coal Production in Mines, are essential elements in the MSHA's Congressional mandate to reduce work-related injuries and illnesses among the nation's miners. Accident, injury, and illness data, when correlated with employment and production data, provide information that allows the MSHA to improve its safety and health enforcement programs, focus its education and training efforts, and establish priorities for its technical assistance activities in mine safety and health. Maintaining a current database allows the MSHA to identify and direct increased attention to those mines, industry segments, and geographical areas where hazardous trends are developing. This could not be done effectively using historical data. The information collected under part 50 is the most comprehensive and reliable occupational data available concerning the mining industry. The Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on September 30, 2017. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Millennium Challenge Corporation.
Notice.
This report to Congress is provided in accordance with Section 608(b) of the Millennium Challenge Act of 2003, as amended, (the “Act”).
In accordance with section 608(b)(2) of the Millennium Challenge Act of 2003 (the “Act,” 22 U.S.C. 7707(b)(l)), the Millennium Challenge Corporation (MCC) is submitting the enclosed report. This report identifies the criteria and methodology that MCC intends to use to determine which candidate countries may be eligible to be considered for
Under section 608 (c)(1) of the Act, MCC will, for a thirty-day period following publication, accept and consider public comment for purposes of determining eligible countries under section 607 of the Act (22 U.S.C. 7706).
This document explains how the Board of Directors (Board) of the Millennium Challenge Corporation (MCC) will identify, evaluate, and select eligible countries for fiscal year (FY) 2018. The statutory basis for this report is set forth in Appendix A. Specifically, this document discusses:
MCC evaluates all low-income countries (LICs) and lower-middle income countries (LMICs) as follows:
• For scorecard evaluation purposes for FY 2018, MCC defines LICs as those countries between $0 and $1,905 GNI per capita, and LMICs as those countries between $1,906 and $3,955 GNI per capita.
• For funding
In Appendix B, lists of all LICs, LMICs and statutorily prohibited countries for scorecard evaluation purposes are provided. The list using the “funding” definition was outlined in the August 2017 Report on Countries that are Candidates for Millennium Challenge Account Eligibility for Fiscal Year 2018 and Countries that Would be Candidates but for Legal Prohibitions (the “Candidate Country Report”), and describes how funding categories work.
The Board looks at three legislatively-mandated factors in its evaluation of any candidate country for compact eligibility: (1) Policy performance; (2) the opportunity to reduce poverty and generate economic growth; and (3) the availability of MCC funds.
Because of the importance of needing to evaluate a country's policy performance and needing to do so in a comparable, cross-country way, the Board relies to the maximum extent possible upon the best-available objective and quantifiable indicators of policy performance. These indicators act as proxies of the country's commitment to just and democratic governance, economic freedom, and investing in its people, as laid out in MCC's founding legislation. Comprised of 20 third-party indicators in the categories of “encouraging economic freedom,” “investing in people,” and “ruling justly,” MCC “scorecards” are created for all LICs and LMICs. To “pass” the indicators on the scorecard, the country must perform above the median among its income group (as defined above for scorecard evaluation purposes), except in the cases of inflation, political rights, civil liberties, and immunization rates (LMICs only), where threshold scores have been established. In particular, the Board considers whether the country:
• Passed at least 10 of the 20 indicators, with at least one in each category,
• Passed either the Political Rights or Civil Liberties indicator, and
• Passed the Control of Corruption indicator.
While satisfaction of all three aspects means a country is termed to have “passed” the scorecard, the Board also considers whether the country performed “substantially worse” in any one policy category than it does on the scorecard overall. Appendix C describes all 20 indicators, their definitions, what is required to “pass,” their source, and their relationship to the legislative criteria.
The mandatory passing of either the Political Rights or Civil Liberties indicators is called the Democratic Rights “hard hurdle” on the scorecard, while the mandatory passing of the Control of Corruption indicator is called the Control of Corruption “hard hurdle.” Not passing either “hard hurdle” results in not passing the scorecard overall, regardless of whether at least 10 of the 20 other indicators are passed.
• Democratic Rights “hard hurdle:” This hurdle sets a minimum bar for democratic rights below which the Board will not consider a country for eligibility. Requiring that a country pass either the Political Rights or
• Control of Corruption “hard hurdle:” Corruption in any country is an unacceptable tax on economic growth and an obstacle to the private sector investment needed to reduce poverty. Accordingly, MCC seeks out partner countries that are committed to combatting corruption. It is for this reason that MCC also has the Control of Corruption “hard hurdle,” which helps ensure that MCC is working with countries where there is relatively strong performance in controlling corruption. Requiring the passage of the indicator provides an incentive for countries to demonstrate a clear commitment to controlling corruption, and allows MCC to better understand the issue by seeing how the country performs relative to its peers and over time.
Together, the 20 policy performance indicators are the predominant basis for determining which eligible countries will be selected for MCC assistance, and the Board expects a country to be passing its scorecard at the point the Board decides to select the country for either a first or second/subsequent compact. However, the Board also recognizes that even the best-available data has inherent challenges. For example, data gaps, real-time events versus data lags, the absence of narratives and nuanced detail, and other similar weaknesses affect each of these indicators. In such instances, the Board uses its judgment to interpret policy performance as measured by the scorecards. The Board may also consult other sources of information to further enhance its understanding of a given country's policy performance beyond the issues on the scorecard, which is
The Board also consults other sources of qualitative and quantitative information to have a more detailed view of the opportunity to reduce poverty and generate economic growth in a country.
While the Board considers a range of other information sources depending on the country, specific areas of attention typically include better understanding the issues on, trends in, and trajectory of:
• The state of democratic and human rights (especially of vulnerable groups
• The perspective of civil society on salient governance issues;
• The control of corruption and rule of law;
• The potential for the private sector (both local and foreign) to lead investment and growth;
• The levels of poverty within a country; and
• The country's institutional capacity.
Where applicable, the Board also considers MCC's own experience and ability to reduce poverty and generate economic growth in a given country—such as considering MCC's core skills versus the country's needs, capacity within MCC to work with a country, and the likelihood that MCC is seen by the country as a credible partner.
This information provides greater clarity on the likelihood that MCC investments will have an appreciable impact on reducing poverty and generating economic growth in a given country. The Board has used such information both to
The final factor that the Board must consider when evaluating countries is the funding available. The agency's allocation of its budget is constrained, and often specifically limited, by provisions in the authorizing legislation and appropriations acts. MCC has a continuous pipeline of countries in compact development, compact implementation, and compact closeout, as well as threshold programs. Consequently, the Board factors in the overall portfolio picture when making its selection decisions given the funding available for each of the agency's planned or existing programs.
The following subsections describe how each of these three legislatively-mandated factors are applied with regard to the selection situations the Board encounters each December: selection of countries for first compact eligibility, selection of countries for second/subsequent compact eligibility, and selection of countries for the threshold program. Thereafter, notes are included on consideration of countries for potential regional investments, and issues for consideration for countries that might graduate to upper middle income country status after initial selection.
When selecting eligible countries, the Board looks at all three legislatively-mandated aspects described in the previous section: (1) Policy performance, first and foremost as measured by the scorecards and bolstered through additional information (as described in the previous section); (2) the opportunity to reduce poverty and generate economic growth, examined through the use of other supporting information (as described in the previous section); and (3) the funding available.
At a minimum, the Board looks to see that the country passes its scorecard. It also examines supporting evidence that the country's commitment to just and democratic governance, economic freedom, and investing in its people is on a sound footing and performance is on a positive trajectory (especially on the `hard hurdles' of Democratic Rights and Control of Corruption, as described in the previous section), and that MCC has funding to support a meaningful compact with that country. Where applicable, previous threshold program information is also considered. The Board then weighs the information described above across each of the three dimensions.
The approach described above is then applied in any additional years of selection of a country to continue to develop a first compact, with the added benefit of having cumulative scorecards, cumulative records of policy performance, and other accumulated supporting information to determine the overall pattern of performance over the emerging multi-year trajectory.
Section 609(k) of the Millennium Challenge Act of 2003, as amended, specifically authorizes MCC to enter into “one or more subsequent Compacts.” MCC does not consider subsequent compact eligibility, however, before countries have completed their compact or are within 18 months of completion, (
To evaluate the degree of success of the previous compact, the Board looks to see if there is a clear evidence base of success within the budget and time limits of the compact, in particular by looking at three aspects:
• The degree to which there is evidence of strong political will and management capacity: Is the partnership characterized by the country ensuring that both policy reforms and the compact program itself are both being implemented to the best ability that the country can deliver;
• The degree to which the country has exhibited commitment and capacity to achieve program results: Are the financial and project results being achieved; to what degree is the country committing its own resources to ensure the compact is a success; to what extent is the private sector engaged (if relevant); and other compact-specific issues; and
• The degree to which the country has implemented the compact in accordance with MCC's core policies and standards: That is, is the country adhering to MCC's policies and procedures, including in critical areas such as remediating unresolved fraud and corruption and abuse or misuse of
Details on the specific types of information examined (and sources used) in each of the three areas are provided in Appendix D. Overall, the Board is looking for evidence that the previous compact will be completed or has been completed successfully, on time and on budget, and that there is a commitment to continued, robust reform going forward.
Beyond successful implementation of the previous compact, the Board expects the country to have improved its overall scorecard policy performance during the partnership, and to pass the scorecard in the year of selection for the subsequent compact. The Board focuses on:
• The overall scorecard pass/fail rate over time, what this suggests about underlying policy performance, as well as an examination of the underlying reasons;
• The progress over time on policy areas measured by both hard-hurdle indicators—Democratic Rights and Control of Corruption—including an examination of the underlying reasons; and
• Other indicator trajectories as deemed relevant by the Board.
In all cases, while the Board expects the country to be passing its scorecard, other sources of information are examined to understand the nuance and reasons behind scorecard or indicator performance over time, including any real-time updates, methodological changes within the indicators themselves, shifts in the relevant candidate pool, or alternative policy performance perspectives (such as gleaned through consultations with civil society and related stakeholders). Other sources of information are also consulted to look at policy performance over time in areas not covered by the scorecard, but that are deemed important by the Board (such as trade, foreign policy concerns, etc.).
The Board expects that subsequent compacts will endeavor to tackle deeper policy reforms necessary to unlock an identified constraint to growth. Consequently, the Board considers its own experience during the previous compact in considering how committed the country is to reducing poverty and increasing economic growth, and therefore tries to gauge the country's commitment for further sector reform should it be selected for a subsequent compact. This includes:
• Assessing the country's delivery of policy reform during the previous compact (as described above);
• Assessing expectations of the country's ability and willingness to continue embarking on sector policy reform in a subsequent compact;
• Examining both other sources of information that describe the nature of the opportunity to reduce poverty and generate growth (as outlined in A.2 above), and the relative success of the previous compact overall, as already discussed; and
• Finally, considering how well funding can be leveraged for impact, given the country's experience in the previous compact.
Through this overall approach to subsequent compact selection, the Board applies the three legislatively mandated evaluation criteria (policy performance, the opportunity to reduce poverty and generate economic growth, and the funding available) in a way that rests critically on deeply assessing the previous partnership: From a compact success standpoint, a commitment to improved scorecard policy performance standpoint, and a commitment to continued sector policy reform standpoint. The Board then weighs all of the information described above in making its decision.
The approach described above is then applied in any additional years of selection necessary as the country continues to develop the subsequent compact, with the added benefit of having further detail on previous compact implementation, cumulative scorecards, records of policy performance, and other accumulated supporting information to determine the overall pattern of performance over the resulting multi-year trajectory.
The Board may also evaluate countries for participation in the Threshold Program. The Threshold Program provides assistance to candidate countries that exhibit a significant commitment to meeting the criteria described in the previous sub-sections, but fail to meet such requirements. Specifically, in examining the policy performance, the opportunity to reduce poverty and generate economic growth, and the funding available, the Board will consider whether a country that potentially qualifies for threshold program assistance appears to be on a trajectory to becoming viable for compact eligibility in the medium term.
FY 2018 marks the third year that the Board may consider selecting countries where potential regional investments (
With respect to regional investments, the fundamental criteria and process for selection will remain unchanged: Countries will continue to be evaluated and selected individually, as described in sections A, B, and C above. However, for countries where regional investments might be contemplated, the Board will also examine additional supplemental information looking at the policy environment from a regional dimension.
Specifically, the Board will examine additional data and information related to:
• The current state of the country's political and economic integration with its region and neighbors;
• Impediments to further integration with its region and neighbors; and
• The potential gains from investing at a regional level, including illustrative potential sector opportunities.
The Board will weigh this additional regional information in tandem with the other supplemental factors described earlier in sections A, B, and C. The Board will then decide whether or not it will direct MCC to explore some form of a regional investment with the country.
Some candidate countries may have a high LMIC per capita income and/or a high growth rate that implies there is a chance they could transition to UMIC status during the life of an MCC partnership. In such cases, it is not possible to accurately predict when such a country may or may not transition to UMIC status.
Nonetheless, such countries may have more resources at their disposal for funding their own growth and poverty reduction strategies. As a result, in addition to using the regular selection criteria described in the previous sections, the Board will also use its discretion to assess both the need and the opportunity presented by partnering with such a country, in order to ensure that there is a higher bar for possible selection.
Specifically, if a candidate country with a high probability of transitioning
• Whether the country faces significant challenges accessing other sources of development financing (such as international capital, domestic resources, and other donor assistance) and, if so, examining if MCC grant financing would be an appropriate tool.
• Whether the nature of poverty in the country (for example, high inequality or poverty headcount ratios relative to peer countries) presents a clear and strategic opportunity for MCC to assist the country in reducing such poverty through investments that spur economic growth.
• Whether the country demonstrates particularly strong policy performance, including policies and actions that demonstrate a clear priority on poverty reduction.
• Whether MCC can reasonably expect that the country would contribute a significant amount of funding to the compact.
These additional criteria would then be applied in any additional years of selection as the country continues to develop its compact. Should the country eventually transition to UMIC status during compact development, the country would no longer be a candidate country for that fiscal year. Consequently, continuing the partnership beyond that point would then be at the Board's discretion, and would rely on funding from previous fiscal years from when the country was a candidate country.
This report to Congress is provided in accordance with section 608(b) of the Millennium Challenge Act of 2003, as amended, 22 U.S.C. 7707(b) (the Act).
Section 605 of the Act authorizes the provision of assistance to countries that enter into a Millennium Challenge Compact with the United States to support policies and programs that advance the progress of such countries in achieving lasting economic growth and poverty reduction. The Act requires MCC to take a number of steps in selecting countries for compact assistance for FY 2018 based on the countries' demonstrated commitment to just and democratic governance, economic freedom, and investing in their people, MCC's opportunity to reduce poverty and generate economic growth in the country, and the availability of funds. These steps include the submission of reports to the congressional committees specified in the Act and publication of information in the
1. The countries that are “candidate countries” for assistance for FY 2018 based on per capita income levels and eligibility to receive assistance under U.S. law. (section 608(a) of the Act; 22 U.S.C. 7707(a));
2. The criteria and methodology that MCC's Board of Directors (Board) will use to measure and evaluate policy performance of the candidate countries consistent with the requirements of section 607 of the Act (22 U.S.C. 7706) in order to determine “eligible countries” from among the “candidate countries” (section 608(b) of the Act; 22 U.S.C. 7707(b)); and
3. The list of countries determined by the Board to be “eligible countries” for FY 2018, with justification for eligibility determination and selection for compact negotiation, including those eligible countries with which MCC will seek to enter into compacts (section 608(d) of the Act; 22 U.S.C. 7707(d)).
This report satisfies item 2 above.
Since MCC was created, it has relied on the World Bank's gross national income (GNI) per capita income data
MCC will continue to use the traditional income categories for eligibility to categorize countries in two groups for purposes of FY 2018 scorecard comparisons:
• LICs are countries with GNI per capita below IDA's historical ceiling for eligibility ($1,905 for FY 2018); and
• LMICs are countries with GNI per capita above IDA's historical ceiling for eligibility but below the World Bank's upper middle income country threshold ($1,906–$3,955 for FY 2018).
The list of countries categorized as LICs and LMICs for the purpose of FY 2018 scorecard assessments can be found below.
• The poorest 75 countries are now considered LICs for the purposes of MCC funding. They are not limited by the 25 percent funding cap on LMICs.
• Countries with a GNI per capita above the poorest 75 but below the World Bank's upper middle income country threshold ($3,955 for FY 2018) are considered LMICs for the purposes of MCC funding. By law, no more than 25 percent of all compact funds for a given fiscal year can be provided to these countries.
The FY 2018 Candidate Country Report lists LICs and LMICs based on this definition and outlines which countries are subject to the 25 percent funding cap.
The following indicators will be used to measure candidate countries' demonstrated commitment to the criteria found in section 607(b) of the Act. The indicators are intended to assess the degree to which the political and economic conditions in a country serve to promote broad-based sustainable economic growth and reduction of poverty and thus provide a sound environment for the use of MCC funds. The indicators are not goals in themselves; rather, they are proxy measures of policies that are linked to broad-based sustainable economic growth. The indicators were selected based on (i) their relationship to economic growth and poverty reduction; (ii) the number of countries they cover; (iii) transparency and availability; and (iv) relative soundness and objectivity. Where possible, the indicators are developed by independent sources.
1. Political Rights: Independent experts rate countries on the prevalence of free and fair electoral processes; political pluralism and participation of all stakeholders; government accountability and transparency; freedom from domination by the military, foreign powers, totalitarian parties, religious hierarchies and economic oligarchies; and the political rights of minority groups, among other things. Pass: Score must be above the minimum score of 17 out of 40. Source: Freedom House
2. Civil Liberties: Independent experts rate countries on freedom of expression and belief; association and organizational rights; rule of law and human rights; and personal autonomy and economic rights, among other things. Pass: Score must be above the minimum score of 25 out of 60. Source: Freedom House
3. Freedom of Information: Measures the legal and practical steps taken by a government to enable or allow information to move freely through society; this includes measures of press freedom, national freedom of information laws, and the extent to which a county is filtering internet content or tools. Pass: Score must be above the median score for the income group. Source: Freedom House/Centre for Law and Democracy.
4. Government Effectiveness: An index of surveys and expert assessments that rate countries on the quality of public service provision; civil servants' competency and independence from political pressures; and the government's ability to plan and implement sound policies, among other things. Pass: Score must be above the median score for the income group. Source: Worldwide Governance Indicators (World Bank/Brookings)
5. Rule of Law: An index of surveys and expert assessments that rate countries on the extent to which the public has confidence in and abides by the rules of society; the incidence and impact of violent and nonviolent crime; the effectiveness, independence, and predictability of the judiciary; the protection of property rights; and the enforceability of contracts, among other things. Pass: Score must be above the median score for the income group. Source: Worldwide Governance Indicators (World Bank/Brookings)
6. Control of Corruption: An index of surveys and expert assessments that rate countries on: “grand corruption” in the political arena; the frequency of petty corruption; the effects of corruption on the business environment; and the tendency of elites to engage in “state capture,” among other things. Pass: Score must be above the median score for the income group. Source: Worldwide Governance Indicators (World Bank/Brookings)
1. Fiscal Policy: General government net lending/borrowing as a percent of gross domestic product (GDP), averaged over a three year period. Net lending/borrowing is calculated as revenue minus total expenditure. The data for this measure comes from the IMF's World Economic Outlook. Pass: Score must be above the median score for the income group. Source: The International Monetary Fund's World Economic Outlook Database
2. Inflation: The most recent average annual change in consumer prices. Pass: Score must be 15% or less. Source: The International Monetary Fund's World Economic Outlook Database
3. Regulatory Quality: An index of surveys and expert assessments that rate countries on the burden of regulations on business; price controls; the government's role in the economy; and
4. Trade Policy: A measure of a country's openness to international trade based on weighted average tariff rates and non-tariff barriers to trade. Pass: Score must be above the median score for the income group. Source: The Heritage Foundation
5. Gender in the Economy: An index that measures the extent to which laws provide men and women equal capacity to generate income or participate in the economy, including factors such as the capacity to access institutions, get a job, register a business, sign a contract, open a bank account, choose where to live, and to travel freely. Pass: Score must be above the median score for the income group. Source: International Finance Corporation
a. Due to an expansion in the number of areas examined by the indicator institution since this indicator's conception in FY 2012, from FY 2019 the Gender in the Economy indicator will be expanded, and incorporate new areas such as property rights protections, protections against domestic violence, and child marriage (among others). Expanded details regarding these changes are provided in the annual Guide to the Indicators and Selection Process, and annual Data Notes, available on MCC's website.
b. To phase in this new construction of the indicator, the original version of the indicator will be used on the FY 2018 scorecards. However, an appendix to the scorecards will be published that will show how countries would perform under the new construction of the indicator. From FY 2019, the new construction of the indicator will then fully replace the current version on the scorecard.
6. Land Rights and Access: An index that rates countries on the extent to which the institutional, legal, and market framework provide secure land tenure and equitable access to land in rural areas and the time and cost of property registration in urban and peri-urban areas. Pass: Score must be above the median score for the income group. Source: The International Fund for Agricultural Development and the International Finance Corporation
7. Access to Credit: An index that rates countries on rules and practices affecting the coverage, scope, and accessibility of credit information available through either a public credit registry or a private credit bureau; as well as legal rights in collateral laws and bankruptcy laws. Pass: Score must be above the median score for the income group. Source: International Finance Corporation
8. Business Start-Up: An index that rates countries on the time and cost of complying with all procedures officially required for an entrepreneur to start up and formally operate an industrial or commercial business. Pass: Score must be above the median score for the income group. Source: International Finance Corporation
1. Public Expenditure on Health: Total expenditures on health by government at all levels divided by GDP. Pass: Score must be above the median score for the income group. Source: The World Health Organization
2. Total Public Expenditure on Primary Education: Total expenditures on primary education by government at all levels divided by GDP. Pass: Score must be above the median score for the income group. Source: The United Nations Educational, Scientific and Cultural Organization and National Governments
3. Natural Resource Protection: Assesses whether countries are protecting up to 17 percent of all their biomes (e.g., deserts, tropical rainforests, grasslands, savannas and tundra). Pass: Score must be above the median score for the income group. Source: The Center for International Earth Science Information Network and the Yale Center for Environmental Law and Policy
4. Immunization Rates: The average of DPT3 and measles immunization coverage rates for the most recent year available. Pass: Score must be above the median score for LICs, and 90% or higher for LMICs. Source: The World Health Organization and the United Nations Children's Fund
5. Girls Education:
a. Girls' Primary Completion Rate: The number of female students enrolled in the last grade of primary education minus repeaters divided by the population in the relevant age cohort (gross intake ratio in the last grade of primary). LICs are assessed on this indicator. Pass: Score must be above the median score for the income group. Source: United Nations Educational, Scientific and Cultural Organization
b. Girls Secondary Enrollment Education: The number of female pupils enrolled in lower secondary school, regardless of age, expressed as a percentage of the population of females in the theoretical age group for lower secondary education. LMICs are assessed on this indicator instead of Girls Primary Completion Rates. Pass: Score must be above the median score for the income group. Source: United Nations Educational, Scientific and Cultural Organization
6. Child Health: An index made up of three indicators: (i) access to improved water, (ii) access to improved sanitation, and (iii) child (ages 1–4) mortality. Pass: Score must be above the median score for the income group. Source: The Center for International Earth Science Information Network and the Yale Center for Environmental Law and Policy
Within each policy category, the Act sets out a number of specific selection criteria. A set of objective and quantifiable policy indicators is used to inform eligibility decisions for assistance and to measure the relative performance by candidate countries against these criteria. The Board's approach to determining eligibility ensures that performance against each of these criteria is assessed by at least one of the objective indicators. Most are addressed by multiple indicators. The specific indicators appear in parentheses next to the corresponding criterion set out in the Act.
Section 607(b)(1): Just and democratic governance, including a demonstrated commitment to—
(A) promote political pluralism, equality and the rule of law (Political Rights, Civil Liberties, Rule of Law, and Gender in the Economy);
(B) respect human and civil rights, including the rights of people with disabilities (Political Rights, Civil Liberties, and Freedom of Information);
(C) protect private property rights (Civil Liberties, Regulatory Quality, Rule of Law, and Land Rights and Access);
(D) encourage transparency and accountability of government (Political Rights, Civil Liberties, Freedom of Information, Control of Corruption, Rule of Law, and Government Effectiveness); and
(E) combat corruption (Political Rights, Civil Liberties, Rule of Law, Freedom of Information, and Control of Corruption);
Section 607(b)(2): Economic freedom, including a demonstrated commitment to economic policies that—
(A) encourage citizens and firms to participate in global trade and international capital markets (Fiscal Policy, Inflation, Trade Policy, and Regulatory Quality);
(B) promote private sector growth (Inflation, Business Start-Up, Fiscal Policy, Land Rights and Access, Access
(C) strengthen market forces in the economy (Fiscal Policy, Inflation, Trade Policy, Business Start-Up, Land Rights and Access, Access to Credit, and Regulatory Quality); and
(D) respect worker rights, including the right to form labor unions (Civil Liberties and Gender in the Economy); and
Section 607(b)(3): Investments in the people of such country, particularly women and children, including programs that—
(A) promote broad-based primary education (Girls' Primary Completion Rate, Girls' Secondary Education Enrollment Rate, and Total Public Expenditure on Primary Education);
(B) strengthen and build capacity to provide quality public health and reduce child mortality (Immunization Rates, Public Expenditure on Health, and Child Health); and
(C) promote the protection of biodiversity and the transparent and sustainable management and use of natural resources (Natural Resource Protection).
MCC reporting and data in the following chart are used to assess compact performance of MCC partners nearing the end of compact implementation (i.e., within 18-months of compact end date). Some reporting used for assessment may contain sensitive information and adversely affect implementation or MCC-partner country relations. This information is for MCC's internal use and is not made public. However, key implementation information is summarized in compact status and results reports that are published quarterly on MCC's website under MCC country programs (
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 Ad Hoc Big Data Task Force (BDTF). This task force reports to the NASA Advisory Council's Science Committee. The meeting will be held for the purpose of soliciting and discussing, from the scientific community and other persons, scientific and technical information relevant to big data.
Wednesday, November 1, 2017, 8:30 a.m.–5:00 p.m.; Thursday, November 2, 2017, 8:30 a.m.–5:00 p.m.; and Friday, November 3, 2017, 8:30 a.m.–5:00 p.m., Local Time.
Jet Propulsion Laboratory (JPL), Theodore von Kármán Auditorium, 4800 Oak Grove Drive, Pasadena, CA 91011.
Ms. KarShelia Henderson, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–2355, fax (202) 358–2779, or
The meeting will be open to the public up to the capacity of the room. The meeting will also be available telephonically and by WebEx. You must use a touch tone phone to participate in this meeting. Any interested person may dial the USA toll free conference call number 888–324–9653, or toll number 1–312–470–7273, passcode 3883300, to participate in this meeting by telephone for all three days. The WebEx link is
Attendees will be requested to sign a register and to comply with JPL security requirements. It is imperative that the meeting be held on these dates to the scheduling priorities of the key participants.
National Credit Union Administration (NCUA).
Notice and request for comment.
The NCUA Board (Board) is requesting comment on its 2018–2022 Draft Strategic Plan. The NCUA 2018–2022 Draft Strategic Plan summarizes our analysis of the internal and external environment impacting NCUA; evaluates NCUA programs and risks; and provides goals and objectives for the next five years. While the Board welcomes all comments from the public and stakeholders, it specifically invites comments and input on the proposed goals and objectives of the strategic plan.
Comments must be received on or before December 4, 2017 to be assured of consideration.
You may submit comments by any of the following methods (Please send comments by one method only):
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Melissa Lowden, Management Analyst, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314–3428 or telephone: (703) 518–1182.
5 U.S.C. 306.
The Government Performance and Results Act of 1993 (GPRA) requires agencies to prepare strategic plans, annual performance plans and annual performance reports with measurable performance indicators to address the policy, budgeting and oversight needs of both Congress and agency leaders, partners/stakeholders, and program managers. In 2010, Congress passed the GPRA Modernization Act of 2010, which further requires a leadership-driven governance model with emphasis on quarterly reviews and transparency. The GPRA Modernization Act requires agencies to set priority goals linked to longer-term Agency strategic goals. Part 6 of Office of Management and Budget (OMB) Circular A–11 provides additional guidance and requirements for federal agencies to implement these laws. The NCUA Draft Strategic Plan 2018–2022 is issued pursuant to the GPRA, the GPRA Modernization Act, and OMB Circular A–11.
The NCUA 2018–2022 Draft Strategic Plan outlines how the agency will continue to effectively supervise and insure a growing and evolving credit union system. As the financial services and the credit union sector evolve, NCUA must adjust to meet the challenges the changes provide. In response, we are adopting new technology and analytical tools to improve the agency's offsite monitoring capabilities. Additionally, we are recalibrating our examination approach to reflect a more stable economic environment. We also are revising the agency's operations, priorities and structure to ensure our objectives match those prescribed in the Federal Credit Union Act, while at the same time efficiently using the agency's resources.
In the years ahead, NCUA also plans to advance meaningful regulatory relief by fully reevaluating our rules and working to modify them as appropriate, improving the uniformity of
By publishing the proposed NCUA 2018–2022 Strategic Plan in the
The NCUA 2018–2022 Draft Strategic Plan is available at the following Web address:
National Credit Union Administration (NCUA).
Final notice.
In July 2017, the NCUA Board (Board) sought comments on its plan to close the Temporary Corporate Credit Union Stabilization Fund (Stabilization Fund) in 2017, prior to its scheduled closing date in June 2021, and raise the normal operating level of the National Credit Union Share Insurance Fund (Insurance Fund) to 1.39 percent. This final notice provides a discussion of comments received and explains the Board's decision to close the Stabilization Fund in 2017. This notice also explains the Board's decision to set the normal operating level of the Insurance Fund to 1.39 percent.
Anthony Cappetta, Supervisory Financial Analyst, Amanda Parkhill, Loss/Risk Analysis Officer, or Kevin Tuininga, Senior Staff Attorney, at 1775 Duke Street, Alexandria, VA 22314, or telephone: (703) 518–1592.
On July 20, 2017, the Board approved a Notice and Request for Comment (July 2017 Notice) requesting comments on its plan to close the Stabilization Fund in 2017 and set the normal operating level at 1.39 percent. The notice appeared in the
• Close the Stabilization Fund in 2017, close it at some future date, or wait until it is currently scheduled to close in 2021.
• Set the normal operating level based on the Insurance Fund's ability to withstand a moderate recession without requiring assessments over a five-year period.
• Set the normal operating level based on the Insurance Fund's ability to withstand a severe recession without requiring assessments over a five-year period.
• Base the approach to setting the normal operating level on preventing the equity ratio from declining below 1.20 percent, or some other higher minimum level.
The Board requested comments by September 5, 2017, which would allow the Board sufficient time to permit closing before the end of 2017 and establish a distribution method to insured credit unions to the extent the closure caused the Insurance Fund's equity ratio to exceed its normal operating level, as of the end of 2017. In a separate but related proposal, also adopted on July 20, 2017, the Board requested comments on its regulation governing equity distributions from the Insurance Fund.
Public Law 111–22, the
The Act specifies that the Stabilization Fund will terminate 90 days after the seven-year anniversary of its first borrowing from the U.S. Treasury.
Unlike in 2009, the Insurance Fund's $13.2 billion now exceeds both the corporate credit union Legacy Asset balance and NGN balance (as of June 30, 2017). Due primarily to the nearly $4 billion in net legal recoveries, the Stabilization Fund has a positive net position of approximately $2.0 billion as of June 2017. Additionally, there are no outstanding U.S. Treasury borrowings. Closing the Stabilization Fund in 2017 will, barring the unexpected, result in an equity distribution to insured credit unions in 2018, putting funds to work in the credit union system prior to its current scheduled closure in 2021.
When contemplating closing the Stabilization Fund, the Board also had to consider whether a normal operating level of 1.30 percent would be sufficient to cover all of the Insurance Fund's resulting exposures. To determine this, the NCUA modeled the losses that would be expected under a moderate and a severe recession.
• Impact on the equity ratio of the estimated decline in the value of the Insurance Fund's claims on the liquidated corporate credit unions' asset management estates—which would be driven by a reduction in the value of the Legacy Assets.
• Performance of the Insurance Fund based on the three primary factors that currently affect the Insurance Fund's equity ratio: Insured share growth, yield on investments, and insurance losses.
The Insurance Fund was modeled over a five-year period and the Legacy Assets were modeled over their remaining life.
Based on this modeling, to withstand a moderate recession without the equity ratio falling below the statutory minimum of 1.20 percent,
• A 13-basis-point decline in the equity ratio due to the impact on the three primary drivers of the Insurance Fund's performance.
• A 4-basis-point decline in the value of the Insurance Fund's claim on the corporate credit union asset management estates.
• A 2-basis-point decline in the equity ratio expected to occur prior to when the remaining NGNs begin to mature in 2020 and remaining exposure to the Legacy Assets can begin to be reduced. This helps ensure the 4 basis points of additional equity to account for the potential decline in value of the claims on the asset management estates is maintained in the Insurance Fund until Legacy Assets can be sold.
Therefore, the Board proposed setting the normal operating level at 1.39 percent.
The Board received 663 comment letters on its notice proposing to close the Stabilization Fund in 2017 and increase the Insurance Fund's normal operating level to 1.39 percent. Commenters included representatives of three national credit union trade associations; 15 credit union leagues or regional trade associations; 244 federal credit unions; 268 federally insured, state-chartered credit unions; and 133 individuals and organizations, including credit union service organizations. The majority of commenters expressly supported or did not oppose closing the Stabilization Fund in 2017 and expressly opposed increasing the Insurance Fund's normal operating level or advocated a “full rebate” of Stabilization Fund equity. A more detailed discussion of the comments follows.
Approximately 170 commenters expressly supported the Board's proposal to close the Stabilization Fund in 2017. An additional two-thirds of all commenters omitted an express opinion on whether to close the Stabilization Fund in 2017 and instead voiced more definite opinions on the Insurance Fund's normal operating level. Many commenters that did not make a statement supporting closure in 2017 nevertheless urged a near-term distribution of funds, indicating or implying either that they (a) did not oppose closing the Stabilization Fund in 2017 or (b) believed the Board could make a distribution to credit unions directly from the Stabilization Fund.
Supportive commenters generally expressed that closing the Stabilization Fund before 2021 would provide an earlier opportunity to expand business and increase the financial security of credit unions, particularly smaller credit unions. Multiple commenters also noted that closure would reduce the NCUA's costs for maintaining multiple funds.
As noted above, some commenters supporting closure in 2017, along with a few others that opposed closure, also suggested that the NCUA could make distributions to the Insurance Fund or to credit unions directly from the Stabilization Fund without closing it. Under one commenter's analysis, the NCUA would receive deference in making such distributions under the Supreme Court case
A number of commenters supporting closing the Stabilization Fund in 2017 hedged their support if (a) closure was combined with an increase to the Insurance Fund's normal operating level or (b) Stabilization Fund money could not be accounted for separately after its closure. Many of these commenters believed Stabilization Fund equity should not be available to permanently increase the Insurance Fund's equity ratio (whether or not the normal operating level was increased) or for insurance losses related to natural person credit unions. These commenters stated it would be inappropriate to “repurpose” or “divert” Stabilization Fund equity for uses beyond losses related to the liquidated corporate credit unions. A common comment was that the Board should maintain separate operations for resolution of the corporate credit union estates after closing the Stabilization Fund and maintain income and equity attributable to the Stabilization Fund in a separate account payable to credit unions.
A number of commenters were concerned the Stabilization Fund's closure would affect the total distributions available to insured credit unions once the corporate credit union asset management estates were resolved. Many of these commenters were also concerned closure would affect the allocation of funds between credit unions that paid Stabilization Fund assessments and credit unions that hold certificates of claim against the asset
One commenter argued that the NCUA should treat the corporate asset management estates collectively for purposes of paying claims against the estates under 12 CFR 709.5(b), governing priority of claims. This commenter observed that a collective approach would maximize reimbursements to the Stabilization Fund before any payments to capital holders of the corporate credit unions could occur. This commenter believed the Board had treated the asset management estates collectively by pooling their assets in NGN trusts and then departed from collective treatment with respect to payment of claims under § 709.5(b). This commenter recommended a new regulation providing that the corporate credit union asset management estates would be treated as one pool of assets for purposes of distributions under § 709.5(b).
Slightly under 30 commenters firmly opposed closing the Stabilization Fund in 2017. Many of these commenters were concerned that closing the Stabilization Fund, which would result in consolidation, would cause less than full transparency regarding Insurance Fund distributions to credit unions and payments to former capital holders of the liquidated corporate credit unions. One commenter voiced concern about volatility in the Insurance Fund's equity ratio and complications related to multiple small distributions.
Just under 60 commenters supported or indicated some level of acceptance of an increase to the Insurance Fund's normal operating level, provided the increase was temporary. About one dozen of these commenters supported or appeared to accept an increase to 1.39 percent. One commenter advocated a permanent increase to 1.50 percent. An additional three dozen commenters supported a temporary increase to 1.34 percent to cover exposure to Legacy Assets. Three more commenters suggested an increase to 1.35 percent, while another seven commenters indicated some level of support for a temporary increase without specifying their preferred threshold. These commenters nearly universally advocated that any increase from 1.30 percent be temporary. Many commenters urged the Board to set a defined schedule or express specific intent to move the normal operating level back to 1.30 percent as exposure to Legacy Assets decreases. One commenter who advocated the Board set the normal operating level at 1.50 percent urged the NCUA to approach Congress for further authorities that would permit the Insurance Fund's equity ratio to reach 2.0 percent, similar to the Deposit Insurance Fund for banks.
One commenter supported a temporary increase of the Insurance Fund's equity ratio to 1.30 percent but only for so long as exposure to Legacy Assets remained. This commenter stated that all equity related to the Stabilization Fund should be distributed once Legacy Asset exposure subsided, including funds needed to increase the Insurance Fund's equity ratio to 1.30 percent. Thus, this commenter implied the Board should decrease the normal operating level below 1.30 percent to meet the equity ratio at the time of the Stabilization Fund's closure to permit distribution of all equity received from the Stabilization Fund.
Around 55 percent of all commenters expressly opposed any increase to the normal operating level. However, around 90 additional commenters urged a “full rebate” of Stabilization Fund equity, implying they also opposed any increase to the normal operating level that would decrease a distribution in 2018 or beyond. Many of these commenters contended no increase could be justified because a normal operating level of 1.30 percent had been sufficient to withstand the financial crisis. A large number of these commenters (as well as some that supported an increase) were concerned the Board would never again decrease the normal operating level if it increased it in 2017. Many commenters that opposed any increase to the normal operating level urged that, if the Board did increase it, the increase should sunset after one year and the Board should then substantiate any extension of a normal operating level above 1.30 percent. Some of these commenters suggested increasing the normal operating level would erode the NCUA's motivations to control its operating expenses and that the NCUA's operating budget and the overhead transfer rate had consumed most Insurance Fund investment returns in recent years. A common thread in the comments was that failure to return all Stabilization Fund equity would be contrary to prior assurances and promises from the Board.
Commenters opposing an increase often supported their position by noting that funds would be more productive and earn higher returns in the hands of credit unions than in the Insurance Fund. Many of these commenters acknowledged that near-term Insurance Fund assessments could be required and that this was an acceptable outcome. One commenter stated that 1.39 percent seemed arbitrary because the Insurance Fund would not have withstood the financial crisis even if its equity ratio had been at that level before the crisis began.
Numerous commenters noted the Insurance Fund's audit reports from December 2016 determined that an equity ratio of 1.24 percent was sufficient to cover all contingencies. With respect to the Stabilization Fund, these commenters cited the December 2016 audit report that stated “there were no probable losses for the guarantee of NGN's associated with the re-securitization transactions.” These commenters argued the NCUA could therefore not, only nine months later, justify an increase to the normal operating level based on exposure to the Legacy Assets or for potential losses related to natural person credit unions.
Some commenters contended an increase to the normal operating level would be akin to credit unions over-reserving for loan losses, a practice NCUA examiners generally advise against. They noted the strength of the credit union industry, the recent strengthening of the NCUA's regulations related to capital, and more stringent supervisory tests as additional firewalls that reduced the need for an increase to the normal operating level. These commenters often pointed to loss estimates related to the Legacy Assets as a basis to doubt the NCUA's projections of the Insurance Fund's performance.
One commenter that characterized the Board's proposed closure of the Stabilization Fund as a “cash grab” alleged resulting distributions were an attempt to distract credit unions as the agency “hoards money for itself.” According to this commenter, the NCUA intended to “raid” Stabilization Fund assets as an end-run around FCU Act restrictions that preclude assessments increasing the Insurance Fund's equity ratio above 1.30 percent. A few commenters contended using Stabilization Fund equity to increase the Insurance Fund's normal operating level above 1.30 percent was illegal because it was the equivalent of an assessment that the Act would not otherwise permit. Some commenters also expressed the sentiment that it would be improper to improve the Insurance
Most commenters did not directly address whether they supported the NCUA lengthening the forecast horizon for Insurance Fund performance from two years to five years. Some that did address this opposed lengthening the forecast horizon because they believed a five-year horizon was significantly longer than the typical length of a recession. They also argued the NCUA had sufficient tools to manage the Insurance Fund, such as levying assessments, implementing a restoration plan, decreasing operating budgets, and altering investment strategies, without lengthening the forecast period.
A number of commenters noted improved transparency in NCUA operations. But many commenters were also concerned closure of the Stabilization Fund and the distribution of its assets to the Insurance Fund would decrease transparency. A few commenters specifically requested more transparency on the Board's administration of the corporate credit union asset management estates.
A significant number of commenters attributed downward trends in the Insurance Fund's equity ratio to the cost of the NCUA's operations, recent increases in the NCUA's operating budget, and excessive Insurance Fund loss reserves. Many commenters also expressed a preference that the Board consider an increase to the Insurance Fund's normal operating level in a proposal completely separate from any related to closing the Stabilization Fund. Some of these commenters alleged an improper motive, or “sleight of hand,” in considering the proposals together.
Multiple commenters stated no-near term Insurance Fund premiums would be required even if the Stabilization Fund was not closed in 2017. These commenters stated that models showed no circumstances where the Insurance Fund's equity ratio would fall below 1.20 percent within the next two to four years. On the other hand, one commenter was concerned about the loss of contingency funding after closure of the Stabilization Fund. This commenter recommended that the NCUA review its Central Liquidity Facility authorities and regulations with an eye toward improving contingency funding sources.
A material number of commenters, generally through variations of a form letter, stated that the “proposed method for closing the [Stabilization Fund] does nothing to address the excessive $1B charged since its creation to the [asset management estates] by the NCUA.” Many commenters also submitted form letters stating that, if the NCUA did not distribute the maximum amount, it would be “dooming us to fail and claiming the hard won reserves our members have saved.” Multiple commenters also argued that an increase to the Insurance Fund's equity ratio through an adjustment to the normal operating level was not warranted for Legacy Asset exposure because the distribution of Stabilization Fund equity to the Insurance Fund would cover such exposure. A few commenters requested or suggested more time to review and respond to the Board's proposal or lamented that they did not have more time to review and respond. One commenter proposed putting off the proposal until 2018 to permit more time for review.
Many commenters had an inaccurate understanding of one or more of the following: (a) The law governing credit union liquidations; (b) the difference between distributions from the Insurance Fund to insured credit unions and distributions to claimants from asset management estates; (c) whether the timing of the Stabilization Fund's closure could affect overall distributions to either insured credit unions or former capital holders of the corporate credit unions; (d) the interaction of the Insurance Fund's equity ratio and its normal operating level; and (e) how the 1.30 percent equity ratio and normal operating level survived the financial crisis without immediate and heavy assessments. Almost fifty commenters advocated or mentioned a particular distribution method under the Board's separate proposal to amend 12 CFR 741.4.
The Board considered all of the comments and provides responses below to the salient arguments and concerns commenters raised.
In response to commenters that suggested the NCUA could make distributions to the Insurance Fund or to credit unions directly from the Stabilization Fund without closing it, the Board continues to see no legal basis for discretionary, non-closure distributions. This is true for either direct distributions to credit unions or non-closure distributions to the Insurance Fund. Commenters that urged non-closure distributions argued the NCUA would receive deference on its interpretation because the Act's silence on the subject creates ambiguity. However, these arguments are based on flawed legal, factual, and policy assumptions, which even substantial deference may not support.
First, the Stabilization Fund is not silent on distribution authority. The legislation expressly references distributions, but only in relation to two circumstances. One, the legislation expressly prohibits an otherwise required end-of-year distribution from the Insurance Fund to insured credit unions if the Stabilization Fund has an outstanding advance from the Treasury. And, two, the legislation requires a distribution of all funds and property in the Stabilization Fund when the Board closes the Fund. Nowhere does the legislation discuss optional, non-closure distributions to the Insurance Fund (or to credit unions directly) prior to the Stabilization Fund's closure. Instead, as the Board noted in the July 2017 Notice, the legislation makes direct and express reference to particular Insurance Fund authorities that also apply to the Stabilization Fund (insurance payments, special assistance payments, and administrative or other Title II expenses). These direct and express references exclude the authorities the Act provides with respect to equity distributions to insured credit unions from the Insurance Fund.
Second, the Act requires that, before the Board authorizes any non-closure payment from the Stabilization Fund, it must “certify that, absent the existence of the Stabilization Fund, the Board would have made the identical payment out of the [Insurance Fund].” The Board must report these certifications to specified congressional committees. Especially with respect to a non-closure distribution to the Insurance Fund (as at least one commenter now urges), it is unclear how the Board would certify that the Insurance Fund could have made such a payment to itself. These provisions make it unwise to assume a court (or Congress) would approve of an interpretation that the NCUA can distribute funds between the Stabilization Funs and Insurance Fund outside of the circumstances described in the Act.
Third, contrary to what one of the principal proponents of non-closure distributions from the Stabilization Fund contends, the Insurance Fund is not “owed a refund from the Stabilization Fund as a result of conserved and liquidated corporate credit unions.” Other than the $1 billion capital note issued to U.S. Central Federal Credit Union, no material expenses related to the conserved and liquidated corporate credit unions were
Finally, the Board is skeptical Congress would approve of discretionary, non-closure distributions to credit unions or to the Insurance Fund because the Stabilization Fund has, at the Board's request, unhindered access to $6 billion in general tax revenues from the U.S. Treasury. Nothing in the Stabilization Fund legislation informs when or how non-closure general distributions would or could take place. Although the Insurance Fund shares the same U.S. Treasury borrowing authority, the Act imposes multiple timing, amount, and circumstance limitations with respect to its equity distributions. The Board believes a loose interpretation with respect to non-closure Stabilization Fund distributions poses a high risk that such distributions would be viewed unfavorably, with potential adverse consequences.
A few commenters also argued the NCUA could make distributions directly from the Stabilization Fund to former capital holders of the corporate credit union asset management estates. This is not the case, however, because former capital holders have claims against the asset management estates, not against the Stabilization Fund or the Insurance Fund.
A common comment was that the Board should maintain income and equity attributable to the Stabilization Fund in a separate account payable to credit unions and maintain separate operations for resolution of the corporate credit union estates after closing the Stabilization Fund. The Board assures commenters that corporate credit union asset management estates will continue to be administered as distinct entities, as the Act requires. However, the Board sees no basis on which it can maintain separate accounts for equity distributed from what was the Stabilization Fund to the Insurance Fund once the Stabilization Fund is closed.
Under the Act, all capital within the Insurance Fund contributes equally to its equity ratio if it is not a “direct liabilit[y] of the Fund or contingent liabilit[y] for which no provision for losses has been made.”
In response to commenters concerned that consolidation of the funds would cause less than full transparency regarding Insurance Fund distributions to credit unions and payments to former capital holders of the liquidated corporate credit unions, the Board reiterates that is not the case.
As the Board noted in the July 2017 Notice, closing the Stabilization Fund will not change the accounting or reporting of the corporate credit union asset management estates. Each asset management estate is, and will always be, a separate legal entity and no claims against those estates will be affected by the closing. Additionally, corporate credit union asset management estates will be reported separately from natural person credit union asset management estates. The post-closure financial statements and note disclosures for the Insurance Fund will continue to provide the same level of detail about the Insurance Fund's receivables from the corporate assets management estates and related fiduciary activities. Regularly updated information on the NCUA's Web site for the NGNs, Legacy Assets, and asset management estates will continue to be provided after closure of the Stabilization Fund.
As for the transparency related to Insurance Fund distributions, the Board has taken recent actions to increase transparency of the distribution process. Any resulting Insurance Fund distributions would be conducted in accordance with the Act and Part 741 of the NCUA's regulations. Interested stakeholders were provided an opportunity to comment on the proposed method for distributing equity from the Insurance Fund to insured credit unions in a Notice of Proposed Rulemaking approved by the Board in July 2017.
Some commenters were concerned the Stabilization Fund's closure would affect the total distributions available to insured credit unions once the corporate credit union asset management estates were resolved, or the allocation of funds between credit unions that paid Stabilization Fund assessments and credit unions that hold certificates of claim against the asset management estates related to corporate credit union capital investments. However, these concerns are similarly unfounded.
Assuming all other potential equity ratio influences remain static, the Stabilization Fund's early closure will have no impact on the total distributions insured credit unions will receive once all corporate credit union legacy assets are resolved. This is because the amount of total receivables the Stabilization Fund holds against the asset management estates, which affects the amount that will eventually be distributed to credit unions depending on future performance of the Legacy
Instead of affecting total distribution amounts, early closure means credit unions will see a portion of total distributions sooner than they would if the Board continued to hold equity in the Stabilization Fund. If the Board continues to hold equity in the Stabilization Fund, credit unions are more likely to see fewer but individually larger distributions after the Stabilization Fund is closed at some future date, Aggregate distributions will not change, however, based on when the Stabilization Fund is closed. Also, if the Stabilization Fund is not closed in 2017, credit unions may be subject to an Insurance Fund premium in the near future to maintain the equity ratio at a prudent level.
Although closure has no isolated impact on total distributions credit unions will eventually receive, future distribution amounts could change based on other factors, including but not limited to (a) greater than or less than expected losses to the Insurance Fund; (b) worse-than or better-than-expected Legacy Asset performance (which, along with legal recoveries, are the principal source for reimbursing Stabilization Fund claims against the asset management estates); (c) worse-than or better-than-expected investment returns; (d) insured share growth that is lower or higher than expected; or (e) changes to the Insurance Fund's normal operating level. Each of these factors, however, is independent of the Stabilization Fund's closure.
Although one commenter argued the NCUA should treat the corporate asset management estates collectively for purposes of paying claims against the estates under 12 CFR 709.5(b), governing priority of claims, this approach would not be consistent with the applicable statutory and regulatory provisions. Under the Act, the Board as liquidating agent must “pay all valid obligations of [a liquidated credit union] in accordance with the prescriptions and limitations of [the Act].”
Further, the commenter that raised this prospect is incorrect in stating that the Board already treated the five asset management estates as one entity for purposes of the NGN re-securitizations. On the contrary, consistent with the authority cited above, the Board initially accounted for and continues to account for each asset management estate on an individual basis throughout the NGN transactions. This includes tracking the ongoing performance of each security that each asset management estate contributed. It also includes, for any guaranty obligations that accrue, allocating the liability for reimbursement to particular estates based on the performance of the assets they contributed.
In line with this allocation practice, the legal documents related to each transaction, including owner trust certificates that represent a claim to residual assets, reflect the separate contributions of each asset management estate. Similarly, the Board, as liquidating agent, has allocated amounts from legal recoveries to individual asset management estates based on their ownership of securities to which the recovery relates. This process is described in more detail on the NCUA's Web site and reflects the Board's position that each asset management estate is, and should be, treated as a distinct legal entity.
In response to the commenter that characterized the NCUA's proposed closure of the Stabilization Fund as a “cash grab,” the Board reaffirms its position that the agency should maintain a resilient Insurance Fund for the mutual benefit of the credit union community and taxpayers. It is also important for the NCUA to avoid or minimize Insurance Fund premiums, especially during times of economic stress, to keep money at work in the credit union community when it is needed most.
To that end, as outlined in the July 2017 Notice, the Board's main objectives in setting the normal operating level are as follows:
• Retain public confidence in federal share insurance;
• Prevent impairment of the one percent contributed capital deposit; and
• Ensure the Insurance Fund can withstand a moderate recession without the equity ratio declining below 1.20 percent over a five-year period.
Therefore, the Board has set the normal operating level at 1.39 percent to account for:
• A 13-basis-point decline in the equity ratio due to the impact of the three primary drivers of the Insurance Fund's performance;
• A 4-basis-point decline in the value of the Insurance Fund's claims on the corporate credit union asset management estates; and
• A 2-basis-point decline in the equity ratio expected to occur prior to when the remaining NGNs begin to mature in 2020 and remaining exposure to the Legacy Assets can begin to be reduced. This helps ensure the 4 basis points of additional equity to account for the potential decline in value of the claims on the asset management estates is maintained in the Insurance Fund until Legacy Assets can be sold.
Multiple commenters alleged it would be illegal for the NCUA to increase the Insurance Fund's equity ratio above 1.30 percent as a result of equity now held in the Stabilization Fund. This argument leads to potentially two flawed conclusions: (1) The Board must choose between closing the Stabilization Fund and increasing the normal
With respect to closing the Stabilization Fund, the Act requires the Board to contemporaneously distribute Stabilization Fund assets to the Insurance Fund. This distribution requirement does not vary based on the effect it will have on the Insurance Fund's equity ratio. The Board thinks it unlikely a court would find it illegal for the Board to do what the Act unambiguously requires. Further, the Stabilization Fund assessments were legal at the time they were assessed, and the Board sees no means by which they would become illegal in 2017 as a result of a mandatory distribution to the Insurance Fund at the Stabilization Fund's closure.
With respect to the normal operating level, under the Act, the Board can designate the ratio at a level it deems appropriate at any time, from a minimum of 1.20 percent to a maximum of 1.50 percent. The Board's discretion to designate the normal operating level within that range is not limited (a) based on the source of funds that could increase the equity ratio above 1.30 percent or (b) by the NCUA's assessment authority. While the Board cannot impose an Insurance Fund assessment once the equity ratio is at or above 1.30 percent, the Board sees no reasonable argument that the equity the Stabilization Fund would distribute to the Insurance Fund is from (or becomes) an Insurance Fund assessment at the Stabilization Fund's closure.
Finally, these commenters' argument rests on an incorrect factual assumption: That equity presently in the Stabilization Fund is solely attributable to Stabilization Fund assessments as opposed to cash collected from receivables from the asset management estates. In fact, increases in the value of the receivables from the asset management estates (from legal recoveries and improvements in the value of the Legacy Assets) have contributed significantly to the Stabilization Fund's net position. The NCUA was unable to fully repay Stabilization Fund borrowings from the assessments that had been paid by insured credit unions, which were last charged in 2013. Since that time, the Stabilization Fund has collected approximately $3 billion from the asset management estates, principally funded from legal recoveries and asset sales. These funds enabled the NCUA to fully repay the U.S. Treasury in October 2016, and account for the Stabilization Fund's current cash position. As such, there is a compelling argument that equity in the Stabilization Fund as of 2017 consists of asset management estate receivables, not assessments.
For the same reasons, no additional amounts the Insurance Fund will continue to collect before the end of 2017 and that could contribute to increasing the Insurance Fund's equity ratio above 1.30 percent after 2017 (and result in additional distributions) will be attributable to assessments. Although prior assessments make present-day receivables available as equity for distribution to the Insurance Fund when the Stabilization Fund closes, whether the Board should raise the normal operating level in connection with the Fund's closure is a policy determination. There are no legal provisions that preclude the proposed increase in the Insurance Fund's normal operating level.
The Board understands commenters' concern that it is improper to improve the Insurance Fund's equity position using dollars from credit unions that paid Stabilization Fund assessments in the abstract, but believes it is factually unpersuasive. Under the Act, the group of credit unions required to pay a premium to the Insurance Fund or to the Stabilization Fund is identical.
Finally, as a practical matter, there were only 21 credit unions that were chartered or that converted to federal insurance since the Stabilization Fund was created in 2009. Of these 21 credit unions, 17 filed a call report in the second quarter of 2017. These credit unions represent only 0.13 percent of total insured shares in the second quarter of 2017. Further, since joining the Insurance Fund, these credit unions have been subject to potential premiums, despite not existing at the time of corporate credit union losses.
As such, there is no strong legal or equitable basis to view Stabilization Fund equity, regardless of whether one considers it due to assessments or asset management estate receivables, as different from Insurance Fund equity. In addition, the Insurance Fund distributed funds to the Stabilization Fund in 2011, 2012, and 2013, in amounts of $278.6 million, $88.1 million, and $95.3 million, respectively, because the Act precluded Insurance Fund distributions to credit unions given then-outstanding borrowings from the U.S. Treasury. Efforts to distinguish the equity of the two funds on this basis do not hold up.
In response to commenters that urge a “full rebate” and those that believe failure to return all Stabilization Fund equity would be contrary to prior promises from the Board, the Board believes its plan to close the Stabilization Fund in 2017 and provide distributions to credit unions out of the Insurance Fund is consistent with information historically provided to stakeholders. Until 2013, when the projected assessment range became negative, the Board did not estimate that funds would be available to return to credit unions. Primarily due to the impact of legal recoveries, the agency started projecting negative assessments in 2013.
Consistent with information routinely published on the NCUA's Web site and presentations given at Board meetings, the projected negative assessment range was disclosed as subject to change. At no time has the projected negative assessment range included estimates sufficient to repay all assessments or a specified amount of former capital holders' claims. As the NCUA has repeatedly stated, the Wescorp asset management estate is not projected to ever be able to repay the Stabilization Fund (or Insurance Fund after closure). Therefore, it is unlikely a “full rebate” of Stabilization Fund assessments will ever be possible, consistent with previous statements from the NCUA regarding the potential for
Therefore, the Board assumes that commenters are using the term “full rebate” to refer to a rebate of the entire amount of equity currently in the Stabilization Fund, rather than a rebate of all assessments ever paid into the Stabilization Fund. As noted in the July 2017 Notice, the Board believes it is prudent to retain some of the current Stabilization Fund equity to account for the Insurance Fund's existing and future
Additionally, the information on the NCUA's Web site and presented at open meetings of the Board is consistent with the statutory requirement that any distribution of Stabilization Fund equity to credit unions would occur after the Stabilization Fund is closed and to the extent the Insurance Fund's equity ratio exceeded the normal operating level.
Many of the commenters that opposed any increase in the normal operating level contended no increase could be justified because a normal operating level of 1.30 percent had been sufficient to withstand the financial crisis. As outlined in the July 2017 Notice, the Stabilization Fund was created to accrue losses from corporate credit union failures and assess credit unions for such losses over time. This prevented insured credit unions from bearing a significant burden associated with the failure of five corporate credit unions within a short period. It did not shelter credit unions from being assessed for the losses, nor did it eliminate the need for Insurance Fund premiums to cover declines in the equity ratio from natural person credit union failures and insured share growth.
At year-end 2008, the normal operating level was 1.30 percent. In January 2009, prior to creation of the Stabilization Fund, credit unions were instructed to impair the one percent capital deposit by 69 basis points and record a premium expense of 30 basis points to restore the Insurance Fund's equity ratio to above the 1.20 percent statutory minimum.
During the Great Recession, the Insurance Fund's equity ratio fell below 1.20 percent even without the corporate credit union losses—that is, only for natural person credit union losses—resulting in two Share Insurance Fund premiums totaling 22.7 basis points. Actual premium charges were 10.3 basis points in 2009 and 12.4 basis points in 2010 and totaled nearly $1.7 billion. As some commenters noted, these premiums had to be charged during the trough of the business cycle, when many credit unions were already facing financial difficulties. Therefore, while the NCUA was able to maintain the Insurance Fund's equity ratio above 1.20 percent during the Great Recession, it was only because of an act of Congress (creation of the Stabilization Fund) and premiums paid by credit unions at a time when they could least afford the expense. In another significant recession, stakeholders should not assume the NCUA could or should prevail upon Congress to establish a fund similar to the Stabilization Fund to again accrue significant near-term losses over time and avoid immediate assessments on insured credit unions.
For those commenters that cite the Insurance Fund and Stabilization Fund annual audits as support that there is no justification for raising the normal operating level, the Board would like to correct some misconceptions.
Similar to how credit union officials must make risk management decisions about the appropriate amount of capital to hold, the Board must make management decisions regarding the level of equity the Insurance Fund should maintain. A stronger capital position better enables the Insurance Fund to manage future uncertainties such as increased losses, high insured-share growth, and adverse economic cycles. While the amount of equity recorded and the calculation of the equity ratio are audited by an independent third party, the purpose of the audit is to ensure the Insurance Fund's financial statements are presented fairly, in all material respects, in accordance with the standards promulgated by the Federal Accounting Standards Advisory Board (FASAB). FASAB is designated by the American Institute of Certified Public Accountants as the source of generally accepted accounting principles for federal reporting entities.
The independent auditor's report of the Insurance Fund as of and for the years ended December 31, 2016 and 2015 discusses the equity ratio as a “significant financial performance measure in assessing the ongoing operations of the NCUSIF.” The audit does not opine on whether the amount of equity retained meets the Board's objectives for managing risk to the Insurance Fund.
With respect to the Stabilization Fund, the Board notes that the latest audit report states, “there were no probable losses for the guarantee of NGNs associated with re-securitization transactions.” However, the Board believes commenters failed to consider two factors.
First, the Legacy Assets underlying the NGNs
As of December 31, 2016 and 2015, there were no probable losses for the guarantee of NGNs associated with the re-securitization transactions. Although the gross estimated guarantee payments were approximately $3.2 billion and $3.3 billion, respectively, these payments are estimated to be offset by:
(i) Related reimbursements and interest from the Legacy Assets of the NGN Trusts received directly from contractual reimbursement rights pursuant to the governing documents of approximately $3.1 billion and $3.1 billion as of December 31, 2016 and 2015, respectively; and
(ii) indirectly by collections pursuant to NCUA's right as liquidating agent from portions of the AMEs' economic residual interests in NGN Trusts of up to approximately $2.4 billion and $3.4 billion as of December 31, 2016 and 2015, respectively, that are estimated to remain after all obligations of the NGN Trusts are satisfied.
However, as noted, the guarantee payments are
Second, the guarantee payment discussion does not include potential fluctuations in values related to Legacy Assets that are no longer securitizing the NGNs. The un-securitized Legacy Asset values are also based on projections that may vary over time, especially in the case of an economic downturn.
The audited financial statements reflect the accounting and valuation of assets and liabilities as of a certain date. The statements do not account for potential future economic downturns that would negatively impact the values. Therefore, the financial statements in no way undermine the Board's view that, as the insurer, it is prudent to ensure the Insurance Fund's equity is sufficient to withstand a moderate recession with minimal or no premium assessments.
The Board also believes some commenters are confusing the equity ratio and normal operating level with the Insurance Fund's Insurance and Guarantee Program Liability by stating that raising the normal operating level is
The Insurance Fund's Insurance and Guarantee Program Liability is a separate account. The Insurance and Guarantee Program Liability account is reported in accordance with Statement of Federal Financial Accounting Standard No. 5. The Insurance Fund records a contingent liability for probable losses relating to insured credit unions based on current economic and credit union-level data. The amount of this liability is adjusted based on changes in economic and credit union-level data. When economic conditions and credit union financial trends deteriorate, this liability will increase to reflect the increase in potential failures. However, if the NCUA is able to resolve problem credit unions without assistance from the Insurance Fund, the liability is no longer needed. Because the NCUA is unable to predict or quantify which credit unions may be resolved without assistance, the Insurance Fund must establish a contingent liability for all potential failures based on current data.
This account is similar to a credit union's reserve for loan losses and is audited annually by an independent third party. Thus, maintenance of the contingency liability must comply with accounting standards. This is different from maintenance of capital levels, which is a management decision. In addition, the Board's role as insurer is fundamentally different from that of a financial institution.
Further, to those commenters that cite the strength of the credit union system and recent regulatory changes as reason to retain 1.30 percent as the normal operating level, the Board agrees that the financial position of the credit union industry is strong. Additionally, the Board recognizes that supervisory requirements for large credit unions and restrictions for corporate credit unions help to reduce risk within the industry. However, the Board believes the risk profile of the credit union system continues to evolve with existing or known risks being replaced by new and emerging risks. From a risk management perspective, the Board believes it is prudent to consider both current and future risks and hold equity sufficient to mitigate the negative impact on credit unions—such as having to pay premiums when their financial position is not as strong.
In response to commenters that question the accuracy of loss estimates related to the Legacy Assets, the Board notes that the range of estimated aggregate resolution costs is lower than original estimates due to a number of factors, including the following:
• Better than expected recovery in the housing market;
• A sustained low interest rate environment; and
• Legal recoveries.
Resolution costs have declined significantly due to legal recoveries, which were not and could not be included in projections because they are inherently inestimable. The potential for legal recoveries increased materially when the NCUA initiated the Corporate System Resolution Program, which gave the asset management estates the benefit of the Act's extender statute. The extender statute preserved and strengthened a substantial portion of legal claims that otherwise may have expired. In addition, the NCUA's coordinated recovery efforts across the five failed corporates and its ability to coordinate with other government-related plaintiffs substantially increased recovery potential.
The impact legal recoveries had on the estimated resolution costs is significant. If legal recoveries are excluded, over the seven years since the NGNs were issued, the top of the projected range of costs has improved about 14 percent. The bottom of the projected range of costs has worsened by close to 3.8 percent. In light of their complexity and after adjustment for exogenous factors like legal recoveries, the cost projections have proven relatively accurate over a seven-year period. The legal recoveries allowed for full repayment of the U.S. Treasury borrowing. Without the legal recoveries, the NCUA would not have been able to fully repay the U.S. Treasury until 2021. Also, based on current estimates, without the legal recoveries there would be no surplus to fund a distribution.
The Board agrees with the commenter that pointed out that even a normal operating level of 1.39 percent would not have been sufficient to weather the Great Recession and absorb the losses from the failed corporate credit unions without assessing premiums. This fact only supports an increase. Determining the appropriate amount of capital to hold in the Insurance Fund is a risk management decision where the Board balances the need to maintain sufficient equity with the desire to keep money at work in the credit union community. While a normal operating level of 1.39 percent may not be sufficient for the Insurance Fund to withstand a
Additionally, if the Insurance Fund's equity ratio going into the Great Recession had been 1.39 percent instead of 1.30 percent, it may not have eliminated the need for premiums, but could have resulted in credit unions paying nearly $1 billion less in premiums during the middle of the financial crisis. The Board believes managing the Insurance Fund to be counter-cyclical by building up equity during prosperous times and allowing the equity to draw down during adverse economic conditions will enable credit unions to use funds at that time to serve members when they are needed the most.
The Board also agrees with those commenters that stated the assets transferred from the Stabilization Fund currently offset the liabilities transferred. For all intents and purposes, the net position of the Stabilization Fund is the difference between the book value of the assets and the book value of the liabilities—which is currently near $2.0 billion. Even if the Stabilization Fund is not closed, the value of the assets would decline in a moderate recession, while the value of the liabilities would remain the same or increase, resulting in a decrease to the net position under even a moderate recession.
Thus, once the Stabilization Fund is closed, the Insurance Fund's net position would decrease if the value of the transferred assets decreased. Therefore, the Board believes it is prudent to reserve $400 million (or approximately 4 basis points) of the existing $2.0 billion of the Stabilization Fund's equity to cover a potential decrease in the Insurance Fund's net position under a moderate recession.
A significant number of commenters attributed downward trends in the Insurance Fund's equity ratio to the cost of the NCUA's operations, recent increases in the NCUA's operating budget, and excessive Insurance Fund loss reserves. Operating expenses are not one of the three primary factors affecting the Insurance Fund's equity ratio—insured share growth, interest income on the fund's investment portfolio, and insurance losses. Operating expenses charged to the Insurance Fund have a significantly lower potential for altering the trend in the equity ratio. Without sacrificing the
Given the Insurance Fund's current size, a $100 million change in the numerator of the ratio (made up of retained earnings and contributed capital) will change the equity ratio by approximately one basis point. This means that if the NCUA's operating expenses charged to the fund decreased by $100 million, the equity ratio would increase by one basis point. For context, the NCUA's entire 2017 budget is $298.2 million, of which approximately $200 million is projected to be charged to the Insurance Fund. The Board would need to cut operating expenses charged to the Insurance Fund by 50 percent to offset a one basis point annual reduction in the equity ratio, all other things being equal. While the Board strives to minimize all costs related to agency operations, indiscriminately reducing the operating budget for the purpose of preserving Insurance Fund equity would be ill-advised and counterproductive. The bulk of NCUA's budget, in fact, goes to supporting one of the most important aspects of the agency's mission: Reducing the likelihood of catastrophic Insurance Fund losses.
Increasing the normal operating level is an action separate and distinct from approving the agency's operating budget and overhead transfer rate. The Board carefully balances the need to manage the agency's expenses with the need to ensure a safe-and-sound credit union system. During the last NCUA budget briefing on October 27, 2016, staff outlined various initiatives to increase efficiency and operational improvements. The most significant is the adoption of the recommendations of the NCUA's Examination Flexibility Initiative working group as part of the agency's 2017 and 2018 budgets. Among other things, this initiative will extend the examination cycle for eligible credit unions—those that have less than $1 billion in assets and are considered well-run and well-capitalized—resulting in a reduction of 47 full-time equivalent positions by the end of 2018.
Additionally, at the Board's July 20, 2017 closed meeting, it approved a long-range agency restructuring plan to enhance efficiency, responsiveness, and cost-effectiveness. Under the plan, the NCUA will consolidate the agency's five regional offices into three, eliminate four of the agency's five leased spaces, eliminate offices, and reduce the workforce through attrition. The Board has recently announced the process for another public budget briefing to be held in October 2017 and looks forward to receiving stakeholder input.
The Board disagrees with commenters that state the Insurance Fund's performance horizon should be two years instead of five. As outlined in the July 2017 Notice and discussed at the July 2017 Board meeting, a five-year horizon for modeling the Insurance Fund was selected for a number of reasons. One compelling reason is that the National Bureau of Economic Research—the not-for-profit research organization that establishes the beginning and end of U.S. business cycles—has calculated that the United States has averaged 69 months from the peak of one business cycle to the next. The Board elected to use a five-year horizon because it covers most of the business cycle, aligns with the remaining life of the NGN Program, and is consistent with the agency's strategic plan time horizon.
Though a recession may end, the economy may remain very weak during the recovery period. A struggling economy also poses risks to credit unions, and a thorough analysis of the Insurance Fund's equity position needs to account for the period of continued economic weakness, which more realistically reflects a recession's effects on the credit union industry.
The Board agrees with commenters that noted the agency has various options available to manage the Insurance Fund. The Board continues to believe the most desirable option is to maintain a counter-cyclical posture for the Insurance Fund, which reduces the likelihood of burdening insured credit unions with premium expenses during an economic downturn. Requiring credit unions to pay premiums in the midst of a financial crisis is generally undesirable because many credit unions are facing earnings and other operational issues, and extraordinary premium expenses could increase failure rates. It is during the bottom of an economic cycle that it is most important to keep funds at work in the credit union system so they can continue to serve their members.
As outlined in the July 2017 Notice, the Board believes its authority to establish a Fund restoration plan in lieu of mandatory premiums should only be used for severe, unexpected circumstances. While the Board can develop a restoration plan to restore the Insurance Fund's equity ratio to 1.20 percent within eight years (or longer in extraordinary circumstances), this could necessitate one or more relatively large premiums. It could also extend over multiple business cycles, resulting in a further extended effort to rebuild Insurance Fund equity. These circumstances could significantly erode public confidence in federal share insurance.
Some commenters supported a temporary increase to 1.34 percent to cover exposure to Legacy Assets, while others suggested an increase to 1.35 percent. The Board notes that both of these suggestions ignore that exposures to the Insurance Fund must be considered in total.
Because a moderate recession would affect both the traditional primary drivers of the Insurance Fund (yield on investments, insurance losses, and insured share growth) and the value of the Legacy Assets, the Board must account for both of these exposures. Therefore, it would be inconsistent to only account for the potential decline in value of the Legacy Assets under a moderate recession, and not the traditional exposures to the Insurance Fund, by setting the normal operating level at 1.34 percent. Conversely, setting the normal operating level at 1.35 percent would only account for the traditional exposures of the Insurance Fund. However, if the Stabilization Fund were closed, the Insurance Fund would be exposed to additional risk from the potential decline in the value of the Legacy Assets.
Many commenters urged the Board to set a defined schedule or express specific intent to move the normal operating level back to 1.30 percent as exposure to Legacy Assets decreases. As outlined in the July 2017 Notice, the Board acknowledges that additional risk exposure from the Legacy Assets will only be present until the end of the NGN Program, assuming expedient Legacy Asset sales thereafter. Therefore, once the Insurance Fund's exposure to this risk expires, additional equity for the Legacy Assets will no longer be necessary.
However, the Board believes it would be imprudent to arbitrarily set a future normal operating level based on current data. Instead, it is reasonable for a future
One commenter supported a temporary increase of the Insurance Fund's equity ratio to 1.30 percent but only for so long as Legacy Asset exposure remained. This commenter stated that all equity related to the Stabilization Fund should be distributed once Legacy Asset exposure subsided, including funds needed to increase the Insurance Fund's equity ratio to 1.30 percent. Thus, this commenter implied the Board should decrease the normal operating level below 1.30 percent to meet the equity ratio at the time of the Stabilization Fund's closure to permit distribution of all equity received from the Stabilization Fund.
In the Board's understanding, following the position of this commenter would require the Board to commit to reducing the normal operating level in 2021 to equal the Insurance Fund's sub-1.30 percent equity ratio as of October 1, 2017, the date of the Stabilization Fund's closing. This would, at the end of 2021, trigger a distribution of whatever amounts, if any, remained in the Insurance Fund above the newly lowered normal operating level. While the Board has the legal authority to make such a commitment, it could not bind future Boards to follow it. Further, this approach would only result in a distribution of equity to the extent insurance losses or other impacts on the Insurance Fund had not lowered the equity ratio below what it was at the Stabilization Fund's closure.
While the Board could reduce the normal operating level to as low as 1.20 percent to orchestrate a distribution, it could not, due to statutory constraints, lower the normal operating level below 1.20 percent to accommodate a certain distribution amount that might relate back to Stabilization Fund equity.
In response to those commenters that requested additional time to review and respond to the July 2017 Notice, the Board acknowledges the comment period was less than the customary 60 days (the actual comment period was 48 days). The comment period was accelerated to provide the Board enough time to consider comments and make a final determination of closing the Stabilization Fund by year-end 2017, to make it possible for a distribution to insured credit unions in 2018.
If the Board puts off the proposal further, equity will continue to build in the Stabilization Fund. Thus, the Board agrees with most commenters that see no reason to delay the proposal until a future date. As long as the NCUA maintains sufficient equity in the Insurance Fund to cover the remaining obligations from the Corporate System Resolution Program on top of its ongoing obligations, closing the Stabilization Fund now makes sense.
The Board acknowledges the commenters' emphasis on transparency and agrees that the agency has a responsibility to provide stakeholders with as much information as possible without disclosing confidential supervisory information. This applies not only to the Stabilization Fund's operations, but also to how the corporate credit union asset management estates are administered. Because of the complexity and extent of information regarding the Legacy Assets, NGNs, and asset management estates, the NCUA has developed Web pages on its public Web site dedicated to the corporate resolution and NGNs. The agency transparently described the equity ratio calculations, normal operating level, and Corporate System Resolution Program status in staff's presentations to the NCUA Board at its November 2016, December 2016, and July 2017 open meetings, in the request for comment published in the
Subsequent to the July 2017 Notice, the NCUA enhanced its reporting to show the transactions and projections related to each corporate credit union asset management estate. The information on legal recoveries also receives regular updates, including information on how legal recoveries are allocated to each asset management estate.
The Board continually seeks ways to ensure the information presented is clear, comprehensive, and useful. If stakeholders have questions or suggestions regarding the information available, the Board invites them to contact the NCUA at
Some commenters expressed a preference that the Board consider an increase to the Insurance Fund's normal operating level in a proposal completely separate from any related to closing the Stabilization Fund. Because closing the Stabilization Fund increases the risk to the Insurance Fund, evaluating the normal operating level is a necessary component of the decision to close the Stabilization Fund. Proposing both actions together in a fully transparent manner gave credit unions the opportunity to review and comment on the entire scope of the NCUA's plan related to closing the Stabilization Fund.
Contrary to what some comments seem to imply, the Board is not aware of any credit unions that would fail based simply on not receiving an Insurance Fund distribution next year.
Rather, the Board noted that the assessment rebates were projections and subject to change. Therefore, credit unions should not have been relying on a possible refund for managing their financial condition.
A few commenters stated the “proposed method for closing the [Stabilization Fund] does nothing to address the excessive $1B charged since its creation to the [Asset Management Estates] by the NCUA.” It is unclear what expenses these commenters are referring to. The losses related to the corporate credit unions are described on the NCUA's Web site. They include, among others, losses on investment securities (Legacy Assets), as well as costs of funding other pre-liquidation obligations the corporate credit unions had incurred. Every effort was made to keep the costs of resolving the failed corporate credit unions as low as possible.
The Board appreciates commenters that considered how closing the Stabilization Fund might affect the NCUA's contingency funding. The Board reminds stakeholders that Public Law 111–22,
The Board will address comments on its separate proposal to amend the Insurance Fund distribution method in 12 CFR 741.4 in a separate action.
After considering the comments received, the Board approves the following:
1. Closing the Stabilization Fund in 2017 and distributing its funds, property, and other assets and liabilities to the Insurance Fund on October 1, 2017.
2. Setting the normal operating level of the Insurance Fund to 1.39 percent, effective September 28, 2017.
3. Adopting the policy for setting the normal operating level, as outlined below.
Periodically, the NCUA will review the equity needs of the Insurance Fund and provide this analysis to stakeholders. Board action is only necessary when this review suggests that a change in the normal operating level is warranted. Any change to the normal operating level of more than 1 basis point shall be made only after a public announcement of the proposed adjustment and opportunity for comment. In soliciting comment, the NCUA will issue a public report, including data supporting the proposal.
When setting the normal operating level, the Board will seek to satisfy the following objectives:
• Retain public confidence in federal share insurance;
• Prevent impairment of the one percent contributed capital deposit; and
• Ensure the Insurance Fund can withstand a moderate recession without the equity ratio declining below 1.20 percent over a five-year period.
Office of National Drug Control Policy (ONDCP).
Notice of meeting.
ONDCP announces the fourth meeting of the President's Commission on Combating Drug Addiction and the Opioid Crisis to advance the Commission's work on drug issues and the opioid crisis per Executive Order 13784. The meeting will consist of discussion regarding insurance issues related to the opioid epidemic.
The Commission meeting will be held on Friday October 20, 2017 from 11:00 a.m. until approximately 1:00 p.m. (Eastern time).
The meeting will be held at the Eisenhower Executive Office Building, Room 350, in the Executive Office of the President in Washington, DC. It will be open to the public through livestreaming on
General information concerning the Commission and its meetings can be found on ONDCP's Web site at
The Commission was established in accordance with E.O. 13784 of March 29, 2017, the Commission's charter, and the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2, to obtain advice and recommendations for the President regarding drug issues. The Executive Order, charter, and information on the Members of the Commission are available on ONDCP's Web site. The Commission will function solely as an advisory body and will make recommendations regarding policies and practices for combating drug addiction with particular focus on the current opioid crisis in the United States. The date of the Commission's final report has been extended until November 1, 2017. Per E.O. 13784, the Commission shall:
a. Identify and describe the existing Federal funding used to combat drug addiction and the opioid crisis;
b. assess the availability and accessibility of drug addiction treatment services and overdose reversal throughout the country and identify areas that are underserved;
c. identify and report on best practices for addiction prevention, including healthcare provider education and evaluation of prescription practices, collaboration between State and Federal officials, and the use and effectiveness of State prescription drug monitoring programs;
d. review the literature evaluating the effectiveness of educational messages for youth and adults with respect to prescription and illicit opioids;
e. identify and evaluate existing Federal programs to prevent and treat drug addiction for their scope and effectiveness, and make recommendations for improving these programs; and;
f. make recommendations to the President for improving the Federal response to drug addiction and the opioid crisis.
Nuclear Regulatory Commission.
Generic communications; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is announcing the availability of the latest version of NRC Form 3, “Notice to Employees.” The NRC Form 3 describes certain responsibilities and rights of employers and employees who engage in NRC-regulated activities. Licensees are required by law to post the form at prominent locations at the workplace to permit workers to view it easily. Additionally, the NRC is announcing that future revisions of Form 3 will be publicized through an alternative electronic means in addition to the
The revised form is available as of October 4, 2017.
Please refer to Docket ID NRC–2017–0199 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Lisamarie L. Jarriel, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–287–9006, email:
The purpose of this notice is to inform all licensees that NRC Form 3, “Notice to Employees,” has been revised. The NRC Form 3 describes certain responsibilities and rights of employers and employees who engage in NRC-regulated activities, including how employees can report violations or other safety concerns directly to the NRC. Section 19.11(e)(1) of title 10 of the
In a 1997 rulemaking, 10 CFR 19.11 was amended to incorporate a reference to the latest version of NRC Form 3. This eliminated the need to revise the CFR whenever NRC Form 3 is changed, which had been the previous practice. The final rule published on September 15, 1997 (62 FR 48165) indicated that the NRC would inform licensee of future changes to NRC Form 3 by an administrative letter and, in addition, the availability of any new versions would be noticed in the
A new version of NRC Form 3 was issued in August 2017, to make a correction to the map of the NRC Regions and clarify operation of the Headquarters Operations Center. To view the current version of NRC Form 3 (8/2017), please go to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License renewal and record of decision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued renewed Facility Operating License Nos. NPF–76 and NPF–80 to STP Nuclear Operating Company (licensee), the operator of the South Texas Project (STP), Units 1 and 2. Renewed Facility Operating License Nos. NPF–76 and NPF–80 authorize operation of STP by the licensee at reactor core power levels not in excess of 3,853 megawatts thermal for each unit, in accordance with the provisions of the STP renewed licenses and technical specifications. In addition, the NRC has prepared a record of decision (ROD) that supports the NRC's decision to renew Facility Operating License Nos. NPF–76 and NPF–80.
The renewal of Facility Operating License Nos. NPF–76 and NPF–80 was issued on September 28, 2017.
Please refer to Docket ID NRC–2010–0375 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Lois M. James, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301–415–3306; email:
Notice is hereby given that the NRC has issued renewed Facility Operating License Nos. NPF–76 and NPF–80 to STP Nuclear Operating Company (licensee), the operator of STP, Units 1 and 2. Renewed Facility Operating License Nos. NPF–76 and NPF–80 authorize operation of STP by the licensee at reactor core power levels not in excess of 3,853 megawatts thermal for each unit, in accordance with the provisions of the STP renewed license and technical specifications. The NRC's ROD that supports the NRC's decision to renew Facility Operating License Nos. NPF–76 and NPF–80 is available in ADAMS under Accession No. ML17138A276 and was published in the
South Texas Project, Units 1 and 2, are pressurized water reactors located in Bay City, TX (90 miles SW of Houston, TX). The application for the renewed licenses, “License Renewal Application, South Texas Project, Unit 1 and Unit 2, Facility Operating License Nos. NPF–76 and NPF–80,” dated October 25, 2010 (ADAMS Package Accession No. ML103010256), as supplemented by letters dated through May 2, 2017, complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. As required by the Act and the NRC's regulations in Chapter 1 of title10 of the
For further details with respect to this action, see: (1) STP Nuclear Operating Company license renewal application for STP dated October 25, 2010 (ADAMS Package Accession No. ML103010256), as supplemented by letters through May 2, 2017; (2) the NRC's safety evaluation report published on June 8, 2017 (ADAMS Package Accession No. ML17142A263); (3) the NRC's final environmental impact statement (NUREG–1437, Supplement 48) for STP published on November 30, 2013 (ADAMS Accession No. ML13322A890); and (4) the NRC's ROD (ADAMS Accession No. ML17138A276).
For the Nuclear Regulatory Commission.
This notice describes procedures to be followed with respect to meetings conducted by the U.S. Nuclear Regulatory Commission's (NRC's) Advisory Committee on Reactor Safeguards (ACRS) pursuant to the Federal Advisory Committee Act (FACA). These procedures are set forth so that they may be incorporated by reference in future notices for individual meetings.
The ACRS is a statutory advisory Committee established by Congress to review and report on nuclear safety matters and applications for the licensing of nuclear facilities. The Committee's reports become a part of the public record.
The ACRS meetings are conducted in accordance with FACA; they are normally open to the public and provide opportunities for oral or written statements from members of the public to be considered as part of the Committee's information gathering process. ACRS reviews do not normally encompass matters pertaining to environmental impacts other than those related to radiological safety.
The ACRS meetings are not adjudicatory hearings such as those conducted by the NRC's Atomic Safety and Licensing Board Panel as part of the Commission's licensing process.
An agenda will be published in the
The following requirements shall apply to public participation in ACRS Full Committee meetings:
(a) Persons who plan to submit written comments at the meeting should provide 35 copies to the DFO at the beginning of the meeting. Persons who cannot attend the meeting, but wish to submit written comments regarding the agenda items may do so by sending a readily reproducible copy addressed to the DFO specified in the
(b) Persons desiring to make oral statements at the meeting should make a request to do so to the DFO; if possible, the request should be made 5 days before the meeting, identifying the topic(s) on which oral statements will be made and the amount of time needed for presentation so that orderly arrangements can be made. The Committee will hear oral statements on topics being reviewed at an appropriate time during the meeting as scheduled by the Chairman.
(c) Information regarding topics to be discussed, changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained by contacting the DFO.
(d) The use of still, motion picture, and television cameras will be permitted at the discretion of the Chairman and subject to the condition that the use of such equipment will not interfere with the conduct of the meeting. The DFO will have to be notified prior to the meeting and will authorize the use of such equipment after consultation with the Chairman. The use of such equipment will be restricted as is necessary to protect proprietary or privileged information that may be in documents, folders, etc., in the meeting room. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
(e) A transcript will be kept for certain open portions of the meeting and will be available in the NRC Public Document Room (PDR), One White Flint North, Room O–1F21, 11555 Rockville Pike, Rockville, Maryland 20852–2738. A copy of the certified minutes of the meeting will be available at the same location three months following the meeting. Copies may be obtained upon payment of appropriate reproduction charges. ACRS meeting agendas, transcripts, and letter reports are available at
(f) Video teleconferencing service may be available for observing open sessions of ACRS meetings. Those wishing to use this service for observing ACRS meetings should contact Mr. Theron Brown, ACRS Audio Visual Specialist, telephone: 301–415–8066, between 7:30 a.m. and 3:45 p.m. Eastern Time at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
In accordance with the revised FACA, the agency is no longer required to apply the FACA requirements to meetings conducted by the Subcommittees of the NRC Advisory Committees, if the Subcommittee's recommendations would be independently reviewed by its parent Committee.
The ACRS, however, chose to conduct its Subcommittee meetings in accordance with the procedures noted above for ACRS Full Committee meetings, as appropriate, to facilitate public participation, and to provide a forum for stakeholders to express their views on regulatory matters being considered by the ACRS. When Subcommittee meetings are held at locations other than at NRC facilities, reproduction facilities may not be available at a reasonable cost. Accordingly, 50 copies of the materials to be used during the meeting should be provided for distribution at such meetings.
If it is necessary to hold closed sessions for the purpose of discussing matters involving proprietary information, persons with agreements permitting access to such information may attend those portions of the ACRS meetings where this material is being discussed upon confirmation that such agreements are effective and related to the material being discussed.
The DFO should be informed of such an agreement at least five working days prior to the meeting so that it can be confirmed, and a determination can be
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 September 29, 2017, it filed with the Postal Regulatory Commission a
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 September 29, 2017, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Schedule of Fees to make it clear that the Nasdaq GEMX Trades Feed is a free offering of the Exchange provided to subscribers of at least one of the fee liable real-time market data products offered on the Exchange.
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 purpose of the proposed rule change is to amend the Schedule of Fees to make it clear that the Nasdaq GEMX Trades Feed (“Trades Feed”) is a free offering of the Exchange provided to subscribers of at least one of the fee liable real-time market data products offered on the Exchange. On April 27, 2017 the Exchange filed a proposed rule change to establish ports that members use to connect to the Exchange with the migration of the Exchange's trading system to the Nasdaq INET architecture.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
In accordance with Section 6(b)(8) of the Act,
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 arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 31, 2017, NYSE Arca, Inc. filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Exchange Rule 529, Order Routing to Other Exchanges.
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 Rule 529, Order Routing to Other Exchanges, to provide additional information in the Route Notification broadcast as described in subsection (b)(2)(i). Specifically, the Exchange proposes to include the expected price to which the interest will be routed in the Route Notification message distributed via the Exchange's data feed. Additionally, the Exchange proposes to amend the rule text to improve its clarity and precision. The Exchange also proposes to adopt new Interpretations and Policies .02 to clarify that, for purposes of Rule 529, the expected price to which the interest will be routed is the ABBO
Under Exchange Rule 529 the Exchange may automatically route orders to other exchanges under certain circumstances. The Exchange will employ one of two Route Mechanisms, Immediate Routing or the Route Timer,
Under the Exchange's proposal, all existing functionality of the Route Timer will remain intact. Currently, Public Customer orders that are not eligible for Immediate Routing are subject to a Route Timer. The Route Timer, which will never exceed one second, allows Market Makers
The System will display and book the initiating order at its limit price, or if the limit price locks or crosses the current opposite side NBBO,
If, during the Route Timer, the Exchange receives a new order or quote on the opposite side of the market from the initiating order that can be executed, the System will immediately execute the remaining contracts from the initiating order to the extent possible, provided that the execution price does not violate the current NBBO.
If at any point during the Route Timer the initiating order and all joining interest on the same side of the market is either traded in full or cancelled in full, the Route Timer will be terminated and normal trading will resume.
At the end of the Route Timer, the System will route Intermarket Sweep Orders
The Exchange also proposes to amend Rule 529(b)(2)(i) to correct the sentence which reads, “[c]ontemporaneously with the start of the Timer, the System will broadcast a Route Notification to subscribers of the Exchange's data feeds. . . .” The Exchange broadcasts the Route Notification on a single data feed, the AIS feed. Therefore, the Exchange proposes to amend the rule text to specifically identify the data feed by its name, the Administrative Information Subscriber (“AIS”) data feed.
The Exchange also notes that other option exchanges offer similar functionality in their respective routing mechanisms. Those routing mechanisms (i) expose eligible initiating interest at the best price, (ii) contain an exposure period, the duration of which does not exceed one second, and (iii) route remaining interest to away markets at the conclusion of the exposure period.
MIAX believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes the proposed changes promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system because they seek to improve the accuracy of the Exchange's rules. In particular, the Exchange believes that the proposed rule changes will provide greater clarity to Members and the public regarding the Exchange's Rules, and it is in the public interest for rules to be accurate and concise so as to eliminate the potential for confusion.
The Exchange believes that including the expected price to which the interest will be routed in the Route Notification message promotes just and equitable principles of trade and removes impediments to a free and open market by providing greater transparency concerning the operation of Exchange functionality. The Exchange also believes the proposal will contribute to
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes the proposed rule change will not impose any burden on competition as the Exchange is merely providing supplemental information that may be derived by market participants independently. The Exchange's proposal does not substantively modify any Exchange functionality and is not designed to address any competitive issues, but rather to provide additional information in the Route Notification message and add further clarity to the Exchange's rules. Since the Exchange does not propose to substantively modify the operation of exchange functionality, the proposed rule change will not impose any burden on inter-market competition. Additionally, the Exchange does not believe the proposed rule change will impose any burden on intra-market competition as the Rules apply equally to all Exchange Members.
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 after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend paragraph (c)(1) of Rule 11.7,
The text of the proposed rule change is available at 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 parts of such statements.
On March 21, 2017, NYSE MKT LLC filed a proposed rule change to change its name to NYSE American LLC.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The non-substantive amendments to Rules 11.7(c)(1) and 13.4(a) are intended solely to reflect the name change from NYSE MKT to NYSE American. The proposed rule change, therefore, removes impediments to and perfects the mechanism of a free and open market and a national market system because it updates the rule to reflect the name change and does not alter the way in which orders in NYSE American listed securities are handled and routed.
The Exchange does not believe that the proposed rule change will have any impact on competition as it is not designed to alter the way in which orders in NYSE American listed securities are handled and routed. It is simply intended to reflect the name change from NYSE MKT to NYSE American.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to introduce the Intellicator Analytic Tool.
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 purpose of the proposed rule change is to introduce the Intellicator Analytic Tool, a new, optional market data product available for a corresponding fee
Options market transactions can be complex; the purpose of the Intellicator Analytic Tool is to distill options data into a form that will help investors understand options market movements and provide them with actionable insight in changing market conditions. The Intellicator Analytic Tool will offer three increasingly sophisticated levels of analysis. The first level, the Single-Factor Analytic Bundle, calculates fundamental measures, or “factors,” of options market activity—Put/Call Ratio, Moneyness Ratio, Volume-Weighted Average Delta, and Weighted Average Strike Price—and applies those factors to certain segments of activity on the Exchange. The second level, the Single-Factor Intellicator, uses machine learning—an analytical technique that employs algorithms that iteratively “learn” from data to find hidden insights without explicit programming—to summarize in a single numeral the information contained within a Single-Factor Analytic Bundle. The third level, the Multi-Factor Intellicator, uses machine learning to summarize in a single numeral all of the information contained within all of the five [sic] Single-Factor Analytic Bundles offered with this product.
The Exchange will propose, in a forthcoming fee filing, separate fees for the Single-Factor Analytic Bundle, the Single-Factor Intellicator, and the Multi-Factor Intellicator, as well as special rates for the purchase of any combination of these, to allow investors to choose the tool that best fits their needs. The Single-Factor Analytic Bundles are designed to be used by sophisticated investors to supplement, test and inform their own analytic models. The Single- and Multi-Factor Intellicators are designed for the use of investors who seek to understand market sentiment without undertaking complex calculations. Although tailored for different audiences, the Analytic Bundles and Single- and Multi-Factor Intellicators are all designed to increase visibility into options transactions and democratize information to provide the benefits of sophisticated analytical techniques to firms without the technology, staff or wherewithal to conduct a comparable analysis on their own.
The Analytic Bundles and Single- and Multi-Factor Intellicators are described in further detail below.
A Single-Factor Analytic Bundle is a set of calculations of “factors,” or standard measures of options market activity, often used as indicia of market sentiment. The Intellicator Analytic Tool will calculate four factors—Put/Call Ratio, Moneyness Ratio, Volume-Weighted Average Delta, and Weighted Average Stock Price—defined as follows:
(i)
(ii)
(iii)
(iv)
Each of these Single-Factor Analytic Bundles will provide separate calculations of a specific factor for between five and fifty different segments, or subsets, of the options market.
(i)
(ii)
(iii)
(iv) “Moneyness”: In-the-money,
(v) Open vs. Close: Whether the transaction is opening a new position or closing an existing position.
(vi) Buy vs. Sell.
(vii) Execution type: Simple order,
(viii) Add vs. remove liquidity: Whether the transaction adds or removes liquidity, or has no effect on liquidity.
(ix)
Seven of these nine data fields—put vs. call; expiration date; customer type; “moneyness”; open vs. close; buy vs. sell; and order type—are currently available in real time for purchasers of the PHLX Orders data feed, although that feed does not include order information on Immediate or Cancel Orders (“IOCs”) or orders that are fully executable upon receipt. IOCs and orders that are fully executable upon receipt will, however, be used to segregate data for factor calculations in Single-Factor Analytic Bundles. The last two data fields listed above—add vs. remove liquidity and electronic vs. manual transactions—are not available on any of the Exchange's data feeds, but, like data from IOCs and fully executable orders upon receipt, will be used to segregate data into segments for Single-Factor Analytic Bundles.
A purchaser of Single-Factor Analytic Bundles may, under certain circumstances, be able to reverse-engineer factor calculations to obtain transaction-specific information not otherwise available on the Exchange's data feeds.
While this type of reverse-engineering is not the primary purpose of the Intellicator Analytic Tool—and of limited usefulness given that implementation would only be practical for thinly-traded stocks—it is consistent with the purpose of the Intellicator Analytic Tool to make data about market sentiment available to investors. Identifying the investment strategies of particular customer categories can provide an investor with useful insight into market activity, which this Tool may render more broadly available to investors. Such dissemination of market information promotes transparency and increases market efficiency, and, as stated in the Statutory Basis discussion below, protects protect investors and the public interest.
The data fields identified above will be used to segregate the market into segments by calculating factors only for transactions that meet specific criteria. Each segment will be defined by between one and five fields; data from other fields will not be used. By way of illustration, the three complex segments set forth above—“Customers who buy to open a new position,” “Non-Customers who sell to close an existing position,” and “Market Makers engaging in complex orders”—will be constructed using only three segments, as shown in the following chart:
Purchasers
The Exchange expects that segments will change over time. The first iteration of the Intellicator Analytic Tool will utilize a set of segments determined to be indicative of market sentiment based on experience and economic theory, but then will use machine learning—algorithms that test theory against market experience—to improve calculations by identifying additional segments with a strong relationship with the underlying equity and adding them to the Analytic Bundles to create the most robust set of calculations possible. Identifying relevant segments is a feature of this product, and the intellectual property of the Exchange.
Segments will be selected for their ability to provide a robust view of market sentiment. While any single segment may be of limited usefulness on its own, making the same calculations repeatedly for an array of different segments will provide a more reliable and consistent indicia of market sentiment. Providing customers with calculations of the same factor for multiple segments allows them to evaluate market sentiment by comparing calculations across segments. For example, market sentiment related to simple orders may be compared to that of complex orders; calculations for options contracts with less than 7 days to expiration may be compared to those with less than 30 days to expiration; or calculations for options contracts that are in-the-money may be compared to those that are out-the-money or at-the-money. The goal of all of these comparisons is to glean information from differences in market activity that may provide useful information about market sentiment regarding the associated underlying equity.
Calculations will be based on “rolling aggregates” of trading data, updated every 60 seconds over the course of the day.
A Single-Factor Intellicator uses machine learning to summarize in a single numeral the information contained within a Single-Factor Analytic Bundle. The number will be within a set range—possibly between one and one hundred, although the precise range may change over time—and will be designed to value market sentiment: Specifically, the upward or downward pressure on the price of an equity instrument as reflected in options trading activity. The numeral will be a sort of “barometer” of trading activity that, in conjunction with other market information, will help investors make informed decisions.
The Single-Factor Intellicator will serve a different purpose than the Analytic Bundles. Whereas the Analytic Bundles are designed to provide raw calculations, the Intellicators are designed to provide an analytical overlay to those calculations to help investors interpret market sentiment. As was the case with the Analytic Bundles, nothing in the Single-Factor Intellicator can be used to glean transaction-specific information.
The calculation for the Single-Factor Intellicator will change over time, as machine learning algorithms use data to learn about the relationship between options and equities, and modify the calculation accordingly. Specifically, the Exchange will use calculated values from the Analytic Bundle to improve mathematical models of the relationship between certain options trades and the equities underlying those trades. Over time, the algorithm will optimize these equations for both the types of data used to analyze equities and the weight of such data. The result will be a better mathematical model.
Calculations for Single-Factor Intellicators, like calculations for each factor, will be updated every 60 seconds over the course of the day.
The Multi-Factor Intellicator uses machine learning to summarize in a single numeral all of the calculations contained in all of the five [sic] Single-Factor Analytic Bundles. As was the case with Single-Factor Intellicators, the Multi-Factor Intellicator is designed to act as a “barometer” of options trading activity, which the customer will be able to incorporate into its market analysis. The Multi-Factor Intellicator will improve over time through machine learning.
The Multi-Factor Intellicator will also be updated every 60 seconds over the course of the day.
As previously noted, the fee schedule for the Intellicator Analytic Tool will be included in a future filing. Because the Single-Factor Analytic Bundles, Single-Factor Intellicators, and Multi-Factor Intellicators may prove useful for different audiences, these components of the Intellicator Analytic Tool will be priced separately.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In adopting Regulation NMS,
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing unnecessary regulatory restrictions on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history.
In
Data products such as the Intellicator Analytic Tool are a means by which exchanges compete to attract order flow. To the extent that exchanges are successful in such competition, they earn trading revenues and also enhance the value of their data products by increasing the amount of data they provide. The need to compete for order flow places substantial pressure upon exchanges to keep their fees for both executions and data reasonable.
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. Indeed, the Exchange believes that the Intellicator Analytic Tool enhances competition by increasing transparency into options transactions and democratizing information to provide the benefits of sophisticated analytical techniques to firms without the technology, staff or wherewithal to conduct a comparable analysis on their own. Many firms produce internal analytic models to assess market sentiment similar to the Intellicator Analytic Tool; the introduction of this Tool will increase competition by making such models available to more investors.
The market for data products is extremely competitive and firms may freely choose alternative venues and data vendors based on the aggregate fees assessed, the data offered, and the value provided. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price. Without trade executions, exchange data products cannot exist. Moreover, data products, including the Intellicator Analytic Tool, are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products. The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products. The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including Nasdaq, NYSE, NYSE MKT, NYSE Arca, and the BATS exchanges.
In this case, the proposed rule change enhances competition by introducing a new product that increases transparency into options transactions and democratizes information by providing the benefits of sophisticated analytical techniques to firms without the technology, staff or wherewithal to conduct a comparable analysis on their own. If the price were to become unattractive, those firms would opt not to purchase the product. The net effect of introducing this product into the market is to make market sentiment information more widely available to a broader array of investors, and lower the cost of accessing such information, thereby increasing market efficiency. For all of these reasons, the Exchange does not believe that the proposed changes will impair competition in the financial markets.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–Phlx–2017–74. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
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 paragraph (c)(1) of Rule 11.23, Opening Process, and paragraph (a) of Rule 11.26, Usage of Data Feeds, to reflect the name change of NYSE MKT to NYSE American.
The text of the proposed rule change is available at 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 parts of such statements.
On March 21, 2017, NYSE MKT LLC filed a proposed rule change to change its name to NYSE American LLC.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The non-substantive amendments to Rules 11.23(c)(1) and 11.26(a) are intended solely to reflect the name change from NYSE MKT to NYSE American. The proposed rule change, therefore, removes impediments to and perfects the mechanism of a free and open market and a national market system because it updates the rule to reflect the name change and does not alter the way in which orders in NYSE American listed securities are handled and routed.
The Exchange does not believe that the proposed rule change will have any impact on competition as it affect competition [sic] as it is not designed to alter the way in which orders in NYSE American listed securities are handled and routed. It is simply intended to reflect the name change from NYSE MKT to NYSE American.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE American Rule 5.2E(j)(6) to exclude Investment Company Units, securities defined in Section 2 of NYSE American Rule 8E and Index-Linked Securities when applying the quantitative generic listing criteria applicable to Equity Index-Linked Securities. 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 amend NYSE American Rule 5.2E(j)(6) to exclude Investment Company Units (“Units”) and securities defined in Section 2 of NYSE American Rule 8E (collectively, together with Units, “Derivative Securities Products”),
Equity Index-Linked Securities are securities that provide for the payment at maturity (or earlier redemption) based on the performance of an underlying index or indexes of equity securities, securities of closed end management investment companies registered under the Investment Company Act of 1940
The applicable initial quantitative listing criteria include (i) that each underlying index is required to have at least ten component securities;
The Exchange proposes to amend NYSE American Rule 5.2E(j)(6)(B)(I)(1)(a), which provides that each underlying index is required to have at least ten component securities, to provide that there will be no minimum number of component securities if one or more issues of Derivative Securities Products or Index-Linked Securities constitute, at least in part, component securities underlying an issue of Equity Index-Linked Securities. The proposed amendment to NYSE American Rule 5.2E(j)(6)(B)(I)(1)(a) also would provide that the securities described in Rule 5.2E(j)(3)) and Section 2 of Rule 8E (that is, Derivative Securities Products), and Rule 5.2E(j)(6) (that is, Index-Linked Securities), as referenced in proposed amended Rule 5.2E(j)(6)(B)(I)(1)(b)(2) and Rule 5.2E(j)(6)(B)(I)(2)(a) would include securities listed on another national securities exchange pursuant to substantially equivalent listing rules.
The Exchange also proposes to exclude Derivative Securities Products and Index-Linked Securities from consideration when determining whether the applicable quantitative generic thresholds have been satisfied under the initial listing standards specified in NYSE American Rule 5.2E(j)(6)(B)(I)(1)(b)(i)–(iv) and the continued listing standards specified in NYSE American Rules 5.2E(j)(6)(B)(I)(2)(a)(i) and (ii).
The Exchange proposes further to provide that the weighting limitation for the five highest weighted component securities in an index in NYSE American Rules 5.2E(j)(6)(B)(I)(1)(b)(iii) and 5.2E(j)(6)(B)(I)(2)(a)(i) would apply “to the extent applicable.”
The Exchange believes that it is appropriate to exclude Derivative Securities Products and Index-Linked Securities from the generic listing and continued listing criteria specified above for Equity Index-Linked Securities because Derivative Securities Products and Index-Linked Securities that may be included in an index or portfolio underlying a series of Equity Index-Linked Securities are themselves subject to specific initial and continued listing requirements of the exchange on which they are listed. For example, Units listed and traded on the Exchange are subject to the listing standards specified under NYSE American Rule 5.2E(j)(3). Also, Derivative Securities Products and Index-Linked Securities would have been listed and traded on an exchange pursuant to a filing submitted under Sections 19(b)(2) or 19(b)(3)(A) of the Act,
The Exchange also proposes (1) to replace “investment company units” with “Investment Company Units” in two places in NYSE American Rule 5.2E(j)(6)(B)(I)(1) in order to conform to other usages of this term in Exchange rules; and (2) to replace the word “Index” with “index” in two places in Rule 5.2E(j)(6)(B)(I)(2)(a)(i) to conform to other usages of this word in Rule 5.2E(j)(6)(B)(I)(2).
The Exchange notes that the proposed change is not otherwise intended to address any other issues and that the Exchange is not aware of any problems that ETP Holders or issuers would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed change would facilitate the listing and trading of additional types of Equity Index-Linked Securities, which would enhance competition among market participants, to the benefit of
The Exchange believes that it is appropriate to exclude Derivative Securities Products and Index-Linked Securities from the generic criteria specified above for Equity Index-Linked Securities because Derivative Securities Products and Index-Linked Securities that may be included in an index or portfolio underlying a series of Equity Index-Linked Securities are themselves subject to specific initial and continued listing requirements of the exchange on which they are listed. For example, Units listed and traded on the Exchange are subject to the listing standards specified under NYSE American Rule 5.2E(j)(3). Also, such Derivative Securities Products and Index-Linked Securities would have been listed and traded on an exchange pursuant to a filing submitted under Sections 19(b)(2) or 19(b)(3)(A) of the Act,
The Exchange also believes it is appropriate to exclude Derivative Securities Products and Index-Linked Securities from the requirement under NYSE American Rule 5.2E(j)(6)(B)(I)(1)(b)(iv) that 90% of the applicable index's numerical value and at least 80% of the total number of component securities will meet the criteria for standardized option trading set forth in Rule 915. Rule 915 includes criteria for securities underlying option contracts approved for listing and trading on the Exchange. Among such criteria are those applicable to “Exchange-Traded Fund Shares” (as referenced in Rule 915, Commentary .06(a)), Trust Issued Receipts (as referenced in Rule 915, Commentary .07(a)), and Index-Linked Securities (as referenced in Rule 915, Commentary .11) that underlie Exchange-traded option contracts. The Exchange does not believe that criteria in Rule 915 should be applied to Derivative Securities Products and Index-Linked Securities because such securities are subject to separate numerical and other criteria included in the applicable exchange listing rules, including both generic listing rules permitting listing pursuant to Rule 19b–4(e) and non-generic listing rules. Derivative Securities Products and Index-Linked Securities that are the subject of a Commission approval order under Section 19(b) of the Act also are subject to specific representations made in the applicable Rule 19b–4 filing. These include representations regarding the existence of comprehensive surveillance agreements between the applicable exchange and the principal markets for certain financial instruments underlying Derivative Securities Products, or percentage limitations on assets (
The Exchange believes it is appropriate to provide that the weighting limitation for the five highest weighted component securities in an index in NYSE American Rules 5.2E(j)(6)(B)(I)(1)(b)(iii) and 5.2E(j)(6)(B)(I)(2)(a)(i) would apply “to the extent applicable.” When considered in conjunction with the proposed amendment to NYSE American Rule 5.2E(j)(6)(B)(I)(1)(a) referenced above, this language would make clear that an index that includes Derivative Securities Products or Index-Linked Securities may include fewer than five component securities. In addition, the phrase “to the extent applicable” is included in Commentary .01(a)(A)(3) to NYSE American Rule 5.2E(j)(3) for Investment Company Units and Commentary .01(a)(1)(C) to NYSE American Rule 8.600E for Managed Fund Shares.
The proposed replacement of “investment company units” with “Investment Company Units” in two places in NYSE American Rule 5.2E(j)(6)(B)(I)(1) is appropriate as such changes conform to other usages of this term in Exchange rules. The proposed replacement of the word “Index” with “index” in two places in Rule 5.2E(j)(6)(B)(I)(2)(a)(i) is appropriate as such changes would conform to other usages of this word in Rule 5.2E(j)(6)(B)(I)(2).
The Exchange has in place surveillance procedures that are adequate to properly monitor trading in Index-Linked Securities in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. All Index-Linked Securities listed and traded pursuant to NYSE American Rule 5.2E(j)(6) are included within the definition of “security” or “securities” as such terms are used in the Exchange rules and, as such, are subject to Exchange rules and procedures that currently govern the trading of securities on the Exchange. Trading in the securities will be halted under the conditions specified in NYSE American Rule 5.2E(j)(6)(E).
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice. Notice of application for an order under section 3(b)(2) of the Investment Company Act of 1940 (“Act”).
National Securities Clearing Corporation (“NSCC”).
Applicant seeks an order under Section 3(b)(2) of the Act declaring it to be primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities. Applicant is primarily in the business of providing clearing, settlement, risk management, central counterparty (“CCP”) and ancillary services to the registered broker-dealers, banks and other market participants that are its “Members”, as such term is defined in the rules and procedures of Applicant (“NSCC Rules”).
The application was filed on September 8, 2017.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicant with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 23, 2017, and should be accompanied by proof of service on applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicant, c/o David F. Freeman, Jr., Arnold & Porter LLP, 601 Massachusetts Avenue NW., Washington, DC 20001.
Jennifer O. Palmer, Senior Counsel, at (202) 551–5786, or Nadya B. Roytblat, Assistant Chief Counsel, at (202) 551–6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or applicant using the Company name box, at
1. Formed in 1976, Applicant is organized under the Business Corporation Law of the State of New York and is registered as a clearing agency under the Securities and Exchange Act of 1934, as amended (“Exchange Act”), and the rules and regulations thereunder (“Exchange Act Rules”). Applicant is also designated as a systemically important financial market utility (“SIFMU”) by the Financial Stability Oversight Council (“FSOC”) under Title VIII of The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). As a registered clearing agency, Applicant is regulated by the Commission. As a SIFMU, Applicant is subject to enhanced supervision by the Commission in consultation with the Board of Governors of the Federal Reserve System (“FRB”).
2. Applicant is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). Applicant has one authorized class of stock, which is common stock. All issued and outstanding shares of Applicant's common stock are held by DTCC and there are no plans to alter this wholly-owned subsidiary structure. There is no trading market in Applicant's shares.
3. Applicant provides clearing, settlement, risk management and CCP services to its Members for broker-to-broker trades in the United States involving equities, corporate and municipal debt, American depositary receipts, exchange traded funds and unit investment trusts. In addition to these core services, Applicant also offers ancillary, non-guaranteed services, including wealth management services (“WMS”) and insurance and retirement services (“I&RS”), which automate manual processes in the mutual funds, insurance and alternative investment products areas. Applicant's operations are national.
4. Applicant operates a continuous net settlement (“CNS”) system, through which the trades in CNS-eligible securities are processed. Applicant acts as a CCP in respect of such CNS trades, becoming the buyer to every seller and the seller to every buyer, thereby guaranteeing the completion of such trades and eliminating counterparty risk among its Members. As a result, Applicant has obligations to and claims against its Members on opposite sides of guaranteed netted transactions. Applicant also provides a trade guarantee with respect to balance order transactions.
5. Due to the nature of Applicant's operations and the large volume and dollar value of trades that it guarantees, Applicant maintains a large clearing fund (“Clearing Fund”) and a large amount of other cash on hand. The Clearing Fund consists of deposits (
6. Applicant uses the Clearing Fund, among other resources, to manage its risks related to its trade guarantee. Specifically, deposits in the Clearing Fund, among other resources, are available to Applicant to facilitate settlement in the event of a Member default and to cover potential losses due to such an event. Additionally, Applicant uses its liquid assets to meet the requirements imposed on it as a registered clearing agency and SIFMU and to generate revenue to the extent such assets are not otherwise being put to productive use.
7. To more efficiently utilize Clearing Fund cash and other cash on hand, Applicant seeks to prudently invest part of the Clearing Fund cash and other cash on hand in bank certificates of deposit (“CDs”) and other investment securities. The managed investment of cash on hand also provides a measure of protection against inflationary factors and bolsters and protects NSCC's financial position over time.
8. Applicant is permitted under the NSCC Rules to invest Clearing Fund cash in accordance with an investment policy approved by Applicant's board of directors (“Board of Directors”). Applicant is also permitted to invest other cash on hand in accordance with such investment policy (“Clearing Agency Investment Policy”).
9. The Clearing Agency Investment Policy is designed to comply with the laws, rules and regulations applicable to Applicant as a registered clearing agency and SIFMU, including, without limitation, Exchange Act Section 17A and Exchange Act Rule 17Ad–22.
1. Section 3(a)(l)(A) of the Act defines the term “investment company” to include an issuer that is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting or trading in securities. Section 3(a)(l)(C) of the Act further defines an investment company as an issuer that 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 percent of the value of the issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis. Applicant states that it does not hold itself out as being engaged primarily in the business of investing, reinvesting or trading in securities within the meaning of Section 3(a)(l)(A) of the Act. Applicant states that it does not currently hold, but has previously held
2. Rule 3a–1 under the Act provides an exemption from the definition of investment company if no more than 45 percent of a company's total assets consist of, and not more than 45 percent of its net income over the last four quarters is derived from, securities other than Government securities and securities of majority-owned subsidiaries and companies primarily controlled by it. Applicant states that it cannot rely on Rule 3a–1 because it may again wish to hold more than 45 percent of its total assets in bank CDs and other investment securities and, upon such change in composition of its assets, it will not meet the requirements of Rule 3a–1.
3. Section 3(b)(2) of the Act provides that, notwithstanding Section 3(a)(l)(C) of the Act, 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 directly, through majority-owned subsidiaries, or controlled companies conducting similar types of businesses. Applicant 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, and therefore is not an investment company as defined in the Act. In determining whether an issuer is “primarily engaged” in a non-investment company business under Section 3(b)(2) of the Act, the Commission considers the following factors: (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.
4. Applicant submits that it satisfies the criteria for issuance of an order under Section 3(b)(2) of the Act because the facts show that Applicant is primarily engaged in the business of providing clearing, settlement, risk management, CCP and ancillary services to its Members, and not in the business of investing, reinvesting, owning, holding or trading in securities.
a.
Applicant states that it (a) is a clearing agency registered under the Exchange Act and, as such, is subject to comprehensive regulation by the Commission and (b) has been designated by FSOC as a SIFMU under Title VIII of the Dodd-Frank Act and, as such, is subject to enhanced supervision by the Commission in consultation with the FRB. Applicant states that both the
Applicant represents that substantially all of its activities since its formation have been devoted to providing clearing, settlement, risk management, CCP and ancillary services to its Members, and Applicant intends to continue to be primarily engaged in providing such services.
Applicant further represents that all of its issued and outstanding shares are held by DTCC. Applicant states that its shares have not been, and will not be, held out as a financial investment for profit to the public.
b.
c.
d.
Applicant states that it has previously held greater than 40% of the value of its total assets, exclusive of Government securities and cash items, in bank CDs and other investment securities (as defined in Section 3(a)(2) of the Act), and Applicant may wish to do so again. Applicant believes that the fact that it has held, and may again wish to hold, investment securities in excess of the 40% threshold should not preclude a finding that it is engaged primarily in a business other than that of investing, reinvesting, owning, holding or trading in securities, provided that it uses its investment securities for bona fide purposes relating to its clearing, settlement, risk management, CCP and ancillary services, and that it does not invest or trade in securities for speculative purposes.
Applicant states that it provides CCP services and certain trade guarantees to its Members and requires Members that utilize such services to make required deposits to the Clearing Fund. Applicant notes that it is a clearing agency registered under the Exchange Act and, as such, is subject to comprehensive regulation by the Commission. Applicant further notes that it is a SIFMU designated by FSOC under Title VIII of the Dodd-Frank Act and, as such, is subject to enhanced supervision by the Commission in consultation with the FRB. Applicant represents that its allocation, management and use of investment securities is consistent with its business of providing CCP and trade guaranty services to its Members. Applicant represents that all of its investments are and will be managed in accordance with the Clearing Agency Investment Policy. Applicant states that it bears the entire counterparty risk for the obligations of Members to each other with respect to all trades guaranteed by Applicant. Applicant explains that it manages this risk by, among other things, requiring Members to maintain deposits in the Clearing Fund; however, that does not transfer the risk from Applicant. Accordingly, Applicant submits that its primary business for purposes of Section 3(b)(2) of the Act may be determined without regard to the nature of its assets.
e.
Applicant projects that its interest income will increase over the next three years, reaching an estimated $55,700,000 in 2019. Applicant represents that the projected increase in interest income will mostly be driven by growth in Applicant's CP Program and
5. Applicant asserts that its historical development, its public representations of policy, the activities of its officers and directors and its sources of revenue, as discussed in the application, demonstrate that it is engaged primarily in the business of providing clearing, settlement, risk management, CCP and ancillary services to its Members, and not in an investment business. Applicant thus asserts that it satisfies the criteria for issuing an order under Section 3(b)(2) of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
On July 25, 2017, The Depository Trust Company (“DTC”), Fixed Income Clearing Corporation (“FICC”), and National Securities Clearing Corporation (“NSCC,” each a “Clearing Agency,” and collectively with DTC and FICC, the “Clearing Agencies”), filed with the Securities and Exchange Commission (“Commission”) proposed rule changes SR–DTC–2017–014, SR–NSCC–2017–013, and SR–FICC–2017–017, respectively, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule changes would adopt the Clearing Agency Operational Risk Management Framework (“Framework”) of the Clearing Agencies, as described below.
The Framework would describe how each of Clearing Agency manages operational risk. Operational risk is defined by the Clearing Agencies in the Framework as the risk of direct or indirect loss or reputational harm resulting from an event, internal or external, that is the result of inadequate or failed processes, people, and systems (“Operational Risk”).
The Framework would describe how ORM is charged with establishing appropriate systems, policies, procedures, and controls to enable the Clearing Agencies to identify plausible sources of Operational Risk.
Specifically, the Framework would describe how the Clearing Agencies identify key risks, including Operational Risk, and set metrics to categorize such risks (
The Framework would also describe how the Clearing Agencies monitor key risks, including Operational Risk, through “Risk Profiles.”
The Framework would then describe generally the responsibilities of ORM, which is part of the second line of defense within the Clearing Agencies' “Three Lines of Defense” approach to risk management.
The Framework would describe how the Clearing Agencies address information technology risks.
The Framework would also identify some of TRM's responsibilities, including (1) performing risk assessments to, among other things, facilitate the determination of the Clearing Agencies' investment and remediation priorities; (2) facilitating annual mandatory and periodic information security awareness, education, training, and communication to personnel of Clearing Agency Businesses and Clearing Agency Support Areas and relevant external parties; and (3) creating, implementing, and managing certain programs, including programs that (i) address information security throughout a system's lifecycle, (ii) facilitate compliance with evolving and established regulatory rules and guidelines that govern protection of the information assets of the Clearing Agencies and their participants, (iii) identify, prioritize, and manage the level of cyber threats to the Clearing Agencies, and (iv) assure that access to Clearing Agency information assets is appropriately authorized and authenticated based on current business need.
Additionally, the Framework would note that TRM's risk strategy is closely aligned to the Clearing Agencies' business drivers and future strategic direction.
The Framework would next describe the Clearing Agencies' security strategy and defense, stating that the Clearing Agencies' network security framework and preventive controls are designed to support a reliable and robust tiered security strategy and defense.
Finally, the Framework would describe how the Clearing Agencies establish and maintain business continuity plans to address events that may pose significant business continuity risks (
The Framework would state that each Clearing Agency Business and Clearing Agency Support Area annually updates its own business continuity plan, as well as reviews and ratifies its business impact analysis.
The Framework would describe the Clearing Agencies' multiple data centers, and the emergency monitoring and back-up systems available at each site.
The Framework would describe the responsibilities of BCM in managing a disruptive business event.
Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and rules and regulations thereunder applicable to such organization.
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of a registered clearing agency be designed to assure the safeguarding of securities and funds which are in the custody or control of the Clearing Agencies or for which they are responsible.
As described above, the Framework would describe how the Clearing Agencies manage their Operational Risk. Specifically, the Frameworks would describe how the Clearing Agencies address their technology risks, information security risks, and their business continuity risks. The Framework would describe the processes, systems, and controls (as well as the supporting policies and procedures) used by the Clearing Agencies to identify, manage, and mitigate risks which threaten the Clearing Agencies' ability to function.
By describing their Operational Risk practices in a clear and comprehensive manner, the Framework is designed to help the Clearing Agencies prevent and manage the risks that arise in, or are borne by, the Clearing Agencies. The Framework would explain how the Clearing Agencies identify and mitigate risks generally (through the Three Lines of Defense, Risk Tolerance Statements, and Risk Profiles), as well as how they specially identify and mitigate information technology risk (through the TRM's efforts) and business continuity risk (through data centers and operational centers). By better managing the risks that arise in or are bone by the Clearing Agencies through such risk mitigation practices, the Framework is designed to help reduce the possibility that a Clearing Agency fails. By better positioning the Clearing Agencies to continue their critical operations and services, and mitigating the risk of financial loss contagion caused by a Clearing Agency failure, the Framework is designed to help assure the safeguarding of securities and funds which are in the custody or control of the Clearing Agencies, or for which they are responsible. Accordingly, the Commission believes that the proposed rule changes are consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad–22(e)(17)(i) under the Act requires, in part, that each covered clearing agency establish, implement, maintain and enforce written policies and procedures reasonably designed to manage the covered clearing agency's operational risks by identifying the plausible sources of operational risk, both internal and external, and mitigating their impact through the use of appropriate systems, policies, procedures, and controls.
As described above, the Framework would describe how the Risk Tolerance Statements and the Risk Profiles assist the Clearing Agencies identify and mitigate the plausible sources of Operational Risk, both internal and external. As described above, the Framework explains how the Risk Tolerance Statements (i) identify both internal and external Clearing Agency risks; (ii) categorize the respective Clearing Agencies' tolerance for those risks; and (iii) then identify governance process applicable to any breach of those tolerances. In this way, the Risk Tolerance Statements are designed to help the Clearing Agencies to identify and manage the internal and external risks. As also described above, the Framework would describe how the Risk Profiles are designed to serve a similar function, by serving as a tool for identifying and assessing inherent risks, and evaluating the controls around those risks. The Framework also describes the role of ORM, which includes oversight of both the Risk Tolerance Statements and Risk Profiles.
By describing the functions of the Risk Tolerance Statements and Risk Profiles, (which, together, are designed to (i) assist the Clearing Agencies in effectively managing their operational risks by identifying the plausible sources of operational risk, both internal and external, and (ii) assist the Clearing Agencies in mitigating the impact of those risks), and by describing the role of ORM in overseeing the Risk Tolerance Statements and Risk Profiles, the Commission believes the Framework is consistent with the requirements of Rule 17Ad–22(e)(17)(i).
Rule 17Ad–22(e)(17)(ii) under the Act requires, in part, that each covered clearing agency establish, implement, maintain and enforce written policies and procedures reasonably designed to manage the covered clearing agency's operational risks by ensuring that systems have a high degree of security, resiliency, operational reliability, and adequate, scalable capacity.
As noted above, the Framework would describe how the Clearing Agencies manage their Operational Risk. Specifically, the Framework would describe TRM's role and responsibilities in managing the Clearing Agencies' information technology risks. In particular, the Framework would identify TRM's (i) programs, systems, and controls; (ii) information technology risk management standards; and (iii) continuous role in product and project initiatives to address security issues through the lifecycle of Clearing Agency initiatives.
The Framework thereby describes how TRM is designed to safeguard the integrity of the Clearing Agencies' information technology, as well as the standards against which TRM's safeguards would be evaluated. In this manner, the Framework is designed to
Therefore, by describing TRM's role and responsibilities in helping the Clearing Agencies maintain systems with a high degree of security, resiliency, operational reliability, and adequate, scalable capacity, the Commission believes the Framework is consistent with the requirements of Rule 17Ad–22(e)(17)(ii).
Rule 17Ad–22(e)(17)(iii) under the Act requires, in part, that each covered clearing agency establish, implement, maintain and enforce written policies and procedures reasonably designed to manage the covered clearing agency's operational risks by establishing and maintaining a business continuity plan that addresses events posing a significant risk of disrupting operations.
As described above, the Framework would describe how the Clearing Agencies establish and maintain business continuity plans. Specifically, the Framework would describe the critical features of the Clearing Agencies' business continuity plans to demonstrate how they are designed to address events posing a significant risk of disrupting the Clearing Agencies' operations. The Framework would also indicate how each Clearing Agency Business and Clearing Agency Support Area reviews and ratifies its respective plan and its business impact analysis, relative to its assigned Tier. Therefore, as the Framework describes how the Clearing Agencies establish and maintain their business continuity plans, which are designed to address events posing a significant risk of disrupting operations, the Commission believes that the Framework is consistent with the requirements of Rule 17Ad–22(e)(17)(iii).
On the basis of the foregoing, the Commission finds that the proposed rule changes are consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Order Under Section 15b, Section 17a And Section 36 Of The Securities Exchange Act Of 1934 Granting Exemptions From Specified Provisions Of The Exchange Act And Certain Rules Thereunder
Order Under Section 6(C) And Section 38(A) Of The Investment Company Act Of 1940 Granting Exemptions From Specified Provisions Of The Investment Company Act And Certain Rules Thereunder
In late August 2017, Hurricane Harvey caused catastrophic damage along the Texas and Louisiana coast, in early September 2017, Hurricane Irma caused catastrophic damage to the U.S. Virgin Islands, Puerto Rico and the Florida coast, and, in mid-September 2017, Hurricane Maria caused additional catastrophic damage to the U.S. Virgin Islands and Puerto Rico. The storms and subsequent flooding have displaced individuals and businesses and disrupted communications and transportation across the affected regions. We are issuing this Order to address the needs of companies and individuals with obligations under the federal securities laws who have been directly or indirectly affected by Hurricane Harvey, Hurricane Irma or Hurricane Maria and their respective aftermaths.
Section 15B(a)(4) of the Securities Exchange Act of 1934 (the “Exchange Act”) provides that the Securities and Exchange Commission (the “Commission”), by rule or order, upon its own motion or upon application, may conditionally or unconditionally exempt any broker, dealer, municipal securities dealer or municipal advisor, or class of brokers, dealers, municipal securities dealers, or municipal advisors from any provision of Section 15B or the rules or regulations thereunder, if the Commission finds that such exemption is consistent with the public interest, the protection of investors and the purposes of Section 15B.
Section 36 of the Exchange Act authorizes the Commission, by rule, regulation or order, to exempt, either conditionally or unconditionally, any person, security or transaction, or any class or classes of persons, securities or transactions, from any provision or provisions of the Exchange Act or any rule or regulation thereunder, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.
Section 17A(c)(1) of the Exchange Act provides that the appropriate regulatory agency, by rule or by order, upon its own motion or upon application, may conditionally or unconditionally exempt any person or security or class of persons or securities from any provision of Section 17A or any rule or regulation prescribed under Section 17A, if the appropriate regulatory agency
Section 6(c) of the Investment Company Act of 1940 (the “Company Act”) provides that the Commission may conditionally or unconditionally exempt any person, security or transaction, or any class or classes of persons, securities or transactions, from any provision or provisions of the Company Act, or any rule or regulation thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of
The necessity for prompt action of the Commission does not permit prior notice of the Commission's action.
The time period for the relief specified in Sections II and VI of this Order is as follows:
(1) With respect to those persons or entities affected by Hurricane Harvey, for the period from and including August 25, 2017 to October 6, 2017, all reports, schedules or forms must be filed on or before October 10, 2017;
(2) With respect to those persons or entities affected by Hurricane Irma, for the period from and including September 6, 2017 to October 18, 2017, all reports, schedules or forms must be filed on or before October 19, 2017; and
(3) With respect to those persons or entities affected by Hurricane Maria, for the period from and including September 20, 2017 to November 1, 2017, all reports, schedules or forms must be filed on or before November 2, 2017.
The lack of communications, transportation, electricity, facilities and available staff and professional advisors as a result of Hurricane Harvey, Hurricane Irma and Hurricane Maria could hamper the efforts of public companies and other persons with filing obligations to meet their filing deadlines. At the same time, investors have an interest in the timely availability of required information about these companies and the activities of persons required to file schedules and reports with respect to these companies. While the Commission believes that the relief from filing requirements provided by the exemption below is necessary and appropriate in the public interest and consistent with the protection of investors, we remind public companies and other persons who are the subjects of this Order to continue to evaluate their obligations to make materially accurate and complete disclosures in accordance with the anti-fraud provisions of the federal securities laws.
Accordingly,
(a) The registrant or person other than a registrant is not able to meet a filing deadline due to Hurricane Harvey, Hurricane Irma or Hurricane Maria and their respective aftermaths;
(b) The registrant or person other than a registrant files with the Commission any report, schedule or form required to be filed during the applicable period of relief on or before the applicable deadline set forth in Section I; and
(c) In any such report, schedule or form filed pursuant to this Order, the registrant or person other than a registrant must disclose that it is relying on this Order and state the reasons why, in good faith, it could not file such report, schedule or form on a timely basis.
The conditions in the areas affected by Hurricane Harvey, Hurricane Irma and Hurricane Maria, including displacement of thousands of individuals and the destruction of property, have prevented and will continue to prevent the delivery of mail to the affected areas. In light of these conditions, we believe that relief is warranted for those seeking to comply with our rules imposing requirements to furnish materials to security holders when mail delivery is not possible and that the following exemption is necessary and appropriate in the public interest and consistent with the protection of investors.
Accordingly,
(a) The registrant's security holder has a mailing address located within a zip code where, as a result of Hurricane Harvey, Hurricane Irma or Hurricane Maria, the registrant's common carrier has suspended delivery service of the type or class customarily used by the registrant;
(b) The registrant or other person making a solicitation has followed normal procedure when furnishing the Soliciting Materials to the security holder in order to ensure that the Soliciting Materials preceded or accompanied the proxy, as required by the rules applicable to the particular form of Soliciting Materials, or, in the case of Information Materials, the registrant has followed normal procedure when furnishing the Information Materials to the security holder in accordance with the rules applicable to Information Materials; and
(c) If requested by the security holder, the registrant or other person provides the Soliciting Materials or Information Materials by a means reasonably designed to furnish the Soliciting Materials or Information Materials to the security holder.
Any registrant or other person in need of additional assistance related to deadlines, delivery obligations or their public filings, should contact the Division of Corporation Finance at (202) 551–3500 or at
For reasons similar to those cited in Section III, we believe that relief is warranted for the transmittal by registered management investment companies and registered unit investment trusts (collectively, “registered investment companies”) of annual and semi-annual reports to investors and that the following exemption is necessary and appropriate in the public interest and consistent with the protection of investors.
Accordingly,
For the period from and including August 25, 2017 to November 1, 2017,
(a) The affected investor's mailing address for transmittal as listed in the records of the registered investment company has a zip code for which the registered investment company's common carrier has suspended mail service, as a result of Hurricane Harvey, Hurricane Irma or Hurricane Maria, of the type or class customarily used by the registered investment company for transmittal of reports; and
(b) The registered investment company or other person promptly transmits the reports to affected investors: Either (a) if requested by the investor; or (b) at the earlier of (i) November 2, 2017 or (ii) the resumption of the applicable mail service.
Registered investment companies who are unable to meet a deadline as extended by this relief, or in need of additional assistance regarding issues under the Company Act, should contact the Division of Investment Management, Office of Chief Counsel, at (202) 551–6825 or
Registered investment advisers in need of additional assistance regarding issues under the Investment Advisers Act of 1940 should contact the Division of Investment Management, Investment Adviser Regulation Office, at (202) 551–6999 or
Exchange Act Section 17A and Section 17(f), as well as the rules promulgated under Sections 17A and 17(f), contain requirements for registered transfer agents relating to, among other things, processing securities transfers, safekeeping of investor and issuer funds and securities and maintaining records of investor ownership. Following the events of Hurricane Harvey, Hurricane Irma and Hurricane Maria, registered transfer agents located in the affected regions may have difficulty complying with some or all of their obligations as registered transfer agents. In addition, registered transfer agents located outside the affected regions may be unable to conduct business with entities or security holders inside the regions, thereby making it difficult to process securities transactions and corporate actions in conformance with Section 17A, Section 17(f) and the rules thereunder.
While the national clearance and settlement system continues to operate well in light of these emergencies, the Commission recognizes that the need to effect securities transfers and payments to and from security holders in the affected regions may present compliance issues for affected transfer agents. Therefore, the Commission is using its authority under Section 17A and Section 36 of the Exchange Act to provide temporary relief from certain regulatory provisions. This Order temporarily exempts transfer agents from the requirements of: (1) Section 17A of the Exchange Act and Rules 17Ad–1 through 17Ad–20 thereunder; and (2) Section 17(f) of the Exchange Act and Rules 17f–1 and 17f–2 thereunder. The Commission finds the following exemption to be in the public interest and consistent with the protection of investors and the purpose of Section 17A of the Exchange Act, including the prompt and accurate clearance and settlement of securities transactions and the safeguarding of securities and funds.
Accordingly, it is ordered, pursuant to Sections 17A and 36 of the Exchange Act, that any registered transfer agent that is unable to comply with Section 17A and Section 17(f) of the Exchange Act and the rules promulgated thereunder, as applicable, due to Hurricane Harvey, Hurricane Irma or Hurricane Maria and their respective aftermaths is hereby temporarily exempted from complying with such provisions for the period from and including August 25, 2017 to November 2, 2017 where the conditions below are satisfied.
(a) A registered transfer agent relying on this Order must notify the Commission in writing by November 2, 2017 of the following:
(1) The transfer agent is relying on this Order;
(2) A statement of the reasons why, in good faith, the transfer agent is unable to comply with Section 17A and Section 17(f) of the Exchange Act and the rules promulgated thereunder, as applicable;
(3) If the transfer agent knows or believes that the books and records it is required to maintain pursuant to Section 17A and the rules thereunder were lost, destroyed or materially damaged, information, to the extent reasonably available, as to the type of books and records that were maintained, the names of the issuers for whom such books and records were maintained, the extent of the loss of, or damage to, such books and records and the steps taken to ameliorate any such loss or damage; and
(4) If the transfer agent knows or believes that funds or securities belonging to either issuers or security holders and within its possession were, for any reason, lost, destroyed, stolen or unaccounted for, information, to the extent reasonably available, regarding the dollar amount of any such funds and the number of such securities and the steps taken to ameliorate any such loss; and
(b) Transfer agents that have custody or possession of any security holder or issuer funds or securities shall use all reasonable means available to ensure that all such securities are held in safekeeping and are handled, in light of all facts and circumstances, in a manner reasonably free from risk of theft, loss or destruction and that all funds are protected against misuse. To the extent possible, all security holder or issuer funds that remain in the custody of the transfer agent shall be maintained in a separate bank account held for the exclusive benefit of security holders until such funds are properly remitted.
The notification required under (a) above shall be sent to: U.S. Securities and Exchange Commission, Division of Trading and Markets, Office of Clearance and Settlement, 100 F Street NE., Washington, DC 20549–7010.
The Commission encourages registered transfer agents and the issuers for whom they act to inform affected security holders whom they should contact concerning their accounts, their access to funds or securities and other shareholder concerns. If feasible, issuers and their transfer agents should place a notice on their websites or providing toll free numbers to respond to inquiries.
Transfer agents who are unable to meet a deadline as extended by this relief, or in need of additional assistance, should contact the Division of Trading and Markets at (202) 551–5777 or
Section 15B of the Exchange Act and Rule 15Ba1–5(a)(1) thereunder requires each registered municipal advisor to file with the Commission an annual update to its Form MA. For reasons similar to those cited in Section II, the Commission believes that relief is warranted for the filing with the Commission of annual updates to Form MA by registered municipal advisors and that such relief is consistent with the public interest, the protection of
Accordingly, it is so ordered, pursuant to Section 15B(a)(4) of the Exchange Act, that any registered municipal advisor is exempt from the requirement to file an annual update to Form MA with the Commission, as required by Section 15B of the Exchange Act and Rule 15Ba1–5(a)(1) thereunder, where the conditions below are satisfied.
(a) The registered municipal advisor is not able to fulfill its obligation to file an annual update to the registered municipal advisor's Form MA within 90 days of the end of the registered municipal advisor's fiscal year due to Hurricane Harvey, Hurricane Irma or Hurricane Maria;
(b) The registered municipal advisor files with the Commission its annual update to Form MA required to be filed during the applicable period of relief on or before the applicable deadline set forth in Section I; and
(c) In any such annual update to its Form MA filing, the registered municipal advisor must disclose that it is relying on this Order and state the reasons why, in good faith, it could not file such annual update to Form MA on a timely basis.
Registered municipal advisors who are unable to meet a deadline as extended by this relief or in need of additional assistance, should contact the Office of Municipal Securities at (202) 551–5680 or
The conditions in the areas affected by Hurricane Harvey, Hurricane Irma and Hurricane Maria, including displacement of individuals, the destruction of property and loss or destruction of corporate records, may require extraordinary efforts to reconstruct lost or destroyed accounting records. The Commission understands that in these particularly challenging situations an audit client may look to its auditor for assistance in reconstruction of its accounting records because of the auditor's knowledge of the client's financial systems and records. Under Section 10A(g)(1) of the Exchange Act and Rule 2–01(c)(4)(i) of Regulation S–X, auditors are prohibited from providing bookkeeping or other services relating to the accounting records of the audit client, and in Rule 2–01(c)(4)(i) of Regulation S–X, these prohibited services are described as including “maintaining or preparing the audit client's accounting records” or “preparing or originating source data underlying the audit client's financial statements.” In light of the conditions in areas affected by Hurricane Harvey, Hurricane Irma and Hurricane Maria, however, we believe that limited relief from these prohibitions is warranted for those registrants and other persons that are required to comply with the independence requirements of the federal securities laws and the Commission's rules and regulations thereunder and that are affected by those conditions. The Commission finds the following exemption to be necessary and appropriate in the public interest and consistent with the protection of investors.
Accordingly, it is ordered, pursuant to Section 36 of the Exchange Act, that independent certified public accountants engaged to provide audit services to registrants and other persons required to comply with the independence requirements of the federal securities laws and the Commission's rules and regulations thereunder are exempt from the requirements of Section 10A(g)(1) of the Exchange Act and Rule 2–01(c)(4)(i) of Regulation S–X, where the conditions below are satisfied.
(a) Services provided by the auditor are limited to reconstruction of previously existing accounting records that were lost or destroyed as a result of Hurricane Harvey, Hurricane Irma or Hurricane Maria and such services cease as soon as the audit client's lost or destroyed records are reconstructed, its financial systems are fully operational and the client can effect an orderly and efficient transition to management or other service provider; and
(b) Services provided by the auditor to its audit client pursuant to this Order are subject to pre-approval by the audit client's audit committee as required by Rule 2–01(c)(7) of Regulation S–X.
Auditors or audit clients who are in need of additional assistance or have other questions relating to auditor independence, should contact the Office of the Chief Accountant at (202) 551–5300 or
By the Commission.
On January 25, 2017, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On March 22, 2017, pursuant to Section 19(b)(2) of the Act,
On September 27, 2017, the Exchange withdrew the proposed rule change (SR–NYSEArca–2017–06), as modified by Amendment No. 2.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration.
Notice of Social Security Ruling (SSR).
We are providing notice of SSR 17–4p. This SSR clarifies our responsibilities and the responsibilities of a claimant and a claimant's representative to develop evidence and other information in disability and blindness claims.
Patrick McGuire, Office of Appellate Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605–7100. For information on eligibility or filing for benefits, call our national toll-free number, 1–800–772–1213 or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, at
Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are doing so in accordance with 20 CFR 402.35(b)(1).
Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans' benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.
Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).
This SSR will remain in effect until we publish a notice in the
This Ruling clarifies our responsibilities and those of the claimant and the claimant's representative to develop evidence and other information in disability and blindness claims under titles II and XVI of the Social Security Act (Act). This Ruling applies at all levels of our administrative review process, as described below.
Sections 206(a), 223(d), and 1614(a) of the Social Security Act, as amended; 20 CFR 404.935, 404.970, 404.1512, 404.1513, 404.1593, 404.1594, 404.1614, 404.1740, 404.1745, 416.912, 416.913, 416.993, 416.994, 416.1014, 416.1435, 416.1470, 416.1540, and 416.1545.
We need complete evidentiary records to make accurate, consistent disability determinations and decisions at each level of our administrative review process. Although we take a role in developing the evidentiary record in disability claims, claimants and their appointed representatives have the primary responsibility under the Act to provide evidence in support of their disability or blindness claims. Consequently, we expect claimants and their representatives to make good faith efforts to ensure that we receive complete evidence.
Under the Act, we cannot find that an individual is disabled “unless [he or she] furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”
A representative's duty to submit evidence is derivative of the claimant's;
This Ruling explains the requirement to submit or inform us about evidence and clarifies who has the final
In general, an individual has a statutory obligation to provide us with evidence to prove to us that he or she is disabled or blind. The Act also precludes us from finding that an individual is disabled or blind unless he or she submits such evidence to us.
The Act also provides that we “shall consider all evidence available in [an] individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability.”
Thus, although a claimant has the primary responsibility to submit evidence related to his or her disability or blindness claim, the Act also gives us a role in developing evidence. Our statutory responsibilities to ensure that we develop a complete 12-month medical history when we make a determination about whether an individual is under a disability, and to make every reasonable effort to obtain from a claimant's treating source all medical evidence that we need to make a determination before we evaluate medical evidence from a consultative examiner, does not, however, reduce the claimant's responsibilities in any way.
Our regulations require an individual to submit or inform us about all evidence known to him or her that relates to whether or not he or she is disabled or blind.
Generally, individuals must submit or inform us about any written evidence no later than 5 business days prior to the date of the scheduled hearing before an ALJ.
We expect individuals to exercise their reasonable good faith judgment about what evidence “relates” to their disability claims.
To satisfy the claimant's obligation under the regulations to “inform” us about written evidence, he or she must provide information specific enough to identify the evidence (source, location, and dates of treatment) and show that the evidence relates to the individual's medical condition, work activity, job history, medical treatment, or other issues relevant to whether or not the individual is disabled or blind. If the individual does not provide us with information specific enough to allow us to identify the written evidence and understand how it relates to whether or not the individual is disabled or blind, the individual has not informed us about evidence within the meaning of 20 CFR 404.935, 404.1512, 416.912 or 416.1435, and we will not request that evidence.
Our regulations require appointed representatives to assist claimants in complying fully with their responsibilities under the Act and our regulations. All representatives must faithfully execute their duties as agents and fiduciaries of claimants. In that regard, representatives must assist claimants in satisfying the claimants' duties regarding the submission of evidence and in complying with our requests for information or evidence as outlined in the prior section.
In addition to these responsibilities, a representative has an affirmative duty to provide competent assistance to the claimant, including acting with reasonable promptness to help obtain information or evidence the claimant must submit.
While our regulations state that a claimant must submit or inform us of all written evidence at least 5 business days prior to a hearing, our rules of conduct place additional requirements on representatives. As discussed above, under the rules of conduct, representatives are: (1) Required to act with reasonable promptness to help obtain information or evidence the claimant must submit; (2) required to assist the claimant in complying with our requests for information or evidence as soon as practicable; (3) prohibited from unreasonably delaying or causing a delay of the processing of a claim without good cause; and (4) prohibited from actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings. Therefore, we expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to
Pursuant to the Act, we may, after due notice and opportunity for hearing, suspend or prohibit from further practice before the Commissioner a representative who refuses to comply with our rules and regulations or who violates any provision for which a penalty is prescribed.
We will evaluate each circumstance on a case-by-case basis to determine whether to refer a possible violation of our rules to our Office of the General Counsel (OGC). For example, in accordance with the regulatory interpretation discussed above, we may refer a possible violation of rules to OGC when:
• A representative informs us about written evidence but refuses, without good cause, to make good faith efforts to obtain and timely submit the evidence;
• a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us;
• the representative waits until 5 days before a hearing to provide or inform us of evidence when the evidence was known to the representative or available to provide to us at an earlier date;
• the clients of a particular representative have a pattern of informing us about written evidence instead of making good-faith efforts to obtain and timely submit the evidence; or
• any other occasion when a representative's actions with regard to the submission of evidence may violate our rules for representatives.
When we refer a possible violation to OGC, it does not change our duties with respect to the development of the evidence.
Before we make a determination that an individual is not disabled, we must develop the individual's complete medical history, generally for at least 12 months preceding the month in which he or she applied for benefits.
We will assist with developing the record and may request existing evidence directly from a medical source or entity that maintains the evidence if:
• We were informed about the evidence (in the manner explained above) no later than 5 business days before the date of the scheduled hearing; or
• we were not informed about the evidence at least 5 business days before the date of the scheduled hearing, but one of the circumstances listed in 20 CFR 404.935(b) or 416.1535(b) applies.
We will first ask the individual or representative to submit the evidence. However, if the individual or representative shows that he or she is unable to obtain the evidence despite good faith efforts or for reasons beyond his or her control, we may request the evidence directly from the medical source or entity that maintains the evidence.
At the Appeals Council level of review, development of evidence is more limited. The Appeals Council will not obtain or evaluate additional evidence when deciding whether to grant review unless:
• One of the circumstances listed in 20 CFR 404.970(b) or 416.1470(b) applies and the individual or his or her representative shows that the evidence is related to the period on or before the date of the hearing level decision; or
• the claim is a title XVI claim that is not based on an application for benefits (
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the traveling exhibition identified under the titles below, imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at the Denver Art Museum, Denver, Colorado, under the title “Her Paris: Women Artists in the Age of Impressionism,” from on or about October 22, 2017, until on or about January 14, 2018; at the Speed Art Museum, Louisville, Kentucky, under the title “Women Artists in the Age of Impressionism,” from on or about February 17, 2018, until on or about May 13, 2018; at The Sterling and Francine Clark Art Institute, Williamstown, Massachusetts, under the title “Women Artists in Paris 1850–1900,” from on or about June 9, 2018, until on or about September 3, 2018; and at possible additional exhibitions or venues yet to be determined, is in the national interest.
For further information, including a list of the imported objects, contact Elliot Chiu in the Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat.
By virtue of the authority vested in the Secretary of State by the laws of the United States, including by 22 U.S.C. 2651a, I hereby delegate to the Assistant Secretary for International Security and Nonproliferation, to the extent authorized by law, the following functions conferred upon the Secretary by the Nuclear Non-Proliferation Act of 1978, Public Law 95–242 (hereinafter referred to as the “Act”), and the Atomic Energy Act of 1954, Public Law 83–703, as amended (hereinafter referred to as “the Atomic Energy Act”):
(1) Those under section 102, 402 (a), 502(c), 602(c) of the Act;
(2) Those under sections 57(b)(2), 109, 111(b)(1), and 131 of the Atomic Energy Act;
(3) Those under section 126 of the Atomic Energy Act, except for the function of making recommendations to the President on functions reserved to him;
(4) Those under section 123 of the Atomic Energy Act, subject to the Department of State's Circular 175 procedure and except for the function of making recommendations to the President on functions reserved to him; and
(5) Those delegated by paragraphs (a), (b), and (c) of section 2 of Executive Order 12058 of May 11, 1978, provided that the negotiation and conclusion of international agreements shall remain subject to the Department of State Circular 175 procedure.
Any act, executive order, regulation, or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary, the Deputy Secretary, and the Under Secretary for Arms Control and International Security may at any time exercise any authority or function delegated by this delegation of authority. Delegation of Authority Nos. 140, 140–1, 140–2, 140–3, 140–4, and 140–5 are hereby rescinded.
This delegation of authority shall be published in the
Department of State.
Notice of release of the Department of State's FY 2016 Service Contract Inventory.
Acting in compliance with Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111–117), the Department of State is publishing this notice to advise the public of the availability of the FY 2016 Service Contract Inventory. The FY 2016 Service Contract Inventory includes the FY 2016 Planned Analysis, and the FY 2015 Meaningful Analysis.
The inventory was developed in accordance with guidance issued by the Office of Management and Budget (OMB), Office of Federal Procurement Policy (OFPP). The Department of State has posted its FY 2016 Service Contract Inventory at the following link:
The inventory is available on the Department's Web site as of September 18, 2017.
Marlon Henry, Management and Program Analyst, A/EX/CSM, 202–485–7210,
Notice is hereby given of the following determinations: I hereby determine that two objects to be included in the exhibition “Veronese in Murano: Two Venetian Renaissance Masterpieces Restored,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at The Frick Collection, New York, New York, from on or about October 24, 2017, until on or about March 11, 2018, at the New Orleans Museum of Art, New Orleans, Louisiana, from on or about April 19, 2018, until on or about September 3, 2018, and at possible additional exhibitions or venues yet to be determined, is in the national interest.
For further information, including a list of the imported objects, contact Elliot Chiu in the Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Notice is hereby given of the following determinations: I hereby determine that two objects to be included in the exhibition “François Morellet,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at the Dia Art Foundation, New York, New York, from on or about October 28, 2017, until on or about June 2, 2018, and at possible additional exhibitions or venues yet to be determined, is in the national interest.
For further information, including a list of the imported objects, contact Elliot Chiu in the Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
By virtue of the authority vested in the Secretary of State, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. 2651a), and Executive Order 13648 of July 1, 2013 (the Executive Order), I hereby designate the Under Secretary for Economic Growth, Energy, and the Environment (the Under Secretary) as the Department of State representative to the Presidential Task Force on Wildlife Trafficking, established by Section 2 of the Executive Order; together with the authorities necessary to carry out such function. In the event that the position of the Under Secretary is vacant, I hereby designate the Assistant Secretary for Oceans and International Environmental and Scientific Affairs to be the Department of State representative for purposes of the Executive Order. Any act, executive order, regulation, or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation, or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary and the Deputy Secretary may at any time exercise any authority or function delegated by this delegation of authority. This delegation of authority shall be published in the
Surface Transportation Board.
Modified Proposed Railroad Cost Recovery Procedures Productivity Adjustment.
In a decision served on September 29, 2017, the Surface Transportation Board proposes a second tentative productivity adjustment for the change in the railroad productivity for the 2011–2015 averaging period, modified to reflect new data, and invites comments on a new “linking factor” computed to enable the modified 2015 productivity adjustment to be compared to prior years' productivity adjustments. The Board will also hold a technical workshop with interested parties and Board staff.
Parties may file written comments by November 13, 2017, and may file replies by December 13, 2017. In addition, a technical workshop with interested parties and Board staff will be held on October 17, 2017, at 10:00 a.m. Prior to the workshop, interested parties may submit technical questions as described in the Board's decision to
Send written comments (an original and 10 copies) referring to Docket No. EP 290 (Sub-No. 4) to: Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. The technical workshop with interested parties and Board staff will be held on October 17, 2017, at 10:00 a.m. in the Board's Hearing Room at 395 E Street, SW., Washington, DC 20423–0001.
Pedro Ramirez, (202) 245–0333. Federal Information Relay Service (FIRS) for the hearing impaired, (800) 877–8339.
This workshop will be available on the Board's Web site by live video streaming. To access the workshop, click on the “Live Video” link under “Information Center” at the left side of the home page beginning at October 17, 2017, at 10:00 a.m. Additional information is contained in the Board's decision, which is available on our Web site at
By the Board, Board Members Begeman, Elliott, and Miller.
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold a public hearing on November 2, 2017, in Harrisburg, Pennsylvania. At this public hearing, the Commission will hear testimony on the projects listed in the
The public hearing will convene on November 2, 2017, at 2:30 p.m. The public hearing will end at 5:00 p.m. or at the conclusion of public testimony, whichever is sooner. The deadline for the submission of written comments is November 13, 2017.
The public hearing will be conducted at the Pennsylvania State Capitol, Room 8E–B, East Wing, Commonwealth Avenue, Harrisburg, Pa.
Jason Oyler, General Counsel, telephone: (717) 238–0423, ext. 1312; fax: (717) 238–2436.
Information concerning the applications for these projects is available at the SRBC Water Application and Approval Viewer at
The public hearing will cover the following projects:
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Interested parties may appear at the hearing to offer comments to the Commission on any project listed above. The presiding officer reserves the right to limit oral statements in the interest of time and to otherwise control the course of the hearing. Guidelines for the public hearing will be posted on the Commission's Web site,
Pub. L. 91–575, 84 Stat. 1509
Federal Aviation Administration (FAA), DOT.
Notice.
Notice is being given that the FAA is considering a proposal from the Port of Skagit County to release approximately 125 acres of airport land
Comments are due within 30 days of the date of the publication of this notice in the
Ms. Heather Rogerson, Planning and Environmental Administrator, Port of Skagit, 15400 Airport Drive, Burlington, WA 98223; or Ms. Cayla D. Morgan, Environmental Protection Specialist, Seattle Airports District Office, 1601 Lind Avenue SW., Suite 250, Renton, WA, 98057–3356, (425) 227–2653. Documents reflecting this FAA action may be reviewed at the above locations.
Under the provisions of Title 49, U.S.C. 47151(d), and 47153(c), the FAA is considering a proposal from the Port of Skagit to release approximately 125 acres of airport land. The Port has invested significant funds for commercial subdivisions and installation of critical infrastructure in Divisions 5 and 7, but despite the ready-to-build condition and years of steady marketing the Port has not been able to attract a suitable private-sector development on a leased basis.
Paccar, Inc., a private sector corporation, has now presented the Port with an offer to purchase. The Port commission has declared a portion of Division 5 and all of Division 7 (“the property”) surplus to the needs of Port of Skagit and desires to sell the property to Paccar in order to generate new income to be used for the benefit of the Airport.
Federal Highway Administration (FHWA), USDOT.
Notice of limitation of claims for judicial review of actions by FHWA and other Federal Agencies.
This notice announces actions taken by FHWA and other Federal Agencies since July 25, 2016, that are final. The actions relate to the proposed SR–87 Connector (from SR 87S to SR 87N) in Santa Rosa County; and the I–4 Beyond the Ultimate (BtU) from south of SR 528 to east of SR 472 in Orange, Seminole and Volusia Counties, in the State of Florida. These actions grant licenses, permits, and approvals for the projects.
A claim seeking judicial review of the Federal agency actions on the listed highway projects will be barred unless the claim is filed on or before March 5, 2018. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
For FHWA: Ms. Cathy Kendall, AICP, Senior Environmental Specialist, FHWA Florida Division, 3500 Financial Plaza, Suite 400, Tallahassee, Florida 32312; telephone: (850) 553–2225; email:
Notice is hereby given that FHWA and other Federal Agencies have taken final agency action by issuing licenses, permits, and approvals for the projects in Florida listed below. The actions by the Federal agencies on a project, and the laws under which such actions were taken, are described in the documented environmental evaluation and assessment study or environmental impact statement (EIS) issued in connection with the project, and in other project records for the listed projects. The Final Evaluation and Assessment Study, or FEIS, Record of Decision (ROD), and other documents from FHWA and other Federal Agency project records for the listed projects are available by contacting the FHWA at the address above, or by using the links provided below.
This notice applies to all Federal agency decisions by issuing licenses, permits, and approvals as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Gillig, LLC (Gillig), has determined that certain model year (MY) 1997–2016 Gillig low floor buses do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
The closing date for comments on the petition is November 3, 2017.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:
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• Comments may also be faxed to (202) 493–2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
DOT's complete Privacy Act Statement is available for review in a
This notice of receipt of Gillig's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
S7.1.1.13 Photometry
S7.1.1.13.1 When tested according to the procedure of S14.2.1, each front turn signal lamp must be designed to conform to the base photometry requirements plus any applicable multipliers as shown in Tables VI–a and VI-b for the number of lamp compartments or individual lamps and the type of vehicle it is installed on.
In support of its petition, Gillig submitted the following reasoning:
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A front turn signal lamp meets the photometry requirements of FMVSS No. 108 if it: (1) Meets the minimum photometric intensity (“PI”) requirement in each of the five test groups, (2) none of the values for the individual test points are less than 60% of its own minimum PI value, and (3) the minimum PI value between test points is not less than the lower specified minimum value of the two closest adjacent test points on a horizontal or vertical line. Stated another way, an individual test point may be up to 40% below its minimum PI value as long as the group in which it is contained achieves the overall group minimum PI value. Based on this approach, even if the turn signal did not meet the minimum photometry requirements at multiple individual test points, the assembly complies with the standard as long as the overall light intensity of all the test points included within the group does not fall below the required minimum value of the group. (
Gillig, in concert with Hamsar Diversco (Hamsar), its lighting supplier, conducted a series of compliance testing for Generations 1 to 6. In order to accurately execute the testing, Hamsar used CAD drawings of the Gillig Low-Floor to construct an aluminum test stand fixture. The test stand precisely matched the orientation and angle at which the turn signal would have been installed on a Gillig Low-Floor bus. Hamsar then conducted a series of tests measuring the PI output using samples of each of the available generations of turn signals. A summary of test data shows:
(a) For Generations 1 and 2 (the oldest generations), the assemblies meet the minimum photometric intensity (PI) requirements for 3 of 5 groups and allowable 60% of minimum PI at 13 of 19 individual test points. The turn signal's overall PI output of 1271 candelas is approximately 25% below the combined minimum requirements for all 5 groups (1710 candelas).
(b) For turn signals in Generation 3, the assemblies meet the minimum PI requirements of 3 of 5 test groups and allowable 60% of minimum PI at 13 of 19 individual test points. However, the overall PI output for Generation 3 turn signals of 2506 candelas is 47% greater than the combined minimum requirements for all 5 groups (1710 candelas).
(c) For turn signals in Generation 4, the assemblies meet the minimum PI requirements for 3 of 5 test groups and allowable 60% of minimum PI at 15 of 19 individual test points. However, the overall PI output for Generation 4 turn signals of 2120 candelas is 24% greater than the combined minimum requirements for all 5 groups (1710 candelas).
(d) For turn signals in Generation 5, the assemblies meet the minimum PI requirements for 2 of 5 test groups and allowable 60% of minimum PI 8 of 19 individual test points. However, the overall PI output for Generation 5 turn signals of 1403 candelas is only 18% below the combined minimum requirements for all 5 groups (1710 candelas).
(e) For turn signal assemblies in Generation 6, the assemblies also meet the minimum photometric intensity for 3 of 5 test groups and allowable 60% of minimum photometric intensity for 12 of 19 individual test points. The overall photometric intensity output for Generation 6 turn signals of 4201 candelas is 146% greater than the combined minimum requirements for all 5 groups (1710 candelas).
Gillig states that for the test groups in each generation that meets the PI requirements, the values for those groups well exceed the minimum values for the group. The PI output for groups exceeding the minimum values in Generations 1 and 2 achieve 119%–242% of minimum values. The PI output for Generation 3 turn signals achieve 105%–575% of minimum values. The PI output for Generation 4 turn signals achieve 109%–386% of minimum values. The PI output for Generation 5 turn signals achieve 224%–267% of minimum values. Finally, the PI output for Generation 6 turn signals achieve 114%–1022% of minimum values.
Gillig further contends that the turn signals are sufficiently bright and visible overall and there is little if any perceptible difference in light output when compared with a compliant turn signal. The comparisons also illustrate how visually similar the performance of the earlier generations of the assemblies are to the FMVSS No. 108 standard, and why their noncompliance garnered no attention, by Gillig or its customers, in over twenty years of production.
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Relying on this same principle, Gillig contends that despite the technical noncompliance with the PI requirements, the light output in Generation 1–6 turn signals is sufficiently bright and does not create a greater risk than turn signal assemblies that fully meet the photometric parameters. Gillig states that NHTSA has considered deviations from these photometric parameters on numerous occasions, frequently finding that there is no need for a recall remedy campaign when there are other factors contributing to the overall brightness of the equipment.
For example, the agency granted a petition by General Motors
Gillig further states that the agency granted similar petitions for inconsequential noncompliance where
Here, because the PI output of the compliant test groups within Generations 3, 4 and 6 exceeds the candela requirements by a substantial margin, a range of 24%–146% above the additional candela offsets the overall performance of the turn signals.
Gillig observes that in some instances, involving reduced photometric output, NHTSA has denied the petition on the basis that the condition created a measurable impact on the driver's ability to see objects on or above the road.
Gillig states that the agency has long considered changes in light output in the range presented here as being visually imperceptible to vehicle occupants or other drivers.
Finally, according to Gillig, the environment in which the Gillig turn signals are used diminishes any potential risk to safety. Because the buses in which the subject turn signals are installed are predominantly public transit buses, they are managed by fleet operators and undergo regular maintenance and reviews by skilled technicians.
Gillig concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
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(a) For Generations 1 and 2 (the oldest generations), the assemblies meet the minimum photometric intensity (PI) requirements for 3 of 5 groups and allowable 60% of minimum PI at 13 of 19 individual test points. The turn signal's overall PI output of 1364 candelas is approximately 20% below the combined minimum requirements for all 5 groups (1710 candelas).
(b) For turn signals in Generation 3, the assemblies meet the minimum PI requirements of 3 of 5 test groups and allowable 60% of minimum PI at 15 of 19 individual test points. However, the overall PI output for Generation 3 turn signals of 2387 candelas is 40% greater than the combined minimum requirements for all 5 groups (1710 candelas).
(c) For turn signals in Generation 4, the assemblies meet the minimum PI requirements for 4 of 5 test groups and allowable 60% of minimum PI at 15 of 19 individual test points. However, the overall PI output for Generation 4 turn signals of 3307 candelas is 93% greater than the combined minimum requirements for all 5 groups (1710 candelas).
(d) For turn signals in Generation 5, the assemblies meet the minimum PI requirements for 2 of 5 test groups and allowable 60% of minimum PI 12 of 19 individual test points. However, the overall PI output for Generation 5 turn signals of 2385 candelas is only 39% below the combined minimum requirements for all 5 groups (1710 candelas).
(e) For turn signal assemblies in Generation 6, the assemblies also meet the minimum photometric intensity for 4 of 5 test groups and allowable 60% of minimum photometric intensity for 17 of 19 individual test points. The overall photometric intensity output for Generation 6 turn signals of 5655 candelas is 231% greater than the combined minimum requirements for all 5 groups (1710 candelas).
Thus, the new PI output for groups that exceed the minimum values are:
• Generations 1 and 2 achieve 122%–267% of minimum values.
• Generation 3 achieves 192%–428% of minimum values.
• Generation 4 achieves 125%–598% of minimum values.
• Generation 5 achieves 367%–445% of minimum values.
• Generation 6 achieves 143%–1185% of minimum values.
As a result, the groups that exceed the minimum values in each lamp compensate for the groups that are below the minimums to the extent that the overall PI outputs of the most recent four generation of lights (Generations 3–6) significantly exceed the overall PI output required for a front turn signal lamp (1710 candelas).
As part of Gillig's supplemental petition, they submitted a video which shows a side-by-side comparison of Generation 1–6 turn signal assemblies with a newer generation of turn signal that exceeds all FMVSS No. 108 minimum requirements for photometry. Gillig says that the comparisons were performed with the lights in their various generations installed on the same bus as it is driven through a turning maneuver (filmed indoors to control ambient lighting throughout the comparisons). Gillig believes that it is evident from the multiple angles in the video that the lights from Generation 1–6 are so bright and large that they are virtually indistinguishable from the newer version.
To view Gillig's petition analyses, test data and video in its entirety you can visit
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), 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 information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Form 637, Application for Registration (For Certain Excise Tax Activities).
Written comments should be received on or before December 4, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), 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 information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Low-income Housing Credit for Federally-assisted Buildings.
Written comments should be received on or before December 4, 2017 to be assured of consideration.
Direct all written comments to L. Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to Martha R. Brinson, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
(a) Committee for the Preservation of the White House; Executive Order 11145, as amended (Department of the Interior).
(b) President's Commission on White House Fellowships; Executive Order 11183, as amended (Office of Personnel Management).
(c) President's Committee on the National Medal of Science; Executive Order 11287, as amended (National Science Foundation).
(d) President's Export Council; Executive Order 12131, as amended (Department of Commerce).
(e) President's Committee on the International Labor Organization; Executive Order 12216, as amended (Department of Labor).
(f) President's National Security Telecommunications Advisory Committee; Executive Order 12382, as amended (Department of Homeland Security).
(g) National Industrial Security Program Policy Advisory Committee; Executive Order 12829, as amended (National Archives and Records Administration).
(h) Trade and Environment Policy Advisory Committee; Executive Order 12905 (Office of the United States Trade Representative).
(i) Governmental Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 (Environmental Protection Agency).
(j) National Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 (Environmental Protection Agency).
(k) Good Neighbor Environmental Board; Executive Order 12916, as amended (Environmental Protection Agency).
(l) Presidential Advisory Council on HIV/AIDS; Executive Order 12963, as amended (Department of Health and Human Services).
(m) President's Committee for People with Intellectual Disabilities; Executive Order 12994, as amended (Department of Health and Human Services).
(n) Invasive Species Advisory Committee; Executive Order 13112, as amended (Department of the Interior).
(o) Marine Protected Areas Federal Advisory Committee; Executive Order 13158 (Department of Commerce).
(p) Advisory Board on Radiation and Worker Health; Executive Order 13179 (Department of Health and Human Services).
(q) National Infrastructure Advisory Council; Executive Order 13231, as amended (Department of Homeland Security).
(r) President's Council on Fitness, Sports, and Nutrition; Executive Order 13265, as amended (Department of Health and Human Services).
(s) President's Advisory Commission on Asian Americans and Pacific Islanders; Executive Order 13515, as amended (Department of Education).
(t) President's Council of Advisors on Science and Technology; Executive Order 13539, as amended (Department of Energy).
(u) Interagency Task Force on Veterans Small Business Development; Executive Order 13540 (Small Business Administration).
(v) State, Local, Tribal, and Private Sector (SLTPS) Policy Advisory Committee; Executive Order 13549 (National Archives and Records Administration).
(w) President's Advisory Commission on Educational Excellence for Hispanics; Executive Order 13555 (Department of Education).
(x) President's Advisory Commission on Educational Excellence for African Americans; Executive Order 13621 (Department of Education).
(y) President's Advisory Council on Doing Business in Africa; Executive Order 13675, as amended (Department of Commerce).
(z) Presidential Advisory Council on Combating Antibiotic-Resistant Bacteria; Executive Order 13676 (Department of Health and Human Services).
(aa) Commerce Spectrum Management Advisory Committee; initially established pursuant to Presidential Memorandum on Improving Spectrum Management for the 21st Century (November 30, 2004) (Department of Commerce).
(bb) National Space-Based Positioning, Navigation, and Timing Advisory Board; National Security Presidential Directive–39, “U.S. National Space-Based Position, Navigation, and Timing Policy” (December 8, 2004) (National Aeronautics and Space Administration).
(cc) San Juan Islands National Monument Advisory Committee; Proclamation 8947 of March 25, 2013 (Department of the Interior).
(dd) Bears Ears National Monument Advisory Committee; Proclamation 9558 of December 28, 2016 (Department of the Interior).
(ee) Gold Butte National Monument Advisory Committee; Proclamation 9559 of December 28, 2016 (Department of the Interior).
(ff) President's Board of Advisors on Historically Black Colleges and Universities; Executive Order 13779 (Department of Education).
(b) The Director of the Office of Personnel Management and heads of executive departments and agencies shall, consistent with law, promptly move to rescind any orders, rules, regulations, guidelines, programs, or policies implementing or enforcing Executive Order 13522.
(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) 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.