Food Safety and Inspection Service
Rural Business-Cooperative Service
National Foundation on the Arts and the Humanities
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
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Under Secretary for Technology
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National Indian Gaming Commission
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Mine Safety and Health Administration
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Federal Aviation Administration
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National Highway Traffic Safety Administration
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Transportation Security Administration
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding four airworthiness directives related to the main rotor yoke (yoke) on the Bell Model 204B, 205A, 205A–1, 205B, and 212 helicopters, to retain certain inspections and certain life limits, to require an increased inspection frequency for certain yokes, and to expand these inspections and retirement lives to other yokes. This airworthiness directive is prompted by past reports of cracks in the yoke, another recent report of a cracked yoke, and the decision that other yokes, approved based on identicality, need to be subject to the same inspection requirements and retirement lives. The actions are intended to detect a crack in a yoke to prevent failure of the yoke, and subsequent loss of control of the helicopter.
This AD is effective February 27, 2013.
For service information identified in this AD, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101, telephone (817) 280–3391, fax (817) 280–6466, or at
You may examine the AD docket on the Internet at
Michael Kohner, Aviation Safety Engineer, Rotorcraft Certification Office, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 222–5170; email
On November 2, 2011, at 76 FR 67628, the
Since the issuance of those ADs, certain yokes manufactured under a parts manufacturer approval (PMA) were identified as being susceptible to the same cracking as the Bell manufactured yokes. The NPRM proposed retaining the requirements of the existing ADs while expanding the applicability to include yokes produced under a PMA whose design approval was based on identicality with the affected Bell yoke. The NPRM also proposed giving operators credit for the accumulated operating time on certain yokes covered by the superseded ADs.
The proposed requirements of this AD were intended to prevent cracking of a yoke, failure of the yoke, and subsequent loss of control of the helicopter.
We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM (76 FR 67628, November 2, 2011).
Bell issued Alert Service Bulletins (ASBs) Nos. 204–92–36, 205–92–51, and 212–92–80, all dated October 23, 1992. These ASBs specify replacing yoke P/N 204–011–102 (all dash numbers) by December 31, 1993, with yoke P/N 212–011–102–105 or –109, depending on the helicopter configuration. The replacement yokes are made from stainless steel and have improved design characteristics that address the corrosion problems and are not subject to any heavy lift cycle counting required for previous yokes installed on the Model 205B and 212 helicopters.
We have reviewed the relevant information and determined that an unsafe condition is likely to exist or develop on other products of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for minor editorial changes and a change to correct one instance of the word “Unfactored” to the word “Factored.” In addition, the notes were removed to prevent any misconception that they were mandatory procedures. These minor editorial changes are consistent with the intent of the proposals in the
We estimate that this AD will affect 15 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Reviewing the helicopter records and determining the total factored hours TIS will require about 3 work hours at an average labor rate of $85 per hour, for a total cost of $255 per helicopter and a total cost to the U.S. operator fleet of $3,825. Removing the yoke from the helicopter and performing a visual inspection and MPI will require about 35 work hours at an average labor rate of $85 per work hour, for a total cost of $2,975 per helicopter and a total cost to the U.S. operator fleet of $44,625 per inspection cycle.
To replace a yoke will require about 32 work hours at an average labor rate of $85 per hour for labor costs of $2,720 per helicopter, and required parts will cost $40,157 for a total cost per helicopter of $42,877 and a total cost to the U.S. operator fleet of $643,155.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model 204B, 205A, 205A–1, 205B, and 212 helicopters, with a main rotor yoke (yoke), part number (P/N) AAI–4011–102 (all dash numbers), ASI–4011–102 (all dash numbers), or 204–011–102 (all dash numbers), installed, certificated in any category.
This AD defines the unsafe condition as a crack in a yoke. This condition could result in failure of a yoke, and subsequent loss of control of the helicopter.
This AD supersedes AD 93–05–01, Amendment 39–8507 (58 FR 13700, March 15, 1993); AD 81–19–02, Amendment 39–4208 (46 FR 45595, September 14, 1981; AD 81–19–01, Amendment 39–4207 (46 FR 45595, September 14, 1981); and AD 79–20–05, Amendments 39–3662 (45 FR 6922, January 31, 1980), 39–3626 (44 FR 70123, December 6, 1979), and 39–3572 (44 FR 55556, September 27, 1979).
This AD becomes effective February 27, 2013.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) For helicopters with yoke, P/N AAI–4011–102 (all dash numbers) and ASI–4011–102 (all dash numbers), installed, within 100 hours time-in-service (TIS):
(i) Create a component history card or equivalent record for each yoke.
(ii) Determine the model for each helicopter on which the yoke has been installed from the time the yoke had zero hours TIS.
(iii) In accordance with the rate per hour categories shown in Table 1 to paragraph (f) of this AD, categorize the accumulated “Factored Hours TIS” on each yoke by determining the types of operation AND the rate per hour of external load lifts for each hour TIS accumulated on each yoke. One external load lift occurs each time the helicopter picks up an external load and drops it off. For determining the proper rate per hour category for external load operations, any external load lift in which the helicopter achieves a vertical altitude difference of greater than 200 feet indicated altitude between the pickup and drop-off point counts as two external load lifts.
(iv) By reference to Table 1 to paragraph (f) of this AD, enter the “Unfactored Hours TIS” for each category as determined by paragraph (f)(1)(iii) of this AD. Calculate the “Factored Hours TIS” by multiplying the “Unfactored Hours TIS” by the “Hours TIS Factor.” Determine the accumulated “Total Factored Hours TIS” on each yoke by adding the factored hours TIS for each type of operation and helicopter model. Tracking the Total Factored Hours TIS is only for establishing a retirement life and not for tracking inspection intervals.
(v) Record the accumulated Total Factored Hours TIS on the component history card or equivalent record for each yoke.
(vi) Continue to factor the hours TIS for each yoke by following paragraph (f)(1)(ii) through (f)(1)(iv) of this AD, and record the additional factored hours TIS on the component history card or equivalent record.
(2) For helicopters with yoke, P/N 204–011–102 (all dash numbers), installed, before further flight:
(i) For hours TIS accumulated before the effective date of this AD, calculate and record the Total Factored Hours TIS as follows:
(A) For the Model 212 helicopters, 1 hour TIS in which passenger or internal cargo was carried equals 1 factored hour TIS; 1 hour TIS where more than 4 external load lifts occurred equals 5 factored hours TIS.
(B) For the Model 204 and 205 series helicopters, 1 hour TIS equals 1 factored hour TIS.
(ii) For hours TIS accumulated after the effective date of this AD, calculate and record the factored hours TIS on the yoke in accordance with the requirements of paragraphs (f)(1)(i) thorough (f)(1)(vi) of this AD.
(3) Revise the Airworthiness Limitations section of the applicable maintenance manuals or the Instructions for Continued Airworthiness (ICAs) by establishing a new retirement life of 3,600 Total Factored Hours TIS for each yoke, P/N AAI–4011–102 (all dash numbers), ASI–4011–102 (all dash numbers), or 204–011–102 (all dash numbers), by making pen and ink changes or inserting a copy of this AD into the Airworthiness Limitations section of the maintenance manual or ICAs.
(4) Record a life limit of 3,600 Total Factored Hours TIS for each yoke, P/N AAI–4011–102 (all dash numbers), ASI–4011–102 (all dash numbers), or 204–011–102 (all dash numbers), on the component history card or equivalent record.
(5) Within 100 hours TIS or 600 hours TIS since the last magnetic particle inspection (MPI) of the yoke, whichever occurs later, and thereafter at intervals not to exceed 600 hours TIS, for any yoke installed on any Model 205B or 212 helicopter:
(i) Remove the yoke from the main rotor hub assembly (hub). Using a 5-power or higher magnifying glass, visually inspect each pillow block bushing hole, spindle radius, and center section web for any corrosion or mechanical damage.
(ii) Perform an MPI of each yoke for a crack.
(6) Within 100 hours TIS or 2,400 hours TIS since the last MPI of the yoke, whichever occurs later, and thereafter at intervals not to exceed 2,400 hours TIS, for any yoke installed on any Model 204B, 205A, or 205A–1 helicopter:
(i) Remove the yoke from the hub. Using a 5-power or higher magnifying glass, visually inspect each pillow block bushing hole, spindle radius, and center section web for any corrosion or mechanical damage.
(ii) Perform an MPI of each yoke for a crack.
(7) Before further flight, replace each yoke with an airworthy yoke if:
(i) The yoke has 3,600 or more Total Factored Hours TIS; or
(ii) The Total Factored Hours TIS for the yoke is unknown and cannot be determined; or
(iii) The yoke has any corrosion or mechanical damage that exceeds any of the maximum repair damage limits; or
(iv) The yoke has a crack.
Special flight permits may only be issued under 14 CFR 21.197 and 21.199 for the purpose of operating the helicopter to a location where the MPI requirements of paragraphs (f)(5) or (f)(6) of this AD can be performed.
(1) The Manager, Rotorcraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Michael Kohner, Aviation Safety Engineer, Rotorcraft Certification Office, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 222–5170; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Bell Alert Service Bulletin Nos. 204–92–36, 205–92–51, and 212–92–80, all dated October 23, 1992, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101, telephone (817) 280–3391, fax (817) 280–6466, or at
Joint Aircraft Service Component (JASC) Code: 6220: Main Rotor Head.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for Bell Model 206L, 206L–1, 206L–3, and 206L–4 helicopters. This AD requires inspecting certain hydraulic servo actuator assemblies (servo) for a loose nut, shaft, and clevis assembly, modifying or replacing the servo as necessary, and reidentifying the servo. This AD is prompted by an investigation after an accident and the determination that there was a loose connection due to improper lock washer installation. These actions are intended to detect loose or misaligned parts of the servo to prevent failure of the servo and subsequent loss of control of the helicopter.
This AD becomes effective February 7, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain document February 7, 2013.
We must receive comments on this AD by March 25, 2013.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437–2862 or (800) 363–8023; fax (450) 433–0272; or at
Matt Wilbanks, Aviation Safety Engineer, Rotorcraft Certification Office, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.
Transport Canada Civil Aviation (TCCA) has issued AD No. CF–2011–19R1, Revision 1, dated December 7, 2011, to correct an unsafe condition for the Bell Model 206L, 206L–1, 206L–3 helicopters, all serial numbers (S/N), and Model 206L–4 helicopters, S/Ns 52001 through 52430, with servo, part number (P/N) 206–076–062–103, installed. TCCA advises that a “quality escape” by a supplier occurred, and a number of Bell servos may have a loose nut, shaft, and clevis assembly. According to TCCA, the loose connection is due to improper lock washer installation. TCAA advises that this discrepancy is not traceable or identifiable except by inspection and that a “disconnect” of the affected components may lead to loss of control of the helicopter. TCAA states Revision 1 of its AD retains the mandated inspections and corrective action in the original issue of its AD but expands the applicability to include all serial-numbered servos.
These helicopter models are manufactured in Canada and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the bilateral agreement, TCCA has kept the FAA informed of the situation described above. We are issuing this AD because we evaluated all information provided by TCCA and determined the unsafe condition is likely to exist or develop on other helicopters of these same type designs.
Bell has issued Alert Service Bulletin (ASB) No. 206L–11–169, Revision B, dated August 29, 2011 (ASB), which specifies, before next flight, unless previously accomplished, a one-time inspection for loose or misaligned parts of the servos, P/N 206–076–062–103, installed on Bell Model 206L, 206L–1, and 206L–3 helicopters, all S/Ns, and Model 206L–4 helicopters, S/Ns 52001 through 52430. TCCA classified this ASB as mandatory and issued AD No. CF–2011–19R1 to ensure the continued airworthiness of these helicopters.
The TCCA AD requires you to return the parts removed from service to the manufacturer. This AD does not.
This AD requires for each servo, before further flight, retracting the boot
We estimate that this AD will affect 695 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. It will take about .5 work hour to inspect and re-identify a servo at $85 per work hour for a total cost per helicopter of about $43, and a total cost to the U.S. operator fleet of $29,538. Replacing a servo will take about 2 work hours and parts costing $33,000, for a total cost per helicopter of $33,170.
Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the required corrective actions must be accomplished before further flight.
Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice an opportunity for public comment before issuing this AD are impracticable and contrary to the public interest and that good cause exists for making this amendment effective in less than 30 days.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Bell Model 206L, 206L–1, and 206L–3 helicopters, all serial numbers (S/N), and Model 206L–4 helicopters, S/Ns 52001 through 52430, with a hydraulic servo actuator assembly (servo), part number (P/N) 206–076–062–103, installed, certificated in any category.
This AD defines the unsafe condition as loose or misaligned parts of the servo. This condition could result in failure of the servo and subsequent loss of control of the helicopter.
This AD becomes effective February 7, 2013.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Before further flight, for each servo:
(1) Retract the boot as depicted in Figure 1 of Bell Alert Service Bulletin (ASB) No. 206L–11–169, Revision B, dated August 29, 2011 (ASB).
(2) Applying only hand pressure, determine whether the nut, shaft, and clevis assembly turn independently from each other.
(i) If the shaft turns independently of the nut or the clevis assembly, before further flight, replace the servo with an airworthy servo.
(ii) If the shaft does not turn independently of the nut or the clevis assembly, inspect to determine whether at least one tab of the lock washer (tab) is aligned with and bent flush against a flat surface of the nut and whether at least one tab is aligned with and bent flush against a flat surface of the clevis assembly.
(A) If at least one tab is aligned with and bent flush against a nut flat surface and at least one tab is aligned with and bent flush against a flat surface of the clevis assembly, for any tab that is not bent flush against either a flat surface of the nut or clevis assembly, bend it flush against a flat surface.
(B) If at least one tab is not aligned with and bent flush against a nut flat surface and at least one tab is not aligned with and bent flush against a flat surface of the clevis assembly, before further flight, replace the servo with an airworthy servo.
(3) Re-identify the servo by metal-impression stamping or by vibro-etching the letter “V” at the end of P/N 206–076–062–103V on the identification plate.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Wilbanks, Aviation Safety Engineer, Rotorcraft Certification Office, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in Transport Canada Civil Aviation AD CF–2011–19R1, Revision 1, dated December 7, 2011.
(1) The Director of the
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Bell ASB No. 206L–11–169, Revision B, dated August 29, 2011.
(ii) Reserved.
(3) For Bell service information identified in this AD, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437–2862 or (800) 363–8023; fax (450) 433–0272; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222–5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Joint Aircraft Service Component (JASC) Code: 6730 Rotorcraft Servo System.
National Institute of Standards and Technology, National Technical Information Service, and Under Secretary for Technology, United States Department of Commerce.
Final rule.
The Under Secretary of Commerce for Standards and Technology, U.S. Department of Commerce, issues a final rule that amends regulations to reflect the abolishment of the Technology Administration and the resulting redelegations of authority.
This rule is effective on January 23, 2013. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 23, 2013.
Henry Wixon, Chief Counsel for NIST, National Institute of Standards and Technology, Mail Stop 1052, Gaithersburg, MD 20899–1052, telephone: (301) 975–2803.
On August 9, 2007, the President signed into law the America COMPETES Act (Pub. L. 110–69) (“COMPETES Act”). In part, the COMPETES Act amended the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3704) by abolishing the Technology Administration and repealing certain authorities of the Under Secretary for Technology. The Secretary of Commerce has redelegated the remaining authorities of the Under Secretary for Technology through a memorandum issued on November 14, 2007. This rule revises the pertinent regulations to reflect the changes in authorities as well as updates addresses and standards referenced in the regulations.
This rule has been determined not to be significant under section 3(f) of Executive Order 12866.
This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 12612.
Prior notice and an opportunity for public comment are not required for this rule of agency organization, procedure, or practice. 5 U.S.C. 553(b)(A).
Because notice and comment are not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. As such, a regulatory flexibility analysis is not required, and none has been prepared.
Notwithstanding any other provision of the law, no person is required to, nor shall any person be subject to penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.
There are no collections of information involved in this rulemaking.
This rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.
Arms and munitions, Incorporation by reference, Labeling, Toys, Transportation.
Metric system.
Arms and munitions, Incorporation by reference, Labeling, Toys, Transportation.
Business and industry, Research, Science and technology.
Metric system.
Administrative practice and procedure, Government contracts, Grant programs, Inventions and patents, Nonprofit organizations, Small businesses.
Inventions and patents, Reporting and recordkeeping requirements.
Administrative practice and procedure, Government employees, Inventions and patents.
For the reasons set forth in the preamble, under the authority of the America COMPETES Act, Public Law 110–69; the National Institute of Standards and Technology Reauthorization Act of 2010, Public Law 111–358; and 15 U.S.C. 277, 15 CFR chapters II and XI and 37 CFR chapters IV and V are amended as follows:
Section 4 of the Federal Energy Management Improvement Act of 1988, 15 U.S.C. 5001.
(b) Traditional B–B, paint-ball, or pellet-firing air guns that expel a projectile through the force of compressed air, compressed gas or mechanical spring action, or any combination thereof, as described in American Society for Testing and Materials standard F 589–85, Standard Consumer Safety Specification for Non-Powder Guns, June 28, 1985. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the IHS Inc., 15 Inverness Way East, Englewood, CO 80112,
No person shall manufacture, enter into commerce, ship, transport, or receive any toy, look-alike, or imitation firearm (“device”) covered by this part as set forth in § 272.1 unless such device contains, or has affixed to it, one of the markings set forth in § 272.3, or unless this prohibition has been waived by § 272.4.
(a) A blaze orange (Fed-Std-595B 12199) or orange color brighter than that specified by the federal standard color number, solid plug permanently affixed to the muzzle end of the barrel as an integral part of the entire device and recessed no more than 6 millimeters from the muzzle end of the barrel.
(b) A blaze orange (Fed-Std-595B 12199) or orange color brighter than that specified by the Federal Standard color number, marking permanently affixed to the exterior surface of the barrel, covering the circumference of the barrel from the muzzle end for a depth of at least 6 millimeters.
(e) This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of Federal Standard 595B, December 1989, color number 12199 (Fed-Std-595B 12199), may be obtained from the General Services Administration at General Services Administration, Federal Acquisition Service, FAS Office of General Supplies and Services, Engineering and Cataloging Division (QSDEC) Arlington, VA 22202 or at the General Services Administration Web site at:
The prohibitions set forth in § 272.2 may be waived for any toy, look-alike or imitation firearm that will be used only in the theatrical, movie or television industry. A request for such a waiver should be made, in writing, to the Chief Counsel for NIST, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1052, Gaithersburg, Maryland 20899–1052. The request must include a sworn affidavit which states that the toy, look-alike, or imitation firearm will be used only in the theatrical, movie or television industry. A sample of the item must be included with the request.
15 U.S.C. 1512 and 3710, 15 U.S.C. 205a, DOO 30–2A.
(a) The Director of the National Institute of Standards and Technology will assist in coordinating the efforts of Federal agencies in meeting their obligations under the Metric Conversion Act, as amended.
35 U.S.C. 206; DOO 30–2A.
(j) The term
All submissions or inquiries should be directed to the Chief Counsel for NIST, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1052, Gaithersburg, Maryland 20899–1052; telephone: (301) 975–2803; email:
35 U.S.C. 207–209, DOO 30–2A.
Sec. 4, E.O. 10096, 3 CFR, 1949–1953 Comp., p. 292, as amended by E.O. 10930, 3 CFR, 1959–1963 Comp., p. 456 and by E.O. 10695, 3 CFR, 1954–1958 Comp., p. 355, DOO 30–2A.
(a) The term
All submissions or inquiries should be directed to the Chief Counsel for NIST, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1052, Gaithersburg, MD 20899–1052; telephone: (301) 975–2803; email:
Securities and Exchange Commission.
Final rule; technical amendment.
On August 6, 2010 and September 16, 2011, the Securities and Exchange Commission (“Commission”) published documents in the
Linda Cullen, Office of the Secretary, at (202) 551–5402; Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
The final rules that are subject to this correction included inaccurate amendatory instructions that resulted in the publication of two Editorial Notes to Part 200. This document is intended only to correct the authority citation to subpart A of Part 200 and remove the two Editorial Notes and does not affect any other aspects of the two original final rules.
Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies), Privacy.
Accordingly, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77o, 77s, 77sss, 78d, 78d–1, 78d–2, 78w, 78ll(d), 78mm, 80a–37, 80b–11, 7202, and 7211 et seq., unless otherwise noted.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (the Commission) is
In the Division of Corporation Finance, for questions on submission type IRANNOTICE, contact Jeffrey Thomas at (202) 551–3600; in the Division of Investment Management for questions concerning submission types 497AD, 40–17G, 40–17G/A, 40–17GCS, 40–17GCS/A, 40–24B2, and 40–24B2/A, contact Heather Fernandez at (202) 551–6708; and in the Office of Information Technology, contact Vanessa Anderson at (202) 551–8800.
We are adopting an updated EDGAR Filer Manual, Volume II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.
The revisions to the Filer Manual reflect changes within Volume II entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 22 (January 2013). The updated manual will be incorporated by reference into the Code of Federal Regulations.
The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.
The EDGAR system will be upgraded to Release 13.0 on January 14, 2013 and will introduce the following changes: EDGAR will be updated to introduce a new submission type, IRANNOTICE, on EDGAR Filing Web site for filers to submit notices of disclosure filed in Exchange Act quarterly and annual reports under Section 219 of the Iran Threat Reduction and Syria Human Rights Act of 2012
EDGAR will be updated to allow filers to submit, on a voluntary basis, submission types 497AD, 40–17G, 40–17G/A, 40–17GCS, 40–17GCS/A, 40–24B2, and 40–24B2/A in Portable Document Format (PDF) as an official filing format. EDGAR will continue to accept ASCII and HTML as official filing formats for these submissions.
The new online version of Form N–SAR deployment has been delayed to April 2013. The specific deployment date will be announced on the Commission's public Web site's “Information for EDGAR Filers” page (
Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S–T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
You may obtain paper copies of the updated Filer Manual at the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Room 1543, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. We will post electronic format copies on the Commission's Web site; the address for the Filer Manual is
Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).
The effective date for the updated Filer Manual and the rule amendments is January 23, 2013. In accordance with the APA,
We are adopting the amendments to Regulation S–T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,
Incorporation by reference, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities.
Investment companies, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z–3, 77sss(a), 78c(b), 78
Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the EDGAR Filer Manual, Volume I: “General Information,” Version 14 (October 2012). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 22 (January 2013). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. You must comply with these requirements in order for documents to be timely received and accepted. You can obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Room 1543, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Electronic copies are available on the Commission's Web site. The address for the Filer Manual is
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u–5, 78w(a), 78
15 U.S.C. 78a
15 U.S.C. 77ddd(c), 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77sss, and 78
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78
[The revised Form ID will not appear in the Code of Federal Regulations]
By the Commission.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is adopting amendments to Rule 17Ad–17 to implement the requirements of Section 929W of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). That Section added to Section 17A of the Securities Exchange Act of 1934 (“Exchange Act”) subsection (g), “Due Diligence for the Delivery of Dividends, Interest, and Other Valuable Property Rights,” which directs the Commission to revise Exchange Act Rule 17Ad–17, “Transfer Agents' Obligation to Search for Lost Securityholders” to: extend the requirements of Rule 17Ad–17 to search for lost securityholders from only recordkeeping transfer agents to brokers and dealers as well; add a requirement that “paying agents” notify “unresponsive payees” that a paying agent has sent a securityholder a check that has not yet been negotiated; and add certain other provisions. The Commission also is adopting a proposed conforming amendment to Rule 17Ad–7(i) and new Rule 15b1–6, a technical rule to help ensure that brokers and dealers have notice of their new obligations with respect to lost securityholders and unresponsive payees.
The amendments will become effective on March 25, 2013. The
Thomas C. Etter, Jr., Special Counsel, at (202) 551–5710, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–7010.
On July 21, 2010, the President signed the Dodd-Frank Act into law.
Section 929W of the Dodd-Frank Act added to Section 17A of the Exchange Act subsection (g), which requires the Commission to revise Exchange Act Rule 17Ad–17
Subsection (g) of Section 17A of the Exchange Act further directs the Commission to revise Rule 17Ad–17 to include “a requirement that the paying agent provide a single written notification to each missing security holder that the missing security holder has been sent a check that has not yet been negotiated.”
Section 17A(g)(1)(D)(i) of the Exchange Act provides that “a security holder shall be considered a `missing security holder' if a check is sent to the security holder and the check is not negotiated before the earlier of the paying agent sending the next regularly scheduled check or the elapsing of six months after the sending of the not yet negotiated check.”
Exchange Act Section 17A(g)(1)(B) and (C) also require that the revisions to Rule 17Ad–17: (1) Provide an exclusion for paying agents from the notification requirements when the value of the not yet negotiated check is less than $25;
Exchange Act Section 17A(g)(2) requires the Commission to adopt rules, regulations, or orders necessary to implement the provisions of Section 17A(g)(1).
On March 18, 2011, the Commission issued a release proposing for comment amendments to Exchange Act Rules 17Ad–17 and 17Ad–7 (“Proposing Release”).
The Commission received fourteen comment letters on the proposed rule amendments, including six letters from trade associations.
Letters were received from: Mary Pitman, author,
The Commission originally adopted Rule 17Ad–17 in 1997 to address situations where recordkeeping transfer agents have lost contact with
The amendments to Rule 17Ad–17 implement the statutory directive of Section 17A(g)(1) of the Exchange Act to extend the application of that rule to brokers and dealers. Specifically, the Commission is adopting the changes to Rule 17Ad–17 implementing this extension largely as proposed, principally by revising paragraph (a) of Rule 17Ad–17 to extend its requirements to “every broker or dealer that has customer security accounts that include accounts of lost securityholders”.
As adopted, Rule 17Ad–17(a) will now apply to all “brokers” and “dealers”. Two commenters
The Commission has carefully considered these comments for narrowing the application of Rule 17Ad–17 to some subset of brokers and dealers or securities. The Commission acknowledges that there may be different means by which a broker or dealer may determine whether it has accounts of lost securityholders, as well as different means of exercising reasonable care to ascertain the correct addresses of those securityholders under Rule 17Ad–17.
The Commission is therefore interpreting the terms “broker” and “dealer” in paragraph (a) of the rule to mean a “broker” or “dealer” as defined, respectively, in Exchange Act Sections 3(a)(4)
As adopted, Rule 17Ad–17(a)(1) will now require brokers and dealers to search for “lost securityholders” as that term is defined in paragraph (b)(2) of the rule. Two commenters questioned the obligation to consider a securityholder “lost” after the return of a single item of correspondence, as provided in paragraph (b)(2) of the rule.
The Commission notes that the purpose of Rule 17Ad–17 has been to make certain that records of transfer agents—and now brokers and dealers—reflect the correct addresses for securityholders. Because of the importance of having accurate records and of maintaining contact with securityholders, the rule as adopted in 1997—the version the Commission is directed by Congress to extend to brokers and dealers—provides that the obligation to search for a lost securityholder should attach when the first item of any type of correspondence is returned as undeliverable.
Therefore, the Commission has determined not to adopt the suggestions to delay a broker's or dealer's obligation to search until several items or some specific type of correspondence have been returned as undeliverable.
One commenter suggested that if the proposed amendments to Rule 17Ad-17 were adopted, the rule should make clear that a broker's or dealer's obligation to search for lost securityholders applies to the same universe of securities to which a registered transfer agent's obligation applies,
The commenter also states that if a transfer agent has contractually agreed to search for the lost securityholders of a particular issuer, then no principal underwriter or selling broker of that issuer's securities should be obligated to search for the same lost securityholders.
New paragraph (c) of Rule 17Ad–17 implements the statutory directive of Section 17A(g) of the Exchange Act by requiring, among other things, that a paying agent must provide to each unresponsive payee a single written notification no later than seven months
The Commission is adopting Rule 17Ad–17 largely as proposed. However, as described below, the Commission is adopting the term “unresponsive payee” throughout Rule 17Ad–17(c) in lieu of “missing securityholder” because of the potential for confusion and misinterpretation by paying agents and other parties. In addition, also as described below, the Commission is providing additional guidance about when certain of the requirements applicable to paying agents apply, clarifying when notifications must be sent by paying agents, and modifying paragraphs (c)(1) and (c)(3) from the text of the Proposing Release to allow the requisite calculations to rely on days as well as months.
Consistent with the definition in Section 17A(g)(1)(D)(ii) of the Exchange Act,
The Commission understands that the term “paying agent” applies broadly, but believes this expansive definition is consistent with congressional intent in light of the precise language requiring a range of specific entities to be included in the definition. While the Commission recognizes that some of the entities covered by the definition of “paying agent” are not required to be registered with the Commission, the Commission believes that the broad definition of “paying agent” in Section 17A(g) of the Exchange Act provides the Commission with authority with respect to such entities for purposes of Rule 17Ad–17. Consequently, the Commission is adopting as proposed the statutory language defining “paying agent” specifically drafted by Congress for inclusion in Rule 17Ad–17.
Another commenter stated that the term “paying agent” should be defined to exclude any broker, dealer, transfer agent, investment adviser, indenture trustee, custodian, or any other person that is not contractually obligated to distribute money received from an issuer to an issuer's securityholders.
This commenter also suggests that the rule should exempt issuers that contract with other paying agents from the requirement to provide written notification to persons with checks that are not yet negotiated. The Commission does not interpret the definition of “paying agent” to apply to an issuer that has contracted with another entity to act as the issuer's “paying agent” and that is not itself distributing payments to securityholders; accordingly, the Commission does not believe a specific exemption is required.
New paragraph (c)(3) of Rule 17Ad–17, consistent with Section 17A(g)(1)(D)(i) of the Exchange Act,
As adopted, paragraph (c)(3) uses the term “unresponsive payee” instead of the term “missing securityholder,” which is used by Section 17A(g) of the Exchange Act and by the proposed rule. Five commenters objected to the proposed rule's use of the term “missing securityholder,” asserting that the new term: (1) Would be confused with the rule's existing term “lost securityholder”; (2) is a misnomer because it does not actually involve securityholders that are missing but simply securityholders who have uncashed checks; and (3) should be replaced by a more descriptive term like “unresponsive payee” or “securityholder with an uncashed check.”
One commenter suggested that the term “unresponsive payee” should apply only to natural persons in order to be consistent with the requirements applicable to “lost securityholders.”
Two commenters suggested that the Commission clarify that a securityholder may be deemed an unresponsive payee for purposes of paragraph (c) of Rule 17Ad–17 for having failed to cash a check, but that such status will not result in his being deemed a lost securityholder for purposes of paragraph (a) unless that person specifically meets the definition of “lost securityholder” in paragraph (b)(2) of Rule 17Ad–17.
A commenter asked how long a person who becomes an unresponsive payee will remain in that status.
A commenter inquired about the situation where an unresponsive payee either becomes a lost securityholder or is known to have died.
This commenter also inquired about an unresponsive payee who has received one or more checks from a paying agent on a monthly basis but who has not negotiated any check.
The term “regularly scheduled check” in Section 17A(g)(1)(D)(i) of the Exchange Act is not defined by the statute. One commenter suggested that the term should refer to checks that securityholders have made arrangements to have sent to them on a “pre-specified, regularly-scheduled basis” and that the term should not include
Congress, in drafting Section 17A(g)(1)(B) of the Exchange Act, did not limit the meaning of “regularly scheduled check” to such instruments as “interest and dividend checks” or mention established “arrangements” in this connection.
In the Proposing Release, the Commission proposed to incorporate the statutory definition of “missing securityholder” from Section 17A(g)(1)(D)(i) into subparagraph (c)(3) of Rule 17Ad–17.
Two commenters stated that some regularly scheduled distributions by paying agents are made on a monthly cycle.
The Commission notes that the paying agent would have to send only one notification for a given check and that such notification could be sent along with another check or other subsequent mailing. In addition, the Commission notes that while a particular payee receiving monthly checks may become an “unresponsive payee” after a single month, the requirement to provide an actual notification to the payee allows a full seven months following the sending of the unnegotiated check (
Two commenters asked if a paying agent may issue one generic notification to alert an unresponsive payee of multiple checks, perhaps from different issuers, that remain unnegotiated for the seven-month measuring period.
Commenters further suggested that a check that has not yet been negotiated should be excluded from notification requirements if the check is “redeposited” into the securityholder's account. One commenter suggested that such check redepositing should occur within six months of its issuance.
Another commenter observed that broker-dealers provide periodic statements to customers that include all disbursements, including checks, and that such statements could serve as the notifications contemplated by the rule amendments.
Three commenters requested clarification on whether the written notification would include electronic communications.
One of these commenters suggested that instead of using the statutory terms 6 months and 7 months as measuring times, the rule could use 180 calendar days and 210 calendar days, respectively, which the commenter suggests are easier to accommodate in accounting periods and in programming systems. Accordingly, to accommodate variances in entities' accounting procedures and systems, the Commission is adopting language to provide the option of using months or days. Rule 17Ad–17(c), as adopted, allows “6 months (or 180 days)” and “7 months (or 210 days).”
New paragraph (c)(4) of Rule 17Ad–17, consistent with Exchange Act Section 17A(g)(1)(B), excludes a paying agent from the notification requirements where the value of the not yet negotiated check is less than $25.
In the Proposing Release, the Commission requested comment on Congress' directive in Section 17A(g)(2) that “[t]he Commission shall seek to minimize disruptions to current systems used by or on behalf of paying agents to process payments to account holders and avoid requiring multiple paying agents to send written notifications to a missing security holder [
New paragraph (c)(5) of Rule 17Ad–17, as required by Exchange Act Section 17A(g)(1)(C),
One commenter stated that language in footnote 15 of the Proposing Release constituted an effort by the Commission to “eliminate federal preemption subtly.”
Three commenters requested clarification concerning the effective and compliance dates of the amendments to Rule 17Ad–17.
In response to the comments, the Commission is making clear that the rules will be effective 60 days after publication in the
One commenter asked whether the rule would apply retroactively, meaning that notifications might be required for checks already outstanding.
Another commenter observed that the rule covers brokers, dealers, transfer agents, and others who may not be aware that the rule will apply to them.
The Commission is adopting Rule 15b1–6 simply to provide ongoing notice to brokers and dealers of amendments to Rule 17Ad–17 that affect brokers and dealers, and it imposes no independent obligation on any party.
Currently, Rule 17Ad–17(c)
One commenter suggested that the Commission's proposed name for Rule 17Ad–17 (“Transfer agents', brokers', and dealers' obligation to search for lost securityholders; paying agents' obligation to search for missing securityholders”) is too long.
As explained in the Proposing Release, certain provisions of proposed amendments to Rule 17Ad–17 required a new and mandatory “collection of information” within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The control number for this release is OMB Control Number 3225–0469 and the title is “Transfer Agents' Obligation to Search for Lost Securityholders (17 CFR 240.17Ad–17).” The Commission anticipates changing the title of the collection to “Obligation to Search for Lost Securityholders and Notify Unresponsive Payees” to reflect the amendments to Rule 17Ad–17 and the change in the title of the rule.
As adopted, the amendments to Rule 17Ad–17 require a new and mandatory “collection of information” within the meaning of the PRA. This collection of information consists of: (1) Brokers and dealers collecting information in order to comply with new requirements to search for lost securityholders under paragraph (a) of Rule 17Ad–17; (2) paying agents collecting information in order to comply with new requirements to provide notifications to unresponsive payees under paragraph (c) of Rule 17Ad–17; and (3) brokers, dealers, and paying agents making and maintaining records under paragraph (d) of Rule 17Ad–17 to demonstrate compliance with the requirements of Rule 17Ad–17, including written procedures which describe their methodology for complying.
Brokers and dealers will use the information collected pursuant to paragraph (a) of Rule 17Ad–17—namely, information regarding the accounts of lost securityholders and the addresses of lost securityholders—to engage in searches for lost securityholders. Paying agents will use the information collected pursuant to paragraph (c) of Rule 17Ad–17—namely, information regarding the accounts of unresponsive payees and the status of their negotiations of checks sent by the paying agent—to provide notifications to unresponsive payees that they have been sent checks but have not negotiated them.
The Commission will use the information collected under paragraph (d) of Rule 17Ad–17 to monitor the records made and maintained by every recordkeeping transfer agent, broker or dealer, and paying agent to demonstrate compliance with the requirements set forth in Rule 17Ad–17. Such records will include written procedures that describe the entity's methodology for complying with the rule.
The Commission estimates that approximately 4,705 brokers and dealers would be subject to paragraph (a) of Rule 17Ad–17, which would require them to do certain database searches for their lost securityholders. While applicable to all brokers and dealers, we are estimating that, as a practical matter, paragraph (a) will apply primarily to those brokers and dealers that carry securities accounts for customers (
The Commission estimates that approximately 28,577 entities—issuers, transfer agents, brokers, dealers, indenture trustees, and custodians—potentially will be subject to the requirements of paragraph (c) of Rule 17Ad–17, which would require them to
All brokers, dealers, and paying agents—an estimated total of 7,439 entities
In the Proposing Release, the Commission initially estimated for the purposes of Rule 17Ad–17 that, on an annual basis: (1) Approximately 250,000 searches by brokers and dealers would be required by paragraph (a) of Rule 17Ad–17 as proposed, with each search taking approximately five minutes; and (2) approximately 50,000 notifications by an estimated 1,000 paying agents would be required by paragraph (c) of Rule 17Ad–17 as proposed, with each notification taking approximately three minutes. We further estimated that these searches and notifications would require, respectively, 500 and 100 hours of recordkeeping time. Accordingly, we estimated that the total estimated burden of the proposed amendments to Rule 17Ad–17 would be 23,933 hours.
In response to the Proposing Release, we received comments that costs stated in the Proposing Release “likely are greater than estimated,”
Under paragraph (a) of the amendments to Rule 17Ad–17, brokers and dealers will now be required to conduct certain database searches for lost securityholders. Such database searches must be conducted without charge to the lost securityholders. In the Proposing Release, the Commission stated that much of the information required to be collected in order to effectuate such searches (such as the TINs of lost securityholders) is already maintained by brokers and dealers; accordingly, in many cases there should not be an additional cost to the broker or dealer to obtain the required information. We initially assumed that, with automated equipment and much of the information required to be collected already in the possession of brokers and dealers, lost securityholder searches could be performed in about two minutes. We increased the estimated search time in the Proposing Release to five minutes to allow for additional contingencies that may occur in connection with database searches.
In the Proposing Release, the Commission initially estimated that there were 5,063 broker-dealers registered with the Commission, who would perform approximately 250,000 searches per year—that is, approximately 49 searches for lost securityholders per broker or dealer per year (250,000 divided by 5,063 equals 49 searches per broker-dealer), or less than one search per broker-dealer per week. However, as noted in section III.C above, we anticipate—and the Proposing Release assumed—that Rule 17Ad–17 will as a practical matter apply mainly to brokers and dealers that carry securities accounts for customers (
In reviewing these estimates, some commenters noted that burdens generally may be higher than anticipated in the Proposing Release. Wells Fargo noted that some project costs, such as printing and operating databases, tend to include associated expenses that are not included in the broader categories such as “labor.”
The Commission continues to believe that carrying firms, which we estimate to number approximately 301,
With respect to specific burden estimates, commenters did not address the five minute estimate for the search time under paragraph (a) of Rule 17Ad–17, but instead suggested that we should increase our estimates of the number of searches that would be required. In particular, SIFMA stated, “SIFMA member firms estimate that the number of searches and notifications could be significantly more than the Commission's stated estimates—perhaps as much as four times more.”
Under amended paragraph (c) of Rule 17Ad–17, a paying agent must provide not less than one written notification to each unresponsive payee no later than seven months after such securityholder has been sent a check that has not yet been negotiated. The notification may be sent with a check or other mailing subsequently sent to the unresponsive payee but must be provided no later than seven months after the sending of the not yet negotiated check. In the Proposing Release, the Commission stated that the burden for issuing a notification to an unresponsive payee would be modest, approximately three minutes, given the existence of automated systems that can be used for these purposes in the entities expected to be affected by the amendments to Rule 17Ad–17.
In the Proposing Release, the Commission initially estimated that there would be 1,000 entities acting as paying agents that would be affected by paragraph (c) of Rule 17Ad–17, and that those entities would issue approximately 50,000 notifications per year is equivalent—that is, 50 notifications per paying agent per year (50,000 notifications per year divided by 1,000 paying agents equals 50 notifications per paying agent per year), or fewer than one notification per paying agent per week (50 notifications per paying agent per year divided by 52 weeks per year equals 0.96 notifications per week).
Based on the comments described above about burdens being higher than estimated in the Proposing Release,
We emphasize that all of these populations they can be subject to substantial variations over time. The Commission also notes that the statutory definition of “paying agent” includes “any other person” after specifying all of the categories of financial entities already included in the Commission's estimate of the potential universe of paying agents. Accordingly, we anticipate that only a
In addition, based on the comments received regarding the potential burden of paragraph (c) of Rule 17Ad–17 and the increased estimate in the number of paying agents, we are also increasing the estimated number of annual notifications by paying agent. Commenters did not address our estimated time of three minutes for each unresponsive payee notification, and the Commission has determined to retain this notification time. Accordingly, the Commission is increasing the number of notifications that it estimates will be issued by paying agents each year from 50,000 to 758,750, which is the equivalent of approximately one notification being made per paying agent per business day (1 notification multiplied by 3,035 paying agents multiplied by 250 business days).
Amended paragraph (d) of Rule 17Ad–17 will now requires brokers, dealers, and paying agents that are subject to paragraph (a) and/or paragraph (c) of the rule to maintain records to demonstrate their compliance with the rule, including written procedures which describe their
Based on discussions with market participants, we initially estimated in the Proposing Release that the annual burden for making and keeping these records, which should be processed electronically, would be approximately one hour for every 500 lost securityholder accounts and one hour for every 500 unresponsive payee accounts. Based on this incremental burden, we estimated that the total recordkeeping burden would be approximately 600 hours (250,000 lost securityholders searches divided by 500 accounts plus 50,000 notifications to unresponsive payees divided by 500 accounts, times 1 hour).
We received no specific comment on this incremental burden estimate of one hour, and we continue to believe it appropriate. As described above, however, the Commission is increasing its estimate of the number of searches that will be undertaken for lost securityholders to 650,000 searches and is increasing its estimate of the number of notifications that will be sent to unresponsive payees to 758,750. Accordingly, we are increasing our estimate of the total recordkeeping burden as a result of the amendments to Rule 17Ad–17 from approximately 600 hours to approximately 2,818 hours: 1,300 hours with respect to searches for lost securityholders (650,000 searches divided by 500 accounts, times 1 hour) and 1,518 hours with respect to notifications to unresponsive payees (758,750 notifications divided by 500 accounts, times 1 hour).
In summary, the total revised estimated burden resulting from the amendments to Rule 17Ad–17 and based on the assumptions and estimates described above would be 94,916 hours: 54,160 hours associated with the 650,000 searches expected to be undertaken by brokers and dealers pursuant to the amendments to paragraph (a) of Rule 17Ad–17; 37,938 hours associated with the 758,750 notifications to unresponsive payees expected to be made by paying agents pursuant to the amendments to paragraph (c) of Rule 17Ad–17; and 2,818 hours associated with the making and keeping of records anticipated to be necessary for brokers, dealers, and paying agents to comply with the amendments to Rule 17Ad–17 under paragraph (d) of the rule (54,160 hours plus 37,938 hours plus 2,818 hours).
All collections of information pursuant to Rule 17Ad–17 will be mandatory.
The information collected under the amendments to Rule 17Ad–17 would be generated mainly from the internal records of brokers, dealers, and paying agents. The Commission expects that some of this information, if included in a filing with the Commission, would be deemed confidential to the extent permitted by law with respect to such filing. Additionally, with respect to other information collected under the amendments and included in a filing with the Commission, a broker, dealer, or paying agent can request to the Commission that the information be kept confidential.
Brokers, dealers, and paying agents will be required to retain records and information under Rule 17Ad–17 for a period of three years, with the first year in an easily accessible place.
Exchange Act Section 23(a)(2) requires the Commission, when adopting rules under the Exchange Act, to consider the impact that any new rule would have on competition, and prohibits the Commission from adopting any rule that would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. Furthermore, Exchange Act Section 3(f) requires the Commission, when engaging in rulemaking under the Exchange Act where it is required to consider or determine whether an action is necessary or appropriate in the public interest, to also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
As described above, the Commission is adopting amendments to Rule 17Ad–17 under congressional directive. As originally adopted, Rule 17Ad–17 requires transfer agents to conduct database searches for lost securityholders. Such loss of contact can be harmful to securityholders because they no longer receive corporate communications or interest and dividend payments; in certain cases, securities, cash, and other property may be placed at risk of being deemed abandoned.
As discussed above in detail, Section 929W of the Dodd-Frank Act amended Section 17A of the Exchange Act to extend to brokers and dealers the requirement of Rule 17Ad–17 to search for “lost securityholders.” Separately, the statute requires “paying agents” to provide written notification to each unresponsive payee that the securityholder has been sent a check that has not been negotiated, and defines “paying agent” to include, “any issuer, transfer agent, broker, dealer, investment adviser, indenture trustee, custodian, or any other person that accepts payments from the issuer of a security and distributes the payments to the holders of the security.” The Commission is adopting amendments to Rule 17Ad–17 to address these statutory requirements and to require brokers, dealers, and paying agents subject to the amended rule to make and keep records to demonstrate compliance with the amended rule, including written procedures that describe their methodology for complying.
While the Commission is adopting amendments to Rule 17Ad–17 specifically to implement the statutory mandate, the Commission recognizes that there may be costs and benefits resulting from the statute and amendments to Rule 17Ad–17. Extending the requirements of Rule 17Ad–17 to brokers and dealers represents a new regulatory obligation for brokers and dealers, and these entities will face associated costs of complying with the new obligations. Furthermore, paying agents—including transfer agents, brokers, and dealers—will incur costs associated with the new requirements of Rule 17Ad–17 to provide certain notifications to unresponsive payees. The definition of “paying agent” is sufficiently broad that these costs will also be incurred by entities that do not register with—and have not historically been regulated by—the Commission. At the same time, lost securityholders and unresponsive payees may benefit by receiving
These costs and benefits are discussed below. Additionally, the Commission has considered alternative ways of implementing the statute suggested by commenters, including narrowing the scope of “brokers and dealers” and shortening the definition of “paying agent.” We discuss aspects of these alternative proposals below as well.
Originally adopted in 1997, Rule 17Ad–17 requires recordkeeping transfer agents to conduct database searches for lost securityholders. At the time, the Commission staff estimated that 1.34% of total accounts held by such transfer agents were lost, representing around $450 million in lost assets.
As required by the Dodd-Frank Act, the Commission is extending the obligation under Rule 17Ad–17 to search for lost securityholders to brokers and dealers. While brokers and dealers house and manage certain securityholder accounts, there are good economic reasons to believe the likelihood of accounts becoming lost is lower for brokers and dealers than for transfer agents. Brokers and dealers rely on their customers and account holders as a source of revenue, so have an economic incentive to maintain up-to-date records. Additionally, because the customers' and account holders' assets are held by brokers and dealers, and because most of their contact in the ordinary course of business is with the broker or dealer (not a transfer agent), customers have a stronger incentive to keep their account information updated with the brokers and dealers than with transfer agents, so as to not lose contact with their assets. Indeed, though recent data are scarce because the Commission has not to date formally tracked the number of lost securityholder accounts at brokers and dealers, there are studies that support this hypothesis to some extent.
In a 2001 survey of transfer agents and broker-dealers by the Government Accountability Office (“GAO”) (then called the General Accounting Office), the GAO found that, similar to Commission surveys, approximately 2% of accounts at transfer agents and brokers-dealers were classified as lost. While the GAO concluded that few differences may exist between transfer agents and broker-dealers in the ratio of lost securityholder accounts to total accounts, they did find that 95% of brokers-dealers reported less than 1% of accounts as lost, while for transfer agents, 75% reported less than 1% of accounts as lost. Similarly, a less formal 2000 survey of 17 brokers-dealers by SIFMA (then called the Securities Industry Association) found that lost securityholders accounted for 0.79% of total accounts held at brokers-dealers.
Nevertheless, while the overall incidence of lost securityholder accounts relative to total securityholder accounts held may be lower at brokers and dealers than transfer agents, the absolute magnitude, in terms of both number of lost accounts and dollar amount of assets at risk of being abandoned, may still be economically meaningful. Transfer agents serve as an intermediary between issuers and owners of securities, passing along dividends, interest payments, and other corporate communications and distributions to a company's investors. However, a Commission Briefing Paper from 2007 on proxy voting mechanics noted that, at the time, approximately 85% of exchange-traded securities were held in street name, as opposed to investor name.
In addition to extending the requirement to search for lost securityholders to brokers and dealers, the amendments to Rule 17Ad–17 also require paying agents to notify unresponsive payees in writing when they have unnegotiated checks outstanding. The Commission currently lacks accurate data—including any informal survey or other incomplete dataset that may be indicative—on the number of unresponsive payees, as well as whether a securityholder has not negotiated a check due to, for example, lost or stolen property or investor inattention. However, based on initial estimates in the Proposing Release we provided for public comment and adjusted based on such comment as described in section III above,
As mentioned in the discussion of the economic baseline, the general purpose of Rule 17Ad–17 is to reduce the number of securityholder accounts that become lost, and therefore to minimize the risk that lost property is claimed by the states under escheatment laws. This risk can be economically significant—in 2000, the Commission staff estimated that over $93 million in assets, or an average of $243 per account, were remitted to the states as unclaimed property.
The Commission recognizes that brokers and dealers already have an economic incentive to search for lost securityholders, since they rely on securityholders for revenue. Therefore, it is possible that the benefits of the rule, in terms of a reduction in the number of lost securityholders, will be relatively modest. However, the Commission believes that establishing minimum search requirements will facilitate the realization of such incentives for identifying and finding lost securityholders, as was apparently intended by Congress.
In the case of unresponsive payees, the Commission believes that, due to instances of lost or stolen property, there may exist a subset of investors who are unaware that an unnegotiated check has gone missing. The rule should benefit these investors by invoking the services of paying agents to reduce the number of unnegotiated checks. While these benefits are difficult to quantify, the Commission estimates that paying agents would send approximately 800,000 notifications per year; accordingly, if even a relatively small percentage of notifications result in checks that would not otherwise have been negotiated being negotiated, there may be a significant aggregate monetary benefit to investors.
The Commission also expects the amendments to Rule 17Ad–17 to modestly improve the efficient allocation and use of resources to the extent that the new rules reduce the number of lost securityholders and unresponsive payees. Fewer lost securityholders and unresponsive payees should reduce the amount of property that is effectively idle and not being used deliberately for an economic purpose because the securityholder is unaware of the existence of the property, as well as reduce the costs securityholders face when attempting to track down and claim lost assets. Furthermore, by identifying lost securityholders and finding lost and idle property, there may be beneficial trades that occur as found accountholders rebalance their portfolios, to the extent that it is optimal to do so. This result should in turn lead to enhanced liquidity and improved price efficiency as assets become available for trade.
The Commission also expects that identification of lost accountholders may lead to better corporate governance, either through improved proxy voting rates or through trades that place the securities in the hands of more active investors. Both channels could result in enhanced managerial monitoring and corporate governance, which in turn would promote capital formation as firms make investment choices that are expected to be more closely aligned with the interests of investors.
Finally, the Commission expects that the amendments will have a marginal, if any, impact on competition. Fundamentally, the regulatory problem that Congress addressed in directing the amendment of Rule 17Ad–17 is about efficiency losses associated with lost property that is ultimately claimed by the state, and not about uncompetitive capital markets. We generally expect the benefits of the rule to be realized in terms of the efficient allocation of resources of securityholders and corresponding effects on capital formation through improved monitoring and governance, and not improved competition.
The amendments to Rule 17Ad–17 create new regulatory obligations for brokers, dealers, and paying agents (which include transfer agents, brokers, dealers, and other entities). Brokers and dealers must conduct searches for lost securityholders, while paying agents must provide notifications to an unresponsive payee that he or she is the holder of an unnegotiated check. Furthermore, because the definition of “paying agent” captures certain entities that distribute cash flows from issuers to investors, the amendments create obligations under the Exchange Act for entities that have not historically been regulated by the Commission and for issuers that have had to file only disclosures. To the extent that brokers and dealers and paying agents do not already have systems in place to perform these functions and make and keep the records required to demonstrate compliance (including the written procedures to describe their methodology for complying), these entities will incur costs for any necessary modifications to information gathering, management, recordkeeping, and reporting systems or procedures.
As already discussed, brokers and dealers have an economic incentive to search for lost accounts. While the new rule imposes costs on brokers and dealers, they may already be shouldering some of these costs voluntarily, minimizing the incremental costs of the rule. Nevertheless, in their 2001 study cited above, the GAO found that approximately 40% of transfer agents and brokers and dealers spent less than $10 per lost account to search for lost securityholders, though larger firms were likely to spend more, and about 10% of firms spent greater than $40.
The costs incurred by paying agents in fulfilling their obligations to notify unresponsive payees are less certain, and the Commission currently lacks accurate data—including any informal survey or other incomplete dataset that may be indicative—on the number of unresponsive payees. Since unresponsive payees are not lost but merely unresponsive, paying agents do not incur search costs; variable costs should be limited to identifying and recording when a check has gone unnegotiated, and providing the required written notification. However, certain paying agents may not have the same existing economic incentives to identify and notify unresponsive payees as brokers and dealers already have to search for lost securityholders. Therefore, unlike brokers and dealers that conduct such searches voluntarily being required to do so under the amendments to Rule 17Ad–17, certain paying agents may temporarily face higher fixed costs to set up the systems and procedures to perform their new regulatory obligations. Furthermore, if fixed costs meaningfully outweigh variable costs, there could be competitive burdens placed on smaller entities.
In addition to these search and notification costs, brokers, dealers, and paying agents will incur costs in making and retaining the records required under the amendments to Rule 17Ad–17, including the requirement to maintain written procedures describing their methodology for complying with such amendments. These costs may be moderated for regulated entities like brokers and dealers, who must already maintain extensive sets of records regarding securityholders, including
The Commission requested comment on the costs and benefits of the amendments to Rule 17Ad–17 in the Proposing Release, and has considered the comments as well as alternative ways to implement the statute where possible. Several commenters offered alternative interpretations of the phase “brokers and dealers,” suggesting that the statute be read in such a way that the rule does not apply to all brokers and dealers, as a means to mitigate some of the burden of the amendments.
Similarly, several commenters suggested that the Commission revise or shorten the definition of “paying agent,” since the definition captures entities that do not register with the Commission and have not historically fallen under the Commission's regulatory purview.
Finally, as discussed above, it is not clearly stated in the statute whether the paying agent must provide: (1) A single written notification to
A FRFA has been prepared in accordance with Section 4(a) of the Regulatory Flexibility Act.
This rulemaking action was expressly directed Section 929W of the Dodd-Frank Act, which added paragraph (g) to Section 17A of the Exchange Act. The objectives of this rulemaking, as discussed above in Sections I and II, are to help reduce the number of lost securityholders and unresponsive payees, and to further the Commission's mission of protecting investors. The legal basis for the rulemaking is set forth in Section 17A(g) of the Exchange Act.
Comments from the public suggested that certain cost estimates included in the Proposing Release were too low.
The amendments to Rule 17Ad–17 will apply to all brokers and dealers. However, as described above, we anticipate that the amendments will as a practical matter apply mainly to brokers and dealers that carry securities for customer accounts (
Certain amendments to Rule 17Ad–17 will apply to all paying agents. Section 17A(g)(D)(ii) defines the term “paying agent” to include “any issuer, transfer agent, broker, dealer, investment adviser, indenture trustee, custodian, or any other person that accepts payment from the issuer of a security and distributes the payments to the holder of the security.” With respect to data for the entities who could potentially qualify as “paying agents” under this definition: (1) Of the 10,379 issuers that file reports with the Commission, 1,207 qualify as small businesses;
We believe that a high proportion of paying agent services will be provided by: (1) brokers and dealers that carry customer securities (which, as discussed above in Section V.C.1, would not be small entities) and (2) transfer agents (including bank transfer agents) that provide such services. These firms that typically serve as intermediaries between issuers and securityholders are not typically small businesses as defined in Exchange Act Rule 0–10(c).
New paragraph (d) of Rule 17Ad–17 requires brokers, dealers, and paying agents maintain records to demonstrate compliance with the amendments to Rule 17Ad–17, including written procedures that describe their methodology for complying with the amendments. Such records are required to be maintained for not less than three years, the first year in an easily accessible place in accordance with Rule 17Ad–17(i).
As required by Section 604 of the Regulatory Flexibility Act,
Section 929W of the Dodd-Frank Act, which added Section 17A(g) to the Exchange Act, expressly requires the amendments to Rule 17Ad–17. We believe that small entities should be included under the amendments because, as discussed above, the statutory language does not suggest that Congress intended to exclude or exempt any class of brokers, dealers, or paying agents from compliance. Rather, furthering the apparent goal of Congress—reuniting securityholders and payees with their property—requires the searches and notifications contemplated by Section 929W to be made by entities regardless of their size. In addition, as noted in Section V.C above, we believe that a significant majority of the entities affected by the amendments will be brokers, dealers, and transfer agents that are not small entities. We expect that, in practice, most brokers and dealers conducting searches for lost securityholders will be carrying firms, which are not small entities, and likewise we expect that most paying agents providing notifications to unresponsive payees will be carrying firms and the larger transfer agents (including bank transfer agents).
A copy of the FRFA may be obtained by contacting Thomas C. Etter, Jr., Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–7010, telephone no. (202) 551–5713.
Pursuant to Section 17A(g) of the Exchange Act, 15 U.S.C. 78q-1(g), the Commission has amended § 240.17Ad-7 and § 240.17Ad–17 and added § 240.15b1–6 under the Exchange Act in the manner set forth below.
Reporting and recordkeeping requirements; Securities.
In accordance with the foregoing, the Commission amends Part 240 of Chapter II of Title 17 of the Code of Federal Regulations as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78
Section 240.17Ad–17 is also issued under Pub. L. 111–203, section 929W, 124 Stat. 1869 (2010).
Brokers and dealers are hereby notified of Rule 17Ad–17 (§ 240.17Ad–
The revisions read as follows:
(a)(1) Every recordkeeping transfer agent whose master securityholder file includes accounts of lost securityholders and every broker or dealer that has customer security accounts that include accounts of lost securityholders shall exercise reasonable care to ascertain the correct addresses of such securityholders. In exercising reasonable care to ascertain such lost securityholders' correct addresses, each such recordkeeping transfer agent and each such broker or dealer shall conduct two database searches using at least one information database service. The transfer agent, broker, or dealer shall search by taxpayer identification number or by name if a search based on taxpayer identification number is not reasonably likely to locate the securityholder. Such database searches must be conducted without charge to a lost securityholder and with the following frequency:
(i) Between three and twelve months of such securityholder becoming a lost securityholder; and
(ii) Between six and twelve months after the first search for such lost securityholder by the transfer agent, broker, or dealer.
(3) A transfer agent, broker, or dealer need not conduct the searches set forth in paragraph (a)(1) of this section for a lost securityholder if:
(i) It has received documentation that such securityholder is deceased; or
(ii) The aggregate value of assets listed in the lost securityholder's account, including all dividend, interest, and other payments due to the lost securityholder and all securities owned by the lost securityholder as recorded in the master securityholder files of the transfer agent or in the customer security account records of the broker or dealer, is less than $25; or
(iii) The securityholder is not a natural person.
(c)(1) The paying agent, as defined in paragraph (c)(2) of this section, shall provide not less than one written notification to each unresponsive payee, as defined in paragraph (c)(3) of this section, stating that such unresponsive payee has been sent a check that has not yet been negotiated. Such notification may be sent with a check or other mailing subsequently sent to the unresponsive payee but must be provided no later than seven (7) months (or 210 days) after the sending of the not yet negotiated check. The paying agent shall not be required to send a written notice to an unresponsive payee if such unresponsive payee would be considered a lost securityholder by a transfer agent, broker, or dealer.
(2) The term
(3) A securityholder shall be considered an
(4) A paying agent shall be excluded from the requirements of paragraph (c)(1) of this section where the value of the not yet negotiated check is less than $25.
(5) The requirements of paragraph (c)(1) of this section shall have no effect on state escheatment laws.
(d) Every recordkeeping transfer agent, every broker or dealer that has customer security accounts, and every paying agent shall maintain records to demonstrate compliance with the requirements set forth in this section, which records shall include written procedures that describe the transfer agent's, broker's, dealer's, or paying agent's methodology for complying with this section, and shall retain such records in accordance with Rule 17Ad–7(i) (§ 240.17Ad–7(i)).
By the Commission.
National Indian Gaming Commission, Interior.
Correcting amendment.
The National Indian Gaming Commission (NIGC or Commission) corrects its fee regulations in order to reference the Commission's recently finalized appeal rules contained in another subchapter.
Armando Acosta, National Indian Gaming Commission, 1441 L Street NW., Suite 9100, Washington, DC 20005. Email:
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100–497, 25 U.S.C. 2701
On February 2, 2012, the Commission published a final rule amending part 514 to provide for the submittal of fees and fee worksheets on a quarterly basis rather than bi-annually; to provide for operations to calculate fees based on the gaming operation's fiscal year rather than a calendar year; to amend certain language in the regulation to better reflect industry usage; to establish an assessment for fees submitted 1–90 days late; and to establish a fingerprinting fee payment process. 77 FR 5178, Feb. 2, 2012. In its final rule, the Commission also provided tribes with rights to appeal proposed late fee assessments in accordance with 25 CFR part 577.
On September 25, 2012, the Commission published a final rule consolidating all appeal proceedings before the Commission into a new subchapter H (Appeal Proceedings Before the Commission), thereby removing former parts 524, 539, and 577. 77 FR 58941, Sept. 25, 2012. Thus, any reference in part 514 to appeal rights in former part 577 is obsolete and must be revised to reference the new subchapter H.
The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.
The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321,
The information collection requirements contained in this rule were previously approved by the Office of Management and Budget as required by 44 U.S.C. 3501,
For the reasons discussed in the Preamble, the Commission amends its regulations at 25 CFR part 514 as follows:
25 U.S.C. 2706, 2710, 2710, 2717, 2717a.
Coast Guard, DHS.
Direct final rule; request for comments.
By this direct final rule, the Coast Guard is removing the Decker Island restricted anchorage area in the Sacramento River. The restricted anchorage area was needed in the past to prevent non-government vessels from transiting through or anchoring in the United States Army's tug and barge anchorage zones. The United States Army relinquished control of the island in 1975, and the restricted anchorage area is no longer necessary.
This rule is effective April 23, 2013, unless an adverse comment, or notice of intent to submit an adverse comment, is either submitted to our online docket via
You may submit comments identified by docket number USCG–2012–0952 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, email or call Lieutenant Lucas Mancini, Coast Guard District Eleven; telephone 510–437–3801, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
If you submit a comment, please include the docket number for this rulemaking (USCG–2012–0952), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But, you may submit a request for a public meeting to the docket using one of the methods specified under
We are publishing this direct final rule under 33 CFR 1.05–55 because we do not expect an adverse comment on removal of this unused anchorage. This rule would remove a restriction that is not currently needed or enforced. If no adverse comment or notice of intent to submit an adverse comment is received by March 25, 2013, this rule will become effective as stated in the
A comment is considered “adverse” if the comment explains why this rule or a part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change.
The purpose of this rule is to remove 33 CFR 162.205(c) because the restricted anchorage described in that paragraph has not been needed or enforced since the United States Army vacated Decker Island in 1975. The authority to conduct this rulemaking is found in 33 U.S.C. 1231.
Prior to 1953 the United States Army acquired 114.02 acres of Decker Island. The Army used the land for boat landing and storage activities. The purpose of 33 CFR 162.205(c) was to keep vessels and other craft not associated with the United States government from navigating or anchoring within 50 feet of any moored government vessel in the area. In 1974 the United States Army began to vacate Decker Island, officially terminating its lease in January of 1975. With the Army's release of the 114.02 acres of Decker Island the intended use of the restricted anchorage was no longer needed. We believe that no member of the public will be adversely affected by
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. For the reasons stated in section IV., “Discussion of the Rule,” this rule does not impose any additional costs on the public or government.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. However, when an agency is not required to publish an NPRM for a rule, the RFA does not require an agency to prepare a regulatory flexibility analysis. The Coast Guard was not required to publish an NPRM for this rule for the reasons stated in section II., “Regulatory Information,” and therefore is not required to publish a regulatory flexibility analysis.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104–121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult Lieutenant Lucas Mancini via the
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under 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 does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under 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.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2–1, paragraph (34)(f) of the Instruction. This rule involves removal of the restricted anchorage area at Decker Island in the Sacramento River. Under figure 2–1, paragraph (34)(f) of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
Navigation (water) and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 162 as follows:
33 U.S.C. 1231; Department of Homeland Security Delegation No. 0170.1.
Coast Guard, DHS.
Temporary final rule.
The Commander, Ninth Coast Guard District is staying (suspending) reporting requirements under the Regulated Navigation Area (RNA) established for barges loaded with certain dangerous cargoes (CDC barges) in the inland rivers of the Ninth Coast Guard District. This stay (suspension) extension is necessary because the Coast Guard continues to analyze future reporting needs and evaluate possible changes in CDC reporting requirements. This stay (suspension) of the CDC reporting requirements in no way relieves towing vessel operators and fleeting area managers responsible for CDC barges in the RNA from their dangerous cargo or vessel arrival and movement reporting obligations currently in effect under other regulations or placed into effect under appropriate Coast Guard authority.
This rule is effective in the CFR on January 23, 2013 until 11:59 p.m. on September 30, 2013. This rule is effective with actual notice for purposes of enforcement at 12:01 a.m. on January 15, 2011 until 11:59 p.m. on September 30, 2013.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2013–0019. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this temporary rule, call or email LCDR David Webb, U.S. Coast Guard; telephone 216–902–6050, email:
CDC Certain Dangerous Cargo
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable, unnecessary, and contrary to the public interest.
The contract for the CDC barge reporting system at the Inland River Vessel Movement Center (IRVMC) expired in January 2011. Due to the expiration of this contract, the Coast Guard would not be able to receive and process reports, therefore, in late December 2010, the Coast Guard decided to suspend the IRVMC reporting requirements for a two-year period. This suspension was published in the
At this time, the contract for the CDC barge reporting system has not been renewed, and the Coast Guard is still considering whether to enter into a new contract and lift the suspension, modify the reporting requirements in the RNA, or repeal the RNA completely. An extension of the stay is necessary while the Coast Guard continues to consider these options.
We believe prior notice and comment is unnecessary because we expect the affected public will have no objection to resuming the stay (suspension) of regulatory requirements that expired on January 15, 2013. The Coast Guard received no public comment or objection regarding the suspension that was in effect from 2011 until January 15, 2013. Prior notice and comment is also contrary to the public interest because there is no public purpose served by continuing to require reports when there is no mechanism for receiving or processing those reports.
Under 5 U.S.C. 553(d)(1), a substantive rule that relieves a restriction may be made effective less than 30 days after publication. This temporary final rule, suspending the reporting requirements and thereby relieving the regulatory restriction on towing vessel operators and fleeting area managers provided by 33 CFR 165.921, is effective in the CFR on January 23, 2013 and, for purposes of enforcement, is effective at 12:01 a.m. on January 15, 2011.
The legal basis for this rulemaking is the Coast Guard's authority to establish regulated navigation areas, under 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Public Law 107–295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. An RNA is a water area within a defined boundary for which regulations for vessels navigating within the area have been established, to control vessel traffic in a place determined to have hazardous conditions. 33 CFR 165.10; Commandant Instruction Manual M16704.3A, 1–6.
The purpose of this temporary final rule is to resume the suspension of reporting requirements that was in place between January 2011 and January 15, 2013. This temporary rule relieves the towing vessel operators and fleeting area managers responsible for CDC barges from the 33 CFR 165.921 reporting requirements for a nine month period.
During the suspension of reporting requirements, towing vessel operators and fleeting area managers responsible for CDC barges will be relieved of their obligation to report their CDCs under 33 CFR 165.921(d), (e), (f), (g), and (h). This suspension in no way relieves towing vessel operators and fleeting area managers responsible for CDC barges
We developed this temporary final rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order. This rule is temporary and limited in nature by extending the previously published suspension of CDC barge reporting requirements for an additional nine-month period, creating no undue delay to vessel traffic in the regulated area.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some which may be small entities: Owners or operators of CDC barges intending to transit the Inland Rivers in the Ninth Coast Guard District during this nine month period. This rule will not have a significant economic impact on those entities or a substantial number of any small entities because this rule suspends reporting requirements for nine months.
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 calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves the nine-month extension of a previously
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. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary security zone encompassing certain waters of the Potomac River and Anacostia River. This action is necessary to safeguard persons and property, and prevent terrorist acts or incidents. This rule prohibits vessels and people from entering the security zone and requires vessels and persons in the security zone to depart the security zone, unless specifically exempt under the provisions in this rule or granted specific permission from the Coast Guard Captain of the Port Baltimore. This action is intended to temporarily restrict vessel traffic in portions of the Potomac and Anacostia Rivers during the event.
This rule is effective from January 15, 2013 until January 24, 2013.
Documents mentioned in this preamble are part of docket [USCG–2012–0938]. 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 Mr. Ronald L. Houck, at Sector Baltimore Waterways Management Division, U.S. Coast Guard; telephone 410–576–2674, email
On October 24, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone, Potomac and Anacostia Rivers; Washington, DC” 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
On January 20, 2013, the U.S. Presidential Inauguration swearing-in ceremony will take place at the U.S. Capitol in Washington, DC. Activities associated with the Presidential Inauguration include several Inaugural ceremonies, balls, parades and receptions in the District of Columbia, which are scheduled to occur from January 15, 2013 through January 24, 2013. During these activities, gatherings of high-ranking United States officials and the public-at-large are expected to take place. These activities are located along navigable waterways within the Captain of the Port Baltimore's Area of Responsibility. The Coast Guard has given each Coast Guard Captain of the Port the ability to implement comprehensive port security regimes designed to safeguard human life, vessels, and waterfront facilities while still sustaining the flow of commerce.
The Captain of the Port Baltimore is establishing a security zone to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against the large gatherings of high-ranking United States officials, the public-at-large, and surrounding waterfront areas and communities would have. The security zone is necessary to safeguard life and property on the navigable waters before, during, and after activities associated with the Presidential Inauguration and will help the Coast Guard prevent vessels or persons from bypassing the security measures established on shore for the events and engaging in waterborne terrorist actions during the highly-publicized events.
The Coast Guard received one comment in response to the NPRM. No public meeting was requested and none was held. What follows is a review of,
The commenter, Mr. David A. Bell, a resident of Hamburg, NY, stated his support for the Coast Guard's proposed temporary security zone.
The security zone is tailored to impose a minimum adverse affect on port operations and waterway users located within certain waters of the Potomac River and Anacostia River at Washington, DC during the event and its associated activities.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. There is no vessel traffic associated with recreational boating and commercial fishing expected during the effective period, and vessels may seek permission from the Captain of the Port Baltimore to enter and transit the zone.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or transit through or within the security zone during the enforcement period. Although the security zone will apply to the entire width of the Potomac and Anacostia Rivers, traffic may be allowed to pass through the zone with the permission of the Captain of the Port Baltimore. Before the effective period, maritime advisories will be widely available to the maritime community. Additionally, given the time of year this event is scheduled, the vessel traffic is expected to be minimal.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (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 establishing a temporary security zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
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; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(1) All waters of the Potomac River, from shoreline to shoreline, bounded on the north by the Francis Scott Key (U.S. Route 29) Bridge at mile 113.0, downstream to and bounded on the south between the Virginia shoreline and the District of Columbia shoreline along latitude 38°50′00″ N, including the waters of the Georgetown Channel Tidal Basin; and
(2) All waters of the Anacostia River, from shoreline to shoreline, bounded on the north by the 11th Street (I–295) Bridge at mile 2.1, downstream to and bounded on the south by its confluence with the Potomac River. All coordinates refer to datum NAD 1983.
(b)
(1) All persons are required to comply with the general regulations governing security zones found in 33 CFR 165.33.
(2) Entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port Baltimore. Vessels already at berth, mooring, or anchor at the time the security zone is implemented do not have to depart the security zone. All vessels underway within this security zone at the time it is implemented are to depart the zone.
(3) Persons desiring to transit the area of the security zone must first obtain authorization from the Captain of the Port Baltimore or his designated representative. Permission may be requested prior to activation of the zone. To seek permission to transit the area, the Captain of the Port Baltimore and his designated representatives can be contacted at telephone number 410–576–2693 or on Marine Band Radio VHF–FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF–FM channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local agency vessel, by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port Baltimore or his designated representative and proceed at the minimum speed necessary to maintain a safe course while within the zone.
(c)
(d)
(e)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of polymers of one or more diglycidyl ethers of bisphenol A, resorcinol, glycerol, cyclohexanedimethanol, neopentyl glycol, and polyethylene glycol, with one or more of the following: Polyoxypropylene diamine, polyoxypropylene triamine, N-aminoethyl-piperazine, trimethyl-1,6-hexanediamine isophorone diamine,
This regulation is effective January 23, 2013. Objections and requests for hearings must be received on or before March 25, 2013, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2012–0615, is available at
Kerry Leifer, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8811; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2012–0615 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 25, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2012–0615, by one of the following methods.
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *” and specifies factors EPA is to consider in establishing an exemption.
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances, will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.
Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).
7. The polymer's number average MW of 400,000 is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.
Thus, the epoxy polymer meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in Unit III. 1. through 7., no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to the epoxy polymer.
For the purposes of assessing potential exposure under this exemption, EPA considered that the epoxy polymer could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of the epoxy polymer is 400,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since the epoxy polymer conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found the epoxy polymer to share a common mechanism of toxicity with any other substances, and the epoxy polymer does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that the epoxy polymer does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of the epoxy polymer, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of the epoxy polymer.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established an MRL for the epoxy polymer.
Accordingly, EPA finds that exempting residues of the epoxy polymer from the requirement of a tolerance will be safe.
This final rule establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these rules from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes, or otherwise have any unique impacts on local governments. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
Although this action does not require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994), EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. As add such, to the extent that information is publicly available or was submitted in comments to EPA, the Agency considered whether groups or segments of the population, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticide discussed in this document, compared to the general population.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve changes to the South Carolina State Implementation Plan (SIP) submitted by the South Carolina Department of Health and Environmental Control (SC DHEC) to EPA in five separate SIP submittals dated May 1, 2012, July 18, 2011, February 16, 2011, December 23, 2009, and December 4, 2008. The SIP revisions make changes to South Carolina's New Source Review (NSR) Prevention of Significant Deterioration (PSD) program to adopt federal PSD requirements regarding fine particulate matter (PM
Comments must be received on or before February 22, 2013.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2012–0837 by one of the following methods:
1.
2.
3.
4.
5.
For information regarding the South Carolina SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Bradley's telephone number is (404) 562–9352; email address:
EPA is proposing to approve portions of SIP submittals provided by SC DHEC to EPA on May 1, 2012,
Today's proposed action regarding the PSD provisions relate to EPA's PM
On October 20, 2010, EPA finalized the PM
As established in part C of title I of the CAA, EPA's PSD program protects public health from adverse effects of air pollution by ensuring that construction of new or modified sources in attainment or unclassifiable areas does not lead to significant deterioration of air quality while simultaneously ensuring that economic growth will occur in a manner consistent with preservation of clean air resources. Under section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate that emissions from the proposed construction and operation of a facility “will not cause, or contribute to, air pollution in excess of any maximum allowable increase or allowable concentration for any pollutant.” In other words, when a source applies for a permit to emit a regulated pollutant in an area that meets the NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the source will cause significant deterioration in air quality. Significant deterioration occurs when the amount of the new pollution exceeds the applicable PSD increment, which is the “maximum allowable increase” of an air pollutant allowed to occur above the applicable baseline concentration
For PSD baseline purposes, a baseline area for a particular pollutant emitted from a source includes the attainment or unclassifiable area in which the source is located as well as any other attainment or unclassifiable area in which the source's emissions of that pollutant are projected (by air quality modeling) to result in an ambient pollutant increase of at least 1 microgram per meter cubed (μg/m
In addition to PSD increments for the PM
South Carolina currently has a SIP-approved NSR program for new and modified stationary sources. SC DHEC's PSD preconstruction rules are found at Regulation 61–62.5, Standard No. 7–
South Carolina's May 1, 2012, SIP submittal adopts PM
Sections 108 and 109 of the CAA govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health and welfare. The CAA requires periodic review of the air quality criteria—the science upon which the standards are based—and the standards themselves. EPA's regulatory provisions that govern the NAAQS are found at 40 CFR part 50—
On October 17, 2006, EPA revised the 24-hour primary NAAQS for PM
On March 27, 2008, EPA revised the primary and secondary NAAQS for the 8-hour ozone to 75 parts per billion (ppb) to provide increased protection of public health and welfare, respectively.
EPA is proposing to approve these change to South Carolina's NAAQS table at Regulation 61.62–5, Standard No. 2, based on a preliminary determination that these changes are consistent with EPA's regulations for the 2008 8-hour ozone NAAQS and the 2008 lead NAAQS. Further, EPA is proposing to approve South Carolina's removal of the 1-hour ozone NAAQS from its SIP at Regulation 61.62–5, Standard No. 2, because this NAAQS has been revoked by the Agency for South Carolina areas.
South Carolina's July 18, 2011, SIP submittal removes the annual total suspended particulate (TSP) standard from South Carolina's NAAQS table.
South Carolina's May 1, 2012, submittal removes from the State's NAAQS table the PM
South Carolina's December 4, 2008, and February 16, 2011,
South Carolina's December 4, 2008, SIP submittal makes an administrative correction to subparagraphs 2.a.(i)(a) and (b) of Regulation 61–62.5, Standard 5, Section II, Part Q (
EPA is proposing to approve multiple submissions revising South Carolina's SIP to adopt the PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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 F43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is being proposed for approval to apply PSD permitting program statewide including the Catawba Indian Nation. Accordingly, EPA and the Catawba Indian Nation discussed South Carolina's SIP submittals prior to today's proposed action. EPA notes that this rulemaking will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing approval of State Implementation Plan revisions submitted by the State of Connecticut. These SIP revisions consist of a demonstration that Connecticut meets the requirements of reasonably available control technology for oxides of nitrogen and volatile organic compounds set forth by the Clean Air Act with respect to the 1997 8-hour ozone standard. Additionally, we are proposing approval of three single source orders. This action is being taken in accordance with the Clean Air Act.
Written comments must be received on or before February 22, 2013.
Submit your comments, identified by Docket ID Number EPA–R01–OAR–2009–0449 by one of the following methods:
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In addition, copies of the State submittals are also available for public inspection during normal business hours, by appointment at the Bureau of Air Management, Department of Energy and Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106–1630.
Bob McConnell, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05–2), Boston, MA 02109–3912, telephone number (617) 918–1046, fax number (617) 918–0046, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. The following outline is provided to aid in locating information in this preamble.
On December 8, 2006, the State of Connecticut submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of information documenting how Connecticut complied with the reasonably available control technology (RACT) requirements for the 1997 8-hour ozone standard.
Sections 172(c)(1) and 182(b)(2) of the Clean Air Act (CAA) require states to implement RACT in areas classified as moderate (and higher) non-attainment for ozone, while section 184(b)(1)(B) of the Act requires RACT in states located in the ozone transport region (OTR). Specifically, these areas are required to implement RACT for all major VOC and nitrogen oxide emissions sources and for all sources covered by a Control Techniques Guideline (CTG). A CTG is a document issued by EPA which establishes a “presumptive norm” for RACT for a specific VOC source category. A related set of documents, Alternative Control Techniques (ACT) documents, exists primarily for NO
In 1997, EPA revised the health-based National Ambient Air Quality Standards (NAAQS) for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially with regard to children and adults who are active outdoors and individuals with a pre-existing respiratory disease such as asthma.
On November 29, 2005, EPA published a final rule in the
On December 8, 2006, Connecticut submitted a demonstration that its regulatory framework for stationary sources meets the criteria for RACT as defined in EPA's Phase 2 Implementation rule. The state held a public hearing on the RACT program on October 18, 2006. Connecticut's RACT submittal notes that their prior designation as a nonattainment area for the 1-hour ozone standard resulted in the adoption of stringent controls for major sources of VOC and NO
The state's submittal identifies the specific control measures that have been previously adopted to control emissions from major sources of VOC emissions, reaffirms negative declarations for some CTG categories, and describes updates made to two existing rules to strengthen them so that they will continue to represent VOC RACT. Table 3 of Connecticut's submittal contains a summary of the previously-adopted measures for each of the CTG categories
In addition, Connecticut's submittal notes that no sources exist in the state for some CTG categories. Specifically, Table 3 of Connecticut's submittal makes negative declarations for the following CTG sectors:
1. Automobile coating.
2. Large petroleum dry cleaners.
3. Large appliance coating.
4. Natural gas and gas processing plants.
5. Flat wood paneling coating.
6. Control of VOC leaks from petroleum refineries.
Finally, Connecticut updated two existing VOC rules in order to continue their status as representing RACT. Namely, these are rules limiting emissions from cutback asphalt paving and solvent cleaning (metal degreasing). The original version of the state's cutback asphalt rule allowed use of cutback asphalt, with some restrictions, during the ozone season and provided exemptions for penetrating prime coat products and for long-term storage of asphalt. The state's updated rule removed these provisions and was submitted to EPA on January 8, 2009 and approved by EPA into the Connecticut SIP on August 22, 2012 (77 FR 50595). Additionally, Connecticut updated its solvent cleaning rule to more closely reflect the OTC's 2001 model rule for this activity. The update included a limit on the vapor pressure used in cold cleaning solvents and operating practices to further reduce VOC emissions. Connecticut submitted its updated solvent cleaning rule to EPA on February 1, 2008, and EPA approved the revised rule into the Connecticut SIP within the August 22, 2012
As required, Connecticut's submittal addresses NO
Connecticut's submittal also points out that NO
In addition to these general, state-wide NO
Connecticut's review of its control program for major sources of VOC and NO
EPA has reviewed Connecticut's determination that it has adopted VOC and NO
Connecticut's submittal documents the state's VOC and NO
Furthermore, Connecticut notes that its participation within several NO
The state's submittal documents a substantial downward trend in NO
We have determined that these regulatory elements and the resulting reduction in VOC and NO
EPA does not anticipate any difficulties with enforcing the state's standards, as EPA has previously approved the rules Connecticut cites as the means by which RACT is implemented. Additionally, Connecticut acted to further reduce NO
EPA has evaluated the VOC and NO
Additionally, we are proposing approval of the VOC RACT orders for the following three companies described below:
Cyro Industries manufactures extruded polymer pellets that are molded into various shapes by the end user at its facility located in Wallingford. The facility operates VOC emitting process equipment including raw material storage tanks, monomer preparation equipment, polymer production extrusion lines, grafted rubber equipment, dye preparation and post coloring operations. Additionally, VOC emissions occur from fugitive leaks, and from a number of small process and space heaters.
Cyro Industries took ownership of the facility from American Cyanamid in 2005. Pursuant to Connecticut's section 22a–174–32(e)(6), Cyro submitted an alternative RACT compliance plan to the Connecticut Department of Environmental Protection. The facility essentially requested that the VOC RACT requirements that had formerly been imposed on American Cyanamid pursuant to Connecticut RACT order 8012 be maintained as RACT. Connecticut reviewed this request and essentially agreed, issuing RACT order 8268 to Cyro Industries on February 28, 2007. The new order updated the equipment and process lines described in the prior order and ensures that VOC emissions are reduced by no less than 85%.
Sumitomo Bakelite, formerly named Vyncolit North American, Incorporated, produces fiberglass impregnated and resinous pellets at its facility in Manchester. There are seven separate process lines in use at the facility. The company submitted a request that their emissions be controlled via an alternative RACT compliance plan under section 22a–174–32(e)(6). Connecticut reviewed the facility's request and, on October 11, 2006, issued order 8245 to the facility. The order requires, among other things, that the facility comply with the following requirements: actual emissions may not exceed 45 tons of VOC for any consecutive 12 month period or exceed 8,889 pounds per month for any given month; process lines identified as EXT2 and EXT3 are not allowed to use VOC containing components except during the mixing process, and the vapor pressure of all materials used during the blending process shall be less than or equal to 1.0 millimeters of mercury measured at 18.5 degrees Centigrade; only non-VOC materials can be used in the manufacture of “DAP” products or in process line EXT1; and, emissions of VOC from new, non-extruded products shall not exceed 0.006 pounds of VOC per pound of non-extruded product produced. These requirements will yield a VOC reduction of approximately 76% at the facility.
The Curtis Packaging Corporation manufactures custom designed paperboard and cardboard packaging at its facility in Newtown using three sheet-fed offset lithographic printing presses. The facility is subject to EPA's 2006 CTG for lithographic printing. In an effort to comply with the requirements of that CTG, the company reformulated many of its fountain solutions with non-alcohol additives and ultra violet (UV) light cured inks seeking to meet the CTG's requirements. However, the facility was not able to meet the CTG's overall emission reduction requirement, and so submitted an alternative RACT compliance plan to the Connecticut Department of Environmental Protection.
Connecticut reviewed the company's request, and on May 1, 2007, issued order 8270 to the facility. The order requires, among other things, the following: fountain solutions must contain no alcohol additives, and must have a VOC content of 5% or less by weight, as applied; UV cured inks must be used instead of oil based inks; and, cleaning solutions are limited to 30% VOC by weight.
EPA has reviewed these single source VOC RACT orders, and agrees with Connecticut that they represent a RACT level of control for each facility. Therefore, EPA is proposing approval of these orders.
EPA is proposing approval of Connecticut's December 8, 2006 SIP submittal that demonstrates that the state has adopted air pollution control strategies that represent RACT for purposes of compliance with the 1997 8-hour ozone standard. Additionally, we are proposing approval of orders submitted by Connecticut on July 20, 2007 for Cyro Industries, Sumitomo Bakelite North America, and Curtis Packaging, as representing RACT for these three facilities.
EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Washington Department of Ecology (Ecology) dated November 28, 2012. This SIP revision consists of two elements proposed for EPA approval. First, EPA is proposing to approve the “2008 Baseline Emissions Inventory and Documentation” included as Appendix A to the SIP revision. The emissions inventory was submitted to meet Clean Air Act (CAA) requirements related to the Tacoma-Pierce County nonattainment area for the 2006 fine particulate matter (PM
Written comments must be received on or before February 22, 2013.
Submit your comments, identified by Docket ID No. EPA–R10–OAR–2012–0712, by any of the following methods:
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Jeff Hunt at telephone number: (206) 553–0256, email address:
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
The following outline is provided to aid in locating information in this preamble.
On July 18, 1997, EPA promulgated the 1997 PM
Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. Effective December 14, 2009, EPA designated Tacoma-Pierce County (partial county designation) as a nonattainment area for the revised 2006 24-hour PM
Prior to Washington's SIP revision submittal, EPA issued a proposed finding on July 5, 2012, called a clean data determination, based upon certified ambient air monitoring data showing that the Tacoma-Pierce County nonattainment area had met the 2006 PM
Ecology's November 28, 2012 SIP revision contains two elements for proposed EPA approval, Appendix A and Appendix B. Appendix A, titled “2008 Baseline Emissions Inventory and Documentation,” was submitted to meet the obligation under CAA section 172(c)(3) for an emissions inventory. The 2008 base year emissions inventory includes emissions estimates that cover the general source categories of stationary point sources, stationary nonpoint sources, nonroad mobile sources, and onroad mobile sources. The pollutants that comprise the inventory include PM
Appendix B of the SIP revision, titled “SIP Strengthening Rules,” contains the most recent version of
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The SIP revision submitted by Ecology requests EPA approval of the revised PSCAA
EPA is proposing to approve Washington's SIP revision dated November 28, 2012, specifically Appendix A, “2008 Baseline Emissions Inventory and Documentation” and Appendix B, “SIP Strengthening Rules.” We have made the determination that this action is consistent with section 110 of the CAA. EPA is soliciting public comments which will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed approval does not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Consistent with EPA policy, EPA nonetheless provided a consultation opportunity to the Puyallup Tribe in a letter dated December 11, 2012. EPA did not receive a request for consultation.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for four chemical substances which were the subject of premanufacture notices (PMNs). This action would require persons who intend to manufacture, import, or process any of the chemical substances for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit the activity before it occurs.
Comments must be received on or before February 22, 2013.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2011–0941, by one of the following methods:
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You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this proposed rule. The following list of North American Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers, importers, or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemical substances subject to a final SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final SNUR, are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is proposing these SNURs under TSCA section 5(a)(2) for four chemical substances which were the subject of PMNs P–07–204, P–10–58, P–10–59, and P–10–60. These SNURs would require persons who intend to manufacture, import, or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.
In the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 721.5.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the four chemical substances that are the subject of this proposed rule, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is proposing significant new use and recordkeeping requirements for four chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or, for TSCA non-section 5(e) SNURs, the basis for the SNUR (i.e., SNURs without TSCA section 5(e) consent orders).
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this proposed rule.
The regulatory text section of this proposed rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture and importation volume) and other uses designated in this proposed rule, may be claimed as CBI. See Unit IX.
This proposed rule includes PMN substances P–10–58, P–10–59, and P–10–50 that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. These consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “TSCA section 5(e) SNURs” on these PMN substances are proposed pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The TSCA section 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
This proposed rule also includes a SNUR on PMN substance P–07–204 that was not subject to a consent order under TSCA section 5(e). In this case, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” This so-called “TSCA non-section 5(e) SNUR” is proposed pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all TSCA non-section 5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.
During review of the PMNs submitted for the four chemical substances that are subject to these proposed SNURs, EPA concluded that for three of the substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health and environmental effects of the chemical substances. For one of the four substances, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met. The basis for these findings is outlined in Unit IV.
Based upon comments received from the September 21, 2012 direct final rule, the proposed SNUR for P–10–58, P–10–59, and P–10–60 has been amended to be consistent with the provisions of the TSCA section 5(e) consent order and the proposed SNUR for P–07–0204 has been amended to clarify the restriction at 721.80(j). This proposed rule includes the following changes:
1. Revision of paragraph (a)(2)(i) for the proposed SNUR on P–10–58, P–10–69, and P–10–60.
2. Revision of paragraph (a)(2)(ii) for the proposed SNUR for P–07–0204.
EPA is proposing these SNURs for specific chemical substances that have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this proposed rule:
• EPA would receive notice of any person's intent to manufacture, import, or process a listed chemical substance for the described significant new use before that activity begins.
• EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing a listed chemical substance for the described significant new use.
• EPA would be able to regulate prospective manufacturers, importers, or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.
• EPA would ensure that all manufacturers, importers, and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
To establish a significant “new” use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule have undergone premanufacture review. TSCA section 5(e) consent orders have been issued for three chemical substances and the PMN submitters are prohibited by the TSCA section 5(e) consent orders from undertaking activities which EPA is designating as significant new uses. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no other person may commence such activities without first submitting a PMN. For chemical substances for which an NOC has not been submitted at this time, EPA concludes that the uses are not ongoing. However, EPA recognizes that prior to the effective date of the final rule, when chemical substances identified in these SNURs are added to the TSCA Inventory, other persons may engage in a significant new use as defined in this proposed rule before the effective date of the final rule.
As discussed in the SNURs published in the
EPA has promulgated provisions to allow persons to comply with these SNURs before the effective date of the final rule. If a person meets the conditions of advance compliance under § 721.45(h), the person is considered exempt from the requirements of the SNUR.
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for TSCA non-section 5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for three of the chemical substances in this proposed rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. The SNURs contain the same production volume limits as the TSCA section 5(e) consent order. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture, import, or processing.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710–25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E–PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substances during the development of the direct final rule. EPA's complete economic analysis is available in the docket under docket ID number EPA–HQ–OPPT–2011–0941.
This proposed rule would establish SNURs for four chemical substances that were the subject of PMNs, and in three cases, a TSCA section 5(e) consent order. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
According to the PRA (44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070–0012 (EPA ICR No. 574). This action would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this proposed rule.
This proposed rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit IX. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of these SNURs would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this proposed rule. As such, EPA has determined that this proposed rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).
This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this proposed rule.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action would not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), would not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
Fish and Wildlife Service, Interior.
Proposed rule; reopening of public comment.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on our October 2, 2012, 12-month petition finding and proposed rule to remove the valley elderberry longhorn beetle (
We will consider all comments received or postmarked on or before February 22, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all information received on
Jan Knight, Deputy Field Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Suite W–2605, Sacramento, CA 95825; telephone 916–414–6600; facsimile 916–414–6712. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339.
We will accept written comments and information during this reopened comment period on our October 2, 2012, 12-month finding and proposed rule to remove the valley elderberry longhorn beetle from the List of Endangered and Threatened Wildlife, and to remove the designation of critical habitat (77 FR 60237). For more information on the specific information we are seeking, please see the October 2, 2012, proposed rule. You may obtain copies of the proposed rule and related documents on the Internet at
You may submit your comments and materials concerning the proposed rule by one of the methods listed in
All comments for this reopening of the public comment period must be received or postmarked on or before the date shown in
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on
On October 2, 2012 (77 FR 60237), we published, in the
In accordance with our joint policy on peer review published in the
We will consider all comments and information provided by the public and peer reviewers during this comment period in preparation of a final determination on our proposed delisting. Accordingly, the final decision may differ from our proposal.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to establish a nonessential experimental population (NEP) of the Topeka shiner (
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Dr. Paul McKenzie, Fish and Wildlife Biologist, telephone: 573–234–2132; facsimile: 573–234–2181. Direct all questions or requests for additional information to: TOPEKA SHINER QUESTIONS, U.S. Fish and Wildlife Service, Ecological Services Field Office, 101 Park DeVille Dr., Suite B, Columbia, MO 65203. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Services (FIRS) at 800–877–8339.
We intend any final rule resulting from this proposal to be as effective as
Prior to issuing a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.
You may submit your comments and materials concerning the proposed rule by one of the methods listed in the
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
We will hold two public meetings on the dates listed in the
In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate and independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the
The Topeka shiner was listed as endangered throughout its range on December 15, 1998 (63 FR 69008), and critical habitat was designated in Iowa, Minnesota, and Nebraska on July 27, 2004 (69 FR 44736), under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The 1982 amendments to the Act included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate as an experimental population, a population of an endangered or threatened species that has been or will be released into suitable habitat outside the species' current range (but within its probable historical range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed). With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species' designation elsewhere in its range. Section 4(d) of the Act allows us to adopt whatever regulations are necessary and advisable to provide for the conservation of a threatened species so the treatment of an NEP as a threatened species allows us broad discretion in devising management programs and special regulations for such a population. In these situations, the general regulations that extend most section 9 prohibitions to threatened species (50 CFR 17.31(a)) do not apply to the NEP, and the 10(j) rule contains the prohibitions and exemptions necessary and advisable to conserve the NEP.
Before authorizing the release as an experimental population of any population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere; (2) the likelihood that any such experimental population will become established and survive in the foreseeable future; (3) the relative effects that establishment of an experimental population will have on the recovery of the species; and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area.
Furthermore, as set forth in 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released,
Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land that may be affected by the establishment of an experimental population.
Based on the best scientific and commercial data available, we must determine whether the experimental population is
For the purposes of section 7 of the Act, we treat an NEP as a threatened species when the NEP is located within a National Wildlife Refuge or unit of the National Park Service, and section 7(a)(1) and the Federal agency conservation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. Because the NEP is, by definition, not essential to the continued existence of the species, the effects of proposed actions on the NEP will generally not rise to the level of jeopardizing the continued existence of the species. As a result, a formal conference will likely never be required for Topeka shiners established within the NEP area. Nonetheless, some agencies voluntarily confer with the Service on actions that may affect a proposed species. Activities that are not carried out, funded, or authorized by Federal agencies are not subject to provisions or requirements in section 7.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.
The Topeka shiner is a small, stout minnow. This shiner species averages 1.5 to 2.5 inches (in.) (3.81–6.35 centimeters (cm)) in length at maturity, with a maximum size around 3 in. (7.62 cm) (Service 1993, p. 4; Service 1998, p. 69008; Missouri Department of Conservation (MDC) 2010, p. 9). The head is short, and the mouth does not extend beyond the front of the eye. The eye diameter is equal to or slightly longer than the snout. All fins are plain except for the tail fin, which has a chevron-shaped black spot at its base. Dorsal and pelvic fins each contain 8 rays (Service 1993, p. 4; Service 1998, p. 69008; MDC 2010, p. 9). The anal and pectoral fins contain 7 and 13 rays respectively, and there are 32 to 37 lateral line scales. Dorsally, the body is olive with a distinct dark stripe preceding the dorsal fin. A dusky stripe runs along the entire length of the lateral line (Service 1993, p. 4; Service 1998, p. 69008; MDC 2010, p. 9). The scales above this line are darkly outlined with pigment, appearing cross-hatched. Below the lateral line, the body lacks pigment, appearing silvery-white (Pflieger 1975, pp. 161–162; Pflieger 1997, p. 154; Service 1993, p. 4; Service 1998, p. 69008). Males in breeding condition have orange-red fins and “cheeks,” and the dark lateral stripe diffuses. A distinct chevron-like spot exists at the base of the caudal fin (Pflieger 1975, pp. 161–162; Pflieger 1997, p. 154; Service 1993, p. 4; Service 1998, p. 69008).
Topeka shiners spawn in pool habitats over green sunfish (
Topeka shiners are a schooling species found in mixed species schools consisting primarily of redfin (
Topeka shiners are found in pools and runs, and only rarely in riffles. In the northern portion of its range (Iowa, Minnesota, and South Dakota), the Topeka shiner is frequently found in off-channel aquatic habitat (Clark 2000, p. 7; Dahle 2001, p. 8; Berg
The Topeka shiner was once widespread and abundant in headwater streams throughout the Central Prairie Region of the United States. The species' range historically included much of Missouri, Iowa, and Kansas, as well as portions of Nebraska, South Dakota, and Minnesota (Bailey and Allum 1962, pp. 68–70; Cross 1970, p. 254; Gilbert 1988, p. 317). In Missouri, Topeka shiners historically occurred in most of the prairie and Ozark border portions of north and central Missouri. With the exception of a population known from Cedar Creek, a tributary of the Des Moines River in Clark County (Mississippi River basin), all Topeka shiner populations in Missouri are known from the Missouri River basin. The species once occupied portions of the Missouri, Grand, Lamine, Chariton, Crooked, Des Moines, Loutre, Middle, Hundred and Two, and Little Blue river basins (MDC 2010, p. 10). Since 1940, the species has been extirpated from many Missouri River tributaries, including Perche Creek, Petite Saline Creek, Tavern Creek, Auxvasse Creek, Middle River, Moreau River, Splice Creek, Slate Creek, Crooked River, Fishing River, Shoal Creek, Hundred and Two River, and Little Blue River watersheds (Bailey and Allum 1962, pp. 69–70; Pflieger 1971, p. 360; MDC 2010, p. 10). Topeka shiners were last observed in the following Missouri streams: Moniteau Creek headwaters in Cooper and Moniteau Counties (2008), Clear Creek (1992) and a tributary of Heath's Creek (1995) in Cooper and Pettis Counties, Bonne Femme Creek watershed in Boone County (1997), Sugar Creek and tributaries in Daviess and Harrison Counties (2008), Dog Branch in Putnam County (1990), and Cedar Creek in Clark County (1987) (MDC 2010, p. 10; Novinger 2011, pers. comm.). It is presumed Topeka shiners are extirpated from the Bonne Femme Creek watershed (MDC 2010, p. 10).
The Topeka shiner in Missouri exists in highly disjunct populations in a small fraction of its historical range. Sampling specifically for Topeka shiners during the early 1990s found this species at only 19 percent (14 of 72) of historical sites, and at only 15 percent (20 of 136) of the total sites sampled in Missouri (Gelwicks and Bruenderman 1996, p. 5). Additionally, the remaining populations were found to be smaller than they had been recorded historically. For example, over 300 Topeka shiners were recorded among 7 locations in Bonne Femme Creek from 1961 to 1983. However, during comparable surveys within the same watershed, in the 1990s, only six Topeka shiners were identified at two locations (Wiechman, MDC 2012, pers. comm.). The isolation and small size of the remaining populations makes them highly vulnerable to extirpation. Currently, remaining viable populations of Topeka shiners can be consistently found in only two Missouri stream systems: Moniteau Creek headwaters in Cooper and Moniteau Counties, and Sugar Creek headwaters in Daviess and Harrison Counties. Several other streams have produced samples of a few individuals in the past 25 years, but these occurrences are based on a very limited number of fish (MDC 2010, p. 10).
Restoring an endangered or threatened species to the point where it is recovered is a primary goal of the Service's endangered species program. Although a Service recovery plan has not been issued for the Topeka shiner, the MDC devised State-specific recovery criteria for the species in their 10-year Strategic Plan for the Recovery of the Topeka Shiner in Missouri (MDC 2010, p. 8). The recovery goal of this plan is to stabilize and enhance Topeka shiner numbers in Missouri by securing populations in seven streams. Seven populations would be equivalent to one half of the known populations sampled in Missouri since 1960. Two main criteria were established to accomplish the goal: (1) Reduce or eliminate major threats and restore suitable habitat in Moniteau Creek and Sugar Creek watersheds, and (2) introduce (or reintroduce) and establish secure populations in five additional streams (MDC 2010, p. 8). According to fisheries experts with the Missouri Department of Conservation and as outlined in MDC's strategic plan, the designation of a Topeka shiner NEP in Missouri is necessary to establish new populations in the State (MDC 2010, p. 26).
The MDC (2011a, pp. 1–2; 2011b, pp. 2–3; 2011c, p. 3) established six criteria for identifying possible reintroduction sites in Missouri: (1) Propagation and release sites are to be under public ownership; (2) ownership involves a partner committed to conservation; (3) proposed release sites are within relatively close proximity to existing Topeka shiner populations; (4) proposed release sites are within the overall historical range of the species in Missouri; (5) the overall condition of the stream (
Based on criteria outlined above for reintroduction sites, Little Creek headwaters in Harrison County; East Fork Big Muddy Creek in Gentry, Harrison, and Worth Counties; and tributaries of Spring Creek in Adair, Putnam, and Sullivan Counties have been identified for initial release efforts (MDC 2010, pp. 27–31). Although no historical records exist of Topeka shiner in the selected reintroduction sites, it is likely that the species once inhabited these waters. Our conclusion is based on the following: (1) The species was historically known from adjacent watersheds—Little Creek and Big Muddy Creek are located approximately 16–19 air miles (mi.) (25.75–30.58 air kilometers (km)) from extant sites in Harrison County, Missouri (Wiechman 2012, pers. comm.), and the Spring Creek watershed in Adair, Putnam, and Sullivan Counties is located approximately 11 air mi. (17.7 air km) (Novinger 2012, pers. comm.) from a historical location in Putnam County, Missouri; (2) habitat is identical or similar to currently occupied sites in Harrison County, Missouri; and (3) the proposed reintroduction sites have suitable habitat necessary for the successful establishment of the species (MDC 2011a, pp. 1–2).
The reintroduction areas would include both pond (similar to off-channel habitats used by the species elsewhere within its range) and stream habitats. Initial donor populations of Topeka shiner would originate from extant sites in Sugar Creek, Harrison County, and be propagated at MDC's Lost Valley Hatchery in Warsaw, Missouri. Future captive-breeding of the Topeka shiner would occur in pond habitats, and the progeny would be used to stock the NEP streams rather than continual use of the Lost Valley Hatchery (Novinger 2012, pers. comm.). The subsequent use of pond fish for ongoing reintroduction efforts would be dependent upon the success of propagation efforts at The Nature Conservancy's Dunn Ranch, MDC's Pawnee Prairie Natural Area (NA), and MDC's Union Ridge Conservation Area (CA) (see below) (Novinger 2012, pers. comm.).
Little Creek is a tributary to West Fork Big Creek in the greater Grand River drainage. The proposed NEP portion of the watershed is located in the headwaters of Little Creek and is estimated at 7,600 acres (ac) (3075 hectares (ha)). The area extends from the backwaters of Harrison County Lake, upstream to the headwaters of Little Creek, and includes all tributaries in this reach from the reservoir to headwaters. Specific reintroduction sites would be located in select ponds (greater than 8 feet (2.44 m) deep) and in headwater stream reaches on Dunn Ranch, which is owned and operated by The Nature Conservancy (TNC). Dunn Ranch comprises the upper half of the watershed, and it has several characteristics that promote a successful reintroduction program (
Big Muddy Creek is a tributary to the East Fork Grand River drainage and its watershed covers 44,339 ac. Land use is predominately grassland (60 percent), containing minor components of cropland (16 percent) and deciduous forest (15 percent). Cropland is concentrated in the bottomland along the mainstem of Big Muddy Creek. Grassed uplands are mostly used for cattle grazing and hay production. Headwaters of Big Muddy Creek (upper 33 percent of watershed) lie within the Grand River Grasslands Conservation Opportunity Area (GRGCOA). Two notable properties within the GRGCOA portion of Big Muddy Creek include MDC's Pawnee Prairie Natural Area (NA) (476 ac) (192 ha) and TNC's Pawnee Prairie (500 ac) (202 ha), which are cooperatively managed for native prairie and associated wildlife (MDC 2011b, pp. 1–2).
The 10-year-old GRGCOA covers approximately 70,000 ac (28,327 ha) in northern Missouri and southern Iowa, with approximately 14,800 ac (5,989 ha) (21 percent) located within the Big Muddy Creek basin. In northern Missouri, GRGCOA is believed to have the greatest potential to restore a functioning tallgrass prairie ecosystem on a landscape scale. The MDC, TNC, the Iowa Department of Natural Resources, the Natural Resources Conservation Service, the Service, and interested private landowners are working cooperatively to restore prairie, promote soil conservation practices, and enhance habitat for prairie chickens in this area. Prescribed burning is commonly used to help meet these objectives. Experimental patch-burn grazing on Pawnee Prairie NA is also being evaluated by MDC and Iowa State University (MDC 2011b, p. 2).
The eastern side of MDC's Emmet and Leah Seat Memorial (Seat) Conservation Area (CA) (2,030 ac) (821 ha) is located within the Little Muddy Creek basin, a lower sub-basin to Big Muddy Creek. Little Muddy Creek basin is located outside the GRGCOA. Seat CA is a mixture of old field, grasslands, cropland, and woodland habitats. The area features public hunting (deer, turkey, quail, small game), primitive camping, an archery range, 16 fishable ponds (totaling 13 ac), and a permanent stream. The area is managed primarily for upland game hunting (MDC 2011b, p. 2).
The Big Muddy Creek watershed, from its confluence with East Fork Grand River upstream through all headwaters, is included in the proposed NEP area for the following reasons: (1) There are no known fish barriers; (2) there are no reservoirs (except small farm ponds) with abundant predator fishes; and (3) stream size remains relatively small with habitat conditions comparable to those found in reaches of Sugar Creek where Topeka shiners occur. Big Muddy Creek is approximately 19 air miles (mi.) (30.58 air kilometers (km)) from extant sites in Harrison County, Missouri (Wiechman 2012, pers. comm.). East Fork Grand River is believed to effectively limit the potential for downstream migration of cyprinids given its higher densities of predator fishes (predominantly channel catfish) and minimal cover for small fish (MDC 2011b, p. 2). A physical barrier in the East Fork of the Grand River downstream of the proposed reintroduction site would prevent mixing of wild and reintroduced populations of Topeka shiners (MDC 2011b, p. 9).
Spring Creek is a tributary to the Chariton River, and its watershed covers 60,869 ac (24,632 ha). Land use is essentially limited to deciduous woodlands (41 percent) and grassland (39 percent), with only 10 percent cropland. Cropland is concentrated in the bottomland along the mainstem of Spring Creek and in the upper
The Spring Creek watershed, from its confluence with the Chariton River upstream through all headwaters is included in the proposed NEP area for the following reasons: (1) There are no known fish barriers; (2) there are no reservoirs (except small farm ponds) with abundant predator fishes; and (3) stream size remains relatively small, with habitat conditions comparable to those found in reaches of Sugar Creek where Topeka shiners occur. The Spring Creek watershed in Adair, Putnam, and Sullivan Counties is located approximately 47 air mi. (75.64 air km) (Wiechman 2012, pers. comm.) from extant sites in Harrison County, and the Spring Creek locations are not in any watershed where there are extant records of Topeka shiner (MDC 2011c, pp. 8–11). The Chariton River is believed to effectively limit the potential for downstream migration of Topeka shiners given its higher densities of predator fishes (predominantly channel catfish) and minimal cover for small fish (MDC 2011c, p. 2).
Initial reintroduction sites for Topeka shiners would be in at least six ponds and all suitable stream reaches on MDC's Union Ridge CA. Subsequent monitoring of Topeka shiners would be restricted to the middle-Spring Creek sub-basin of the Spring Creek watershed. Within Spring Creek, this sub-basin is believed to offer the greatest potential to establish a self-sustaining population of Topeka shiners, and the smaller size of the middle-Spring Creek sub-basin also allows for regional Fisheries staff to reasonably complete monitoring efforts and evaluate success (MDC 2011c, p. 2).
A subset of the ponds on Dunn Ranch, Pawnee Prairie, and Union Ridge CA determined to be suitable for the propagation of Topeka shiners would be treated with rotenone to remove potential predators prior to stocking (MDC 2011a, p. 2; MDC 20011b, p. 2; MDC 2011c, p. 3). Spawning gravel would also be added to littoral areas (0–1 meter deep). The success of reproduction in these ponds would be compared to ponds with bare soil bottom types that did not receive spawning gravel. Reducing predators and increasing spawning success should increase the likelihood of population establishment and survival.
There are apparently numerous reasons for the decline of the Topeka shiner throughout its range. Reductions and disappearance of many Topeka shiner populations appear to be related to a combination of physical degradation of habitat and species interactions (MDC 2010, p. 11). Physical degradation of habitat is primarily related to patterns of land use including destruction, modification and fragmentation of habitat resulting from siltation, reduced water quality, tributary impoundment, and reduction of water levels (MDC 2010, p. 11). These habitat alterations may have been caused by intensive agriculture, urbanization, and highway construction (Minckley and Cross 1959, p. 216; Cross and Moss 1987, p. 165; Pflieger 1997, p. 199; Tabor 1992, pp. 38–39; MDC 2010, p. 11). Bayless
The Topeka shiner in Missouri has declined in the presence of largemouth bass, bluegill, and blackstripe topminnow, and this decline coincided with the decline of other fishes considered generally tolerant of poor physical and chemical conditions but intolerant of species interactions (Winston 2002, p. 249). Schrank
Other unidentified factors may be responsible for the loss of the Topeka shiner from some streams and for localized undocumented fish kills. Further study is needed to determine the relative significance of habitat degradation versus species interactions as causes for the decline of the Topeka shiner. Koehle (2006, p. 26) found Topeka shiners to be tolerant of high water temperatures and low dissolved oxygen levels. Additional experimental studies would be particularly useful to elucidate the physiological tolerances and behavior of the Topeka shiner in addition to comparisons of the hydrology, water chemistry, physical habitat, land use practices, and fish communities in areas where the species persists and where it has been extirpated (MDC 2010, p. 11).
All proposed reintroduction sites are on public land, and are properly managed to prevent potential causes of extirpation (Pflieger 1997, pp. 154–155). In addition to implementing management techniques that will sustain headwater prairie stream habitat, efforts have been undertaken to eliminate potential predation by nonnative piscivorous fish (MDC 2010, pp. 26–31). Ponds on Dunn Ranch, Pawnee Prairie NA, and Union Ridge CA determined to be suitable for the
Initial donor populations of Topeka shiner would originate from extant sites in Sugar Creek, Harrison County, and from fish propagated at MDC's Lost Valley Hatchery in Warsaw, Missouri. Proposed NEP reintroductions would include pond and stream habitats within the Little Creek, Big Muddy Creek, and Spring Creek watersheds. Captive-reared fish would be stocked into stream and pond habitats by MDC fisheries personnel. Cooperators include MDC, TNC, and the Service. Topeka shiners that are subsequently and successfully reared in ponds on Dunn Ranch, Pawnee Prairie NA, and the Union Ridge CA would be placed into proposed stream habitats following established stocking protocols described in the reintroduction plans (MDC 2011a, 2011b, and 2011c). We do not anticipate that the removal of fish would have a deleterious effect on the genetics of the species, because only a sample of Topeka shiners in Sugar Creek would be collected.
Information on fish species composition and simple stream habitat conditions would be collected at sites throughout the proposed NEP portion of the Little Creek, Big Muddy Creek, and Spring Creek watersheds prior to initial stockings. Twenty-five sites with 3 pools per site that are at least 200 meters (m) in length would be selected using a Generalized Random Tessellation Stratified (GRTS) design (
Each pool would be sampled once with a 15-foot (ft) (4.57-m) x 6-ft (1.83-m), one-eighth-inch (0.32-centimeters (cm)) mesh drag seine to collect fish. To be more effective in narrow pools (width less than 6 m), the net may be shortened to facilitate sampling. Two nets hauled side-by-side would be used for wide pools between 10 and 20 m in width. All species present in a catch would be identified and categorized by apparent relative abundance: “low” is defined by low approximate number (fewer than 10 fish) and low approximate percent of total catch (less than 5 percent); “medium” (10–50 fish, less than 25 percent); or “high” (greater than 50 fish, greater than 25 percent). Presence of juvenile Topeka shiners (less than 40 millimeters (mm) total length) would be noted as an indication of spawning at each site.
Supplemental stockings of Topeka shiners or sunfish would be conducted for ponds or selected stream reaches on public properties within the greater NEP portion of Little, Big Muddy, and Spring creeks, if necessary. Criteria for such stockings would be determined by MDC fisheries personnel as needed and necessary to meet reintroduction goals outlined in MDC's 10-year Action Plan for the Topeka Shiner (MDC 2010, pp. 29–35). Supplemental stocking rates in ponds and streams would occur at the same rates described for initial stockings above.
Individual Topeka shiners used to establish an experimental population would be supplied by MDC's Lost Valley Hatchery in Warsaw, MO, propagated under the Federal Fish and Wildlife Permit #TE71730A. The donor population for the Lost Valley Hatchery is from sites in Sugar Creek, Harrison County, Missouri. Sugar Creek's Topeka shiner population is closest to the proposed reintroduction sites. Typical gear used for small cyprinids would be used to collect Topeka shiners, and they would be held at Lost Valley Hatchery until they could be stocked into pond and stream habitats at proposed reintroduction sites.
The 10-year Strategic Plan for the Recovery of the Topeka Shiner in Missouri (MDC 2010, pp. 29–35) and reintroduction plans for Topeka shiner in the Little Creek, Big Muddy Creek, and Spring Creek watersheds (MDC 2011a, pp. 1–9; MDC 2011b, pp. 1–11; MDC 2011c, pp. 1–11) contain
We would ensure, through our section 10 permitting authority and the section 7 consultation process, that the use of Topeka shiner from the donor population within the Sugar Creek Basin for releases into Little Creek, Big Muddy Creek, and Spring Creek is not likely to jeopardize the continued existence of the species in the wild.
The proposed special rule that accompanies this section 10(j) proposed rule is designed to broadly exempt, from the section 9 take prohibitions, any take of Topeka shiners that is incidental to otherwise lawful activities. We propose to provide this exemption because we believe that such incidental take of members of the NEP associated with otherwise lawful activities is necessary and advisable for the conservation of the species.
This designation is justified because no adverse effects to extant wild or captive Topeka shiner populations would result from release of progeny from the Sugar Creek population. There is no possibility of any transfer of disease or mixing of wild and reintroduced populations due to the distances involved between the donor population and proposed reintroductions, the watersheds involved, and the physical barriers associated with the Little Creek and Big Muddy Creek watersheds. The majority of the reintroductions would occur on managed public land, and exemptions from prohibition for activities on private land are not likely to result in the loss of the proposed NEP. Successful propagation of Topeka shiners in ponds at Dunn Ranch, Pawnee Prairie NA, and Union Ridge CA would provide a continual reservoir of Topeka shiners for supplemental stocking as needed. We expect that the reintroduction effort into Little, Big Muddy, and Spring creeks would result in the successful establishment of a self-sustaining population of Topeka shiners, which would contribute to the recovery of the species.
We conclude that the effects of Federal, State, or private actions and activities would not pose a substantial threat to Topeka shiner establishment and persistence in the Little Creek, Big Muddy Creek, and Spring Creek watersheds, because most activities currently occurring in the proposed NEP area are compatible with Topeka shiner recovery, and there is no information to suggest that future activities would be incompatible with Topeka shiner recovery. Most of the area containing suitable release sites with high potential for Topeka shiner establishment is managed by MDC or TNC through the following mechanisms:
(1) There are existing best management practices (BMPs) for Topeka shiners that are followed by MDC and TNC; these practices include recommendations to maintain the water quality and headwater stream habitat (MDC 2000, p. 1).
(2) Reintroduction plans have been developed for all proposed NEP sites (MDC 2011a, pp. 1–9; MDC 2011b, pp. 1–11; MDC 2011c, pp. 1–9).
(3) All proposed reintroduction sites are managed to maintain Topeka shiner habitat (MDC 2011a, pp. 1–9; MDC 2011b, pp. 1–11; MDC 2011c, pp. 1–9).
Management issues related to the proposed Topeka shiner NEP that have been considered include:
(a)
(b)
(c)
(d)
(e)
(f)
Evaluations of our reintroduction goal and objectives will require monitoring for at least 10 years following initial stockings. Initial success of the reintroduction efforts would be evaluated through annual sampling of ponds and selected stream reaches on public properties during the first 3 years following initial stockings. Pond sampling would include fall seining with at least five, one-fourth arc pulls around the shore. Catch rates (fish per pull) would be recorded for shiners and sunfish, and a subsample of up to 100 Topeka shiners would be used to evaluate natural reproduction. Topeka shiners that are less than 40 mm (1.6 inches) in length would be considered juveniles. Minnow traps may also be used as a comparison to seining data. Stream sampling would follow the methods described earlier for “Baseline Data” sampling. After the first 3 years, ponds stocked with Topeka shiners would be monitored biennially for 10 years. Stream monitoring would be continued annually for 10 years to measure changes in the distribution of Topeka shiners, other fishes in the watershed, and trends in stream habitat conditions. Program Presence (Hines 2006) software to estimate patch occupancy and related parameters would be used to evaluate changes in occupancy and determine Topeka shiner use of Little Creek, Big Muddy, and Spring Creek watersheds.
The MDC would continue to monitor the donor population of Topeka shiners in Sugar Creek. Monitoring of the donor population would follow guidelines established in the 10-Year Strategic Plan for the Recovery of Topeka Shiner in Missouri (MDC 2010, pp. 55–60); however, occupancy modeling would follow the protocols and principles in MacKenzie
No other federally listed species occur within ponds or streams proposed for reintroductions; therefore, this monitoring would not be necessary.
Our regulations at 50 CFR 17.81(b) specify four elements that should be considered and support this finding: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere; (2) the likelihood that any such experimental population will become established and survive in the foreseeable future; (3) the relative effects that establishment of an experimental population will have on the recovery of the species; and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area. The above analysis (see Background) addresses these required components.
Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that releasing Topeka shiner into Little Creek, Big Muddy Creek, and Spring Creek would further the conservation of the species but that this population is not essential to the continued existence of the species in the wild.
In accordance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we will provide copies of this proposed rule to three or more appropriate and independent specialists in order to solicit comments on the scientific data and assumptions relating to the supportive biological and ecological information for this proposed NEP designation. The purpose of such review is to ensure that the proposed NEP designation is based on the best scientific information available. We will invite these peer reviewers to comment during the public comment period and will consider their comments and information on this proposed rule during preparation of a final determination.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601
The area that would be affected if this proposed rule is adopted includes the release areas in northern Missouri and adjacent areas into which Topeka
If adopted, this proposal would broadly authorize incidental take of the Topeka shiner within the NEP area, when such take is incidental to an otherwise lawful activity, such as agricultural activities, animal husbandry, grazing, ranching, road and utility maintenance and construction, other rural development, camping, hiking, fishing, hunting, vehicle use of roads and highways, and other activities in the NEP area that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be permitted. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the Act.
The principal activities on private property near the proposed NEP area are agriculture, rural development, and recreation. We conclude the presence of the Topeka shiner would not affect the use of lands for these purposes because there would be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or members of the public due to the presence of the Topeka shiner, and Federal agencies would only have to comply with sections 7(a)(1) and 7(a)(4) of the Act in these areas. Therefore, if adopted as proposed, this rulemaking is not expected to have any significant adverse impacts to activities on private lands within the NEP area.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) If adopted, this proposal will not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502
(2) This rule will not produce a Federal mandate of $100 million or greater in any year (
In accordance with Executive Order 12630, the proposed rule does not have significant takings implications. This rule would allow for the take of reintroduced Topeka shiners when such take is incidental to an otherwise legal activity, such as agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations. Therefore, we do not believe that establishment of this NEP would conflict with existing or proposed human activities or hinder public use of the Little Creek, Big Muddy Creek, and Spring Creek or its tributaries.
A takings implication assessment is not required because this rule: (1) Would not effectively compel a property owner to suffer a physical invasion of property and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of a listed species) and would not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132, we have considered whether this proposed rule has significant Federalism effects and have determined that a federalism impact summary statement is not required. This rule would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with the affected resource agencies in Missouri. Achieving the recovery goals for this species in Missouri would contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments would not change; and fiscal capacity would not be substantially directly affected. The special rule would operate to maintain the existing relationship between the State and the Federal Government and is being undertaken in coordination with the State of Missouri. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a federalism impact summary statement under the provisions of Executive Order 13132.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule would not unduly burden the judicial system and would meet the requirements of sections (3)(a) and (3)(b)(2) of the Order.
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
The reintroduction of native species into suitable habitat within their historical or established range is categorically excluded from NEPA documentation requirements consistent with 40 CFR 1508.4, 43 CFR 46.205, 43 CFR 46.210, and 516 DM 8.5 B(6).
In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 (65 FR 67249), and the Department of Interior Manual Chapter 512 DM 2, we have considered possible effects on federally recognized Indian tribes and have determined that there are no tribal lands within the areas proposed for reintroductions. Therefore, no tribal lands would be affected by this rule.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Because this action is not a significant energy action, no Statement of Energy Effects is required.
We are required by E.O. 12866, E.O. 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 the
A complete list of all references cited in this proposed rule is available at
The primary authors of this proposed rule are staff members of the Service's Columbia, Missouri, Ecological Services Field Office (see
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; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.
(h) * * *
(n) Topeka shiner (
(1)
(i) The NEP area for the Topeka shiner is within the species' historical range and includes those waters within the Missouri counties of Adair, Gentry, Harrison, Putnam, Sullivan, and Worth identified in paragraph (n)(5) of this section.
(ii) The Topeka shiner is not known to currently exist in Adair, Gentry, Putnam, Sullivan, and Worth Counties in Missouri, or in those portions of Harrison County, Missouri, where the NEP is proposed. Based on its habitat requirements and potential predation by other fish predators, we do not expect this species to become established outside this NEP area, although there is a remote chance it may.
(iii) We will not change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP area without a public rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2)
(i) Except as expressly allowed in paragraph (n)(3) of this section, all the prohibitions of § 17.21 apply to the Topeka shiner NEP.
(ii) Any manner of take not described under paragraph (n)(3) of this section is prohibited in the NEP area.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means, Topeka shiners, or parts thereof, that are taken or possessed in violation of paragraph (n)(3) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (n)(2)(iii) of this section.
(3)
(4)
(5)
(6)
(7)
(8)
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to request an extension of an approved information collection regarding the importation and transportation of meat and poultry products. This information collection is due to expire.
Comments on this notice must be received on or before March 25, 2013.
FSIS invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
•
•
•
FSIS is planning to request an extension of this approved information collection because it is due to expire on March 31, 2013.
Unless accounted for in an establishment's HACCP plan, meat and poultry products not marked with the mark of inspection and shipped from one official establishment to another for further processing must be transported under USDA seal to prevent such unmarked product from entering into commerce (9 CFR 325.5). To track product shipped under seal, FSIS requires shipping establishments to complete FSIS Form 7350–1 that identifies the type, amount, and weight of the product.
Foreign countries exporting meat and poultry products to the United States must establish eligibility for importation of product into the U.S., and annually certify that their inspection systems are “equivalent to” the U.S. inspection system (9 CFR 327.2 and 381.196). Additionally, meat and poultry products intended for import into the U.S. must be accompanied by a certificate, signed by an official of the foreign government, stating that the products have been produced by certified foreign establishments (9 CFR 327.2 and 381.197).
Maintenance of eligibility of a country for importation of products into the U.S. depends on the results of periodic reviews of each establishment listed in the certification (9 CFR 327.2 and 381.196). A written report must be prepared by the representative of the foreign government documenting the findings with respect to the effective operation of the system.
Meat and poultry products exported to the U.S. must be accompanied by a certificate signed by a responsible official of the exporting country (9 CFR 327.4 and 381.197).
Import establishments that wish to pre-stamp imported product with the inspection legend prior to FSIS inspection must submit a letter to FSIS requesting approval to do so (9 CFR 327.10(d) and 381.204).
FSIS has made the following estimates on the basis of an information collection assessment.
Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence SW., Room 6065, South Building, Washington, DC 20250; phone: (202) 720–0345.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed
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.
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at 202–720–2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250–9410 or call 202–720–5964 (voice and TTY). USDA is an equal opportunity provider and employer.
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
Office of the Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), Center for Food Safety and Applied Nutrition (CFSAN), are sponsoring a public meeting on February 5, 2013. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions that will be discussed at the 23rd Session of the Codex Committee on Fats and Oils (CCFO) of the Codex Alimentarius Commission (Codex), which will be held in Langkawi, Malaysia, February 25-March 1, 2013. The Under Secretary for Food Safety and FDA recognize the importance of providing interested parties the opportunity to obtain background information on the 23rd Session of the CCFO and to address items on the agenda.
The public meeting is scheduled for Tuesday, February 5, 2013, from 10:00 a.m. to 12:00 p.m.
The public meeting will be held at FDA, CFSAN, Harvey Wiley Building, Room 1A–002, 5100 Paint Branch Parkway, College Park, MD 20740. Documents related to the 23rd Session of the CCFO will be accessible via the World Wide Web at the following address:
Martin J. Stutsman, U.S. Delegate to the 23rd Session of the CCFO, 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 23rd Session of the CCFO by conference call, please use the call-in number and participant code listed below:
Martin Stutsman, J.D., Office of Food Safety, CFSAN, FDA, 5100 Paint Branch Parkway, College Park, MD 20740, Phone: +1(240) 402–1642, Fax: +1(301) 436–2651, Email:
Marie Maratos, U.S. Codex Office, 1400 Independence Avenue SW., Room 4861, Washington, DC 20250, Phone: +1(202) 205–7760, Fax: +1(202) 720–3157, Email:
Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization. Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in the food trade.
The CCFO is responsible for elaborating worldwide standards for fats and oils of animal, vegetable, and marine origin including margarine and olive oil.
The Committee is hosted by Malaysia.
The following items on the agenda for the 23rd Session of the CCFO will be discussed during the public meeting:
• Matters Referred by the Codex Alimentarius Commission and Other Codex Committees
• Proposed Draft Standard for Fish Oils
• Proposed Draft Amendment to Parameters for Rice Bran Oil in the Standard for Named Vegetable Oils
• Discussion Paper on the Amendment of the Standard for Named Vegetable Oils: Sunflower Seed Oils
• Discussion Paper on Cold Pressed Oils
• Discussion Paper on the Amendment of the Standard for Named Vegetable Oils: High Oleic Soybean Oil
• Discussion Paper on the Amendment of the Standard for Named Vegetable Oils for the addition of Palm Oil with High Oleic Acid OxG
• Discussion Paper on the Revision of the Limit for Campesterol in the Codex Standard for Olive Oils and Olive Pomace Oils
• Discussion Paper on the Amendment of the Standard for Olive Oils and Olive Pomace Oils: Content of Delta-7-Stigmastenol
• Reference to Acceptance/Voluntary Application in Codex Standards
• Other Business and Future Work
Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the meeting. Members of the public may access copies of these documents (see
At the February 5, 2013, 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 the U.S. Delegate for the 23rd Session of the CCFO, Martin Stutsman (see
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape.) should contact USDA's Target Center at 202–720–2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250–9410 or call 202–720–5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Food Safety and Inspection Service, USDA.
Notice of reestablishment of Committee.
In accordance with the Federal Advisory Committee Act, this notice is announcing the reestablishment of the National Advisory Committee on Microbiological Criteria for Foods (NACMCF). The Committee is being reestablished in cooperation with the Department of Health and Human Services (DHHS). The establishment of the Committee was recommended by a 1985 report of the National Academy of Sciences Committee on Food Protection, Subcommittee on Microbiological Criteria, “An Evaluation of the Role of Microbiological Criteria for Foods.” The current charter for the NACMCF is available for viewing on the NACMCF homepage at
Karen Thomas, Advisory Committee Specialist, U.S. Department of Agriculture (USDA), Food Safety and Inspection Service (FSIS), Room 9–214D Patriots Plaza III, 1400 Independence Avenue SW., Washington, DC 20250–3700. Telephone number: (202) 690–6620.
USDA is charged with the administration and the enforcement of the Federal Meat Inspection Act (FMIA), the Poultry Products Inspection Act (PPIA), and the Egg Products Inspection Act (EPIA). The Secretary of DHHS is charged with the administration and enforcement of the Federal Food, Drug, and Cosmetic Act (FFDCA). These Acts help protect consumers by ensuring that food products are wholesome, not adulterated, and properly marked, labeled, and packaged.
In order to assist the Secretaries in carrying out their responsibilities under the FMIA, PPIA, EPIA, and FFDCA, the NACMCF is being reestablished. The Committee will be charged with providing recommendations to the Secretaries on the development of microbiological criteria by which the safety and wholesomeness of food can be assessed, including criteria for microorganisms that indicate whether foods have been adequately and appropriately processed.
Reestablishment of this Committee is necessary and in the public interest because of the need for external expert advice on the range of scientific and technical issues that must be addressed by the FSIS and DHHS in meeting their statutory responsibilities. To address the complexity of the issues, the Committee is expected to meet one or more times annually.
Members will be appointed by the Secretary of USDA after consultation with the Secretary of the DHHS. Because of the complexity of matters addressed by this Committee, the Secretary may consult with other Federal Agencies, such as the Department of Commerce's National Marine Fisheries Service, the Department of Defense's Defense Logistics Agency, and the DHHS' Centers for Disease Control and Prevention, for advice on membership appointments. Background materials are
FSIS will announce this notice online through the FSIS Web page located at
FSIS also will make copies of this
Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.
USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status.
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250–9410 or call 202–720–5964 (voice and TTY). USDA is an equal opportunity provider and employer.
Rural Business-Cooperative Service.
Proposed collection; Comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's intention to request an extension for a currently approved information collection in support of the program for 7 CFR part 4284, subpart F. More specifically, 310B (e) of the Consolidated Farm and Rural Development Act (7 U.S.C. 1932).
Comments on this notice must be received by March 25, 2013 to be assured of consideration.
Deputy Administrator, Cooperative Programs, U.S. Department of Agriculture, 1400 Independence Avenue SW., STOP 3250, Washington, DC 20250, Telephone: 202–720–7558.
Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division at (202) 692–0040.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Rural Business-Cooperative Service, including whether the information will have practical utility; (b) the accuracy of the Rural Business-Cooperative Service's estimate of the burden of the proposed collection of information including validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the 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.
Comments may be sent to Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Avenue SW., Washington, DC 20250–0742.
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.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer, via email to
In the Matter of:
On October 12, 2011, in the U.S. District Court, Eastern District of Tennessee, Jerome Stuart Pendzich (“Pendzich”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2006 & Supp. IV 2010)) (“AECA”) . Specifically, Pendzich was convicted of knowingly and willfully attempting to export defense articles, that is, Level IV Ballistics Small Arms Protective Inserts (SAPI), to Bogota, Columbia without first having obtained a license or written approval from the United States Department of State. Pendzich was sentenced to 46 months of prison followed by three years of supervised release. Pendzich is also listed on the U.S. Department of State Debarred List.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
I have received notice of Pendzich's conviction for violating the IEEPA, and have provided notice and an opportunity for Pendzich to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have received a submission from Pendzich. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Pendzich's export privileges under the Regulations for a period of 10 years from the date of Pendzich's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Pendzich had an interest at the time of his conviction.
Accordingly, it is hereby
I. Until October 12, 2021, Jerome Stuart Pendzich, with last known addresses at: currently incarcerated at: Inmate Number 43550–074, FMC Lexington, P.O. Box 14500, Lexington, KY 40512, and with an address at: 209 Reece Hill Road, Hampton, TN 37658–3615, and when acting for or on behalf of Pendzich, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Pendzich by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until October 12, 2021.
VI. In accordance with Part 756 of the Regulations, Pendzich may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. A copy of this Order shall be delivered to the Pendzich. This Order shall be published in the
In the Matter of:
On June 23, 2011, in the U.S. District Court, District of Delaware, James Allen Larrison (“Larrison”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701,
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
I have received notice of Larrison's conviction for violating IEEPA, and have provided notice and an opportunity for Larrison to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Larrison. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Larrison's export privileges under the Regulations for a period of five years from the date of Larrison's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Larrison had an interest at the time of his conviction.
Accordingly, it is hereby
I. Until June 23, 2016, James Allen Larrison, with a last known address at: 211 Hope Drive, New Ringgold, PA 17960–9207, and when acting for or on behalf of Larrison, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Larrison by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until June 23, 2016.
VI. In accordance with Part 756 of the Regulations, Larrison may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. A copy of this Order shall be delivered to the Larrison. This Order shall be published in the
International Trade Administration, Commerce.
Notice of Federal Advisory Committee meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC).
The meeting is scheduled for Tuesday, February 26, 2012, at 9:00 a.m. Eastern Daylight Time (EDT).
The meeting will be held in Room 4830 at the U.S. Department of Commerce, Herbert Clark Hoover Building, 1401 Constitution Avenue NW., Washington, DC 20230.
Mr. Todd DeLelle, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 4053, 1401 Constitution Avenue NW., Washington, DC 20230. (Phone: 202–482–4877; Fax: 202–482–5665; email:
The meeting will take place from 9:00 a.m. to 3:30 p.m. EDT. This meeting is open to the public and time will be permitted for public comment from 3:00–3:30 p.m. EDT. Written comments concerning ETTAC affairs are welcome any time before or after the meeting. Minutes will be available within 30 days of this meeting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability and request for comment.
Notice is hereby given that NMFS has received a Tribal Resource Management Plan (TRMP) from the Nez Perce Tribe (NPT), and an updated Fishery Management and Evaluation Plan (FMEP) for fishery management in the Snake River Basin in Northeast Oregon. The TRMP is provided pursuant to the Tribal 4(d) Rule; the FMEP is provided pursuant to the salmon and steelhead 4(d) Rule. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to how the NPT TRMP addresses the criteria in the ESA, and of the FMEP. NMFS also announces the availability of a supplemental draft Environmental Assessment (EA) for the pending determination.
Comments and other submissions must be received at the appropriate address or fax number (see
Written responses to the application should be sent to Enrique Patiño, National Marine Fisheries Services, Salmon Management Division, 7600 Sand Point Way NE., Seattle, WA
Enrique Patin
Chinook salmon (
Steelhead (
Previously, NMFS had received fishery management plans for fisheries in tributaries of northeast Oregon. These plans, submitted by the Shoshone-Bannock Tribes, the Confederated Tribes of the Umatilla Indian Reservation, and the Oregon Department of Fish and Wildlife were the subjects of a draft environmental assessment and associated documents provided for public review and comment (76 FR 49735, August 11, 2011). Subsequent to that 30-day comment period, on February 17, 2012, NMFS received an updated TRMP from the NPT, addressing management of NPT fisheries in the Grande Ronde and Imnaha Rivers. NMFS also received an updated FMEP from Oregon describing inclusion of spring/summer Chinook salmon fisheries in the Washington State portion of the Grande Ronde River to be managed by the Washington Department of Fish and Wildlife on April 24, 2012. NMFS received additional comments clarifying aspects of the proposed actions. NMFS prepared a proposed evaluation of and pending determination on the NPT fishery plan, and updated the NMFS EA to incorporate the additional information.
The FMEPs and TRMPs propose to manage all spring/summer Chinook salmon fisheries to achieve escapement objectives. The FMEPs and TRMPs utilize a harvest rate with five tiers based on predicted adult abundance to each of the affected populations. The majority of the harvest is anticipated to come from hatchery-origin stocks. The FMEPs and TRMPs also describe a process to guide coordination of fishery design and implementation between the agencies implementing fisheries in the action area.
As required by the ESA 4(d) Rule for Tribal Plans (65 FR 42481, July 10, 2000 [50 CFR 223.209]), the Secretary must determine pursuant to 50 CFR 223.209 and pursuant to the government-to-government processes therein whether the TRMPs for fisheries in Northeast Oregon would appreciably reduce the likelihood of survival and recovery of Snake River spring/summer and Snake River Basin steelhead. The Secretary must take comments on his pending determination as to whether the TRMPs address the criteria in the Tribal 4(d) Rule and in § 223.203(b)(4).
As specified in § 223.203(b)(4) of the ESA 4(d) Rule, NMFS may approve an FMEP if it meets criteria set forth in § 223.203(b)(4)(i)(A) through (I). Prior to final approval of an FMEP, NMFS must publish notification announcing its availability for public review and comment.
NEPA requires Federal agencies to conduct an environmental analysis of their proposed actions to determine if the actions may affect the human environment. NMFS expects to take action on three ESA section 4(d) TRMPs and two ESA section 4(d) FMEPs. Therefore, NMFS is seeking public input on the scope of the required NEPA analysis with the inclusion of the additional proposed activities, including the range of reasonable alternatives and associated impacts of any alternatives.
The final NEPA, TRMP, and FMEP determinations will not be completed until after the end of the 30-day comment period and will fully consider all public comments received during the comment period. NMFS will publish a record of its final action on the TRMPs in the
Under section 4 of the ESA, NMFS, by delegated authority from the Secretary of Commerce, is required to adopt such regulations as he deems necessary and advisable for the conservation of the species listed as threatened. The ESA salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 4 of the updated 4(d) rule (50 CFR 223.203(b)(4)) further provides that the prohibitions of paragraph (a) of the updated 4(d) rule (50 CFR 223.203(a)) do not apply to activities associated with fishery harvest provided that an FMEP has been approved by NMFS to be in accordance with the salmon and steelhead 4(d) rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005). The ESA Tribal 4(d) Rule (65 FR 42481, July 10, 2000) states that the ESA section 9 take prohibitions will not apply to TRMPs that will not appreciably reduce the likelihood of survival and recovery for the listed species.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
Notice of availability; request for comments.
The National Marine Fisheries Service (NMFS) announces the availability for public review of the draft Recovery Plan (Plan) for the North Pacific right whale (
Comments on the draft Plan must be received by close of business on March 11, 2013.
You may submit comments, identified by 0648– XC431, by any of the following methods:
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Shannon Bettridge (301–427–8437), email
Recovery plans describe actions beneficial to the conservation and recovery of species listed under the Endangered Species Act of 1973 (ESA), as amended (16 U.S.C. 1531
The Northern right whale (
Because the current status of North Pacific right whales is unknown, the primary purpose of the draft Recovery Plan is to provide a research strategy to obtain data necessary to estimate population abundance, trends, and structure and to identify factors that may be limiting North Pacific right whale recovery. Criteria for the reclassification of the North Pacific right whale are included in the draft Recovery Plan. In summary, the North Pacific right whale may be reclassified from endangered to threatened when all of the following have been met: (1) Given current and projected threats and environmental conditions, the North Pacific right whale population satisfies the risk analysis standard for threatened status (has no more than a 1 percent chance of extinction in 100 years)
The population will be considered for delisting if all of the following can be met: (1) Given current and projected threats and environmental conditions, the total North Pacific right whale population in each ocean basin in which it occurs satisfies the risk analysis standard for unlisted status (has less than a 10 percent probability of becoming endangered in 20 years). Any factors or circumstances that are thought to substantially contribute to a real risk of extinction that cannot be incorporated into a Population Viability Analysis will be carefully considered before delisting takes place; and (2) none of the known threats to North Pacific right whales are known to limit the continued growth of populations. Specifically, the factors in 4(a)(l) of the ESA are being or have been addressed.
The time and cost to recovery is not predictable with the current information and global listing of North Pacific right whales. The difficulty in gathering data on North Pacific right whales and uncertainty about the success of passive acoustic monitoring in fulfilling data needs make it impossible to give a timeframe to recovery. While we are comfortable estimating costs for 50 years of plan implementation ($19.683 million), any projections beyond this date are likely to be too imprecise to predict. The anticipated date for removal from the endangered species list also cannot be determined because of the uncertainty in the success of recovery plan actions for North Pacific right whales. The effectiveness of many management activities is not known on a global level. Currently it is impossible to predict when such measures will bring the species to a point at which the protections provided by the ESA are no longer warranted, or even determine whether the species has recovered enough to be downlisted or delisted. In the future, as more information is obtained it should be possible to make more informative projections about the time to recovery, and its expense.
NMFS will consider all substantive comments and information presented during the public comment period in the course of finalizing this Plan. NMFS concludes that the Draft Recovery Plan meets the requirements of the ESA.
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of final determination and discussion of underlying biological analysis.
NMFS has evaluated the Tribal Resource Management Plan (Plan) submitted by the Shoshone-Bannock Tribes (Tribes) to NMFS pursuant to the limitation on take prohibitions for actions conducted under the Tribal Rule of section 4(d) for salmon and steelhead promulgated under the Endangered Species Act (ESA). The plan specifies fishery management activities in the Salmon River sub basin of Idaho. This document serves to notify the public that NMFS, by delegated authority from the Secretary of Commerce, has determined pursuant to the ESA Tribal 4(d) Rule for salmon and steelhead that implementing and enforcing the Plan will not appreciably reduce the likelihood of survival and recovery of ESA-listed salmon and steelhead.
The final determination on the Plan was made on January 11, 2013.
National Marine Fisheries Service, Salmon Management Division, 1201 NE. Lloyd Boulevard, Suite 1100, Portland, OR 97232.
Enrique Patiño at (206) 526–4655, or email:
Chinook salmon (
Chinook salmon (
Steelhead (
Sockeye (
The Shoshone-Bannock Tribes have submitted to NMFS a Tribal Plan describing the management of ceremonial and subsistence fisheries in the Salmon River basin in the State of Idaho. The objective of the Tribal Plan is to harvest spring Chinook salmon in a manner that does not appreciably reduce the likelihood of survival and recovery of the ESU. Impact levels on the listed spring Chinook salmon populations in the ESU are specified by a sliding-scale harvest rate schedule based on run size and escapement needs as described in the Tribal Plan. The Tribal Plan sets maximum harvest rates for each management unit or population based on its status, and assures that those rates or objectives are not exceeded. A variety of monitoring and evaluation tasks to be conducted by the Shoshone-Bannock Tribes is specified in the Tribal Plan to assess the abundance of spring Chinook salmon and to determine fishery effort and catch. A comprehensive review of the Tribal Plan to evaluate whether the fisheries and ESA-listed salmon and steelhead populations are performing as expected will be done within the proposed fishery season and at the end of the proposed season.
Under section 4(d) of the ESA, the Secretary is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. NMFS has issued a final ESA 4(d) Rule for Tribal Plans adopting regulations necessary and advisable to harmonize statutory conservation requirements with tribal rights and the Federal trust responsibility to tribes (50 CFR 223.209).
This 4(d) Rule for Tribal Plans applies the prohibitions enumerated in section 9(a)(1) of the ESA. NMFS did not find it necessary and advisable to apply the take prohibitions described in section 9(a)(1)(B) and 9(a)(1)(C) to fishery harvest activities if the fisheries are managed in accordance with a Tribal Plan whose implementation has been determined by the Secretary to not appreciably reduce the likelihood of survival and recovery of the listed salmonids.
As specified in the Tribal 4(d) Rule, before the Secretary makes a decision on the Tribal Plan, the public must have an opportunity to review and comment on the pending determination. NMFS made the proposed evaluation and pending determination available for public review, and the final evaluation and determination reflect consideration of comments received.
The management objective is for the Tribes to conduct fisheries in a manner that does not appreciably reduce the likelihood of survival and recovery of listed Chinook salmon. The Plan includes provisions for monitoring and evaluation to assess fishing-related impacts on Snake River spring/summer Chinook salmon. Performance indicators include dam, weir, and redd counts, harvest estimates, and escapement with respect to escapement goals. The proposed Plan provides the framework through which Tribal salmon fisheries could be implemented while meeting requirements specified under the ESA.
The Tribes intend to engage in ceremonial and subsistence harvest of both hatchery and natural-origin spring/summer Chinook salmon. Annually, the Tribes would issue season regulations detailing the timing and season regulations for tributary fisheries consistent with this long-term Plan. Under the Plan, the Tribes would manage all Chinook salmon fisheries to achieve escapement objectives using population-specific, abundance-based harvest rate schedules to limit ESA take according to year-specific adult escapement abundances. As a result, weaker populations will sustain less harvest and as the number of predicted adults increase, the number of fish escaping to the spawning grounds will also increase.
To achieve its conservation objectives, the Plan employs a number of key strategies as part of their harvest conservation measures, including: (1) Fishery-related redistribution of the conservation burden historically borne by fisheries; (2) use of threshold points to restrict the take of ESA-listed fish; and (3) application of a sliding scale approach to determine appropriate ESA take limits on critically low runs as well as on healthier runs at levels that may not slow recovery.
The Plan includes provisions for annual reports that will assess compliance with performance standards established through the Plan. The monitoring and evaluation described in the Plan will focus on two primary performance indicators: adult and juvenile abundance, and the overall assessment of abundance and productivity measures for each population. Reporting and inclusion of new information derived from Plan research, monitoring, and evaluation activities provides assurance that performance standards will be achieved in future seasons.
NMFS published notice of its proposed evaluation and pending determination on the Plan for public review and comment on May 30, 2012 (77 FR 31835). The proposed evaluation and pending determination and an associated draft environmental assessment were available for public review and comment for 30 days.
NMFS received one set of comments, from the Nez Perce Tribe. Several comments were addressed in NMFS' final evaluation and recommended determination document, but no substantive changes were required to the Plan or the environmental
Under section 4 of the ESA, the Secretary is required to adopt such regulations as he deems necessary and advisable for the conservation of the species listed as threatened. The ESA Tribal 4(d) Rule (50 CFR 223.209) states that the ESA section 9 take prohibitions will not apply to Tribal Plans that will not appreciably reduce the likelihood of survival and recovery for the listed species.
Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of public meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the NOAA Science Advisory Board. The members will discuss and provide advice on issues outlined in the section on Matters to be considered.
The meeting is scheduled for Tuesday, February 19, 2013, from 1:00–3:00 p.m. Eastern Standard Time.
Conference call. Public access is available at: NOAA, SSMC 3, Room 4527, 1315 East-West Highway, Silver Spring, Md. Members of the public will not be able to dial in to this meeting.
The Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on strategies for research, education, and application of science to operations and information services. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration (NOAA) science programs are of the highest quality and provide optimal support to resource management.
The meeting will include the following topics: (1) Presentation of the final report from Research and Development Portfolio Review Task Force; and (2) Review of the Terms of Reference for the Environmental Information Services Working Group. For the latest agenda, please visit the SAB Web site at
Dr. Cynthia Decker, Executive Director, Science Advisory Board, NOAA, Rm. 11230, 1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301–734–1156, Fax: 301–713–1459, Email:
Office of Postsecondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2013.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.334D.
These priorities are:
The full text of these priorities is included in the notice of final priorities for this program published elsewhere in this issue of the
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2014 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
The Department plans to fully fund the GEAR UP College Savings Account Research Demonstration Project up-front; that is, all funds needed for grantees to fully implement the project for its five or six year duration will be allocated for that purpose at the commencement of the project period.
1.
2.
A grantee under this demonstration project may treat contributions of students, families, or others to a student savings account as a matching contribution in its project budget. If, however, during any project year non-Federal contributions to savings accounts are less than 50 percent of the total costs under this demonstration project, a State would have to ensure by the end of each project year that it had met the annual matching requirement through other non-Federal contributions to this project or over-matched non-Federal funds to its regular GEAR UP project.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.334D.
You also can request a copy of the application package from the following: Catherine St. Clair, Student Service, Office of Postsecondary Education, U.S. Department of Education, 1990 K Street NW., room 7056, Washington, DC 20006–8524. Telephone: (202) 502–7579 or by email:
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.
2.
Page Limit: The application narrative is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit the application narrative (Part II) to no more than 25 pages. For purpose of determining compliance with the page limit, each page on which there are words will be counted as one full page. Applicants must use the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, except titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12-point or larger, or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman and Arial Narrow) will not be accepted.
The page limits do not apply to the cover sheet; the budget section, including the budget narrative and summary form; the assurances and certifications; or the one-page abstract.
We will reject your application if you exceed the page limit.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to Section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the Central Contractor Registry (CCR)—and, after July 24, 2012, with the System for Award Management (SAM)—the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active CCR or SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The CCR or SAM registration process may take five or more business days to complete. If you are currently registered with the CCR, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days to complete. Information about SAM is available at SAM.gov.
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the GEAR UP College Savings Account Research Demonstration Project, CFDA number 84.334D, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the GEAR UP State Grant competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time, or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days; or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Catherine St. Clair, Student Service, Office of Postsecondary Education, U.S. Department of Education, 1990 K Street NW., room 7056, Washington, DC 20006–8524. FAX: (202) 502–7857.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address:
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.334D), 550 12th Street SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
Catherine St. Clair, Student Service, Office of Postsecondary Education, U.S. Department of Education, 1990 K Street NW., room 7056, Washington, DC 20006–8524. Telephone: (202) 502–7579 or by email:
If you use a TDD, call the FRS, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Take notice that on January 16, 2013, pursuant to Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), CFR 385.206 and sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824(e) and 825(e), Linden VFT, LLC (Complainant) filed a formal complaint against Brookfield Energy Marketing, LP and Cargill Power Markets, LLC (Respondents) alleging that, Respondents failed to reimburse Complainant for PJM Transmission service costs under their Transmission Scheduling Rights Purchase Agreement (TSR Agreement). Complainant requests the Commission direct the Respondents to: (1) Reimburse Complainant in full for past invoices for PJM Transmission Service Costs associated with the Complainant's transmission facility and (2) timely pay Complainant in full for all future invoices for the duration of their TSR Agreements.
The Complainant certifies that copies of the complaint were served on the contacts for the Respondents as listed in the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed competing applications for a new license for the Scotland Hydroelectric Project (Commission Project Nos. 2662–012 and 12968–001). The Scotland Hydroelectric Project is located on the Shetucket River, in Windham County, Connecticut. The existing licensee for the project is FirstLight Hydro Generating Company (FirstLight). The competitor applicant for the Scotland Hydroelectric Project No. 12968 is the City of Norwich Department of Public Utilities (Norwich Public Utilities).
Staff has prepared a final environmental assessment (EA) that analyzes the potential environmental effects of relicensing the project as proposed by FirstLight and Norwich Public Utilities, and concludes that licensing the project with either proposal, with appropriate environmental protection measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the final EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
For further information, contact Janet Hutzel at (202) 502–8675 or by email at
On February 3, 2012, Hydro Development, LLC filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Cascade Creek Hydroelectric Project (Cascade Creek Project or project) to be located on Swan Lake and Cascade Creek, near Petersburg, Alaska. 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 owners' express permission.
The proposed project would consist of the following: (1) The existing Swan Lake with surface area of 574 acres and useable storage capacity of 22,500 acre-feet; (2) an outlet control structure consisting of a low-head weir and a 3-foot-high, 50-foot-wide crest gate; (3) a submerged siphon inlet with screens; (4) a tunnel and penstock system conveying flows from the lake siphon to the powerhouse including: (i) A 26-foot-long, 26-foot-wide, 98-foot-deep concrete lined vertical shaft containing 10-foot-diameter siphon piping and a siphon shutoff valve; (ii) a 12-foot-diameter, 12,700-foot-long unlined low pressure tunnel; (iii) a 14-foot-diameter, 1,320-foot-long unlined vertical shaft/vent; (iv) a 14-foot-diameter, 1,980-foot-long tunnel containing a 9-foot-diameter, 1,980-foot-long steel penstock; and (v) a 9-foot-diameter, 780-foot-long buried steel penstock; (5) a 140-foot-long, 80-foot-wide concrete and metal powerhouse with three 23.3-megawatt (MW), vertical-shaft Pelton turbine units having a total installed capacity of 70 MW; (6) a 450-foot-long, 40-foot-wide riprap-armored trapezoidal open-channel tailrace; (7) a new marine access facility, including a dock and barge landing ramp; (8) a 18.7-mile-long, 138-kilovolt transmission line consisting of buried, submarine, and overhead segments, with interconnection to the existing Scow Bay substation; and (9) appurtenant facilities. The estimated annual generation of the Cascade Creek Project would be 200 gigawatt-hours.
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
On March 31, 2010, the Commission issued a new license to Alabama Power Company (Alabama Power) for the continued operation and maintenance of the Warrior River Hydroelectric Project No. 2165, located on the Black Warrior River and on the Sipsey Fork of the Black Warrior River, in Cullman, Walker, Winston, and Tuscaloosa Counties, Alabama.
Rehearing of an order on rehearing lies when the later order modifies the result reached in the original order in a manner that gives rise to a wholly new objection.
This notice constitutes final agency action. Requests for rehearing by the Commission of this rejection must be filed within 30 days of the date of issuance of this notice pursuant to section 313(a) of the Federal Power Act, 16 U.S.C. 825
National Nuclear Security Administration, Office of Defense Programs, Department of Energy.
Notice of Intent to Establish the Defense Programs Advisory Committee (DPAC).
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act (Pub. L. 92–463), and in accordance with Title 41, Code of Federal Regulations, § 102–3.65, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Defense Programs Advisory Committee (DPAC) will be established. The DPAC will provide advice and recommendations to the Deputy Administrator for Defense Programs on the stewardship and maintenance of the Nation's nuclear deterrent.
Additionally, the establishment of the Committee has been determined to be essential to the conduct of the Department's 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 and the rules and regulations in implementation of that Act.
The activities of the DPAC will include, but are not limited to:
a. Periodic reviews of the diverse, scientific and technical activities of the Office of Defense Programs including.
b. Ongoing analysis of the DP mission and its foundation in national strategic policy (including the Nuclear Posture Review, provisions of the New START Treaty and other relevant treaties).
c. Potential application of DP capabilities to broader national security issues.
d. Analysis of DP management issues, including facility operations and fiscal matters.
e. Where appropriate, analysis of issues of broader concern to NNSA.
DPAC is expected to be continuing in nature. The Deputy Administrator for Defense Programs will appoint no more than 15 members. Members will be selected to achieve a balanced committee of scientific and technical experts in fields relevant to the Office of Defense Programs. All members must possess a “Q” clearance.
The DPAC is expected to meet approximately two to four times per year. It is anticipated that certain DPAC meetings will be closed to the public due to the classified nature of the Committee's discussions. Meetings will be closed in accordance with FACA and its implementing regulations. Subcommittees may be utilized.
COL. Mark Visosky at (202) 287–5270.
Environmental Protection Agency (EPA).
Notice.
This notice, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), publishes two notices of intent to suspend issued by EPA. Each Notice of Intent to Suspend was issued following the Agency's issuance of a Data Call-In notice (DCI), which required the registrants of the affected pesticide products containing a certain pesticide active ingredient to take appropriate steps to secure certain data, and following the registrants' failure to submit these data or to take other appropriate steps to secure the required data. The subject data were determined to be required to maintain in effect the existing registrations of the affected products. Failure to comply with the data requirements of a DCI is a basis for suspension of the affected registrations under FIFRA.
Each Notice of Intent to Suspend included in this
Veronica Dutch, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–8585;
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2010–0848, is available at
The Notices of Intent to Suspend were sent via the U.S. Postal Service (USPS), return receipt requested to, the registrants for the products listed in Table 1 of this unit.
The registrants failed to submit the required data or information or to take other appropriate steps to secure the required data for their pesticide products listed in Table 2 of this unit.
1. You may avoid suspension under this notice if you, or another person adversely affected by this notice, properly request a hearing within 30 days of your receipt of the Notice of Intent to Suspend by mail or, if you did not receive the notice that was sent to you via USPS first class mail return receipt requested, then within 30 days from the date of publication of this
• Include specific objections which pertain to the allowable issues which may be heard at the hearing.
• Identify the registrations for which a hearing is requested.
• Set forth all necessary supporting facts pertaining to any of the objections which you have identified in your request for a hearing.
If a hearing is requested by any person other than the registrant, that person must also state specifically why he/she asserts that he/she would be adversely affected by the suspension action described in this notice. Three copies of the request must be submitted to: Hearing Clerk, 1900, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001.
An additional copy should be sent to the person who signed this notice. The
2. You may also avoid suspension if, within the applicable 30 day deadline period as measured from your receipt of the Notice of Intent to Suspend by mail or publication of this notice, as set forth in
Your product will remain suspended, however, until the Agency determines you are in compliance with the requirements which are the bases of this notice and so informs you in writing.
After the suspension becomes final and effective, the registrants subject to this notice, including all supplemental registrants of products listed in Table 1 of Unit II., may not legally distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the products listed in Table 1 of Unit II. Persons other than the registrants subject to this notice, as defined in the preceding sentence, may continue to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the products listed in Table 1 of Unit II. Nothing in this notice authorizes any person to distribute, sell, use, offer for sale, hold for sale, ship, deliver for shipment, or receive and (having so received) deliver or offer to deliver, to any person, the products listed in Table 1 of Unit II. in any manner which would have been unlawful prior to the suspension.
If the registrations for your products listed in Table 1 of Unit II. are currently suspended as a result of failure to comply with another FIFRA section 3(c)(2)(B) Data Call-In notice or section 4 Data Requirements notice, this notice, when it becomes a final and effective order of suspension, will be in addition to any existing suspension, i.e., all requirements which are the bases of the suspension must be satisfied before the registration will be reinstated.
It is the responsibility of the basic registrant to notify all supplementary registered distributors of a basic registered product that this suspension action also applies to their supplementary registered products. The basic registrant may be held liable for violations committed by their distributors.
Any questions about the requirements and procedures set forth in this notice or in the subject FIFRA section 3(c)(2)(B) Data Call-In notice, should be addressed to the person listed under
The Agency's authority for taking this action is contained in FIFRA sections 3(c)(2)(B) and 6(f)(2), 7 U.S.C. 136
Environmental protection, Pesticides and pests.
Farm Credit System Insurance Corporation.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on January 24, 2013, from 9:00 a.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883–4009, TTY (703) 883–4056.
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102.
This meeting of the Board will be open to the
Federal Financial Institutions Examination Council (FFIEC).
Notice; request for comment.
The Federal Financial Institutions Examination Council (FFIEC), on behalf of its members, requests comment on this proposed guidance entitled “Social Media: Consumer Compliance Risk Management Guidance” (guidance). Upon completion of the guidance, and after consideration of comments received from the public, the federal financial institution regulatory agencies will issue it as supervisory guidance to the institutions that they supervise and the State Liaison Committee (SLC) of the FFIEC will encourage state regulators to adopt the guidance. Accordingly, institutions will be expected to use the guidance in their efforts to ensure that their policies and procedures provide oversight and controls commensurate with the risks posed by their social media activities.
Comments must be received on or before March 25, 2013.
Because paper mail received by the FFIEC is subject to delay due to heightened security precautions in the Washington, DC area, you are encouraged to submit comments by the Federal eRulemaking Portal, if possible. Please use the title “Social Media Comments” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:
The FFIEC is proposing guidance to address the applicability of federal consumer protection and compliance laws, regulations, and policies to activities conducted via social media by banks, savings associations, and credit unions, as well as by nonbank entities supervised by the Consumer Financial Protection Bureau (CFPB) (collectively, financial institutions).
The six members of the FFIEC are the Office of the Comptroller of the Currency (OCC); the Board of Governors of the Federal Reserve System (Board); the Federal Deposit Insurance Corporation (FDIC); the National Credit Union Administration (NCUA); the CFPB (collectively, the Agencies); and the State Liaison Committee (SLC). As part of its mission, the FFIEC makes recommendations regarding supervisory matters and the adequacy of supervisory tools to the Agencies. The FFIEC also develops procedures for examinations of financial institutions that are used by the Agencies. The Agencies expect that all financial institutions they supervise will effectively assess and manage risks associated with activities conducted via social media. Upon completion of the guidance, and after consideration of comments received from the public, the Agencies will issue it as supervisory guidance to the institutions that they supervise. Accordingly, such institutions will be expected to use the guidance in their efforts to ensure that their risk management practices adequately address the consumer compliance and legal risks, as well as related risks, such as reputation and operational risks, raised by activities conducted via social media. The SLC, which is composed of representatives of five state agencies that supervise financial institutions, was established to encourage the application of uniform examination principles and standards
Social media has been defined in a number of ways. For purposes of the proposed guidance, the Agencies consider social media to be a form of interactive online communication in which users can generate and share content through text, images, audio, and/or video. Social media can take many forms, including, but not limited to, micro-blogging sites (e.g., Facebook, Google Plus, MySpace, and Twitter); forums, blogs, customer review Web sites and bulletin boards (e.g., Yelp); photo and video sites (e.g., Flickr and YouTube); sites that enable professional networking (e.g., LinkedIn); virtual worlds (e.g., Second Life); and social games (e.g., FarmVille and CityVille). Social media can be distinguished from other online media in that the communication tends to be more interactive.
Financial institutions may use social media in a variety of ways, including marketing, providing incentives, facilitating applications for new accounts, inviting feedback from the public, and engaging with existing and potential customers, for example, by receiving and responding to complaints, or providing loan pricing. Since this form of customer interaction tends to be informal and occurs in a less secure environment, it presents some unique challenges to financial institutions.
The use of social media by a financial institution to attract and interact with customers can impact a financial institution's risk profile. The increased risks can include the risk of harm to consumers, compliance and legal risk, operational risk, and reputation risk. Increased risk can arise from a variety of directions, including poor due diligence, oversight, or control on the part of the financial institution. The proposed guidance is meant to help financial institutions identify potential risk areas to appropriately address, as well as to ensure institutions are aware of their responsibilities to oversee and control these risks within their overall risk management program.
The FFIEC is proposing this guidance to respond to requests that have been articulated to the Agencies by various participants in the industry for guidance regarding the application of consumer protection laws and regulations within the realm of social media. The FFIEC invites comments on any aspect of the proposed guidance. In addition, the FFIEC is specifically soliciting comments in response to the following questions:
1. Are there other types of social media, or ways in which financial institutions are using social media, that are not included in the proposed guidance but that should be included?
2. Are there other consumer protection laws, regulations, policies or concerns that may be implicated by financial institutions' use of social media that are not discussed in the proposed guidance but that should be discussed?
3. Are there any technological or other impediments to financial institutions' compliance with otherwise applicable laws, regulations, and policies when using social media of which the Agencies should be aware?
Please be aware that all comments received will be posted generally without change to
In accordance with the Paperwork Reduction Act (PRA),
The text of the proposed interagency Social Media: Consumer Compliance Risk Management Guidance follows:
The Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve (Board), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), the Consumer Financial Protection Bureau (CFPB) (collectively, the Agencies), and the State Liaison Committee (SLC) are issuing guidance to address the applicability of existing federal consumer protection and compliance laws, regulations, and policies to activities conducted via social media by banks, savings associations, and credit unions, as well as by nonbank entities supervised by the CFPB (collectively, financial institutions). The Agencies are responding to a need for guidance in this area that has been articulated to the Agencies by various participants in the industry. The guidance is intended to help financial institutions understand potential consumer compliance and legal risks, as well as related risks, such as reputation and operational risks associated with the use of social media, along with expectations for managing those risks. Although this guidance does not impose additional obligations on financial institutions, as with any new process or product channel, financial institutions must manage potential risks associated with social media usage and access.
The Agencies recognize that financial institutions are using social media as a tool to generate new business and interact with consumers. The Agencies believe social media, as any new communication technology, has the potential to improve market efficiency. Social media may more broadly distribute information to users of financial services and may help users and providers find each other and match products and services to users' needs. To manage potential risks to financial institutions and consumers, however, financial institutions should ensure their risk management programs provide oversight and controls commensurate with the risks presented by the types of social media in which the financial institution is engaged, including but not limited to, the risks outlined within this guidance.
Social media has been defined in a number of ways. For purposes of this guidance, the Agencies consider social media to be a form of interactive online communication in which users can generate and share content through text, images, audio, and/or video. Social media can take many forms, including, but not limited to, micro-blogging sites (e.g., Facebook, Google Plus, MySpace, and Twitter); forums, blogs, customer review web sites and bulletin boards (e.g., Yelp); photo and video sites (e.g., Flickr and YouTube); sites that enable professional networking (e.g., LinkedIn); virtual worlds (e.g., Second Life); and social games (e.g., FarmVille and CityVille). Social media can be distinguished from other online media
Financial institutions may use social media in a variety of ways including advertising and marketing, providing incentives, facilitating applications for new accounts, inviting feedback from the public, and engaging with existing and potential customers, for example by receiving and responding to complaints, or providing loan pricing. Since this form of customer interaction tends to be both informal and dynamic, and occurs in a less secure environment, it presents some unique challenges to financial institutions.
A financial institution should have a risk management program that allows it to identify, measure, monitor, and control the risks related to social media. The size and complexity of the risk management program should be commensurate with the breadth of the financial institution's involvement in this medium. For instance, a financial institution that relies heavily on social media to attract and acquire new customers should have a more detailed program than one using social media only to a very limited extent. The risk management program should be designed with participation from specialists in compliance, technology, information security, legal, human resources, and marketing. A financial institution that has chosen not to use social media should still be prepared to address the potential for negative comments or complaints that may arise within the many social media platforms described above and provide guidance for employee use of social media. Components of a risk management program should include the following:
• A governance structure with clear roles and responsibilities whereby the board of directors or senior management direct how using social media contributes to the strategic goals of the institution (for example, through increasing brand awareness, product advertising, or researching new customer bases) and establishes controls and ongoing assessment of risk in social media activities;
• Policies and procedures (either stand-alone or incorporated into other policies and procedures) regarding the use and monitoring of social media and compliance with all applicable consumer protection laws, regulations, and guidance. Further, policies and procedures should incorporate methodologies to address risks from online postings, edits, replies, and retention;
• A due diligence process for selecting and managing third-party service provider relationships in connection with social media;
• An employee training program that incorporates the institution's policies and procedures for official, work-related use of social media, and potentially for other uses of social media, including defining impermissible activities;
• An oversight process for monitoring information posted to proprietary social media sites administered by the financial institution or a contracted third party;
• Audit and compliance functions to ensure ongoing compliance with internal policies and all applicable laws, regulations, and guidance; and
• Parameters for providing appropriate reporting to the financial institution's board of directors or senior management that enable periodic evaluation of the effectiveness of the social media program and whether the program is achieving its stated objectives.
The use of social media to attract and interact with customers can impact a financial institution's risk profile, including risk of harm to consumers, compliance and legal risks, operational risks, and reputation risks. Increased risk can arise from poor due diligence, oversight, or control on the part of the financial institution. As noted previously, this guidance is meant to help financial institutions identify potential risks to ensure institutions are aware of their responsibilities to address risks within their overall risk management program.
Compliance and legal risk arise from the potential for violations of, or nonconformance with, laws, rules, regulations, prescribed practices, internal policies and procedures, or ethical standards. These risks also arise in situations in which the financial institution's policies and procedures governing certain products or activities may not have kept pace with changes in the marketplace. This is particularly pertinent to an emerging medium like social media. Further, the potential for defamation or libel risk exists where there is broad distribution of information exchanges. Failure to adequately address these risks can expose an institution to enforcement actions and/or civil lawsuits.
The laws discussed in this guidance do not contain exceptions regarding the use of social media. Therefore, to the extent that a financial institution uses social media to engage in lending, deposit services, or payment activities, it must comply with applicable laws and regulations as when it engages in these activities through other media.
The following laws and regulations may be relevant to a financial institution's social media activities. This list is not all-inclusive. Each financial institution should ensure that it periodically evaluates and controls its use of social media to ensure compliance with all applicable federal, state, and local laws, regulations, and guidance.
Social media may be used to market products and originate new accounts. When used to do either, a financial institution must take steps to ensure that advertising, account origination, and document retention are performed in compliance with applicable consumer protection and compliance laws and regulations. These include, but are not limited to:
Truth in Savings Act/Regulation DD and Part 707.
○ If an electronic advertisement displays a triggering term, such as “bonus” or “APY,” then Regulation DD and Part 707 require the advertisement to clearly state certain information, such as the minimum balance required to obtain the advertised APY or bonus. For example, an electronic advertisement can provide the required information via a link that directly takes the consumer to the additional information.
Fair Lending Laws: Equal Credit Opportunity Act/Regulation B
○ The Equal Credit Opportunity Act, as implemented by Regulation B,
○ As with all prescreened solicitations, a creditor must preserve prescreened solicitations disseminated through social media, as well as the prescreening criteria, in accordance with Regulation B.
○ When denying credit, a creditor must provide an adverse action notice detailing the specific reasons for the decision or notifying the applicant of his or her right to request the specific reasons for the decision.
○ It is also important to note that creditors may not, with limited exceptions, request certain information, such as information about an applicant's race, color, religion, national origin, or sex. Since social media platforms may collect such information about participants in various ways, a creditor should ensure that it is not requesting, collecting, or otherwise using such information in violation of applicable fair lending laws. Particularly if the social media platform is maintained by a third party that may request or require users to provide personal information such as age and/or sex or use data mining technology to obtain such information from social media sites, the creditor should ensure that it does not itself improperly request, collect, or use such information or give the appearance of doing so.
○ The Fair Housing Act (FHA) prohibits discrimination based on race, color, national origin, religion, sex, familial status, or handicap in the sale and rental of housing, in mortgage lending, and in appraisals of residential real property. In addition, the FHA makes it unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition applies to all advertising media, including social media sites. For example, if a financial institution engages in residential mortgage lending and maintains a presence on Facebook, the Equal Housing Opportunity logo must be displayed on its Facebook page, as applicable.
Truth in Lending Act/Regulation Z.
○ Regulation Z requires that advertisements relating to credit present certain information in a clear and conspicuous manner. It includes requirements regarding the proper disclosure of the annual percentage rate and other loan features. If an advertisement for credit states specific credit terms, it must state only those terms that actually are or will be arranged or offered by the creditor.
○ For electronic advertisements, such as those delivered via social media, Regulation Z permits providing the required information on a table or schedule that is located on a different page from the main advertisement if that table or schedule is clear and conspicuous and the advertisement clearly refers to the page or location.
○ Regulation Z requires that, for consumer loan applications taken electronically, including via social media, the financial institution must provide the consumer with all Regulation Z disclosures within the required time frames.
Real Estate Settlement Procedures Act. Section 8 of the Real Estate Settlement Procedures Act
Fair Debt Collection Practices Act.
Unfair, Deceptive, or Abusive Acts or Practices. Section 5 of the Federal Trade Commission (FTC) Act
Deposit Insurance or Share Insurance. A number of requirements regarding FDIC or NCUA membership and deposit
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If social media is used to facilitate a consumer's use of payment systems, a financial institution should keep in mind the laws, regulations, and industry rules regarding payments that may apply, including those providing disclosure and other rights to consumers. Under existing law, no
Electronic Fund Transfer Act/Regulation E.
Rules Applicable to Check Transactions. When a payment occurs via a check-based transaction rather than an EFT, the transaction will be governed by applicable industry rules
As required by the Bank Secrecy Act (BSA)
At a minimum, internal controls include but are not limited to: Implementing an effective customer identification program; implementing risk-based customer due diligence policies, procedures, and processes; understanding expected customer activity; monitoring for unusual or suspicious transactions; and maintaining records of electronic funds transfers. An institution's BSA/AML program must provide for the following minimum components: a system of internal controls to ensure ongoing compliance; independent testing of BSA/AML compliance, a designated BSA compliance officer responsible for managing compliance, and training for appropriate personnel. These controls should apply to all customers, products and services, including customers engaging in electronic banking (e-banking) through the use of social media, and e-banking products and services offered in the context of social media.
Financial institutions should also be aware of emerging areas of BSA/AML
Under the regulations implementing the Community Reinvestment Act (CRA), a depository institution subject to the CRA must maintain a public file that includes, among other items, all written comments received from the public for the current year and each of the prior two calendar years related to the institution's performance in helping to meet community credit needs, and any response by the institution, assuming the comments or responses do not reflect adversely on the “good name or reputation” of others. Depository institutions subject to the CRA should ensure their policies and procedures addressing public comments also include appropriate monitoring of social media sites run by or on behalf of the institution.
Privacy rules have particular relevance to social media when, for instance, a financial institution collects, or otherwise has access to, information from or about consumers. A financial institution should take into consideration the following laws and regulations regarding the privacy of consumer information:
Gramm-Leach-Bliley Act Privacy Rules and Data Security Guidelines.
○ A financial institution using social media should clearly disclose its privacy policies as required under GLBA.
○ Even when there is no “consumer” or “customer” relationship triggering GLBA requirements, a financial institution will likely face reputation risk if it appears to be treating any consumer information carelessly or if it appears to be less than transparent regarding the privacy policies that apply on one or more social media sites that the financial institution uses.
CAN–SPAM Act
Children's Online Privacy Protection Act.
○ Certain social media platforms require users to attest that they are at least 13, and a financial institution using those sites may consider relying on such policies. However, the financial institution must still take care to monitor whether it is actually collecting any personal information of a person under 13, such as when a child under 13 manages to post such information on the financial institution's site.
○ A financial institution maintaining its
Fair Credit Reporting Act.
Reputation risk is the risk arising from negative public opinion. Activities that result in dissatisfied consumers and/or negative publicity could harm the reputation and standing of the financial institution, even if the financial institution has not violated any law. Privacy and transparency issues, as well as other consumer protection concerns, arise in social media environments. Therefore, a financial institution engaged in social media activities must be sensitive to, and properly manage, the reputation risks that arise from those activities. Reputation risk can arise in areas including the following:
Financial institutions should be aware that protecting their brand identity in a social media context can be challenging. Risk may arise in many ways, such as through comments made by social media users, spoofs of institution communications, and activities in which fraudsters masquerade as the institution. Financial institutions should consider the use of social media monitoring tools and techniques to identify heightened risk, and respond appropriately. Financial institutions should have appropriate policies in place to monitor and address in a timely manner the fraudulent use of the financial institution's brand, such as through phishing or spoofing attacks.
Working with third parties to provide social media services can expose
Even when a financial institution complies with applicable privacy laws in its social media activities, it should consider the potential reaction by the public to any use of consumer information via social media. The financial institution should have procedures to address risks from occurrences such as members of the public posting confidential or sensitive information—for example, account numbers—on the financial institution's social media page or site.
Although a financial institution can take advantage of the public nature of social media to address customer complaints and questions, reputation risks exist when the financial institution does not address consumer questions or complaints in a timely or appropriate manner. Further, the participatory nature of social media can expose a financial institution to reputation risks that may occur when users post critical or inaccurate statements. Compliance risk can also arise when a customer uses social media in an effort to initiate a dispute, such as an error dispute under Regulation E, a billing error under Regulation Z, or a direct dispute about information furnished to a consumer reporting agency under FCRA and its implementing regulations. A financial institution should have monitoring procedures in place to address the potential for these statements or complaints to require further investigation. Some institutions have employed monitoring software to identify any active discussion of the institution on the Internet.
The financial institution should also consider whether, and how, to respond to communications disparaging the financial institution on other parties' social media sites. To properly control these risks, financial institutions should consider the feasibility of monitoring question and complaint forums on social media sites to ensure that such inquiries, complaints, or comments are addressed in a timely and appropriate manner.
Financial institutions should be aware that employees' communications via social media—even through employees' own personal social media accounts—may be viewed by the public as reflecting the financial institution's official policies or may otherwise reflect poorly on the financial institution, depending on the form and content of the communications. Employee communications can also subject the financial institution to compliance risk as well as reputation risk. Therefore, financial institutions should establish appropriate policies to address employee participation in social media that implicates the financial institution. The Agencies do not intend this guidance to address any employment law principles that may be relevant to employee use of social media. Each financial institution should evaluate the risks for itself and determine appropriate policies to adopt in light of those risks.
Operational risk is the risk of loss resulting from inadequate or failed processes, people, or systems. The root cause can be either internal or external events.
The identification, monitoring, and management of IT-related risks are addressed in the
Social media is one of several platforms vulnerable to account takeover and the distribution of malware. A financial institution should ensure that the controls it implements to protect its systems and safeguard customer information from malicious software adequately address social media usage. Financial institutions' incident response protocol regarding a security event, such as a data breach or account takeover, should include social media, as appropriate.
As noted previously, the Agencies recognize that financial institutions are using social media as a tool to generate new business and provide a dynamic environment to interact with consumers. As with any product channel, financial institutions must manage potential risks to the financial institution and consumers by ensuring that their risk management programs provide appropriate oversight and control to address the risk areas discussed within this guidance.
9:00 a.m. (Eastern Time), January 28, 2013.
10th Floor Board Meeting Room, 77 K Street NE., Washington, DC 20002.
Parts will be open to the public and parts will be closed to the public
1. Approval of the Minutes of the December 17, 2012 Board Member Meeting.
2. Thrift Savings Plan Activity Report by the Acting Executive Director.
a. Monthly Participant Activity Report.
b. Monthly Investment Performance Report.
c. Legislative Report.
3. Quarterly Investment Policy Report.
4. Quarterly Vendor Financials Review.
5. Annual Expense Ratio Report.
6. Annual Statement.
7. 2013 Board Meeting Calendar.
8. Personnel.
9. Procurement.
10. Security.
11. Legal.
Kimberly Weaver, Director, Office of External Affairs, (202) 942–1640.
Notice is hereby given of a change in the meeting of the Recombinant DNA Advisory Committee, January 24, 2013, 09:00 a.m. to January 24, 2013, 04:00 p.m., National Institutes of Health, Building 45, 45 Center Drive, Lower Level, Conference Room C1–C2, Rockville, MD, 20892 which was published in the
The time of the meeting has been changed from 9:00 a.m.–4:00 p.m. to 8:30 a.m.–4:30 p.m. Additionally, this meeting will not be webcast and there will be no opportunity to submit comments during the meeting. The meeting is open to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Notice of minimum random drug testing rate.
The Coast Guard has set the calendar year 2013 minimum random drug testing rate at 25 percent of covered crewmembers. The Coast Guard will continue to closely monitor drug test reporting to ensure the quality of the information. The Coast Guard may set the rate back up to 50 percent of covered crewmembers if the positive rate for random drug tests is greater than 1 percent for any one year, or if the quality of data is not sufficient to accurately assess the positive rate.
The minimum random drug testing rate is effective January 1, 2013, through December 31, 2013. Marine employers must submit their 2013 Management Information System (MIS) reports no later than March 15, 2014.
Annual MIS reports may be submitted by mail to Commandant (CG–INV), U.S. Coast Guard Headquarters, 2100 Second Street SW., STOP 7561, Washington, DC 20593–7581 or by electronic submission to the following Internet address:
The docket for this notice is available for inspection or copying at the Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
For questions about this notice, please contact Mr. Robert C. Schoening, Drug and Alcohol Program Manager, Office of Investigations and Casualty Analysis (CG–INV), U.S. Coast Guard Headquarters, telephone 202–372–1033. If you have questions on viewing or submitting material to the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202–366–9826.
Under 46 CFR 16.230, the Coast Guard requires marine employers to establish random drug testing programs for covered crewmembers. Every marine employer is required by 46 CFR 16.500 to collect and maintain a record of drug testing program data for each calendar year and submit this data by March 15 of the following year to the Coast Guard in an annual Management Information System (MIS) report. Marine employers may either submit their own MIS reports or have a consortium or other employer representative submit the data in a consolidated MIS report.
The Coast Guard annually sets the minimum drug testing rate for the coming year. The purpose of setting a minimum random drug testing rate is to assist the Coast Guard in analyzing its current approach for deterring and detecting illegal drug abuse in the maritime industry, and to encourage employers to maintain a drug-free workplace with the incentive of a reduced testing rate (and associated reduced costs). In every year of testing through 2012, the random testing rate has been 50 percent. In accordance with 46 CFR 16.230(f)(2), the Commandant may lower this rate to 25 percent if, for 2 consecutive years, the positive drug test rate is less than 1 percent.
MIS data indicates that the positive rate for random drug tests was 0.77 percent in 2011 and 0.74 percent in 2010. The Commandant is exercising his discretion to reduce the required random drug testing rate for calendar year 2013 to 25 percent of covered crewmembers. The Commandant may reset the rate to 50 percent of covered crewmembers if the positive rate for random drug tests is greater than 1 percent for any one year, or if the quality of data is not sufficient to accurately assess the positive rate.
The Coast Guard commends marine employers and mariners for their efforts to create a drug-free workplace and encourages marine employers and drug testing service providers to continue to submit accurate, complete and timely MIS data.
This notice is issued under authority of 46 CFR 16.230(f), which requires the Coast Guard to publish the results of random drug testing for the previous calendar year's MIS data and the minimum annual percentage rate for random drug testing for the next calendar year, and 5 U.S.C. 552(a).
Transportation Security Administration, DHS.
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652–0018, abstracted below to OMB for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by February 22, 2013. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Susan L. Perkins, TSA PRA Officer, Office of Information Technology (OIT), TSA–11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6011; telephone (571) 227–3398; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number. The ICR documentation is available at
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Transportation Security Administration, DHS.
60-Day notice.
The Transportation Security Administration (TSA) invites public
Send your comments by March 25, 2013.
Comments may be emailed to
Susan L. Perkins at the above address, or by telephone (571) 227–3398.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA Customer Comment Cards collect feedback, and the passenger may voluntarily provide contact information. TSA may use the contact information to respond to the passenger's comments. For passengers who deposit their cards in the designated drop-boxes, TSA staff at airports collect the cards, categorize comments, enter the results into an online system for reporting, and respond to passengers as appropriate. Passengers also have the option to mail the cards directly to the address provided on the comment card, which varies by airport.
In addition, the TSA Contact Center will continue to be available for passengers to make comments independently of airport involvement via the Talk to TSA internet application on the TSA Web site at
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until February 22, 2013. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until February 22, 2013. This process is conducted in accordance with 5 CFR 1320.10.
All written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
HUD created the Energy and Performance Information Center (“EPIC”) data system to track the amount and types of Energy Efficiency Measures (EEMs) being implemented within Public Housing units (OMB Control Number 2577–0274). This revision expands the data collected to include the amount and type of Public Housing development, including development in conjunction with Low Income Housing Tax Credits; other planning collections and performance reports presently collected in hard copy; the Physical Needs Assessment; and modernization undertaken by PHAs through Energy Performance Contracts. The EPIC data system is necessary in order to support the Department's Agency Performance Goals (APGs), specifically APG # 4, Measure # 13 which sets numeric targets for completing green retrofits and creating energy efficient units. In addition to the direct support of HUD APG # 4, Measure # 13, the implementation of the EPIC data system will enable HUD to provide reports on the progress of EEMs completed with PIH funding. The EPIC data system will also improve PHA planning by making the five year plan and annual statement process electronic and also enabling HUD to aggregate this information in order to track APG # 2, Measure # 5, which sets goals for expanding the number of families housed. The EPIC data system will also allow improved tracking of the Energy Performance Contract process and will include the Physical Needs Assessment tool.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Colette Pollard, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4160, Washington, DC 20410–5000; telephone 202.402.3400 (this is not a toll-free number) or email Ms. Pollard at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202–402–4109, (this is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's 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; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The EPIC data system will gradually automate the collection of the five year plan and annual statement forms from grantees. These are required forms presently collected in hard copy on
Furthermore, the EPIC data system will be loaded with Physical Needs Assessment (“PNA”) data. This data being in the system coupled with the electronic planning process will streamline grantee planning.
The EPIC data system will collect information about the Energy Performance Contract (“EPC”) process such as energy efficiency improvement financed under an EPC, and construction start and completion date. It will also collect the energy efficiency improvements information on the types previously captured through the RAMPS for Public Housing Capital Fund Recovery grants. As the Department moves to shrink its energy footprint in spite of rising energy costs, clear and comprehensive data on this process will be crucial to its success.
Finally, the Department has prioritized in Agency Performance Goal # 2, Measure # 5 making housing more available for more families. In the light of the recent housing crisis, this goal has become simultaneously more challenging and more important. Tracking of the use of Federal funds paid through the Public Housing Capital Fund, the only Federal funding stream dedicated to the capital needs of the nation's last resort housing option, is crucial to understanding how the Department can properly and efficiently assist grantees in meeting this goal as well as assessing the Department's own progress. The EPIC data system will track development of public housing with Federal funds and through other means, including mixed-finance development.
section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Secretary, Interior.
Notice of meeting.
We, the Department of the Interior, announce a public meeting of the 21st Century Conservation Service Corps Advisory Committee (Committee).
The meeting will be held at the Bureau of Land Management Offices at 20 M Street SE., Conference Room 4016 & 4017, Washington, DC. There will also be a conference call line available for those unable to attend in person. To participate in the call as an interested member of the public, please contact Lisa Young (see
Lisa Young, Designated Federal Officer (DFO), 1849 C Street NW., MS 3559, Washington, DC 20240; telephone (202) 208–7586; fax (202) 208–5873; or email
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App. 2, we announce that the 21st Century Conservation Service Corps Advisory Committee will hold a meeting.
Chartered in November 2011, the Committee is a discretionary advisory committee established under the authority of the Secretary of the Interior. The purpose of the Committee is to provide the Secretary of the Interior with recommendations on: (1) Developing a framework for the 21CSC, including program components, structure, and implementation, as well as accountability and performance evaluation criteria to measure success; (2) the development of certification criteria for 21CSC providers and individual certification of 21CSC members; (3) strategies to overcome existing barriers to successful 21CSC program implementation; (4) identifying partnership opportunities with corporations, private businesses or entities, foundations, and non-profit groups, as well as state, local, and tribal governments, to expand support for conservation corps programs, career training and youth employment opportunities; and (5) developing pathways for 21CSC participants for future conservation engagement and natural resource careers. Background information on the Committee is available at
The Committee will convene to discuss priorities for the first meeting of the National Council for the 21CSC, along with other committee business. The public will be able to make comment on Thursday, February 14, 2013 starting at 11:30 a.m. The final agenda will be posted on
Interested members of the public may present, either orally or through written comments, information for the Committee to consider during the public meeting. Due to the nature of this meeting, interested members of the public are strongly encouraged to submit written statements to the committee by COB Tuesday, February 12, 2013 so they can be reviewed and considered during the full committee meeting on Thursday, February 14, 2013.
Individuals or groups requesting to make comment at the public Committee meeting will be limited to 2 minutes per speaker, with no more than a total of 15 minutes for all speakers. Interested parties should contact Lisa Young, DFO, in writing (preferably via email), by Wednesday, August 22, 2012. (
In order to attend this meeting, you must register by close of business Tuesday, February 12, 2013. The meeting is open to the public. Calls in lines are limited, so all interested in attending should pre-register, and at that time will be given the call in information. Please submit your name, email address and phone number to Lisa Young via email at
Office of the Secretary, Interior.
Notice.
This notice lists programs or portions of programs that are eligible for inclusion in Fiscal Year 2013 funding agreements with self-governance Indian tribes and lists programmatic targets for each of the non-Bureau of Indian Affairs (BIA) bureaus in the Department of the Interior, pursuant to the Tribal Self-Governance Act.
This notice expires on September 30, 2013.
Inquiries or comments regarding this notice may be directed to Sharee M. Freeman, Director, Office of Self-Governance (MS 355H–SIB), 1849 C Street NW., Washington, DC 20240–0001, telephone: (202) 219–0240, fax: (202) 219–1404, or to the bureau-specific points of contact listed below.
Title II of the Indian Self-Determination Act Amendments of 1994 (Pub. L. 103–413, the “Tribal Self-Governance Act” or the “Act”) instituted a permanent self-governance program at the Department of the Interior. Under the self-governance program, certain programs, services, functions, and activities, or portions thereof, in Interior bureaus other than BIA are eligible to be planned, conducted, consolidated, and administered by a self-governance tribe.
Under section 405(c) of the Tribal Self-Governance Act, the Secretary of the Interior is required to publish annually: (1) A list of non-BIA programs, services, functions, and activities, or portions thereof, that are eligible for inclusion in agreements negotiated under the self-governance program; and (2) programmatic targets for these bureaus.
Under the Tribal Self-Governance Act, two categories of non-BIA programs are eligible for self-governance funding agreements:
(1) Under section 403(b)(2) of the Act, any non-BIA program, service, function or activity that is administered by Interior that is “otherwise available to Indian tribes or Indians,” can be administered by a tribe through a self-governance funding agreement. The Department interprets this provision to authorize the inclusion of programs eligible for self-determination contracts under Title I of the Indian Self-Determination and Education Assistance Act (Pub. L. 93–638, as amended). Section 403(b)(2) also specifies, “nothing in this subsection may be construed to provide any tribe with a preference with respect to the opportunity of the tribe to administer programs, services, functions and activities, or portions thereof, unless such preference is otherwise provided for by law.”
(2) Under section 403(c) of the Act, the Secretary may include other programs, services, functions, and activities or portions thereof that are of “special geographic, historical, or cultural significance” to a self-governance tribe.
Under section 403(k) of the Tribal Self-Governance Act, funding agreements cannot include programs, services, functions, or activities that are inherently Federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe. However, a tribe (or tribes) need not be identified in the authorizing statutes in order for a program or element to be included in a self-governance funding agreement. While general legal and policy guidance regarding what constitutes an inherently Federal function exists, the non-BIA Bureaus will determine whether a specific function is inherently Federal on a case-by-case basis considering the totality of circumstances. In those instances where the tribe disagrees with the Bureau's determination, the tribe may request reconsideration from the Secretary.
Subpart G of the self-governance regulations found at 25 CFR part 1000 provides the process and timelines for negotiating self-governance funding agreements with non-BIA bureaus.
No comments were received.
Below is a listing by bureau of the types of non-BIA programs, or portions thereof, that may be eligible for self-governance funding agreements because they are either “otherwise available to Indians” under Title I and not precluded by any other law, or may have “special geographic, historical, or cultural significance” to a participating tribe. The list represents the most current information on programs potentially available to tribes under a self-governance funding agreement.
The Department will also consider for inclusion in funding agreements other programs or activities not listed below, but which, upon request of a self-governance tribe, the Department determines to be eligible under either
The BLM carries out some of its activities in the management of public lands through contracts and cooperative agreements. These and other activities, dependent upon availability of funds, the need for specific services, and the self-governance tribe demonstrating a special geographic, culture, or historical connection, may also be available for inclusion in self-governance funding agreements. Once a tribe has made initial contact with the BLM, more specific information will be provided by the respective BLM State office.
Some elements of the following programs may be eligible for inclusion in a self-governance funding agreement. This listing is not all-inclusive, but is representative of the types of programs that may be eligible for tribal participation through a funding agreement.
1. Minerals Management. Inspection and enforcement of Indian oil and gas operations: Inspection, enforcement and production verification of Indian coal and sand and gravel operations are already available for contracts under Title I of the Act and, therefore, may be available for inclusion in a funding agreement.
2. Cadastral Survey. Tribal and allottee cadastral survey services are already available for contracts under Title I of the Act and, therefore, may be available for inclusion in a funding agreement.
1. Cultural Heritage. Cultural heritage activities, such as research and inventory, may be available in specific States.
2. Natural Resources Management. Activities such as silvicultural treatments, timber management, cultural resource management, watershed restoration, environmental studies, tree planting, thinning, and similar work, may be available in specific States.
3. Range Management. Activities such as revegetation, noxious weed control, fencing, construction and management of range improvements, grazing management experiments, range monitoring, and similar activities, may be available in specific States.
4. Riparian Management. Activities such as facilities construction, erosion control, rehabilitation, and other similar activities, may be available in specific States.
5. Recreation Management. Activities such as facilities construction and maintenance, interpretive design and construction, and similar activities may be available in specific States.
6. Wildlife and Fisheries Habitat Management. Activities such as construction and maintenance, implementation of statutory, regulatory and policy or administrative plan-based species protection, interpretive design and construction, and similar activities may be available in specific States.
7. Wild Horse Management. Activities such as wild horse round-ups, adoption and disposition, including operation and maintenance of wild horse facilities may be available in specific States.
For questions regarding self-governance, contact Jerry Cordova, Bureau of Land Management (MS L St-204), 1849 C Street NW., Washington, DC 20240, telephone: (202) 912–7245, fax: (202) 452–7701.
The mission of the Bureau of Reclamation (Reclamation) is to manage, develop, and protect water and related resources in an environmentally and economically sound manner in the interest of the American public. To this end, most of the Reclamation's activities involve the construction, operation and maintenance, and management of water resources projects and associated facilities, as well as research and development related to its responsibilities. Reclamation water resources projects provide water for agricultural, municipal and industrial water supplies; hydroelectric power generation; flood control; outdoor recreation; and enhancement of fish and wildlife habitats.
Components of the following water resource projects listed below may be eligible for inclusion in a self-governance annual funding agreement. This list was developed with consideration of the proximity of identified self-governance tribes to Reclamation projects.
1. Klamath Project, California and Oregon
2. Trinity River Fishery, California
3. Central Arizona Project, Arizona
4. Rocky Boy's/North Central Montana Regional Water System, Montana
5. Indian Water Rights Settlement Projects, as authorized by Congress.
Upon the request of a self-governance tribe, Reclamation will also consider for inclusion in funding agreements, other programs or activities which Reclamation determines to be eligible under Section 403(b)(2) or 403(c) of the Act.
For questions regarding self-governance, contact Mr. Kelly Titensor, Policy Analyst, Native American and International Affairs Office, Bureau of Reclamation (96–43000) (MS 7069–MIB); 1849 C Street NW., Washington DC 20240, telephone: (202) 513–0558, fax: (202) 513–0311.
Effective October 1, 2010, the Office of Natural Resources Revenue (ONNR) moved from the Bureau of Ocean Energy Management (formerly MMS) to the Office of the Assistant Secretary for Policy, Management and Budget (PMB). The ONRR collects, accounts for, and distributes mineral revenues from both Federal and Indian mineral leases.
The ONRR also evaluates industry compliance with laws, regulations, and lease terms, and offers mineral-owning tribes opportunities to become involved in its programs that address the intent of tribal self-governance. These programs are available to self-governance tribes and are a good prerequisite for assuming other technical functions. Generally, ONRR program functions are available to tribes because of the Federal Oil and Gas Royalty Management Act of 1983 (FOGRMA) at 30 U.S.C. 1701. The ONRR program functions that may be available to self-governance tribes include:
1. Audit of Tribal Royalty Payments. Audit activities for tribal leases, except for the issuance of orders, final valuation decisions, and other enforcement activities. (For tribes already participating in ONRR cooperative audits, this program is offered as an option.)
2. Verification of Tribal Royalty Payments. Financial compliance verification, monitoring activities, and production verification.
3. Tribal Royalty Reporting, Accounting, and Data Management.
Establishment and management of royalty reporting and accounting systems including document processing, production reporting, reference data (lease, payor, agreement) management, billing and general ledger.
4. Tribal Royalty Valuation. Preliminary analysis and recommendations for valuation, and allowance determinations and approvals.
5. Royalty Internship Program. An orientation and training program for auditors and accountants from mineral-
For questions regarding self-governance, contact Shirley M. Conway, Special Assistant to the Director, Office of Natural Resources Revenue, Office of the Assistant Secretary—Policy, Management and Budget, 1801 Pennsylvania Avenue NW., 4th Floor, Washington, DC 20006, telephone: (202) 254–5554, fax: (202) 254–5589.
The National Park Service administers the National Park System, which is made up of national parks, monuments, historic sites, battlefields, seashores, lake shores and recreation areas. The National Park Service maintains the park units, protects the natural and cultural resources, and conducts a range of visitor services such as law enforcement, park maintenance, and interpretation of geology, history, and natural and cultural resources.
Some elements of the following programs may be eligible for inclusion in a self-governance funding agreement. This list below was developed considering the proximity of an identified self-governance tribe to a national park, monument, preserve, or recreation area and the types of programs that have components that may be suitable for contracting through a self-governance funding agreement. This list is not all-inclusive, but is representative of the types of programs which may be eligible for tribal participation through funding agreements.
For questions regarding self-governance, contact Dr. Patricia Parker, Chief, American Indian Liaison Office, National Park Service (Org. 2560, 9th Floor), 1201 Eye Street NW.,
The mission of the Service is to conserve, protect, and enhance fish, wildlife, and their habitats for the continuing benefit of the American people. Primary responsibilities are for migratory birds, endangered species, freshwater and anadromous fisheries, and certain marine mammals. The Service also has a continuing cooperative relationship with a number of Indian tribes throughout the National Wildlife Refuge System and the Service's fish hatcheries. Any self-governance tribe may contact a National Wildlife Refuge or National Fish Hatchery directly concerning participation in Service programs under the Tribal Self-Governance Act. This list is not all-inclusive, but is representative of the types of Service programs that may be eligible for tribal participation through an annual funding agreement.
1. Subsistence Programs within the State of Alaska. Evaluate and analyze data for annual subsistence regulatory cycles and other data trends related to subsistence harvest needs, and facilitate Tribal Consultation to ensure ANILCA Title VII terms are being met as well as activities fulfilling the terms of Title VIII of ANILCA.
2. Technical Assistance, Restoration and Conservation. Conduct planning and implementation of population surveys, habitat surveys, restoration of sport fish, capture of depredating migratory birds, and habitat restoration activities.
3. Endangered Species Programs. Conduct activities associated with the conservation and recovery of threatened or endangered species protected under the Endangered Species Act (ESA); candidate species under the ESA may be eligible for self-governance funding agreements. These activities may include, but are not limited to, cooperative conservation programs, development of recovery plans and implementation of recovery actions for threatened and endangered species, and implementation of status surveys for high priority candidate species.
4. Education Programs. Provide services in interpretation, outdoor classroom instruction, visitor center operations, and volunteer coordination both on and off national Wildlife Refuge lands in a variety of communities, and assist with environmental education and outreach efforts in local villages.
5. Environmental Contaminants Program. Conduct activities associated with identifying and removing toxic chemicals, which help prevent harm to fish, wildlife and their habitats. The activities required for environmental contaminant management may include, but are not limited to, analysis of pollution data, removal of underground storage tanks, specific cleanup activities, and field data gathering efforts.
6. Wetland and Habitat Conservation Restoration. Provide services for construction, planning, and habitat monitoring and activities associated with conservation and restoration of wetland habitat.
7. Fish Hatchery Operations. Conduct activities to recover aquatic species listed under the Endangered Species Act, restore native aquatic populations, and provide fish to benefit Tribes and National Wildlife Refuges that may be eligible for a self-governance funding agreement. Such activities may include, but are not limited to: Taking, rearing and feeding of fish, disease treatment, tagging, and clerical or facility maintenance at a fish hatchery.
8. National Wildlife Refuge Operations and Maintenance. Conduct activities to assist the National Wildlife Refuge System, a national network of lands and waters for conservation, management and restoration of fish, wildlife and plant resources and their habitats within the United States. Activities that may be eligible for a self-governance funding agreement may include, but are not limited to: Construction, farming, concessions, maintenance, biological program efforts, habitat management, fire management, and implementation of comprehensive conservation planning.
The Service developed the list below based on the proximity of identified self-governance tribes to Service facilities that have components that may be suitable for contracting through a self-governance funding agreement.
For questions regarding self-governance, contact Patrick Durham, Fish and Wildlife Service (MS–330), 4401 N. Fairfax Drive, Arlington, VA 22203, telephone: (703) 358–1728, fax: (703) 358–1930.
The mission of the USGS is to collect, analyze, and provide information on biology, geology, hydrology, and geography that contributes to the wise management of the Nation's natural resources and to the health, safety, and well-being of the American people. This information is usually publicly available and includes maps, data bases, and descriptions and analyses of the water, plants, animals, energy, and mineral resources, land surface, underlying geologic structure, and dynamic processes of the earth. The USGS does not manage lands or resources. Self-governance tribes may potentially assist the USGS in the data acquisition and analysis components of its activities.
For questions regarding self-governance, contact Kaye Cook, U.S. Geological Survey, 12201 Sunrise Valley Drive, Reston, VA 20192, telephone: (703) 648–7442, fax: (703) 648–7451.
The Department of the Interior has responsibility for what may be the largest land trust in the world, approximately 56 million acres. OST oversees the management of Indian trust assets, including income generated from leasing and other commercial activities on Indian trust lands, by maintaining, investing and disbursing Indian trust financial assets, and reporting on these transactions. The mission of the OST is to serve Indian communities by
A tribe operating under self-governance may include the following programs, services, functions, and activities or portions thereof in a funding agreement:
1. Beneficiary Processes Program (Individual Indian Money Accounting Technical Functions).
2. Appraisal Services Program. Tribes/consortia that currently perform these programs under a self-governance funding agreement with the Office of Self-Governance may negotiate a separate memorandum of understanding (MOU) with OST that outlines the roles and responsibilities for management of these programs.
The MOU between the tribe/consortium and OST outlines the roles and responsibilities for the performance of the OST program by the tribe/consortium. If those roles and responsibilities are already fully articulated in the existing funding agreement with the BIA, an MOU is not necessary. To the extent that the parties desire specific program standards, an MOU will be negotiated between the tribe/consortium and OST, which will be binding on both parties and attached and incorporated into the BIA funding agreement.
If a tribe/consortium decides to assume the operation of an OST program, the new funding for performing that program will come from OST program dollars. A tribe's newly-assumed operation of the OST program(s) will be reflected in the tribe's funding agreement.
For questions regarding self-governance, contact Lee Frazier, Program Analyst, Office of External Affairs, Office of the Special Trustee for American Indians (MS 5140—MIB), 1849 C Street NW., Washington, DC 20240–0001, phone: (202) 208–7587, fax: (202) 208–7545.
During Fiscal Year 2013, upon request of a self-governance tribe, each non-BIA bureau will negotiate funding agreements for its eligible programs beyond those already negotiated.
Fish and Wildlife Service, Interior.
Notice of document availability.
We, the U.S. Fish and Wildlife Service, announce the availability of the approved Recovery Plan for the Columbia Basin Distinct Population Segment of the Pygmy Rabbit (
An electronic copy of the recovery plan is available at
Chris Warren, Fish and Wildlife Biologist, at the above Spokane address and telephone number.
We announce the availability of the approved Recovery Plan for the Columbia Basin Distinct Population Segment of the Pygmy Rabbit (Columbia Basin pygmy rabbit).
Recovery of endangered or threatened animals and plants is the primary goal of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531
In 2007 we developed a draft recovery plan (Draft) for the Columbia Basin pygmy rabbit in coordination with the Columbia Basin Pygmy Rabbit Recovery Team, which included representatives from two U.S. Department of the Interior bureaus (Fish and Wildlife Service and Bureau of Land Management), one U.S. Department of Agriculture bureau (Natural Resources Conservation Service), two State agencies (Washington Department of Fish and Wildlife and Washington Department of Natural Resources), Washington State University, The Nature Conservancy, Oregon Zoo, Foster Creek Conservation District, and several adjunct expert contributors. In order to address available new information, ongoing implementation of adaptive management measures, and prescribed changes to specific actions defined in the Draft, we developed an amendment to the draft recovery plan (Amendment) for the Columbia Basin pygmy rabbit in 2011. Several of the above recovery team members also contributed to development of the Amendment and the final approved recovery plan.
Section 4(f) of the Act requires public notice and an opportunity for public review and comment during recovery plan development. From September 7 through November 6, 2007, we provided the Draft to the public and solicited comments (72 FR 51461). From June 29 through August 29, 2011, we provided the Amendment to the public and solicited comments (76 FR 38203). We considered all information we received during the public comment periods, along with comments solicited from expert peer reviewers, and have summarized that information and our responses to comments in an appendix to the final recovery plan. We welcome continuing comment on the recovery plan, and we will consider all substantive comments on an ongoing basis to inform the implementation of
Large-scale loss and fragmentation of native shrub steppe habitats, primarily for agricultural development, likely played a primary role in the long-term decline of the Columbia Basin pygmy rabbit. By 2001, the Columbia Basin pygmy rabbit was imminently threatened by its small population size, loss of genetic diversity, and inbreeding depression, coupled with a lack of suitable protected habitats in the wild. To varying degrees, these influences continue to impact the Columbia Basin pygmy rabbit.
The Washington Department of Fish and Wildlife began a captive breeding program for the Columbia Basin pygmy rabbit in 2001 and an intercross breeding strategy in 2003. Due to severe inbreeding depression in the purebred captive animals, intercross breeding was conducted to facilitate genetic restoration of the Columbia Basin pygmy rabbit, and is considered essential for recovery efforts. Intercross breeding was accomplished through carefully controlled matings between the founding purebred Columbia Basin animals and pygmy rabbits of the same taxonomic classification from a discrete population in Idaho. The last known wild subpopulation of pygmy rabbits within the Columbia Basin was extirpated by early 2004, although other wild subpopulations may still exist on lands that have not yet been surveyed.
In March of 2007, 20 captive-bred, intercrossed pygmy rabbits were reintroduced to habitats historically occupied by the species in the Columbia Basin of central Washington. Through monitoring it was determined that these captive-bred animals experienced very high mortality over the first several weeks following their release, and none are believed to have survived. Following the development and implementation of appropriate adaptive management measures, reintroduction efforts were resumed in the summer of 2011. The new measures that have been implemented include additional releases of the captive-bred intercrossed pygmy rabbits, the capture and translocation of wild pygmy rabbits from populations outside of the Columbia Basin for inclusion in the reintroduction program, initiation of partially controlled field-breeding efforts, and improved protective measures during releases. As these new measures have been implemented, the need for continuing captive breeding efforts has steadily diminished, and captive breeding operations at the three cooperating facilities were discontinued by the end of July 2012.
The recovery plan prescribes a phased approach for recovery: (1) Removal or abatement of imminent threats to the population and potentially suitable shrub-steppe habitats in the Columbia Basin; (2) reestablishment of an appropriate number and distribution of free-ranging subpopulations over the near term; and (3) establishment and protection of a sufficiently resilient, free-ranging population that would be expected to withstand foreseeable long-term threats. This recovery strategy is oriented to dynamic adaptive management of the Columbia Basin pygmy rabbit and its habitat, consistent with the Service's Strategic Habitat Conservation process, which calls for an iterative process of biological planning, conservation design, conservation delivery, and monitoring and research. The biological planning and conservation design set forth in this recovery plan lay out the criteria for recovery and identify localities for implementing actions, while the recovery actions describe a process for implementing conservation on the ground, outcome-based monitoring to assess success, and ongoing assumption-driven research to test biological hypotheses important to management. To facilitate this strategy, specific near-term (i.e., 2012 to 2021) and more general long-term objectives and criteria have been established. In addition, revised implementation schedules will be developed, as necessary, to reflect the knowledge gained, accomplishments met, potential future constraints encountered, and consequent refinements to near-term recovery objectives, criteria, and/or actions as recovery progresses.
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Fish and Wildlife Service, Interior.
Notice of availability; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), are reopening the public comment period for an application from the Black-footed Ferret Recovery Implementation Coordinator for an enhancement of survival permit under the Endangered Species Act of 1973, as amended (ESA). The documents available for public review are a draft programmatic Safe Harbor Agreement (Agreement) to reintroduce the federally endangered black-footed ferret on properties of voluntary participants across the species' range to further recovery of this species and a draft environmental assessment (EA) pursuant to the National Environmental Policy Act (NEPA). If you have previously submitted comments, please do not resubmit them, because we have already incorporated them in the public record and will fully consider them in our final decision.
Written comments must be submitted by February 22, 2013.
Send comments by U.S. mail to Kimberly Tamkun, U.S. Fish and Wildlife Service, National Black-footed Ferret Conservation Center, P.O. Box 190, Wellington, CO, 80549–0190, or via email to
Pete Gober, Black-footed Ferret Recovery
On December 19, 2012, we published a
For background and more information on the draft Agreement and EA, see our December 19, 2012, notice (77 FR 75185). For information on where to view the documents and how to submit comments, please see the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10(c) of the Endangered Species Act (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Assistant Secretary—Indian Affairs is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information for grants under the Office of Indian Energy and Economic Development Office's Energy and Mineral Development Program authorized by OMB Control Number 1076–0174. This information collection expires April 30, 2013.
Submit comments on or before March 25, 2013.
You may submit comments on the information collection to Catherine Freels, U.S. Department of the Interior, Office of Indian Energy and Economic Development, 800 S. Gay Street, Suite 800, Knoxville, Tennessee 37929; email:
Catherine Freels, (865) 545–4315, extension 23.
The Energy Policy Act of 2005, 25 U.S.C. 3503 authorizes the Secretary of the Interior to provide grants to Indian tribes as defined in 25 U.S.C. 3501(4)(A) and (B).
The Office of Indian Energy and Economic Development (IEED) administers and manages the energy resource development grant program under the Energy and Minerals Development Program (EMDP). Congress may appropriate funds to EMDP on a year-to-year basis. When funding is available, IEED may solicit proposals for energy resource development projects from Indian tribes for use on Indian lands as defined in 25 U.S.C. 3501. The projects may be in the areas of exploration, assessment, development, feasibility, or market studies. Indian tribes that would like to apply for an EMDP grant must submit an application that includes certain information, and must assist IEED by providing information in support of any National Environmental Policy Act (NEPA) analyses.
The Bureau of Indian Affairs (BIA) requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Indian Affairs, Interior.
Notice of application deadline.
In this notice, the Office of Self-Governance (OSG) establishes a March 1, 2013, deadline for Indian tribes/consortia to submit completed applications to begin participation in the tribal self-governance program in fiscal year 2014 or calendar year 2014.
Completed application packages must be received by the Director, Office of Self-Governance, by March 1, 2013.
Application packages for inclusion in the applicant pool should be sent to Sharee M. Freeman, Director, Office of Self-Governance, Department of the Interior, Mail Stop 355–G–SIB, 1951 Constitution Avenue NW., Washington, DC 20240.
Dr. Kenneth D. Reinfeld, Office of Self-Governance, Telephone 202–208–5734.
Under the Tribal Self-Governance Act of 1994 (Pub. L. 103–413), as amended by the Fiscal Year 1997 Omnibus Appropriations Bill (Pub. L. 104–208), the Director, Office of Self-Governance may select up to 50 additional participating tribes/consortia per year for the tribal self-governance program, and negotiate and enter into a written funding agreement with each participating tribe. The Act mandates that the Secretary submit copies of the funding agreements at least 90 days before the proposed effective date to the appropriate committees of the Congress and to each tribe that is served by the Bureau of Indian Affairs (BIA) agency that is serving the tribe that is a party to the funding agreement. Initial negotiations with a tribe/consortium located in a region and/or agency which has not previously been involved with self-governance negotiations, will take approximately 2 months from start to finish. Agreements for an October 1 to September 30 funding year need to be signed and submitted by July 1. Agreements for a January 1 to December 31 funding year need to be signed and submitted by October 1.
The regulations at 25 CFR sections 1000.10 to 1000.31 will be used to govern the application and selection process for tribes/consortia to begin their participation in the tribal self-governance program in fiscal year 2014 and calendar year 2014. Applicants should be guided by the requirements in these subparts in preparing their applications. Copies of these subparts may be obtained from the information contact person identified in this notice.
Tribes/consortia wishing to be considered for participation in the tribal self-governance program in fiscal year 2014 or calendar year 2014 must respond to this notice, except for those tribes/consortia which are: (1) Currently involved in negotiations with the Department; or (2) one of the 107 tribal entities with signed agreements.
This information collection is authorized by OMB Control Number 1076–0143, Tribal Self-Governance Program.
Bureau of Land Management, Interior.
Notice.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Needles Field Office, Needles, California intends to prepare an amendment to the California Desert Conservation Area (CDCA) Plan with an associated Environmental Assessment (EA) to analyze the sale of approximately 133 acres of public land and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the CDCA Plan amendment with associated EA. Comments on issues may be submitted in writing until February 22, 2013. The BLM does not plan to hold any scoping meetings for this plan amendment. In order to be included in the analysis, all comments must be received prior to the close of the 30-day scoping period. We will provide additional opportunities for public participation as appropriate.
You may submit comments on issues and planning criteria related to the CDCA Plan amendment and associated EA by any of the following methods:
•
•
•
George R. Meckfessel, Planning and Environmental Coordinator, BLM Needles Field Office, telephone 760–326–7008; address 1303 S. U.S. Highway 95, Needles, CA 92363; email
The BLM is providing notice that the BLM Needles Field Office, Needles, California intends to prepare an amendment to the 1980 CDCA Plan with
The area described containing 133.19 acres lies entirely in San Bernardino County, California.
The State of California wishes to purchase the public lands described above for a point of entry facility for agricultural and commercial vehicle inspections. The public lands described above were not specifically identified for sale in the CDCA Plan, as amended, and a plan amendment is therefore required to process a direct sale. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process.
The BLM anticipates that the EA will consider both a plan amendment and the subsequent sale of the land and has identified local land uses and input from local governments as the primary preliminary issue of concern. The BLM anticipates that the EA will include, at a minimum, input from the disciplines of land use planning, biology and archaeology. This plan amendment will be limited to an analysis of whether the public lands described above meet the criteria for sale in FLPMA at Section 203(a)(3), which states, “disposal of such tract will serve important public objectives,” which is the planning criteria for this amendment.
You may submit comments on issues and planning criteria in writing to the BLM using one of the methods listed in the
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency.
The BLM will evaluate identified issues to be addressed in the plan amendment, and will place them into one of three categories:
1. Issues to be resolved in the plan amendment;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan amendment.
The BLM will provide an explanation in the EA as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed in the plan. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1501.7 and 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of Intent to Collect Fees on Public Land in Clark County, ID.
Pursuant to applicable provisions of the Federal Lands Recreation Enhancement Act (REA), the Bureau of Land Management (BLM) Upper Snake Field Office is proposing to collect a reservation fee for large group sites at the Birch Creek Campground in Clark County, ID. Under Section 2(2) of the REA, Birch Creek Campground qualifies as a site wherein visitors can be charged an “Expanded Amenity Recreation Fee” authorized under section 3(g). In accordance with the REA, and the BLM's implementing regulations, the Upper Snake Field Office is proposing to charge a group site reservation fee of $35 per night for overnight camping within the Birch Creek Campground.
An analysis of the recreation site shows the proposed fees are reasonable and typical of similar sites in the area.
This notice initiates the public comment period. Comments by interested parties will be accepted in writing through July 22, 2013. New fees would begin no earlier than July 22, 2013.
New fee implementation is contingent upon a final review and approval recommendation by the Idaho Falls District Resource Advisory Council (RAC) and the BLM Idaho State Director. The BLM Upper Snake Field Office will provide final public notice of the group site reservation fee collection for the Birch Creek Campground.
Comments may be submitted to Attention: Shannon Bassista, Bureau of Land Management Upper Snake Field Office, 1405 Hollipark Drive, Idaho Falls, ID 83401, via email at
Shannon Bassista, BLM Upper Snake Field Office recreation planner at 208–524–7552 or by email at
The REA directs the Secretary of the Interior to publish a six-month advance notice in the
The Birch Creek Campground is located in Clark County, Idaho, approximately 75 miles northwest of Idaho Falls, Idaho, and 86 miles south of Salmon, Idaho. It is fairly remote and allows visitors to camp adjacent to the popular Birch Creek fishing area and enjoy the scenery of the Lemhi Mountain range. Visitors can also recreate with motorized vehicles on adjacent BLM- and U.S. Forest Service-managed lands.
There are approximately 60 campsites and four large identified group sites dispersed along a 5.5 mile stretch of Birch Creek. Approximately one-third of the campsites have picnic tables and fire rings. There are multiple restroom facilities throughout the campground. The campground is adjacent to Highway 28 and is accessed by one of three entrances. The BLM does not provide electricity or water at the individual campsites and there is no recreational vehicle (RV) dump station or refuse collection. The host site has hook-ups, and there is a water pump adjacent to the host site that allows visitors to fill up their RV tanks. This area is not currently a fee area.
The Upper Snake Field Office is proposing charging a fee for large groups to reserve one of the group sites to guarantee camping access for an entire group. The proposed group site reservation fee is classified as an “Expanded Amenity Fee” under REA and would only apply to visitors wanting to reserve a group site. The BLM receives 12–15 requests annually to reserve one of the group sites at Birch Creek Campground. Reasons for these requests vary: some want to reserve a campsite located near accessible restroom facilities, while others want to reserve the location for large family reunions or other special occasions. Without an amenity fee associated with the site, the BLM is unable to make such reservations, leaving visitors wishing to reserve a group campsite with the sole option of seeking exclusive use, with an accompanying fee of $200, which is prohibitive for most weekend campground users. Because the vast majority of identified campsites at Birch Creek Campground are individual, a reservation system for group campsites would not displace or inconvenience other campers. Based on these factors, visitors' willingness to pay a group reservation fee is expected to be high.
Outside of the proposed group site reservation fee, the BLM is not planning to assess fees for camping at Birch Creek Campground. Additionally, fees will not be charged for camping in designated group sites when the sites have not been reserved.
Bureau of Land Management, Alaska State Office, North Slope Science Initiative, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, North Slope Science Initiative (NSSI)—Science Technical Advisory Panel (STAP) will meet as indicated below.
The meeting will be held February 19–22, 2013, in Fairbanks, Alaska. The meetings will begin at 9:00 a.m. in Room 401, International Arctic Research Center (IARC), 930 Koyukuk Drive, University of Alaska Fairbanks campus, Fairbanks, Alaska. Public comment will be accepted between 3:00 and 4:00 p.m. on Wednesday, February 20, 2013.
Dennis Lassuy, Acting Executive Director, North Slope Science Initiative, AK–910, c/o Bureau of Land Management, 222 W. Seventh Avenue, #13, Anchorage, AK 99513, (907) 271–3212 or email
The NSSI STAP provides advice and recommendations to the NSSI Oversight Group regarding priority information needs for management decisions across the North Slope of Alaska. These priority information needs may include recommendations on inventory, monitoring, and research activities that contribute to informed resource management decisions. This meeting will include continued dialog for scenario planning for the North Slope and adjacent marine environments. Additionally, the STAP will continue with designing a long-term monitoring strategy for the North Slope.
All meetings are open to the public. The public may present written comments to the Science Technical Advisory Panel through the Executive Director, North Slope Science Initiative. Each formal meeting will also have time allotted for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited. Individuals who plan to attend and need special assistance, such as sign language interpretation, transportation, or other reasonable accommodations, should contact the Executive Director, North Slope Science Initiative. 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.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976 (FLPMA), and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Northwest California Resource Advisory Council will meet as indicated below.
The meeting will be held Thursday and Friday, Feb. 21–22, 2013, at the Inn of the Lost Coast, 205 Wave Rd., Shelter Cove, California. On Feb. 21, the council will convene at 9 a.m. The meeting is open to the public. Public comments will be taken at 11 a.m. On Feb. 22, the council convenes at 8 a.m. and departs immediately for a field tour. Members of the public are welcome. They must provide their own transportation, food and beverages.
Nancy Haug, BLM Northern California District manager, (530) 224–2160; or Joseph J. Fontana, public affairs officer, (530) 252–5332.
The 12-member council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Northwest California. At this meeting the RAC will discuss planning efforts for the Lost Coast Headlands and Lacks Creek areas of Humboldt County, hear an update on land use plan development for the Redding Field Office, plan upcoming work with BLM field offices and hear reports on the status of the BLM's participation in the Northwest Forest Plan and marijuana eradication on public lands. All meetings are open to the public. Members of the public may present written comments to the council. Each formal council meeting will have time allocated for public comments. Depending on the number of persons wishing to speak, and the time available, the time for individual comments may be limited. Members of the public are welcome on field tours, but they must provide their own transportation and meals. Individuals who plan to attend and need special assistance, such as sign language interpretation and other reasonable accommodations, should contact the BLM as provided above.
Bureau of Land Management, Interior.
Notice.
Notice is hereby given that a temporary closure of public lands to motorized vehicles and other recreational uses is in effect on public lands administered by the Bureau of Land Management (BLM) Lewistown Field Office within the Judith Mountains, northeast of Lewistown, Montana.
The area closure will remain in effect 2 years from the date this notice is published in the
Geoff Beyersdorf, Field Manager, 920 NE. Main Street, Lewistown, Montana 59457; 406–538–1900. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
This closure affects public lands along the Maiden Canyon Road in Fergus County, Montana. The closed section extends from the intersection of Maiden Canyon Road and Judith Peak Road to 4 miles west of Gilt Edge. This temporary closure responds to public safety needs during a project to repair severe road damage that resulted from near record runoff and flooding in the spring of 2011, combined with extreme icing conditions that exist through the winter months. The flooding created extensive damage on a 2-mile portion of the Maiden Canyon Road.
The most heavily used portion of the Maiden Canyon Road remains open for public use. However, driving and other recreational uses on the damaged portion of the Maiden Canyon Road are extremely unsafe due to a number of issues including: Steep, eroded banks; areas where the road is now in the active creek channel; falling trees where the flooding removed material around the root systems; seasonal snow or ice covering on the surface making extremely slick conditions; road shoulder damage with a vertical bank now encroaching in the driving lane; impassible road for towed or recreational vehicles; dangerous night driving conditions; and inclement weather further damaging this road section. Each of these factors increases the risk of an accident or incident and until these factors are repaired the area closure is necessary to protect the public health and safety and to enhance efficient project completion.
The BLM prepared an environmental assessment analyzing the potential environmental impacts of road repairs and a Categorical Exclusion Review for the temporary closure. The contracting and road repair work will be the responsibility of the Montana Department of Highways.
Construction activities will include surveying, staking out the work to be done, and the actual construction work. Stakes and other markings will need to be preserved for directing the work to be completed. For public safety reasons, vehicle traffic, pedestrian traffic and visitor use will be precluded during all of these activities.
The BLM will post closure signs at the main entry points to the road. The BLM will also post the closure order in the Lewistown Field Office and will keep the public informed as this project progresses via local and regional press releases and posting those releases online at:
Under the authority of Section 303(a) of the Federal land Policy and Management Act of 1976 (43 U.S.C. 1733(a)), 43 CFR 8360.0–7, and 43 CFR 8364.1, the BLM will enforce the following rule on the damaged portion of the Maiden Canyon Road in Fergus County, Montana: Visitors must not use motorized vehicles, hike or otherwise enter the public land within the closed area.
National Park Service, Interior.
Notification of Boundary Revision.
Notice is hereby given that, pursuant to 16 U.S.C. 460
Superintendent Patti Reilly, Governors Island National Monument, 10 South Street—Slip 7, New York, New York 10004, telephone (212) 825–3055.
The effective date of this boundary revision is January 22, 2013.
16 U.S.C. 460
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) revision titled, “Consumer Expenditure Surveys: Quarterly Interview and Diary,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).
Submit comments on or before February 22, 2013.
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 from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Fax: 202–395–6881 (this is not a toll-free number), email:
Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
The BLS uses the Consumer Expenditure Surveys to gather information on expenditures, income, and other related subjects. These data are used periodically to update the national Consumer Price Index. In addition, the data are used by a variety of researchers in academia, government agencies, and the private sector. The data are collected from a national probability sample of households designed to represent the total civilian non-institutional population. The proposed revisions to this ICR fall into two major categories: streamlining the current questions and updating and deleting several questions to reflect the current marketplace.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its request for an extension of the information collection requirements specified in its standards on Electrical Protective Equipment (29 CFR 1910.137) and Electric Power Generation, Transmission, and Distribution (29 CFR 1910.269).
Comments must be submitted (postmarked, sent, or received) by March 25, 2013.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (i.e., employer) burden, conducts a preclearance consultation program to provide the public with an opportunity to comment on proposed and continuing information collection requirements in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)). This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651
The Electrical Protective Equipment Standard (29 CFR 1910.137) and the Electric Power Generation, Transmission, and Distribution Standard (29 CFR 1910.269) specify several paperwork requirements. The following describes the information collection requirements contained in the standards and addresses who will use the information.
Employers must certify that the electrical protective equipment used by their workers have passed the tests specified in paragraphs (b)(2)(viii), (b)(2)(ix), and (b)(2)(xi) of the Standard. The certification must identify the equipment that passed the tests and the dates of the tests. This provision ensures that electrical protective equipment is reliable and safe for worker use and will provide adequate protection against electrical hazards. In addition, certification enables OSHA to determine if employers are in compliance with the equipment-testing requirements of the Standard.
This provision requires employers to certify that each worker has received the training specified in paragraph (a)(2) of the Standard. Employers must provide certification after a worker demonstrates proficiency in the work practices involved.
The training conducted under paragraph (a)(2) of the Standard must ensure that: Workers are familiar with the safety-related work practices, safety procedures, and other procedures, as well as any additional safety requirements in the Standard that
Workers must receive additional training or retraining if: the supervision and annual inspections required by the Standard indicate that they are not complying with the required safety-related work practices; new technology or equipment, or revised procedures, require the use of safety-related work practices that differ from their usual safety practices; and they use safety-related work practices that are different than their usual safety practices while performing job duties.
The training requirements of the Standard inform workers of the safety hazards of electrical exposure and provide them with the understanding required to minimize these safety hazards. In addition, workers receive proper training in safety-related work practices, safety procedures, and other safety requirements specified in the standard. The required training, therefore, provides information to workers that enable them to recognize how and where electrical exposures occur, and what steps to take, including work practices, to limit such exposure. The certification requirement specified by paragraph (a)(2)(vii) of the Standard helps employers monitor the training their workers received and helps OSHA determine if employers provided the required training to their workers.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the collection of information requirements contained in the Standards on Electrical Protective Equipment (29 CFR 1910.137), and Electric Power Generation, Transmission, and Distribution (29 CFR 1910.269). The Agency is proposing to decrease the burden hours in the currently approved information collection request from 34,208 hours to 8,218 hours (a total decrease of 25,990 hours). The decrease is a result of a decrease in the number of burden hours for test certification. The Agency has determined that it is usual and customary for employers to have or stamp the test date on electrical protective equipment.
The Agency will summarize the comments submitted in response to this notice, and will include this summary in its request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Ms. Frances Teel, NASA Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Ms. Frances Teel, NASA Clearance Officer/JF000, NASA Headquarters, 300 E Street SW., Washington, DC 20546 or
The LISTS (Locator and Information Services Tracking System) form is used at NASA Goddard Space Flight Center to collect locator information on support contractors when the information cannot be imported from other systems. The LISTS also serves as repository for contact information in the event of an emergency during or outside official duty hours. Information collected is also used for short and long-term institutional planning.
The preferred method of collection is electronic. Approximately 60% of the data is collected electronically by means of a data entry screen that duplicates the Goddard Space Flight Center form GSFC 24–27 in the LISTS system. The remaining 40% of the data is keyed into the system from submissions of a hardcopy version of form GSFC 24–27.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Credit Union Administration (NCUA).
Notice of Funding Opportunity.
The National Credit Union Administration (NCUA) is issuing a Notice of Funding Opportunity (NOFO) to invite eligible credit unions to submit applications for participation in the OSCUI Loan Program (a.k.a. Community Development Revolving Loan Fund (CDRLF)), subject to funding availability. The OSCUI Loan Program serves as a source of financial support, in the form of loans, for credit unions serving predominantly low-income members. It also serves as a source of funding to help low-income designated credit unions (LICUs) respond to emergencies arising in their communities.
The application open period is from January 1, 2013 thru December 31, 2013. Funds may be exhausted prior to this deadline, at which time the programs/funds will no longer be available.
Applications must be submitted online at
Further information can be found at:
The purpose of the OSCUI Loan Program is to assist specially designated credit unions in providing basic financial services to their low-income members to stimulate economic activities in their communities. Through the OSCUI Loan Program, NCUA provides financial support in the form of loans to LICUs. These funds help improve and expand the availability of financial services to these members. The OSCUI Loan Program also serves as a source of funding to help LICUs respond to emergencies. The Loan Program consists of Congressional appropriations that are administered by OSCUI, an office of the NCUA.
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OSCUI loans are made to LICUs that meet the requirements in the program regulation and this NOFO, subject to funds availability. OSCUI loans are generally made at lower than market interest rates.
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Following are additional requirements for participating in the Loan Program under this NOFO. In short, an Applicant must:
○ Be a Qualifying Credit Union (QCU);
○ Meet the underwriting standards and program requirements specified in the Regulations and this NOFO; and
○ Complete and submit an Application (see Section III. of this NOFO for additional information).
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NCUA will consider other proposed uses of funds that in its sole discretion it determines are consistent with the purpose of the OSCUI Loan Program, the requirements of the regulations, and this NOFO.
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(i) The amount of matching funds required must generally be in an amount equal to the loan amount.
(ii) Matching funds must be from non-governmental member or nonmember share deposits.
(iii) Any loan monies matched by nonmember share deposits are not subject to the 20% limitation on nonmember deposits under § 701.32 of NCUA's regulations.
(iv) Participating Credit Unions must maintain the outstanding loan amount in the total amount of share deposits for the duration of the loan. Once the loan is repaid, nonmember share deposits accepted to meet the matching requirement are subject to § 701.32 of NCUA's regulations.
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12 U.S.C. 1756, 1757(5)(D), and (7)(I), 1766, 1782, 1784, 1785 and 1786; 12 CFR 705.
Federal Council on the Arts and the Humanities; National Endowment for the Humanities.
Notice of meeting.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given that the Federal Council on the Arts and the Humanities will hold a meeting of the Arts and Artifacts Domestic Indemnity Panel. The purpose of the meeting is for panel review, discussion, evaluation, and recommendation of applications for Certificates of Indemnity submitted to the Federal Council on the Arts and the Humanities for exhibitions beginning on or after April 1, 2013.
The meeting will be held on Tuesday, February 12, 2013, from 9:30 a.m. to 5:00 p.m.
The meeting will be held at the Old Post Office Building, 1100 Pennsylvania Ave. NW., Washington, DC 20506, in Room 730.
Lisette Voyatzis, Committee Management Officer, 1100 Pennsylvania Avenue NW., Room 529, Washington, DC 20506, or call (202) 606–8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the National Endowment for the Humanities' TDD terminal at (202) 606–8282.
Because the meeting will consider proprietary financial and commercial data provided in confidence by indemnity applicants, and material that is likely to disclose trade secrets or other privileged or confidential information, and because it is important to keep the values of objects to be indemnified and the methods of transportation and security measures confidential, the meeting will be closed to the public pursuant to section 552b(c)(4) of Title 5 U.S.C., as amended. I have made this determination under the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated July l9, l993.
Nuclear Regulatory Commission.
Notice of the OMB review of information collection and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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The public may examine and have copied for a fee publicly available documents, including the final supporting statement, at the NRC's Public Document Room, Room O–1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The OMB clearance requests are available at the NRC's Web site:
Comments and questions should be directed to the OMB reviewer listed below by February 22, 2013. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
Chad Whiteman, Desk Officer, Office of Information and Regulatory Affairs (3150–XXXX), NEOB–10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be emailed to
The NRC Clearance Officer is Tremaine Donnell, 301–415–6258.
For the Nuclear Regulatory Commission.
Nine Mile Point 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (UniStar), submitted a Combined License (COL) Application for a single unit of AREVA NP's U.S. EPR to the U.S. Nuclear Regulatory Commission (NRC) in accordance with the requirements of Title 10 of the
The regulations specified in 10 CFR 50.71(e)(3)(iii), require that an applicant for a combined license under 10 CFR part 52 shall, during the period from docketing of a COL application until the Commission makes a finding under 10 CFR 52.103(g) pertaining to facility operation, submit an annual update to the application's Final Safety Analysis Report (FSAR), which is a part of the application.
Pursuant to 10 CFR 50.71(e)(3)(iii), the next annual update of the NMP3NPP COL application FSAR would be due in December 2012. By letter to the NRC dated November 27, 2012, UNE
UNE's requested exemption is a one-time schedule change from the requirements of 10 CFR 50.71(e)(3)(iii). The exemption would allow UNE to submit the next FSAR update by December 31, 2013. The current FSAR update schedule could not be changed, absent the exemption. UNE requested the exemption by letter dated November 27, 2012 (Agencywide Documents Access and Management System (ADAMS) Accession Number ML12342A012). The NRC notes that the granting of the exemption applies prospectively, rather than retroactively, so this exemption applies to required actions from the date of exemption issuance and does not retroactively authorize a previous failure to take required action.
Pursuant to 10 CFR 50.12, the NRC may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50, including Section 50.71(e)(3)(iii) when: (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and 2) special circumstances are present. As relevant to the requested exemption, special circumstances exist if: (1)“Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule” (10 CFR 50.12(a)(2)(ii)); or (2) “The exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation” (10 CFR 50.12(a)(2)(v)).
The review of the NMP3NPP COL application FSAR has been suspended since December 1, 2009. Since the COL application incorporates by reference the application for a Standard Design Certification for the U.S. EPR, many changes in the U.S. EPR FSAR require an associated change to the COL application FSAR, and because the NRC review of the COL application is suspended, the updates to the COL application FSAR will not be reviewed by the NRC staff until the NMP3NPP COL application review is resumed. Thus, the optimum time to prepare a revision to the COL application FSAR is sometime prior to UNE requesting the NRC to resume its review. Preparing and submitting a COL application FSAR update when the review remains suspended and in the absence of any decision by UNE to request the NRC to resume the review would require UNE to spend significant time and effort, and would be of no value, particularly due to the fact that the U.S. EPR FSAR is still undergoing periodic revisions and updates. UNE commits to submit the next FSAR update by December 31, 2013, and would need to identify all changes to the U.S. EPR FSAR in order to prepare a COL application FSAR revision that accurately and completely reflects the changes to the U.S. EPR FSAR.
The requested one-time schedule exemption to defer submittal of the next update to the NMP3NPP COL application FSAR would provide only temporary relief from the regulations of 10 CFR 50.71(e)(3)(iii). UNE has made good faith efforts to comply with 10 CFR 50.71(e)(3)(iii) by submitting Revision 1 to the COL application on March 31, 2009, prior to requesting the review suspension. Revision 1 incorporated information provided in prior supplements and standardized language with the RCOL application.
The exemption is a one-time schedule exemption from the requirements of 10 CFR 50.71(e)(3)(iii). The exemption would allow UNE to submit the next NMP3NPP COL application FSAR update on or before December 31, 2013. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions. The NRC staff has determined that granting UNE the requested one-time exemption from the requirements of 10 CFR 50.71(e)(3)(iii) will provide only temporary relief from this regulation and will not result in a violation of the Atomic Energy Act of 1954, as amended, or the NRC's regulations. Therefore, the exemption is authorized by law.
The underlying purpose of 10 CFR 50.71(e)(3)(iii) is to provide for a timely and comprehensive update of the FSAR associated with a COL application in order to support an effective and efficient review by the NRC staff and issuance of the NRC staff's safety evaluation report. The requested exemption is solely administrative in nature, in that it pertains to the schedule for submittal to the NRC of revisions to an application under 10 CFR Part 52, for which a license has not been granted. In addition, since the review of the application has been suspended, any update to the application submitted by UNE will not be reviewed by the NRC at this time. Based on the nature of the requested exemption as described above, no new accident precursors are created by the exemption; thus, neither the probability nor the consequences of postulated accidents are increased. Therefore, there is no undue risk to public health and safety.
The requested exemption would allow UNE to submit the next FSAR update on or before December 31, 2013. This schedule change has no relation to security issues. Therefore, the common defense and security is not impacted by this exemption.
Special circumstances, in accordance with 10 CFR 50.12(a)(2), are present whenever: (1) “Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule” (10 CFR 50.12(a)(2)(ii)); or (2) “The exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation” (10 CFR 50.12(a)(2)(v)).
The underlying purpose of 10 CFR 50.71(e)(3)(iii) is to provide for a timely and comprehensive update of the FSAR associated with a COL application in order to support an effective and efficient review by the NRC staff and issuance of the NRC staff's safety evaluation report. As discussed above, the requested one-time exemption is solely administrative in nature, in that it pertains to a one-time schedule change for submittal of revisions to an application under 10 CFR Part 52, for which a license has not been granted. The requested one-time exemption will permit UNE time to carefully review the most recent revisions of the U.S. EPR FSAR, and fully incorporate these revisions into a comprehensive update of the FSAR associated with the NMP3NPP COL application. This one-time exemption will support the NRC staff's effective and efficient review of the COL application when resumed, as well as issuance of the safety evaluation report. For this reason, application of 10 CFR 50.71(e)(3)(iii) in the particular circumstances is not necessary to achieve the underlying purpose of that rule. Therefore, special circumstances exist under 10 CFR 50.12(a)(2)(ii). In
With respect to the exemption's impact on the quality of the human environment, the NRC has determined that this specific exemption request is eligible for categorical exclusion as identified in 10 CFR 51.22(c)(25), and justified by the NRC staff as follows:
The criteria for determining whether there is no significant hazards consideration are found in 10 CFR 50.92. The proposed action involves only a schedule change regarding the submission of an update to the application for which the licensing review has been suspended. Therefore, there is no significant hazards considerations because granting the proposed exemption would not:
(1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or
(2) Create the possibility of a new or different kind of accident from any accident previously evaluated; or
(3) Involve a significant reduction in a margin of safety.
The proposed action involves only a schedule change which is administrative in nature, and does not involve any changes to be made in the types or significant increase in the amounts of effluents that may be released offsite.
Accordingly, the NRC has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the NRC hereby grants UNE a one-time exemption from the requirements of 10 CFR 50.71(e)(3)(iii) pertaining to the NMP3NPP COL application to allow submittal of the next FSAR update no later than December 31, 2013.
Pursuant to 10 CFR 51.22, the NRC has determined that the exemption request meets the applicable categorical exclusion criteria set forth in 10 CFR 51.22(c)(25), and the granting of this exemption will not have a significant effect on the quality of the human environment.
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from November 1, 2012, to November 31, 2012.
Senior Executive Resources Services, Executive Resources and Employee Development, Employee Services, 202–606–2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No schedule A authorities to report during November 2012.
No schedule B authorities to report during November 2012.
The following Schedule C appointing authorities were approved during November 2012.
The following Schedule C appointing authorities were revoked during November 2012.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218.
Office of Personnel Management.
Notice.
This provides the consolidated notice of all agency specific excepted authorities, approved by the Office of Personnel Management (OPM), under Schedule A, B, and C, as of June 30, 2012, as required by Civil Service Rule VI, Exceptions from the Competitive Service.
Senior Executive Resource Services, Employee Services, 202–606–2246.
Civil Service Rule VI (5 CFR 6.1) requires the U.S. Office of Personnel Management (OPM) to publish notice of exceptions granted under Schedule A, B, and C. Under 5 CFR 213.103(a) it is required that all Schedule A, B, and C appointing authorities available for use by all agencies to be published as regulations in the
OPM maintains continuing information on the status of all Schedule A, B, and C appointing authorities. Interested parties needing information about specific authorities during the year may obtain information by writing to the Senior Executive Resource Services, Office of Personnel Management, 1900 E Street NW., Room 7412, Washington, DC 20415, or by calling (202) 606–2246.
The following exceptions are current as of June 30, 2012.
(a) Office of Administration—
(1) Not to exceed 75 positions to provide administrative services and support to the White House Office.
(b) Office of Management and Budget—
(1) Not to exceed 20 positions at grades GS–5/15.
(c) Council on Environmental Quality—
(1) Professional and technical positions in grades GS–9 through 15 on the staff of the Council.
(d)–(f) (Reserved)
(g) National Security Council—
(1) All positions on the staff of the Council.
(h) Office of Science and Technology Policy—
(1) Thirty positions of Senior Policy Analyst, GS–15; Policy Analyst, GS–11/14; and Policy Research Assistant, GS–9, for employment of anyone not to exceed 5 years on projects of a high priority nature.
(i) Office of National Drug Control Policy—
(1) Not to exceed 18 positions, GS–15 and below, of senior policy analysts and other personnel with expertise in drug-related issues and/or technical knowledge to aid in anti-drug abuse efforts.
(a) Office of the Secretary—
(1) All positions, GS–15 and below, on the staff of the Family Liaison Office, Director General of the Foreign Service and the Director of Personnel, Office of the Under Secretary for Management.
(2) (Reserved)
(b)–(f) (Reserved)
(g) Bureau of Population, Refugees, and Migration—
(1) Not to exceed 10 positions at grades GS–5 through 11 on the staff of the Bureau.
(h) Bureau of Administration—
(1) (Reserved)
(2) One position of the Director, Art in Embassies Program, GM–1001–15.
(3) (Reserved)
(a) Office of the Secretary—
(1) Not to exceed 20 positions at the equivalent of GS–13 through GS–17 to supplement permanent staff in the study of complex problems relating to international financial, economic, trade, and energy policies and programs of the Government, when filled by individuals with special qualifications for the particular study being undertaken.
(2) Covering no more than 100 positions supplementing permanent staff studying domestic economic and financial policy, with employment not to exceed 4 years.
(3) Not to exceed 100 positions in the Office of the Under Secretary for Terrorism and Financial Intelligence.
(4) Up to 35 temporary or time-limited positions at the GS–9 through 15 grade levels to support the organization, design, and stand-up activities for the Consumer Financial Protection Bureau (CFPB), as mandated by Public Law 111–203. This authority may be used for the following series: GS–201, GS–501, GS–560, GS–1035, GS–1102, GS–1150, GS–1720, GS–1801, and GS–2210. No new appointments may be made under this authority after July 21, 2011, the designated transfer date of the CFPB.
(b)–(d) (Reserved)
(e) Internal Revenue Service—
(1) Twenty positions of investigator for special assignments.
(f) (Reserved)
(g) (Reserved, moved to DOJ)
(h) Office of Financial Responsibility—
(1) Positions needed to perform investment, risk, financial, compliance, and asset management requiring unique qualifications currently not established by OPM. Positions will be in the Office of Financial Stability and the General Schedule (GS) grade levels 12–15 or Senior Level (SL), for initial employment not to exceed 4 years. No new appointments may be made under this authority after December 31, 2012.
(a) Office of the Secretary—
(1)–(5) (Reserved)
(6) One Executive Secretary, US–USSR Standing Consultative Commission and Staff Analyst (SALT),
(b) Entire Department (including the Office of the Secretary of Defense and the Departments of the Army, Navy, and Air Force)—
(1) Dependent School Systems overseas—Professional positions in Military Dependent School systems overseas.
(2) Positions in Attaché 1 systems overseas, including all professional and scientific positions in the Naval Research Branch Office in London.
(3) Positions of clerk-translator, translator, and interpreter overseas.
(4) Positions of Educational Specialist the incumbents of which will serve as Director of Religious Education on the staffs of the chaplains in the military services.
(5) Positions under the program for utilization of alien scientists, approved under pertinent directives administered by the Director of Defense Research and Engineering of the Department of Defense, when occupied by alien scientists initially employed under the program including those who have acquired United States citizenship during such employment.
(6) Positions in overseas installations of the DOD when filled by dependents of military or civilian employees of the U.S. Government residing in the area. Employment under this authority may not extend longer than 2 months following the transfer from the area or separation of a dependent's sponsor: Provided that
(i) A school employee may be permitted to complete the school year; and
(ii) An employee other than a school employee may be permitted to serve up to 1 additional year when the military department concerned finds that the additional employment is in the interest of management.
(7) Twenty secretarial and staff support positions at GS–12 or below on the White House Support Group.
(8) Positions in DOD research and development activities occupied by participants in the DOD Science and Engineering Apprenticeship Program for High School Students. Persons employed under this authority shall be bona fide high school students, at least 14 years old, pursuing courses related to the position occupied and limited to 1,040 working hours a year. Children of DOD employees may be appointed to these positions, notwithstanding the sons and daughters restriction, if the positions are in field activities at remote locations. Appointments under this authority may be made only to positions for which qualification standards established under 5 CFR part 302 are consistent with the education and experience standards established for comparable positions in the competitive service. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.
(9) (Reserved)
(10) Temporary or time-limited positions in direct support of U.S. Government efforts to rebuild and create an independent, free and secure Iraq and Afghanistan, when no other appropriate appointing authority applies. Positions will generally be located in Iraq or Afghanistan, but may be in other locations, including the United States, when directly supporting operations in Iraq or in Afghanistan. No new appointments may be made under this authority after October 1, 2012.
(11) Not to exceed 3,000 positions that require unique cyber security skills and knowledge to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, intelligence analysis, investigation, investigative analysis, and cyber-related infrastructure inter-dependency analysis. This authority may be used to make permanent, time-limited and temporary appointments in the following occupational series: Security (GS–0080), Intelligence Analysts (GS–0132), Computer Engineers (GS–0854), Electronic Engineers (GS–0855), Computer Scientists (GS–1550), Operations Research (GS–1515), Criminal Investigators (GS–1811), Telecommunications (GS–0391), and IT Specialists (GS–2210). Within the scope of this authority, the U.S. Cyber Command is also authorized to hire miscellaneous administrative and program (GS–0301) series when those positions require unique qualifications not currently established by OPM. All positions will be at the General Schedule (GS) grade levels 09–15. No new appointments may be made under this authority after December 31, 2012.
(c) (Reserved)
(d) General—
(1) Positions concerned with advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information, including scientific and technical positions in the intelligence function; and positions involved in the planning, programming, and management of intelligence resources when, in the opinion of OPM, it is impracticable to examine. This authority does not apply to positions assigned to cryptologic and communications intelligence activities/functions.
(2) Positions involved in intelligence-related work of the cryptologic intelligence activities of the military departments. This includes all positions of intelligence research specialist, and similar positions in the intelligence classification series; all scientific and technical positions involving the applications of engineering, physical, or technical sciences to intelligence work; and professional as well as intelligence technician positions in which a majority of the incumbent's time is spent in advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information or in the planning, programming, and management of intelligence resources.
(e) Uniformed Services University of the Health Sciences—
(1) Positions of President, Vice Presidents, Assistant Vice Presidents, Deans, Deputy Deans, Associate Deans, Assistant Deans, Assistants to the President, Assistants to the Vice Presidents, Assistants to the Deans, Professors, Associate Professors, Assistant Professors, Instructors, Visiting Scientists, Research Associates, Senior Research Associates, and Postdoctoral Fellows.
(2) Positions established to perform work on projects funded from grants.
(f) National Defense University—
(1) Not to exceed 16 positions of senior policy analyst, GS–15, at the Strategic Concepts Development Center. Initial appointments to these positions may not exceed 6 years, but may be extended thereafter in 1-, 2-, or 3-year increments, indefinitely.
(g) Defense Communications Agency—
(1) Not to exceed 10 positions at grades GS–10/15 to staff and support the Crisis Management Center at the White House.
(h) Defense Acquisition University—
(1) The Provost and professors.
(i) George C. Marshall European Center for Security Studies, Garmisch, Germany—
(1) The Director, Deputy Director, and positions of professor, instructor, and lecturer at the George C. Marshall European Center for Security Studies, Garmisch, Germany, for initial
(j) Asia-Pacific Center for Security Studies, Honolulu, Hawaii—
(1) The Director, Deputy Director, Dean of Academics, Director of College, deputy department chairs, and senior positions of professor, associate professor, and research fellow within the Asia Pacific Center. Appointments may be made not to exceed 3 years and may be extended for periods not to exceed 3 years.
(k) Business Transformation Agency—
(1) Fifty temporary or time-limited (not to exceed four years) positions, at grades GS–11 through GS–15. The authority will be used to appoint persons in the following series: Management and Program Analysis, GS–343: Logistics Management, GS–346; Financial Management Programs, GS–501; Accounting, GS–510; Computer Engineering, GS–854; Business and Industry, GS–1101; Operations Research, GS–1515; Computer Science, GS–1550; General Supply, GS–2001; Supply Program Management, GS–2003; Inventory Management, GS–2010; and Information Technology, GS–2210.
(l) Special Inspector General for Afghanistan—
(1) Positions needed to establish the Special Inspector General for Afghanistan Reconstruction. These positions provide for the independent and objective conduct and supervision of audits and investigations relating to the programs and operations funded with amounts appropriated and otherwise made available for the reconstruction of Afghanistan. These positions are established at General Schedule (GS) grade levels for initial employment not to exceed 3 years and may, with prior approval of OPM, be extended for an additional period of 2 years. No new appointments may be made under this authority after January 31, 2011.
(a)–(c) (Reserved)
(d) U.S. Military Academy, West Point, New York—
(1) Civilian professors, instructors, teachers (except teachers at the Children's School), Cadet Social Activities Coordinator, Chapel Organist and Choir-Master, Director of Intercollegiate Athletics, Associate Director of Intercollegiate Athletics, Coaches, Facility Manager, Building Manager, three Physical Therapists (Athletic Trainers), Associate Director of Admissions for Plans and Programs, Deputy Director of Alumni Affairs; and Librarian when filled by an officer of the Regular Army retired from active service, and the Military Secretary to the Superintendent when filled by a U.S. Military Academy graduate retired as a regular commissioned officer for disability.
(e)–(f) (Reserved)
(g) Defense Language Institute—
(1) All positions (professors, instructors, lecturers) which require proficiency in a foreign language or knowledge of foreign language teaching methods.
(h) Army War College, Carlisle Barracks, PA—
(1) Positions of professor, instructor, or lecturer associated with courses of instruction of at least 10 months duration for employment not to exceed 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(i) (Reserved)
(j) U.S. Military Academy Preparatory School, Fort Monmouth, New Jersey—
(1) Positions of Academic Director, Department Head, and Instructor.
(k) U.S. Army Command and General Staff College, Fort Leavenworth, Kansas—
(1) Positions of professor, associate professor, assistant professor, and instructor associated with courses of instruction of at least 10 months duration, for employment not to exceed up to 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(a) General—
(1)–(14) (Reserved)
(15) Marine positions assigned to a coastal or seagoing vessel operated by a naval activity for research or training purposes.
(16) All positions necessary for the administration and maintenance of the official residence of the Vice President.
(b) Naval Academy, Naval Postgraduate School, and Naval War College—
(1) Professors, Instructors, and Teachers; the Director of Academic Planning, Naval Postgraduate School; and the Librarian, Organist-Choirmaster, Registrar, the Dean of Admissions, and Social Counselors at the Naval Academy.
(c) Chief of Naval Operations—
(1) One position at grade GS–12 or above that will provide technical, managerial, or administrative support on highly classified functions to the Deputy Chief of Naval Operations (Plans, Policy, and Operations).
(d) Military Sealift Command
(1) All positions on vessels operated by the Military Sealift Command.
(e)–(f) (Reserved)
(g) Office of Naval Research—
(1) Scientific and technical positions, GS–13/15, in the Office of Naval Research International Field Office which covers satellite offices within the Far East, Africa, Europe, Latin America, and the South Pacific. Positions are to be filled by personnel having specialized experience in scientific and/or technical disciplines of current interest to the Department of the Navy.
(a) Office of the Secretary—
(1) One Special Assistant in the Office of the Secretary of the Air Force. This position has advisory rather than operating duties except as operating or administrative responsibilities may be exercised in connection with the pilot studies.
(b) General—
(1) Professional, technical, managerial and administrative positions supporting space activities, when approved by the Secretary of the Air Force.
(2) One hundred eighty positions, serviced by Hill Air Force Base, Utah, engaged in interdepartmental activities in support of national defense projects involving scientific and technical evaluations.
(c) Norton and McClellan Air Force Bases, California—
(1) Not to exceed 20 professional positions, GS–11 through GS–15, in Detachments 6 and 51, SM–ALC, Norton and McClellan Air Force Bases, California, which will provide logistic support management to specialized research and development projects.
(d) U.S. Air Force Academy, Colorado—
(1) (Reserved)
(2) Positions of Professor, Associate Professor, Assistant Professor, and Instructor, in the Dean of Faculty, Commandant of Cadets, Director of Athletics, and Preparatory School of the United States Air Force Academy.
(e) (Reserved)
(f) Air Force Office of Special Investigations—
(1) Positions of Criminal Investigators/Intelligence Research Specialists, GS–5 through GS–15, in the Air Force Office of Special Investigations.
(g) Wright-Patterson Air Force Base, Ohio—
(1) Not to exceed eight positions, GS–12 through 15, in Headquarters Air Force Logistics Command, DCS Material Management, Office of Special
(h) Air University, Maxwell Air Force Base, Alabama—
(1) Positions of Professor, Instructor, or Lecturer.
(i) Air Force Institute of Technology, Wright-Patterson Air Force Base, Ohio—
(1) Civilian deans and professors.
(j) Air Force Logistics Command—
(1) One Supervisory Logistics Management Specialist, GM–346–14, in Detachment 2, 2762 Logistics Management Squadron (Special), Greenville, Texas.
(k) Wright-Patterson AFB, Ohio—
(1) One position of Supervisory Logistics Management Specialist, GS–346–15, in the 2762nd Logistics Squadron (Special), at Wright-Patterson Air Force Base, Ohio.
(l) Air National Guard Readiness Center—
(1) One position of Commander, Air National Guard Readiness Center, Andrews Air Force Base, Maryland.
(a) General—
(1) Deputy U.S. Marshals employed on an hourly basis for intermittent service.
(2) Positions at GS–15 and below on the staff of an office of a special counsel.
(3)–(5) (Reserved)
(6) Positions of Program Manager and Assistant Program Manager supporting the International Criminal Investigative Training Assistance Program in foreign countries. Initial appointments under this authority may not exceed 2 years, but may be extended in 1-year increments for the duration of the in-country program.
(7) Positions necessary throughout DOJ, for the excepted service transfer of NDIC employees hired under Schedule A, 213.3110(d). Authority expires September 30, 2012.
(b) (Reserved, moved to DHS)
(c) Drug Enforcement Administration—
(1) (Reserved)
(2) Four hundred positions of Intelligence Research Agent and/or Intelligence Operation Specialist in the GS–132 series, grades GS–9 through GS–15.
(3) Not to exceed 200 positions of Criminal Investigator (Special Agent). New appointments may be made under this authority only at grades GS–7/11.
(d) (Reserved, moved to Justice)
(e) Bureau of Alcohol, Tobacco, and Firearms—
(1) One hundred positions of Criminal Investigator for special assignments.
(2) One non-permanent Senior Level (SL) Criminal Investigator to serve as a senior advisor to the Assistant Director (Firearms, Explosives, and Arson).
(a) (Revoked 11/19/2009)
(b) Law Enforcement Policy—
(1) Ten positions for oversight policy and direction of sensitive law enforcement activities.
(c) Homeland Security Labor Relations Board/Homeland Security Mandatory Removal Board—
(1) Up to 15 Senior Level and General Schedule (or equivalent) positions.
(d) General—
(1) Not to exceed 1,000 positions to perform cyber risk and strategic analysis, incident handling and malware/vulnerability analysis, program management, distributed control systems security, cyber incident response, cyber exercise facilitation and management, cyber vulnerability detection and assessment, network and systems engineering, enterprise architecture, intelligence analysis, investigation, investigative analysis and cyber-related infrastructure interdependency analysis requiring unique qualifications currently not established by OPM. Positions will be at the General Schedule (GS) grade levels 09–15. No new appointments may be made under this authority after December 31, 2012.
(e) Papago Indian Agency—Not to exceed 25 positions of Immigration and Customs Enforcement (ICE) Tactical Officers (Shadow Wolves) in the Papago Indian Agency in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood. (Formerly 213.3105(b)(9))
(a) General—
(1) Technical, maintenance, and clerical positions at or below grades GS–7, WG–10, or equivalent, in the field service of the Department of the Interior, when filled by the appointment of persons who are certified as maintaining a permanent and exclusive residence within, or contiguous to, a field activity or district, and as being dependent for livelihood primarily upon employment available within the field activity of the Department.
(2) All positions on Government-owned ships or vessels operated by the Department of the Interior.
(3) Temporary or seasonal caretakers at temporarily closed camps or improved areas to maintain grounds, buildings, or other structures and prevent damages or theft of Government property. Such appointments shall not extend beyond 130 working days a year without the prior approval of OPM.
(4) Temporary, intermittent, or seasonal field assistants at GS–7, or its equivalent, and below in such areas as forestry, range management, soils, engineering, fishery and wildlife management, and with surveying parties. Employment under this authority may not exceed 180 working days a year.
(5) Temporary positions established in the field service of the Department for emergency forest and range fire prevention or suppression and blister rust control for not to exceed 180 working days a year: Provided, that an employee may work as many as 220 working days a year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property.
(6) Persons employed in field positions, the work of which is financed jointly by the Department of the Interior and cooperating persons or organizations outside the Federal service.
(7) All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of the Interior is responsible for defining the term “Indian.”
(8) Temporary, intermittent, or seasonal positions at GS–7 or below in Alaska, as follows: Positions in nonprofessional mining activities, such as those of drillers, miners, caterpillar operators, and samplers. Employment under this authority shall not exceed 180 working days a year and shall be appropriate only when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(9) Temporary, part-time, or intermittent employment of mechanics, skilled laborers, equipment operators, and tradesmen on construction, repair, or maintenance work not to exceed 180 working days a year in Alaska, when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(10) Seasonal airplane pilots and airplane mechanics in Alaska, not to exceed 180 working days a year.
(11) Temporary staff positions in the Youth Conservation Corps Centers operated by the Department of the
(12) Positions in the Youth Conservation Corps for which pay is fixed at the Federal minimum wage rate. Employment under this authority may not exceed 10 weeks.
(b) (Reserved)
(c) Indian Arts and Crafts Board—
(1) The Executive Director
(d) (Reserved)
(e) Office of the Assistant Secretary, Territorial and International Affairs—
(1) (Reserved)
(2) Not to exceed four positions of Territorial Management Interns, grades GS–5, GS–7, or GS–9, when filled by territorial residents who are U.S. citizens from the Virgin Islands or Guam; U.S. nationals from American Samoa; or in the case of the Northern Marianas, will become U.S. citizens upon termination of the U.S. trusteeship. Employment under this authority may not exceed 6 months.
(3) (Reserved)
(4) Special Assistants to the Governor of American Samoa who perform specialized administrative, professional, technical, and scientific duties as members of his or her immediate staff.
(f) National Park Service—
(1) (Reserved)
(2) Positions established for the administration of Kalaupapa National Historic Park, Molokai, Hawaii, when filled by appointment of qualified patients and Native Hawaiians, as provided by Public Law 95–565.
(3) Seven full-time permanent and 31 temporary, part-time, or intermittent positions in the Redwood National Park, California, which are needed for rehabilitation of the park, as provided by Public Law 95–250.
(4) One Special Representative of the Director.
(5) All positions in the Grand Portage National Monument, Minnesota, when filled by the appointment of recognized members of the Minnesota Chippewa Tribe.
(g) Bureau of Reclamation—
(1) Appraisers and examiners employed on a temporary, intermittent, or part-time basis on special valuation or prospective-entrymen-review projects where knowledge of local values on conditions or other specialized qualifications not possessed by regular Bureau employees are required for successful results. Employment under this provision shall not exceed 130 working days a year in any individual case: Provided, that such employment may, with prior approval of OPM, be extended for not to exceed an additional 50 working days in any single year.
(h) Office of the Deputy Assistant Secretary for Territorial Affairs—
(1) Positions of Territorial Management Interns, GS–5, when filled by persons selected by the Government of the Trust Territory of the Pacific Islands. No appointment may extend beyond 1 year.
(a) General—
(1) Agents employed in field positions the work of which is financed jointly by the Department and cooperating persons, organizations, or governmental agencies outside the Federal service. Except for positions for which selection is jointly made by the Department and the cooperating organization, this authority is not applicable to positions in the Agricultural Research Service or the National Agricultural Statistics Service. This authority is not applicable to the following positions in the Agricultural Marketing Service: Agricultural commodity grader (grain) and (meat), (poultry), and (dairy), agricultural commodity aid (grain), and tobacco inspection positions.
(2)–(4) (Reserved)
(5) Temporary, intermittent, or seasonal employment in the field service of the Department in positions at and below GS–7 and WG–10 in the following types of positions: Field assistants for sub professional services; agricultural helpers, helper-leaders, and workers in the Agricultural Research Service and the Animal and Plant Health Inspection Service; and subject to prior OPM approval granted in the calendar year in which the appointment is to be made, other clerical, trades, crafts, and manual labor positions. Total employment under this subparagraph may not exceed 180 working days in a service year: Provided, that an employee may work as many as 220 working days in a service year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property. This paragraph does not cover trades, crafts, and manual labor positions covered by paragraph (i) of Sec. 213.3102 or positions within the Forest Service.
(6)–(7) (Reserved)
(b)–(c) (Reserved)
(d) Farm Service Agency—
(1) (Reserved)
(2) Members of State Committees: Provided, that employment under this authority shall be limited to temporary intermittent (WAE) positions whose principal duties involve administering farm programs within the State consistent with legislative and Departmental requirements and reviewing national procedures and policies for adaptation at State and local levels within established parameters. Individual appointments under this authority are for 1 year and may be extended only by the Secretary of Agriculture or his designee. Members of State Committees serve at the pleasure of the Secretary.
(e) Rural Development—
(1) (Reserved)
(2) County committeemen to consider, recommend, and advise with respect to the Rural Development program.
(3)–(5) (Reserved)
(6) Professional and clerical positions in the Trust Territory of the Pacific Islands when occupied by indigenous residents of the Territory to provide financial assistance pursuant to current authorizing statutes.
(f) Agricultural Marketing Service—
(1) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS–9 and below in the tobacco, dairy, and poultry commodities; Meat Acceptance Specialists, GS–11 and below; Clerks, Office Automation Clerks, and Computer Clerks at GS–5 and below; Clerk-Typists at grades GS–4 and below; and Laborers under the Wage System. Employment under this authority is limited to either 1,280 hours or 180 days in a service year.
(2) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS–11 and below in the cotton, raisin, peanut, and processed and fresh fruit and vegetable commodities and the following positions in support of these commodities: Clerks, Office Automation Clerks, and Computer Clerks and Operators at GS–5 and below; Clerk-Typists at grades GS–4 and below; and, under the Federal Wage System, High Volume Instrumentation (HVI) Operators and HVI Operator Leaders at WG/WL–2 and below, respectively, Instrument Mechanics/Workers/Helpers at WG–10 and below, and Laborers. Employment under this authority may not exceed 180 days in a service year. In unforeseen situations such as bad weather or crop conditions, unanticipated plant demands, or increased imports, employees may work up to 240 days in a service year. Cotton Agricultural Commodity Graders, GS–5, may be employed as trainees for the first appointment for an initial period of 6 months for training without regard to the service year limitation.
(3) Milk Market Administrators
(4) All positions on the staffs of the Milk Market Administrators.
(g)–(k) (Reserved)
(l) Food Safety and Inspection Service—
(1)–(2) (Reserved)
(3) Positions of Meat and Poultry Inspectors (Veterinarians at GS–11 and below and non-Veterinarians at appropriate grades below GS–11) for employment on a temporary, intermittent, or seasonal basis, not to exceed 1,280 hours a year.
(m) Grain Inspection, Packers and Stockyards Administration—
(1) One hundred and fifty positions of Agricultural Commodity Aid (Grain), GS–2/4; 100 positions of Agricultural Commodity Technician (Grain), GS–4/7; and 60 positions of Agricultural Commodity Grader (Grain), GS–5/9, for temporary employment on a part-time, intermittent, or seasonal basis not to exceed 1,280 hours in a service year.
(n) Alternative Agricultural Research and Commercialization Corporation—
(1) Executive Director
(a) General—
(1)–(2) (Reserved)
(3) Not to exceed 50 scientific and technical positions whose duties are performed primarily in the Antarctic. Incumbents of these positions may be stationed in the continental United States for periods of orientation, training, analysis of data, and report writing.
(b)–(c) (Reserved)
(d) Bureau of the Census—
(1) Managers, supervisors, technicians, clerks, interviewers, and enumerators in the field service, for time-limited employment to conduct a census.
(2) Current Program Interviewers employed in the field service.
(e)–(h) (Reserved)
(i) Office of the Under Secretary for International Trade—
(1) Fifteen positions at GS–12 and above in specialized fields relating to international trade or commerce in units under the jurisdiction of the Under Secretary for International Trade. Incumbents will be assigned to advisory rather than to operating duties, except as operating and administrative responsibility may be required for the conduct of pilot studies or special projects. Employment under this authority will not exceed 2 years for an individual appointee.
(2) (Reserved)
(3) Not to exceed 15 positions in grades GS–12 through GS–15, to be filled by persons qualified as industrial or marketing specialists; who possess specialized knowledge and experience in industrial production, industrial operations and related problems, market structure and trends, retail and wholesale trade practices, distribution channels and costs, or business financing and credit procedures applicable to one or more of the current segments of U.S. industry served by the Under Secretary for International Trade, and the subordinate components of his organization which are involved in Domestic Business matters. Appointments under this authority may be made for a period not to exceed 2 years and may, with prior OPM approval, be extended for an additional 2 years.
(j) National Oceanic and Atmospheric Administration—
(1)–(2) (Reserved)
(3) All civilian positions on vessels operated by the National Ocean Service.
(4) Temporary positions required in connection with the surveying operations of the field service of the National Ocean Service. Appointment to such positions shall not exceed 8 months in any 1 calendar year.
(k) (Reserved)
(l) National Telecommunication and Information Administration—
(1) Thirty-eight professional positions in grades GS–13 through GS–15.
(a) Office of the Secretary—
(1) Chairman and five members, Employees' Compensation Appeals Board.
(2) Chairman and eight members, Benefits Review Board.
(b)–(c) (Reserved)
(d) Employment and Training Administration—
(1) Not to exceed 10 positions of Supervisory Manpower Development Specialist and Manpower Development Specialist, GS–7/15, in the Division of Indian and Native American Programs, when filled by the appointment of persons of one-fourth or more Indian blood. These positions require direct contact with Indian tribes and communities for the development and administration of comprehensive employment and training programs.
(a) General—
(1) Intermittent positions, at GS–15 and below and WG–10 and below, on teams under the National Disaster Medical System including Disaster Medical Assistance Teams and specialty teams, to respond to disasters, emergencies, and incidents/events involving medical, mortuary and public health needs.
(b) Public Health Service—
(1) (Reserved)
(2) Positions at Government sanatoria when filled by patients during treatment or convalescence.
(3) (Reserved)
(4) Positions concerned with problems in preventive medicine financed or participated in by the Department of Health and Human Services and a cooperating State, county, municipality, incorporated organization, or an individual in which at least one-half of the expense is contributed by the participating agency either in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(5)–(6) (Reserved)
(7) Not to exceed 50 positions associated with health screening programs for refugees.
(8) All positions in the Public Health Service and other positions in the Department of Health and Human Services directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of Health and Human Services is responsible for defining the term “Indian.”
(9) (Reserved)
(10) Health care positions of the National Health Service Corps for employment of any one individual not to exceed 4 years of service in health manpower shortage areas.
(11)–(14) (Reserved)
(15) Not to exceed 200 staff positions, GS–15 and below, in the Immigration Health Service, for an emergency staff to provide health related services to foreign entrants.
(c)–(e) (Reserved)
(f) The President's Council on Physical Fitness—
(1) Four staff assistants.
(a) Positions concerned with problems in education financed and participated in by the Department of Education and a cooperating State educational agency, or university or college, in which there is joint responsibility for selection and supervision of employees, and at least one-half of the expense is contributed by the cooperating agency in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(a) All positions
(a) Construction Division—
(1) Temporary construction workers paid from “purchase and hire” funds and appointed for not to exceed the duration of a construction project.
(b) Alcoholism Treatment Units and Drug Dependence Treatment Centers—
(1) Not to exceed 400 positions of rehabilitation counselors, GS–3 through GS–11, in Alcoholism Treatment Units and Drug Dependence Treatment Centers, when filled by former patients.
(c) Board of Veterans' Appeals—
(1) Positions, GS–15, when filled by a member of the Board. Except as provided by section 201(d) of Public Law 100–687, appointments under this authority shall be for a term of 9 years, and may be renewed.
(2) Positions, GS–15, when filled by a non-member of the Board who is awaiting Presidential approval for appointment as a Board member.
(d) Vietnam Era Veterans Readjustment Counseling Service—
(1) Not to exceed 600 positions at grades GS–3 through GS–11, involved in the Department's Vietnam Era Veterans Readjustment Counseling Service.
(a) When the President under 42 U.S.C. 1855–1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in the area under the Small Business Act, as amended. Service under this authority may not exceed 4 years, and no more than 2 years may be spent on a single disaster. Exception to this time limit may only be made with prior Office of Personnel Management approval. Appointments under this authority may not be used to extend the 2-year service limit contained below. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(b) When the President under 42 U.S.C. 1855–1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in that area under the Small Business Act, as amended. No one may serve under this authority for more than an aggregate of 2 years without a break in service of at least 6 months. Persons who have had more than 2 years of service under paragraph (a) of this section must have a break in service of at least 8 months following such service before appointment under this authority. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(a)–(b) (Reserved)
(c) Temporary or time-limited positions located at closed banks or savings and loan institutions that are concerned with liquidating the assets of the institutions, liquidating loans to the institutions, or paying the depositors of closed insured institutions. Time-limited appointments under this authority may not exceed 7 years.
(a) (Reserved)
(b) Positions when filled by member-residents of the Home.
(a) State Directors
(a) One hundred and fifty alien scientists having special qualifications in the fields of aeronautical and space research where such employment is deemed by the Administrator of the National Aeronautics and Space Administration to be necessary in the public interest.
(a) Arizona District Offices—
(1) Six positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(b) New Mexico—
(1) Seven positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of New Mexico when filled by the appointment of persons of one-fourth or more Indian blood.
(c) Alaska—
(1) Two positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Alaska when filled by the appointments of persons of one-fourth or more Alaskan Native blood (Eskimos, Indians, or Aleuts).
(a) (Reserved)
(a) (Reserved)
(b) (Reserved)
(a) (Reserved, expired 3/31/2004)
(a) (Reserved, expired 9/30/2007).
(b)
(1) Positions of Resident Country Directors and Deputy Resident Country Directors. The length of appointments will correspond to the length or term of the compact agreements made between the MCC and the country in which the MCC will work, plus one additional year to cover pre- and post-compact agreement related activities.
(a) (Reserved)
(b) Smithsonian Tropical Research Institute—All positions located in Panama which are part of or which support the Smithsonian Tropical Research Institute.
(c) National Museum of the American Indian—Positions at GS–15 and below requiring knowledge of, and experience in, tribal customs and culture. Such positions comprise approximately 10 percent of the Museum's positions and, generally, do not include secretarial, clerical, administrative, or program support positions.
(a) One Asian Studies Program Administrator, one International Security Studies Program Administrator, one Latin American Program Administrator, one Russian Studies Program Administrator, one West European Program Administrator, one Environmental Change & Security Studies Program Administrator, one United States Studies Program Administrator, two Social Science Program Administrators, and one Middle East Studies Program Administrator.
(a) (Reserved, expired 9/23/1998).
(a) Executive Director
(a) National Endowment for the Arts—
(1) Artistic and related positions at grades GS–13 through GS–15 engaged in the review, evaluation and administration of applications and grants supporting the arts, related research and assessment, policy and program development, arts education, access programs and advocacy, or evaluation of critical arts projects and outreach programs. Duties require artistic stature, in-depth knowledge of arts disciplines and/or artistic-related leadership qualities.
(a) One Enterprise Development Fund Manager. Appointment is limited to four years unless extended by OPM.
(a)–(c) (Reserved).
(d) Part-time and intermittent positions of test examiners at grades GS–8 and below.
(a) U.S. Coast Guard—
(1) (Reserved)
(2) Lamplighters
(3) Professors, Associate Professors, Assistant Professors, Instructors, one Principal Librarian, one Cadet Hostess, and one Psychologist (Counseling) at the Coast Guard Academy, New London, Connecticut.
(b)–(d) (Reserved)
(e) Maritime Administration—
(1)–(2) (Reserved)
(3) All positions on Government-owned vessels or those bareboats chartered to the Government and operated by or for the Maritime Administration.
(4)–(5) (Reserved)
(6) U.S. Merchant Marine Academy, positions of: Professors, Instructors, and Teachers, including heads of Departments of Physical Education and Athletics, Humanities, Mathematics and Science, Maritime Law and Economics, Nautical Science, and Engineering; Coordinator of Shipboard Training; the Commandant of Midshipmen, the Assistant Commandant of Midshipmen; Director of Music; three Battalion Officers; three Regimental Affairs Officers; and one Training Administrator.
(7) U.S. Merchant Marine Academy positions of: Associate Dean; Registrar; Director of Admissions; Assistant Director of Admissions; Director, Office of External Affairs; Placement Officer; Administrative Librarian; Shipboard Training Assistant; three Academy Training Representatives; and one Education Program Assistant.
(a) Field positions at grades GS–15 and below, or equivalent, which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93–288, as amended. Employment under this authority may not exceed 36 months on any single emergency. Persons may not be employed under this authority for long-term duties or for work not directly necessitated by the emergency response effort.
(b) Not to exceed 30 positions at grades GS–15 and below in the Offices of Executive Administration, General Counsel, Inspector General, Comptroller, Public Affairs, Personnel, Acquisition Management, and the State and Local Program and Support Directorate which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93–288, as amended. Employment under this authority may not exceed 36 months on any single emergency, or for long-term duties or work not directly necessitated by the emergency response effort. No one may be reappointed under this authority for service in connection with a different emergency unless at least 6 months have elapsed since the individual's latest appointment under this authority.
(c) Not to exceed 350 professional and technical positions at grades GS–5 through GS–15, or equivalent, in Mobile Emergency Response Support Detachments (MERS).
(a) (Reserved)
(b) Office of the Special Representative for Trade Negotiations—
(1) Seventeen positions of economist at grades GS–12 through GS–15.
(a) (1) One non-permanent senior level position to serve as Science and Technology Advisor to the Secretary.
(b)–(c) (Reserved)
(d) Seventeen positions on the household staff of the President's Guest House (Blair and Blair-Lee Houses).
(e) (Reserved)
(f) Scientific, professional, and technical positions at grades GS–12 to GS–15 when filled by persons having special qualifications in foreign policy matters. Total employment under this authority may not exceed 4 years.
(a) Positions of Deputy Comptroller of the Currency, Chief National Bank Examiner, Assistant Chief National Bank Examiner, Regional Administrator of National Banks, Deputy Regional Administrator of National Banks, Assistant to the Comptroller of the Currency, National Bank Examiner, Associate National Bank Examiner, and Assistant National Bank Examiner, whose salaries are paid from assessments against national banks and other financial institutions.
(b)–(c) (Reserved)
(d) Positions concerned with the protection of the life and safety of the President and members of his immediate family, or other persons for whom similar protective services are prescribed by law, when filled in accordance with special appointment procedures approved by OPM. Service under this authority may not exceed:
(1) A total of 4 years; or
(2) 120 days following completion of the service required for conversion under Executive Order 11203.
(e) Positions, grades GS–5 through 12, of Treasury Enforcement Agent in the Bureau of Alcohol, Tobacco, and Firearms; and Treasury Enforcement Agent, Pilot, Marine Enforcement Officer, and Aviation Enforcement Officer in the U.S. Customs Service. Service under this authority may not exceed 3 years and 120 days.
(a) Office of the Secretary—
(1) (Reserved)
(2) Professional positions at GS–11 through GS–15 involving systems, costs, and economic analysis functions in the Office of the Assistant Secretary (Program Analysis and Evaluation); and in the Office of the Deputy Assistant Secretary (Systems Policy and Information) in the Office of the Assistant Secretary (Comptroller).
(3)–(4) (Reserved)
(5) Four Net Assessment Analysts.
(b) Interdepartmental activities—
(1) Seven positions to provide general administration, general art and information, photography, and/or visual information support to the White House Photographic Service.
(2) Eight positions, GS–15 or below, in the White House Military Office,
(c) National Defense University—
(1) Sixty-one positions of Professor, GS–13/15, for employment of any one individual on an initial appointment not to exceed 3 years, which may be renewed in any increment from 1 to 6 years indefinitely thereafter.
(d) General—
(1) One position of Law Enforcement Liaison Officer (Drugs), GS–301–15, U.S. European Command.
(2) Acquisition positions at grades GS–5 through GS–11, whose incumbents have successfully completed the required course of education as participants in the Department of Defense scholarship program authorized under 10 U.S.C. 1744.
(e) Office of the Inspector General—
(1) Positions of Criminal Investigator, GS–1811–5/15.
(f) Department of Defense Polygraph Institute, Fort McClellan, Alabama—
(1) One Director, GM–15.
(g) Defense Security Assistance Agency—
All faculty members with instructor and research duties at the Defense Institute of Security Assistance Management, Wright Patterson Air Force Base, Dayton, Ohio. Individual appointments under this authority will be for an initial 3-year period, which may be followed by an appointment of indefinite duration.
(a) U.S. Army Command and General Staff College—
(1) Seven positions of professors, instructors, and education specialists. Total employment of any individual under this authority may not exceed 4 years.
(a) Naval Underwater Systems Center, New London, Connecticut—
(1) One position of Oceanographer, grade GS–14, to function as project director and manager for research in the weapons systems applications of ocean eddies.
(b) Armed Forces Staff College, Norfolk, Virginia—All civilian faculty positions of professors, instructors, and teachers on the staff of the Armed Forces Staff College, Norfolk, Virginia.
(c) Defense Personnel Security Research and Education Center—One Director and four Research Psychologists at the professor or GS–15 level.
(d) Marine Corps Command and Staff College—All civilian professor positions.
(e) Executive Dining facilities at the Pentagon—One position of Staff Assistant, GS–301, whose incumbent will manage the Navy's Executive Dining facilities at the Pentagon.
(f) (Reserved)
(a) Air Research Institute at the Air University, Maxwell Air Force Base, Alabama—Not to exceed four interdisciplinary positions for the Air Research Institute at the Air University, Maxwell Air Force Base, Alabama, for employment to complete studies proposed by candidates and acceptable to the Air Force. Initial appointments are made not to exceed 3 years, with an option to renew or extend the appointments in increments of 1-, 2-, or 3- years indefinitely thereafter.
(b)–(c) (Reserved)
(d) Air University—Positions of Instructor or professional academic staff at the Air University associated with courses of instruction of varying durations, for employment not to exceed 3 years, which may be renewed for an indefinite period thereafter.
(e) U.S. Air Force Academy, Colorado—One position of Director of Development and Alumni Programs, GS–301–13.
(a) Drug Enforcement Administration—
Criminal Investigator (Special Agent) positions in the Drug Enforcement Administration. New appointments may be made under this authority only at grades GS–5 through 11. Service under the authority may not exceed 4 years. Appointments made under this authority may be converted to career or career-conditional appointments under the provisions of Executive Order 12230, subject to conditions agreed upon between the Department and OPM.
(b) (Reserved)
(c) Not to exceed 400 positions at grades GS–5 through 15 assigned to regional task forces established to conduct special investigations to combat drug trafficking and organized crime.
(d) (Reserved)
(e) United States Trustees—Positions, other than secretarial, GS–6 through GS–15, requiring knowledge of the bankruptcy process, on the staff of the offices of United States Trustees or the Executive Office for U.S. Trustees.
(a) Foreign Agricultural Service—
(1) Positions of a project nature involved in international technical assistance activities. Service under this authority may not exceed 5 years on a single project for any individual unless delayed completion of a project justifies an extension up to but not exceeding 2 years.
(b) General—
(1) Temporary positions of professional Research Scientists, GS–15 or below, in the Agricultural Research Service, Economic Research Service, and the Forest Service, when such positions are established to support the Research Associateship Program and are filled by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and the agency. Appointments are limited to proposals approved by the appropriate Administrator. Appointments may be made for initial periods not to exceed 2 years and may be extended for up to 2 additional years. Extensions beyond 4 years, up to a maximum of 2 additional years, may be granted, but only in very rare and unusual circumstances, as determined by the Human Resources Officer for the Research, Education, and Economics Mission Area, or the Human Resources Officer, Forest Service.
(2) Not to exceed 55 Executive Director positions, GM–301–14/15, with the State Rural Development Councils in support of the Presidential Rural Development Initiative.
(a) Bureau of the Census—
(1) (Reserved)
(2) Not to exceed 50 Community Services Specialist positions at the equivalent of GS–5 through 12.
(b)–(c) (Reserved)
(d) National Telecommunications and Information Administration—
(1) Not to exceed 10 Telecommunications Policy Analysts, grades GS–11 through 15. Employment under this authority may not exceed 2 years.
(a) Administrative Review Board—Chair and a maximum of four additional Members.
(b) (Reserved)
(c) Bureau of International Labor Affairs—
(1) Positions in the Office of Foreign Relations, which are paid by outside
(a) Seventy-five positions, not to exceed GS–13, of a professional or analytical nature when filled by persons, other than college faculty members or candidates working toward college degrees, who are participating in mid-career development programs authorized by Federal statute or regulation, or sponsored by private nonprofit organizations, when a period of work experience is a requirement for completion of an organized study program. Employment under this authority shall not exceed 1 year.
(b) Fifty positions, GS–7 through GS–11, concerned with advising on education policies, practices, and procedures under unusual and abnormal conditions. Persons employed under this provision must be bona fide elementary school and high school teachers. Appointments under this authority may be made for a period of not to exceed 1 year, and may, with the prior approval of the Office of Personnel Management, be extended for an additional period of 1 year.
(a) Not to exceed 800 principal investigatory, scientific, professional, and technical positions at grades GS–11 and above in the medical research program.
(b) Not to exceed 25 Criminal Investigator (Undercover) positions, GS–1811, in grades 5 through 12, conducting undercover investigations in the Veterans Health Administration (VA) supervised by the VA, Office of Inspector General. Initial appointments shall be greater than 1 year, but not to exceed 4 years and may be extended indefinitely in 1-year increments.
(a) International Broadcasting Bureau—
(1) Not to exceed 200 positions at grades GS–15 and below in the Office of Cuba Broadcasting. Appointments may not be made under this authority to administrative, clerical, and technical support positions.
(a) (Reserved).
(b) Director, Health Care Services; Director, Member Services; Director, Logistics; and Director, Plans and Programs.
(a) Executive Director, National Historical Publications and Records Commission.
(a) Not to exceed 40 positions of Astronaut Candidates at grades GS–11 through 15. Employment under this authority may not exceed 3 years.
(a) (Reserved).
(a) (Reserved).
(b) Freer Gallery of Art—
(1) Not to exceed four Oriental Art Restoration Specialists at grades GS–9 through GS–15.
(a) Two Program Coordinators.
(a) Naval Home, Gulfport, Mississippi—
(1) One Resource Management Officer position and one Public Works Officer position, GS/GM–15 and below.
(a) (Reserved).
(b) National Endowment for the Humanities—
(1) Professional positions at grades GS–11 through GS–15 engaged in the review, evaluation, and administration of grants supporting scholarship, education, and public programs in the humanities, the duties of which require in-depth knowledge of a discipline of the humanities.
(a) Not to exceed eight positions of Associate Director at the Executive Seminar Centers at grades GS–13 and GS–14. Appointments may be made for any period up to 3 years and may be extended without prior approval for any individual. Not more than half of the authorized faculty positions at any one Executive Seminar Center may be filled under this authority.
(b) Federal Executive Institute—Twelve positions of faculty members at grades GS–13 through 15. Initial appointments under this authority may be made for any period up to 3 years and may be extended in 1-, 2-, or 3-year increments indefinitely thereafter.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954–1958 Comp., p.218.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal Service request concerning an additional Global Plus 1C contract. This document invites public comments on the request and addresses several related procedural steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
The Agreement that is the subject of this filing is the customer's first Global Plus 1 contract with the Postal Service. Notice at 3.
The filing includes the Notice, along with the following attachments:
• Attachment 1—a redacted copy of the Agreement;
• Attachment 2—a redacted copy of the certification required under 39 CFR 3015.5(c)(2);
• Attachment 3—a redacted copy of Governors' Decision No. 11–6; and
• Attachment 4—an application for non-public treatment of material filed under seal.
The material filed under seal consists of unredacted copies of the Agreement and supporting financial documents.
The Postal Service states that prices offered under the instant Agreement and the baseline agreements may differ, depending on volume or postage commitments made by the customers and when an agreement is signed (due to updated costing information).
The Commission establishes Docket No. CP2013–43 for consideration of matters raised in the Notice. Interested persons may submit comments on whether the Agreement is consistent with the requirements of 39 CFR 3015.5 and the policies of sections 3632, 3633, and 3642. Comments are due no later than January 24, 2013. The public portions of the Postal Service's filing can be accessed via the Commission's Web site at
The Commission appoints Allison J. Levy to represent the interests of the general public (Public Representative) in this case.
1. The Commission establishes Docket No. CP2013–43 for consideration of matters raised in the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission designates Allison J. Levy to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than January 24, 2013.
4. The Secretary shall arrange for publication of this Order in the
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of AlphaTrade.com because it has not filed any periodic reports for any reporting period subsequent to September 30, 2010.
The Commission is of the opinion that the public interest and the protection of the investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq is proposing to modify the record-keeping and substitution listing fees payable by companies listed on Nasdaq. While changes pursuant to this proposal are effective upon filing, the Exchange will implement the proposed rule on January 2, 2013.
The text of the proposed rule change is below. Proposed new language is
(a)–(d) No change.
(e) Recordkeeping Fee.
A Company that makes a change such as a change to its name, the par value or title of its security, or its symbol shall pay a fee of [$2,500]
(f) Substitution Listing Fee
A Company that implements a Substitution Listing Event shall pay a fee of [$7,500]
(a)–(c) No change.
(d) Record-Keeping Fee
A Company that makes a change such as a change to its name, the par value or title of its security, or its symbol shall pay a fee of [$2,500]
(e) Substitution Listing Fee
A Company that implements a Substitution Listing Event shall pay a fee of [$7,500]
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for 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.
Nasdaq proposes to modify the fees charged to Nasdaq-listed companies for record-keeping changes and substitution listings. Currently, a company owes a $2,500 record-keeping fee when it makes a change to its name, the par value or title of its security, or its symbol.
In addition, a company currently owes a $7,500 substitution listing fee when it affects a reverse stock split, re-incorporation or a change in the company's place of organization, forms a holding company that replaces the listed company, reclassifies or exchanges the company's listed shares for another security, lists a new class of securities in substitution for a previously-listed class of securities, or makes any technical change whereby the shareholders of the original company receive a share-for-share interest in the new company without any change in their equity position or rights.
Nasdaq also proposes to correct capitalization in the heading of Rule 5910 to be consistent with the capitalization used in the remainder of the Rule 5000 Series.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq believes that the proposed fees are reasonable because they will reflect Nasdaq's higher costs related to processing record keeping changes and substitution listings since the fees were set in 2003 and 2005, respectively. In that regard, Nasdaq notes that expenses surrounding the processing and distribution of these changes, including technology costs and salaries, have increased since the fees were set, but that the fees have not been concomitantly increased. In addition, Nasdaq has developed an electronic notification system for listed companies and expects to launch early in 2013 an
Nasdaq also believes that the proposed changes are equitable and not unfairly discriminatory because they would apply equally to all companies listed on Nasdaq that effect one of these changes. In this manner, the proposed fees will help assure that the expenses arising from changes initiated by certain companies are borne by those companies.
Finally, NASDAQ notes that it operates in a highly competitive market in which market participants can readily switch exchanges if they deem the listing fees excessive.
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The market for listing services is extremely competitive and listed companies may freely choose alternative venues. In addition, Nasdaq's proposed fees are similar to the fees charged by its competitors. For this reason, and the reasons discussed in connection with the statutory basis for the proposed rule change, Nasdaq does not believe that the proposed rule change will result in any burden on competition for listings.
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 26, 2012, National Stock Exchange, Inc. (“NSX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On March 30, 2011, to implement Section 10C of the Act, as added by Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”),
Rule 10C–1 requires, among other things, each exchange to adopt rules providing that each member of the compensation committee
In addition, Rule 10C–1 requires the listing rules of exchanges to mandate that compensation committees be given the authority to retain or obtain the advice of a compensation adviser, and have direct responsibility for the appointment, compensation and oversight of the work of any compensation adviser they retain.
To comply with Rule 10C–1, NSX proposes to amend several provisions of NSX Rule 15.5(d), “Listed Company Corporate Governance Requirements.”
NSX's rules currently require each issuer listed on the Exchange to have a compensation committee
To comply with this requirement, NSX proposes to amend its rules to provide that, for purposes of determining the independence of a member of its compensation committee, a listed company must consider the following factors: (i) The source of compensation of a member of the committee, including any consulting, advisory or other compensatory fee paid by the listed company to such member; and (ii) whether the member of the committee is affiliated with the listed company, a subsidiary of the listed company or an affiliate of a subsidiary of the listed company.
The proposed rules provide a transition period for companies to comply with these independence standards. Listed companies will have until the earlier of their first annual meeting after January 15, 2014, or October 31, 2014, to comply with these requirements.
NSX's rules currently provide that the compensation committee of a listed company must have a written charter that addresses the committee's purpose and responsibilities, and sets forth the direct responsibilities that the committee must have as a minimum.
The factors are: (i) The provision of other services to the issuer by the person that employs the compensation consultant, independent legal counsel or adviser; (ii) the amount of fees received from the issuer by the person that employs the compensation consultant, independent legal counsel or other adviser, as a percentage of the employer's total revenue; (iii) the policies and procedures of the person that employs the compensation consultant, independent legal counsel or other adviser that are designed to prevent conflicts of interest; (iv) any business or personal relationship of the compensation consultant, independent legal counsel or other adviser with a member of the compensation committee; (v) any stock of the issuer owned by the compensation consultant, independent legal counsel or other adviser; and (vi) any business or personal relationship of the compensation consultant, independent legal counsel, other adviser or person employing the adviser with an executive officer of the issuer.
To comply with Rule 10C–1's requirement with respect to funding of compensation advisers engaged by compensation committees,
Rule 10C–1 includes an exemption for smaller reporting companies from all the requirements included within the rule.
Under the proposal, a company that ceases to be a Smaller Reporting Company will be allowed six months from the date that the company tests its status as such a company (“Smaller Reporting Company Determination Date”) to meet the independence standards applicable to compensation committees. However, the compensation committee will be required to comply with the rule requiring an independence assessment of compensation consultants and other advisers that it retains as of the Smaller Reporting Company Determination Date.
Rule 10C–1 requires that an exchange's rules must provide for appropriate procedures for a listed issuer to have a reasonable opportunity to cure any defects in the issuer's compliance with the Rule, and provides a specific cure period that may be used by an exchange, under certain conditions, when a member of a compensation committee ceases to be independent.
The Exchange proposes that its existing exemptions from its compensation-related listing rules remain unchanged. The Exchange's current listing rules provide exemptions for: controlled companies; limited partnerships and companies in bankruptcy; closed-end and open-end funds registered under the Investment Company Act of 1940 Act (“the 1940 Act”); passive business organizations in the form of trusts (such as royalty trusts); derivatives and special purpose securities; and issuers whose only listed equity security is a preferred stock.
The Exchange states that these categories of issuers typically: (i) Are externally managed and do not directly employ executives (
The Exchange currently does not require issuers whose only listed security is a preferred stock to comply with NSX Rule 15.5. The Exchange proposes to continue to exempt these issuers from compliance with the proposed amended rule. The Exchange believes this approach is appropriate because holders of listed preferred stock have significantly greater protections with respect to their rights to receive dividends and a liquidation preference upon dissolution of the issuer, and preferred stocks are typically regarded by investors as a fixed income investment comparable to debt securities, the issuers of which are exempt from compliance with Exchange Act Rule 10C–1.
After careful review, the Commission finds that the NSX proposal, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The development and enforcement of meaningful listing standards for a national securities exchange is of substantial importance to financial markets and the investing public. Meaningful listing standards are especially important given investor expectations regarding the nature of companies that have achieved an exchange listing for their securities. The corporate governance standards embodied in the listing rules of national securities exchanges, in particular, play an important role in assuring that companies listed for trading on the exchanges' markets observe good governance practices, including a reasoned, fair, and impartial approach for determining the compensation of corporate executives. The Commission believes that the NSX proposal will foster greater transparency, accountability, and objectivity in the oversight of compensation practices of listed issuers and in the decision-making processes of their compensation committees.
In enacting Section 10C of the Act as one of the reforms of the Dodd-Frank Act,
In response, NSX submitted the proposed rule change, which includes rules intended to comply with the requirements of Rule 10C–1. The Commission believes that the proposed rule change satisfies the mandate of Rule 10C–1 and otherwise will promote effective oversight of its listed issuers' executive compensation practices.
As discussed above, under Rule 10C–1, the exchanges must adopt listing standards that require each member of a compensation committee to be independent, and to develop a definition of independence after considering, among other relevant factors, the source of compensation of a director, including any consulting advisory or other compensatory fee paid by the issuer to the director as well as whether the director is affiliated with the issuer or any of its subsidiaries or their affiliates.
The Commission notes that Rule 10C–1 leaves it to each exchange to formulate a final definition of independence for these purposes, subject to review and final Commission approval pursuant to Section 19(b) of the Act. This discretion comports with the Act, which gives the exchanges the authority, as self-regulatory organizations, to propose the standards they wish to set for companies that seek to be listed on their markets consistent with the Act and the rules and regulations thereunder, and, in particular, Section 6(b)(5) of the Act. As the Commission stated in the Rule 10C–1 Adopting Release, “given the wide variety of issuers that are listed on exchanges, we believe that the exchanges should be provided with flexibility to develop independence requirements appropriate for the issuers listed on each exchange and consistent with the requirements of the independence standards set forth in Rule 10C–1(b)(1).”
The enhanced independence standards proposed by NSX specifically require that, when evaluating the independence of a director responsible for determining executive compensation, a company's board of directors must consider the following factors: (i) the source of compensation of the director, including consulting, advisory or other compensatory fee paid by the company to the director; and (ii) whether the director is affiliated with the company, a subsidiary of the company, or an affiliate of a subsidiary of the company, in accordance with the requirements of Rule 10C–1(b)(1).
The Commission believes that by incorporating these independence standards, the Exchange has complied with the independence requirements of Rule 10C–1(b)(1), and that the proposed independence requirements, which are designed to protect investors and the public interest, are consistent with the requirements of Section 6(b)(5) of the Act. The Commission believes that the enhanced standards, in conjunction with the Exchange's existing general and “bright line” independence standards,
As discussed above, NSX proposes to require its listed companies to include provisions in the charters of their compensation committees that reflect the provisions of Rule 10C–1 setting forth the authority that must be given to compensation committees to retain compensation advisers, the responsibilities of compensation committees regarding the appointment, compensation, and oversight of such advisers, and the requirement that compensation committees assess the independence of such advisers. NSX further proposes, in accordance with Rule 10C–1, to require listed companies to provide appropriate funding for payment of reasonable compensation to a compensation adviser retained by the committee. As such, the Commission believes these provisions meet the mandate of Rule 10C–1 and are consistent with the Act.
In approving these provisions, the Commission notes that compliance with the rule requires an independence assessment of any compensation consultant, legal counsel, or other adviser that provides advice to the compensation committee, and is not limited to advice concerning executive compensation. The Commission notes that Rule 10C–1 includes an instruction that specifically requires a compensation committee to conduct the independence assessment with respect to “any compensation consultant, legal counsel or other adviser that provides advice to the compensation committee, other than in-house counsel,”
As noted above, the compensation committee may select, or receive advice from, a compensation consultant, legal counsel, or other adviser to the compensation committee, other than in-house legal counsel, only after taking into consideration the six factors set forth in Rule 10C–1
In approving this aspect of the proposal, the Commission notes that compliance with the rule requires an independence assessment of any compensation consultant, legal counsel, or other adviser that provides advice to the compensation committee, and is not limited to advice concerning executive compensation. As it has stated elsewhere, the Commission anticipates that compensation committees will conduct such an independence assessment at least annually.
As noted by NSX, Rule 10C–1 provides that the requirements established by the rule shall not apply to any smaller reporting company. As such, the Commission believes that the Exchange's proposed exemption of Smaller Reporting Companies from the new requirements comports with Rule 10C–1 and is consistent with the Act. As noted in the Commission's Rule 10C–1 Adopting Release, exempting Smaller Reporting Companies from the requirements mandated by Rule 10C–1 could offer cost savings to such companies.
NSX proposes, generally, to allow listed companies that fail to comply with the compensation-related rules 45 days from the date of notification by the Exchange to cure any deficiency. If the deficiency is not cured by this time, the company will be subject to the delisting procedures set forth in the Exchange's rules regarding suspension and delisting. With respect, specifically, to the independence requirements for compensation committee members, the Exchange proposes to provide the cure period permitted by Rule 10C–1 for these rules.
The Commission notes that NSX's rules relating to delisting procedures require the Exchange to provide: (1) Notice to the issuer of the Exchange's decision to delist the issuer's securities; (2) an opportunity for the issuer to file an appeal pursuant to the Exchange's rules governing adverse actions; (3) public notice, no fewer than ten days before the delisting becomes effective, of the Exchange's final determination to delist the security via a press release and posting on the Exchange's Web site; and (4) the prompt delivery to the issuer of a copy of the form that the Exchange filed with the Commission, as required, upon its institution of proceedings to delist the issuer's security.
The Commission believes that NSX's proposed grant of 45 days to a company that fails to meet the new standards (other than the independence requirements) before instituting the Exchange's general procedures for companies out of compliance with its listing requirements, as well as the particular cure period it proposes to provide to a company that fails to meet the new independence standards, adequately meet the mandate of Rule 10C–1. The Commission believes that these cure provisions also are consistent with investor protection and the public interest since they give a company a reasonable time period to cure non-compliance with these important requirements before they will be delisted.
As NSX notes, its existing rules relating to compensation afford an exemption to controlled companies, limited partnerships, companies in bankruptcy, closed-end and open-end funds registered under the 1940 Act, passive business organizations in the form of trusts (such as royalty trusts), derivatives and special purpose securities as described above, and issuers whose only listed equity security is a preferred stock. The Exchange proposes to extend the exemptions for these entities to the new requirements of the proposed rule change.
The Commission notes that Rule 10C–1 allows exchanges to exempt from the listing rules adopted pursuant to Rule 10C–1 certain categories of issuers, as the national securities exchange determines is appropriate.
In summary, and for the reasons discussed in more detail above, the Commission believes that the rules being adopted by NSX, taken as whole, should benefit investors by helping listed companies make informed decisions regarding the amount and form of executive compensation. NSX's new rules will help to meet Congress's intent that compensation committees that are responsible for setting compensation policy for executives of listed companies consist only of independent directors.
NSX's rules also, consistent with Rule 10C–1, require compensation committees of listed companies to assess the independence of compensation advisers, taking into consideration six specified factors. This should help to assure that compensation committees of NSX-listed companies are better informed about potential conflicts when selecting and receiving advice from advisers. Similarly, the provisions of NSX's standards that require compensation committees to be given the authority to engage and oversee compensation advisers, and require the listed company to provide for appropriate funding to compensate such advisers, should help to support the compensation committee's role to oversee executive compensation and help provide compensation committees with the resources necessary to make better informed compensation decisions.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with Section 6(b)(5) of the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
In notice document 2013–00201, appearing on pages 1906–1907 in the issue of Wednesday January 9, 2013, make the following correction:
On page 1906, in the second column, the Subject is corrected to read as set forth above.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The NASDAQ Stock Market LLC proposes to modify the fees applicable to companies seeking review of a denial of initial listing or a delisting or reprimand determination.
While changes pursuant to this proposal are effective upon filing, the Exchange will implement the proposed rule by imposing the new fee for hearings on companies who receive a Staff Delisting Determination on or after January 2, 2013. NASDAQ will implement the new fee for appeals on companies who receive a Panel Decision on or after January 2, 2013.
The text of the proposed rule change is below. Proposed new language is
When a Company receives a Staff Delisting Determination or a Public Reprimand Letter issued by the Listing Qualifications Department, or when its application for initial listing is denied, it may request in writing that the Hearings Panel review the matter in a written or an oral hearing. This section sets forth the procedures for requesting a hearing before a Hearings Panel, describes the Hearings Panel and the possible outcomes of a hearing, and sets forth Hearings Panel procedures.
(a) Procedures for Requesting and Preparing for a Hearing
(1)–(2) No changes.
(3) Fees
Within 15 calendar days of the date of the Staff Delisting Determination, the Company must submit a hearing fee
(A) when the Company has requested a written hearing, $4,000; or
(B) when the Company has requested an oral hearing, whether in person or by telephone, $5,000.
(4)–(6) No changes.
(b)–(d) No changes.
A Company may appeal a Panel Decision to the Listing Council. The Listing Council may also call for review a Panel Decision on its own initiative. This Rule 5820 describes the procedures applicable to appeals and calls for review.
(a) Procedure for Requesting Appeal
A Company may appeal any Panel Decision to the Listing Council by submitting a written request for appeal and a fee of [$4,000]
(b)–(e) No changes.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for 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.
Pursuant to the NASDAQ Listing Rule Series 5800, companies may seek review of a determination by NASDAQ Staff to deny initial listing or delist a company's securities or to issue a Public Reprimand Letter, by requesting an oral or written hearing before an independent Hearings Panel. Listing Rule 5815(a)(3) provides that to request a hearing, the Company must, within 15 calendar days of the date of the Staff Delisting Determination, submit a hearing fee in the amount of $4000 for a written hearing or $5,000 for an oral hearing. Companies may also appeal a Panel decision to the NASDAQ Listing and Hearing Review Council (the “NLHRC”). Listing Rule 5820(a) requires a company seeking an appeal to submit a written request and a fee of $4,000 within 15 days of the date of the Panel Decision.
NASDAQ last changed these fees in 2001.
NASDAQ is increasing the fees because the costs incurred in preparing for and conducting appeals have increased since the fees were last changed. The costs of the delisting process include significant Staff time and resources to prepare for and conduct hearings and appeals. Staff prepares written submissions in support of a delisting determination; attends hearings; provides legal counsel and support to independent Panelists and the NLHRC; drafts final decisions; manages and coordinates the appeals dockets; and monitors post-hearing compliance efforts. NASDAQ also incurs the costs of transcription of the proceedings and expenses for the Panelists and members of the NLHRC. In addition, the Exchange incurs costs to upgrade electronic systems for tracking companies and maintaining a clear record. It also maintains lists on its Web site, updated every business day, that reflect the status of all companies in the deficiency process.
All of these expenses have increased in the eleven years since the fees were set in 2001. In addition, appeals have become more complicated and
Accordingly, NASDAQ proposes to increase fees to $10,000 for a Panel hearing, whether the company elects a written or an oral hearing; and $10,000 for an appeal to the NLRHC. NASDAQ recognizes that in the past, fees for a written hearing have been lower than fees for an oral one. The Exchange believes that the basis for this historical distinction is unclear, and upon review, found to be unwarranted. The cost to a company that elects a written hearing may be lower because the company's related expenses, such as travel and legal representation, may be avoided. However, the costs to the Exchange associated with a written hearing are virtually identical to those associated with an oral hearing, differing only by the cost of transcribing a hearing. NASDAQ believes that the fees should reflect that Staff and Panels expend the same resources, time, and effort in ensuring a full and fair hearing for all hearing participants, and both processes afford the same benefit to the issuer. Therefore, while the proposed amendment preserves the availability of a written hearing to any company that requests one, NASDAQ proposes to charge the same fee for a written hearing as for an oral one.
The revised fees for a hearing will be applicable to issuers that are sent a Staff Delisting Determination on or after January 2, 2013. The revised fees for an appeal of a Panel Decision will be applicable to issuers that receive a Panel Decision on or after January 2, 2013. The current fees will remain in effect for any company that receives a Staff Determination or a Panel Decision before that date.
The revised fees will allow NASDAQ to recoup a portion of the expenses it incurs in the delisting process that will more closely approximate the actual costs associated with the appeal process. The Exchange has reviewed all costs associated with delisting appeals and does not expect or intend that the fees will exceed the costs.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Specifically, the proposed fee increase is reasonable because it will better reflect NASDAQ's costs related to the appeal process. NASDAQ has not increased the fees for an appeal since 2001,
NASDAQ also believes that the proposed fees are consistent with the investor protection objectives of Section 6(b)(5) of the Act
NASDAQ also believes that the proposed changes are consistent with Section 6(b)(7) of the Act,
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. As discussed above, this proposed fee is based on the increase in costs to the Exchange to provide a delisting review process, which is in turn necessary to ensure investor protection as well as a transparent process for issuers. Moreover, the market for listing services is extremely competitive and listed companies may freely choose alternative venues based on the aggregate fees assessed, and the value provided by
No written comments were either solicited or received.
Pursuant to Section 19(b)(3)(A)(ii) of the Act,
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 30, 2012, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA utilizes the Trade Reporting and Compliance Engine (“TRACE”) to collect from its members and to publicly disseminate information on transactions in eligible fixed income securities. The FINRA Automated Data Delivery System (“FINRA ADDS”) is a secure Web site that provides a firm, by market participant identifier (“MPID”), access to TRACE trade journal files. These files are available for Asset-Backed Securities transactions and separately for corporate bonds and Agency Debt Securities (“Corporate/Agency Debt Securities”). The FINRA ADDS service is free, and there are no limits on the number of reports that a firm may request or the number of firm personnel associated with a specified MPID that may submit such requests.
Currently, to access the transaction information in FINRA ADDS, entitled users of the MPID must submit a request for a trade journal file for a specified date, which must be within 30 calendar days prior to the date of the request. A single report is a trade journal file for one date listing all transactions to which the requesting MPID was a party that were reported on that date either in Asset-Backed Securities or Corporate/Agency Debt Securities. The FINRA ADDS report provides all of the transaction reports in which the MPID is a party to a transaction (whether the trade was reported by the firm or another member) on the specified date. If a firm uses multiple MPIDs, persons authorized to use the specified MPID must make the data request to FINRA ADDS and the data provided by FINRA ADDS is limited to transactions involving that MPID.
FINRA has proposed to establish two new optional TRACE data delivery services, TRACE Data Delivery Plus and TRACE Data Delivery Secure File Transfer Protocol (“TRACE Data Delivery SFTP”), and fees in connection
To provide TRACE Data Delivery Plus, FINRA has proposed to amend Rule 7730 to charge an MPID subscriber a monthly fee. The proposed monthly fee is based on two factors: (1) The average number of transactions per month to which the MPID was a party that was reported to TRACE in the prior calendar year, which number is used to categorize the MPID in one of four tiers;
FINRA has indicated that it would announce the effective date of the proposed rule change in a
After carefully reviewing the proposal, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
FINRA stated that it proposed the described optional data services in response to feedback from firms requesting access to more of their TRACE transaction history and increased flexibility to access such data.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 27, 2012, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the Shares of the Fund under Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3), which governs the listing and trading of Investment Company Units. The Shares would be issued by the ALPS ETF Trust (“Trust”).
The Fund would seek investment results that correspond generally to the performance, before the Fund's fees and expenses, of the NYSE Arca U.S. Equity Synthetic Reverse Convertible Index (“Index”). The Index reflects the performance of a portfolio consisting of over-the-counter (“OTC”) “down-and-in put” options that have been written on 20 of the most volatile U.S. stocks that also have market capitalization of at least $5 billion.
In seeking to replicate, before expenses, the performance of the Index, the Fund would generally sell (
The Exchange submitted this proposed rule change because the Index for the Fund does not meet all of the “generic” listing requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule 5.2(j)(3) applicable to the listing of Investment Company Units based upon an index of “US Component Stocks.”
The Index measures the return of a hypothetical portfolio consisting of OTC down-and-in put options which have been written on each of 20 stocks and
A down-and-in option is a contract that becomes a typical option (
Each option included in the Index would be a “European-style” option (i.e., an option which can only be exercised at its expiration) with a 90-day term. The strike prices of the option positions included in the Index would be determined based on the closing prices of the options' underlying stocks as of the beginning of each 90-day period. The barrier price of each such option would be 80% of the strike price. At the expiration of each 90-day period, if an underlying stock closes at or below its respective barrier price, a cash settlement payment in an amount equal to the difference between the strike price and the closing price of the stock would be deemed to be made, and the Index value would be correspondingly reduced. If the underlying stock does not close at or below the barrier price, then the option expires worthless and the entire amount of the premium payment would be retained within the Index.
The components of the Index would be OTC down-and-in put options written on 20 NMS stocks selected based on the following screening parameters:
1. U.S. listing of U.S. companies;
2. Publicly listed and traded options available;
3. Market capitalization greater than $5 billion;
4. Top 20 stocks when ranked by 3-month implied volatility;
5. Each underlying NMS stock would have a minimum trading volume of at least 50 million shares for the preceding six months; and
6. Each underlying NMS stock would have a minimum average daily trading volume of at least one million shares and a minimum average daily trading value of at least $10 million for the preceding six months.
The selection of the 20 underlying NMS stocks would occur each quarter (March, June, September, and December) two days prior to the third Friday of the month, in line with option expiration for listed options. The selection of the 20 underlying stocks would not, however, be limited to those with listed options expiring in March, June, September, or December.
The Index value would reflect a cash amount invested in on-the-run three-month T-Bills, plus the premium collected on the short position in the 20 down-and-in put options written by the Index each quarter. The notional amount of each of the 20 down-and-in put options would be equal to 1/20th of the cash amount in the Index at the beginning of each quarter. The cash amount (initially 1,000 for the origination date of the Index) would be incremented by premiums generated each quarter from the 20 down-and-in put options sold, then decremented by cash settlements of any down-and-in put options expiring in-the-money and the distribution amount (as described below). The cash amount would be invested in T-Bills and would accrete by interest earned on the T-Bills.
The End of Day Index Value would be calculated as follows: End of Day Index Value = Beginning of Quarter Index Value + Premium Generated − Option Values + Accrued Interest − distribution amount, where:
• Beginning of Quarter Index Value is 1,000 for the origination date of the Index; thereafter, it is the previous quarter-end End of Day Index Value;
• Premium Generated is the sum of Option Values for each of the 20 down-and-in put options sold by the Index at the end of the previous quarter;
• Option Value is the settlement value of each of the 20 down-and-in put options written by the Index at the end of each quarter. The notional amount of each down-and-in put option sold by the Index for the current quarter is 1/20th of the Beginning of Quarter Index Value;
• Accrued Interest is the daily interest earned on the cash amount held by the Index and invested in T-Bills;
• Cash amount of the Index for any quarter is the Beginning of Quarter Index Value plus the Premium Generated for that quarter; and
• Distribution amount for any quarter and paid out at the beginning of the next quarter is 2.5% of the End of Day Index Value for the final day of the quarter. If such an amount exceeds the amount of the Premium Generated, then the distribution amount would equal the Premium Generated.
A total return level for the Index would be calculated and published at the end of each day. The total return calculation would assume the quarterly index distribution is invested directly in the Index at the beginning of the quarter in which it is paid.
The Exchange has provided the following example. Stock “ABC” trades at $50 per share at the start of the 90-day period, and a down-and-in 90-day put option was written at an 80% barrier (resulting in a strike price of $50 per share and a barrier price of $40 per share) for a premium of $4 per share:
•
•
•
As discussed above, the Index's value is equal to the value of the options positions comprising the Index, plus a cash position. The cash position starts at a base of 1,000. The cash position is increased by option premiums generated by the option positions comprising the Index and interest on the cash position at an annual rate equal to the three month T-Bill rate. The cash position is decreased by cash settlement on options which “knock in” (
The Fund, under normal circumstances,
Typically, the writer of a put option incurs an obligation to buy the underlying instrument from the purchaser of the option at the option's exercise price, upon exercise by the option purchaser. However, the down-and-in put options to be sold by the Fund would be settled in cash only. The Fund may need to sell down-and-in put options on stocks other than those underlying the option positions contained in the Index if the Fund is unable to obtain a competitive market from OTC option dealers on a stock underlying a particular option position in the Index, thus preventing the Fund from writing an option on that stock.
Every 90 days, the options included within the Index are cash settled or expire, and new option positions are established. The Fund would enter into new option positions accordingly. This 90-day cycle likely would cause the Fund to have frequent and substantial portfolio turnover. If the Fund receives additional inflows (and issues more Shares accordingly in large numbers known as “Creation Units”) during a 90-day period, the Fund would sell additional OTC down-and-in put options which would be exercised or expire at the end of such 90-day period. Conversely, if the Fund redeems Shares in Creation Unit size during a 90-day period, the Fund would terminate the appropriate portion of the options it has sold accordingly.
The Fund may invest its remaining assets in money market instruments,
The Fund may invest in the securities of other investment companies (including money market funds). Under the 1940 Act, the Fund's investment in investment companies is limited to, subject to certain exceptions, (i) 3% of the total outstanding voting stock of any one investment company, (ii) 5% of the Fund's total assets with respect to any one investment company, and (iii) 10% of the Fund's total assets of investment companies in the aggregate.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities. The Fund would monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current
The Fund intends to qualify for and to elect to be treated as a separate regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended
The Fund would not invest in non-U.S. equity securities. The Fund's investments would be consistent with the Fund's investment objective and would not be used to enhance leverage.
The Fund's OTC down-and-in put options on equity securities would be valued pursuant to a third-party option pricing model. Debt securities will be valued at the mean between the last available bid and ask prices for such securities or, if such prices are not available, at prices for securities of comparable maturity, quality, and type. Securities for which market quotations are not readily available, including restricted securities, will be valued by a method that the Fund's Board of Trustees believe accurately reflects fair value. Securities will be valued at fair value when market quotations are not readily available or are deemed unreliable, such as when a security's value or meaningful portion of the Fund's portfolio is believed to have been materially affected by a significant event. Such events may include a natural disaster, an economic event like a bankruptcy filing, trading halt in a security, an unscheduled early market close, or a substantial fluctuation in domestic and foreign markets that has occurred between the close of the principal exchange and the NYSE. In such a case, the value for a security is likely to be different from the last quoted market price. In addition, due to the subjective and variable nature of fair market value pricing, it is possible that the value determined for a particular asset may be materially different from the value realized upon such asset's sale.
The Trust would issue and sell Shares of the Fund only in “Creation Units” of 100,000 Shares each on a continuous basis through the Distributor, without a sales load, at its net asset value (“NAV”) next determined after receipt, on any business day, of an order in proper form. Creation Units of the Fund generally would be sold for cash only, calculated based on the NAV per Share multiplied by the number of Shares representing a Creation Unit (“Deposit Cash”), plus a transaction fee.
The Custodian, through the National Securities Clearing Corporation (“NSCC”), would make available on each business day, prior to the opening of business on NYSE Arca (currently 9:30 a.m. Eastern Time (“E.T.”)), the amount of the Deposit Cash to be deposited in exchange for a Creation Unit of the Fund.
To be eligible to place orders with the Distributor and to create a Creation Unit of the Fund, an entity must be (i) a “Participating Party,”
All orders to create Creation Units, whether through a Participating Party or a DTC participant, must be received by the Distributor no later than the closing time of the regular trading session on the NYSE (ordinarily 4:00 p.m. E.T.) in each case on the date such order is placed in order for creation of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form.
Fund Shares may be redeemed only in Creation Units at the NAV next determined after receipt of a redemption request in proper form by the Fund through BNY and only on a business day. The Fund would not redeem Shares in amounts less than a Creation Unit.
With respect to the Fund, BNY, through the NSCC, would make available prior to the opening of business on NYSE Arca (currently 9:30 a.m. E.T.) on each business day, the amount of cash that would be paid (subject to possible amendment or correction) in respect of redemption requests received in proper form on that day (“Redemption Cash”).
The redemption proceeds for a Creation Unit generally would consist of the Redemption Cash, as announced on the business day of the request for redemption received in proper form, less a redemption transaction fee.
The Exchange represents that the Shares would conform to the initial and continued listing criteria under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2), except that the Index is comprised of down-and-in put options based on “US Component Stocks”
The Fund's Web site (
On a daily basis, the Adviser would disclose for each portfolio security and other financial instrument of the Fund
The NAV per Share for the Fund would be determined once daily as of the close of the NYSE, usually 4:00 p.m. E.T., each day the NYSE is open for trading. NAV per Share would be determined by dividing the value of the Fund's portfolio securities, cash and other assets (including accrued interest), less all liabilities (including accrued expenses), by the total number of Shares outstanding. As discussed above, the OTC down-and-in put options would be valued pursuant to a third-party option pricing model.
Investors could also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports would be available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
With respect to trading halts, the Exchange states that it may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
If the Intraday Indicative Value, the Index value, or the value of the components of the Index is not available or is not being disseminated as required, the Exchange may halt trading during the day in which the disruption occurs; if the interruption persists past the day in which it occurred, the Exchange would halt trading no later than the beginning of the trading day following the interruption. The Exchange would obtain a representation from the Fund that the NAV for the Fund would be calculated daily and would be made available to all market participants at the same time. Under NYSE Arca Equities Rule 7.34(a)(5), if the Exchange becomes aware that the NAV for the Fund is not being disseminated to all market participants at the same time, it would halt trading in the Shares until such time as the NAV is available to all market participants.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares would trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. E.T. in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange states that it has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Investment Company Units) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Currently, NYSE Arca Equities Rule 9.2(a) (Diligence as to Accounts)
Prior to the commencement of trading, the Exchange would inform its ETP Holders of the suitability requirements of NYSE Arca Equities Rule 9.2(a) in an Information Bulletin (“Information Bulletin” or “Bulletin”). Specifically, ETP Holders would be reminded in the Information Bulletin that, in recommending transactions in these securities, they must have a reasonable basis to believe that (1) the recommendation is suitable for a customer given reasonable inquiry concerning the customer's investment objectives, financial situation, needs, and any other information known by such member, and (2) the customer can evaluate the special characteristics, and is able to bear the financial risks, of an investment in the Shares. In connection with the suitability obligation, the Information Bulletin would also provide that members must make reasonable efforts to obtain the following information: (1) The customer's financial status; (2) the customer's tax status; (3) the customer's investment objectives; and (4) such other information used or considered to be reasonable by such member or registered representative in making recommendations to the customer.
In addition, FINRA has issued a regulatory notice relating to sales practice procedures applicable to recommendations to customers by FINRA members of reverse convertibles, as described in FINRA Regulatory Notice 10–09 (February 2010) (“FINRA Regulatory Notice”).
As disclosed in the Registration Statement, the Fund is designed for investors who seek to obtain income through selling options on select equity securities which the Index Provider determines to have the highest volatility. Because of the high volatility of the stocks underlying the options sold by the Fund, it is possible that the value of such stocks would decline in sufficient magnitude to trigger the exercise of the options and cause a loss which may outweigh the income from selling such options. The Registration Statement states that, accordingly, the Fund should be considered a speculative trading instrument and is not necessarily appropriate for investors who seek to avoid or minimize their exposure to stock market volatility. The Exchange's Information Bulletin regarding the Fund, described below, would provide information regarding the suitability of an investment in the Shares, as stated in the Registration Statement.
Prior to the commencement of trading, the Exchange would inform its ETP Holders in the Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin would discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Intraday Indicative Value would not be calculated or publicly disseminated; (4) how information regarding the Intraday Indicative Value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin would reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin would discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin would also disclose that the NAV for the Shares would be calculated after 4:00 p.m. E.T. each trading day.
Additional information regarding the Trust, the Fund, and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions, and taxes, among other things, is included in the Notice and Registration Statement, as applicable.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
As discussed above, the Exchange's proposal would allow the Exchange to list and trade Shares of the Fund under NYSE Arca Equities Rule 5.2(j)(3), which governs the listing and trading of Investment Company Units. The Fund would seek investment results that correspond generally to the performance, before the Fund's fees and
The Commission solicits comment on whether the proposal is consistent with the Exchange Act and whether the Exchange has sufficiently met its burden in presenting a statutory analysis of how its proposal is consistent with the Exchange Act. In particular, the grounds for disapproval under consideration include whether the Exchange's proposal is consistent with Section 6(b)(5) of the Exchange Act, which requires, among other things, that the rules of a national securities exchange be “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade,” and “to protect investors and the public interest.”
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the concerns identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by February 13, 2013. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by February 27, 2013.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change. In particular, the Commission seeks comment on the following:
1. What are commenters' views on whether investors would be able to understand the strategy, risks and potential rewards, assumptions and expected performance of the Fund, including the effect of the Fund's exposure to its down-and-in put options? With respect to the trading of the Fund's Shares on the Exchange, do commenters believe that the Exchange's rules governing sales practices
2. The Fund states that the OTC down-and-in put options that it will write may experience greater discontinuity in pricing as they approach expiration, especially if the underlying equity price is close to the barrier level.
3. Do commenters believe that the market for OTC down-and-in put options is sufficiently liquid and that pricing of those options is sufficiently transparent for investors in the Shares? Why or why not? Do commenters believe that investors would be able to accurately value such options? Why or why not?
4. Do commenters believe that the market for OTC down-and-in put options is sufficiently liquid and that pricing of those options is sufficiently transparent for authorized participants and market makers to effectively arbitrage the OTC market and the market for the Shares through the trading day? Why or why not?
5. The Commission understands that some market makers might use listed options to synthetically replicate down-and-in put options that may not be sufficiently liquid to buy and sell intraday. Do commenters believe the replication of down-and-in-put options through the purchase and sale of specific listed options would be an effective way for market makers to arbitrage the value of a down-and-in put option against the price of the Shares? Why or why not?
6. Are there other methods for authorized participants or market makers to hedge the market risk derived from arbitraging any differences between the market price of the Shares and the expected NAV per Share of the Fund?
7. Do commenters believe that the ability of market makers and authorized participants to arbitrage throughout the day will be sufficiently robust to ensure that prices of the Shares closely track the intraday NAV per Share of the Fund? Are there circumstances in which significant premiums or discounts could develop?
8. Do commenters believe that the third-party model that would be used to value the Fund's OTC down-and-in put options would accurately reflect prices at which the Fund could enter into new OTC down-and-in put options or unwind existing OTC down-and-in put options? Why or why not? Should the Exchange or the Fund be required to provide further disclosure relating to the formula and methodology of such third-party pricing model? Would such disclosure better help investors to price the OTC down-and-in put options held by the Fund?
9. Are there any characteristics unique to barrier options on equity securities that would make them more difficult to value than options on equity securities without a barrier feature? If so, what are they and how could they potentially impact the valuation?
10. Are there any circumstances under which the nature of barrier options would cause market makers to widen bid and offer spreads for the Shares? For example, if a significant number of components stocks are at or near a 20% loss a few days before expiration of the down-and-out-put options, would market makers widen their spreads to reflect the added uncertainty?
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange to amend the Exchange's Pricing Schedule at Section A, entitled “Customer Rebate Program,” Section I entitled “Rebates and Fees for Adding and Removing Liquidity in Select Symbols,”
The text of the proposed rule change is provided in
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for
The purpose of the proposed rule change is to accomplish various objectives. First, the Exchange proposes to amend the Customer Rebate Program to incentivize market participants to increase the amount of Customer order flow they transact on the Exchange. Towards this end, the Exchange proposes the addition of Category D to the Customer Rebate Program relating to Customer Simple Orders in Select Symbols. The Exchange also proposes to offer certain credits when an order, which is sent to the Exchange, is routed to an away market. Second, the Exchange proposes to remove certain Select Symbols from Section I and instead assess the fees and offer caps as specified in Section II of the Pricing Schedule. The Exchange believes that the pricing in Section II, coupled with the proposed enhancements to the Customer Rebate Program may encourage an increase in Customer transactions in those symbols. Third, the Exchange proposes to amend the Section I pricing in Simple and Complex Orders and PIXL Pricing to also encourage additional Customer order flow by not assessing fees to Customers. The Exchange proposes to lower the Simple Order Fees for Removing Liquidity and certain PIXL Pricing to encourage additional Simple Order transactions. Fourth, the Exchange proposes to increase the Simple Order Fees for Adding Liquidity, adopt Complex Order Fees for Adding Liquidity and increase certain Complex Orders Fees for Removing Liquidity to permit the Exchange to offer additional rebates in the Customer Rebate Program in Section A. Fifth, the Exchange proposes to lower the Complex Order Specialist and Market Fees for Removing Liquidity in Select Symbols, as well as auctions and openings, and amend the applicability of Payment for Order Flow Fee for Select Symbols and broadcast messages to encourage greater Customer order interaction on the Exchange.
The Exchange is proposing to amend its Customer Rebate Program in Section A of the Pricing Schedule. Currently, the Exchange has a four-tiered Customer Rebate Program as follows:
At this time, the Exchange proposes to reduce the Customer Rebate Program to a three-tiered rebate structure. The Exchange proposes to amend Tier 1 which is currently 0 to 49,999 contracts in a month to 0 to 99,999 contracts in a month. The Exchange is not proposing to amend the rebate rates in Categories A, B or C for Tier 1. Those rebates will remain at $0.00 per contract. Next, the Exchange is proposing to amend Tier 2 which is currently 50,000 to 99,999 contracts in a month to 100,000 to 349,999 contracts in a month. The Exchange proposes to amend the Tier 2 rate in Category A from $0.07 to $0.10 per contract. The Exchange proposes to amend the Tier 2 rate in Category B from $0.10 to $0.12 per contract. The Exchange proposes to amend the Tier 2 rate in Category C from $0.00 to $0.13 per contract. The Exchange proposes to eliminate Tier 3 which is currently 100,000 to 274,999 contracts in a month.
The Exchange also proposes to add another Category of orders eligible for rebates entitled “Category D.” This new category would pay rebates to members executing electronically-delivered Customer Simple Orders in Select Symbols in Section I. Also, the rebate would be paid on PIXL Orders in Section I symbols that execute against non-Initiating Order interest.
Currently, the Exchange calculates Average Daily Volume Threshold by totaling Customer volume in Multiply Listed Options (including Select Symbols) that are electronically-delivered and executed, except volume associated with the following: (i) Electronically-delivered and executed Customer Simple Orders in Select Symbols that remove liquidity; and (ii) electronic Qualified Contingent Cross Orders (“QCC Orders”),
The Exchange proposes to amend the Average Daily Volume Calculation by eliminating Customer volume in Multiply-Listed Options that are electronically-delivered and executed except for volume associated with electronically-delivered and executed Simple Orders in Select Symbols that remove liquidity. The Exchange is proposing to amend the Average Daily Volume by eliminating the exclusion of the electronically-delivered and executed Customer Simple Orders in Select Symbols that remove liquidity. The QCC Orders would be the only exception when calculating Customer volume in Multiply-Listed Options that are electronically-delivered in the Average Daily Volume Threshold calculation.
The Exchange proposes to reduce Routing Fees in Section V of the Exchange's Pricing Schedule for member organizations that qualify for Tier 2 or Tier 3 of the Customer Rebate Program. Specifically, the Exchange proposes to credit member organizations that qualify for either a Tier 2 or Tier 3 rebate with a credit of $0.04 per contract, which credit would be applied to Routing Fees, as specified in Section V of the Pricing Schedule, when a Customer order is routed to NASDAQ OMX BX, Inc. (“BX Options”) or the NASDAQ Options Market LLC (“NOM”). Member organizations that qualify for either a Tier 2 or Tier 3 rebate would be entitled to receive a $0.10 per contract credit, which credit would be applied to Routing Fees, specified in Section V of the Pricing Schedule, when a Customer order is routed to an away market other than BX Options or NOM.
The Exchange believes that the proposed amendments to the Customer Rebate Program, including the credit proposed for Routing Fees, would further incentivize members to transact Customer orders on the Exchange. The Exchange believes the proposed amendments will attract additional Customer order flow to the Exchange for the benefit of all market participants.
The Exchange displays a list of Select Symbols in its Pricing Schedule at Section I, which symbols are subject to the rebates and fees in that section. The Exchange is proposing to delete the following symbols from the list of Select Symbols in Section I of the Pricing Schedule: Arena Pharmaceuticals, Inc. (“ARNA”), Alcoa, Inc. (“AA”), Advanced Micro Devices, Inc. (“AMD”), Cisco Systems, Inc. (“CSCO”), SPDR DOW Jones Industrial Average (“DIA”), iShares MSCI EAFE Index Fund (“EFA”), iShares MSCI Brazil Index Fund (“EWZ”), Ford Motor Co. (“F”), (Direxion Daily Financial Bull 3x Shares (“FAS”), Direxion Daily Financial Bear 3X Shares (“FAZ”), iShares FTSE China 25 Index Fund (“FXI”), Market Vectors Gold Miners ETF (“GDX”), General Electric Company (“GE”), Intel Corporation (“INTC”), Nokia Corporation (“NOK”), Oracle Corporation (“ORCL”), Pfizer, Inc. (“PFE”),Research in Motion Limited (“RIMM”), ProShares UltraShort S&P 500 (“SDS”), Sirius XM Radio Inc. (“SIRI”), iShares Silver Trust (“SLV”), ProShares UltraShort 20+ Year Treasury (“TBT”), iShares Barclays 20 Year Treasury (“TLT”), Direxion Daily Small Cap Bear 3X Shares (“TZA”), United States Natural Gas (“UNG”), United States Oil (“USO”), Vale S.A. (“VALE”), iPath S&P 500 VIX ST Futures ETN (“VXX”), Verizon Communications Inc. (“VZ”), SPDR Select Sector Fund—Energy (“XLE”), SPDR Select Sector Fund (“XLI”) and Yahoo! Inc. (“YHOO”) (collectively, “Proposed Deleted Symbols”). These Proposed Deleted Symbols would be subject to the fees, fee caps and related discounts in Section II of the Pricing Schedule entitled “Multiply Listed Options Fees.” The Exchange believes that by assessing the Proposed Deleted Symbols the pricing in Section II of the Pricing Schedule the Exchange will attract order flow to the Exchange.
The Exchange proposes to amend the Simple Order rebates and fees in Section I, Part A of the Pricing Schedule. Currently, the Exchange pays the following Simple Order Rebates for Adding Liquidity: Customer $0.26 per contract, Specialist
Currently, the Exchange assesses the following Simple Order Fees for Adding Liquidity: Customer, Specialist, Professional and Market Maker pay no fee, a Firm and Broker-Dealer pay $0.05 per contract. The Exchange proposes to amend the Simple Order Fees for Adding Liquidity as follows: a Customer would continue to not be assessed however instead of “N/A” the Exchange would reflect the fee as “$0.00” on the Pricing Schedule. A Specialist and Market Maker would be assessed a $0.10 per contract Simple Order Fee for Adding Liquidity, but only when contra to a Customer order. If the Specialist or Market Maker is contra to a Specialist, Market Maker, Firm, Broker-Dealer or Professional, then the Specialist or Market Maker would be entitled to the Simple Order Rebate for Adding Liquidity.
As explained above, Specialists and Market Makers receive a Rebate for Adding Liquidity when contra to a Specialist, Market Maker, Firm, Broker-Dealer and Professional. The Firm and Broker-Dealer Fees for Adding Liquidity would be increased from $0.05 to $0.45 per contract. A Professional would be assessed $0.45 per contract pursuant to this proposal as compared to no fee.
Currently the Exchange assesses the following Simple Orders Fees for Removing Liquidity: A Customer is assessed $0.43 per contract, a Specialist, Market Maker, Firm, Broker-Dealer and Professional are assessed $0.45 per contract. The Exchange proposes to decrease the Customer Fee for Removing Liquidity from $0.43 to $0.00 per contract. The Exchange also proposes to decrease the Specialist, Market Maker, Firm, Broker-Dealer and Professional fees from $0.45 to $0.44 per contract.
The Exchange believes that decreasing certain Simple Order fees will incentivize market participants to send order flow to the Exchange, particularly Customer order flow. In addition, the Exchange believes that the increased fees would allow the Exchange to offer additional Customer rebates as proposed in the Customer Rebate Program to attract liquidity to the Exchange.
The Exchange proposes to amend the Complex Order rebates and fees in Section I, Part B of the Pricing Schedule. The Exchange currently pays the following Complex Order Rebates for Adding Liquidity: a Customer is paid $0.32 per contract and Specialists, Market Makers, Firms, Broker-Dealers and Professionals are paid $0.10 per contract. The Exchange proposes to eliminate the Rebates for Adding Liquidity in Complex Orders. Currently, Customers are paid a $0.06 Complex Order Rebate for Removing Liquidity. No other market participant is paid a Complex Order Rebate for Removing Liquidity. The Exchange proposes to eliminate the Customer Complex Order Rebate for Removing Liquidity. The Exchange's proposal would therefore pay no rebates in Section I, Part B with respect to Complex Orders.
The Exchange proposes to adopt a Complex Order Fee for Adding Liquidity of $0.10 per contract that will be applicable to Specialists, Market Makers, Firms, Broker-Dealers and Professionals. Customers would not be assessed a Complex Order Fee for Adding Liquidity.
The Exchange currently assesses the following Complex Order Fees for Removing Liquidity: $0.39 per contract for Specialists, Market Makers, Firms, Broker-Dealers and Professionals. Customers are not assessed a Complex Order Fee for Removing Liquidity. The Exchange is proposing to decrease the Specialist and Market Maker Complex Order Fees for Removing Liquidity from $0.39 to $0.25 per contract. The Exchange proposes to increase the Complex Order Fees for Removing Liquidity for Firms, Broker-Dealers and Professionals from $0.39 to $0.50 per contract. A Customer would continue to not be assessed a Complex Order Fee for Removing Liquidity. The Exchange is proposing to decrease certain fees to incentivize market participants to transact Complex Orders on the Exchange and the Exchange is proposing to increase certain fees in order that it may offer additional rebates in the Customer Rebate Program as described herein.
Today the Exchange pays market participants for Customer executions that occur as part of a Complex electronic auction
The Exchange proposes to no longer pay rebates for Customer executions that occur as part of a Complex electronic auction, the opening process or a Complex Order or a non-Complex auction. In addition, the Exchange would not assess any fees for transactions that occur as part of a Complex electronic auction, the opening process or a non-Complex electronic auction, as is the case today for Customer orders. The Exchange believes that assessing no fees and paying no rebates for transactions executed during certain auctions and the opening process would benefit market participants. While no rebates would be paid, there would also be no fees assessed.
Currently, the Specialists and Market Makers pay the Simple Order Fee for Removing Liquidity during the opening the process. The Exchange proposes to assess Specialists and Market Makers the Simple Order Fee for Adding Liquidity if contra to a Customer during the opening process. Specialists and Market Makers will continue to pay the Simple Order Fee for Removing Liquidity during the opening the process if contra to a Specialist, Market Maker, Firm, Broker-Dealer or Professional.
Currently, Payment for Order Flow
The Exchange also proposes to make a technical amendment in Section II of the Pricing Schedule to amend the Pricing Schedule to change the term “Single contra-side” in Part B of Section II of the Pricing Schedule to “Simple Order” for consistency in use of its terms.
The Exchange recently filed to amend Rule 1080(m) to provide for the broadcast of certain orders that are on the Phlx Book.
The Exchange proposes to amend Section IV of the Pricing Schedule at Part A. Currently, the Exchange assesses an Initiating Order
In addition, the Exchange also proposes to permit Phlx members and member organizations under common ownership to aggregate their Customer Rebate Program Threshold Volume in order to determine if they qualify for the $0.07 or $0.05 per contract Initiating Order fee. Common ownership is defined as 75 percent common ownership or control.
Today, when a PIXL order in a Select Symbol
Additionally, today when a PIXL Order in a Select Symbol is contra to a resting order or quote that was on the PHLX book prior to the auction, the PIXL Order is assessed $0.30 per contract and the resting order or quote is either paid the Rebate for Adding Liquidity or assessed the Fee for Adding Liquidity in Section I. Today, if the resting order or quote that was on the PHLX book was entered during the Auction, the PIXL Order receives the Rebate for Adding Liquidity or is assessed the Fee for Adding Liquidity in Section I and the resting order or quote is assessed $0.30 per contract. The Exchange proposes to amend the PIXL pricing for order executions in Select Symbols as follows: when the PIXL Order is contra to a resting order or quote that was on the PHLX book prior to the auction, the PIXL Order would be assessed the Fee for Removing Liquidity not to exceed $0.30 per contract and the resting order or quote would be assessed the Fee for Adding Liquidity in Section I. Further, the Exchange proposes that if the resting order or quote that was on the PHLX book was entered during the Auction, the PIXL Order would be assessed the Fee for Adding Liquidity in Section I and the resting order or quote would be assessed the Fee for Removing Liquidity not to exceed $0.30 per contract.
The Exchange proposes to eliminate the payment of rebates, not assess fees and lower the Threshold Volume to 100,000 contracts per day in a month in order to incentivize market participants to transact PIXL Orders.
The Exchange believes that its proposal to amend its Pricing Schedule is consistent with Section 6(b) of the Act
The Exchange's proposal to amend its Customer Rebate Program in Section A of the Pricing Schedule is reasonable because the Exchange believes that the amended Customer Rebate Program, including the addition of Category D, would further incentivize market participants to transact Customer order flow on the Exchange, which liquidity will benefit all market participants. The Exchange believes that reducing the Customer Rebate Program to a three-tiered rebate structure and amending the tier volumes is reasonable because it should incentivize market participants to increase the amount of Customer orders that are transacted on the Exchange to obtain a rebate. The Exchange proposes herein to amend the Average Daily Volume Threshold to only exclude QCC Orders,
The Exchange believes that the proposal to amend the rebate tiers is equitable and not unfairly discriminatory because while market participants would need to transact a greater number of contracts to achieve a Tier 2 or 3 rebate, the Exchange is also amending the Average Daily Volume Threshold to allow market participants to receive a rebate on a greater number of eligible contracts. The Exchange's proposal to amend its rebates is equitable and not unfairly discriminatory for the following reasons. With respect to Tier 1 which is currently 0 to 49,999 contracts in a month and would be 0 to 99,999 contracts in a month pursuant to this proposal, the Exchange would continue to pay no rebate. For those market participants executing from 1 to 49,999 contracts, this is the same as today. For those market participants that currently transact 50,000 to 99,999 contracts, they would not be eligible for a rebate under the proposal. The Exchange believes that market participants would be incentivized to transact a greater number of contracts in order to obtain a rebate in Tiers 2 or 3. With respect to Tier 2 which is currently 50,000 to 99,999 contracts in a month, the proposal would amend the contract volume to 100,000 to 349,999 contracts in a month which today is the volume necessary to obtain a Tier 2 rebate or a Tier 3 rebate if the number of contracts is greater than 275,000. A Category A
The Exchange believes that the addition of Category D is reasonable because the Exchange is incentivizing market participants to transact Customer Simple Orders in Select Symbols by offering a rebate. The Exchange also believes that the Category D rebates are equitable and not unfairly discriminatory because all market participants that direct Customer Simple Orders in Select Symbols are eligible for the rebates. The Exchange would pay a Category D rebate of $0.05 per contract to a market participant that transacts between 100,000 and 349,999 contracts in a month. Additionally, the Exchange would pay a Category D rebate of $0.07 per contract to a market participant that transacts over 350,000 contracts in a month.
The Exchange's amended rebate calculation is reasonable because the Exchange proposes to include Customer volume in Multiply Listed Options (including Select Symbols) that are electronically-delivered and executed, except volume associated with QCC Orders as defined in Exchange Rule 1080(o). Volume associated with electronically-delivered Customer Simple Orders in Select Symbols that remove liquidity would be included as part of this proposal. This volume is currently excluded. The Exchange believes that the inclusion of the electronically-delivered Customer Simple Orders in Select Symbols that remove liquidity would allow market participants to obtain greater rebates. In addition, the Exchange believes that the amended rebate calculation is equitable and not unfairly discriminatory because the calculation would apply uniformly to all market participants.
The Exchange's proposal to reduce Routing Fees
The Exchange believes that it is reasonable to remove the Proposed Deleted Symbols from its list of Select Symbols to attract additional order flow to the Exchange. The Exchange believes that applying the pricing in Section II of the Pricing Schedule to the Proposed Deleted Symbols, including the opportunity to receive payment for order flow, will attract order flow to the Exchange.
The Exchange believes that it is equitable and not unfairly discriminatory to amend its list of Select Symbols to remove the Proposed Deleted Symbols because the list of Select Symbols would apply uniformly to all categories of participants in the same manner. All market participants who trade the Select Symbols would be subject to the rebates and fees in Section I of the Pricing Schedule, which would not include the Proposed Deleted Symbols. Also, all market participants would be uniformly subject to the fees in Section II, which would include the Proposed Deleted Symbols.
The Exchange's proposal to amend the Simple Order rebates and fees in Section I, Part A of the Pricing Schedule is reasonable because the Exchange is proposing to only pay rebates to Specialists and Market Makers in limited circumstances and only when the Exchange is able to fund that rebate with a Simple Order Fee for Removing Liquidity. In other words, if a Specialist or Market Maker is contra to a Specialist, Market Maker, Firm, Broker-Dealer or Professional, these market participants pay Simple Order Fees for Removing Liquidity, which fund the rebate to the Specialist or Market Maker. When a Specialist or Market Maker is contra to a Customer, then the Specialist or Market Maker would pay the Simple Order Fee for Adding Liquidity because the Customer is assessed no Simple Order Fee for Removing Liquidity pursuant to this proposal and instead receives the rebates defined in Category D. The Exchange is reducing the Simple Order Fees for Removing Liquidity because it is no longer paying certain Simple Order rebates to Customers or Professionals. The Exchange believes that its proposal to assess Simple Order Fees for Adding Liquidity is reasonable because as explained herein, the Exchange is funding the rebates it offers to Specialists and Market Makers with those Simple Order Fees for Adding Liquidity.
The Exchange's proposal to amend the Simple Order rebates and fees in Section I, Part A of the Pricing Schedule is equitable and not unfairly discriminatory for the reasons which follow. With respect to Customers, the Exchange would no longer assess a Customer the $0.43 per contract Simple Order Fee for Removing Liquidity, the Exchange would continue not to assess a Customer a Simple Order Fee for Adding Liquidity, as is the case today. In light of eliminating these fees, the Exchange proposes to no longer pay the $0.26 per contract Simple Order Rebate for Adding Liquidity. Customer order flow is assessed no fee because incentivizing members to continue to offer Customer trading opportunities in Simple Orders benefits all market participants through increased liquidity. The Exchange instead proposes to pay Customer rebates for Simple Orders in Select Symbols as part of proposed Category D to the Customer Rebate Program in Section A.
With respect to the Simple Order Rebate for Adding Liquidity, the Exchange proposes to reduce the rebates for Specialists and Market Makers from $0.23 to $0.20 per contract and not pay a Professional a rebate
With respect to the Simple Order Fees for Adding Liquidity, the Exchange currently only assesses Firms, Broker-Dealer and Professionals a $0.05 per contract fee. The Exchange proposes to increase those fees to $0.45 per contract for Firms, Broker-Dealer and Professionals to permit the Exchange to continue to pay Customer rebates as proposed in Section A of the Pricing Schedule. The Exchange would assess
With respect to the Simple Order Fees for Removing Liquidity, the Exchange proposes to decrease the fee from $0.45 to $0.44 per contract for Specialists, Market Makers, Professionals, Firms and Broker-Dealers. The Exchange proposes to continue to assess, uniformly, the same fees for all market participants except Customers, as is the case today. As noted previously, the Exchange is proposing not to assess Customers Simple Order fees.
The Exchange's proposal to make technical amendments to the Simple Order Fees for Adding Liquidity to remove “N/A” and instead note the fee as “$0.00” on the Pricing Schedule is reasonable, equitable and not unfairly discriminatory because the Exchange proposes to indicate that no fee is being assessed to clarify the Pricing Schedule.
As stated herein, the Exchange's proposal to amend Complex Order rebates and fees in Section I, Part B of the Pricing Schedule are reasonable because the Exchange is proposing to only pay rebates in limited circumstances
The Exchange's proposal to amend the Complex Order rebates and fees in Section I, Part B of the Pricing Schedule are equitable and not unfairly discriminatory for the reasons which follow. The Exchange is proposing to eliminate the Complex Order Rebate for Adding Liquidity and the Rebate for Removing Liquidity because the Exchange is amending its Customer Rebate Program in Section A of the Pricing Schedule to include an opportunity to obtain greater rebates. The Exchange is proposing to adopt a Complex Order Fee for Adding Liquidity and assess all market participants, except Customers a fee of $0.10 per contract. The Exchange believes that uniformly assessing market participants, other than Customers, a $0.10 per contract Complex Order Fee for Adding Liquidity is equitable and not unfairly discriminatory. The Exchange proposes to no longer assess Customers Complex Order fees. Today, the Exchange does not assess a Customer Complex Order Fee for Removing Liquidity and would likewise assess no Customer Complex Order Fee for Adding Liquidity with this proposal. Customer order flow is assessed no fee because incentivizing members to continue to offer Customer trading opportunities in Complex Orders benefits all market participants through increased liquidity.
With respect to the Complex Order Fees for Removing Liquidity, as previously noted, the Exchange would continue to not assess a Customer a Complex Order Fee for Removing Liquidity. Today, Specialists, Market Makers, Firms, Broker-Dealers and Professionals all pay a $0.39 per contract Complex Order Fee for Removing Liquidity. The Exchange proposes to reduce the Specialist and Market Maker fee to $0.25 per contract and increase the Firm, Broker-Dealer and Professional fees to $0.50 per contract. The Exchange assesses Specialists and Market Maker lower fees as compared to other market participants, other than Customers, because Specialists and Market Makers have burdensome quoting obligations
The Exchange's proposal to amend the Pricing Schedule to change “Single contra-side” in Part B of Section II of the Pricing Schedule to “Simple” is reasonable, equitable and not unfairly discriminatory because it would further clarify the Pricing Schedule.
The Exchange's proposal to amend Part C of Section I of the Pricing Schedule to no longer pay rebates for Customer executions that occur as part of a Complex electronic auction, the opening process or a non-Complex auction is reasonable because the Exchange proposes to pay Customer rebates as proposed in Section A of the Pricing Schedule. Also, the Exchange has proposed a similar elimination of Customer rebates in Section I, Parts A and B of the Pricing Schedule. In addition, the Exchange's proposal to not assess any fees for transactions that occur as part of a Complex electronic auction, the opening process or a non-Complex electronic auction is reasonable because those transactions would not be subject to rebates. Today, the Exchange does not assess Customer fees on Complex electronic auctions, the opening process or non-Complex electronic auctions. The Exchange believes that it is reasonable to neither pay rebates nor assess fees on these types of transactions and market participants would continue to be incentivized to transact these types of orders on the Exchange.
The Exchange believes that its proposal to no longer pay rebates for Customer executions that occur as part of a Complex electronic auction, the opening process or a non-Complex auction and to no longer assess fees for transactions that occur as part of a Complex electronic auction, the opening process or a non-Complex electronic auction is equitable and not unfairly
The Exchange's proposal to collect Payment for Order Flow Fees on transactions in Select Symbols, except when a Specialist or Market Maker is assessed the Simple Order Fee for Removing Liquidity, is reasonable because it would attract additional Customer order flow to the Exchange because of the benefit that order flow providers would obtain from the Payment for Order Flow Program.
The Exchange's proposal to assess Specialists and Market Makers the Simple Order Fee for Adding Liquidity if contra to a Customer during the opening process is reasonable because the Exchange desires to incentivize Specialists and Market Makers to transact orders during the opening process by lowering costs when the Specialist or Market Maker trades against a Customer.
The Exchange's proposal to assess Specialists and Market Makers the Simple Order Fee for Adding Liquidity if contra to a Customer during the opening process is equitable and not unfairly discriminatory because Specialists and Market Makers serve an important role on the Exchange with regard to order interaction. The Exchange believes that incentivizing Specialists and Market Makers to transact a greater number of orders at the open by offering lower pricing would benefit all market participants through increased order interaction.
The Exchange's proposal to collect Payment for Order Flow Fees on transactions in Select Symbols, except when a Specialist or Market Maker is assessed the Simple Order Fee for Removing Liquidity is equitable and not unfairly discriminatory because the Exchange today collects assesses Specialists and Market Makers Payment for Order Flow Fees on all Multiply Listed Options except Select Symbols. The Exchange believes that not assessing Specialists and Market Makers Payment for Order Flow Fees when the Simple Order Fee for Removing Liquidity is assessed is equitable and not unfairly discriminatory because the Exchange does not desire to unfairly disadvantage Specialists and Market Makers by assessing them a $0.44 per contract Simple Order Fee for Removing Liquidity as well as a $0.25 per contract Payment for Order Flow fee. The Exchange believes that in this instance the fee would be much higher as compared to other market participants and does not proposes to assess the fee.
The Exchange's proposal to not assess PFOF on transactions which execute against an order for which the Exchange broadcast an order exposure alert in Penny Pilot Options is reasonable the Exchange believes that it would serve to incentivize Specialists and Market Makers to remove liquidity from the Phlx Book. The Exchange believes that the broadcast message, which alerts market participants to orders placed on the Phlx book combined with the opportunity to not be assessed PFOF in Penny Pilot Options would serve to incentivize participants to remove liquidity. The Exchange believes that all market participants would benefit from such an incentive which would lead to greater order interaction and may further reduce fees related to routing.
The Exchange's proposal to not assess PFOF on transactions which execute against an order for which the Exchange broadcast an order exposure alert in Penny Pilot Options is equitable and not unfairly discriminatory because the Exchange would not assess any Specialist or Market Maker such a PFOF fee regardless of whether or not that Specialist or Market Maker was aware of the alert at the time of execution.
The Exchange's proposal to amend Section IV of the Pricing Schedule at Part A to decrease the Threshold Volume from 275,000 to 100,000 contracts per day in a month is reasonable because the lower Threshold Volume should allow a greater number of market participants to obtain the requisite volume to be assessed the lower $0.05 per contract fee. The Exchange's proposal to amend Section IV of the Pricing Schedule at Part A to decrease the Threshold Volume from 275,000 to 100,000 contracts per day in a month is equitable and not unfairly discriminatory because it would be uniformly assessed on all market participants.
In addition, the Exchange's proposal to permit Phlx members and member organizations under common ownership
The Exchange's proposal to amend the PIXL pricing for order executions in Select Symbols by assessing a PIXL Order the Fee for Adding Liquidity in Section I and the Responder the $0.30 per contract fee unless the Responder is a Customer, in which case no fee is assessed, when a PIXL Order in a Select Symbol is contra to a PIXL Auction Responder is reasonable because the Exchange is proposing to only pay Rebates to Add Liquidity in Section I to Specialists and Market Makers in certain circumstances
The Exchange's proposal to amend the PIXL pricing for order executions in Select Symbols by assessing the Fee for Removing Liquidity not to exceed $0.30 per contract when the PIXL Order is contra to a resting order or quote that was on the PHLX book prior to the auction and assessing the resting order or quote the Fee for Adding Liquidity in Section I is reasonable because the Exchange has amended certain of its Fees for Removing Liquidity in Section I below $0.30 per contract and desires to assess the lower fee where applicable to market participants to further incentivize market participants to transact PIXL orders in Select Symbols. The Exchange's elimination of the Rebate to Add Liquidity with respect to PIXL Orders and the resting order or quote is reasonable because the Exchange is proposing to only pay Rebates to Add Liquidity in Section I to Specialists and Market Makers in certain circumstances
The Exchange's proposal to amend the PIXL Pricing by eliminating the Rebates to Add Liquidity in Select Symbols and assess the Fee for Removing Liquidity not to exceed $0.30 per contract is equitable and not unfairly discriminatory because the Exchange would uniformly apply the pricing to all market participants transacting PIXL orders. The Exchange's elimination of the Rebates for Adding Liquidity would impact Specialists and Market Makers because they are the only market participants entitled to rebates in certain circumstances in Section I. The Exchange believes this is equitable and not unfairly discriminatory because Specialists and Market Makers also benefit from being assessed the lower Fee for Removing Liquidity in Complex Orders as proposed herein, while other market participants are assessed $0.30 per contract. The Exchange assessed this lower fee because these market participants bear obligations not born by other market participants. The Exchange also believes that assessing the Fee for Removing Liquidity not to exceed $0.30 per contract specifically benefits Customers because they would not be assessed a fee pursuant to this proposal with respect to Simple Orders. Incentivizing Customer order flow benefits all market participants through increased liquidity.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive market, comprised of eleven exchanges, in which market participants can easily and readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or rebates to be inadequate. Accordingly, the fees that are assessed and the rebates paid by the Exchange described in the above proposal are influenced by these robust market forces and therefore must remain competitive with fees charged and rebates paid by other venues and therefore must continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than competing venues.
The Exchange believes that the Customer Rebate Program will encourage Customer order flow to be directed to the Exchange, which will benefit all market participants. The Exchange believes that not assessing Customers fees in Section I would also encourage market participants to direct Customer orders to the Exchange. The Exchange also believes that encouraging Specialists and Market Makers to remove liquidity from the book by incentivizing them with lower fees would benefit order interaction on the Exchange to the benefit of all market participants and therefore does not create a burden on competition. To the extent that the Exchange is increasing certain fees, those fees would permit the Exchange to offer the proposed Customer Rebate Program which benefits the market. Further, the fee increases impact all non-Customer members in a similar fashion and are comparable to fees assessed at other venues for transactions in similarly situated options. With respect to the Complex Order Fee for Removing Liquidity, the Exchange believes that the differential as between Specialists and Market Makers as compared to Firms, Broker-Dealers and Professionals must be considered in light of other fees which are applied to Specialists and Makers and are not assessed on Firms, Broker-Dealers and Professionals, such as the PFOF fee of $0.25 per contract. When this additional fee and other fees paid by Specialists and Market Makers are taken into consideration, the Exchange does not believe that the proposed increase to the Complex Order Fee for Removing Liquidity creates a burden on these market participants. Rather, the cost to transact orders for non-Customers become more closely aligned when the total costs is transacting a Complex Order is taken into account as Specialists and Market Makers are contra to a Customer in most cases. Additionally, a $0.25 per contract differential among non-Customers is not uncommon when competing for order flow. The Exchange notes that its floor fees for non-Customers in Multiply-Listed Options is $0.25 per contract, except for Firms which are not assessed a fee when facilitating a Customer order pursuant to Exchange Rule 1064. The Exchange believes that other pricing amendments impact all market participants alike as proposed. The Exchange believes that the proposed rule change will continue to promote competition on the Exchange.
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.
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–Phlx–2013–01 and should be submitted on or before February 13, 2013.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 26, 2012, Chicago Stock Exchange, Inc. (“Exchange” or “CHX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This order approves the proposed rule change, as modified by Amendment Nos. 1, 2, and 3 thereto, on an accelerated basis.
On March 30, 2011, to implement Section 10C of the Act, as added by Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”),
Rule 10C–1 requires, among other things, each exchange to adopt rules providing that each member of the compensation committee
In addition, Rule 10C–1 requires the listing rules of exchanges to mandate that compensation committees be given the authority to retain or obtain the advice of a compensation adviser, and have direct responsibility for the appointment, compensation and oversight of the work of any compensation adviser they retain.
To comply with Rule 10C–1, CHX proposes to amend three sections of its rules in Article 22 concerning corporate governance requirements for companies listed on the Exchange: Rule 2, “Admittance to Listing;” Rule 19(d), “Corporate Governance—Compensation Committee;” and Rule 19(p)(3), “Corporate Governance—Definitions—Independent Director.” In addition, CHX proposes to make some other changes to its rules regarding compensation committees. To accomplish these changes, the Exchange proposes to replace current Rules 19(d) and 19(p)(3) with new operative text that will be effective on July 1, 2013. Current Rules 19(d) and 19(p)(3), which would remain effective until June 30, 2013,
CHX proposes to clarify that the Exchange's Board of Governors may only admit securities for listing “once the requirements of this Article are met.”
CHX proposes to retain its existing requirement that each issuer must have a compensation committee, composed entirely of Independent Directors, as defined in current Rule 19(p)(3),
CHX also proposes that an issuer must adopt a formal written charter or board resolution related to the Compensation Committee.
As noted above, CHX's rules currently require each member of a listed company's Compensation Committee to be an Independent Director as defined in CHX Rule 19(p)(3).
With respect to the Fees Factor and the Affiliation Factor, CHX proposes to adopt a provision stating that the board of directors of the listed company would be required, in affirmatively determining the independence of any director who will serve on the Compensation Committee of the board, to consider all factors specifically relevant to determining whether a director has a relationship to the issuer which is material to that director's ability to be independent from management in connection with the duties of a Compensation Committee member, including, but not limited to the following factors: (i) The source of compensation of such director, including any consulting, advisory or other compensatory fee paid by the issuer to the director; and (ii) whether such director is affiliated with the issuer, a subsidiary of the issuer or an affiliate of a subsidiary of the issuer.
With respect to the Fees Factor, CHX also proposes additional guidance that the board, when considering the sources of a director's compensation, should consider whether the director receives compensation from any person or entity that would impair the director's ability to make independent judgments about the issuer's executive compensation.
With respect to the Affiliation Factor, CHX proposes, similarly, to provide additional guidance to provide that the board should consider whether an affiliate relationship places the director under the direct or indirect control of the listed company or its senior management, or creates a direct relationship between the director and members of senior management, “ * * * in each case of a nature that would impair her ability to make independent judgments about the issuer's executive compensation.”
Although Rule 10C–1 requires that exchanges consider “relevant factors” not limited to the Fees Factor and Affiliation Factor, CHX states that, after reviewing its current and proposed listing rules, it concluded not to propose any specific numerical tests with respect to the factors specified in proposed Rule 19(p)(3)(B) or to adopt a requirement to consider any other specific factors.
CHX proposes a cure period for a failure of a listed company to meet its Compensation Committee composition requirements for independence. Under the provision, if a member of an issuer's compensation committee or functional equivalent ceases to be an independent director for reasons outside the member's reasonable control, that member may remain a member of the compensation committee or functional equivalent until the earlier of the next annual shareholders meeting of the issuer or one year from the occurrence of the event that caused the member to no longer be an independent director.
CHX also proposes Rule 19(d)(5)(A)(i) to make an exception that allows a director who is not independent to be temporarily appointed to such a committee under exceptional and limited circumstances, as long as that director is not currently an officer, employee or family member of a current officer or employee. The exception applies, however, only if the committee is comprised of at least three members and the board determines that the individual's membership on the committee is required in the best interests of the company and its shareholders.
In its proposed rule change, CHX proposes to fulfill the requirements imposed by Rule 10C–1(b)(2)–(4) under the Act concerning compensation advisers by setting forth those requirements in its own rules and requiring these new rights and responsibilities to be included in the compensation committee's charter or board resolution.
Proposed Rule 19(d)(4)(E), as amended, also sets forth explicitly, in accordance with Rule 10C–1, that the Compensation Committee may select, or receive advice from, a compensation consultant, legal counsel or other adviser, other than in-house legal counsel, only after taking into consideration the following six factors set forth in Rule 10C–1 regarding independence assessments of compensation advisers.
The six factors, which are set forth in full in the proposed rule, are: (i) The provision of other services to the listed company by the person that employs the compensation consultant, legal counsel or other adviser; (ii) the amount of fees received from the issuer by the person that employs the compensation consultant, legal counsel or other adviser, as a percentage of the total revenue of the person that employs the compensation consultant, legal counsel or other adviser; (iii) the policies and procedures of the person that employs the compensation consultant, legal counsel or other adviser that are designed to prevent conflicts of interest; (iv) any business or personal relationship of the compensation consultant, legal counsel or other adviser with a member of the compensation committee; (v) any stock of the issuer owned by the compensation consultant, legal counsel or other adviser; and (vi) any business or personal relationship of the compensation consultant, legal counsel, other adviser or the person employing the adviser with an executive officer of the issuer.
As proposed, Rule 19(d)(4)(F) would not include any specific additional factors for consideration, as CHX stated that it believes that this list will require compensation committees and functional equivalents to consider a variety of factors that may bear upon the likelihood that a compensation adviser can provide independent advice to the Compensation Committee, but will not prohibit committees from choosing any particular adviser or type of adviser.
Proposed Rule 19(d)(4)(F), as modified by Amendment No. 3,
Proposed Rule 19(d)(4)(F), as modified by Amendment No. 3, also clarifies that nothing in the rule requires a compensation consultant, legal counsel or other compensation adviser to be independent, only that the Compensation Committee consider the enumerated independence factors before selecting or receiving advice from a compensation adviser.
Rule 10C–1 includes an exemption for smaller reporting companies from all the requirements included within the Rule.
CHX notes that, under current CHX rules, Smaller Reporting Companies are already subject to the general independence requirements for compensation committees, and as such, CHX believes that requiring such issuers to continue to comply with existing standards is not overly burdensome.
CHX proposes to exempt six categories of issuers from all of the compensation committee requirements of Rule 19(d).
Concerning foreign private issuers,
The proposed rule change, as amended, provides that certain of the new requirements for listed companies will be effective on July 1, 2013 and others will be effective after that date.
With respect to issuers listing securities on the Exchange in connection with an initial public offering, existing CHX Interpretation and Policy .05(3) provides that such issuers will be required to comply with the new governance standards for each applicable committee that the issuer establishes. Specifically, under the rule, the compensation committee for the issuer must have one independent member at the time of listing, a majority of independent members within 90 days of listing and all independent members within one year.
With respect to companies that transfer from other markets, existing CHX Interpretation and Policy .05(4) to Rule 19 provides that (1) any issuers transferring during another market's transition period to new governance standards will be allowed to comply with CHX's requirements within any transition period that has been provided by the other marketplace and (2) any issuer transferring from a market that does not have governance standards substantially similar to CHX shall have one year from the date of listing to be in compliance. CHX does not propose to change this rule, and so it will also apply to the newly adopted portions of Rules 19(d) and 19(p), described above.
CHX proposes to create a compliance schedule for companies that cease to be
After careful review, the Commission finds that the CHX proposal, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The development and enforcement of meaningful listing standards for a national securities exchange is of substantial importance to financial markets and the investing public. Meaningful listing standards are especially important given investor expectations regarding the nature of companies that have achieved an exchange listing for their securities. The corporate governance standards embodied in the listing rules of national securities exchanges, in particular, play an important role in assuring that companies listed for trading on the exchanges' markets observe good governance practices, including a reasoned, fair, and impartial approach for determining the compensation of corporate executives. The Commission believes that the CHX proposal will foster greater transparency, accountability, and objectivity in the oversight of compensation practices of listed issuers and in the decision-making processes of their compensation committees.
In enacting Section 10C of the Act as one of the reforms of the Dodd-Frank Act,
In response, CHX submitted the proposed rule change, which includes rules intended to comply with the requirements of Rule 10C–1 and additional provisions designed to strengthen the Exchange's listing standards relating to Compensation Committees. The Commission believes that the proposed rule change satisfies the mandate of Rule 10C–1 and otherwise will promote effective oversight of its listed issuers' executive compensation practices.
The Commission believes that the proposed rule change, as modified by Amendment Nos. 1, 2 and 3, appropriately revises CHX's rules for Compensation Committees of listed companies, for the following reasons:
The Commission believes that the clarification to the admittance to listing standards, which makes explicit the fact that the Exchange's Board of Governors may only admit securities for listing once the requirements of Article 22, which contains the Exchange's listing standards, are met, is reasonable and consistent with the Act. The Commission agrees with CHX that the modification largely adopts much of current Rule 2, while only clarifying an existing fact with respect to listing securities on CHX.
As discussed above, under Rule 10C–1, the exchanges must adopt listing standards that require each member of a compensation committee to be independent, and to develop a definition of independence after considering, among other relevant factors, the source of compensation of a director, including any consulting, advisory or other compensatory fee paid by the issuer to the director, as well as whether the director is affiliated with the issuer or any of its subsidiaries or their affiliates.
The Commission notes that Rule 10C–1 leaves it to each exchange to formulate a final definition of independence for these purposes, subject to review and final Commission approval pursuant to Section 19(b) of the Act. As the Commission stated in the Rule 10C–1 Adopting Release, “given the wide variety of issuers that are listed on exchanges, we believe that the exchanges should be provided with flexibility to develop independence requirements appropriate for the issuers listed on each exchange and consistent with the requirements of the independence standards set forth in Rule 10C–1(b)(1).”
As noted above, CHX proposes to maintain its requirements that an issuer have a compensation committee, composed entirely of independent directors, as defined in current Rule 19(p)(3), to oversee executive compensation, or in the alternate, a majority of the independent directors providing such oversight.
In addition to retaining its existing independence standards that currently apply to board and Compensation Committee members, which include certain bright-line tests,
Further, as discussed in more detail below, the CHX proposal adopts the requirement that the Compensation Committee have a written charter or board resolution that addresses the committee's purpose and responsibilities, and adds requirements to specify the compensation committee's authority and responsibilities as to compensation advisers as set forth under Rule 10C–1. Taken as a whole, the Commission believes that these changes will strengthen the oversight of executive compensation in CHX-listed companies and further greater accountability, and will therefore further the protection of investors consistent with Section 6(b)(5) of the Act.
The Commission believes that the Exchange's proposal, which requires the consideration of the additional independence factors for Compensation Committee members, is designed to protect investors and the public interest and is consistent with the requirements of Sections 6(b)(5) and 10C of the Act and Rule 10C–1 thereunder.
With respect to the Fees Factor of Rule 10C–1, the Exchange rules state when considering the source of a director's compensation in determining independence for Compensation Committee service, the board should consider whether the director receives compensation from any person or entity that would impair his ability to make independent judgments about the listed company's executive compensation. In addition to the continued application of the CHX's current independence standards and bright-line tests, CHX's new rules also require the board to consider all relevant factors in making independence determinations for Compensation Committee membership. The Exchange believes that these requirements of proposed Article 19(p)(3)(B) of the Exchange's Rules, in addition to the general director independence requirements, represent an appropriate standard for Compensation Committee independence that is consistent with the requirements of Rule 10C–1 and the Fees Factor.
The Commission believes that the provisions noted above to address the Fees Factor give a board broad flexibility to consider a wide variety of fees, including any consulting, advisory or other compensatory fee paid by the issuer or entity, when considering a director's independence for compensation committee service. While the Exchange does not bar all compensatory fees, the approach is consistent with Rule 10C–1 and provides a basis for a board to prohibit a director from being a member of the Compensation Committee, should the director receive compensation that impairs the ability to make independent decisions on executive compensation matters, even if that compensation does not exceed the threshold in the bright-line test.
With respect to the Affiliation Factor of Rule 10C–1, CHX has concluded that an outright bar from service on a company's Compensation Committee of any director with an affiliation with the company, its subsidiaries, and their affiliates is inappropriate for compensation committees. Under CHX's rules, it may be appropriate for certain affiliates, such as representatives of significant stockholders, to serve on Compensation Committees. The Exchange has provided guidance that the board should consider whether an affiliate relationship places the director under the direct or indirect control of the listed company or its senior management, “in each case of a nature that would impair her ability to make independent judgments about the issuer's executive compensation.”
The Commission notes that Congress, in requiring the Commission to direct the exchanges to consider the Affiliation Factor, did not declare that an absolute bar was necessary. Moreover, as the Commission stated in the Rule 10C–1 Adopting Release, “In establishing their independence requirements, the exchanges may determine that, even though affiliated directors are not allowed to serve on audit committees, such a blanket prohibition would be inappropriate for compensation committees, and certain affiliates, such as representatives of significant shareholders, should be permitted to serve.”
As to whether CHX should adopt any additional relevant independence factors, the Exchange stated that it reviewed its rules in light of Rule 10C–1, and concluded that its existing rules together with its proposed rules are sufficiently broad to encompass the types of relationships which would generally be material to a director's independence for Compensation Committee service. The Commission believes that, through this review, the Exchange has complied with the requirement that it consider relevant factors, including, but not limited to, the Fees and Affiliation Factors in determining its definition of independence for Compensation Committee members. The Commission notes that Rule 10C–1 requires each exchange to consider relevant factors in determining independence requirements for members of a compensation committee, but does not require the exchange's proposal to reflect any such additional factors.
CHX also proposes that the “Exceptional and Limited Circumstances” provision in its current rules, which allows one director who fails to meet the Exchange's Independent Director definition to serve on a compensation committee under certain conditions, apply to the enhanced independence standards discussed above that the Exchange is adopting to comply with Rule 10C–1. The Commission believes that the discretion granted to each exchange by Rule 10C–1, generally, to determine the independence standards it adopts to comply with the Rule includes the leeway to carve out exceptions to those standards, as long as they are consistent with the Act.
Regarding the justification for such an exception, the Commission notes that it long ago approved as consistent with the Act the same exception and concept in the context of CHX's current rules with respect to compensation committees, as well as for nominations committees and audit committees.
In summary, the Commission believes the flexibility provided in CHX's new Compensation Committee independence standards provides companies with guidance, while allowing them to identify those relationships that might raise questions of independence for service on the compensation committee. It provides further flexibility for companies in circumstances where one member of the committee ceases to meet the independence requirements, under specified conditions, for reasons outside the member's reasonable control. For these reasons, we believe the independence standards are consistent with the investor protection provision of Section 6(b)(5) of the Act.
As discussed above, CHX proposes to set forth explicitly in its rules the requirements of Rule 10C–1 regarding a compensation committee's authority to retain compensation advisers, its responsibilities with respect to such advisers, and the listed company's obligation to provide appropriate funding for payment of reasonable compensation to a compensation adviser retained by the committee. As such, the Commission believes these provisions meet the mandate of Rule 10C–1
In addition, the Commission believes that requiring companies to specify the enhanced compensation committee responsibilities through the Compensation Committee's written charter or board resolution will help to assure that there is adequate transparency as to the rights and responsibilities of compensation committee members. As discussed above, the proposed rule change requires the Compensation Committee of a listed company to consider the six factors relating to independence that are enumerated in the proposal before selecting a compensation consultant, legal counsel or other adviser to the Compensation Committee. The Commission believes that this provision is consistent with Rule 10C–1 and Section 6(b)(5) of the Act.
In approving this aspect of the proposal, the Commission notes that compliance with the rule requires an independence assessment of any compensation consultant, legal counsel, or other adviser that provides advice to the Compensation Committee, and is not limited to advice concerning executive compensation. However, CHX has proposed, in Amendment No. 3, to add language to the provision regarding the independence assessment of compensation advisers
The Commission views CHX's proposed exception as reasonable, as the Commission determined, when adopting the compensation consultant disclosure requirements in Item 407(e)(3)(iii), that the two excepted categories of advice do not raise conflict of interest concerns.
Regarding the independence assessment requirement, the Commission notes that, as already discussed, nothing in the proposed rule prevents a compensation committee from selecting any adviser that it prefers, including ones that are not independent, after considering the six factors. In this regard, in Amendment No. 3, CHX added specific rule language stating, among other things, that nothing in its rule requires a compensation adviser to be independent, only that the compensation committee must consider the six independence factors before selecting or receiving advice from a compensation adviser.
Finally, one commenter on the New York Stock Exchange LLC's proposal requested guidance “on how often the required independence assessment should occur.”
The changes to CHX's rules on compensation advisers should therefore benefit investors in CHX-listed companies and are consistent with the requirements in Section 6(b)(5) of the Act that rules of the exchange further investor protection and the public interest.
The Commission believes that the requirement for Smaller Reporting Companies, like all other CHX-listed companies, to have a compensation committee, composed solely of independent directors or to otherwise have compensation determined by a majority of the independent directors, is reasonable and consistent with the protection of investors. The Commission notes that CHX's rules for Compensation Committees have not made a distinction for Smaller Reporting Companies in the past. However, consistent with the exemption of Smaller Reporting Companies from Rule 10C–1, the Exchange has decided not to require Smaller Reporting Companies to meet its proposed new independence requirements as to compensatory fees and affiliation as well as the requirements concerning compensation advisers.
The Commission believes that these provisions are consistent with the Act and do not unfairly discriminate between issuers. The Commission believes that, for similar reasons to those for which Smaller Reporting Companies are exempted from the Rule 10C–1 requirements, it makes sense for CHX to provide some flexibility to Smaller Reporting Companies. Further, in view of the potential additional costs, it is reasonable not to require a Smaller Reporting Company to comply with these additional requirements.
Rule 10C–1 requires the rules of an exchange to provide for appropriate procedures for a listed issuer to have a reasonable opportunity to cure any defects that would be the basis for the exchange, under Rule 10C–1, to prohibit the issuer's listing. Rule 10C–1 also specifies that, with respect to the independence standards adopted in accordance with the requirements of the Rule, an exchange may provide a cure period until the earlier of the next annual shareholders meeting of the listed issuer or one year from the occurrence of the event that caused the member to be no longer independent.
The Commission notes that the cure period that CHX proposes for companies that fail to comply with the enhanced independence requirements designed to comply with Rule 10C–1 is the same as the cure period suggested under Rule 10C–1. The Commission believes that providing this cure provision as an option for independent directors who cease to be independent for reasons outside their control is fair and reasonable and consistent with investor protection under Rule 6(b)(5). In addition, CHX's general rules include delisting procedures that provide issuers with notice, opportunity for a hearing, opportunity for appeals, and an opportunity to cure defects before an issuer's securities are delisted.
The Commission believes that these general procedures for companies out of compliance with listing requirements, in addition to the particular cure provisions for compensation committees failing to meet the new independence standards, adequately meet the mandate of Rule 10C–1 and also are consistent with investor protection and the public interest since they give a company a reasonable time period to cure non-compliance with these important requirements before they will be delisted.
The Commission believes that it is appropriate for CHX to exempt from the new requirements established by the proposed rule change the same categories of issuers that are exempt from its existing standards for oversight of executive compensation for listed companies. Although Rule 10C–1 does not explicitly exempt some of these categories of issuers from its requirements, it does grant discretion to exchanges to provide additional exemptions. CHX states that the reasons it adopted the existing exemptions apply equally to the new requirements, and the Commission believes that this assertion is reasonable.
CHX proposes to exempt limited partnerships, companies in bankruptcy, and open-end investment management companies registered under the Investment Company Act from all of the requirements of Rule 10C–1. The Commission believes such exemptions are reasonable, and notes that such entities, which were already generally exempt from CHX's existing compensation committee requirements, also are exempt from the compensation committee independence requirements specifically under Rule 10C–1. CHX also proposes to exempt closed-end management investment companies registered under the Investment Company Act from the requirements of Rule 10C–1. The Commission believes that this exemption is reasonable because the Investment Company Act already assigns important duties of investment company governance, such as approval of the investment advisory contract, to independent directors, and because such entities were already generally exempt from CHX's existing compensation committee requirements.
The Commission further believes that other proposed exemption provisions
The CHX proposal would continue to permit foreign private issuers to follow home country practice in lieu of the provisions of the new rules, but would now require further disclosure from such entities regarding the reason why they do not have an independent compensation committee. The Commission believes that granting exemptions to foreign private issuers in deference to their home country practices with respect to compensation committee practices is appropriate, and believes that the existing and proposed disclosure requirements will help investors determine whether they are satisfied with the alternative standard. The Commission also notes that CHX's proposal conforms its rules to Rule 10C–1, which exempts foreign private issuers from the compensation committee independence requirements of Rule 10C–1 to the extent such entities disclose in their annual reports the reasons they do not have independent compensation committees.
The Commission believes that the deadlines for compliance with the proposal's various provisions, as amended, are reasonable and should afford listed companies adequate time to make the changes, if any, necessary to meet the new standards. The Commission believes that the July 1, 2013 deadline proposed is clear-cut and matches the deadline set forth by NYSE and The NASDAQ Stock Market, as revised.
The Commission believes that it is reasonable for CHX to allow, with respect to companies listing in connection with an initial public offering and companies transferring from other markets, the same phase-in schedule for compliance with the new requirements as is permitted under its current compensation related rules.
The Commission also believes that the compliance schedule for companies that cease to be Smaller Reporting Companies, as revised in Amendment No. 2, is adequate time to come into compliance with the rules that apply to other companies.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
The change made to the proposal by Amendment No. 3 to remove a proposed amendment to Rule 4 is not substantive, as Rule 4's listing standards will now not be changed. For the same reason, the removal of the proposed general exemption for clearing agencies clearing futures or options from the rule is not a substantive change.
The additional language in Amendment No. 3 to exclude advisers that provide only certain types of services from the independence assessment is also appropriate. As discussed above, the Commission has already determined to exclude such advisers from the disclosure requirement regarding compensation advisers in Regulation S–K because these types of services do not raise conflict of interest concerns. Similarly, the addition of further guidance by Amendment No. 3 merely clarifies that the same exception applies for in-house legal counsel, and is not a substantive changes, as it was the intent of the rule as originally proposed.
Next, the addition of further guidance by Amendment No. 3 merely clarifies that nothing in the Exchange's rules require a compensation adviser to be independent, only that the compensation committee consider the independence factors before selecting or receiving advice from a compensation adviser, and that is not a substantive change, as it was also the intent of the rule as originally proposed.
Finally, the change made by Amendment No. 3 to require companies currently listed on CHX to comply with the majority of the new rules by July 1, 2013, rather than immediately, as originally proposed, reasonably affords companies more time to take the steps necessary for compliance. The change to require such companies to comply with the charter and compensation adviser consideration provisions by July 1, 2013, rather than, as originally proposed, the earlier of their first annual meeting after January 15, 2014, or October 31, 2014, still allows ample time for companies to adjust to the new rules, and accords with the deadline set by NYSE and Nasdaq in their proposals to comply with Rule 10C–1.
Similarly, the conforming insertion of the current rule language as a sunset provision merely makes clear what issuers will be required to comply with prior to the effectiveness of the new rule text.
For all the reasons discussed above, the Commission finds good cause to accelerate approval of the proposed changes made by Amendment No. 3.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing and whether Amendment No. 3 is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
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 (
In summary, and for the reasons discussed in more detail above, the Commission believes that the rules being adopted by CHX, taken as whole, should benefit investors by helping listed companies make informed decisions regarding the amount and form of executive compensation. CHX's new rules will help to meet Congress's intent that compensation committees that are responsible for setting compensation policy for executives of listed companies consist only of independent directors.
CHX's rules also, consistent with Rule 10C–1, require compensation committees of listed companies to assess the independence of compensation advisers, taking into consideration six specified factors. This should help to assure that compensation committees of CHX-listed companies are better informed about potential conflicts when selecting and receiving advice from advisers. Similarly, the provisions of CHX's standards that require compensation committees to be given the authority to engage and oversee compensation advisers, and require the listed company to provide for appropriate funding to compensate such advisers, should help to support the compensation committee's role to oversee executive compensation and help provide compensation committees with the resources necessary to make better informed compensation decisions.
For the foregoing reasons, the Commission finds that the proposed rule change, SR–CHX–2012–13, as amended, is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with Section 6(b)(5) of the Exchange Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend the fee schedule applicable to Members
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.
The Exchange proposes to modify its fee schedule effective January 2, 2013,
The Exchange currently provides a rebate of $0.0002 per share for orders that remove liquidity from the Exchange. The Exchange proposes to introduce a tiered pricing structure for executions that remove liquidity. Under the proposed tiered pricing structure, a Member must add a daily average of at least 50,000 shares of liquidity on BYX Exchange in order to receive this rebate. As with its other current tiered pricing, the daily average in order to receive the liquidity removal rebate will be calculated based on a Member's activity in the month for which the rebates would apply. For Members that do not reach the tier to receive the liquidity removal rebate, the Exchange proposes to eliminate the rebate. The Exchange does not, however, propose to charge such Members, but rather, will provide such executions free of charge.
Consistent with the current fee structure, the fee structure for executions that remove liquidity from the Exchange described above will not apply to executions that remove liquidity in securities priced under $1.00 per share. The fee for such executions will remain at 0.10% of the total dollar value of the execution. Similarly, as is currently the case for adding liquidity to the Exchange, there will be no liquidity rebate for adding liquidity in securities priced under $1.00 per share.
In connection with the proposed change to the Exchange's fees to remove liquidity, the Exchange proposes to modify a footnote on its fee schedule related to its Retail Price Improvement (“RPI”) program, which references the current standard liquidity removal rebate of $0.0002 per share. This footnote was intended to make clear that applicable removal fees, and not specific RPI pricing, would apply to certain executions (Type 2 Retail Orders) that remove displayed liquidity. The Exchange proposes to modify this footnote to simply reference the applicable standard rebate or fee to access liquidity in order to remove the necessity to update the footnote any time that pricing applicable to removing displayed liquidity changes. Under the proposed pricing structure, a Member that qualifies for the $0.0002 per share liquidity removal rebate would receive such rebate for any Type 2 Retail Order that removes displayed liquidity, and a Member that does not qualify for the liquidity removal rebate would not receive such rebate but would instead receive the execution of a Type 2 Retail Order that removes displayed liquidity free of charge.
The Exchange currently maintains a tiered pricing structure for adding displayed liquidity in securities priced $1.00 and above that allows Members to add liquidity at a reduced fee to the extent such liquidity sets the national best bid or offer (the “NBBO Setter Program”). The NBBO Setter Program is applicable to a Member's orders so long as the Member submitting the order achieves the applicable average daily volume (“ADV”) requirement of at least 0.1% of the total consolidated volume (“TCV”) during the month. Members that qualify for the NBBO Setter Program are charged a fee of $0.0002 per share for executions resulting from orders that add liquidity to the BYX Exchange order book and set the NBBO. All other executions resulting from liquidity added by any Member are currently subject to a fee of $0.0003 per share.
The Exchange proposes to increase the ADV requirement for the NBBO Setter Program to a requirement that a Member maintain ADV on the Exchange of at least 0.5% of the total TCV during the month in order to receive the reduced fee of $0.0002 per share on orders that set the NBBO.
The Exchange also proposes to add tiered pricing for executions of orders that add liquidity but do not set a new NBBO. The Exchange proposes to use the same criteria, specifically, that a Member maintains ADV on the Exchange of at least 0.5% of the total TCV during the month, in order for a Member to receive a reduced fee on executions of orders that add liquidity but do not set the NBBO. The Exchange proposes to charge a reduced fee of $0.00025 per share to Members that qualify based on their ADV on the Exchange, which is a slight reduction from the current standard fee to add liquidity of $0.0003 per share.
Lastly, the Exchange proposes to charge Members that do not qualify for a reduced fee based on their volume on the Exchange a fee of $0.0005 per share for executions resulting from orders that add liquidity to the Exchange, which is an increase from the current standard fee to add liquidity of $0.0003 per share.
The Exchange does not propose to modify its existing definitions of ADV or TCV in connection with the changes described above. The Exchange notes that, in contrast to the tiered pricing structure for removing liquidity, described above, which only takes into account a Member's liquidity adding activity, the definition of ADV used for the NBBO Setter Program and the proposed tiered pricing structure for other executions that add liquidity includes both a Member's liquidity adding and removing activity.
The Exchange proposes to modify the fee charged by the Exchange for its CYCLE, RECYCLE, Parallel D and Parallel 2D routing strategies from $0.0028 per share to $0.0029 per share. To be consistent with this change, the Exchange proposes to charge 0.29%, rather than 0.28%, of the total dollar value of the execution for any security priced under $1.00 per share that is routed away from the Exchange through these strategies.
Finally, the Exchange proposes to modify pricing for its SLIM
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
The changes to Exchange execution fees and rebates proposed by this filing are intended to attract order flow to the Exchange by continuing to offer competitive pricing while also allowing the Exchange to continue to offer incentives to providing aggressively priced displayed liquidity. While many Members that remove liquidity from the Exchange, add liquidity to the Exchange and/or route orders through the Exchange's routing strategies will be paying higher fees or receiving lower rebates due to the proposal, the increased revenue received by the Exchange will be used to continue to fund programs that the Exchange believes will attract additional liquidity and thus improve the depth of liquidity available on the Exchange.
With respect to the proposed tiered pricing structure for removing liquidity from the Exchange, the Exchange believes that its proposal is reasonable because it will allow Members that achieve a relatively low threshold of added liquidity, and thus who contribute to the depth of liquidity generally available on the Exchange, to continue to receive the current rebate. Although Members that do not achieve the volume threshold will no longer receive the rebate to remove liquidity, the Exchange believes that its proposal is reasonable because such Members will not be charged a fee to remove liquidity but will receive such executions free of charge. Volume-based tiers such as the liquidity removal tier proposed by the Exchange have been widely adopted in the equities markets, and are equitable and not unfairly discriminatory because they are open to all members on an equal basis and provide rebates that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and introduction of higher volumes of orders into the price and volume discovery process. Accordingly, the Exchange believes that the proposal is equitably allocated and not unfairly discriminatory because it is consistent with the overall goals of enhancing market quality.
The Exchange believes that its proposal to modify the footnote related to the RPI program is reasonable, equitably allocated and not unfairly discriminatory because this change merely achieves the goal of the existing language by making clear that standard pricing to remove liquidity, whatever that pricing may be, will be applied to Type 2 Retail Orders that remove displayed liquidity, and that RPI program pricing does not apply.
With respect to the Exchange's proposal to increase the threshold necessary to participate in the NBBO Setter Program, the Exchange believes that its proposal is reasonable because the tier is intended to incentivize Members to maintain or increase their participation on the Exchange. As noted above, volume-based tiers such as the threshold necessary to qualify for the NBBO Setter Program and the reduced fee to add liquidity are equitable and not unfairly discriminatory because they are open to all members on an equal basis and provide rebates that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and introduction of higher volumes of orders into the price and volume discovery process.
With respect to the fee tier for qualifying Members that add liquidity but do not set the NBBO and the higher fee for Members that do not qualify for such tier, the Exchange believes that the proposed fees are reasonable as both fees are still comparable to other market centers that charge to add displayed liquidity. The Exchange notes that at least one market center charges a higher fee to add displayed liquidity.
The Exchange believes that its increase to the standard routing fee is reasonable in that it will align the Exchange's standard routing fee with that charged by the Exchange's affiliate, BZX, and is consistent with routing fees charged with others for routing services. The proposed increase is also equitable and non-discriminatory in that it will be increased equally for all Members. The Exchange also notes that it operates in a highly competitive market in which market participants can readily choose amongst market participants that provide routing services, and believes that market participants will simply not use the Exchange for routing services if they deem the fee levels set to be excessive.
Finally, the Exchange believes that the proposed changes to the Exchange's SLIM routing strategy is reasonable, equitable and non-discriminatory in that it is proposed in order to account for certain increased costs to the Exchange in providing routing services, the fee will be increased equally for all Members, and the SLIM routing strategy is a completely optional routing service that Members must affirmatively choose to use. The Exchange also notes that the increased fee is still lower than its standard routing fee, thus providing savings to Members that prefer to include access fee cost savings as a factor in their routing determinations.
Because the market for order execution is extremely competitive, Members may choose to preference other market centers ahead of the Exchange if they believe that they can receive better fees or rebates elsewhere. Similarly, because the market for order routing services is also competitive, Members may readily opt to disfavor the Exchange's routing services if they believe that alternatives offer them better value. Because certain of the proposed changes are intended to provide incentives to Members that will result in increased activity on the Exchange, such changes are necessarily competitive. However, 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, as amended. The Exchange does not believe that any of the changes represent a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors.
No written comments were solicited or received.
Pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 2, 2012, The NASDAQ Stock Market LLC (“NASDAQ” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend NASDAQ Rule 4751(f)(4) to establish INAV Pegged Orders that would be available only for U.S. Component Stock ETFs. The INAV Pegged Order type would be available for all U.S. Component Stock ETFs where there is dynamic INAV data. The INAV Pegged Order would be priced relative to the INAV of the fund's underlying portfolio. According to the Exchange, the INAV is intended to approximate the fair value of the securities held in the portfolio by an ETF,
Generally, Pegged Orders are orders that, once entered, adjust in price automatically in response to changes in factors, such as the national best bid or offer, depending upon the type of Pegged Order. An INAV Pegged Order would specify that its price will equal (or, to the extent an offset is used, be offset from) the prevailing INAV for the relevant ETF. As the INAV changes, the INAV Pegged Orders would change therewith. In the event that the INAV data feed for a particular ETF were to be compromised or temporarily stopped being disseminated, the use of the INAV Pegged Order type for that ETF would be suspended (
A Pegged Order may have a limit price beyond which the order shall not be executed. In addition, certain Pegged Orders (Primary Peg and Market Peg Orders) may establish their pricing relative to the appropriate bids or offers by selecting one or more offset amounts that will adjust the price of the order by the offset amount selected. The Exchange proposes to similarly introduce this functionality for the INAV Pegged Order type. Moreover, similar to other Pegged Orders (other than a Midpoint Peg Order), the Exchange proposes that an INAV Pegged Order may be either displayed or non-displayed. If a market participant utilizes the non-displayed order type, its order will be placed lower in the priority queue than displayed orders within each price point.
The Exchange provides the following examples to illustrate how the INAV Pegged Order type would operate (note that the price of the order updates in response to changes in the INAV):
• The best bid is $20.00 and the best offer is $20.06 at 10:00:00 a.m. INAV is updated and published as $20.03 at 10:00:02.
• An INAV Peg Order to buy entered at 10:00:04 would be priced at $20.03.
• The best bid would update to $20.03 (at approximately 10:00:04).
• The best offer would remain at $20.06.
• The best bid is $20.00 and the best offer is $20.06 at 10:00:00. INAV is updated and published as $19.98 at 10:00:02.
• An INAV Peg Order to sell entered at 10:00:04 would be priced at $19.98 and subsequently execute at $20.00 (at approximately 10:00:04).
• The best bid is $20.00 and the best offer is $20.10 at 10:00:00 a.m. INAV is updated and published as $20.03 at 10:00:02.
• An INAV Peg Order to buy with a +.03 offset entered at 10:00:04 would be priced at $20.06 ($20.03 +.03) (at approximately 10:00:04).
• The best bid would update to $20.06 (approximately 10:00:04).
• The best offer would remain at $20.10.
The Commission received one comment letter on the proposed rule change.
First, the commenter states that its members have questioned the purpose and benefit to market participants of an order type pegged to INAV.
In response to these comments, the Exchange states its belief that fair price executions are currently available for the highest volume, most liquid domestic equity products, but not necessarily for the majority of products which are less actively traded.
The commenter states that its members are concerned about the utility of INAV as a reference point for pricing an ETF order because market participants may misunderstand INAV.
In response, the Exchange states its belief that for domestic equity products the INAV is a good representation of fair value and the only representation of fair value currently available for individual investors.
The commenter also is concerned that some market participants may not understand that INAV can be an inaccurate reflection of an ETF's market value because it can become stale over the course of 15 seconds.
In response, the Exchange states that the INAV Pegged Order type should lead to a greater level of transparency as it relates to the ETF's current value and, as a result, should increase investor confidence.
Further, the commenter also is concerned that investors do not understand that INAV calculations are based on the ETF's creation basket, which in some cases does not include all of the securities in a fund's portfolio.
The commenter also is concerned about the susceptibility of INAV to error.
In its Response Letter, the Exchange agrees with the commenter that an erroneous INAV could be disseminated by a calculation agent.
The commenter raises a number of questions and requests clarifications relating to how the INAV Pegged Order would operate. First, the commenter states that far more specificity is necessary to explain how the Exchange would suspend the use of and cancel existing INAV Pegged Orders for an ETF where the INAV data feed for such ETF stops being disseminated or is
In response to these comments, the Exchange clarifies in its Response Letter that it would only suspend use of the INAV Pegged Order type if it were to detect a technological problem with the relevant INAV data feed.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
As discussed above, the Exchange's proposal would amend NASDAQ Rule 4751(f)(4) to adopt a new INAV Pegged Order type for U.S. Component Stock ETFs. Pursuant to the proposal, an INAV Pegged Order would specify that its price will equal (or, to the extent an offset is used, be offset from) the prevailing INAV for the relevant U.S. Component Stock ETF. Once entered, the INAV Pegged Order would adjust in price automatically in response to changes in the INAV. In the event that the INAV data feed for a particular ETF were to be compromised or temporarily stopped being disseminated, the use of the INAV Pegged Order type for that ETF would be suspended until such time as the Exchange was confident that the integrity of the INAV data feed had been restored (
The Commission solicits comment on whether the proposal is consistent with the Act and whether the Exchange has met its burden in presenting a statutory analysis of how its proposal is consistent with the Act. In particular, the grounds for disapproval under consideration include whether the Exchange's proposal is consistent with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest.
In its Response Letter, NASDAQ argues that for U.S. Component Stock ETFs, the published INAV represents the closest and most up-to-date calculation of underlying value currently generally available, and is a
After careful consideration, the Commission believes that the proposal continues to raise a number of questions, including those submitted by the commenter, as to whether the use of the proposed INAV Pegged Order type is consistent with the protection of investors and the public interest and whether it is designed to promote just and equitable principles of trade and prevent fraudulent and manipulative acts and practices. The Commission continues to evaluate the issues presented by the proposal and the specific concerns articulated by the commenter, and the Exchange's response.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the concerns identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5)
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by February 13, 2013. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by February 27, 2013.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, including those contained in the Response Letter, and the statements of the commenter in response to the proposal, in addition to any other comments they may wish to submit about the proposed rule change. In particular, the Commission seeks comment on the following:
1. The commenter states that market participants may misunderstand INAV as being the “fair value” estimate of the securities underlying the ETF.
2. The commenter further states that the INAV calculations are based on the ETF's creation basket, which in some cases do not represent all of the securities in a fund's portfolio; rather, the INAV would reflect baskets that mimic the market characteristics of the full portfolio.
3. The commenter states that market participants may not understand that the INAV can be an inaccurate reflection of an ETF's up-to-date market value. As noted, the published INAV of an ETF generally is updated every 15 seconds, but the actual INAV of an ETF could change significantly during this same 15-second period.
In response, the Exchange states its belief that, although the INAV is only updated every 15 seconds, it is still of value and beneficial to investors as the execution will still be benchmarked against the prevailing published INAV.
Do commenters agree with the concerns expressed by the commenter? If so, why? If not, why not? For instance, do commenters believe that the tying of the execution of an INAV Pegged Order to the published INAV, which is updated every 15 seconds, could potentially result in market participants' INAV Pegged Orders being executed at prices that do not reflect an up-to-date INAV for the ETF? Are commenters concerned that investors who may use the INAV Pegged Order type may not understand this operational aspect of the order type?
4. The Exchange states that the INAV Pegged Order type should lead to a greater level of transparency as it relates to the ETF's current value and, as a
5. The commenter states that the calculation of INAV may be susceptible to errors, based on, for example, inaccurate reporting of ETF baskets, faulty data from pricing vendors, or errors in the calculation process.
In its Response Letter, the Exchange states its belief that the risk of a poor execution due to an erroneous INAV is mitigated by existing general safeguards in the marketplace.
The Commission notes that the INAV is not a regulated measurement or calculation and is not audited by the Commission or any other regulatory or self-regulatory entity. Thus, it is unclear what party would be responsible for the integrity and accuracy of the INAV. Do commenters believe that a lack of accountability with respect to those parties responsible for the calculation of INAV could undermine the purpose, design and operation of the INAV Pegged Order? If not, why not?
6. In addition, the Commission questions whether this proposed order type could inherently be negatively biased in that INAV Pegged Orders likely would be executed when the market is moving against the investor (for example, an investor's INAV Pegged Order to buy would be executed only when the market price of an ETF is falling). Do commenters agree that the INAV Pegged Order type could be inherently biased to the detriment of the investor? If not, why not? In its Response Letter, the Exchange states that an execution pursuant to an INAV Pegged Order would only ever occur within the prevailing bid-offer spread.
7. The commenter requests more specificity as to how the Exchange would suspend the use of and cancel existing INAV Pegged Orders for an ETF where the INAV data feed for such ETF stops being disseminated or is “compromised.”
8. The commenter questions the general purpose and benefit of an INAV Pegged Order to market participants.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 27, 2012, NYSE Arca, Inc. (“Exchange” or “NYSE Arca”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the Shares of the Fund under Commentary .01 to NYSE Arca Equities Rule 5.2(j)(3), which governs the listing and trading of Investment Company Units. The Shares will be issued by the ALPS ETF Trust (“Trust”).
The Bank of New York Mellon (“BNY”) will serve as custodian, fund accounting agent, and transfer agent for the Fund. ALPS Distributors, Inc. will be the Fund's distributor (“Distributor”). NYSE Arca will be the “Index Provider” for the Fund. NYSE Arca is not affiliated with the Trust, the Adviser, the Sub-Adviser, or the Distributor. NYSE Arca is affiliated with a broker-dealer and will implement a fire wall and maintain procedures designed to prevent the use and dissemination of material, non-public information regarding the Index.
The Fund will seek investment results that correspond generally to the performance, before the Fund's fees and expenses, of the NYSE Arca U.S. Equity High Volatility Put Write Index (“Index”). The Index measures the return of a hypothetical portfolio consisting of U.S. exchange traded put options which have been sold on each of 20 stocks and a cash position calculated as described below. The 20 stocks on which options are sold (“written”) are those 20 stocks from a selection of the largest capitalized (over $5 billion in market capitalization) stocks which also have listed options and which have the highest volatility, as determined by the Index Provider. The Sub-Adviser will seek a correlation over time of 0.95 or better between the Fund's performance and the performance of the Index. A figure of 1.00 would represent perfect correlation.
The Exchange submitted this proposed rule change because the Index for the Fund does not meet all of the “generic” listing requirements of Commentary .01(a)(A) to NYSE Arca Equities Rule 5.2(j)(3) applicable to the listing of Investment Company Units based upon an index of “US Component Stocks.”
The Index consists of at least 20 exchange-listed put options (“Index Components”), selected in accordance with NYSE Arca's rules-based methodology for the Index. In selecting the stocks underlying the Index Components, the Index Provider begins with the universe of all U.S. exchange-listed stocks, and then screens for those stocks that meet the following criteria: (1) Minimum market capitalization of at least $5 billion; (2) minimum trading volume of at least 50 million shares during the preceding 6 months; (3) minimum average daily trading volume of one million shares during the preceding 6 months; (4) minimum average daily trading value of at least $10 million during the preceding 6 months; (5) share price of $10 or higher; (6) the availability of U.S. exchange-listed options. The Index is
Stocks meeting the above criteria are then sorted in descending order based upon the two month implied volatility as measured on Bloomberg using the field labeled 2M_PUT_IMP_VOL_50DELTA_DFLT, which is derived from at-the-money listed put options on each of such stocks.
Each listed put option included in the Index will be an “American-style” option (
The Exchange has provided the following example. Suppose a stock “ABC” trades at $50 per share at the start of the 60-day period, and a listed put option with a term of 60 days was sold with a strike price of $42.50 per share for a premium of $2 per share:
•
•
The Index's value is equal to the value of the options positions comprising the Index, plus a cash position. The options positions are equally weighted in the Index and the Fund's portfolio, meaning that 1/20th of the net asset value (“NAV”) of Shares of the Fund will be invested in each option position at the beginning of the applicable 60-day period. The cash position starts at a base of 1,000. The cash position is increased by option premiums generated by the option positions comprising the Index and interest on the cash position at an annual rate equal to the three month Treasury-bill (“T-Bill”) rate. The cash position is decreased by cash settlement on options which finish in-the-money (
The Fund under normal circumstances
Each put option sold by the Fund will be covered through investments in three month T-Bills at least equal to the Fund's maximum liability under the option (
Every 60 days, the options included within the Index are exercised or expire and new option positions are established, and the Fund will enter into new option positions accordingly and sell any underlying stocks it owns as a result of the Fund's prior option positions having been exercised. This 60-day cycle likely will cause the Fund to have frequent and substantial portfolio turnover.
The Fund may invest its remaining assets in money market instruments,
The Fund may invest up to 20% of its net assets in investments not included in its Index, but which the Adviser believes will help the Fund track the Index. For example, there may be instances in which the Adviser may choose to purchase (or sell) securities not in the Index which the Adviser believes are appropriate to substitute for one or more Index Components in seeking to replicate, before fees and expenses, the performance of the Index.
The Fund may borrow money from a bank up to a limit of 10% of the value of its assets, but only for temporary or emergency purposes. The Fund may not invest 25% of its total assets in the securities of issuers conducting their principal business activities in the same industry or group of industries (excluding the U.S. government or any of its agencies or instrumentalities). Nonetheless, to the extent the Fund's Index is concentrated in a particular industry or group of industries, the Fund's investments will exceed this 25% limitation to the extent that it is necessary to gain exposure to Index Components to track its Index.
The Fund may invest in the securities of other investment companies (including money market funds). Under the 1940 Act, the Fund's investment in investment companies is limited to, subject to certain exceptions, (i) 3% of the total outstanding voting stock of any one investment company, (ii) 5% of the Fund's total assets with respect to any one investment company, and (iii) 10% of the Fund's total assets of investment companies in the aggregate.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment). The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The Fund intends to qualify for and to elect to be treated as a separate regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage. The Fund will not invest in non-U.S. equity securities.
Additional information regarding the Trust, the Fund, and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions, and taxes, among other things, is included in the Notice and Registration Statement, as applicable.
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV will be calculated daily and will be made available to all market participants at the same time.
The Commission notes that, prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders (“ETP Holders”) of the suitability requirements of NYSE Arca Equities Rule 9.2(a) in an Information Bulletin.
As described above, the Fund will seek to track the performance of the Index by selling listed 60-day put options in proportion to their weightings in the Index. If the option's underlying stock declines below the strike price, the option will finish in-the-money and the Fund will be required to buy the underlying stock at the strike price, effectively paying the buyer the difference between the strike price and the closing price. Therefore, by writing a put option, the Fund is exposed to the amount by which the price of the underlying stock is less than the strike price. FINRA has issued a regulatory notice relating to sales practice procedures applicable to recommendations to customers by FINRA members of reverse convertibles, as described in FINRA Regulatory Notice 10–09 (February 2010) (“FINRA Regulatory Notice”).
As disclosed in the Registration Statement, the Fund is designed for investors who seek to obtain income through selling put options on select equity securities which the Index Provider determines to have the highest volatility. Because of the high volatility of the stocks underlying the put options sold by the Fund, it is possible that the value of such stocks will decline in sufficient magnitude to trigger the exercise of the put options and cause a loss which may outweigh the income from selling such put options. Accordingly, the Exchange has stated that the Fund should be considered as a speculative trading instrument and is not necessarily appropriate for investors who seek to avoid or minimize their exposure to stock market volatility. The Exchange has represented that the Information Bulletin regarding the Fund will provide information regarding the suitability of an investment in the Shares, as stated in the Registration Statement.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including:
(1) The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2), except that the Index is comprised of U.S. exchange-listed options.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) The Exchange's surveillance procedures applicable to derivative products, which include Investment Company Units, are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. All Index Components are listed and traded on U.S. options exchanges, which are members of ISG.
(4) Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (b) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV will not be calculated or publicly disseminated; (d) how information regarding the IIV is disseminated; (e) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information. The Information Bulletin will also advise ETP Holders of their suitability obligations with respect to recommended transactions to customers in the Shares, and will state that ETP Holders that carry customer accounts should follow the FINRA Regulatory Notice with respect to suitability.
(5) The Index will consist of at least 20 equally-weighted exchange-listed put options, selected in accordance with NYSE Arca's rules-based methodology, and the Fund, under normal circumstances, will invest at least 80% of its total assets in the Index Components and in T-Bills.
(6) The stocks underlying the Index Components must be U.S. exchange listed and must meet the following additional criteria: (1) Minimum market capitalization of at least $5 billion; (2) minimum trading volume of at least 50 million shares during the preceding 6 months; (3) minimum average daily trading volume of one million shares during the preceding 6 months; (4) minimum average daily trading value of at least $10 million during the preceding 6 months; (5) share price of $10 or higher; and (6) the availability of U.S. exchange-listed options.
(7) The Sub-Adviser will seek a correlation over time of 0.95 or better between the Fund's performance and the performance of the Index. A figure of 1.00 would represent perfect correlation.
(8) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities. In addition, the Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage. The Fund will not invest in non-U.S. equity securities.
(9) Swaps, options (other than options in which the Fund principally will invest), and futures contracts will not be included in the Fund's investment, under normal market circumstances, of at least 80% of its total assets in component securities that comprise the Index and in T-Bills.
(10) A minimum of 100,000 Shares of the Fund will be outstanding as of the start of trading on the Exchange.
(11) For initial and continued listing, the Fund will be in compliance with Rule 10A–3 under the Act,
The Commission further notes that the Fund and the Shares must comply with all other requirements as set forth in Exchange rules applicable to Investment Company Units and prior Commission releases relating to, and orders approving, the listing rules (and amendments thereto) applicable to the listing and trading of Investment Company Units. This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, and the Exchange's description of the Fund.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): Newfleet Multi-Sector Income ETF. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade the shares (“Shares”) of the Newfleet Multi-Sector Income ETF (the “Fund”)
The investment manager to the Fund will be AdvisorShares Investments LLC (the “Adviser”). Newfleet Asset Management, LLC will serve as sub-adviser to the Fund (“Sub-Adviser”). Foreside Fund Services, LLC will serve as the distributor for the Fund (“Distributor”). The Bank of New York Mellon will serve as the custodian and transfer agent for the Fund (“Custodian”, “Transfer Agent” or “Administrator”).
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser will erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
The Fund will, under normal market conditions,
According to the Registration Statement, the Fund's investment objective is to provide a competitive level of current income, consistent with preservation of capital, while limiting fluctuations in net asset value (“NAV”) due to changes in interest rates. The Fund seeks to apply extensive credit research and a time tested approach to capitalize on opportunities across undervalued areas of the bond markets.
The Sub-Adviser will seek to provide diversification by allocating the Fund's investments among various sectors of the fixed income markets including investment grade debt securities issued primarily by U.S. issuers and secondarily by non-U.S. issuers, as follows:
• Securities issued or guaranteed as to principal and interest by the U.S. government, its agencies, authorities or instrumentalities, including collateralized mortgage obligations (“CMOs”), real estate mortgage investment conduits (“REMICs”) and other pass-through securities;
• Non-agency
• U.S. and non-U.S. corporate bonds;
• Yankee bonds;
• Taxable municipal bonds, tax-exempt municipal bonds; and
• Debt securities issued by foreign governments and their political subdivisions.
The Fund represents that the portfolio will include a minimum of 13 non-affiliated issuers of fixed income securities. The Fund will only purchase performing securities, not distressed debt. Distressed debt is debt that is currently in default and is not expected to pay the current coupon.
In seeking to achieve the Fund's investment objective, the Sub-Adviser will employ active sector rotation and disciplined risk management in the construction of the Fund's portfolio. The Fund's investable assets will be allocated among various sectors of the fixed income market using a “top-down”
As disclosed in the Registration Statement, while the Fund will invest at least eighty percent (80%) in investment-grade fixed income securities, the Fund may invest 100% of its total assets, without limitation, in short term high-quality debt securities and money market instruments either directly or through exchange traded funds (“ETFs”)
The Fund may invest up to 20% of its total assets in fixed-income securities that are rated below investment grade at the time of purchase. Such securities include corporate high yield debt securities, emerging market high yield debt securities, and bank loans. In addition, such securities may include non-investment grade CMBS, RMBS, or other asset-backed securities, or debt securities issued by foreign issuers. If certain of the Fund's holdings experience a decline in their credit quality and fall below investment grade, the Fund may continue to hold the securities and they will not count toward the Fund's 20% investment limit; however, the Fund will make reasonable investment decisions relating to the Fund's holdings aligned with its investment objective with respect to such securities. Generally, the Fund will limit its investments in corporate high yield debt securities to 10% of its assets and will limit its investments in non-U.S. issuers to 30% of its assets. The Sub-Adviser will regularly review the Fund's portfolio construction, endeavoring to minimize risk exposure by closely monitoring portfolio characteristics such as sector concentration and portfolio duration and by investing no more than 5% of the Fund's total assets in securities of any single issuer (excluding the U.S. government, its agencies, authorities or instrumentalities).
The Fund may invest in equity securities. Equity securities represent ownership interests in a company or partnership and consist not only of common stocks, which are one of the Fund's primary types of investments, but also preferred stocks, warrants to acquire common stock, securities convertible into common stock, and investments in master limited partnerships. The Fund will purchase such equity securities traded in the U.S. on registered exchanges. Additionally, the Fund may invest in the equity securities of foreign issuers, including the securities of foreign issuers in emerging countries.
The Fund may invest in exchange-traded notes (“ETNs”).
The Fund may invest in, to the extent permitted by Section 12(d)(1) of the 1940 Act and the rules thereunder,
According to the Registration Statement, the Fund also may invest in the securities of other investment companies if the Fund is part of a “master-feeder” structure or operates as a fund of funds in compliance with Section 12(d)(1)(E), (F) and (G) of the 1940 Act and the rules thereunder.
The Fund may invest in the exchange traded securities of pooled vehicles that are not investment companies and, thus, not required to comply with the provisions of the 1940 Act. Such pooled vehicles would be required to comply with the provisions of other federal securities laws, such as the Securities Act of 1933. These pooled vehicles typically hold commodities, such as
The Fund may invest in shares of exchange-traded real estate investment trusts (“REITs”).
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities and loan participation interests (
The Fund may not (i) with respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. government, its agencies or instrumentalities or shares of investment companies) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer.
The Fund may not invest 25% or more of its total assets in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries. This limitation does not apply to investments in securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, or shares of investment companies. The Fund will not invest 25% or more of its total assets in any investment company that so concentrates.
The Fund will not invest in options contracts, futures contracts or swap agreements.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3
According to the Registration Statement, Shares of the Fund will be “created” at their NAV
The Administrator, through the National Securities Clearing Corporation (“NSCC”) will make available on each business day, immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern time), the list of the names and the required amount of Deposit Securities to be included in the current Fund Deposit (based on information at the end of the previous business day) for the Fund.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor and the Fund through the Administrator and only on a business day. The Trust will not redeem Shares in amounts less than Creation Units. Unless cash redemptions are available or specified for the Fund, the redemption proceeds for a Creation Unit generally consist of “Fund Securities”—
The Administrator, through the NSCC, will make available immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern time) on each business day, the Fund Securities that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day. Fund Securities received on redemption may not be identical to Deposit Securities which are applicable to creations of Creation Units.
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings, disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to but not defined in this proposed rule change are defined in the Registration Statement.
The Trust's Web site (
On a daily basis, the Fund will disclose for each portfolio security and other financial instrument of the Fund the following information: ticker symbol (if applicable), name of security and financial instrument, number of shares or dollar value of securities and financial instruments held in the portfolio, and percentage weighting of the security and financial instrument in the portfolio. The Web site information will be publicly available at no charge. In addition, price information for the debt and other securities and investments held by the Fund will be available through major market data vendors or on the exchanges on which they are traded.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. Eastern time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations. The Exchange will communicate as needed regarding trading in the Shares with other markets that are members of the Intermarket Surveillance Group (“ISG”) or with which the Exchange has in place a comprehensive surveillance sharing agreement.
As stated earlier, the Fund will invest only in equity securities and Equity Financial Instruments that trade in markets that are members of the ISG or are parties to a comprehensive surveillance sharing agreement with the Exchange.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern time each trading day.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. The Fund will, under normal market conditions, principally invest in investment-grade securities, which are securities with credit ratings within the four highest rating categories of a nationally recognized statistical rating organization or, if unrated, those securities that the Sub-Adviser determines to be of comparable quality.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. Moreover, the
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the Commonwealth of Puerto Rico dated 01/10/2013.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road Fort, Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13445 8 and for economic injury is 13446 0.
The Commonwealth which received an EIDL Declaration # is Puerto Rico.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of Rhode Island (FEMA–4089–DR), dated 11/14/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for the State of Rhode Island, dated 11/14/2012 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 02/13/2013.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of ALABAMA dated 01/10/2013.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13443 B and for economic injury is 13444 0.
The States which received an EIDL Declaration # are Alabama; Mississippi.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Pennsylvania (FEMA–4099–DR), dated 01/10/2013.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 01/10/2013, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13463B and for economic injury is 13464B.
U.S. Small Business Administration (SBA).
Notice of computer matching program: U.S. Small Business Administration and U.S. Department of Homeland Security, Federal Emergency Management Agency.
The U.S. Small Business Administration plans to participate in a computer matching program with the U.S. Department of Homeland Security, Federal Emergency Management Agency. The purpose of this agreement is to set forth the terms under which a computer matching program will be conducted. The matching program will ensure that applicants for SBA Disaster loans and DHS/FEMA Other Needs Assistance have not received a duplication of benefits for the same disaster.
This Agreement will take effect 40 days from the date copies of this signed Agreement are sent to both Houses of Congress or 30 days from the date the Computer Matching Notice is published in the
You may submit comments, identified by docket number [SBA–2013–001] by any of the following methods:
•
•
•
Roger Garland, (202) 205–6734,
The Small Business Administration (SBA) and the Department of Homeland Security, Federal Emergency Management Agency (DHS/FEMA) have entered into this Computer Matching Agreement (Agreement) pursuant to section (o) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100–503), and as amended by the Computer Matching Privacy Protection Act Amendments of 1990 (Pub. L. 101–508, 5 U.S.C. 552a (p) (1990)). For purposes of this Agreement, both SBA and DHS/FEMA are the recipient agency and the source agency as defined in 5 U.S.C. 552a (a)(9), (11). For this reason, the financial and administrative responsibilities will be evenly distributed between SBA and DHS/FEMA unless otherwise called out in this agreement.
The purpose of this Agreement is to ensure that applicants for SBA Disaster Loans and DHS/FEMA Other Needs Assistance (ONA) have not received a duplication of benefits for the same disaster. This will be accomplished by matching specific DHS/FEMA disaster applicant data with SBA disaster loan application and decision data for a declared disaster, as set forth in this Agreement.
SBA's legal authority for undertaking its disaster loan program without duplicating benefits is contained in section 7(b)(1) of the Small Business Act (15 U.S.C. 636(b)(1). DHS/FEMA's legal authority for ensuring non duplication of benefits is contained in § 312(a) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5155). SBA is allowed to share information with DHS/FEMA pursuant to routine uses (f) and (g) of SBA–020 Disaster Loan Case Files system of records, 74 FR 14911 (April 1, 2009). DHS/FEMA is allowed to share information with SBA pursuant to routine uses H.1. and R. of DHS/FEMA 008–Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009). The Computer Matching and Privacy Protection Act of
It is the policy of both SBA and DHS/FEMA that the agencies will not provide disaster assistance or loan funds to individuals or businesses that have already received benefits from another source for the same disaster. One way to accomplish this objective is to conduct a computer-matching program between the agencies and compare the data of individuals, businesses, or other entities that may have received duplicative aid for a specific disaster from SBA and DHS/FEMA.
It is also recognized that the programs covered by this Agreement are part of a Government-wide initiative, Executive Order: 13411 Improving Assistance for Disaster Victims (August 29, 2006). This order mandates DHS/FEMA to identify and prevent duplication of benefits received by individuals, businesses, or other entities for the same disaster. That initiative and this matching program are consistent with Office of Management and Budget (OMB) guidance on interpreting the provisions of the Computer Matching and Privacy Protection Act of 1988, 54 FR 25818 (June 19, 1989); and OMB Circular A–130, Appendix I, “Federal Agency Responsibilities for Maintaining Records about Individuals.”
The matching program is to ensure that recipients of SBA disaster loans have not received duplicative benefits for the same disaster from DHS/FEMA. Because both DHS/FEMA and SBA collect the FEMA Disaster ID number, SBA and FEMA are able to identify possible scenarios of duplicate benefits being issued. In processing applications for assistance for both DHS/FEMA and SBA, there are several scenarios where partial or full duplicate applications are received. For example, a husband and wife may both apply for assistance, not knowing the other had done so; a person may apply to both DHS/FEMA and SBA; or system failures may abort a registration while in progress and generate a duplicate registration when the person returns to apply again, to name a few.
Based on historical data, DHS/FEMA and SBA anticipate that the computer match will reveal instances where such duplication results in excessive or duplicate assistance payments. For example, DHS/FEMA received 2,160,284 registrations in response to hurricanes Katrina and Rita, and referred 67,023 of those registrations to SBA as potential duplicates. Excluding the Katrina and Rita disasters, DHS/FEMA received 7,070,068 registrations from 1998–2009, and referred 13,809 potential duplicates to SBA. The data illustrates that the number of possible duplicates while typically a low percentage of total registrations, could rise or fall based on a change in the volume of referrals. The data suggests that the expected results of the match are difficult to quantify precisely due to the unpredictable nature of disasters.
DHS/FEMA accesses records from its DHS/FEMA 008 Disaster Recovery Assistance Files, 74 FR 48763 (September 24, 2009), system of records through its National Emergency Management Information System (NEMIS), and matches them to the records that SBA provides from its SBA–020 Disaster Loan Case Files, 74 FR 14911 (April 1, 2009) system of records. SBA uses its Disaster Credit Management System (DCMS) to access records from its SBA–020 Disaster Loan Case Files system of records, 74 FR 14911 (April 1, 2009), and match them to the records that DHS/FEMA provides from its DHS/FEMA–008 Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009). Under this agreement, DHS/FEMA and SBA exchange data for: (1) Initial registrations, (2) to update the SBA loan status, and (3) to check for a duplication of benefits.
1. For the initial registration match, SBA is the recipient of data from DHS/FEMA. DHS/FEMA will extract and provide to SBA the following information: Registration data, including applicant (personal) information; damaged property information; insurance policy data; property occupants' data; registered vehicles data; National Flood Insurance Reform Act of 1994 policy, claims, and payment data; and flood zone map data.
2. For the Duplication of Benefits Match, SBA is the recipient of data from DHS/FEMA. DHS/FEMA will extract and provide to SBA the following information for the Automated Duplication of Benefits Interface: Applicant and damaged property information; home application assistance data; “other needs assistance” data; and inspection data and verification of ownership and occupancy.
3. For the Status Update match, DHS/FEMA is the recipient of data from SBA. SBA will extract and provide to DHS/FEMA personal information about SBA applicants; application data; loss to personal property data; loss mitigation data; SBA loan data; and SBA event data.
A definitive answer cannot be given as to how many records will be matched as it will depend on the number of individuals, businesses or other entities that suffer damage from a declared disaster and that ultimately apply for Federal disaster assistance.
SBA is the recipient (i.e. matching) agency. SBA will match records from its SBA–020 Disaster Loan Case Files system of records (April 1, 2009, 74 FR 14911) and non-disaster related applications accessed via the Disaster Credit Management System (DCMS), to the records extracted and provided by DHS/FEMA from its DHS/FEMA–008 Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009). DHS/FEMA will provide to SBA the following information: Registration information, including: applicant information and FEMA registration ID; damaged property data; insurance policy data; property occupant data; vehicle registration data; National Flood Insurance Program data; and Flood Zone data. SBA will conduct the match using the FEMA Disaster ID Number, FEMA Registration ID Number, Product (Home/Business) and Registration Occupant Social Security Number (SSN) to create a New Pre-Application. The records SBA receives are deemed to be DHS/FEMA applicants who are referred to SBA for disaster loan assistance. Controls on the DHS/FEMA export of data should ensure that SBA only receives unique and valid referral records.
When SBA matches its records to those provided by DHS/FEMA, two types of matches are possible: a full match and a partial match. A full match exists when an SBA record matches a DHS/FEMA record on each of the following data fields: FEMA Disaster ID Number, FEMA Registration ID Number, Product (Home/Business), and Registration Occupant (SSN). A partial match exists when an SBA record matches a DHS/FEMA record on one or
Both DHS/FEMA and SBA will act as the recipient (i.e. matching) agency. SBA will extract and provide to DHS/FEMA data from its SBA–020 Disaster Loan Case File system of records, 74 FR 14911 (April 1, 2009), accessed via the DCMS. DHS/FEMA will match the data SBA provides to records in its DHS/FEMA–008 Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009), accessed via NEMIS, via the FEMA Registration ID Number. SBA will issue a data call to FEMA requesting that FEMA return any records in NEMIS for which a match was found. For each match found, FEMA sends all of its applicant information to SBA so that SBA may match these records with its registrant data in the DCMS. SBA's DCMS manual process triggers an automated interface to query NEMIS using the FEMA Registration ID Number as the unique identifier. DHS/FEMA will return the fields described below for the matching DHS/FEMA record, if any, and no result when the FEMA Registration ID Number is not matched. DHS/FEMA will provide the FEMA Disaster Number; FEMA Registration Identifier; Applicant and if applicable, Co-applicant name; damaged dwelling address, Phone Number, SSN, Damaged Property data, contact address (if different from damaged dwelling address), National Flood Insurance Reform Act data, Flood Zone data, FEMA Housing Assistance and other Assistance data, Program, Award Level, Eligibility, and Approval or Rejection data. SBA will then proceed with its duplication of benefits determination.
DHS/FEMA will act as the recipient (i.e. matching) agency. DHS/FEMA will match records from its DHS/FEMA–008 Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009), to the records extracted and provided by SBA from its SBA–020 Disaster Loan Case File system of records, 74 FR 14911 (April 1, 2009). The purpose of this process is to update DHS/FEMA applicant information with the status of SBA loan determinations for said registrants. The records provided by SBA will be automatically imported into NEMIS to update the status of existing applicant records. The records DHS/FEMA receives from SBA are deemed to be DHS/FEMA applicants who were referred to SBA for disaster loan assistance. Controls on the SBA export of data should ensure that DHS/FEMA only receives unique and valid referral records.
SBA will provide to DHS/FEMA the following information: Personal information about SBA applicants; application data; loss to personal property data; loss mitigation data; SBA loan data; and SBA event data. DHS/FEMA will conduct the match using FEMA Disaster Number, and FEMA Registration ID Number. Loan data for matched records will be recorded and displayed in NEMIS. Loan data will also be run through NEMIS business rules; potentially duplicative categories of assistance are sent to the National Processing Service Centers Program Review process for manual evaluation of any duplication of benefits.
This Agreement will take effect 40 days from the date copies of this signed Agreement are sent to both Houses of Congress or 30 days from the date the Computer Matching Notice is published in the
1. Transmit this Agreement to Congress.
2. Notify OMB.
3. Publish the Computer Matching Notice in the
4. Address public comments that may result from publication in the
Matches under this program will be conducted for every Presidential disaster declaration.
FEMA Form 009–0–1 “Application/Registration for Disaster Assistance”, Form 009–0–3 “Declaration and Release” (Both included in OMB ICR No. 1660–0002), and various other forms used for financial assistance benefits immediately following a declared disaster, use a Privacy Act statement, see 5 U.S.C. § 552a(e)(3), to provide notice to applicants regarding the use of their information. The Privacy Act statements provide notice of computer matching or the sharing of their records consistent with this Agreement. The Privacy Act statement is read to call center applicants and is displayed and agreed to by Internet applicants. Also, FEMA Form 009–0–3 requires the applicant's signature in order to receive financial assistance. Additionally, FEMA/DHS gives public notice via its Disaster Assistance Improvement Program Privacy Impact Assessment and in DHS/FEMA–008 Disaster Recovery Assistance Files System of Records, 74 FR 48763 (September 24, 2009).
SBA Forms 5 “Disaster Business Loan Application”, 5C “Disaster Home Loan Application” and the Electronic Loan Application (ELA) will include notice to all applicants that in the event of duplication of benefits from DHS/FEMA or any other source, the Agency may verify eligibility through a computer matching program with another federal or state agency and reduce the amount of the applicant's loan. All applicants will be required to acknowledge that they have received this notification. Additionally, SBA/DCMS gives public notice via its Privacy Impact Assessment and SBA–020 Disaster Loan Case File system of records, 74 FR 14911 (April 1, 2009).
The matching program for the initial contact information for individuals and businesses will be accomplished by mapping applicant data for DHS/FEMA fields described earlier to the DCMS application data fields. During the automated import process, a computer match is performed against existing DCMS applications as described in the Section. IV, 1. FEMA's system of records for the data is DHS/FEMA–008 Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009).
If the registrant's data does not match an existing pre-application or application in the SBA's DCMS, then the registrant's data will be inserted into the DCMS to create a new pre-Application. An SBA application for disaster assistance may be mailed to the registrant. If the registrant's data does match an existing pre-application or application in SBA's DCMS, it indicates that there may be an existing pre-application/application for the applicant in the DCMS. The system will insert the record within the SBA's DCMS but will identify it as a potential
The matching program is to ensure that recipients of SBA disaster loans have not received duplicative benefits for the same disaster from DHS/FEMA. This will be accomplished by matching the DHS/FEMA Registration ID Number. If the data matches, specific to the application or approved loan, the dollar values for the benefits issued by DHS/FEMA may reduce the eligible amount of the disaster loan or may cause SBA loan proceeds to be used to repay the grant program in the amount of the duplicated assistance.
DHS/FEMA and SBA are responsible for verifying the submissions of data used during each respective benefit process and for resolving any discrepancies or inconsistencies on an individual basis. Authorized users of both the DCMS and NEMIS will not make a final decision to reduce benefits of any financial assistance to an applicant or take other adverse action against such applicant as the result of information produced by this matching program until an employee of the agency taking such action has independently verified such information.
The matching program for duplication of benefits will be executed as part of loan processing and prior to each disbursement on an approved SBA disaster loan. Any match indicating that there is a possible duplicated benefit will be further reviewed by an SBA employee to determine whether the FEMA grant monies reported by the applicant or borrower are correct and matches the data reported by DHS/FEMA. If there is a duplication of benefits, the amount of the SBA disaster loan will be reduced accordingly after providing applicant with written notice of the changes, by processing a loan modification to reduce the loan amount or, where appropriate, by using the SBA loan proceeds to repay the FEMA grant program.
After a computer match has been performed, records of applicants that are not identified as being a recipient of both DHS/FEMA and SBA benefits will be eliminated from DCMS and destroyed. Other identifiable records that may be created by SBA or DHS/FEMA during the course of the matching program will be destroyed as soon as they have served the matching program's purpose, and under any legal retention requirements established in conjunction with the National Archives and Records Administration or other authority. Destruction will be by shredding, burning or electronic erasure, as appropriate.
Neither SBA nor DHS/FEMA will create a separate permanent file consisting of information resulting from the specific matching programs covered by this Agreement except as necessary to monitor the results of the matching program. Information generated through the matches will be destroyed as soon as follow-up processing from the matches has been completed unless the information is required to be preserved by the evidentiary process.
SBA and DHS/FEMA agree to the following information security procedures:
1. SBA will pull application data from FEMA Disaster Assistance Center (DAC) via a web services based Simple Object Access Protocol, Extensible Markup Language/Hypertext Transfer Protocol Secure request. The data will be used to create applications inside the Disaster Credit Management System. For each record, a NEIM-compliant response will be sent back to FEMA DAC indicating success or failure for the transfer of data.
The SBA/DCMS to DHS/FEMA DAC export of referral data (specified in this Agreement) will occur via a webServices based Simple Object Access Protocol, Extensible Markup Language/Hypertext Transfer Protocol Secure request.
The DHS/FEMA Duplication of Benefits Interface will be initiated from the DCMS to the DHS/FEMA NEMIS through a secured Virtual Private Network tunnel, open only to SBA domain Internet Protocol addresses. The results of the query are returned to the DCMS in real-time and populated in the DCMS for delegated SBA staff to use in the determination of duplication of benefits.
SBA and DHS/FEMA agree to the following restrictions on use, duplication, and disclosure of information furnished by the other agency.
A. Records obtained for this matching program or created by the match will not be disclosed outside the agency except as may be essential to conduct the matching program, or as may be required by law. Each agency will obtain the written permission of the other agency before making such disclosure. See routine uses in DHS/FEMA–008 Disaster Recovery Assistance Files system of records, 74 FR 48763 (September 24, 2009) and SBA–020 Disaster Loan Case File system of records, 74 FR 14911 (April 1, 2009).
B. Records obtained for this matching program or created by the match will not be disseminated within the agency except on a need-to-know basis, nor will they be used for any purpose other than that expressly described in this Agreement. Information concerning “non-matching” individuals, businesses or other entities will not be used or disclosed by either agency for any purpose.
C. Data or information exchanged will not be duplicated unless essential to the conduct of the matching program. All stipulations in this Agreement will apply to any duplication.
D. If required to disclose these records to a state or local agency or to a government contractor in order to accomplish the matching program's purpose, each agency will obtain the
E. Each agency will keep an accounting of disclosure of an individual's record as required by 5 U.S.C. 552a(c) of the Privacy Act and will make the accounting available upon request by the individual or other agency.
DHS/FEMA and SBA attest that the quality of the specific records to be used in this matching program is assessed to be at least 99% accurate. The possibility of any erroneous match is extremely small.
In order to apply for assistance online via the DAC portal, an applicant's name, address, SSN, and date of birth are sent to a commercial database provider to perform identity verification. The identity verification ensures that a person exists with the provided credentials. In the rare instances where the applicant's identity is not verified online or the applicant chooses, the applicants must call one of the DHS/FEMA call centers to complete the registrations. The identity verification process is performed again. Depending on rare circumstances, an applicant is allowed to register using an artificial SSN. Applicants must update their SSN and pass the identity verification to obtain assistance.
The parties authorize the Comptroller General of the United States, upon request, to have access to all SBA and DHS/FEMA records necessary to monitor or verify compliance with this matching agreement. This matching agreement also authorizes the Comptroller General to inspect any records used in the matching process that are covered by this matching agreement pursuant to 31 U.S.C. 717 and 5 U.S.C. 552a(b)(10).
The Agreement may be renewed, terminated or modified as follows:
SBA and DHS/FEMA will bear their own costs for this program.
SBA and DHS/FEMA's Data Integrity Boards will review and approve this Agreement prior to the implementation of this matching program. Disapproval by either Data Integrity Board may be appealed in accordance with the provisions of the Computer Matching and Privacy Protection Act of 1988, as amended. Further, the Data Integrity Boards will perform an annual review of this matching program. SBA and DHS/FEMA agree to notify the Chairs of each Data Integrity Board of any changes to or termination of this Agreement.
For general information please contact: Eric M. Leckey (202–212–5100), Privacy Officer, Federal Emergency Management Agency, Department of Homeland Security; and Ja'Nelle DeVore (202–205–7103), Chief Information Security Officer, Office of the Chief Information Officer, Small Business Administration.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Department of State.
Notice, correction.
On April 4, 2012, notice was published on page 20476 of the
For further information, including a list of the additional objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Department of Transportation (DOT), Office of the Secretary of Transportation (OST), Office of Small and Disadvantaged Business Utilization (OSDBU).
Notice of Funding Availability.
The Department of Transportation (DOT), Office of the Secretary (OST), Office of Small and Disadvantaged Business Utilization (OSDBU) announces the opportunity for: (1) Business centered community-based organizations; (2) transportation-related trade associations; (3) colleges and universities; (4) community colleges; or (5) chambers of commerce, registered with the Internal Revenue Service as 501 C(6) or 501 C(3) tax-exempt organizations, to compete for participation in OSDBU's Small Business Transportation Resource Center (SBTRC) program in the South Atlantic Region.
OSDBU will enter into Cooperative Agreements with these organizations to provide outreach to the small business community in their designated region and provide financial and technical assistance, business training programs, business assessment, management training, counseling, marketing and outreach, and the dissemination of information, to encourage and assist small businesses to become better prepared to compete for, obtain, and manage DOT funded transportation-related contracts and subcontracts at the federal, state and local levels. Throughout this notice, the term “small business” will refer to: 8(a), small disadvantaged businesses (SDB), disadvantaged business enterprises (DBE), women owned small businesses (WOSB), HubZone, service disabled veteran owned businesses (SDVOB), and veteran owned small businesses (VOSB). Throughout this notice, “transportation-related” is defined as the maintenance, rehabilitation, restructuring, improvement, or revitalization of any of the nation's modes of transportation.
Complete Proposals must be electronically submitted to OSDBU via email on or before February 19, 2013 5:00 p.m. Eastern Standard Time (EST). Proposals received after the deadline will be considered non-responsive and will not be reviewed. The applicant is advised to request delivery receipt notification for email submissions. DOT plans to give notice of award for the competed region on or before March 12, 2013.
Applications must be electronically submitted to OSDBU via email at
For further information concerning this notice, contact Ms. Patricia Martin, Program Analyst, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 1200 New Jersey Avenue SE., W56–462, Washington, DC 20590. Telephone: 1–800–532–1169 or email
The Department of Transportation (DOT) established the Office of Small and Disadvantaged Business Utilization (OSDBU) in accordance with Public Law 95–507, an amendment to the Small Business Act and the Small Business Investment Act of 1958.
The mission of OSDBU at DOT is to ensure that the small and disadvantaged business policies and goals of the Secretary of Transportation are developed and implemented in a fair, efficient and effective manner to serve small and disadvantaged businesses throughout the country. The OSDBU also administers the provisions of Title 49, Section 332, the Minority Resource Center (MRC) which includes the duties of advocacy, outreach and financial services on behalf of small and disadvantaged business and those certified under CFR 49 parts 23 and or 26 as Disadvantaged Business Enterprises (DBE) and the development of programs to encourage, stimulate, promote and assist small businesses to become better prepared to compete for, obtain and manage transportation-related contracts and subcontracts.
The Regional Assistance Division of OSDBU, through the SBTRC program, allows OSDBU to partner with local organizations to offer a comprehensive delivery system of business training, technical assistance and dissemination of information, targeted towards small business transportation enterprises in their regions.
The national SBTRC program utilizes Cooperative Agreements with chambers of commerce, trade associations, educational institutions and business-centered community based organizations to establish SBTRCs to provide business training, technical assistance and information to DOT grantees and recipients, prime contractors and subcontractors. In order to be effective and serve their target audience, the SBTRCs must be active in the local transportation community in order to identify and communicate opportunities and provide the required technical assistance. SBTRCs must already have, or demonstrate the ability to, establish working relationships with the state and local transportation agencies and technical assistance agencies (i.e., The U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Small Business Development Centers (SBDCs), and Procurement Technical Assistance Centers (PTACs), SCORE and State DOT highway supportive services contractors in their region. Utilizing these relationships and their own expertise, the SBTRCs are involved in activities such as information dissemination, small business counseling, and technical assistance with small businesses currently doing business with public and private entities in the transportation industry.
Effective outreach is critical to the success of the SBTRC program. In order for their outreach efforts to be effective, SBTRCs must be familiar with DOT's Operating Administrations, its funding sources, and how funding is awarded to DOT grantees, recipients, contractors, subcontractors, and its financial assistance programs. SBTRCs must provide outreach to the regional small business transportation community to disseminate information and distribute DOT-published marketing materials, such as Short Term Lending Program (STLP) Information, Bonding Education Program (BEP) information, SBTRC brochures and literature, Procurement Forecasts; Contracting with DOT booklets, Women and Girls in Transportation Initiative (WITI) information, and any other materials or resources that DOT or OSDBU may develop for this purpose. To maximize outreach, the SBTRC may be called upon to participate in regional and national conferences and seminars. Quantities of DOT publications for on-hand inventory and dissemination at conferences and seminars will be available upon request from the OSDBU office.
The purpose of this Request For Proposal (RFP) is to solicit proposals from transportation-related trade associations, chambers of commerce, community based entities, colleges and universities, community colleges, and any other qualifying transportation-related non-profit organizations with the desire and ability to partner with OSDBU to establish and maintain an SBTRC.
It is OSDBU's intent to award a Cooperative Agreement to one organization in the South Atlantic Region, from herein referred to as “region”, in this solicitation. However, if warranted, OSDBU reserves the option to make multiple awards to selected partners. Proposals submitted for a region must contain a plan to service all states listed in the entire region, not just the SBTRC's state or local geographical area. The region's SBTRC headquarters must be established in one of the designated states set forth below. Submitted proposals must also contain justification for the establishment of the SBTRC headquarters in a particular city within the designated state.
Program requirements and selection criteria, set forth in Sections 2 and 4 respectively, indicate that the OSDBU intends for the SBTRC to be multidimensional; that is, the selected organization must have the capacity to effectively access and provide supportive services to the broad range of small businesses within the respective geographical region. To this end, the SBTRC must be able to demonstrate that they currently have established relationships within the geographic region with whom they may coordinate and establish effective networks with DOT grant recipients and local/regional technical assistance agencies to maximize resources.
Cooperative agreement awards will be distributed to the region(s) as follows:
Cooperative agreement awards by region are based upon an analysis of DBEs, Certified Small Businesses, and US DOT transportation dollars in each region.
It is OSDBU's intent to maximize the benefits received by the small business transportation community through the SBTRC. Funding may be utilized to reimburse an on-site Project Director up to 100% of salary plus fringe benefits, an on-site Executive Director up to 20% of salary plus fringe benefits, up to 100% of a Project Coordinator salary plus fringe benefits, the cost of designated SBTRC space, other direct costs, and all other general and administrative expenses. Selected SBTRC partners will be expected to provide in-kind administrative support. Submitted proposals must contain an alternative funding source with which the SBTRC will fund administrative support costs. Preference will be given to proposals containing in-kind contributions for the Project Director, the Executive Director, the Project Coordinator, cost of designated SBTRC space, other direct costs, and all other general and administrative expenses.
The cooperative agreement will be awarded for a period of 12 months (one year) with options for two (2) additional one-year periods. OSDBU will notify the SBTRC of our intention to exercise an option year or not to exercise an option year 30 days in advance of expiration of the current year.
DOT is authorized under 49 U.S.C. 332(b)(4), (5) and (7) to design and carry out programs to assist small disadvantaged businesses in getting transportation-related contracts and subcontracts; develop support mechanisms, including management and technical services, that will enable small disadvantaged businesses to take advantage of those business opportunities; and to make arrangements to carry out the above purposes.
To be eligible, an organization must be an established, nonprofit, community-based organization, transportation-related trade association, chamber of commerce, college or university, community college, and any other qualifying transportation-related
In addition, to be eligible, the applicant organization must:
(A) Be an established 501 C(3) or 501 C(6) tax-exempt organization and provide documentation as verification. No application will be accepted without proof of tax-exempt status;
(B) Have at least one year of documented and continuous experience prior to the date of application in providing advocacy, outreach, and technical assistance to small businesses within the region in which proposed services will be provided. Prior performance providing services to the transportation community is preferable, but not required; and
(C) Have an office physically located within the proposed city in the designated headquarters state in the region for which they are submitting the proposal that is readily accessible to the public.
1. Conduct an assessment of small businesses in the SBTRC region to determine their training and technical assistance needs, and use information that is available at no cost to structure programs and services that will enable small businesses to become better prepared to compete for and receive transportation-related contract awards.
2. Contact other federal, state and local government agencies, such as the U.S. Small Business Administration (SBA), state and local highway agencies, state and local airport authorities, and transit authorities to identify relevant and current information that may support the assessment of the regional small business transportation community needs.
1. Utilize OSDBU's Monthly Reporting Form to document each small business assisted by the SBTRC and type of service(s) provided. The completed form must be transmitted electronically to the SBTRC Program Analyst on a monthly basis, accompanied by a narrative report on the activities and performance results for that period. The data gathered must be supportive by the narrative and must relate to the numerical data on the monthly reports.
2. Ensure that an array of information is made available for distribution to the small business transportation community that is designed to inform and educate the community on DOT/OSDBU services and opportunities.
3. Coordinate efforts with OSDBUs in order to maintain an on-hand inventory of DOT/OSDBU informational materials for general dissemination and for distribution at transportation-related conferences and other events.
1. Collaborate with agencies, such as the State, Regional, and Local Transportation Government Agencies, SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), and Small Business Development Centers (SBDCs), to offer a broad range of counseling services to transportation-related small business enterprises.
2. Create a technical assistance plan that will provide each counseled participant with the knowledge and skills necessary to improve the management of their own small business to expand their transportation-related contracts and subcontracts portfolio.
3. Provide a minimum of 20 hours of individual or group counseling sessions to small businesses per month.
1. Establish a Regional Planning Committee consisting of at least 7 members that includes representatives from the regional community and federal, state, and local agencies. The highway, airport, and transit authorities for the SBTRC's headquarters state must have representation on the planning committee. This committee shall be established no later than 60 days after the execution of the Cooperative agreement between the OSDBU and the selected SBRTC.
2. Provide a forum for the federal, state, and local agencies to disseminate information about upcoming procurements.
3. Hold either monthly or quarterly meetings at a time and place agreed upon by SBTRC and planning committee members.
4. Use the initial session (teleconference call) by the SBTRC explain the mission of the committee and identify roles of the staff and the members of the group.
5. Responsibility for the agenda and direction of the Planning Committee should be handled by the SBTRC Executive Director or his/her designee.
1. Utilize the services of the System for Award Management (SAM) and other sources to construct a database of regional small businesses that currently or may in the future participate in DOT direct and DOT funded transportation related contracts, and make this database available to OSDBU, upon request.
2. Utilize the database of regional transportation-related small businesses to match opportunities identified through the planning committee forum, FedBiz Opps (a web-based system for posting solicitations and other Federal procurement-related documents on the Internet), and other sources to eligible small businesses and inform the small business community about those opportunities.
3. Develop a “targeted” database of firms (100–150) that have the capacity and capabilities, and are ready, willing and able to participate in DOT contracts and subcontracts immediately. This control group will receive ample resources from the SBTRC, i.e., access to working capital, bonding assistance, business counseling, management assistance and direct referrals to DOT agencies at the state and local levels, and to prime contractors as effective subcontractor firms.
4. Identify regional, state and local conferences where a significant number of small businesses, with transportation related capabilities, are expected to be in attendance. Maintain and submit a list of those events to the SBTRC Program Analyst for review and posting on the OSDBU Web site on a monthly basis. Clearly identify the events designated for SBTRC participation and include recommendations for OSDBU participation.
5. Conduct outreach and disseminate information to small businesses at regional transportation-related conferences, seminars, and workshops. In the event that the SBTRC is requested to participate in an event, the SBTRC will send DOT materials, the OSDBU banner and other information that is deemed necessary for the event.
6. Submit a conference summary report to OSDBU no later than 5 business days after participation in the event or conference. The conference summary report must summarize activities, contacts, outreach results, and recommendations for continued or discontinued participation in future similar events sponsored by that organization.
7. Upon request by OSDBU, coordinate efforts with DOT's grantees and recipients at the state and/or local levels to sponsor or cosponsor an OSDBU transportation related conference in the region.
8. Participate in monthly teleconference call with the Regional Assistance Division Program Manager and OSDBU staff.
1. Work with STLP participating banks and if not available, other lending institutions to deliver a minimum of five (5) seminars/workshops per year on the STLP financial assistance program to the transportation-related small business community. The seminar/workshop must cover the entire STLP process, from completion of STLP loan applications and preparation of the loan package to graduation from the STLP.
2. Provide direct support, technical support, and advocacy services to potential STLP applicants to increase the probability of STLP loan approval and generate a minimum of 7 approved STLP applications per year.
Work with OSDBU, bonding industry partners, local small business transportation stakeholders, and local bond producers/agents in your region to deliver a minimum of 2 complete BEP seminars. The BEP consists of the following components: (1) The stakeholder's meeting; (2) the educational workshops component; (3) the bond readiness component; and (4) follow-on assistance to BEP participants via technical and procurement assistance based on the prescriptive plan determined by the BEP. For each BEP event, work with the local bond producers/agents in your region and the disadvantaged business participants to deliver minimum of 10 disadvantaged business participants in the BEP event with either access to bonding or an increase in bonding capacity. Furnish all labor, facilities and equipment to perform the services described in this announcement.
Pursuant to Executive Order 13506, and 49 U.S.C. 332(b)(4) and (7), the SBTRC shall administer the WITI in their geographical region. The SBTRC shall implement the DOT WITI program as defined by the DOT WITI Policy. The WITI program is designed to identify, educate, attract, and retain women and girls from a variety of disciplines in the transportation industry. The SBTRC shall also be responsible for outreach activities in the implementation of this program and advertising the WITI program to all colleges and universities and transportation entities in their region. The WITI program shall be developed in conjunction with the skill needs of the USDOT, state and local transportation agencies and appropriate private sector transportation-related participants including, S/WOBs/DBEs, and women organizations involved in transportation. Emphasis shall be placed on establishing partnerships with transportation-related businesses. The SBTRC will be required to host 1 WITI event and attend at least 5 events where WITI is presented and marketed.
(A) Provide consultation and technical assistance in planning, implementing and evaluating activities under this announcement.
(B) Provide orientation and training to the applicant organization.
(C) Monitor SBTRC activities, cooperative agreement compliance, and overall SBTRC performance.
(D) Assist SBTRC to develop or strengthen its relationships with federal, state, and local transportation authorities, other technical assistance organizations, and DOT grantees.
(E) Facilitate the exchange and transfer of successful program activities and information among all SBTRC regions.
(F) Provide the SBTRC with DOT/OSDBU materials and other relevant transportation related information for dissemination.
(G) Maintain effective communication with the SBTRC and inform them of transportation news and contracting opportunities to share with small businesses in their region.
(H) Provide all required forms to be used by the SBTRC for reporting purposes under the program.
(I) Perform an annual performance evaluation of the SBTRC. Satisfactory performance is a condition of continued participation of the organization as an SBTRC and execution of all option years.
Each proposal must be submitted to DOT's OSDBU in the format set forth in the application form attached as Appendix A to this announcement.
Any eligible organization, as defined in Section 1.6 of this announcement, will submit only one proposal per state for consideration by OSDBU.
Applications must be double spaced, and printed in a font size not smaller than 12 points. Applications will not exceed 35 single-sided pages, not including any requested attachments. All pages should be numbered at the top of each page. All documentation, attachments, or other information pertinent to the application must be included in a single submission. Proposal packages must be submitted electronically to OSDBU at
The applicant is advised to turn on request delivery receipt notification for email submission. Proposals must be received by DOT/OSDBU no later than February 19, 2013, 5:00 p.m., EST. If you have any problems submitting your proposal, please email
OSDBU will award the cooperative agreement on a best value basis, using the following criteria to rate and rank applications:
Applications will be evaluated using a point system (maximum number of points = 100);
• Approach and strategy (25 points)
• Linkages (25 points)
• Organizational Capability/Site visit (25 points)
• Staff Capabilities and Experience (15 points)
• Cost Proposal (10 points)
The applicant must describe their strategy to achieve the overall mission of the SBTRC as described in this solicitation and service the small business community in their entire geographic regional area. The applicant must also describe how the specific activities outlined in Section 2.1 will be implemented and executed in the organization's regional area. OSDBU will consider the extent to which the proposed objectives are specific, measurable, time-specific, and consistent with OSDBU goals and the applicant organization's overall mission. OSDBU will give priority consideration to applicants that demonstrate innovation and creativity in their approach to assist small businesses to become successful transportation contractors and increase their ability to access DOT contracting opportunities and financial assistance programs. Applicants must also submit the estimated direct costs, other than labor, to execute their proposed strategy.
The applicant must describe their established relationships within their geographic region and demonstrate their ability to coordinate and establish effective networks with DOT grant recipients and local/regional technical assistance agencies to maximize resources. OSDBU will consider innovative aspects of the applicant's approach and strategy to build upon their existing relationships and established networks with existing resources in their geographical area. The applicant should describe their strategy to obtain support and collaboration on SBTRC activities from DOT grantees and recipients, transportation prime contractors and subcontractors, the SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), Small Business Development Centers (SBDCs), State DOTs, and State highway supportive services contractors. In rating this factor, OSDBU will consider the extent to which the applicant demonstrates ability to be multidimensional. The applicant must demonstrate that they have the ability to access a broad range of supportive services to effectively serve a broad range of transportation-related small businesses within their respective geographical region. Emphasis will also be placed on the extent to which the applicant identifies a clear outreach strategy related to the identified needs that can be successfully carried out within the period of this agreement and a plan for involving the Planning Committee in the execution of that strategy.
The applicant must demonstrate that they have the organizational capability to meet the program requirements set forth in Section 2. The applicant organization must have sufficient resources and past performance experience to successfully provide outreach to the small business transportation resources in their geographical area and carry out the mission of the SBTRC. In rating this factor, OSDBU will consider the extent to which the applicant's organization has recent, relevant and successful experience in advocating for and addressing the needs of small businesses. Applicants will be given points for demonstrated past transportation-related performance. The applicant must also describe technical and administrative resources it plans to use in achieving proposed objectives. In their description, the applicant must describe their facilities, computer and technical facilities, ability to tap into volunteer staff time, and a plan for sufficient matching alternative financial resources to fund the general and administrative costs of the SBTRC. The applicant must also describe their administrative and financial management staff. It will be the responsibility of the successful candidate to not only provide the services outlined herein to small businesses in the transportation industry, but to also successfully manage and maintain their internal financial, payment and invoicing process with their financial management offices. OSDBU will place an emphasis on capabilities of the applicant's financial management staff. Additionally, a site visit will be required prior to award for those candidates that are being strongly considered. A member of the OSDBU team will contact those candidates to schedule the site visits prior to the award of the agreement.
The applicant organization must provide a list of proposed personnel for the project, with salaries, fringe benefit burden factors, educational levels and previous experience clearly delineated. The applicant's project team must be well-qualified, knowledgeable, and able to effectively serve the diverse and broad range of small businesses in their geographical region. The Executive Director and the Project Director shall be deemed key personnel. Detailed resumes must be submitted for all proposed key personnel and outside consultants and subcontractors. Proposed key personnel must have detailed demonstrated experience providing services similar in scope and nature to the proposed effort. The proposed Project Director will serve as the responsible individual for the program. 100% of the Project Director's time must be dedicated to the SBTRC. Both the Executive Director and the Project Director must be located on-site. In this element, OSDBU will consider the extent to which the applicant's proposed Staffing Plan; (a) clearly meets the education and experience requirements to accomplish the objectives of the cooperative agreement; (b) delineates staff responsibilities and accountability for all work required and; (c) presents a clear and feasible ability to execute the applicant's proposed approach and strategy.
Applicants must submit the total proposed cost of establishing and administering the SBTRC in the applicant's geographical region for a 12 month period, inclusive of costs funded through alternative matching resources. The applicant's budget must be adequate to support the proposed strategy and costs must be reasonable in relation to project objectives. The portion of the submitted budget funded by OSDBU cannot exceed the ceiling outlined in Section 1.3: Description of Competition of this RFP per fiscal year. Applicants are encouraged to provide in-kind costs and other innovative cost approaches.
A review panel will score each application based upon the evaluation criteria listed above. Points will be given for each evaluation criteria category, not to exceed the maximum number of points allowed for each category. Proposals which are deemed non–responsive, do not meet the established criteria, or incomplete at the time of submission will be disqualified.
OSDBU will perform a responsibility determination of the prospective awardee in the region, which will include a site visit, before awarding the cooperative agreement.
Applicants must submit signed statements by key personnel and all organization principals indicating that they, or members of their immediate families, do not have a personal, business or financial interest in any DOT-funded transportation project, nor any relationships with local or state transportation agencies that may have the appearance of a conflict of interest.
Submitted proposals for the DOT, Office of Small and Disadvantaged Business Utilization's Small Business Transportation Resource Center Program must contain the following 12 sections and be organized in the following order:
Identify all parts, sections and attachments of the application.
Provide a summary overview of the following:
• The applicant's proposed SBTRC region and city and key elements of the plan of action/strategy to achieve the SBTRC objectives.
• The applicant's relevant organizational experience and capabilities.
Provide a narrative which contains specific project information as follows:
• The applicant will describe its understanding of the OSDBU's SBTRC program mission and the role of the applicant's proposed SBTRC in advancing the program goals.
• The applicant will describe specific outreach needs of transportation-related small businesses in the applicant's region and how the SBTRC will address the identified needs.
• Describe the applicant's plan of action/strategy for conducting the program in terms of the tasks to be performed.
• Describe the specific services or activities to be performed and how these services/activities will be implemented.
• Describe innovative and creative approaches to assist small businesses to become successful transportation contractors and increase their ability to access DOT contracting opportunities and financial assistance programs.
• Estimated direct costs, other than labor, to execute the proposed strategy.
• Describe established relationships within the geographic region and demonstrate the ability to coordinate and establish effective networks with DOT grant recipients and local/regional technical assistance agencies.
• Describe the strategy to obtain support and collaboration on SBTRC activities from DOT grantees and recipients, transportation prime contractors and subcontractors, the SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), Small Business Development Centers (SBDCs), State DOTs, and State highway supportive services contractors.
• Describe the outreach strategy related to the identified needs that can be successfully carried out within the period of this agreement and a plan for involving the Planning Committee in the execution of that strategy.
• Describe recent and relevant past successful performance in addressing the needs of small businesses, particularly with respect to transportation-related small businesses.
• Describe internal technical, financial management, and administrative resources.
• Propose a plan for sufficient matching alternative financial resources to fund the general and administrative costs of the SBTRC.
• List proposed key personnel, their salaries and proposed fringe benefit factors.
• Describe the education, qualifications and relevant experience of key personnel. Attach detailed resumes.
• Proposed staffing plan. Describe how personnel are to be organized for the program and how they will be used to accomplish program objectives. Outline staff responsibilities, accountability and a schedule for conducting program tasks.
• Outline the total proposed cost of establishing and administering the SBTRC in the applicant's geographical region for a 12 month period, inclusive of costs funded through alternative matching resources. Clearly identify the portion of the costs funded by OSDBU.
• Provide a brief narrative linking the cost proposal to the proposed strategy.
Complete the attached Standard Form 424B ASSURANCES-NON-CONSTRUCTION PROGRAMS.
Complete form DOTF2307–1 Drug-Free Workplace Act Certification, and Form DOTF2308–1 Certification Regarding Lobbying for Contracts, Grants, Loans, and Cooperative Agreements.
The statements must say that they, or members of their immediate families, do not have a personal, business or financial interest in any DOT-funded transportation projects, nor any relationships with local or state transportation agencies that may have the appearance of a conflict of interest.
Complete Standard Form 424 Application for Federal Assistance.
Federal Railroad Administration, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking renewal of the following currently approved information collection activities. Before submitting these information collection requirements for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below.
Comments must be received no later than March 25, 2013.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 25, Washington, DC 20590, or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130–__.” Alternatively, comments may be transmitted via facsimile to (202) 493–6216 or (202) 493–6497, or via email to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 25, Washington, DC 20590 (telephone: (202) 493–6292) or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35,
The Paperwork Reduction Act of 1995 (PRA), Pub. L. No. 104–13, § 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501–3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below are brief summaries of the two currently approved information collection activities that FRA will submit for clearance by OMB as required under the PRA:
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501–3520.
Pacific Imperial Railroad, Inc. (PIR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to change operators from San Diego & Imperial Valley Railroad Company, Inc. (SDIY)
PIR certifies that its projected annual revenues as a result of this transaction will not exceed those that would qualify it as a Class III rail carrier. However, because its projected annual revenues will exceed $5 million, PIR certified to the Board that, pursuant to the notice requirements of 49 CFR 1150.32(e), it has provided notice to employees on the affected line and that notice was not served on the national offices of any rail labor union because no employees on the affected line belonged to a rail labor union. Under 49 CFR 1150.32(e), this exemption cannot become effective until March 3, 2013, 60 days after the latest certification that PIR provided the required notice to employees.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35709, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1890, Chicago, IL 60604–1112.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before February 22, 2013 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927–5331, email at
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 25, 2013.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461–5870 or FAX (202) 273–9381.
Under the PRA of 1995 (Pub. L. 104–13; 44 U.S.C. 3501–3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Interim final rule; request for comments.
This action establishes new uniform procedures governing the implementation of State highway safety grant programs as amended by the Moving Ahead for Progress in the 21st Century Act (MAP–21). It also reorganizes and amends existing requirements to implement the provisions of MAP–21.
This document is being issued as an interim final rule to provide timely guidance about the application procedures for national priority safety program grants in fiscal year 2013 and all Chapter 4 highway safety grants beginning in fiscal year 2014. The agency requests comments on the rule. The agency will publish a notice responding to any comments received and, if appropriate, will amend provisions of the regulation.
This interim final rule becomes effective on January 23, 2013. Comments on this interim final rule are due April 23, 2013. In compliance with the Paperwork Reduction Act, NHTSA is also seeking comment on a new information collection. See the Paperwork Reduction Act section under Regulatory Analyses and Notices below. Comments relating to new information collection requirements are due March 25, 2013 to NHTSA and to the Office of Management and Budget (OMB) at the address listed in the
Written comments to NHTSA may be submitted using any one of the following methods:
•
•
•
•
Whichever way you submit your comments, please remember to identify the docket number of this document within your correspondence. You may contact the docket by telephone at (202) 366–9324. Note that all comments received will be posted without change to
Comments regarding the proposed information collection should be submitted to NHTSA through one of the preceding methods and a copy should also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725–17th Street, NW., Washington, DC 20503, Attention: NHTSA Desk Officer.
For program issues: Dr. Mary D. Gunnels, Associate Administrator, Regional Operations and Program Delivery, National Highway Traffic Safety Administration, Telephone number: (202) 366–2121; Email:
For legal issues: Ms. Jin Kim, Attorney-Advisor, Office of the Chief Counsel, National Highway Traffic Safety Administration, Telephone number: (202) 366–1834; Email:
On July 6, 2012, the President signed into law the “Moving Ahead for Progress in the 21st Century Act” (MAP–21), Public Law 112–141, which restructured and made various substantive changes to the highway safety grant programs administered by the National Highway Traffic Safety Administration (NHTSA). Specifically, MAP–21 modified the existing formula grant program codified at 23 U.S.C. 402 (Section 402) by requiring States to develop and implement the State highway safety program using performance measures. MAP–21 also rescinded a number of separate incentive grant programs that existed under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), Public Law 109–59, and replaced them with the “National Priority Safety Programs,” codified in a single section of the United States Code (23 U.S.C. 405 (Section 405)). The National Priority Safety Programs include Occupant Protection, State Traffic Safety Information Systems, Impaired Driving Countermeasures, Motorcyclist Safety, and two new grant programs—Distracted Driving and State Graduated Driver Licensing. MAP–21 specifies a single application deadline for all highway safety grants and directs NHTSA to establish a consolidated application process, using the Highway Safety Plan that States have traditionally submitted for the Section 402 program.
MAP–21 provides additional linkages between NHTSA-administered programs and the programs of other DOT agencies coordinated through the State strategic highway safety plan administered by the Federal Highway Administration (FHWA), as defined in 23 U.S.C. 148(a). The Department will harmonize performance measures that are common across programs of DOT agencies (e.g., fatalities and serious injuries) to ensure that the highway safety community is provided uniform measures of progress.
Section 402, as amended by MAP–21, continues to require each State to have an approved highway safety program designed to reduce traffic crashes and the resulting deaths, injuries, and property damage. Section 402 sets forth minimum requirements with which each State's highway safety program must comply. Under existing procedures, States must submit a Highway Safety Plan (HSP) each year to NHTSA for approval, describing their highway safety program and the
DOT will continue to analyze the linkage between specific safety investments made by the States and States' safety outcomes to learn more about the associations between the application of resources and safety outcomes. DOT will perform this analysis using data provided by States to build and improve the foundation of evidence to inform future reauthorization proposals. DOT's analysis could inform additional requirements for safety programs and potentially additional data from States.
MAP–21 amended Section 402 to require, among other things, States to submit for fiscal year 2014 and thereafter an HSP with performance measures and targets as a condition of approval of the State's highway safety program. (23 U.S.C. 402(k)(3)) MAP–21 specifies in more detail the contents of the HSP that States must submit, including strategies for programming funds, data supporting those strategies, and a report on the degree of success in meeting the performance measure targets.
The National Priority Safety Programs created by MAP–21 continue many aspects of previous grants, but also include changes. (23 U.S.C. 405) Specifically, MAP–21 consolidated several previously separate occupant protection grants into a single occupant protection grant under new Section 405(b), updated the requirements for a State traffic safety information system improvements grant under new Section 405(c), revised the impaired driving countermeasures grant under new Section 405(d), including a new grant for State ignition interlock laws, created a new distracted driving grant under new Section 405(e), extended the motorcyclist safety grant largely unchanged under new Section 405(f), and created a new graduated driver licensing grant under new Section 405(g). None of these grant programs under MAP–21 is identical to a grant program that existed under SAFETEA–LU, but many continue various requirements of the prior grant programs. For each of these grants, MAP–21 specifies the criteria for a grant award (some of which are prescriptive), the mechanism for allocation of grant funds, and the eligible uses of grant funds.
MAP–21 requires NHTSA to award highway safety grants pursuant to rulemaking and separately requires NHTSA to establish minimum requirements for the graduated driver licensing (GDL) grant in accordance with the notice and comment provisions of the Administrative Procedure Act. (Section 31101(d), MAP–21; 23 U.S.C. 405(g)(3)(A)) In order to provide States with as much advance time as practicable to prepare grant applications and to ensure the timely award of all grants in fiscal years 2013 and 2014, the agency is proceeding with an expedited rulemaking. Accordingly, NHTSA is publishing this rulemaking as an interim final rule (IFR), with immediate effectiveness, to implement the application and administrative requirements of the highway safety grant programs. Responding to the notice and comment requirement for the GDL grant program, NHTSA published a notice of proposed rulemaking (NPRM) for that program on October 5, 2012. (77 FR 60956) The comment period for the GDL NPRM closed on October 25, 2012. Today's IFR addresses the comments received and incorporates requirements for the GDL program.
This IFR sets forth the application, approval, and administrative requirements for all MAP–21 grant programs. It updates the Uniform Procedures for State Highway Safety Programs to incorporate the new performance measures process and the single application requirement. It adds requirements for the new Section 405 incentive grant programs. Finally, it updates and consolidates into one rule a number of old regulations (State Highway Safety Agency, Political Subdivision Participation in State Highway Safety Programs, State Matching of Planning and Administration Costs, Rules of Procedure for Invoking Sanctions under the Highway Safety Act of 1966) that remain applicable to the highway safety grants. While many procedures and requirements continue unchanged by today's action, organization and section numbers have changed.
For ease of reference, the preamble identifies in parentheses within each subheading and at appropriate places in the explanatory paragraphs the new CFR citation for the corresponding regulatory text.
The Highway Safety Act of 1966 (23 U.S.C. 401
MAP–21 amended Section 402(b), which sets forth the minimum requirements with which each State highway safety program must comply, to require the Highway Safety Plan (HSP) to provide for a data-driven traffic safety enforcement program to prevent traffic violations, crashes, and crash fatalities and injuries in areas most at risk for such incidents. As is evident with other amendments to Section 402 discussed below, MAP–21 highlights the importance of strategies supported by data to reduce crashes. While data-driven program development has long been a practice of jurisdictions in the highway safety grant program, requiring States to have a data-driven traffic safety enforcement program and targeted enforcement based on data will promote improved safety outcomes. MAP–21 also amended Section 402(b) to require each State to coordinate its HSP, data collection, and information systems with the State strategic highway safety plan as defined in 23 U.S.C. 148(a). Such a requirement to coordinate these elements into a unified State approach to highway safety promotes comprehensive transportation and safety planning and program efficiency in the States. Coordinating the HSP planning process with the programs of
MAP–21 also amends the uses of Section 402 grant funds. Section 402(b) prohibits the use of automated traffic enforcement systems. Such systems include red light and speed cameras, but do not include hand held radar or devices that law enforcement officers use to take an enforcement action at the time of a violation. Section 402(c) provides that States may use grant funds in cooperation with neighboring States for highway safety purposes that benefit all participating States. For States that share a common media market, enforcement corridors and program needs, such interstate initiatives recognize the mutual benefits that may be gained by multiple jurisdictions through the sharing of resources. Finally, Section 402(g) provides an exception to the general prohibition against using Section 402 grant funds for activities carried out under 23 U.S.C. 403. States may now use Section 402 funds to supplement demonstration projects carried out under Section 403.
The most significant changes in the Section 402 grant program are the new performance-based requirements for the HSP and the reporting requirements. Under the old regulation, State HSPs were required to contain a performance plan with (1) a list of objective and measurable highway safety goals, (2) performance measures for each of the safety goals, and (3) a description of the processes used by the State to identify highway safety problems, define highway safety performance measures, and develop projects to address problems and achieve the State's goals. In addition, States were to include descriptions of program strategies they planned to implement to reach highway safety targets. Many of these requirements remain unchanged by today's action. However, based on the new requirements in MAP–21, States will need to provide additional information in the HSP to meet the performance-based, evidence-based requirements of MAP–21. (23 CFR 1200.11)
Under the old regulation, States were required to describe the highway safety planning process in the HSP. This continues to be required by today's action. However, the agency made some changes to reflect the terms used in MAP–21 (e.g., performance measures and targets, data-based, evidence-based). The IFR also includes a new requirement that the State include a description of the efforts and the outcomes of the effort the State has made to coordinate the highway safety plan, data collection, and information systems with the State strategic highway safety plan, as required by MAP–21. (23 CFR 1200.11(a))
While the most significant change in MAP–21 is the performance-based requirements for the HSP, States have been moving in that direction over the past several years based on a cooperative effort with GHSA and DOT to establish voluntary performance measures for highway safety grant programs. Over the years, NHTSA and GHSA have developed numerous tools and resource documents to enhance the effectiveness of the HSPs and promote linkage to measurable traffic safety improvements that will support requirements under MAP–21. State HSPs must now provide for performance measures and targets that are evidence-based, and this is consistent with the report, “Traffic Safety Performance Measures for States and Federal Agencies” (DOT HS 811 025), that States have been using to develop performance measures since 2010. The agency will regularly review with the States the performance measures and coordinate with other DOT agencies to ensure consistent application. As directed by MAP–21, NHTSA must “coordinate with [GHSA] in making revisions to the set of required performance measures.” (23 U.S.C. 402(k)(4)) The Department will harmonize performance measures that are common across programs of DOT agencies (e.g., fatalities and serious injuries) to ensure that the highway safety community is provided uniform measures of progress.
The State process for setting targets in the HSP must be based on an analysis of data trends and a resource allocation assessment. For purposes of the current rulemaking, evidence-based analysis should include States' programming of resources compared to the specific measures in “Traffic Safety Performance Measures for States and Federal Agencies.” As required by MAP–21, the HSP must provide documentation of the current safety levels for each performance measure, quantifiable annual performance targets for each performance measure, and a justification for each performance target, including an explanation of why each target is appropriate and evidence based. Consistent with the Highway Safety Plan for continuous safety improvement, selected targets, should whenever reasonable, represent an improvement from the current status rather than a simple maintenance of the current rate. Targets for each program area should be consistent, compatible and provide sufficient coverage of State geographic areas and road users. When aggregated, strategies should lead logically to overall statewide performance and be linked to the anticipated success of the countermeasures or strategies selected and funded in the HSP. (23 CFR 1200.11(b))
The agency will collaborate regularly with FHWA, Federal Motor Carrier Safety Administration (FMCSA) and other DOT agencies along with the Governor's Highway Safety Association (GHSA) and the State Highway Safety Agencies to ensure the integration of highway safety planning with the broader aspects of Statewide transportation. This broad-based collaboration will assist NHTSA and GHSA to revise, update and improve highway safety program performance measures as necessary, while ensuring a consistent Departmental approach to surface transportation safety.
1. Number of traffic fatalities (FARS);
2. Number of serious injuries in traffic crashes (State crash data files);
3. Fatalities/VMT (FARS, FHWA);
4. Number of unrestrained passenger vehicle occupant fatalities, all seat positions (FARS);
5. Number of fatalities in crashes involving a driver or motorcycle operator with a BAC of
.08 and above (FARS);
6. Number of speeding-related fatalities (FARS);
7. Number of motorcyclist fatalities (FARS);
8. Number of unhelmeted motorcyclist fatalities (FARS);
9. Number of drivers age 20 or younger involved in fatal crashes (FARS);
10. Number of pedestrian fatalities (FARS).
1. Number of seat belt citations issued during grant-funded enforcement activities (grant activity reporting);
2. Number of impaired driving arrests made during grant-funded enforcement activities (grant activity reporting);
3. Number of speeding citations issued during grant-funded enforcement activities (grant activity reporting).
NHTSA will continue to work with States to ensure that annual HSPs identify priority traffic safety problems. For HSPs for subsequent fiscal years, NHTSA will also coordinate with GHSA on an annual basis and with other DOT agencies to identify emerging traffic safety issues and incorporate new national performance measures where feasible. NHTSA will continue to provide ongoing technical assistance to States on emerging priority traffic safety issues and encourage States to use data to identify measures beyond the required consensus performance measures. As the Department promulgates new regulations for programs to improve highway safety, common definitions of performance measures and targets will be adopted.
Under the old regulation, States were required to describe at least one year of strategies and activities the State planned to implement. As provided in the IFR, Highway Safety Plans must continue to include a description of the countermeasure program area strategies the State plans to implement to reach the performance targets identified by the State in the HSP. In addition, the HSP must also include a description of the projects that make up each program area that will implement the program area strategies. For performance targets that are common across DOT agencies, the projects that will be deployed to achieve those targets may be a combination of those projects contained in the HSP and other State and local plans. As required by MAP–21, the identified program area strategies must also identify funds from other sources, including Federal, State, local and private sector funds, used to carry out the program area strategies. (23 CFR 1200.11(c))
MAP–21 also requires the State to describe its strategy in developing its countermeasure programs and selecting the projects to allow it to meet the highway safety performance targets. In selecting the strategies and projects, States should be guided by the data and data analysis supporting the effectiveness of the proposed countermeasures and, if applicable, the emphasis areas in the State strategic highway safety plan. NHTSA does not intend to discourage innovative countermeasures, especially where few established countermeasures exist, such as in distracted driving. Innovative countermeasures that may not be scientifically proven to work but that contain promise based on limited practical applications are encouraged when a clear data-driven safety need has been identified. As evidence of potential success, justification of new countermeasures can also be based on the prior success of specific elements from other effective countermeasures.
MAP–21 requires that a State must provide assurances that the State will implement activities in support of national high-visibility law enforcement mobilizations coordinated by the Secretary of Transportation. In addition to providing such assurances, the State must also describe in its HSP the State's planned high visibility enforcement strategies to support national mobilizations for the upcoming grant year. (23 CFR 1200.11(c); Appendix A)
As required under MAP–21, the State must also include a description of its evidence-based traffic safety enforcement program to prevent traffic violations, crashes, crash fatalities, and injuries in areas most at risk for crashes. The IFR sets forth the minimum requirements for the traffic safety enforcement program. (23 CFR 1200.11(c))
MAP–21 also specifies that the HSP must include a report on the State's success in meeting its performance targets from the previous fiscal year's HSP. Unlike the comprehensive, annual performance report required under the old regulation, which is retained by today's action, this performance report is a status report on the core performance measures. (23 CFR 1200.11(d))
Under the old regulation, States submitted as part of their HSP a program cost summary (HS Form 217). This requirement continues under the IFR. States will continue to provide the proposed allocation of funds (including carry-forward funds) by program area. However, under today's action, States must also provide an accompanying list of the projects and an estimated amount of Federal funds for each such project that the State proposes to conduct in the upcoming fiscal year to meet the performance targets identified in the HSP. Prior to and as a condition of reimbursement, the project list must be updated to include identifying project numbers for each project on the list. Several States currently provide this level of information on the HS Form 217, and would not need to provide a separate list. However, States that do not provide this level of detail on the HS Form 217 must either begin doing so or provide a separate list in addition to the HS Form 217. For example, a number of States have grants tracking systems that can generate reports with this information, and such reports would be acceptable even if other information is included. No specific format is required so long as the list includes the projects, project identifier and estimated Federal funding for each project. (23 CFR 1200.11(e); Appendix B)
As under the old regulations, States will continue to submit certifications and assurances, signed by the Governor's Representative for Highway Safety, certifying the HSP application contents and providing assurances that they will comply with applicable laws and regulations, financial and programmatic requirements and any special funding conditions. Only the Governor's Representative for Highway Safety may sign the certifications and assurances required under this IFR. The certifications and assurances will now be included as Appendix A to this part.
MAP–21 provides for a new Teen Traffic Safety Program for statewide efforts to improve traffic safety for teen drivers. States may elect to incorporate such a statewide program as an HSP
Finally, as noted above, MAP–21 requires that applications for all grants under 23 U.S.C. Chapter 4 (including any of the six new grants under Section 405) be part of the HSP submitted on July 1 of the fiscal year preceding the fiscal year of the grant. The IFR provides for this new deadline. (23 CFR 1200.12) Beginning with fiscal year 2014 grants, each State must include its application for the Section 405 grants as part of its HSP. (23 CFR 1200.11(h)) Details about the application contents and qualification requirements of Section 405 grants are provided in Section III below.
MAP–21 specifies that NHTSA must approve or disapprove the HSP within 60 days after receipt. As has been past practice, NHTSA may request additional information from a State regarding the contents of the HSP to determine whether the HSP meets statutory, regulatory and programmatic requirements. To ensure that HSPs are approved or disapproved within 60 days, States must respond promptly to NHTSA's request for additional information. Failure to respond promptly may delay approval and funding of the State's Section 402 grant. (23 CFR 1200.14(a))
Within 60 days, the Approving Official will approve or disapprove the HSP, and specify any conditions to the approval. If the HSP is disapproved, the Approving Official will specify the reasons for disapproval. The State must resubmit the HSP with the necessary modifications to the Approving Official. The Approving Official will notify the State within 30 days of receipt of the revised HSP whether the HSP is approved or disapproved. (23 CFR 1200.14(b)(1))
NHTSA expects to notify States of Section 405 grant qualification before the start of the fiscal year of the grant, and to notify States of grant award amounts early in the fiscal year. However, because the calculation of Section 405 grant awards depends on the number of States meeting the qualification requirements, States must respond promptly to NHTSA's request for additional information or be disqualified from consideration of a Section 405 grant. The agency does not intend to delay grant awards to States that comply with grant submission procedures due to the inability of other States to meet submission deadlines.
The requirements of the old regulation regarding the apportionment and obligation of Section 402 funds remain largely unchanged. However, these requirements now apply both to Section 402 and 405 grant funds. For Section 405 grants, each State must also provide an update to the HSP in addition to the updated HS Form 217 for approval to address the grant funds awarded for that fiscal year for each of the Section 405 grant programs for which it is applying. The IFR contains new language clarifying that grant funds are available for expenditure for three years after the last day of the fiscal year of apportionment or allocation. (23 CFR 1200.15)
Under this heading, we describe the requirements set forth in today's action for each of the six new MAP–21 grant programs under 23 U.S.C. 405 (Occupant Protection, State Traffic Safety Information System Improvements, Impaired Driving Countermeasures, Distracted Driving, Motorcyclist Safety and State Graduated Driver Licensing). The subheadings and explanatory paragraphs contain references to the relevant sections of the IFR where a procedure or requirement is implemented, as appropriate.
MAP–21 contains some provisions that apply in common to most or all of the grants authorized under Section 405, such as definitions. In addition, in some cases the agency has determined that it is appropriate to impose certain requirements consistently across all of these grants. For example, “passenger motor vehicle” is defined in accordance with the agency's statutory jurisdiction to regulate motor vehicles with a gross vehicle weight rating of less than 10,000 pounds. These include passenger cars, minivans, vans, SUVs and pickup trucks. Also, for all but the motorcyclist safety grant program, eligibility under Section 405 is controlled by the definition of “State” under 23 U.S.C. 401, which includes the 50 States, the District of Columbia, Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam and the U.S. Virgin Islands. (As noted in § 1200.25, the 50 States, the District of Columbia and Puerto Rico are eligible to apply for motorcyclist safety grants.)
For most of the grants authorized under 23 U.S.C. 405, States may qualify for a grant based on the existence of a conforming State statute. In order to qualify for a grant on this basis, the State statute must be enacted by the application due date and be in effect and enforced, without interruption, by the beginning of and throughout the fiscal year of the grant award. (23 CFR 1200.20(d))
Historically, NHTSA has interpreted the term “enforce” in other highway safety programs from previous authorizations (e.g., SAFETEA–LU, Section 2005, Pub. L. 109–59) to mean that the enacted law must be in effect, allowing citations and fines to be issued. NHTSA will continue to interpret “enforce” as it has in the past for these Section 405 grant programs. Therefore, a statute that has a future effective date or that includes a provision limiting enforcement (e.g., by imposing written warnings) during a “grace period” after the statute goes into effect would not be deemed in effect or being enforced until the effective date is reached or the grace period ends. A State whose law is either not in effect, contains a “grace period,” “warning period” or sunset provision during the grant year will not qualify for a grant for that fiscal year.
MAP–21 specifies that for three of the Section 405 grant programs (Occupant Protection, State Traffic Safety Information System Improvements and Impaired Driving Countermeasures) grant awards will be allocated in proportion to the State's apportionment under 23 U.S.C. 402 for fiscal year 2009. For two of the grant programs (Distracted Driving and Motorcyclist Safety), MAP–21 does not specify how the grant awards will be allocated. For consistency with the other three Section 405 grant programs, and in accordance with past practice in a number of highway safety grant programs, NHTSA will allocate Distracted Driving and Motorcyclist Safety grant awards in proportion to the State's apportionment under 23 U.S.C. 402 for fiscal year 2009. For Graduated Driver Licensing grants, MAP–21 specifies that grant awards will be allocated in proportion to the State's apportionment under 23 U.S.C. 402 for that fiscal year. In determining the grant award, NHTSA will apply the apportionment formula under 23 U.S.C.
In the event that all grant funds authorized for Section 405 grants are not distributed, MAP–21 authorizes NHTSA to reallocate the remaining amounts before the end of the fiscal year for expenditure under the Section 402 program or in any Section 405 program area. (23 U.S.C. 405(a)(1)(G)) In accordance with this provision, NHTSA intends to transfer these remaining grant funds among other programs to ensure that to the maximum extent practicable each State receives the maximum funding for which it qualifies. (23 CFR 1200.20(e)(3))
3.
The purpose of this program is to encourage States to adopt and implement occupant protection laws and programs to reduce highway deaths and injuries from individuals riding unrestrained in motor vehicles. NHTSA has administered a State occupant protection incentive grant program since 1998, starting with a program authorized under the Transportation Equity Act for the 21st Century (TEA–21), Public Law 105–178. That program was reauthorized largely unchanged in 2005 under SAFETEA–LU (formerly codified at 23 U.S.C. 405), along with two additional occupant protection grant programs—Safety Belt Performance Grants (formerly codified at 23 U.S.C. 406) and Child Safety and Child Booster Seat Incentive Grants (Section 2011 of SAFETEA–LU).
MAP–21 consolidated these previously separate occupant protection grants into a single occupant protection grant under new Section 405(b). Under this program, an eligible State can qualify for grant funds as either a high seat belt use rate State or lower seat belt use rate State. A high seat belt use rate State is a State that has an observed seat belt use rate of 90 percent or higher; a lower seat belt use rate State is a State that has an observed seat belt use rate of lower than 90 percent. MAP–21 provides that a high seat belt use rate State may qualify for funds by submitting an occupant protection plan and meeting three programmatic criteria (
1.
Under this program, a State is eligible for occupant protection incentive grant funds as either a high seat belt use rate State or a lower seat belt use rate State. The State's seat belt use rate determines whether a State qualifies for a grant under this section as a high seat belt use rate State or a lower seat belt use rate State. States must follow the procedures set forth in the IFR for submitting seat belt use rates and documentation to the agency. (23 CFR 1200.21(d))
States conduct annual seat belt use observational surveys each calendar year based on survey designs approved under 23 CFR part 1340, Uniform Criteria for State Observational Surveys of Seat Belt Use. Under the existing procedures, States submit the results of the seat belt use survey March 1 each year. Based on the information submitted by the States, NHTSA will determine which States are eligible for a grant as high seat belt use rate States and which States are eligible as lower seat belt use rate States.
The definition of the terms “high seat belt use rate State” and “lower seat belt use rate State” clarify how these determinations will be made. Specifically, a State's status will be based on the actual seat belt use rate without rounding and without taking into account the standard deviation. Thus, for example, neither a State with a seat belt use rate of 89.95 nor a State with a rate of 89.95 +/− a 2.5 percent standard error will be considered a high seat belt use rate State. Consistent with current practice, the agency will review the State submitted seat belt use rate derived from the approved statewide seat belt use survey and provide confirmation of the rate or request additional information within 30 days. For fiscal year 2013 grants, the agency will determine eligibility based on the seat belt use rates from the calendar year 2011 statewide seat belt use surveys.
The IFR sets forth how a State may qualify for a grant as a high seat belt use rate State (23 CFR 1200.21(d)) or a lower seat belt use rate State (23 CFR 1200.21(e))
3.
For the first fiscal year of the grant program, States must submit an occupant protection plan that describes programs the State will implement for achieving reductions in traffic crashes, fatalities and injuries on public roads. (23 CFR 1200.21(d)(1)) In subsequent fiscal years, States must update the occupant protection plan if there are changes to the programs. States have long included occupant protection plan material in the HSP they submit under Section 402. The agency intends that States continue to be guided by the elements prescribed under Uniform Guidelines for the State Highway Safety No. 20 Occupant Protection Programs, promulgated under 23 U.S.C. 402, in
MAP–21 specifically requires States to participate in the
MAP–21 requires States to have “an active network of child restraint inspection stations.” Although MAP–21 does not define “active network,” the IFR specifies that an “active network” is one where inspection stations are located in areas that service the majority of the State's population and show evidence of outreach to underserved areas. The agency used a version of this population-based approach in the Motorcyclist Safety grant program authorized by SAFETEA–LU. The agency will use population data from the most recent national census (currently 2010) to validate that the stations are representative of a majority of the population.
In addition, today's action specifies that these stations must be staffed with nationally certified CPS technicians during posted working hours. It is permissible for the State to have one technician responsible for more than one inspection station. (23 CFR 1200.21(d)(3))
MAP–21 also requires that States must have a plan to recruit, train and maintain a sufficient number of child passenger safety technicians. The IFR specifies that a “sufficient number” means at least one nationally certified CPS technician responsible for coverage of each inspection station and inspection event throughout the State. As noted above, it is permissible for the State to plan to have one technician responsible for more than one inspection station. (23 CFR 1200.21(d)(4))
MAP–21 requires the State to maintain its aggregate expenditures from all State and local sources for occupant protection programs at or above the average level of such expenditures in fiscal years 2010 and 2011. The agency has the authority to waive or modify this requirement for not more than one fiscal year. The agency expects that waivers will only be granted under exceptional or uncontrollable circumstances. As a condition of the grant, States will be required to provide assurances that the State will maintain its aggregate expenditures in accordance with this provision. (23 CFR 1200.21(c)(2); Appendix D)
4.
MAP–21 specifies that a State must enact and enforce a primary enforcement seat belt use law. To qualify for this criterion, the IFR requires that a State have primary enforcement of all seating positions covered under the State's seat belt use law and child restraint law. (23 CFR 1200.21(e)(1)) Thus, for example, if a State seat belt use law requires all front seat passengers to be secured in a seat belt and its child restraint law requires all children under 16 years of age to be secured in a child restraint or seat belt, the State must provide for primary enforcement for all violations of those requirements in order to qualify for this criterion.
MAP–21 requires a lower seat belt use rate State to have occupant protection laws requiring front and rear occupant protection use by all occupants in an “age-appropriate restraint.” Because MAP–21 requires coverage in an age-appropriate restraint, the agency is continuing the requirements set forth in the predecessor child and booster seat grant program (Section 2011 of SAFETEA–LU) that were tied to the agency's child restraint performance standards (FMVSS 213). Thus, under today's IFR, to meet this criterion, a State must require each occupant who is under eight years of age, weighs less than 65 pounds and is less than four feet, nine inches in height to be secured in an age-appropriate child restraint. (23 CFR 1200.21(e)(2)(i)) All occupants riding in passenger motor vehicles other than those identified above must be secured in a seat belt or appropriate child restraint. (23 CFR 1200.21(e)(2)(ii)) These provisions require that there be no gaps in coverage in the State occupant protection laws. (23 CFR 1200.21(e)(2)(ii))
The IFR also continues the minimum fine requirements of the predecessor Section 405 program for a violation of the occupant program law. To qualify under this criterion, the State must provide for the imposition of a minimum fine of not less than $25 per unrestrained occupant. This provision ensures that the State is enforcing the law in a meaningful manner that can deter violations.
MAP–21 does not specify any permissible exemptions for this criterion. Most, if not all, States have some exemptions in their occupant protection laws. The agency recognizes that the goals of higher seat belt use would not be served by denying grants to States regardless of the nature of the exemption. However, some exemptions would severely undermine the safety considerations underlying the statute. Based on NHTSA's review of seat belt laws under previous authorizations and given the maturity of occupant protection programs, the IFR permits some exemptions, or variations of exemptions, that the agency has accepted by long-standing application in seat belt programs, such as Section 405, 406 and 2011 grant programs under previous authorizations. (23 CFR 1200.21(e)(2)(iv)) The permitted exemptions include the following:
(A) Drivers, but not passengers, of postal, utility, and commercial vehicles that make frequent stops in the course of their business;
(B) Persons who are unable to wear a seat belt or child restraint because of a medical condition, provided there is written documentation from a physician;
(C) Persons who are unable wear a seat belt or child restraint because all other seating positions are occupied by persons properly restrained in seat belts or child restraints;
(D) Emergency vehicle operators and passengers in emergency vehicles during an emergency;
(E) Persons riding in seating positions or vehicles not required by Federal law to be equipped with seat belts;
(F) Passengers in public and livery conveyances;
Many States include exemptions for commercial drivers, such as postal workers and utility workers, who make frequent stops in the course of their business. However, in the IFR the agency limits this exemption to the drivers themselves, and only during the course of their route.
In predecessor grant programs, the agency permitted an exemption for passengers who are unable to wear a seat belt or child restraint because of a medical condition, provided the person has written documentation of the condition from a physician. The agency is aware of several variations of this exemption under State laws. The IFR specifically limits the exemption to a “medical condition” that is “documented” by a “physician.” Provisions that exempt passengers for size, weight or unfitness, for example, are not permissible. Exemptions that do not require “written” documentation and that such documentation be from a “physician,” meaning a licensed medical professional, are similarly not permissible. The agency has not found compelling evidence of medical conditions that impair a passenger's ability to wear a seat belt or child restraint, and for this reason, this medical exemption will be interpreted narrowly.
By long-standing practice under predecessor grant programs, the agency has permitted an exemption when all seating positions are occupied by other belted or restrained passengers, or when vehicles are not required to be equipped with seat belts, and the IFR continues to permit these exemptions. However, exemptions of the first kind are not permitted unless all other seating positions in the vehicle are occupied with properly belted or restrained passengers. Exemptions for persons riding in seating positions not required by Federal law to be equipped with seat belts recognize that some older vehicles that are still on the road were originally manufactured without seat belts.
States also include exemptions for emergency situations. The agency understands that passengers and operators of emergency vehicles during an emergency may not be belted or in child restraints due to the circumstances. While it is unlikely that law enforcement personnel would ticket persons in these situations, even with the exemption, the IFR permits an exemption for emergency vehicles in emergency situations. This exemption is specific to “emergency vehicles.” Exemptions for persons transporting passengers in an emergency situation or attending to the emergency needs of a passenger are impermissibly over broad, because they are subjective in nature, and the IFR does not allow them.
The IFR allows exemptions for passengers in public and livery conveyances, such as taxi cabs. The agency recognizes that many States find it impractical to impose liability in these situations.
Under the predecessor grant program for child safety seats and booster seats, an exemption for children when no combination lap and shoulder belt is available for any seating position was permitted. The IFR continues this exemption, but applies it narrowly. The exemption is permissible only with respect to the use of a booster seat, because booster seats cannot be safely used with a two-point belt. The exemption may not leave the child without a child restraint requirement.
The market for child restraints and booster seats has changed significantly during the last decade. Many child safety seats can be secured with a lap belt only, and many child safety seats are available for children weighing up to 80 pounds. The agency finds no continuing reason why a child should be exempted from all child restraint requirements (leaving the child to be restrained only by a two-point belt) because a combination lap and shoulder belt is not available to accommodate a booster seat. Accordingly, the agency will no longer permit an exemption from a booster seat requirement when no combination lap and shoulder belt is available, unless it requires the use of other age-appropriate child restraints.
Consistent with past practice, NHTSA will review State laws to determine whether all “passenger motor vehicles” are covered by the State occupant protection law. Some State laws omit coverage for vehicles that fall within the definition of passenger motor vehicle. For example, some State laws exempt commercial vehicles or school buses, but define these terms expansively to include passenger cars, SUVs, or minivans used for those purposes. In those circumstances, such laws do not meet the vehicle coverage requirements specified in this IFR. On the other hand, exemptions to occupant protection laws that apply only to vehicles with a GVWR of more than 10,000 pounds do not render the State ineligible for this criterion.
Under MAP–21, this criterion requires a lower seat belt use rate State to “conduct sustained (on-going and periodic) seat belt enforcement at a defined level of participation during the year.” To satisfy this criterion, the IFR specifies that the State must submit a seat belt enforcement plan that documents how law enforcement agencies will participate in the sustained seat belt enforcement to cover at least 70 percent of the State's population as shown by the latest available Federal census or how law enforcement agencies covering geographic areas in which at least 70 percent of the State's unrestrained passenger vehicle occupant fatalities occurred (reported in the HSP) will be responsible for seat belt enforcement. (23 CFR 1200.21(e)(3))
MAP–21 requires a lower seat belt use rate State to implement “countermeasure programs for high-risk populations, such as drivers on rural roadways, unrestrained nighttime drivers, or teenage drivers.” To qualify under this criterion, the IFR directs the State to provide documentation of its countermeasure programs for at least two of the high-risk populations identified in MAP–21 or other high-risk populations identified by the State in its occupant protection plan. The countermeasure programs must identify strategies for increasing seat belt and child restraint use in these population classes. (23 CFR 1200.21(e)(4))
Under MAP–21, a lower seat belt use rate State must implement a comprehensive occupant protection program in which the State has conducted a NHTSA-facilitated program assessment, developed a statewide strategic plan, designated an occupant protection coordinator, and established a statewide occupant protection task force. Under this criterion, in addition to submitting the occupant protection plan required of all States, a lower seat belt use rate State must demonstrate that it has a comprehensive program under which it has developed a multi-year strategic plan based on input from statewide stakeholders. (23 CFR 1200.21(e)(5)(ii–iii)) In prescribing the required elements of the multi-year strategic plan, the agency was guided by the NHTSA's Uniform Guidelines for State Highway Safety Programs No. 20—Occupant Protection, promulgated
A separate criterion in MAP–21 requires a lower seat belt use rate State to demonstrate that it has completed an assessment of its occupant protection program during the three-year period preceding the grant year or will conduct such an assessment during the first year of the grant. A lower seat belt use rate State must provide evidence that it has conducted a comprehensive NHTSA-facilitated assessment of all elements of its occupant protection program within the three years prior to the application due date. If the State has not conducted such an assessment, it may meet the criterion by providing assurances that it will conduct a NHTSA-facilitated assessment by September 1 of the grant year. (23 CFR 1200.21(e)(6)) If the State fails to conduct a NHTSA-facilitated assessment by September 1, the agency will seek the return of Section 405(b) grant funds that the State qualified for on the basis of the State's assurance that it would conduct such an assessment by the deadline, and the agency will redistribute the grant funds in accordance with § 1200.20(e) to other qualifying States under this section. Seeking the return of grant funds and redistributing the funds to other qualifying States is the most equitable resolution since the State did not meet the conditions of the grant, and those grant funds should properly be awarded to other qualifying States. Further, the failure of a State to conduct this assessment will disqualify the State from the next fiscal year's grant.
5.
MAP–21 continues, with some changes, the traffic safety information system improvements grant program authorized under SAFETEA–LU (formerly codified at 23 U.S.C. 408). The purpose of the new grant program, as under SAFETEA–LU, is to support State efforts to improve the data systems needed to help identify priorities for Federal, State and local highway and traffic safety programs, to link intra-State data systems, and to improve the compatibility and interoperability of these data systems with national data systems and the data systems of other States for highway safety purposes, such as enhancing the ability to analyze national trends in crash occurrences, rates, outcomes and circumstances. (23 CFR 1200.22(a))
The role and function of a TRCC in the State Traffic Safety Information System Improvements grant program is very similar to that of the TRCC in the predecessor data program. Consistent with those requirements (pursuant to which many States already have established the necessary organizational structure for their TRCC), a State's TRCC under this section must have a multidisciplinary membership that includes, among others, owners, operators, collectors and users of traffic records and public health and injury control data systems, highway safety, highway infrastructure, law enforcement and adjudication officials, and public health, emergency medical services (EMS), injury control, driver licensing and motor carrier agencies and organizations. (23 CFR 1200.22(b)(1))
Building on guidance issued under the predecessor data program, this IFR requires that a TRCC have specific review and approval authority with respect to State highway safety data and traffic records systems, technologies used to keep such systems current, TRCC membership, the TRCC coordinator, changes to the State's multi-year Strategic Plan, and performance measures used to demonstrate quantitative progress. It also charges a TRCC with considering, coordinating and representing to outside organizations the views of the State organizations involved in the administration, collection and use of highway safety data and traffic records. (23 CFR 1200.22(b)(2))
This IFR, as under the predecessor program, requires a State to have a traffic records strategic plan that has been approved by the TRCC and describes specific quantifiable and measurable anticipated improvements in the State's core safety databases. The data collection and information systems sections of the traffic records strategic plan should be coordinated with the State strategic highway safety plan. Identified performance measures, using the formats set forth in the Model Performance Measures for State Traffic Records Systems (DOT HS 811 441, February 2011), collaboratively developed by NHTSA and GHSA, continue to be critical components of a State's strategic plan, as do recommendations resulting from its most recent highway safety data and traffic records system assessment. (23 CFR 1200.22(c))
Continuing the emphasis on performance measures and measurable progress, this IFR emphasizes that a valid and unequivocal method of demonstrating quantitative improvement in the data attributes of accuracy, completeness, timeliness, uniformity, accessibility, and integration in a core database is by showing an improved consistency within the State's record system or achievement of a higher level of compliance with a national model inventory of data elements, such as the Model Minimum Uniform Crash Criteria (MMUCC), the Model Impaired Driving Records Information System (MIDRIS), the Model Inventory of Roadway Elements (MIRE) or the National Emergency Medical Services Information System (NEMSIS). These model data elements include the measure of
Performance measures must be in the formats set forth in the Model
Under the predecessor data program, a State had to certify that it had adopted and was using the model data elements or that the grant funds it received under the program would be used toward adopting and using the maximum number of model data elements as soon as practicable. To qualify for a grant under this IFR, States do
States are strongly encouraged to submit one or more voluntary interim progress reports documenting performance measures and supportive data that demonstrate quantitative progress in relation to one or more of the six significant data program attributes. NHTSA recommends submission of the interim progress reports prior to the application due date to provide time for NHTSA to interact with the State to obtain any additional information that NHTSA may need to verify the State's quantifiable, measurable progress.
This IFR requires that a State certification be based on an assessment that complies with the procedures and methodologies outlined in NHTSA's Traffic Records Highway Safety Program Advisory (DOT HS 811 644). As in the past, NHTSA will continue to conduct State assessments that meet the requirements of this section without charge, subject to the availability of funding. (23 CFR 1200.22(e))
A State that satisfies this certification requirement on the basis of having updated an assessment of its highway safety data and traffic records system during the preceding five years must submit with its application an assessment update report including (1) the date on which the most recent assessment was completed, (2) a listing of all recommendations to the State contained in the assessment report, (3) an explanation of how the State has addressed each recommendation since the date the assessment was completed, and (4) the date on which the assessment update report was prepared.
MAP–21 requires the State to maintain its aggregate expenditures from all State and local sources for State traffic safety information system programs at or above the average level of such expenditures in fiscal years 2010 and 2011. The agency has the authority to waive or modify this requirement for not more than one fiscal year. The agency expects that waivers will be granted only under exceptional circumstances. As a condition of the grant, each State will be required to provide assurances that the State will maintain its aggregate expenditures in accordance with this provision. (23 CFR 1200.22(f); Appendix D)
6.
The impaired driving countermeasures grant program was created by the Drunk Driving Prevention Act of 1988 and codified at 23 U.S.C. 410. As originally conceived, States could qualify for basic and supplemental grants under this program. Since the inception of the Section 410 program, it has been amended several times to change the grant criteria and grant award amounts. The most recent amendments prior to those leading to today's action arose out of the program authorized under SAFETEA–LU. These amendments modified the grant criteria and the award amounts and made a number of structural changes to streamline the program.
Under SAFETEA–LU, States could meet the grant program requirements by qualifying either on the basis of a low alcohol-related fatality rate, based on the agency's Fatality Analysis Reporting System (FARS) data, or by meeting a number of specified programmatic criteria each year of the grant (three in the first fiscal year, four in the following fiscal year, and five in the remaining fiscal years of the program). Specifically, the programmatic requirements included the following criteria: high visibility impaired driving enforcement program; prosecution and adjudication outreach program; BAC testing program; high risk drivers program; alcohol rehabilitation or DWI court program; underage drinking prevention program; administrative license suspension and revocation program; and self-sustaining impaired driving prevention program. In addition, a separate grant program provided funds to the 10 States with the highest alcohol-related fatality rates.
MAP–21 modified the grant award criteria and the award amounts and included a number of structural changes to the impaired driving countermeasures grant program.
As directed in MAP–21, States qualify for a grant based on a determination of the State's average impaired driving fatality rate using the most recently available final data from NHTSA's FARS. States are then classified as either low-range, mid-range, or high-range States and are required to meet certain statutory requirements associated with each classification. In addition, under MAP–21, a new grant is created to separately reward States that have mandatory ignition interlock laws applicable to all DUI offenders (“alcohol-ignition interlock State” grants). There are no longer formal programmatic requirements under MAP–21. (23 CFR 1200.23(c))
The average impaired driving fatality rate, the basis for most grant awards under this section, is based on the number of fatalities in motor vehicle crashes in a State that involve a driver with a blood alcohol concentration of at least 0.08 percent for every 100,000,000 vehicle miles traveled (VMT). Rate determinations based on FARS data from the most recently reported three calendar years for a State are then averaged to determine the rate. These determinations will be used to identify States as either low-, mid- or high-range States in accordance with MAP–21 requirements. (23 CFR 1200.23(d)–(f)) Consistent with the predecessor grant program requirements, the agency expects to make rate information available to the States by June 1. This date will allow the agency to use the most recently available final FARS data in its calculations. If there is any delay in the availability of FARS data in a given year, the agency will use the rate calculations from the preceding year. This approach will ensure that any delay in data availability will not affect the awarding of grants under this section.
MAP–21 specifies that low-range States are those with an average impaired driving fatality rate of 0.30 or lower; mid-range States are those with an average impaired driving fatality rate that is higher than 0.30 and lower than 0.60; and high-range States are those that have an average impaired driving fatality rate of 0.60 or higher. The agency will not round any rates for the purposes of determining how a State should be classified among these ranges.
MAP–21 provides for separate grants to be made to “alcohol-ignition interlock States,” as further described below. Each State with a law that requires every individual convicted of driving under the influence or driving while intoxicated to be subject to the use of an alcohol-ignition interlock for a minimum of 30 days is eligible for a separate grant. MAP–21 provides that up to 15 percent of the amount available to carry out the impaired driving countermeasures program shall be available for grants to States meeting this criterion. (23 CFR 1200.23(g))
Under MAP–21, States that have an average impaired driving fatality rate of 0.30 or lower are considered low-range States. Prior to the start of the application period (on or about June 1 of each fiscal year), the agency will inform each State that qualifies for a grant as a low-range State. These States are not required to provide any additional information in order to receive grant funds. However, these States will be required to submit information that identifies how the grant funds will be used in accordance with the requirements of MAP–21 (see qualifying uses below). (23 CFR 1200.23(d)(1))
In addition, MAP–21 requires the State to maintain its aggregate expenditures from all State and local sources for impaired driving programs at or above the average level of such expenditure in fiscal years 2010 and 2011. (23 CFR 1200.23(d)(2)) As a condition of the grant, each State will be required to provide assurances that the State will maintain its aggregate expenditures in accordance with this provision. (Appendix D) The agency has the authority to waive or modify this requirement for not more than one fiscal year. The agency expects that waivers will only be granted under exceptional circumstances.
The above requirements that apply to low-range States are minimum requirements that apply to all States that receive a grant under Section 405(d).
Under MAP–21, States that have an average impaired driving fatality rate that is higher than 0.30 and lower than 0.60 are considered mid-range States. In accordance with the statutory requirements, States qualifying as mid-range States are required to submit a statewide impaired driving plan that addresses the problem of impaired driving. The plan must have been developed by a statewide impaired driving task force within the three years prior to the application due date. If the State has not developed and submitted a plan that meets the statutory criteria at the time of the application deadline, then it must provide an assurance that one will be developed and submitted to NHTSA by September 1 of the grant year. (23 CFR 1200.23(e)) If the State fails to submit the plan by September 1, the agency will seek the return of Section 405(d) grant funds that the State qualified for based on its assurance that it would submit the plan by the deadline, and will redistribute the grant funds in accordance with § 1200.20(e) to other qualifying States under this section, consistent with the treatment of similarly situated States under Section III.B.4.iv, above.
The purpose of a statewide impaired driving plan is to provide a comprehensive strategy for preventing and reducing impaired driving behavior. The agency is requiring the plan to be organized in accordance with the general areas stated in NHTSA's Uniform Guidelines for State Highway Safety Programs No. 8—Impaired Driving. These general areas provide the basis for a comprehensive approach to addressing problems of impaired driving. States also should consider including sections on data-driven problem identification, strategies for addressing identified problems and target groups, plans for measuring progress and outcomes, and steps to achieve stakeholder input and participation in the plan. (23 CFR 1200.23(e)(1))
In accordance with MAP–21, all qualifying plans must be developed by a statewide impaired driving task force. The IFR requires that the task force include key stakeholders in the State from the State Highway Safety Office and the areas of law enforcement and criminal justice system (e.g., prosecution, adjudication, probation). The IFR also requires that the task force include, as appropriate, stakeholders from the areas of driver licensing, treatment and rehabilitation, ignition interlock programs, data and traffic records, public health, and communication. The State should include a variety of individuals from different functions or disciplines that bring different perspectives and experiences to the task force. Such an approach ensures that the plan developed by the task force will be a comprehensive treatment of the issues of impaired driving in a State. (23 CFR 1200.23(e)(2)(iii)) States may consider reviewing NHTSA's report entitled, “A Guide for State-wide Impaired Driving Task Forces” in developing a statewide impaired driving task force.
In addition to a list of the members of the task force, the State must provide information that supports the basis for the operation of the task force, including any charter or establishing documents that describe its purpose and operations. The State also must provide the meeting schedule for the task force for the 12 months that preceded the application deadline and include any reports or documents that the task force produced during that period. This information shall be included in the State's application for a grant. (23 CFR 1200.23(e)(2)(i)–(ii))
Under MAP–21, States that have an average impaired driving fatality rate that is 0.60 or higher are considered high-range States. A State qualifying as a high-range State is required to have conducted a NHTSA-facilitated assessment of the State's impaired driving program within the three years prior to the application due date or provide an assurance that it will conduct an assessment during the first year of the grant year. (23 CFR 1200.23(f)(1)) NHTSA's involvement will ensure a comprehensive treatment of impaired driving issues in the State and consistency in the administration of the assessments. This approach is also consistent with NHTSA's longstanding involvement in conducting assessments of State traffic safety activities and programs.
During the first year of the grant, the State is also required to convene a statewide impaired driving task force to develop a statewide impaired driving plan (both the task force and plan requirements are described in the preceding section under mid-range States). In addition to meeting the requirements associated with developing a statewide impaired driving plan, the plan also must address any recommendations from the required assessment. The plan also must include a detailed strategy for spending grant funds and include a description of how such spending supports the statewide impaired driving programs and will
MAP–21 requires the plan to be submitted to NHTSA during the first year of the grant for review and approval. The IFR requires that such a plan be submitted to NHTSA by September 1 of the grant year. After the first year, MAP–21 requires high-range States to update the plan in each subsequent year of the grant and then submit each updated statewide plan for NHTSA's review. (23 CFR 1200.23(f)(2)(ii))
MAP–21 provides a separate grant to those States that adopt and enforce mandatory alcohol-ignition interlock laws. In order to qualify, the IFR requires that a State must have enacted a law by the application deadline that requires that all individuals convicted of a DUI offense to be limited to driving motor vehicles equipped with an ignition interlock. The IFR further requires the restriction to apply for a mandatory minimum period of 30 days. This length of time is consistent with the relatively short timeframe that a State might use for first-time DUI offenders. A State wishing to receive a grant is required to submit the assurances in Part 3 of Appendix D, signed by the Governor's Representative for Highway Safety, providing legal citation to the State statute demonstrating a compliant law. (23 CFR 1200.23(g))
Up to 15 percent of the total amount available under this section may be used to fund alcohol-ignition interlock grants. The agency believes, however, that in the first years of the program few States may qualify for this grant. To avoid the situation where a small number of States might receive inordinately large grant awards, the agency may adjust the funding made available for these grants. This is consistent with the statute, which specifies that up to “15 percent” may be made available for the grants. (23 CFR 1200.23(h))
With the exceptions discussed below, grant funds may be distributed among any of the uses identified in MAP–21. In the IFR, the agency has included definitions for some of the uses. The definitions are generally consistent with those provided for in MAP–21 or with those developed under the prior regulation for this grant program. (23 CFR 1200.23(b) and (i))
For low-range States and States receiving grants as alcohol-ignition interlock States, funds may be used for any of the uses identified. Mid-range States may use grants funds for any of the uses identified except programs designed to reduce impaired driving based on problem identification. In accordance with the statute, mid-range States may use funds for these programs only after review and approval by NHTSA.
High-range States may use grants funds for any uses only after submission and NHTSA approval of the statewide impaired driving plan. A high-range State will not be allowed to voucher against these funds until it has submitted its plan and received approval. States receiving alcohol-ignition interlock grants may use grants funds for any of the uses identified and for any eligible activities described under 23 U.S.C. 402.
MAP–21 created a new distracted driving grant program, authorizing incentive grants to States that enact and enforce laws prohibiting distracted driving. Specifically, States must have statutes that prohibit drivers from texting while driving and youths from using cell phones while driving. In order to give States an opportunity to submit applications for the newly authorized distracted driving grants as soon as possible in fiscal year 2013, NHTSA published a notice of funding availability (NOFA) on August 24, 2012 (77 FR 51610). Due to the unavailability of funds for that program under the current interim appropriations, whose enactment post-dated the NOFA, NHTSA published an updated notice on October 5, 2012, extending the due date for application submissions. (77 FR 61048) NHTSA will award distracted driving grants for fiscal year 2013 as provided in the NOFA. For fiscal year 2014 and future years, NHTSA will award distracted driving grants in accordance with the implementing regulations published in this IFR.
1.
MAP–21 provides that the State statute must prohibit drivers from texting through a personal wireless communications device while driving. (23 CFR 1200.24(c)(1)) MAP–21 defines “personal wireless communications device,” “texting” and “driving”. (23 CFR 1200.20; 23 CFR 1200.24(b)) The State statute prohibiting texting must be consistent with these definitions. For example, MAP–21 defines texting to include “reading” from personal wireless communications devices. A State statute that does not prohibit reading texts or similar forms of electronic data communications would not enable the State to qualify for a distracted driving grant. Similarly, MAP–21 defines “driving” to include being temporarily stopped because of traffic or at a traffic light. If the State statute does not prohibit texting under these circumstances (e.g., a statute prohibiting texting while the vehicle is in motion), it would not enable the State to qualify for a distracted driving grant.
MAP–21 requires the State statute to prohibit a driver who is younger than 18 years of age from using a personal wireless communications device while driving. (23 CFR 1200.24(c)(2)) As noted above, MAP–21 defines “personal wireless communications device” and “driving,” and a State statute prohibiting youth cell phone use while driving must be consistent with these definitions.
MAP–21 requires that the State statute make a violation of both the texting prohibition and the youth cell phone use prohibition a primary offense. (23 CFR 1200.24(c)(1)(ii) and 1200.24(c)(2)(ii)). As defined by MAP–21, a primary offense is “an offense for which a law enforcement officer may stop a vehicle solely for the purpose of issuing a citation in the absence of evidence of another offense.” (23 CFR 1200.20(b))
MAP–21 requires that the State statute provide for a minimum fine for a first violation and increased fines for repeat violations. In order to meet the minimum fine requirement, the IFR specifies a minimum fine of $25 for a first violation of the texting and youth cell phone use law. (23 CFR 1200.24(c)(1)(iii)(A) and 1200.24(c)(2)(iv)(A)) This minimum fine amount is consistent with past practice in other highway safety grant programs from previous authorizations. State laws that provide for fines “up to,” “not more than,” “not to exceed” or similar terms would not satisfy the minimum fine requirement in MAP–21. Such language does not mandate a minimum fine for a violation.
In order to meet the increased fines for repeat violations requirement, the State statute must provide for a fine
MAP–21 does not require that fines increase with each subsequent offense. In order to qualify for a distracted driving grant, the State statute need not provide for increasing fine amounts for third and subsequent offenses, beyond the increased fine for a second (or repeat) offense.
MAP–21 provides that the State statute must require distracted driving issues to be tested as part of the State driver's license examination. In order to meet this requirement, the State statute must specifically require distracted driving issues to be tested as part of the State's driver's license examination. To satisfy this requirement, it is not sufficient that a State may, as a matter of current practice, be testing for distracted driving issues—the State statute must require it in statute. (23 CFR 1200.24(c)(2)(iii))
MAP–21 specifies that a State statute may provide for the following exceptions and still meet the qualification requirements for a distracted driving grant: a driver who uses a personal wireless communications device to contact emergency services; emergency services personnel who use a personal wireless communications device while operating an emergency services vehicle and engaged in the performance of their duties as emergency services personnel; and an individual employed as a commercial motor vehicle driver or a school bus driver who uses a personal wireless communications device within the scope of such individual's employment if such use is permitted under the regulations promulgated pursuant to section 31136 of title 49. No other exceptions are permitted under MAP–21. Accordingly, the IFR does not permit any other exceptions. (23 CFR 1200.24(c)(3))
2.
Unlike the other Section 405 grant programs authorized by MAP–21, only the 50 States, the District of Columbia and Puerto Rico are eligible to apply for a motorcyclist safety grant. The territories are not eligible. The qualification criteria for these grants remain largely unchanged from those required for Motorcyclist Safety grants under section 2010 of SAFETEA–LU. Under MAP–21 States qualify for a grant by meeting two of six grant criteria: Motorcycle Rider Training Courses; Motorcyclists Awareness Program; Reduction of Fatalities and Crashes Involving Motorcycles; Impaired Driving Program; Reduction of Fatalities and Accidents Involving Impaired Motorcyclists; and Use of Fees Collected from Motorcyclists for Motorcycle Programs. (23 U.S.C. 405(f)(3))
To qualify for a grant based on this criterion, MAP–21 requires a State to have “an effective motorcycle rider training course that is offered throughout the State, which (i) provides a formal program of instruction in accident avoidance and other safety-oriented operational skills to motorcyclists and (ii) that may include innovative training opportunities to meet unique regional needs.” (23 U.S.C. 405(f)(3)(A)) This remains unchanged from SAFETEA–LU.
To implement this criterion, the IFR sets forth the elements of motorcycle rider training courses that would meet the requirements of MAP–21. (23 CFR 1200.25(e)) In developing these requirements, the agency was guided by the specific language of MAP–21 and by established motorcycle safety programs and practices implemented under SAFETEA–LU. The MAP–21 language is nearly identical to the statutory language in the predecessor program. For this reason, the agency intends to leave in place the familiar practices and programs established under SAFETEA–LU. The motorcyclist training program is well known to the States and provides significant support for State efforts on motorcyclist training.
In order to provide the formal program of instruction in crash avoidance and other safety-oriented operational skills required by MAP–21, the IFR requires that the State use a curriculum approved by the designated State authority having jurisdiction over motorcyclist safety issues. (23 CFR 1200.25(e)(1)(i)) Although MAP–21 uses the term “motorcycle rider training” for this criterion, it defines the term “motorcyclist safety training” as a “formal program of instruction approved for use in a State by the designated State authority having jurisdiction over motorcyclist safety issues, which may include the State motorcycle safety administrator or motorcycle advisory council appointed by the Governor of the State.” (23 U.S.C. 405(f)(5)(C)) NHTSA believes Congress intended the terms to apply synonymously and that Congress defined “motorcyclist safety training” in order to give additional meaning to the motorcycle rider training courses criterion. This is reflected in the IFR. (23 CFR 1200.25(b)).
Additionally, because State motorcycle rider training courses typically include both in-class and on-the-motorcycle training and both are critical to the effectiveness of a motorcycle rider training course, the IFR requires that the curriculum include both types of training. (23 CFR 1200.25(e)(1)(i))
To effectuate the MAP–21 requirement that a State offer its effective motorcycle rider training course throughout the State, NHTSA intends to follow the process it applied in the predecessor program. The IFR requires that a State offer at least one motorcycle rider training course in a majority of the State's counties or political subdivisions or offer at least one motorcycle rider training course in counties or political subdivisions that account for a majority of the State's registered motorcycles. (23 CFR 1200.25(e)(1)(ii)) For the purposes of this criterion, majority means greater than 50 percent, and the IFR recognizes that locations for motorcycle rider training courses may vary widely from State to State. Accordingly, the agency believes this requirement provides flexibility to States seeking to qualify under this criterion. To implement the MAP–21 requirements for “an effective motorcycle rider training course that is offered throughout the State,” the IFR requires States to submit information regarding the motorcycle rider training courses offered in the 12 months
NHTSA continues to believe it is important that training reach motorcyclists in rural areas because about half of all motorcycle-related fatalities occur in rural areas. Accordingly, consistent with the practice under SAFETEA–LU, in selecting counties or political subdivisions in which to conduct training, NHTSA encourages States to establish training courses and course locations that are accessible to both rural and urban residents. The IFR provides that the State may offer motorcycle rider training courses throughout the State at established training centers, using mobile training units, or any other method defined as effective by the designated State authority having jurisdiction over motorcyclist safety issues. (23 CFR 1200.25(e)(1)(i))
Another requirement is that motorcycle rider training instructors be certified by either the designated State authority having jurisdiction over motorcyclist safety issues or by a nationally recognized motorcycle safety organization with certification capability. (23 CFR 1200.25(e)(1)(iii)) Requiring instructors to attain certification in order to teach a motorcycle rider training course will contribute to the course's effectiveness by ensuring that instructors have obtained an appropriate level of expertise qualifying them to instruct less experienced motorcycle riders.
Finally, the IFR requires that, to qualify for a grant under this criterion, a State must carry out quality control procedures to assess motorcycle rider training courses and instructor training courses conducted in the State. (23 CFR 1200.25(e)(1)(iv)) Quality control procedures promote course effectiveness by encouraging improvements to courses when needed. The IFR does not specify the quality control procedures a State must use. Instead, the IFR requires the State to describe in detail what quality control procedures it uses and the changes the State made to improve courses. (23 CFR 1200.25(e)(2)(v)) At a minimum, a State should gather evaluative information on an ongoing basis (e.g., by conducting site visits or gathering student feedback) and take actions to improve courses based on the information collected.
To satisfy this criterion, MAP–21 requires a State to have “an effective statewide program to enhance motorists' awareness of the presence of motorcyclists on or near roadways and safe driving practices that avoid injuries to motorcyclists.” (23 U.S.C. 405(f)(3(B)) MAP–21 defines “Motorcyclist Awareness” and “Motorcyclist Awareness Program,” and these definitions are adopted by the IFR. (23 CFR 1200.25(b))
To implement this criterion, the IFR sets forth the elements of motorcyclist awareness programs that meet the MAP–21 requirements. (23 CFR 1200.25(f)(1)) In developing these requirements, the agency was guided by the specific language of MAP–21, the history of the motorcyclist awareness criterion implemented under SAFETEA–LU and the highway safety guidelines on motorcycle safety.
First, the definition of “motorcyclist awareness program” in MAP–21 is identical to the definition under SAFETEA–LU and specifies that a program under this criterion be developed by or in coordination with the designated State authority having jurisdiction over motorcyclist safety issues. Before a problem can be effectively addressed, the agency believes that problem identification and prioritization must be performed. Therefore, the IFR requires the State, consistent with practice under SAFETEA–LU, to include as an element under this criterion problem identification and prioritization through the use of State data. (23 CFR 1200.25(f)(1)(ii)) The IFR also requires that a State's motorcyclist awareness program encourage collaboration among agencies and organizations responsible for, or impacted by, motorcycle safety issues. (23 CFR 1200.25(f)(1)(iii))
Additionally, the IFR requires that a State's motorcyclist awareness program incorporate a strategic communications plan to support the overall policy and program because this criterion contemplates an informational or public awareness program to enhance motorist awareness of the presence of motorcyclists and because awareness efforts rely heavily on communication strategies and implementation. To ensure statewide application, the IFR requires that the communications plan be designed to educate motorists in those jurisdictions where the incidence of motorcycle crashes is highest (i.e., the majority of counties or political subdivisions in the State with the highest numbers of motorcycle crashes, using data from the most recent calendar year, but no older than two calendar years prior to the application due date). For the purposes of this criterion, majority means greater than 50 percent. Finally, based on NHTSA's experience with dispersing traffic safety messages, the IFR requires that a communications plan include marketing and educational efforts and use a variety of communication mechanisms to increase awareness of a problem. (23 CFR 1200.25(f)(1)(iv))
To qualify for a grant based on this criterion, MAP–21 requires a State to experience “a reduction for the preceding calendar year in the number of motorcycle fatalities and the rate of motor vehicle crashes involving motorcycles in the State (expressed as a function of 10,000 motorcycle registrations).” (23 U.S.C. 405(f)(3(C))
To satisfy this criterion, the IFR requires that, based on final Fatality Analysis Reporting System (FARS) data, the State must experience a reduction of at least one in the number of motorcyclist fatalities for most recent calendar year for which final FARS data are available as compared to the final FARS data for the calendar year immediately prior to that year; and based on State crash data expressed as a function of 10,000 motorcycle registrations (using FHWA motorcycle registration data), the State must experience at least a whole number reduction (i.e., at least a 1.0 reduction) in the rate of motor vehicle crashes involving motorcycles for the most recent calendar year for which final State crash data is available, but no older than two calendar years prior to the application due date, as compared to the calendar year immediately prior to that year. (E.g., for a grant application submitted on July 1, 2013, a State must provide data from the most recently available crash data, but no older than calendar 2011 year data, which would be compared to the data from the calendar year immediately prior to that year.) (23 CFR 1200.25(g)(1))
The IFR does not use the term “preceding calendar year” because NHTSA and most States do not have final FARS and State crash data available for the preceding calendar year at the time of the grant application. However, in order to have the most recent data available, the IFR specifies computing the rates required under this criterion using the most recently available FARS data and State crash data. Using the final FARS data, FHWA motorcycle registration data and State crash data, NHTSA will calculate the rates to determine a State's compliance with this criterion.
Consistent with the predecessor program, using the most recent final FARS data will ensure that the most accurate fatality numbers are used to determine each State's compliance with
NHTSA will use FHWA motorcycle registration data because it contains reliable motorcycle registration data compiled in a single source for all 50 States, the District of Columbia, and Puerto Rico. The FHWA reports and releases motorcycle registration data annually.
Requiring a whole number reduction (i.e., at least a 1.0 reduction) is consistent with MAP–21's requirement that there be a reduction in the number of fatalities and the rate of motor vehicle crashes involving motorcycles in the State. The agency believes that such a reduction remains meaningful when viewed in light of the increase in motorcycle use and registrations in recent years.
Finally, NHTSA data systems for all 50 States, the District of Columbia and Puerto Rico cover only fatal crashes. No national data system currently exists that covers both crashes resulting in injuries and crashes involving property damage. Accordingly, NHTSA will rely on crash data provided by each State for the crash-related portion of this criterion.
To qualify for a grant based on this criterion, MAP–21 requires that a State implement “a statewide program to reduce impaired driving, including specific measures to reduce impaired motorcycle operation.” (23 U.S.C. 405(f)(3)(D))
To satisfy this criterion, the IFR requires that a State have an impaired driving program that, at a minimum, uses State data to identify and prioritize the State's impaired driving and impaired motorcycle operation problem areas, and includes specific countermeasures to reduce impaired motorcycle operation with strategies designed to reach motorists in those jurisdictions where the incidence of impaired motorcycle crashes is highest. (23 CFR 1200.25(h)(1)) For the purposes of this criterion, “impaired” will refer to alcohol-or drug-impaired as defined by State law, provided that the State's legal impairment level does not exceed .08 BAC.
NHTSA recognizes that the definition of impairment differs from State to State, but that all States' definitions of alcohol-impaired driving currently include at most a .08 BAC limit. Because of the differences among the States, the IFR allows each State to use its definition of impairment for the purposes of this criterion, provided that the State maintains at most a .08 BAC limit. In order to implement a program to reduce impaired driving, a State would use its own data to perform problem identification and prioritization to reduce impaired driving and impaired motorcycle operation in problem areas in the State.
NHTSA considers a State's program that includes specific countermeasures to reduce impaired motorcycle operation with strategies designed to reach motorists in those jurisdictions where the incidence of motorcycle crashes involving an impaired operator is highest (i.e., the majority of counties or political subdivisions in the State with the highest numbers of motorcycle crashes involving an impaired operator), to be consistent with the MAP–21 requirement that the impaired driving program under this criterion be implemented statewide. For the purposes of this criterion, majority means greater than 50 percent. Finally, as identified in MAP–21, the IFR requires that a State's impaired driving program include specific countermeasures to reduce impaired motorcycle operation. (23 CFR 1200.25(h)(1)(ii))
To qualify for a grant based on this criterion, MAP–21 requires that a State must experience “a reduction for the preceding calendar year in the number of fatalities and the rate of reported crashes involving alcohol-impaired or drug-impaired motorcycle operators (expressed as a function of 10,000 motorcycle registrations).” (23 U.S.C. 405(f)(3)(E))
To satisfy this criterion, the IFR requires that, based on final FARS data, the State must experience a reduction of at least one in the number of fatalities involving alcohol-impaired or drug-impaired motorcycle operators for the most recent calendar year for which final FARS data is available, as compared to the final FARS data for the calendar year immediately prior to that year; and based on State crash data expressed as a function of 10,000 motorcycle registrations (using FHWA motorcycle registration data), the State must experience at least a whole number reduction (i.e., at least a 1.0 reduction) in the rate of reported crashes involving alcohol-impaired and drug-impaired motorcycle operators in the most recent calendar year for which final State crash data is available, but data no older than two calendar years prior to the application due date, as compared to the calendar year immediately prior to that year. (23 CFR 1200.25(i)(1))
As with the criterion for reduction of fatalities and crashes involving motorcycles, the IFR does not use the term “preceding calendar year” because NHTSA and most States do not have final FARS and State crash data available for the preceding calendar year at the time of the grant application. However, in order to have the most recent data available, the IFR requires computing the rates required under this criterion using the most recently available FARS data and State crash data. Using the final FARS data, FHWA motorcycle registration data and State crash data, NHTSA will calculate the rates to determine a State's compliance with this criterion.
As with the impaired driving program criterion, “impaired” refers to alcohol-impaired or drug-impaired as defined by State law, provided that the State's legal alcohol impairment level does not exceed .08 BAC.
The use of FARS data, FHWA motorcycle registration data, and State crash data under this criterion mirror the use of these data under the reduction of fatalities and crashes involving motorcycles, as described above, and the rationale is the same. Additionally, the use of FARS data for this criterion will be particularly helpful because one of the limitations of the State crash data files is unknown alcohol use. In order to calculate alcohol-related crash involvement for a State, NHTSA uses a statistical model based on crash characteristics to impute alcohol involvement in fatal crashes where alcohol use was unknown or not reported.
To qualify for a grant based on this criterion, MAP–21 requires that “all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs will be used for motorcycle training and safety programs.” (23 U.S.C. 405(f)(3)(F)) Under the IFR, a State may qualify for a grant under this criterion as a “Law State” or a “Data State.” (23 CFR 1200.25(j)(1)) For the purposes of this criterion, a Law State means a State that has a statute or regulation requiring that all fees collected by the State from motorcyclists for the purposes of
To qualify for a grant under this criterion as a Law State, the IFR requires that a State have in place the statute or regulation as described above. (23 CFR 1200.25(j)(1)(i)) The State statute or regulation must provide that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs are to be used for motorcycle training and safety programs.
To qualify for a grant under this criterion as a Data State, the IFR requires that a State demonstrate that revenues collected for the purposes of funding motorcycle training and safety programs are placed into a distinct account and expended only for motorcycle training and safety programs. (23 CFR 1200.25(j)(1)(ii)) State data and/or documentation from official records from the previous State fiscal year must show that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs were, in fact, used for motorcycle training and safety programs. (23 CFR 1200.25(j)(2)(ii)) Such data and/or documentation must show that revenues collected for the purposes of funding motorcycle training and safety programs were placed into a distinct account and expended only for motorcycle training and safety programs.
7.
In general, a graduated driver's licensing system consists of a multi-staged process for issuing driver's licenses to young, novice drivers to ensure that they gain valuable driving experience under controlled circumstances and demonstrate responsible driving behavior and proficiency. Under a previous NHTSA authorization (TEA–21), Congress provided for the adoption of a GDL system as one means that States could use to satisfy the requirements for an alcohol-impaired driving prevention program incentive grant. (formerly codified at 23 U.S.C. 410) The agency issued a rule implementing those GDL provisions. In 2005, Section 2007 of SAFETEA–LU eliminated the GDL option.
MAP–21 reintroduces an incentive grant for States to adopt and implement GDL laws. The minimum qualification criteria set forth for the GDL grant by MAP–21 are prescriptive; few potential applicants currently meet all of the minimum qualification criteria prescribed by MAP–21. Beyond the minimum qualification criteria, MAP–21 provides discretion to the agency to establish additional requirements. This IFR establishes minimum qualification criteria for the GDL Incentive Grant.
MAP–21 requires NHTSA to seek public comment on how to implement the minimum qualification criteria for the GDL program. Accordingly, on October 5, 2012, NHTSA published an NPRM in the
To qualify for a GDL Incentive Grant, the IFR requires a State to submit an application and certain documentation demonstrating compliance with the minimum qualification criteria specifically established by MAP–21 and with certain other requirements. (23 CFR 1200.26(c)(1)) To receive a grant, MAP–21 requires a State's graduated driver's licensing law to include a learner's permit stage and an intermediate stage meeting the minimum requirements set forth below.
MAP–21 requires that young, novice drivers complete a GDL program prior to receiving an “unrestricted driver's license”. Although MAP–21 uses the phrase “unrestricted driver's license,” NHTSA has elected not to use that terminology in the IFR. Driver's licenses commonly contain restrictions, such as requirements that the driver wear corrective lenses while operating the motor vehicle. In order to avoid confusion, the IFR uses and defines “full driver's license” to mean a license to operate a passenger motor vehicle on public roads at all times. Therefore, the learner's permits and intermediate stage licenses required under this program are not considered full driver's licenses, and neither are restricted licenses (such as those permitting operation of a motor vehicle for limited purposes, and therefore not allowing operation of a passenger motor vehicle at all times).
The IFR requires that a State's GDL system begin with a learner's permit stage that applies to any novice driver who is younger than 21 years of age prior to the receipt by such driver from the State of any other permit or license to operate a motor vehicle. (23 CFR 1200.26(c)(2)(i)(A)) To receive a grant, a State may not issue any other motor vehicle permit or license (including a motorcycle permit or license), to a young, novice driver until he or she completes a GDL program. Because the IFR defines a novice driver as a driver who has not been issued an intermediate license or full driver's license by any State (23 CFR 1200.26(b)), the GDL requirements stop short of covering drivers who have been issued such a license in another State but later become residents of a State with a GDL requirement. However, NHTSA encourages States to integrate new residents who possess intermediate licenses into their GDL programs. Drivers younger than 21 years of age who possess only a learner's permit from another State are still considered novice drivers under the IFR and must satisfy all minimum requirements of the applicable stages.
MAP–21 creates limited exceptions for States that enacted a law prior to January 1, 2011, establishing either of the following two classes of permit or license: a permit or license that allows drivers younger than 18 years of age to
Similar to the Section 410 GDL regulations, the IFR requires that the learner's permit stage commence only after an applicant passes vision and knowledge tests, including tests about the rules of the road, signs, and signals. (23 CFR 1200.26(c)(2)(i)(B)) This ensures that novice drivers have a basic level of competency regarding the rules and requirements of driving before being permitted to operate a motor vehicle on public roadways. As required by MAP–21, the learner's permit stage must be at least six months in duration, and it also may not expire until the driver reaches at least 16 years of age. (23 CFR 1200.26(c)(2)(i)(C))
MAP–21 allows the agency discretion to prescribe additional requirements on a learner's permit holder, and it identifies three potential requirements for the agency's consideration: (1) Accompaniment and supervision by a licensed driver who is at least 21 years of age at all times while the learner's permit holder is operating a motor vehicle, (2) receipt by the permit holder of at least 40 hours of behind-the-wheel training with a licensed driver who is at least 21 years of age, and (3) completion by the permit holder of a driver education or training course. The Director of the West Virginia Governor's Highway Safety Program (GHSP) submitted a comment supporting implementation of the first requirement, and GHSA recommended that the supervising adult be required to possess a valid driver's license. In response to these comments, NHTSA has adopted the recommended requirement and has defined “licensed driver” to be “a driver who possess a valid full driver's license.” (23 CFR 1200.26(b), 1200.26(c)(2)(i)(D)(
Comments regarding a behind-the-wheel training requirement were more varied. GHSA questioned whether there is definitive research on the amount of supervised driving time that is effective for reducing accidents and fatalities, and suggested that a supervised driving requirement would be “premature.” In contrast, several other commenters expressed strong support for minimum requirements for behind-the-wheel training. Nationwide Insurance, Allstate, and Advocates for Highway and Auto Safety expressed support for at least thirty hours of minimum behind-the-wheel training. IIHS, Consumers Union, and the GHSP supported a minimum requirement of forty hours, and State Farm supported a minimum requirement of fifty hours. The IFR adopts the requirement for 40 hours of behind-the-wheel training, consistent with the comments and with the MAP–21 suggested approach. (23 CFR 1200.26(c)(2)(i)(D)(
GHSA asked whether behind-the-wheel driver training would be provided by public or private providers, or whether it called for supervised behind-the-wheel driving. One individual commenter noted that some people, such as young drivers with single parents, may be unable to satisfy a supervised driving requirement. The IFR requires “40 hours of behind-the-wheel training with a licensed driver who is at least 21 years of age.” It does not specify that the training be provided by a public or private organization; such training may be provided by anyone who possesses a valid unrestricted driver's license and is at least 21 years of age, including individuals or professional driving instructors. The IFR requirements provide significant flexibility, and the agency does not believe that they will result in undue burden.
NHTSA received numerous comments regarding the value or burden of imposing a driver education or training course requirement on learner's permit holders. GHSA stated that there is mixed evidence regarding the effectiveness of driver training courses, which also tend to be expensive for States to provide. IIHS and State Farm expressed concern about studies showing either little effectiveness or increased crash risk resulting from driver training courses. West Virginia noted that, as a rural State, it has many areas where neither schools nor private companies offer driver training, creating a burden on novice drivers without access to those courses. In contrast, AAA recommended that NHTSA include a basic driver education course requirement. The State of New York Department of Motor Vehicles (New York DMV) asked NHTSA to provide guidance on what would qualify as a “driver training course” under the regulations, while both AAA and the NTSB suggested that NHTSA should base any such guidance on the Novice Teen Driver Education and Training Administrative Standards.
Integrating driver education more thoroughly with GDL systems, strengthening driver testing, involving parents in the driver education process and preparing them to manage risks for their new driver, and extending the duration of young driver training may have significant safety benefits. Driver education is a key part of the comprehensive approach needed to reduce tragic young driver crashes. NHTSA further believes that requiring driver education is not overly burdensome, and States can choose to implement the requirement so as to best manage the associated costs. The IFR adopts the driver education or training course requirement and adds the requirement that the course attended by the permit holder be certified by the State. (23 CFR 1200.26(c)(2)(i)(D)(
Finally, consistent with the requirements under the regulations for the predecessor GDL program, the IFR requires a learner's permit holder to pass a driving skills test prior to entering the intermediate stage or being issued another permit, license or endorsement. (23 CFR 1200.26(c)(2)(i)(D)(
Under MAP–21, the State must require that all drivers who complete the learner's permit stage and are younger than 18 years of age enter an intermediate stage that commences immediately upon the expiration of the learner's permit stage. The intermediate stage must be in effect for a period of at least six months, but may not expire until the driver reaches at least 18 years of age. The IFR implements these requirements. (23 CFR 1200.26(c)(2)(ii)(A)–(C)) The New York DMV noted that it issues adult licenses to young drivers who turn 18 years old regardless of how long they have had their intermediate license. Under MAP–21, however, this system would not meet the minimum requirements. While the intermediate stage may not expire
The New York DMV also requested that NHTSA include an exemption such that novice drivers who receive driver education or training may receive an unrestricted driver's license prior to reaching 18 years of age. The State expressed concern that, without such an exemption, there would be no incentive for school districts or parents to provide, or young drivers to take, driver education. The State suggests that this could result in the loss of employment and business for numerous traffic safety instructors and driving schools. As a result, New York DMV requested either the exemption or an analysis under the Regulatory Flexibility Act of 1980 (“RFA”) to minimize or analyze the potential effects on small businesses and small governmental jurisdictions.
MAP–21 does not provide the authority for the exemption New York DMV requests. The statute explicitly requires that the intermediate stage last until the driver reaches 18 years of age. Furthermore, NHTSA does not believe that there will be any adverse impact on driver education businesses or instructors, and therefore no analysis is required under the RFA. First, these regulations require that all learner's permit holders complete a driver education or training course in order to receive an intermediate or unrestricted driver's license. Second, no RFA analysis is required because these regulations do not affirmatively mandate anything that would have a direct impact on small businesses. Rather, MAP–21 and this IFR create an incentive grant program for States that elect to comply; States are free to structure their driver's licensing systems and associated training as they see fit.
MAP–21 requires that a State's intermediate stage “restricts driving at night,” but leaves the details of that requirement to the discretion of the agency. NHTSA received numerous comments on how best to address the most dangerous driving hours for novices. Comments generally assumed that the most effective restriction would be to require that the driver be accompanied and supervised by a licensed driver who is at least 21 years of age during some period of the night. The NTSB proposed that the restriction period start no later than midnight. IIHS, the National Safety Council, Nationwide Insurance, State Farm, Allstate, Consumers Union, AAA, and Advocates for Highway and Auto Safety proposed that the mandatory driving restrictions begin at 10 p.m., with many proposing that they end at 5 a.m. In addition, most of those commenters emphasized that there should be no exceptions other than for emergencies. The New York DMV and an individual commenter allowed for exceptions, including for driving related to work and education. Finally, AAA proposed that the restrictions last for at least the first six months of independent driving.
NHTSA agrees that the proper restriction for nighttime driving is to require accompaniment and supervision of the intermediate license holder by a licensed driver who is at least 21 years of age. NHTSA also agrees that a 10 p.m. through 5 a.m. restriction would effectively cover the time period when intermediate drivers are most at risk, and the IFR imposes this requirement. While the IFR provides for exceptions in the case of emergency, it does not permit other exceptions during the restricted driving hours. (23 CFR 1200.26(c)(2)(ii)(D)) Such exceptions may be difficult to enforce and could undermine the safety goals of the restriction.
This IFR also adopts the requirement that, during the intermediate stage, drivers must be prohibited from operating a motor vehicle with more than one non-familial passenger younger than 21 years of age unless a licensed driver who is at least 21 years of age is in the motor vehicle. (23 CFR 1200.26(c)(2)(ii)(E)) This restriction is specifically mandated by MAP–21, and the National School Transportation Association commented in support of this requirement.
MAP–21 requires that, during both the learner's permit and intermediate stages, the driver must be prohibited from using a cellular telephone or any communications device while driving except in case of an emergency. The IFR includes this requirement and specifies that this prohibition be enforced as a primary offense. (23 CFR 1200.26(c)(2)(iii)(A)) The IFR also imposes a requirement that, during both the learner's permit and intermediate stages, the driver must remain conviction-free for a period of not less than six consecutive months immediately prior to the expiration of the current stage. (23 CFR 1200.26(c)(2)(iii)(B)) To remain “conviction-free,” a driver cannot be convicted of any offense under State or local law relating to the use or operation of a motor vehicle. The definition provides examples of driving-related offenses. (23 CFR 1200.26(b)) With this requirement, any conviction related to the use or operation of a motor vehicle would result in “resetting the clock” for the driver's current stage.
The IFR establishes a requirement for license distinguishability similar to the one in the regulations for the predecessor GDL program. Specifically, it requires that the State's learner's permit, intermediate license, and full driver's license be distinguishable from each other. This is necessary to ensure that law enforcement officers are informed about the proper driving restrictions that apply to the driver during a traffic stop. The IFR also clarifies the documentation grant applicants are required to submit in order to prove license distinguishability. (23 CFR 1200.26(c)(3))
As required by MAP–21, NHTSA will award grants to States that meet the qualification criteria on the basis of the apportionment formula under 23 U.S.C. 402 for that fiscal year. (23 CFR 1200.26(d)(1)) Because it is possible that few States will qualify for grants during the first few years of the GDL incentive grant program, the IFR imposes a cap on awards to prevent any States from receiving an unanticipated and disproportionate share of the available grant funds. The amount of a grant award may not exceed 10 percent of the total amount made available for the grant for that fiscal year. (23 CFR 1200.26(d)(2))
MAP–21 also specifies the permitted uses of grant funds. The IFR implements those limitations and clarifies the permitted uses where necessary. At least 25 percent of the grant funds must be used for expenses connected with a compliant GDL law. (23 CFR 1200.26(e)(1)) If a State has received grant funds but later falls out of compliance with the minimum requirements established by the IFR, the State will not be permitted to use this portion of the grant funds. No more than 75 percent of the grant funds may be used for any eligible project under 23 U.S.C. 402. (23 CFR 1200.26(e)(2))
The NTSB commented that NHTSA should include an evaluation element to the grant process to ensure that States are using the grants effectively to improve their GDL programs. MAP–21 does not provide for performance-based evaluation requirements as a condition of receiving grant funds. Therefore, NHTSA declines to impose this additional burden on the States. NHTSA will continue to conduct and/or evaluate new research regarding the effectiveness of various elements of GDL programs.
NHTSA has administered the Section 402 grant program in accordance with implementing regulations found at 23 CFR parts 1200, 1205, 1206, 1250, 1251 and 1252 for many years. Those regulations, which are amended by today's action, contain detailed procedures governing the HSP and administration of the Section 402 grant program. Today's action rescinds part 1205 and updates and incorporates parts 1206, 1250, 1251 and 1252 into part 1200 to improve clarity and organization. (With that incorporation, parts 1206, 1250, 1251, and 1252 are rescinded.) Many of the older provisions in 23 CFR Chapter II contain outdated references to the FHWA and the Annual Work Plan (AWP). Since NHTSA assumed sole responsibility for the administration of the Section 402 program, these references to FHWA and the AWP no longer apply, and today's action deletes these references. However, NHTSA and FHWA continue to work closely to coordinate respective State highway safety programs.
Finally, as discussed in more detail below, today's action amends portions of part 1200 to clarify existing requirements and to provide for improved accountability of Federal funds, and it specifies that the grant administration provisions apply to all 23 U.S.C. Chapter 4 grants.
Under previous authorizations, the Highway Safety Act required the agency to determine, through a rulemaking process, those programs “most effective” in reducing crashes, injuries and deaths. Previously, the Act provided that only those programs established under the rule as most effective in reducing crashes, injuries and deaths would be eligible for Federal financial assistance under the Section 402 grant program. The rule identifying those “most effective” programs was set forth at 23 CFR part 1205. Under MAP–21, States may use grant funds more broadly in accordance with an HSP approved by the agency. Accordingly, the agency rescinds part 1205 as it no longer applies.
The old regulations for the Section 402 program are contained throughout Chapter II of Title 23, CFR. The IFR reorganizes parts 1250 and 1252, which establish the agency's policies for determining political subdivision participation in State highway safety programs and State matching of planning and administration (P&A) costs, respectively, by moving these parts into two new appendices to part 1200. (Appendices E and F)
Many of the provisions in § 1200.11, special funding conditions, of the old regulations (for the Section 402 program) identify statutory requirements that States must continue to meet. These conditions are part of the certifications and assurances in Appendix A that States submit as part of the HSP. The IFR retains the non-statutory provisions regarding the P&A costs as special funding conditions in the renumbered § 1200.13. The IFR also increases the State's allowance for P&A costs from 10 percent to 13 percent to help offset the additional costs associated with project-level reporting and oversight of Section 405 grant funds. In addition, as more State highway safety offices transition to implementing e-grant systems to manage their highway safety program, the increased P&A allowance will help with the high start-up costs and regular maintenance costs. (23 CFR 1200.13; Appendix F) No P&A costs are allowed from Section 405 grant funds. Finally, the IFR also adds the new MAP–21 statutory condition that States may not use Section 402 grant funds for automated traffic enforcement systems. (23 CFR 1200.13)
The IFR incorporates part 1251, which describes the authority and functions of the State Highway Safety Agency, into § 1200.4 under subpart A of part 1200. This change clarifies the role of the State Highway Safety Agency in administering the grant programs under Sections 402 and 405. The IFR also updates these provisions to include critical authorities and functions related to the State Highway Safety Agency's responsibility to provide oversight and management of the highway safety program. For example, the State Highway Safety Agency must have the ability to establish and maintain adequate staffing to effectively plan, manage, and provide oversight of highway safety projects. It must also be responsible for monitoring changes in the State statute or regulation that would affect the State's qualification for grants and impact the State's highway safety program. In addition, the State Highway Safety Agency must have ready access to State data systems that are critical to having a data-driven highway safety program. Finally, IFR revises these provisions to reflect applicable laws and regulations and to update language. (23 CFR 1200.4)
Part 1206 under the old regulation provides for the rules of procedure for invoking sanctions under the Highway Safety Act of 1966. The IFR incorporates part 1206, along with old § 1200.26, non-compliance, under a new subpart F of part 1200. The provisions of this subpart remain largely unchanged and are applicable to the Section 402 and 405 grant programs. (23 CFR 1200.50 and 1200.51)
As a result of the reorganization of 23 CFR Chapter II, a number of sections have been renumbered, such as the section on Definitions (23 CFR 1200.3), Equipment (23 CFR 1200.31), Program Income (23 CFR 1200.34), Annual Report (23 CFR 1200.35), Appeals (23 CFR 1200.36), Post-Grant Adjustments (23 CFR 1200.42) and Continuing Requirements (23 CFR 1200.43). The IFR deletes the old provision regarding improvement plans as the agency currently provides recommendations and technical assistance to States that have had little or no progress towards achieving State performance targets. While new definitions have been added (performance measure, project, project agreement), as mentioned in Section II.B. and discussed in Section IV.B., and existing definitions clarified (Highway Safety Plan, highway safety program, program area), no other substantive changes have been made to these provisions.
A number of other requirements apply to the Section 402 and 405 programs, including such government-wide provisions as the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments (49 CFR part 18) and the Office of Management and Budget (OMB) Circulars containing cost principles and audit requirements. These provisions are independent of today's notice, and continue to apply in accordance with their terms.
Several provisions in 23 CFR Chapter III (parts 1313, 1335, 1345 and 1350) pertain to grant programs whose authorizations have expired. Those parts are being rescinded by today's action.
For ease of reference, the provisions that have been reorganized are republished in this notice.
The agency is responsible for overseeing and monitoring implementation of the grant programs to help ensure that recipients are meeting program and accountability requirements. Oversight procedures for monitoring the recipients' use of awarded funds can help the agency determine whether recipients are operating efficiently and effectively. Effective oversight procedures based on internal control standards for monitoring the recipients' use of
Since the 1980s, States have used HS Form 217 (program cost summary) to provide cost information for the State highway safety program. States will continue to use this form for Section 402 and Section 405 grants. However, States that allocate the grant funds by program area in the HS Form 217 must also provide a list of projects (and project numbers and estimated amount of Federal funds) that will be conducted under each program area. (23 CFR 1200.32; see also 23 CFR 1200.15) The IFR defines project, project agreement and project number in § 1200.3 to provide clarification so that the agency can better track information submitted by the States.
Each State submits this form as part of its HSP and then submits an updated HSP and HS Form 217 within 30 days after the beginning of the fiscal year or date of award. Some States routinely update their HSP and HS Form 217 throughout the fiscal year of the grant. Today's action amends the regulation to clarify that the Approving Official must approve both the amended HSP and amended HS Form 217. This change is intended to help the agency ensure that grant funds are expended for purposes authorized by statute or regulation (e.g., eligibility of use of grant funds, tracking Federal share, local participation). States must also update the list of projects submitted pursuant to § 1200.11(e). As discussed below, reimbursement of vouchers for projects is subject to receipt by NHTSA of an updated list of projects. (23 CFR 1200.32; see also 23 CFR 1200.15)
While grantees or recipients have primary responsibility to administer, manage, and account for the use of grant funds, the Federal grant-awarding agency also maintains responsibility for oversight in accordance with applicable laws and regulations. Changes to the regulation are necessary to reflect the complexity of current grant programs and to ensure effective oversight. Today's action requires additional documentation from States when submitting vouchers so that the agency has information linking vouchers to expenditures prior to approving reimbursements and to assist subsequent audits and reviews.
Under the old regulation, States submitted vouchers providing detail only at the program area level. Vouchers will still be submitted at the program area level, but the State must also provide an itemization of project numbers and amount of Federal funds expended for each project for which reimbursement is being sought. This can be provided through the State's summary financial reports. In addition, the project numbers (and amount of Federal funds) for which the State seeks reimbursement must match the list of project numbers (and not exceed the identified amount) submitted to NHTSA pursuant to § 1200.11(e) or amended pursuant to § 1200.32. If there is an inconsistency in either the project number or the amount of Federal funds claimed, the voucher will be rejected, in whole or part, until an amended list of projects and/or estimated amount of Federal funds is submitted to and approved by the Approving Official pursuant to § 1200.32.
As under the old regulation, States must make copies of project agreements and other supporting documentation available for review by the Approving Official. However, the IFR now requires that project agreements bear the project number reported in the list of projects submitted by States pursuant to § 1200.11(e). Supporting documentation must also be retained in a manner that enables the agency to track the expenditures to vouchers and projects. With this change, the agency will be better able to track the State's expenditure of grant funds. (23 CFR 1200.33)
A fundamental expectation of Congress is that funds made available to States will be used promptly and effectively to address the highway safety problems for which they were authorized. To encourage States to liquidate grant funds in a timely fashion, today's action sets forth the procedures for deobligating grant funds that remain unexpended for long periods. We believe that as States increase the timeliness of their grant fund expenditures, safety outcomes can improve.
Section 402 and 405 grant funds are authorized for apportionment or allocation each fiscal year. Because these funds are made available each fiscal year, it is expected that States will strive to use these grant funds to carry out highway safety programs during the fiscal year of the grant. In the past, expending all of the incentive grant funds within the fiscal year was impractical in part because such funds were awarded late in the fiscal year. States often carried forward unexpended grant funds into the next fiscal year.
With the enactment of MAP–21, NHTSA expects to apportion or allocate grant funds early in the fiscal year. States should, to the fullest extent possible, expend these funds during the fiscal year to meet the intent of the Congress in funding an annual program. To address the issue of unexpended balances, the IFR provides that grant funds are available for expenditure for three years after the last day of the fiscal year of apportionment or allocation. (23 CFR 1200.41(b)) This is consistent with section 31101 of MAP–21 that provides that 23 U.S.C. Chapter 1 applies to the Chapter 4 grant programs.
Closeout procedures are intended to ensure that recipients have met all financial requirements, provided final reports, and returned any unused funds. NHTSA's grant programs, especially the Section 402 program, are formula grant programs that continue each fiscal year until rescinded by Congress. Each year States submit Highway Safety Plans detailing their highway safety programs. Under the old regulation, with the approval of the Approving Official, States could extend the right to incur costs for up to 90 days and then submit final vouchers. Any funds remaining at the end of the closeout were carried forward to the next fiscal year.
The IFR continues to provide that the HSP expires at the end of the fiscal year. (23 CFR 1200.40) Unlike the old regulation, the IFR provides that States will no longer be permitted to extend the right to incur costs under the old fiscal year's Highway Safety Plan. However, grant funds remaining at the end of the fiscal year are available for
States will still have 90 days after the end of the fiscal year to submit a final voucher against the old fiscal year's Highway Safety Plan. The Approving Official may extend the time period to submit a final voucher against the old fiscal year's Highway Safety Plan only in extraordinary circumstances. This does not constitute an extension of the right to incur costs under the old fiscal year's Highway Safety Plan. (23 CFR 1200.40)
The additional requirement, noted above, is that the funds must not be from a fiscal year earlier than four years prior. The requirement for an annual report evaluating performance on a fiscal year basis is retained. The IFR also allows for extending the due date for submission of the annual report, subject to approval of the Approving Official.
MAP–21 provides that most of the new requirements in Section 402 apply to fiscal year 2014 grants, whose grant applications are due on July 1, 2013. The IFR clarifies that the codified regulations in place at the time of grant award continue to apply to fiscal year 2013 Section 402 grants. (23 CFR 1200.60)
The IFR provides that, except for fiscal year 2013 distracted driving grants, the remaining Section 405 grants will be administered through the provisions set forth in today's action. The application due date is 60 days from the publication date of the IFR. MAP–21 sets forth a single application due date for fiscal year 2014 grants under Chapter 4. The application (the HSP) for fiscal year 2014 Section 402 and 405 grants is due July 1, 2013. (23 CFR 1200.61)
As noted above, the agency recognizes that States will have unexpended balances of grant funds from grant programs that have been rescinded by MAP–21 (before fiscal year 2013). Those grant funds will be governed by the laws and implementing regulations or guidance that were in effect during those grant years (23 CFR 1200.62), and must be tracked separately.
The Administrative Procedure Act (5 U.S.C. 553(d)) requires that a rule be published 30 days prior to its effective date unless one of three exceptions applies. One of these exceptions is when the agency finds good cause for a shorter period. We have determined that it is in the public interest for this final rule to have an immediate effective date. NHTSA is expediting a rulemaking to provide notice to the States of the new requirements for the HSP required by Section 402 and the criteria for different components of the Section 405 grants. The fiscal year 2013 grant funds must be awarded to States before the end of the fiscal year, and States need the time to complete their fiscal year 2013 grant applications. For fiscal year 2014 grants, the statutory grant application due date is July 1, 2013, and States need time to complete these applications as well. Early publication of the rule setting forth the requirements for State applications for multiple grants that have separate qualification requirements is therefore imperative.
For these reasons, NHTSA is issuing this rulemaking as an interim final rule that will be effective immediately. As an interim final rule, this regulation is fully in effect and binding upon its effective date. No further regulatory action by the agency is necessary to make this rule effective. However, in order to benefit from comments which interested parties and the public may have, the agency is requesting that comments be submitted to the docket for this notice.
Specifically, MAP–21 directs NHTSA to use these existing performance measures from the report, “Traffic Safety Performance Measures for States and Federal Agencies,” now, and make revisions to the set of performance measures going forward, in coordination with GHSA. (23 U.S.C. 402(k)(4)) In anticipation of such further coordination by NHTSA and GHSA in revising the performance measures, NHTSA is seeking comment in this IFR on ways to improve data requirements from States, improve performance measures and criteria, possible additional performance measures to be considered, and test and analyze the effectiveness of programs based on these performance measures to help inform the allocation of resources. In particular, we seek public comment on whether the measures are capturing the correct outcomes and whether the measures and the data submitted by the States enable NHTSA and States to test and identify the cost-effectiveness of highway safety grant programs.
Comments received in response to this notice, as well as continued interaction with interested parties and the public during fiscal years 2013 and 2014, will be considered for making future changes to the programs through these rule provisions. Following the close of the comment period, the agency will publish a notice responding to the comments and, if appropriate, the agency will amend the provisions of this rule.
For ease of reference, the IFR sets forth in full the revised part 1200.
Executive Order 12866, “Regulatory Planning and Review,” provides for making determinations whether a regulatory action is “significant” and therefore subject to the Office of Management and Budget (OMB) review and to the requirements of the Executive Order. Executive Order 13563 supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. In accordance with Executive Orders 12866 and 13563, this rulemaking was reviewed by OMB and designated by OMB as a “significant regulatory action.” A “significant regulatory action” is defined as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The annual amount authorized by MAP–21 for highway safety grants ($500 million in FY 2013 and $507 million in FY 2014) exceeds the $100 million threshold. However, the annual amount authorized by SAFETEA–LU for highway safety grants was $564 million in FY 2012. MAP–21 grant programs replace SAFETEA–LU grant programs. The difference in the amount of grant funds authorized for highway safety
MAP–21 highway safety grants are non-discretionary grants directly authorized by Congress. NHTSA's action details grant application procedures and qualification criteria; it does not impact the aggregate amount of grant funds distributed to the States. That amount is specified by MAP–21, as is the manner of distribution—most of the funds are required by MAP–21 to be awarded to qualifying States through a formula (75 percent in the ratio of the State population to the total population and 25 percent in the ratio of public road mileage in the State to the total road mileage in the United States, with a specified minimum apportionment for the Section 402 program). A minor exception is that, consistent with past practice, the rule applies the statutory formula in two cases where MAP–21 does not mandate its application, affecting less than $28 million annually.
The statutory distribution formula continued under MAP–21 for State highway safety grants has been in place for decades. MAP–21 directs NHTSA to “ensure, to the maximum extent possible, that all [grant funds] are obligated during [the] fiscal year.” These statutory provisions—the distribution formula and the direction to obligate all grant funds—are prescriptive, and leave little room for discretion. Consequently, the rule does not confer any benefit on the economy that goes beyond what Congress has already specified in law to be distributed in these non-discretionary grants, nor does the rule materially alter the grants' budgetary impacts or the rights or obligations of grant recipients. The rule also does not create an inconsistency or otherwise interfere with an action taken or planned by another agency.
The following information is provided for general information about the benefits of the grants. Based on the statutory formula, FY 2013 grants for States to conduct highway safety programs under the Section 402 grant program (totaling $235 million) range from $21.2 million for the State of California to $1.7 million for 13 States and the District of Columbia (minimum apportionment), and all States receive a distribution. MAP–21 generally prescribes the criteria for the Section 405 grants (totaling $265 million for six grants in FY 2013), and NHTSA has limited discretion in this rulemaking to implement these criteria. However, given differing levels of interest among States and competing State priorities, it is possible that the qualification criteria for the Section 405 grants could result in some States failing to apply or to qualify for some of these grants. NHTSA cannot predict the spread of annual Section 405 grant applications and awards with precision, and therefore we cannot assess likely allocation effects, but it remains true that all Section 405 grant funds will be distributed by operation of the statute.
In the aggregate, the highway safety grant funds required to be distributed under MAP–21 are the driving influence behind the traffic safety activities implemented by all the States (including the District of Columbia, Puerto Rico, the four territories, and the Indian Country), as they have been under previous authorizations for many years. From 2006 to 2010, highway fatalities have decreased by 23 percent and highway injuries have decreased by 13 percent. The traditionally most significant areas of highway safety activities under the formula grant program—occupant protection and alcohol programs—have experienced similarly dramatic safety benefits over the same five-year period. Unbelted passenger vehicle occupant fatalities have decreased by 33 percent and alcohol-impaired driving fatalities have decreased by 24 percent.
The central purpose of the rule is to set forth the application procedures for States seeking highway safety grant funds, and also to identify the MAP–21 qualification criteria for receiving grant funds. While complying with the application procedures is a requirement for receiving grant funds, and the requirement for States to submit a “highway safety plan” as part of this application is directed by statute, the rule does not impose any mandate on States to submit an application. However, should a State choose to do so, there are some costs and burdens associated with the application process. The agency is seeking emergency clearance from OMB under the Paperwork Reduction Act (PRA) for FY 2013 grant applications, and elsewhere in this document we detail the estimated costs and burden hours associated with the State application process. Interested persons should consult that information. NHTSA intends to submit a request for PRA clearance for the highway safety grant program under the non-emergency process in the near future. Because MAP–21 introduces a single application process, enabling States to submit one application for all grants rather than the separate applications for individual grants required under previous authorizations, burdens on State resources are likely to be substantially reduced.
The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601
This IFR is a rulemaking that will implement new grant programs enacted by Congress in MAP–21. Under these grant programs, States will receive funds if they meet the application and qualification requirements. These grant programs will affect only State governments, which are not considered to be small entities as that term is defined by the RFA. Therefore, I certify that this action will not have a significant impact on a substantial number of small entities and find that the preparation of a Regulatory Flexibility Analysis is unnecessary.
Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” 64 FR 43255 (August 10, 1999). “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, an agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute unless the Federal government provides the funds
The agency has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132, and has determined that this IFR would not have sufficient Federalism implications as defined in the order to warrant formal consultation with State and local officials or the preparation of a federalism summary impact statement. However, NHTSA continues to engage with State representatives regarding general implementation of MAP–21, including these grant programs, and expects to continue these informal dialogues.
Pursuant to Executive Order 12988 (61 FR 4729 (February 7, 1996)), “Civil Justice Reform,” the agency has considered whether this proposed rule would have any retroactive effect. I conclude that it would not have any retroactive or preemptive effect, and judicial review of it may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review. This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. This rule does not concern an environmental, health, or safety risk that may have a disproportionate effect on children.
Under the Paperwork Reduction Act of 1995 (PRA), as implemented by the Office of Management and Budget (OMB) in 5 CFR part 1320, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The grant applications and reporting requirements in this IFR are considered to be a collection of information subject to requirements of the PRA. Because the agency cannot reasonably comply with the submission time periods under the PRA and provide States sufficient time to apply for the grants to be awarded in fiscal year 2013, the agency is seeking emergency clearance for information collection related to the fiscal year 2013 Section 405 grants. The agency is proceeding under the regular PRA clearance process for the collection of information related to grants beginning with fiscal year 2014 grants. Accordingly, in compliance with the PRA, we announce that NHTSA is seeking comment on a new information collection for grant applications and reporting requirements beginning with fiscal year 2014 grants.
MAP–21 also rescinded a number of separate incentive grant programs that existed under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), Public Law 109–59, and replaced them with the “National Priority Safety Programs,” codified in a single section of the United States Code (23 U.S.C. 405 (Section 405)). The National Priority Safety Programs include Occupant Protection, State Traffic Safety Information Systems, Impaired Driving Countermeasures, Motorcyclist Safety, and two new grant programs—Distracted Driving and State Graduated Driver Licensing. MAP–21 specifies a single application deadline for all highway safety grants and directs NHTSA to establish a consolidated application process, using the Highway Safety Plan that States have traditionally submitted for the Section 402 program.
The statute provides that the Highway Safety Plan is the application for grants under 23 U.S.C. 402 and 405 each fiscal year. The information collected under this rulemaking is to include a Highway Safety Plan consisting of information on the highway safety planning process, performance plan, highway safety strategies and projects, performance report, program cost summary (HS Form 217) and list of projects, certifications and assurances, and application for Section 405 grants.
The Highway Safety Plan (HSP) is a planning document for a State's entire traffic safety program and outlines the countermeasures, program activities, and funding for key program areas as identified by State and Federal data and problem identification. By statute, States must submit and NHTSA must approve the HSP as a condition of Section 402 grant funds. MAP–21 also requires States to submit its Section 405 grant application as part of the HSP. States must submit the HSP each fiscal year in order to qualify for Section 402 and 405 grant funds.
The estimated burden hours for the collection of information are based on all eligible respondents (i.e., applicants) for each of the grants:
• Section 402 grants: 57 (fifty States, the District of Columba, Puerto Rico,
• Section 405(f) grants: 52 (fifty States, the District of Columbia, and Puerto Rico);
• Section 405(a)–(e), (g) grants: 56 (fifty States, the District of Columba, Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands).
We estimate that it will take each respondent approximately 240 hours to collect, review, and submit the reporting information to NHTSA for the Section 402 program. We further estimate that it will take each respondent approximately 180 hours to collect, review, and submit the reporting information to NHTSA for the Section 405 program. During the fiscal year the States prepare a HS Form 217 initially and are required to change the funding category amounts 30 days after Section 402 and 405 funding is received. Each respondent will produce approximately forty HS Form 217s annually. It takes approximately
Assuming the average salary of these individuals is $50.00 per hour, the estimated cost for each respondent is $22,000; the estimated total cost for all respondents is $1,254,000.
These estimates present the highest possible burden hours and amounts possible. All States do not apply for and receive a grant each year under each of these programs.
NHTSA notes that under the previous authorization, SAFETEA–LU, States submitted applications separately throughout the fiscal year for various grants (highway safety programs, occupant protection incentive grants, safety belt performance grants, State traffic safety information system improvements, alcohol-impaired driving countermeasures, motorcyclist safety, child safety and child booster seat safety incentive grants). Under the consolidated grant application process, NHTSA estimates that the overall paperwork burden on the States will be reduced by this rulemaking.
Comments are invited on:
• Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility.
• Whether the Department's estimate for the burden of the information collection is accurate.
• Ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers. We have determined that no voluntary consensus standards apply to this action.
The Unfunded Mandates Reform Act of 1995 (Public Law 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 expenditures by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). This IFR would not meet the definition of a Federal mandate because the resulting annual State expenditures would not exceed the minimum threshold. The program is voluntary and States that choose to apply and qualify would receive grant funds.
NHTSA has considered the impacts of this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that this IFR would not have a significant impact on the quality of the human environment.
Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) Is determined to be economically significant as defined under Executive Order 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not likely to have a significantly adverse effect on the supply of, distribution of, or use of energy. This rulemaking has not been designated as a significant energy action. Accordingly, this rulemaking is not subject to Executive Order 13211.
The agency has analyzed this IFR under Executive Order 13175, and has determined that today's action would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.
Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. MAP–21 requires NHTSA to award highway safety grants pursuant to rulemaking and separately requires NHTSA to establish minimum requirements for the graduated driver licensing (GDL) grant in accordance with the notice and comment provisions
The Regulatory Information Service Center publishes the Unified Agenda in or about April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Grant programs—Transportation, Highway safety, Intergovernmental relations, Reporting and recordkeeping requirements, Administrative practice and procedure, Alcohol abuse, Drug abuse, Motor vehicles—motorcycles.
For the reasons discussed in the preamble, under the authority of 23 U.S.C. 401 et seq., the National Highway Traffic Safety Administration amends 23 CFR Chapter II and Chapter III as follows:
23 U.S.C. 402; 23 U.S.C. 405; delegation of authority at 49 CFR 1.95.
This part establishes uniform procedures for State highway safety programs authorized under Chapter 4, Title 23, United States Code.
The provisions of this part apply to highway safety programs authorized under 23 U.S.C. 402 beginning fiscal year 2014 and, except as specified in § 1200.24(a), to national priority safety programs authorized under 23 U.S.C. 405 beginning fiscal year 2013.
As used in this part—
(a)
(b)
(1) Develop and execute the Highway Safety Plan and highway safety program in the State;
(2) Obtain information about programs to improve highway safety and projects administered by other State and local agencies;
(3) Maintain or have ready access to information contained in State highway safety data systems, including crash, citation, adjudication, emergency medical services/injury surveillance, roadway and vehicle record keeping systems, and driver license data;
(4) Periodically review and comment to the Governor on the effectiveness of programs to improve highway safety in the State from all funding sources that the State plans to use for such purposes;
(5) Provide financial and technical assistance to other State agencies and political subdivisions to develop and carry out highway safety strategies and projects; and
(6) Establish and maintain adequate staffing to effectively plan, manage, and provide oversight of highway safety projects approved in the Highway Safety Plan.
(c)
(1) Develop and prepare the Highway Safety Plan based on evaluation of highway safety data, including crash fatalities and injuries, roadway, driver and other data sources to identify safety problems within the State;
(2) Establish highway safety projects to be funded within the State under 23 U.S.C. Chapter 4 based on identified safety problems and priorities;
(3) Provide direction, information and assistance to sub-grantees concerning highway safety grants, procedures for participation, and development of projects;
(4) Encourage and assist sub-grantees to improve their highway safety planning and administration efforts;
(5) Review and approve, and evaluate the implementation and effectiveness of State and local highway safety programs and projects from all funding sources that the State plans to use under the HSP, and approve and monitor the expenditure of grant funds awarded under 23 U.S.C. Chapter 4;
(6) Assess program performance through analysis of highway safety data and data-driven performance measures;
(7) Ensure that the State highway safety program meets the requirements of 23 U.S.C. Chapter 4 and applicable Federal and State laws, including but not limited to the standards for financial management systems required under 49 CFR 18.20;
(8) Ensure that all legally required audits of the financial operations of the State Highway Safety Agency and of the use of highway safety grant funds are conducted;
(9) Track and maintain current knowledge of changes in State statute or regulation that could affect State qualification for highway safety grants or fund transfer programs; and
(10) Coordinate the Highway Safety Plan and highway safety data collection and information systems activities with other federally and non-federally supported programs relating to or affecting highway safety, including the State strategic highway safety plan as defined in 23 U.S.C. 148(a).
If any deadline or due date in this part falls on a Saturday, Sunday or Federal holiday, the applicable deadline or due date shall be the next business day.
Beginning with grants authorized in fiscal year 2014, to apply for any highway safety grant under 23 U.S.C. Chapter 4, a State shall submit a Highway Safety Plan meeting the requirements of this subpart.
Each fiscal year, the State's Highway Safety Plan shall consist of the following components:
(a)
(2) A description of the efforts to coordinate and the outcomes from the
(b)
(1) A list of annual quantifiable and measurable highway safety performance targets that is data-driven, consistent with the Uniform Guidelines for Highway Safety Program and based on highway safety problems identified by the State during the planning process conducted under paragraph (a) of this section.
(2) Performance measures developed by DOT in collaboration with the Governor's Highway Safety Association and others, beginning with the MAP–21 directed “Traffic Safety Performance Measures for States and Federal Agencies” (DOT HS 811 025), which are used as a minimum in developing the performance targets identified in paragraph (b)(1) of this section. Beginning with grants awarded after fiscal year 2014, the performance measures common to the State's HSP and the State highway safety improvement program (fatalities, fatality rate, and serious injuries) shall be defined identically, as coordinated through the State strategic highway safety plan. At least one performance measure and performance target that is data driven shall be provided for each program area that enables the State to track progress, from a specific baseline, toward meeting the target (e.g., a target to “increase seat belt use from X percent in Year 1 to Y percent in Year 2,” using a performance measure of “percent of restrained occupants in front outboard seating positions in passenger motor vehicles”). For each performance measure, the State shall provide:
(i) Documentation of current safety levels;
(ii) Quantifiable annual performance targets; and
(iii) Justification for each performance target that explains why the target is appropriate and data-driven.
(3) Additional performance measures, not included under paragraph (b)(2) of this section. For program areas where performance measures have not been jointly developed, a State shall develop its own performance measures and performance targets that are data-driven (e.g., distracted driving, bicycles). The State shall provide the same information as required under paragraph (b)(2) of this section.
(c)
(1) Each countermeasure strategy and project the State plans to implement to reach the performance targets identified in paragraph (b) of this section. At a minimum, the State shall describe one year of Section 402 and 405 countermeasure strategies and projects (which should include countermeasure strategies identified in the State strategic highway safety plan) and shall identify funds from other sources, including Federal, State, local, and private sector funds, that the State plans to use for such projects or use to achieve program area performance targets.
(2) The State's process for selecting the countermeasure strategies and projects described in paragraph (c)(1) of this section to allow the State to meet the highway safety performance targets described in paragraph (b) of this section. At a minimum, the State shall provide an assessment of the overall traffic safety impacts of the strategies chosen and proposed or approved projects to be funded.
(3) The data and data analysis or other documentation supporting the effectiveness of proposed countermeasure strategies described in paragraph (c)(1) of this section (e.g., the State may include information on the cost effectiveness of proposed countermeasure strategies, if such information is available).
(4) The evidence-based traffic safety enforcement program to prevent traffic violations, crashes, and crash fatalities and injuries in areas most at risk for such incidents. At a minimum, the State shall provide for—
(i) An analysis of crashes, crash fatalities, and injuries in areas of highest risk;
(ii) Deployment of resources based on that analysis; and
(iii) Continuous follow-up and adjustment of the enforcement plan.
(5) The planned high visibility enforcement strategies to support national mobilizations.
(d)
(e)
(2) For each program area, an accompanying list of projects that the State proposes to conduct for that fiscal year and an estimated amount of Federal funds for each such project.
(f)
(g)
(h)
(a) Except as specified under § 1200.61(a), a State shall submit its Highway Safety Plan electronically to the NHTSA regional office no later than July 1 preceding the fiscal year to which the Highway Safety Plan applies.
(b) Failure to meet this deadline may result in delayed approval and funding of a State's Section 402 grant or disqualification from receiving Section 405 grants.
The State's highway safety program under Section 402 shall be subject to the following conditions, and approval under § 1200.14 of this part shall be deemed to incorporate these conditions:
(a)
(2) P&A tasks and related costs shall be described in the P&A module of the State's Highway Safety Plan. The State's matching share shall be determined on the basis of the total P&A costs in the module.
(b)
(a)
(b)
(1) For Section 402 grants, the Approving Official shall issue—
(i) A letter of approval with conditions, if any, to the Governor and the Governor's Representative for Highway Safety; or
(ii)(A) A letter of disapproval to the Governor and the Governor's Representative for Highway Safety informing the State of the reasons for disapproval and requiring resubmission of the Highway Safety Plan with proposed modifications necessary for approval; and
(B) A letter of approval or disapproval upon resubmission of the Highway Safety Plan within 30 days after NHTSA receives the revised Highway Safety Plan.
(2) For Section 405 grants—
(i) The NHTSA Administrator shall notify States in writing of Section 405 grant awards and specify any conditions or limitations imposed by law on the use of funds; or
(ii) The Approving Official shall notify States in writing if a State's application does not meet the qualification requirements for any of the Section 405 grants.
(a) Except as provided in paragraph (b) of this section, on October 1 of each fiscal year, or soon thereafter, the NHTSA Administrator shall, in writing, distribute funds available for obligation under 23 U.S.C. Chapter 4 to the States and specify any conditions or limitations imposed by law on the use of the funds.
(b) In the event that authorizations exist but no applicable appropriation act has been enacted by October 1 of a fiscal year the NHTSA Administrator may, in writing, distribute a part of the funds authorized under 23 U.S.C. Chapter 4 contract authority to the States to ensure program continuity, and in that event shall specify any conditions or limitations imposed by law on the use of the funds. Upon appropriation of grant funds, the NHTSA Administrator shall, in writing, promptly adjust the obligation limitation, and specify any conditions or limitations imposed by law on the use of the funds.
(c) Funds distributed under paragraph (a) or (b) of this section shall be available for expenditure by the States to satisfy the Federal share of expenses under the approved Highway Safety Plan, and shall constitute a contractual obligation of the Federal Government, subject to any conditions or limitations identified in the distributing document. Such funds shall be available for expenditure by the States as provided in § 1200.41(b), after which the funds shall lapse.
(d) Notwithstanding the provisions of paragraph (c) of this section—
(1) Reimbursement of State expenses for Section 402 grant funds shall be contingent upon the submission of an updated HS Form 217 and an updated project list that includes project numbers for each project within 30 days after the beginning of the fiscal year or the date of the written approval provided under § 1200.14(b)(1) of this part, whichever is later, and approval of the updated HS Form 217 by the Approving Official.
(2) Reimbursement of State expenses for Section 405 grant funds shall be contingent upon the submission of an updated Highway Safety Plan, HS Form 217, and project list to address the grant funds awarded under subpart C, within 30 days after the beginning of the fiscal year or the date of the grant award notice provided under § 1200.14(b)(2), whichever is later, and approval of the updated Highway Safety Plan and HS Form 217 by the Approving Official. Submitting the updated Highway Safety Plan and HS Form 217 is a precondition to reimbursement of grant expenses.
(3) The updated HS Form 217 required under paragraphs (d)(1) and (d)(2) of this section shall reflect the State's allocation of grant funds made available for expenditure during the fiscal year, including carry-forward funds. Within each program area, the State shall provide a project list to be conducted during the fiscal year.
(a)
(b)
(c)
(d)
(e)
(1) Except as in provided § 1200.26(d), the amount of a grant award to a State in a fiscal year under this subpart shall be determined by applying the apportionment formula under 23 U.S.C. 402(c) for fiscal year 2009 to all qualifying States, in proportion to the amount each such State received under 23 U.S.C. 402(c) for fiscal year 2009, so that all available amounts are distributed to qualifying States to the maximum extent practicable.
(2) Notwithstanding paragraph (e)(1) of this section, and except as provided in § 1200.25(k), a grant awarded to a State in a fiscal year under this subpart may not exceed 10 percent of the total amount made available for that section for that fiscal year.
(3) If it is determined after review of applications that funds for a grant program under this subpart will not all be distributed, such funds shall be transferred to other programs authorized under 23 U.S.C. 402 and 405 to ensure, to the maximum extent practicable, that each State receives the maximum funding for which it qualifies.
(f)
(a)
(b)
(c)
(d)
(1)
(ii) For subsequent fiscal year awards, an update of the State's occupant protection plan provided in paragraph (d)(1)(i) of this section.
(2)
(3)
(i) Located in areas that service the majority of the State's population and show evidence of outreach to underserved areas; and
(ii) Staffed with at least one current nationally Certified Child Passenger Safety Technician during official posted hours.
(4)
(5)
(e)
(1)
(2)
(i) Each occupant riding in a passenger motor vehicle who is under eight years of age, weighs less than 65 pounds and is less than four feet, nine inches in height to be secured in an age-appropriate child restraint;
(ii) Each occupant riding in a passenger motor vehicle other than an occupant identified in paragraph (e)(2)(i) of this section to be secured in a seat belt or appropriate child restraint;
(iii) A minimum fine of $25 per unrestrained occupant for a violation of the occupant protection laws described in paragraphs (e)(2)(i) and (ii) of this section.
(iv) No exemption from coverage, except the following:
(A) Drivers, but not passengers, of postal, utility, and commercial vehicles that make frequent stops in the course of their business;
(B) Persons who are unable to wear a seat belt or child restraint because of a medical condition, provided there is written documentation from a physician;
(C) Persons who are unable to wear a seat belt or child restraint because all other seating positions are occupied by persons properly restrained in seat belts or child restraints;
(D) Emergency vehicle operators and passengers in emergency vehicles during an emergency;
(E) Persons riding in seating positions or vehicles not required by Federal Motor Vehicle Safety Standards to be equipped with seat belts;
(F) Passengers in public and livery conveyances.
(3)
(i) At least 70 percent of the State's population as shown by the latest available Federal census; or
(ii) Law enforcement agencies responsible for seat belt enforcement in geographic areas in which at least 70 percent of the State's unrestrained passenger vehicle occupant fatalities occurred (reported in the HSP).
(4)
(i) Drivers on rural roadways;
(ii) Unrestrained nighttime drivers;
(iii) Teenage drivers;
(iv) Other high-risk populations identified in the occupant protection plan required under paragraph (d)(1) of this section.
(5)
(i) Conducted a NHTSA-facilitated program assessment that evaluates the program for elements designed to increase seat belt usage in the State;
(ii) Developed a multi-year strategic plan based on input from statewide stakeholders (task force) under which the State developed—
(A)
(B)
(C)
(D)
(iii) designated an occupant protection coordinator; and
(iv) established a statewide occupant protection task force that includes agencies and organizations that can help develop, implement, enforce and evaluate occupant protection programs.
(6)
(i) A NHTSA-facilitated assessment of all elements of its occupant protection program within the three years prior to October 1 of the grant year; or
(ii) For the first year of the grant, the assurance provided in Part 1 of Appendix D, signed by the Governor's Representative for Highway Safety, that the State will conduct a NHTSA-facilitated assessment by September 1 of the grant year. The agency will require the return of grant funds awarded under this section if the State fails to conduct such an assessment by the deadline and will redistribute any such grant funds in accordance with § 1200.20(e) to other qualifying States under this section.
(f)
(1)
(i) To support high-visibility enforcement mobilizations, including paid media that emphasizes publicity for the program, and law enforcement;
(ii) To train occupant protection safety professionals, police officers, fire and emergency medical personnel, educators, and parents concerning all aspects of the use of child restraints and occupant protection;
(iii) To educate the public concerning the proper use and installation of child restraints, including related equipment and information systems;
(iv) To provide community child passenger safety services, including programs about proper seating positions for children and how to reduce the improper use of child restraints;
(v) To establish and maintain information systems containing data concerning occupant protection, including the collection and administration of child passenger safety and occupant protection surveys; and
(vi) To purchase and distribute child restraints to low-income families, provided that not more than five percent of the funds received in a fiscal year are used for such purpose.
(2)
(a)
(b)
(1)
(i) Is chartered or legally mandated;
(ii) Meets at least three times annually;
(iii) Has a multidisciplinary membership that includes owners, operators, collectors and users of traffic records and public health and injury control data systems, highway safety, highway infrastructure, law enforcement and adjudication officials, and public health, emergency medical services, injury control, driver licensing, and motor carrier agencies and organizations; and
(iv) Has a designated TRCC coordinator.
(2)
(i) Have authority to review any of the State's highway safety data and traffic records systems and any changes to such systems before the changes are implemented;
(ii) Consider and coordinate the views of organizations in the State that are involved in the collection, administration, and use of highway safety data and traffic records systems, and represent those views to outside organizations;
(iii) Review and evaluate new technologies to keep the highway safety data and traffic records system current; and
(iv) Approve annually the membership of the TRCC, the TRCC coordinator, any change to the State's multi-year Strategic Plan required under paragraph (c) of this section, and performance measures to be used to demonstrate quantitative progress in the accuracy, completeness, timeliness, uniformity, accessibility or integration of a core highway safety database.
(c)
(1) Describes specific, quantifiable and measurable improvements anticipated in the State's core safety databases, including crash, citation or adjudication, driver, emergency medical services or injury surveillance system, roadway, and vehicle databases;
(2) For any identified performance measure, uses the formats set forth in the Model Performance Measures for State Traffic Records Systems collaboratively developed by NHTSA and the Governors Highway Safety Association (GHSA);
(3) Includes a list of all recommendations from its most recent highway safety data and traffic records system assessment;
(4) Identifies which such recommendations the State intends to implement and the performance measures to be used to demonstrate quantifiable and measurable progress; and
(5) For recommendations that the State does not intend to implement, provides an explanation.
(d)
(e)
(f)
(g)
(1) Either the TRCC charter or legal citation(s) to the statute or regulation legally mandating a TRCC with the functions required by paragraph (b)(2) of this section;
(2) Meeting schedule, all reports and data system improvement and policy guidance documents promulgated by the TRCC during the 12 months immediately preceding the grant application due date;
(3) A list of the TRCC membership and the organizations and functions they represent;
(4) The name and title of the State's Traffic Records Coordinator.
(5) A copy of the Strategic Plan required under paragraph (c) of this section, including any updates to the Strategic Plan.
(6) Either a written description of the performance measures, and all supporting data, that the State is relying on to demonstrate quantitative improvement in the preceding 12 months of the grant application due date in one or more of the significant data program attributes or the location where this information is detailed in the Strategic Plan.
(7) The certification provided in Part 2 of Appendix D, signed by the Governor's Representative for Highway Safety, that an assessment of the State's highway safety data and traffic records system was conducted or updated within the five years prior to the application due date as provided in paragraph (e) of this section.
(h)
(a)
(b)
(1) Abstain totally from alcohol or drugs for a period of time; and
(2) Be subject to testing for alcohol or drugs at least twice per day by continuous transdermal alcohol monitoring via an electronic monitoring device, or by an alternative method approved by NHTSA.
(c)
(d)
(1) Use the funds awarded under 23 U.S.C. 405(d)(1) only for the implementation and enforcement of programs authorized in paragraph (i) of this section; and
(2) Maintain its aggregate expenditures from all State and local sources for impaired driving programs at or above the average level of such expenditure in fiscal years 2010 and 2011, as provided in Part 3 of Appendix D.
(e)
(1)
(i) Has been developed within the three years prior to the application due date;
(ii) Has been approved by a statewide impaired driving task force that meets the requirements of paragraph (e)(2) of this section;
(iii) Provides a comprehensive strategy that uses data and problem identification to identify measurable goals and objectives for preventing and reducing impaired driving behavior and impaired driving crashes; and
(iv) Covers general areas that include program management and strategic planning, prevention, the criminal justice system, communication programs, alcohol and other drug misuse, and program evaluation and data.
(2)
(i) Provides the basis for the operation of the task force, including any charter or establishing documents;
(ii) Includes a schedule of all meetings held in the 12 months preceding the application due date and any reports or documents produced during that time period; and
(iii) Includes a list of membership and the organizations and functions represented and includes, at a minimum, key stakeholders from the State Highway Safety Office and the areas of law enforcement and criminal justice system (e.g., prosecution, adjudication, probation), and, as appropriate, stakeholders from the areas of driver licensing, treatment and rehabilitation, ignition interlock programs, data and traffic records, public health, and communication.
(3)
(f)
(1)
(ii) For the first year of the grant as a high-range State, the assurances provided in Part 3 of Appendix D,
(2)
(A) Meets the requirements of paragraph (e)(1) of this section;
(B) Addresses any recommendations from the assessment of the State's impaired driving program required in paragraph (f)(1) of this section;
(C) Includes a detailed plan for spending any grant funds provided for high visibility enforcement efforts; and
(D) Describes how the spending supports the State's impaired driving program and achievement of its performance goals and targets;
(ii)
(g)
(h)
(2) The amount available for grants under paragraph (g) of this section shall not exceed 15 percent of the total amount made available to States under this section for the fiscal year.
(i)
(i) High visibility enforcement efforts;
(ii) Hiring a full-time or part-time impaired driving coordinator of the State's activities to address the enforcement and adjudication of laws regarding driving while impaired by alcohol;
(iii) Court support of high visibility enforcement efforts, training and education of criminal justice professionals (including law enforcement, prosecutors, judges, and probation officers) to assist such professionals in handling impaired driving cases, hiring traffic safety resource prosecutors, hiring judicial outreach liaisons, and establishing driving while intoxicated courts;
(iv) Alcohol ignition interlock programs;
(v) Improving blood-alcohol concentration testing and reporting;
(vi) Paid and earned media in support of high visibility enforcement of impaired driving laws, and conducting standardized field sobriety training, advanced roadside impaired driving evaluation training, and drug recognition expert training for law enforcement, and equipment and related expenditures used in connection with impaired driving enforcement;
(vii) Training on the use of alcohol screening and brief intervention;
(viii) Developing impaired driving information systems; and
(ix) Costs associated with a 24–7 sobriety program.
(x) Programs designed to reduce impaired driving based on problem identification.
(2)
(3)
(4)
(j)
(a)
(b)
(c)
(1)
(i) Prohibit drivers from texting through a personal wireless communications device while driving;
(ii) Make a violation of the law a primary offense; and
(iii) Establish—
(A) A minimum fine of $25 for a first violation of the law; and
(B) Increased fines for repeat violations within five years of the previous violation.
(2)
(i) Prohibit a driver who is younger than 18 years of age from using a personal wireless communications device while driving;
(ii) Make a violation of the law a primary offense;
(iii) Require distracted driving issues to be tested as part of the State's driver's license examination; and
(iv) Establish—
(A) A minimum fine of $25 for a first violation of the law; and
(B) Increased fines for repeat violations within five years of the previous violation.
(3)
(i) A driver who uses a personal wireless communications device to contact emergency services;
(ii) Emergency services personnel who use a personal wireless communications device while operating an emergency services vehicle and engaged in the performance of their duties as emergency services personnel; and
(iii) An individual employed as a commercial motor vehicle driver or a school bus driver who uses a personal wireless communications device within the scope of such individual's employment if such use is permitted under the regulations promulgated pursuant to 49 U.S.C. 31136.
(d)
(2) Not more than 50 percent of the grant funds awarded under this section may be used for any eligible project or activity under 23 U.S.C. 402.
(a)
(b)
(c)
(d)
(e)
(i) Use a training curriculum that—
(A) Is approved by the designated State authority having jurisdiction over motorcyclist safety issues;
(B) Includes a formal program of instruction in crash avoidance and other safety-oriented operational skills for both in-class and on-the-motorcycle training to motorcyclists; and
(C) May include innovative training opportunities to meet unique regional needs;
(ii) Offer at least one motorcycle rider training course either—
(A) In a majority of the State's counties or political subdivisions; or
(B) In counties or political subdivisions that account for a majority of the State's registered motorcycles;
(iii) Use motorcycle rider training instructors to teach the curriculum who are certified by the designated State authority having jurisdiction over motorcyclist safety issues or by a nationally recognized motorcycle safety organization with certification capability; and
(iv) Use quality control procedures to assess motorcycle rider training courses and instructor training courses conducted in the State.
(2) To demonstrate compliance with this criterion, the State shall submit—
(i) A copy of the official State document (e.g., law, regulation, binding policy directive, letter from the Governor) identifying the designated State authority over motorcyclist safety issues;
(ii) Document(s) demonstrating that the training curriculum is approved by the designated State authority having jurisdiction over motorcyclist safety issues and includes a formal program of instruction in crash avoidance and other safety-oriented operational skills for both in-class and on-the-motorcycle training to motorcyclists;
(iii) Either:
(A) A list of the counties or political subdivisions in the State, noting in which counties or political subdivisions and when motorcycle rider training courses were offered in the 12 months preceding the due date of the grant application, if the State seeks to qualify under this criterion by showing that it offers at least one motorcycle rider training course in a majority of counties or political subdivisions in the State; or
(B) A list of the counties or political subdivisions in the State, noting in which counties or political subdivisions and when motorcycle rider training courses were offered in the 12 months preceding the due date of the grant application and the corresponding number of registered motorcycles in each county or political subdivision according to official State motor vehicle records, if the State seeks to qualify under this criterion by showing that it offers at least one motorcycle rider training course in counties or political subdivisions that account for a majority of the State's registered motorcycles;
(iv) Document(s) demonstrating that the State uses motorcycle rider training instructors to teach the curriculum who are certified by the designated State authority having jurisdiction over
(v) A brief description of the quality control procedures to assess motorcycle rider training courses and instructor training courses used in the State (e.g., conducting site visits, gathering student feedback) and the actions taken to improve the courses based on the information collected.
(f)
(i) Be developed by, or in coordination with, the designated State authority having jurisdiction over motorcyclist safety issues;
(ii) Use State data to identify and prioritize the State's motorcyclist awareness problem areas;
(iii) Encourage collaboration among agencies and organizations responsible for, or impacted by, motorcycle safety issues; and
(iv) Incorporate a strategic communications plan that—
(A) Supports the State's overall safety policy and countermeasure program;
(B) Is designed, at a minimum, to educate motorists in those jurisdictions where the incidence of motorcycle crashes is highest or in those jurisdictions that account for a majority of the State's registered motorcycles;
(C) Includes marketing and educational efforts to enhance motorcyclist awareness; and
(D) Uses a mix of communication mechanisms to draw attention to the problem.
(2) To demonstrate compliance with this criterion, the State shall submit—
(i) A copy of the State document identifying the designated State authority having jurisdiction over motorcyclist safety issues;
(ii) A letter from the Governor's Highway Safety Representative stating that the State's motorcyclist awareness program was developed by or in coordination with the designated State authority having jurisdiction over motorcyclist safety issues;
(iii) Data used to identify and prioritize the State's motorcycle safety problem areas, including either—
(A) A list of counties or political subdivisions in the State ranked in order of the highest to lowest number of motorcycle crashes per county or political subdivision, if the State seeks to qualify under this criterion by showing that it identifies and prioritizes the State's motorcycle safety problem areas based on motorcycle crashes. Such data shall be from the most recent calendar year for which final State crash data is available, but data no older than two calendar years prior to the application due date (e.g., for a grant application submitted on July 1, 2013, a State shall provide calendar year 2012 data, if available, and may not provide data older than calendar year 2011); or
(B) A list of counties or political subdivisions in the State and the corresponding number of registered motorcycles for each county or political subdivision according to official State motor vehicle records, if the State seeks to qualify under this criterion by showing that it identifies and prioritizes the State's motorcycle safety problem areas based on motorcycle registrations;
(iv) A brief description of how the State has achieved collaboration among agencies and organizations responsible for, or impacted by, motorcycle safety issues; and
(v) A copy of the strategic communications plan showing that it—
(A) Supports the State's overall safety policy and countermeasure program;
(B) Is designed to educate motorists in those jurisdictions where the incidence of motorcycle crashes is highest (i.e., the majority of counties or political subdivisions in the State with the highest numbers of motorcycle crashes) or is designed to educate motorists in those jurisdictions that account for a majority of the State's registered motorcycles (i.e., the counties or political subdivisions that account for a majority of the State's registered motorcycles as evidenced by State motor vehicle records);
(C) Includes marketing and educational efforts to enhance motorcyclist awareness; and
(D) Uses a mix of communication mechanisms to draw attention to the problem (e.g., newspapers, billboard advertisements, email, posters, flyers, mini-planners, or instructor-led training sessions).
(g)
(i) Experience a reduction of at least one in the number of motorcyclist fatalities for the most recent calendar year for which final FARS data is available as compared to the final FARS data for the calendar year immediately prior to that year; and
(ii) Based on State crash data expressed as a function of 10,000 motorcycle registrations (using FHWA motorcycle registration data), experience at least a whole number reduction in the rate of crashes involving motorcycles for the most recent calendar year for which final State crash data is available, but data no older than two calendar years prior to the application due date, as compared to the calendar year immediately prior to that year.
(2) To demonstrate compliance with this criterion, the State shall submit—
(i) State data showing the total number of motor vehicle crashes involving motorcycles in the State for the most recent calendar year for which final State crash data is available, but data no older than two calendar years prior to the application due date and the same type of data for the calendar year immediately prior to that year (e.g., for a grant application submitted on July 1, 2013, the State shall submit calendar year 2012 data and 2011 data, if both data are available, and may not provide data older than calendar year 2011 and 2010, to determine the rate); and
(ii) A description of the State's methods for collecting and analyzing data submitted in paragraph (g)(2)(i) of this section, including a description of the State's efforts to make reporting of motor vehicle crashes involving motorcycles as complete as possible.
(h)
(i) Use State data to identify and prioritize the State's impaired driving and impaired motorcycle operation problem areas; and
(ii) Include specific countermeasures to reduce impaired motorcycle operation with strategies designed to reach motorcyclists and motorists in those jurisdictions where the incidence of motorcycle crashes involving an impaired operator is highest.
(2) To demonstrate compliance with this criterion, the State shall submit—
(i) State data used to identify and prioritize the State's impaired driving and impaired motorcycle operation problem areas, including a list of counties or political subdivisions in the State ranked in order of the highest to lowest number of motorcycle crashes involving an impaired operator per county or political subdivision. Such data shall be from the most recent
(ii) A detailed description of the State's impaired driving program as implemented, including a description of each countermeasure established and proposed by the State to reduce impaired motorcycle operation, the amount of funds allotted or proposed for each countermeasure and a description of its specific strategies that are designed to reach motorcyclists and motorists in those jurisdictions where the incidence of motorcycle crashes involving an impaired operator is highest (i.e., the majority of counties or political subdivisions in the State with the highest numbers of motorcycle crashes involving an impaired operator); and
(iii) The legal citation(s) to the State statute or regulation defining impairment. (A State is not eligible for a grant under this criterion if its legal alcohol-impairment level exceeds .08 BAC.)
(i)
(i) Experience a reduction of at least one in the number of fatalities involving alcohol-and drug-impaired motorcycle operators for the most recent calendar year for which final FARS data is available as compared to the final FARS data for the calendar year immediately prior to that year; and
(ii) Based on State crash data expressed as a function of 10,000 motorcycle registrations (using FHWA motorcycle registration data), experience at least a whole number reduction in the rate of reported crashes involving alcohol-and drug-impaired motorcycle operators for the most recent calendar year for which final State crash data is available, but data no older than two calendar years prior to the application due date, as compared to the calendar year immediately prior to that year.
(2) To demonstrate compliance with this criterion, the State shall submit—
(i) State data showing the total number of reported crashes involving alcohol- and drug-impaired motorcycle operators in the State for the most recent calendar year for which final State crash data is available, but data no older than two calendar years prior to the application due date and the same type of data for the calendar year immediately prior to that year (e.g., for a grant application submitted on July 1, 2013, the State shall submit calendar year 2012 and 2011 data, if both data are available, and may not provide data older than calendar year 2011 and 2010, to determine the rate); and
(ii) A description of the State's methods for collecting and analyzing data submitted in paragraph (i)(2)(i) of this section, including a description of the State's efforts to make reporting of crashes involving alcohol-impaired and drug-impaired motorcycle operators as complete as possible; and
(iii) The legal citation(s) to the State statute or regulation defining alcohol-impaired and drug-impairment. (A State is not eligible for a grant under this criterion if its legal alcohol-impairment level exceeds .08 BAC.)
(j)
(i) A Law State is a State that has a statute or regulation requiring that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs are to be used for motorcycle training and safety programs.
(ii) A Data State is a State that does not have a statute or regulation requiring that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs are to be used for motorcycle training and safety programs but can show through data and/or documentation from official records that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs were, in fact, used for motorcycle training and safety programs, without diversion.
(2)(i) To demonstrate compliance as a Law State, the State shall submit the legal citation(s) to the statute or regulation requiring that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs are to be used for motorcycle training and safety programs and the legal citation(s) to the State's current fiscal year appropriation (or preceding fiscal year appropriation, if the State has not enacted a law at the time of the State's application) appropriating all such fees to motorcycle training and safety programs.
(ii) To demonstrate compliance as a Data State, a State shall submit data or documentation from official records from the previous State fiscal year showing that all fees collected by the State from motorcyclists for the purposes of funding motorcycle training and safety programs were, in fact, used for motorcycle training and safety programs. Such data or documentation shall show that revenues collected for the purposes of funding motorcycle training and safety programs were placed into a distinct account and expended only for motorcycle training and safety programs.
(k)
(l)
(i) Improvements to motorcyclist safety training curricula;
(ii) Improvements in program delivery of motorcycle training to both urban and rural areas, including—
(A) Procurement or repair of practice motorcycles;
(B) Instructional materials;
(C) Mobile training units; and
(D) Leasing or purchasing facilities for closed-course motorcycle skill training;
(iii) Measures designed to increase the recruitment or retention of motorcyclist safety training instructors; and
(iv) Public awareness, public service announcements, and other outreach programs to enhance driver awareness of motorcyclists, such as the “share-the-road” safety messages developed using Share-the-Road model language available on NHTSA's Web site at
(2)
(a)
(b)
(c)
(2)
(i) The learner's permit stage shall—
(A) Apply to any novice driver who is younger than 21 years of age prior to the receipt by such driver from the State of any other permit or license to operate a motor vehicle;
(B) Commence only after an applicant for a leaner's permit passes vision and knowledge tests, including tests about the rules of the road, signs, and signals;
(C) Subject to paragraph (c)(2)(iii)(B), be in effect for a period of at least six months, but may not expire until the driver reaches at least 16 years of age; and
(D) Require the learner's permit holder to—
(
(
(
(
(ii) The intermediate stage shall—
(A) Apply to any driver who has completed the learner's permit stage and who is younger than 18 years of age;
(B) Commence immediately after the expiration of the learner's permit stage;
(C) Subject to paragraph (c)(2)(iii)(B), be in effect for a period of at least six months, but may not expire until the driver reaches at least 18 years of age;
(D) Require the intermediate license holder to be accompanied and supervised by a licensed driver who is at least 21 years of age during the period of time between the hours of 10:00 p.m. and 5:00 a.m., except in case of emergency; and
(E) Prohibit the intermediate license holder from operating a motor vehicle with more than one nonfamilial passenger younger than 21 years of age unless a licensed driver who is at least 21 years of age is in the motor vehicle.
(iii) During both the learner's permit and intermediate stages, the State shall—
(A) Impose a prohibition enforced as a primary offense on use of a cellular telephone or any communications device by the driver while driving, except in case of emergency; and
(B) Require that the driver who possesses a learner's permit or intermediate license remain conviction-free for a period of not less than six consecutive months immediately prior to the expiration of that stage.
(3)
(i) Legal citations to the State statute or regulation requiring that the State learner's permit, intermediate license, and full driver's license be visually distinguishable:
(ii) Sample permits and licenses that contain visual features that would enable a law enforcement officer to distinguish between the State learner's permit, intermediate license, and full driver's license; or
(iii) A description of the State's system that enables law enforcement officers in the State during traffic stops to distinguish between the State learner's permit, intermediate license, and full driver's license.
(4)
(i) The State enacted a law prior to January 1, 2011, establishing a class of permit or license that allows drivers younger than 18 years of age to operate a motor vehicle—
(A) In connection with work performed on, or for the operation of, a farm owned by family members who are directly related to the applicant or licensee; or
(B) If demonstrable hardship would result from the denial of a license to the licensees or applicants, provided that the State requires the applicant or licensee to affirmatively and adequately demonstrate unique undue hardship to the individual; and
(ii) Drivers who possess only the permit or license permitted under paragraph (c)(4)(i) of this section are treated as novice drivers subject to the graduated driver's licensing requirements of paragraph (c)(2) of this section as a pre-condition of receiving any other permit, license or endorsement.
(d)
(2)
(e)
(1) At least 25 percent of the grant funds shall be used, in connection with the State's graduated driver's licensing law that complies with the minimum requirements set forth in paragraph (c) of this section, to:
(i) Enforce the graduated driver's licensing process;
(ii) Provide training for law enforcement personnel and other relevant State agency personnel relating to the enforcement of the graduated driver's licensing process;
(iii) Publish relevant educational materials that pertain directly or indirectly to the State graduated driver's licensing law;
(iv) Carry out administrative activities to implement the State's graduated driver's licensing process; or
(v) Carry out a teen traffic safety program described in 23 U.S.C. 402(m);
(2) No more than 75 percent may be used for any eligible project or activity under 23 U.S.C. 402.
Subject to the provisions of this subpart, the requirements of 49 CFR part 18 and applicable cost principles govern the implementation and management of State highway safety programs and projects carried out under 23 U.S.C. Chapter 4. Cost principles include those referenced in 49 CFR 18.22.
(a)
(b)
(c)
(d)
(1) Purchases shall receive prior written approval from the Approving Official;
(2) Dispositions shall receive prior written approval from the Approving Official unless the age of the equipment has exceeded its useful life as determined under State law and procedures.
(e)
(1) The equipment shall be identified in the grant or otherwise made known to the State in writing;
(2) The Approving Official shall issue disposition instructions within 120 calendar days after the equipment is determined to be no longer needed for highway safety purposes, in the absence of which the State shall follow the applicable procedures in 49 CFR part 18.
(f)
(1) Title shall remain vested in the Federal Government;
(2) Management shall be in accordance with Federal rules and procedures, and an annual inventory listing shall be submitted;
(3) The State or its subgrantee shall request disposition instructions from the Approving Official when the item is no longer needed for highway safety purposes.
States shall provide documentary evidence of any reallocation of funds between program areas by submitting to the NHTSA regional office an amended HS Form 217, reflecting the changed allocation of funds and updated list of projects under each program area, as provided in § 1200.11(e), within 30 days of implementing the change. The amended HS Form 217 and list of projects is subject to the approval of the Approving Official.
(a)
(b)
(1) Program Area for which expenses were incurred and an itemization of project numbers and amount of Federal funds expended for each project for which reimbursement is being sought;
(2) Federal funds obligated;
(3) Amount of Federal funds allocated to local benefit (provided no less than mid-year (by March 31) and with the final voucher);
(4) Cumulative Total Cost to Date;
(5) Cumulative Federal Funds Expended;
(6) Previous Amount Claimed;
(7) Amount Claimed this Period;
(8) Matching rate (or special matching writeoff used, i.e., sliding scale rate authorized under 23 U.S.C. 120).
(c)
(d)
(e)
(2) Failure to meet the deadlines specified in paragraph (d) of this section may result in delayed reimbursement.
(3) Vouchers that request reimbursement for projects whose project numbers or amounts claimed do not match the list of projects or exceed the estimated amount of Federal funds provided under § 1200.11(e), or exceed the allocation of funds to a program area in the HS Form 217, shall be rejected, in whole or in part, until an amended list of projects and/or estimated amount of Federal funds and an amended HS Form 217 is submitted to and approved by the Approving Official in accordance with § 1200.32.
(a)
(b)
(c)
(d)
(2)
Within 90 days after the end of the fiscal year, each State shall submit an Annual Report describing—
(a) A general assessment of the State's progress in achieving highway safety performance measure targets identified in the Highway Safety Plan;
(b) A general description of the projects and activities funded and implemented under the Highway Safety Plan;
(c) The amount of Federal funds expended on projects from the Highway Safety Plan; and
(d) How the projects funded during the fiscal year contributed to meeting the State's highway safety targets. Where data becomes available, a State should report progress from prior year projects that have contributed to meeting current State highway safety targets.
Review of any written decision regarding the administration of the grants by an Approving Official under this subpart may be obtained by submitting a written appeal of such decision, signed by the Governor's Representative for Highway Safety, to the Approving Official. Such appeal shall be forwarded promptly to the NHTSA Associate Administrator, Regional Operations and Program Delivery. The decision of the NHTSA Associate Administrator shall be final and shall be transmitted to the Governor's Representative for Highway Safety through the cognizant Approving Official.
(a) The State's Highway Safety Plan for a fiscal year and the State's authority to incur costs under that Highway Safety Plan shall expire on the last day of the fiscal year.
(b) Except as provided in paragraph (c) of this section, each State shall submit a final voucher which satisfies the requirements of § 1200.33 within 90 days after the expiration of the State's Highway Safety Plan as provided in paragraph (a) of this section. The final voucher constitutes the final financial reconciliation for each fiscal year.
(c) The Approving Official may extend the time period to submit a final voucher only in extraordinary circumstances. States shall submit a written request for an extension describing the extraordinary circumstances that necessitate an extension. The approval of any such request for extension shall be in writing, shall specify the new deadline for submitting the final voucher, and shall be signed by the Approving Official.
(a)
(1) The State's new Highway Safety Plan has been approved by the Approving Official pursuant to § 1200.14 of this part;
(2) The State has identified Section 402 carry-forward funds by the program area from which they are removed and identified by program area the manner in which the carry-forward funds will be used under the new Highway Safety Plan.
(3) The State has identified Section 405 carry-forward funds by the national priority safety program under which they were awarded (i.e., occupant protection, state traffic safety information system improvements, impaired driving, ignition interlock, distracted driving, motorcyclist safety or graduated driver licensing). These funds shall not be used for any other program.
(4) The State has submitted for approval an updated HS Form 217 for funds identified in paragraph (a)(2) or (a)(3) of this section. Reimbursement of costs is contingent upon the approval of updated Highway Safety Plan and HS Form 217.
(5) Funds carried forward from grant programs rescinded by MAP–21 shall be separately identified and shall be subject to the statutory and regulatory requirements that were in force at the time of award.
(b)
(2) NHTSA shall notify States of any such unexpended grant funds no later than 180 days prior to the end of the period of availability specified in paragraph (b)(1) of this section and inform States of the deadline for commitment. States may commit such unexpended grant funds to a specific project by the specified deadline, and shall provide documentary evidence of that commitment, including a copy of an executed project agreement, to the Approving Official.
(3) Grant funds committed to a specific project in accordance with paragraph (b)(2) of this section shall remain committed to that project and be expended by the end of the succeeding fiscal year. The final voucher for that project shall be submitted within 90 days of the end of that fiscal year.
(4) NHTSA shall deobligate unexpended balances at the end of the time period in paragraph (b)(1) or (b)(3) of this section, whichever is applicable, and the funds shall lapse.
The expiration of a Highway Safety Plan does not affect the ability of NHTSA to disallow costs and recover funds on the basis of a later audit or other review or the State's obligation to return any funds due as a result of later refunds, corrections, or other transactions.
Notwithstanding the expiration of a Highway Safety Plan, the provisions for post-award requirements in 49 CFR part 18, including but not limited to equipment and audit, continue to apply to the grant funds authorized under 23 U.S.C. Chapter 4.
Where a State is found to be in non-compliance with the requirements of the
(a)
(2) If the Administrator has apportioned funds to a State and subsequently determines that the State is not implementing an approved highway safety program, the Administrator shall reduce the funds apportioned under 23 U.S.C. 402 to the State by amounts equal to not less than 20 percent, until such time as the Administrator determines that the State is implementing an approved highway safety program.
(3) The Administrator shall consider the gravity of the State's failure to implement an approved highway safety program in determining the amount of the reduction.
(4) If the Administrator determines that a State has begun implementing an approved highway safety program not later than July 31 of the fiscal year for which the funds were withheld, the Administrator shall promptly apportion to the State the funds withheld from its apportionment.
(5) If the Administrator determines that the State did not correct its failure by July 31 of the fiscal year for which the funds were withheld, the Administrator shall reapportion the withheld funds to the other States, in accordance with the formula specified in 23 U.S.C. 402(c), not later than the last day of the fiscal year.
(b)
(2) If the Administrator issues an advance notice to a State, under paragraph (b)(1) of this section, the State may, within 30 days of its receipt of the advance notice, submit documentation demonstrating that it is implementing an approved highway safety program. Documentation shall be submitted to the NHTSA Administrator, 1200 New Jersey Avenue SE., Washington, DC 20590.
(3) If the Administrator decides, after reviewing all relevant information submitted, that the State is not implementing an approved highway safety program in accordance with 23 U.S.C. 402, the Administrator shall issue a final notice, advising the State either of the funds being withheld from apportionment under 23 U.S.C. 402, or of the amount of funds reduced from the apportionment under 23 U.S.C. 402. The final notice will normally be issued no later than September 30. The final notice of a reduction will be issued at the time of a final decision.
Highway safety grants apportioned under 23 U.S.C. 402 for fiscal year 2013 shall be governed by the applicable implementing regulations at the time of grant award.
(a) For fiscal year 2013 grants authorized under 23 U.S.C. 405(b), (c), (d), (f) and (g), a State shall submit electronically its application as provided in § 1200.11(h) to
(b) If a State's application contains incomplete information, NHTSA may request additional information from the State prior to making a determination of award for each component of the Section 405 grant program. Failure to respond promptly for request of additional information may result in a State's disqualification from one or more Section 405 grants for fiscal year 2013.
(c) After reviewing applications and making award determinations, NHTSA shall, in writing, distribute funds available for obligation under Section 405 to qualifying States and specify any conditions or limitations imposed by law on the use of the funds.
(d) Grant awards are subject to the availability of funds. If there are insufficient funds to award full grant amounts to qualifying States, NHTSA may release interim amounts and release the remainder, up to the State's proportionate share of available funds, when it becomes available in the fiscal year.
(e) The administration, reconciliation and noncompliance provisions of subparts D through F of this part apply to fiscal year 2013 grants awarded to qualifying States.
Highway safety grants rescinded by MAP–21 are governed by the applicable implementing regulations at the time of grant award.
Each fiscal year the State must sign these Certifications and Assurances that it complies with all requirements including applicable Federal statutes and regulations that are in effect during the grant period. (Requirements that also apply to subrecipients are noted under the applicable caption.)
In my capacity as the Governor's Representative for Highway Safety, I hereby provide the following certifications and assurances:
To the best of my personal knowledge, the information submitted in the Highway Safety Plan in support of the State's application for Section 402 and Section 405 grants is accurate and complete. (Incomplete or incorrect information may result in the disapproval of the Highway Safety Plan.)
The Governor is the responsible official for the administration of the State highway safety program through a State highway safety agency that has adequate powers and is suitably equipped and organized (as evidenced by appropriate oversight procedures governing such areas as procurement, financial administration, and the use, management, and disposition of equipment) to carry out the program. (23 U.S.C. 402(b)(1)(A))
The State will comply with applicable statutes and regulations, including but not limited to:
• 23 U.S.C. Chapter 4—Highway Safety Act of 1966, as amended
• 49 CFR Part 18—Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments
• 23 CFR Part 1200—Uniform Procedures for State Highway Safety Grant Programs
The State has submitted appropriate documentation for review to the single point of contact designated by the Governor to review Federal programs, as required by Executive Order 12372 (Intergovernmental Review of Federal Programs).
The State will comply with FFATA guidance,
• Name of the entity receiving the award;
• Amount of the award;
• Information on the award including transaction type, funding agency, the North American Industry Classification System code or Catalog of Federal Domestic Assistance number (where applicable), program source;
• Location of the entity receiving the award and the primary location of performance under the award, including the city, State, congressional district, and country; and an award title descriptive of the purpose of each funding action;
• A unique identifier (DUNS);
• The names and total compensation of the five most highly compensated officers of the entity if:
(i) the entity in the preceding fiscal year received—
(I) 80 percent or more of its annual gross revenues in Federal awards;
(II) $25,000,000 or more in annual gross revenues from Federal awards; and
(ii) the public does not have access to information about the compensation of the senior executives of the entity through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986;
• Other relevant information specified by OMB guidance.
The State highway safety agency will comply with all Federal statutes and implementing regulations relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (Pub. L. 88–352), which prohibits discrimination on the basis of race, color or national origin (and 49 CFR Part 21); (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681–1683 and 1685–1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and the Americans with Disabilities Act of 1990 (Pub. L. 101–336), as amended (42 U.S.C. 12101, et seq.), which prohibits discrimination on the basis of disabilities (and 49 CFR Part 27); (d) the Age Discrimination Act of 1975, as amended (42 U.S.C. 6101–6107), which prohibits discrimination on the basis of age; (e) the Civil Rights Restoration Act of 1987 (Pub. L. 100–259), which requires Federal-aid recipients and all subrecipients to prevent discrimination and ensure nondiscrimination in all of their programs and activities; (f) the Drug Abuse Office and Treatment Act of 1972 (Pub. L. 92–255), as amended, relating to nondiscrimination on the basis of drug abuse; (g) the comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (Pub. L. 91–616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (h) Sections 523 and 527 of the Public Health Service Act of 1912, as amended (42 U.S.C. 290dd–3 and 290ee–3), relating to confidentiality of alcohol and drug abuse patient records; (i) Title VIII of the Civil Rights Act of 1968, as amended (42 U.S.C. 3601, et seq.), relating to nondiscrimination in the sale, rental or financing of housing; (j) any other nondiscrimination provisions in the specific statute(s) under which application for Federal assistance is being made; and (k) the requirements of any other nondiscrimination statute(s) which may apply to the application.
The State will provide a drug-free workplace by:
• Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;
• Establishing a drug-free awareness program to inform employees about:
○ The dangers of drug abuse in the workplace.
○ The grantee's policy of maintaining a drug-free workplace.
○ Any available drug counseling, rehabilitation, and employee assistance programs.
○ The penalties that may be imposed upon employees for drug violations occurring in the workplace.
○ Making it a requirement that each employee engaged in the performance of the grant be given a copy of the statement required by paragraph (a).
• Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will—
○ Abide by the terms of the statement.
○ Notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction.
• Notifying the agency within ten days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction.
• Taking one of the following actions, within 30 days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted—
○ Taking appropriate personnel action against such an employee, up to and including termination.
○ Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.
• Making a good faith effort to continue to maintain a drug-free workplace through implementation of all of the paragraphs above.
The State will comply with the provisions of the Buy America Act (49 U.S.C. 5323(j)), which contains the following requirements:
Only steel, iron and manufactured products produced in the United States may be purchased with Federal funds unless the Secretary of Transportation determines that such domestic purchases would be inconsistent with the public interest, that such materials are not reasonably available and of a satisfactory quality, or that inclusion of domestic materials will increase the cost of the overall project contract by more than 25 percent. Clear justification for the purchase of non-domestic items must be in the form of a waiver request submitted to and approved by the Secretary of Transportation.
The State will comply with provisions of the Hatch Act (5 U.S.C. 1501–1508) which limits the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds.
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all sub-award at all tiers (including subcontracts, subgrants, and contracts under grant, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance
None of the funds under this program will be used for any activity specifically designed to urge or influence a State or local legislator to favor or oppose the adoption of any specific legislative proposal pending before any State or local legislative body. Such activities include both direct and indirect (e.g., “grassroots”) lobbying activities, with one exception. This does not preclude a State official whose salary is supported with NHTSA funds from engaging in direct communications with State or local legislative officials, in accordance with customary State practice, even if such communications urge legislative officials to favor or oppose the adoption of a specific pending legislative proposal.
Instructions for Primary Certification
1. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below.
2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
4. The prospective primary participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary participant learns its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
5. The terms
6. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the list of Parties Excluded from Federal Procurement and Non-procurement Programs.
9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
(1) The prospective primary participant certifies to the best of its knowledge and belief, that its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of record, making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or Local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to any of the Statements in this certification, such prospective participant shall attach an explanation to this proposal.
1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
4. The terms
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR Part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Non-procurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR Part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
In accordance with Executive Order 13043, Increasing Seat Belt Use in the United States, dated April 16, 1997, the Grantee is encouraged to adopt and enforce on-the-job seat belt use policies and programs for its employees when operating company-owned, rented, or personally-owned vehicles. The National Highway Traffic Safety Administration (NHTSA) is responsible for providing leadership and guidance in support of this Presidential initiative. For information on how to implement such a program, or statistics on the potential benefits and cost-savings to your company or organization, please visit the Buckle Up America section on NHTSA's Web site at
In accordance with Executive Order 13513, Federal Leadership On Reducing Text Messaging While Driving, and DOT Order 3902.10, Text Messaging While Driving, States are encouraged to adopt and enforce workplace safety policies to decrease crashed caused by distracted driving, including policies to ban text messaging while driving company-owned or -rented vehicles, Government-owned, leased or rented vehicles, or privately-owned when on official Government business or when performing any work on or behalf of the Government. States are also encouraged to conduct workplace safety initiatives in a manner commensurate with the size of the business, such as establishment of new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving, and education, awareness, and other outreach to employees about the safety risks associated with texting while driving.
The Governor's Representative for Highway Safety has reviewed the State's Fiscal Year highway safety planning document and hereby declares that no significant environmental impact will result from implementing this Highway Safety Plan. If, under a future revision, this Plan is modified in a manner that could result in a significant environmental impact and trigger the need for an environmental review, this office is prepared to take the action necessary to comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and the implementing regulations of the Council on Environmental Quality (40 CFR Parts 1500–1517).
The political subdivisions of this State are authorized, as part of the State highway safety program, to carry out within their jurisdictions local highway safety programs which have been approved by the Governor and are in accordance with the uniform guidelines promulgated by the Secretary of Transportation. (23 U.S.C. 402(b)(1)(B))
At least 40 percent (or 95 percent, as applicable) of all Federal funds apportioned to this State under 23 U.S.C. 402 for this fiscal year will be expended by or for the benefit of the political subdivision of the State in carrying out local highway safety programs (23 U.S.C. 402(b)(1)(C), 402(h)(2)), unless this requirement is waived in writing.
The State's highway safety program provides adequate and reasonable access for the safe and convenient movement of physically handicapped persons, including those in wheelchairs, across curbs constructed or replaced on or after July 1, 1976, at all pedestrian crosswalks. (23 U.S.C. 402(b)(1)(D))
The State will provide for an evidenced-based traffic safety enforcement program to prevent traffic violations, crashes, and crash fatalities and injuries in areas most at risk for such incidents. (23 U.S.C. 402(b)(1)(E))
The State will implement activities in support of national highway safety goals to reduce motor vehicle related fatalities that also reflect the primary data-related crash factors within the State as identified by the State highway safety planning process, including:
• Participation in the National high-visibility law enforcement mobilizations;
• Sustained enforcement of statutes addressing impaired driving, occupant protection, and driving in excess of posted speed limits;
• An annual statewide seat belt use survey in accordance with 23 CFR Part 1340 for the measurement of State seat belt use rates;
• Development of statewide data systems to provide timely and effective data analysis to support allocation of highway safety resources;
• Coordination of Highway Safety Plan, data collection, and information systems with the State strategic highway safety plan, as defined in 23 U.S.C. 148(a).
The State will actively encourage all relevant law enforcement agencies in the State to follow the guidelines established for vehicular pursuits issued by the International Association of Chiefs of Police that are currently in effect. (23 U.S.C. 402(j))
The State will not expend Section 402 funds to carry out a program to purchase, operate, or maintain an automated traffic enforcement system. (23 U.S.C. 402(c)(4))
I understand that failure to comply with applicable Federal statutes and regulations may subject State officials to civil or criminal penalties and/or place the State in a high risk grantee status in accordance with 49 CFR 18.12.
I sign these Certifications and Assurances based on personal knowledge, after appropriate inquiry, and I understand that the Government will rely on these representations in awarding grant funds.
This form is to be used to provide funding documentation for grant programs under Title 23, United States Code. A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is _______. Public reporting for this collection of information is estimated to be approximately 30 minutes per response, including the time for reviewing instructions and completing the form. All responses to this collection of information are required to obtain or retain benefits. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington DC 20590.
State—The State submitting the HS Form-217
Number—Each HS–217 will be in sequential order by fiscal year (e.g., 99–01, 99–02, etc.)
Date—The date of occurrence of the accounting action(s) described.
Program Area—The code designating a program area (e.g., PT–99, where PT represents the Police Traffic Services and 99 represents the Federal fiscal year). Funds should be entered only at the program area level, not at the task level or lower.
Approved Program Costs—The current balance of Federal funds approved (but not obligated) under the HSP or under any portion of or amendment to the HSP.
State/local Funds—Those funds which the State and its political subdivisions are contributing to the program, including both hard and soft match.
Previous Balance—The balance of Federal funds obligated and available for expenditure by the State in the current fiscal year, as of the last Federally-approved transaction. The total of this column may not exceed the sum of the State's current year obligation limitation and prior year funds carried forward. (The column is left blank on the updated Cost Summary required to be submitted under 23 CFR 1200.11(e). For subsequent submissions, the amounts in this column are obtained from the “Current Balance” column of the immediately preceding Cost Summary.)
Increase/(Decrease)—The amount of change in Federal funding, by program area, from the funding reflected under the “Previous Balance”.
Current Balance—The net total of the “Previous Balance” and the “Increase/(Decrease)” amounts. The total of this column may not exceed the sum of the State's current year obligation limitation and prior year funds carried forward.
In my capacity as the Governor's Representative for Highway Safety, I have verified that—
• The Teen Traffic Safety Program is a separately described Program Area in the Highway Safety Plan, including a specific description of the strategies and projects, and appears in HSP page number(s) _____________.
• as required under 23 U.S.C. 402(m), the statewide efforts described in the pages identified above include peer-to-peer education and prevention strategies the State will use in schools and communities that are designed to—
○ increase seat belt use;
○ reduce speeding;
○ reduce impaired and distracted driving;
○ reduce underage drinking; and
○ reduce other behaviors by teen drivers that lead to injuries and fatalities.
Each fiscal year the State must sign these Certifications and Assurances that it complies with all requirements, including applicable Federal statutes and regulations that are in effect during the grant period.
In my capacity as the Governor's Representative for Highway Safety, I:
• certify that, to the best of my personal knowledge, the information submitted to the National Highway Traffic Safety Administration in support of the State's application for Section 405 grants below is accurate and complete.
• understand that incorrect, incomplete, or untimely information submitted in support of the State's application may result in the denial of an award under Section 405.
• agree that, as condition of the grant, the State will use these grant funds in accordance with the specific requirements of Section 405(b), (c), (d), (e), (f) and (g), as applicable.
• agree that, as a condition of the grant, the State will comply with all applicable laws and regulations and financial and programmatic requirements for Federal grants.
Instructions: Check the box for each part for which the State is applying for a grant, fill in relevant blanks, and identify the attachment number or page numbers where the requested information appears in the HSP. Attachments may be submitted electronically.
All States: [
• The State will maintain its aggregate expenditures from all State and local sources for occupant protection programs at or above the average level of such expenditures in fiscal years 2010 and 2011. (23 U.S.C. 405(a)(1)(H))
• The State will participate in the Click it or Ticket national mobilization in the fiscal year of the grant. The description of the State's planned participation is provided as HSP attachment or page # __.
• The State's occupant protection plan for the upcoming fiscal year is provided as HSP attachment or page # __.
• Documentation of the State's active network of child restraint inspection stations is provided as HSP attachment or page # __.
• The State's plan for child passenger safety technicians is provided as HSP attachment or page # __.
Lower Seat belt Use States: [
□ The State's primary seat belt use law, requiring all occupants riding in a passenger motor vehicle to be restrained in a seat belt or a child restraint, was enacted on __/__/__ and last amended on __/__/__, is in effect, and will be enforced during the fiscal year of the grant.
□ The State's occupant protection law, requiring occupants to be secured in a seat belt or age-appropriate child restraint while in a passenger motor vehicle and a minimum fine of $25, was enacted on __/__/__ and last amended on __/__/__, is in effect, and will be enforced during the fiscal year of the grant.
Legal citations:
• __________ Requirement for all occupants to be secured in seat belt or age appropriate child restraint
• __________ Coverage of all passenger motor vehicles
• __________ Minimum fine of at least $25
• __________ Exemptions from restraint requirements
□ The State's seat belt enforcement plan is provided as HSP attachment or page # __.
□ The State's comprehensive occupant protection program is provided as HSP attachment # __.
[
□ The State's NHTSA-facilitated occupant protection program assessment was conducted on __/__/__;
OR
□ The State agrees to conduct a NHTSA-facilitated occupant protection program assessment by September 1 of the fiscal year of the grant. (This option is available only for fiscal year 2013 grants.)
• The State will maintain its aggregate expenditures from all State and local sources for traffic safety information system programs at or above the average level of such expenditures in fiscal years 2010 and 2011.
[
• A copy of [
• A copy of meeting schedule and all reports and other documents promulgated by the TRCC during the 12 months preceding the application due date is provided as HSP attachment # __ or submitted electronically through the TRIPRS database on __/__/__.
• A list of the TRCC membership and the organization and function they represent is provided as HSP attachment # __ or submitted electronically through the TRIPRS database on __/__/__.
• The name and title of the State's Traffic Records Coordinator is
• A copy of the State Strategic Plan, including any updates, is provided as HSP attachment # __ or submitted electronically through the TRIPRS database on __/__/__.
• [
□ The following pages in the State's Strategic Plan provides a written description of the performance measures, and all supporting data, that the State is relying on to demonstrate achievement of the quantitative improvement in the preceding 12 months of the application due date in relation to one or more of the significant data program attributes: pages _____.
OR
□ If not detailed in the State's Strategic Plan, the written description is provided as HSP attachment # __.
• The State's most recent assessment or update of its highway safety data and traffic records system was completed on __/__/__.
All States:
• The State will maintain its aggregate expenditures from all State and local sources for impaired driving programs at or above the average level of such expenditures in fiscal years 2010 and 2011.
• The State will use the funds awarded under 23 U.S.C. 405(d) only for the implementation of programs as provided in 23 CFR 1200.23(i) in the fiscal year of the grant.
Mid-Range State:
• [
□ The statewide impaired driving plan approved by a statewide impaired driving task force was issued on __/__/__ and is provided as HSP attachment # __.
OR
□ For this first year of the grant as a mid-range State, the State agrees to convene a statewide impaired driving task force to develop a statewide impaired driving plan and submit a copy of the plan to NHTSA by September 1 of the fiscal year of the grant.
• A copy of information describing the statewide impaired driving task force is provided as HSP attachment # __.
High-Range State:
□ A NHTSA-facilitated assessment of the State's impaired driving program was conducted on __/__/__;
OR
□ For the first year of the grant as a high-range State, the State agrees to conduct a NHTSA-facilitated assessment by September 1 of the fiscal year of the grant;
• [
□ For the first year of the grant as a high-range State, the State agrees to convene a statewide impaired driving task force to develop a statewide impaired driving plan addressing recommendations from the assessment and submit the plan to NHTSA for review and approval by September 1 of the fiscal year of the grant;
OR
□ For subsequent years of the grant as a high-range State, the statewide impaired driving plan developed or updated on __/__/__ is provided as HSP attachment # __.
• A copy of the information describing the statewide impaired driving task force is provided as HSP attachment # __.
Ignition Interlock Law: [
• The State's ignition interlock law was enacted on __/__/__ and last amended on __/__/__, is in effect, and will be enforced during the fiscal year of the grant.
Legal citation(s):
[
Prohibition on Texting While Driving
The State's texting ban statute, prohibiting texting while driving, a minimum fine of at least $25, and increased fines for repeat offenses, was enacted on __/__/__ and last amended on __/__/__, is in effect, and will be enforced during the fiscal year of the grant.
Legal citations:
• __________ Prohibition on texting while driving
• __________ Definition of covered wireless communication devices
• __________ Minimum fine of at least $25 for first offense
• __________ Increased fines for repeat offenses
• __________ Exemptions from texting ban
The State's youth cell phone use ban statute, prohibiting youth cell phone use while driving, driver license testing of distracted driving issues, a minimum fine of at least $25, increased fines for repeat offenses, was enacted on __/__/__ and last amended on __/__/__, is in effect, and will be enforced during the fiscal year of the grant.
Legal citations:
• __________ Prohibition on youth cell phone use while driving
• __________ Driver license testing of distracted driving issues
• __________ Minimum fine of at least $25 for first offense
• __________ Increased fines for repeat offenses
• __________ Exemptions from youth cell phone use ban
[
□ Motorcycle riding training course:
• Copy of official State document (e.g., law, regulation, binding policy directive,
• Document(s) showing the designated State authority approving the training curriculum that includes instruction in crash avoidance and other safety-oriented operational skills for both in-class and on-the-motorcycle is provided as HSP attachment # __.
• Document(s) regarding locations of the motorcycle rider __.
• Document showing that certified motorcycle rider training instructors teach the motorcycle riding training course is provided as HSP attachment # __.
• Description of the quality control procedures to assess motorcycle rider training courses and instructor training courses and actions taken to improve courses is provided as HSP attachment # __.
☐ Motorcyclist awareness program:
• Copy of official State document (e.g., law, regulation, binding policy directive, letter from the Governor) identifying the designated State authority over motorcyclist safety issues is provided as HSP attachment # __.
• Letter from the Governor's Representative for Highway Safety regarding the development of the motorcyclist awareness program is provided as HSP attachment # __.
• Data used to identify and prioritize the State's motorcyclist safety program areas is provided as HSP attachment or page # __.
• Description of how the State achieved collaboration among agencies and organizations regarding motorcycle safety issues is provided as HSP attachment # or page #__.
• Copy of the State strategic communications plan is provided as HSP attachment # __.
☐ Reduction of fatalities and crashes involving motorcycles:
• Data showing the total number of motor vehicle crashes involving motorcycles is provided as HSP attachment or page # __.
• Description of the State's methods for collecting and analyzing data is provided as HSP attachment or page # __.
☐ Impaired driving program:
• Data used to identify and prioritize the State's impaired driving and impaired motorcycle operation problem areas is provided as HSP attachment or page # __.
• Detailed description of the State's impaired driving program is provided as HSP attachment or page # __.
• The State law or regulation defines impairment. Legal citation(s):
☐ Reduction of fatalities and accidents involving impaired motorcyclists:
• Data showing the total number of reported crashes involving alcohol-impaired and drug-impaired motorcycle operators is provided as HSP attachment or page # __.
• Description of the State's methods for collecting and analyzing data is provided as HSP attachment or page # __.
• The State law or regulation defines impairment. Legal citation(s):
☐ Use of fees collected from motorcyclists for motorcycle programs: [
☐ Applying as a Law State—
• The State law or regulation requires all fees collected by the State from motorcyclists for the purpose of funding motorcycle training and safety programs are to be used for motorcycle training and safety programs. Legal citation(s):
AND
• The State's law appropriating funds for FY __ requires all fees collected by the State from motorcyclists for the purpose of funding motorcycle training and safety programs be spent on motorcycle training and safety programs. Legal citation(s):
☐ Applying as a Data State—
• Data and/or documentation from official State records from the previous fiscal year showing that
[
The State's graduated driver licensing statute, requiring both a learner's permit stage and intermediate stage prior to receiving a full driver's license, was enacted on __/__/__ and last amended on __/__/__, is in effect, and will be enforced during the fiscal year of the grant.
Learner's Permit Stage—requires testing and education, driving restrictions, minimum duration, and applicability to novice drivers younger than 21 years of age.
Legal citations:
• __________ Testing and education requirements
• __________ Driving restrictions
• __________ Minimum duration
• __________ Applicability to notice drivers younger than 21 years of age
• __________ Exemptions from graduated driver licensing law
Intermediate Stage—requires driving restrictions, minimum duration, and applicability to any driver who has completed the learner's permit stage and who is younger than 18 years of age.
Legal citations:
• __________ Driving restrictions
• __________ Minimum duration
• __________ Applicability to any driver who has completed the learner's permit stage and is younger than 18 years of age
• __________ Exemptions from graduated driver licensing law
Prohibition enforced as a primary offense on use of a cellular telephone or any communications device by the driver while driving, except in case of emergency. Legal citation(s):
Requirement that the driver who possesses a learner's permit or intermediate license remain conviction-free for a period of not less than six consecutive months immediately prior to the expiration of that stage. Legal citation(s):
License Distinguishability (
☐ Requirement that the State learner's permit, intermediate license, and full driver's license are visually distinguishable. Legal citation(s):
OR
☐ Sample permits and licenses containing visual features that would enable a law enforcement officer to distinguish between the State learner's permit, intermediate license, and full driver's license, are provided as HSP attachment #____.
OR
☐ Description of the State's system that enables law enforcement officers in the State during traffic stops to distinguish between the State learner's permit, intermediate license, and full driver's license, are provided as HSP attachment #____.
(a) Policy. To ensure compliance with the provisions of 23 U.S.C. 402(b)(1)(C) and 23 U.S.C. 402(h)(2), which require that at least 40 percent or 95 percent of all Federal funds apportioned under Section 402 to the State or the Secretary of Interior, respectively, will be expended by political subdivisions of the State, including Indian tribal governments, in carrying out local highway safety programs, the NHTSA Approving Official will determine if the political subdivisions had an active voice in the initiation, development and implementation of the programs for which funds apportioned under 23 U.S.C. 402 are expended.
(b) Terms.
(c) Determining local share.
(1) In determining whether a State meets the local share requirement in a fiscal year, NHTSA will apply the requirement sequentially to each fiscal year's apportionments, treating all apportionments made from a single fiscal year's authorizations as a single entity for this purpose. Therefore, at least 40 percent of each State's apportionments (or at least 95 percent of the apportionment to the Secretary of Interior) from each year's authorizations must be used in the highway safety programs of its political subdivisions prior to the period when funds would normally lapse.
(2) When Federal funds apportioned under 23 U.S.C. 402 are expended by a political subdivision, such expenditures are clearly part of the local share. Local highway safety-project-related expenditures and associated indirect costs, which are reimbursable to the grantee local governments, are classifiable as local share. Illustrations of such expenditures are the costs incurred by a local government in planning and administration of highway safety project-related activities, such as occupant protection, traffic records system improvements, emergency medical services, pedestrian and bicycle safety activities, police traffic services, alcohol and other drug countermeasures, motorcycle safety, and speed control.
(3) When Federal funds apportioned under 23 U.S.C. 402 are expended by a State agency for the benefit of a political subdivision, such funds may be considered as part of the local share, provided that the political subdivision has had an active voice in the initiation, development, and implementation of the programs for which such funds are expended. A State may not arbitrarily ascribe State agency expenditures as “benefitting local government.” Where political subdivisions have had an active voice in the initiation, development, and implementation of a particular program or activity, and a political subdivision which has not had such active voice agrees in advance of implementation to accept the benefits of the program, the Federal share of the cost of such benefits may be credited toward meeting the local participation requirement. Where no political subdivisions have had an active voice in the initiation, development, and implementation of a particular program, but a political subdivision requests the benefits of the program as part of the local government's highway safety program, the Federal share of the cost of such benefits may be credited toward meeting the local participation requirement. Evidence of consent and acceptance of the work, goods or services on behalf of the local government must be established and maintained on file by the State until all funds authorized for a specific year are expended and audits completed.
(4) State agency expenditures which are generally not classified as local are within such areas as vehicle inspection, vehicle registration and driver licensing. However, where these areas provide funding for services such as driver improvement tasks administered by traffic courts, or where they furnish computer support for local government requests for traffic record searches, these expenditures are classifiable as benefitting local programs.
(d) Waivers. While the local participation requirement may be waived in whole or in part by the NHTSA Administrator, it is expected that each State program will generate political subdivision participation to the extent required by the Act so that requests for waivers will be minimized. Where a waiver is requested, however, it must be documented at least by a conclusive showing of the absence of legal authority over highway safety activities at the political subdivision levels of the State and must recommend the appropriate percentage participation to be applied in lieu of the local share.
(a) Policy. Federal participation in P&A activities shall not exceed 50 percent of the total cost of such activities, or the applicable sliding scale rate in accordance with 23 U.S.C. 120. The Federal contribution for P&A activities shall not exceed 13 percent of the total funds the State receives under 23 U.S.C. 402. In accordance with 23 U.S.C. 120(i), the Federal share payable for projects in the U.S. Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands shall be 100 percent. The Indian country, as defined by 23 U.S.C. 402(h), is exempt from these provisions. NHTSA funds shall be used only to finance P&A activities attributable to NHTSA programs.
(b) Terms.
(c) Procedures. (1) P&A activities and related costs shall be described in the P&A module of the State's Highway Safety Plan. The State's matching share shall be determined on the basis of the total P&A costs in the module. Federal participation shall not exceed 50 percent (or the applicable sliding scale) of the total P&A costs. A State shall not use NHTSA funds to pay more than 50 percent of the P&A costs attributable to NHTSA programs. In addition, the Federal contribution for P&A activities shall not exceed 13 percent of the total funds in the State received under 23 U.S.C. 402 each fiscal year.
(2) A State at its option may allocate salary and related costs of State highway safety agency employees to one of the following:
(i) P&A;
(ii) Program management of one or more program areas contained in the HSP; or
(iii) Combination of P&A activities and the program management activities in one or more program areas.
(3) If an employee works solely performing P&A activities, the total salary and related costs may be programmed to P&A. If the employee works performing program management activities in one or more program areas, the total salary and related costs may be charged directly to the appropriate area(s). If an employee is working time on a combination of P&A and program management activities, the total salary and related costs may be charged to P&A and the appropriate program area(s) based on the actual time worked under each area(s). If the State Highway Safety Agency elects to allocate costs based on actual time spent on an activity, the State Highway Safety Agency must keep accurate time records showing the work activities for each employee. The State's recordkeeping system must be approved by the appropriate NHTSA Approving Official.
Office of Postsecondary Education, Department of Education.
Final priorities.
The Assistant Secretary for Postsecondary Education announces priorities under the GEAR UP College Savings Account Research Demonstration Project. The Assistant Secretary may use these priorities for competitions in fiscal year (FY) 2013 and later years. We take this action to determine the effectiveness of implementing college savings accounts and providing financial counseling in conjunction with other GEAR UP activities as part of an overall college access and success strategy.
Catherine St. Clair, U.S. Department of Education, 1990 K Street NW., room 7056, Washington, DC 20006–8524. Telephone: (202) 502–7579 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone, call the Federal Relay Service, toll free, at 1–800–877–8339.
We published a notice of proposed priorities (NPP) for this program in the
There are differences between the NPP and this notice of final priorities (NFP) as discussed in the
A summary of the major changes follows.
• GEAR UP State grantees that received a new State grant in FY 2012 and will have ninth grade students in the 2014–2015 academic year are eligible to apply for funding.
• The Federal matching contribution has been changed from up to $10 per month to up to $25 per month for a maximum of $300 in Federal matching funds each year for a maximum of four years.
• The funding eligibility criteria have been changed so that, to be eligible, a GEAR UP State grant funded in FY 2011 or FY 2012 must support activities under this demonstration project in at least six high schools, each of which must serve a cohort of at least 30 ninth grade GEAR UP students. For the purposes of these priorities, a high school must serve students in grades 9–12.
• Applicants must identify the names, locations, and National Center for Education Statistics (NCES) identification numbers of the GEAR UP high schools that the applicant proposes to participate in the demonstration project.
• Project directors and appropriate project staff are required to participate in meetings that the Department will convene, likely in conjunction with the annual meetings of the National Council for Community and Education Partnerships (NCCEP), to provide professional development and technical assistance to grantees participating in the demonstration project.
• In order to protect the integrity of the project evaluation, grantees may not solicit, or raise money from, non-Federal sources as additional contributions to the student's non-Federal college savings account.
Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make. In addition, we do not address general comments that raised concerns not directly related to the proposed priorities.
Another commenter also sought clarification about the requirement that grantees provide a matching contribution to the amount of the GEAR UP award for this demonstration project.
Successful applicants for the College Savings Account Research Demonstration Project must already be GEAR UP program State grantees, and the Department expects that most recipients of these demonstration grants will not have to provide additional matching funds beyond what they are already providing to meet the match for their initial GEAR UP award. This is because a grantee may count any “over-matched” non-Federal funds it has already committed to its regular GEAR UP project toward its match for the
Another commenter stated that the Department should be prepared to assist grantees in negotiating account features and contract terms with financial institution partners, and may even need to solicit financial institution partners for grantees.
Another commenter stated that based on its experience with schools, local governments, and others in the design and development of college savings accounts, grantees will likely need significant technical support from the Department in various areas of their projects, particularly in the selection of savings accounts, program design, and program administration.
Finally, noting that the Department had proposed that money families deposit into students' college savings accounts would not count against their children for purposes of determining eligibility for Federal student financial assistance, one commenter recommended that we likewise ensure that these savings be excluded from other means-tested Federal programs, such as Medicaid and Temporary Aid to Needy Families. The commenter stated that if both the Federal-funds account and the student's account are held in trust, the fact that the family does not have direct ownership of either should resolve the issue, but the commenter also noted that any hint of worry about this issue might create a chilling effect on deposit activity. The commenter recommended that the Department provide guidance to account administrators on how to address this issue of asset test at the Federal, State, and local levels and how to communicate the answers to students and families.
The Department would not participate in grantee (or applicant) discussions with financial institutions that would (or might) implement these savings accounts. With regard to the comment that the Department provide data collection software and training in its use, the Department may not endorse any specific data-collection software programs. Grantees should use their professional judgment in selecting appropriate software that meets their needs and the needs of the financial institutions with which they would partner. Grant funds may be used to purchase software and any needed training in its use for the purpose of providing and tracking demonstration project services and outcomes.
Another commenter said that the success of State GEAR UP grantees will require strong partnerships with local governments and school districts.
One commenter recommended that the applications from State grantees include plans for local partnerships. This commenter noted that local partnerships can also help to tie this savings demonstration project to other community-based programs, such as free tax preparation, financial education resources, and help with the process of preparing a student's FAFSA application.
One commenter noted that by limiting eligibility to State GEAR UP grantees that use the cohort approach, the Department is making ineligible many valuable, experienced, and interested stakeholders, including existing GEAR UP grantees, and it is limiting its ability to identify crucial barriers to implementation on a broader scale.
A second commenter did not question our proposal that eligibility not extend to schools in which members of a GEAR UP cohort already are the beneficiaries of a matched college savings account program. Rather, it urged the Department to permit schools to be eligible if these college savings accounts were only made available in those schools to GEAR UP priority students who would not participate in this demonstration project. The commenter stated that one State would soon be implementing this kind of hybrid program and did not believe ineligible students under the State's program should also be ineligible under this demonstration program.
Another commenter recommended that eligibility be expanded to include both partnership and State GEAR UP grantees that meet all requirements of this competition.
First, permitting students who are selected for the regular GEAR UP project on the basis of priority to participate in this college savings account demonstration is incompatible with the project's research design. In order to ensure that the potential effects of savings accounts are properly evaluated, grantees will need to serve entire cohorts (i.e., grades) of students in at least six GEAR UP high schools that (1) can be randomly assigned, and (2) have a sufficient number of GEAR UP participants in a ninth grade cohort whose progress and outcomes can be tracked over the grant period. We think that being able to evaluate the effects of savings accounts provided to all students in a cohort is important, because serving all students may create peer effects that indicate the importance of providing such accounts to every student, as opposed to a few individuals in a given school. Such a structure, however, necessitates that entire grades participate in the GEAR UP program, which is the case for a State grant that selects students using the cohort approach but not for grants that select students using the priority approach.
Second, with regard to the comment that we extend eligibility to apply for a grant under this demonstration project to GEAR UP partnership grantees that select students using the cohort approach, we first note that under section 404D(a) and (b) of the HEA, GEAR UP funds may be used for scholarships and other financial assistance for participating students only as provided in section 404E of the HEA; therefore the use of GEAR UP funds for college savings accounts is permissible only as a supplement to the GEAR UP funds that a grantee is already reserving for financial assistance under section 404E in its regular GEAR UP project. Few GEAR UP partnership grantees reserve GEAR UP funds in their regular projects under requirements in section 404E. Furthermore, we believe State GEAR UP grantees, unlike the few partnership grantees that reserve GEAR UP funds for financial assistance under section 404E, have the needed capacity and infrastructure in place to manage this demonstration project.
In addition, an important part of evaluating the effectiveness of college savings accounts is to do so in the context of wraparound services—that is, supports that combine academic activities like providing tutoring or encouragement to enroll in challenging coursework with mentoring, information on student financial aid, building family engagement, and other help that is not explicitly academic in nature. By providing grants to existing programs that have been operating for at least a year or two, we are ensuring that demonstration project grantees have had the time needed to put those wraparound services into place in a way that new grantees could not.
Finally, we are not extending eligibility to local GEAR UP projects with strong municipal partners for the reasons expressed in response to the prior comment.
Another commenter recommended that the Department begin establishing the savings accounts and availability of match well before ninth grade for needy students whose parents are not college educated, given that these students would benefit from starting to save earlier in life.
With respect to starting the demonstration project with students not yet in ninth grade, the Department recognizes that there may be some benefits to exploring the effectiveness of starting college savings earlier than ninth grade. However, one of the goals of the demonstration project is to look at the effects of college saving for a multiyear period while students are in high school. By starting with students in ninth grade cohorts, the Department can ensure that all students receiving college savings accounts will be attending high schools where they can receive the wraparound GEAR UP services that we think may be important for success in preparing them for, and promoting their enrollment in, college. By contrast, starting the demonstration projects when students are in an earlier grade could result in some students receiving valuable services while in middle school but then moving to high schools where they may not receive wraparound GEAR UP supports or the required financial counseling for the savings accounts. Moreover, in view of limitations on the amount of GEAR UP funds the Department has available to support this demonstration project, and our interest in receiving robust evaluation results earlier rather than later, we believe that beginning this demonstration project while students are in middle school would seriously undermine project results.
That said, we understand that prohibiting these students from receiving services and savings accounts provided through this project could be difficult to explain and could create very undesirable tensions in the school communities. For this reason, we believe that grantees should, if they desire, be able to establish accounts for students who join the grantees' ninth grade cohort by enrolling after ninth grade in high schools in which cohort members have already received accounts. However, if a grantee chooses to provide savings accounts to these new members of the cohort, it must ensure that it has sufficient GEAR UP program funds to first provide matching deposits for students it is required to serve.
One commenter recommended that between the $200 per student seed money and the GEAR UP matching funds, the total amount of possible Federal funds deposited into each account be a number that is easy for a family to remember, such as $1,500 or $2,000.
Another commenter recommended that the Department provide flexibility in the amount of Federal matching funds that would be provided based on grantee determination of the needed family contribution. This commenter noted that having a variety of minimum matching rates would impact the evaluation but believes that the size of the treatment group should allow for such flexibility and help to answer the question of what level of match optimizes families' savings contributions. Another commenter recommended that the Department not establish a monthly match based on a fixed amount of family savings but instead focus on regular savings because, according to the commenter, research suggests this approach would be more effective in promoting accumulated savings.
Having examined the level of GEAR UP program funding that we expect to be available for this demonstration project, we believe that we can offer greater financial incentives for GEAR UP students or their families to save money for postsecondary education than the $10 per month Federal match that we had proposed. We therefore are revising the priority to specify that grantees will be able to match up to $25 per month. Thus, rather than the maximum of $120 of GEAR UP funds per year (and up to $480 over the maximum four years of savings) that we had proposed, grantees now will be able to provide each GEAR UP student a contribution of up to $300 per year (and up to $1,200 over this four-year period). The increase in the Federal matching contribution should increase the incentive for families to save for college and result in higher levels of family savings. We believe that $1,200 over four years will also give students and families a clearer amount of total seed and match funding available. While we appreciate one commenter's suggestion that matching amounts vary based upon a determination of family need, we do not think this approach is appropriate here. Varying the match would increase complexity for administrators, who would have to develop a needs-analysis formula and find ways to communicate these differences to students and families clearly. Beyond having grantees make available this fixed amount, the Department believes that providing other options for families to receive further deposits of GEAR UP funds beyond those specified in Priority 2 adds too much complexity to the administration of the project.
The Department appreciates the comment that the match be available to families so long as the required contribution is made at any point over this period. While we think that families should have some flexibility and opportunities to make up for lost contributions, those opportunities should not be provided indefinitely. That is why we are requiring grantees to provide families a quarterly catch-up period of two weeks. We believe these frequent catch-up opportunities balance the desire to give families the opportunity to make up for missed contributions with a project goal of providing regular deadlines that encourage savings.
One commenter recommended that in providing such flexibility, the Department should require that all accounts have certain minimum qualities, such as making the accounts accessible, safe, and effective, avoiding excessive fees to students, and being easy to use. The commenter also stated that this approach allows for some uniformity while also providing variation for research purposes, and added that if the Department decides to require a single account type, it should not use 529 savings plans. The commenter stated that despite their positive features, these plans have more onerous data disclosure requirements than alternative account models and thus would exclude more students than necessary from participation.
Another commenter, urging the Department to maintain flexibility in the type of account the applicant would select, noted that 529 plans generally cannot be accessed by deposits into local bank branches and may prove difficult to use by unbanked low-income households since in-person deposits would be very difficult. The commenter
On the other hand, a number of commenters recommended that we have grantees use existing 529 savings plans. One commenter noted that these plans provide a ready common infrastructure designed to support college savings that is not readily available in the case of banks or credit unions, that they would be available to students and parents after the end of this demonstration project, and that experience in one State demonstrates that use of a Section 529 account by all participating students has made it possible to monitor savings patterns and performance very accurately. The commenter also noted that, for this demonstration project, these Section 529 savings plans would need to be flexibly implemented, and urged the Department to clarify that States may work with the 529 providers to craft special arrangements for account opening, account-holder information requirements, and account structure that are specific to the demonstration project.
Finally, two organizations that work with members to enhance 529 plans submitted joint comments that, among other things, stated that the 2004 studies referenced in the NPP with regard to income bands and typical 529 plan participation are outdated and do not reflect efforts made in recent years to expand knowledge about and participation in 529 plans. In this regard, the commenters provided copies of two reports provided to the United States Treasury in February 2010 about 529 plans and efforts of those implementing the plans to broaden their reach.
The commenters also stated that 529 plans do encourage savings by those with modest incomes and that virtually all of these plans have required contributions of as little as $10 to $25 per month; have a wide variety of savings instruments, including very conservative ones; and low-fee options. The commenters said that they would defer to the State applicants about the specifics of implementing the Department's proposed study and the logistics of funding of the GEAR UP supplementary college savings accounts with required criteria and characteristics, particularly privacy aspects, but asked the Department to remain open to allowing a variety of funding vehicles in the study. The commenters emphasized that the greater the flexibility that is available for implementation efforts, the greater the chances of success. The commenters also said that the State educational agency (SEA) in each State should work with the State's 529 plan wherever possible, since by utilizing 529 plans for this purpose, it will take advantage of an existing infrastructure that administers college savings programs and in many instances administers a matching grant or other type of program for law and moderate income families.
(a) It has a partnership with a financial institution that will provide GEAR UP students starting in ninth grade with an account that allows saving in a federally insured deposit account that accumulates interest, an account composed of U.S. Government Treasury securities, or a fully guaranteed savings option within a Section 529 college savings plan. Accounts may also provide students and families with investment options that present risks in exchange for the potential for larger returns but that are in no way guaranteed.
(b) Federal funds are maintained in a single “notional” account that is in fact separate from any non-Federal funds. The amount of Federal GEAR UP seed and matching funds and accrued interest earned by each student is tracked, each student is permitted to see both the Federal funds and associated interest earned as well as any non-Federal funds and interest earned in a single account statement, and Federal funds are invested only in federally insured vehicles or U.S. Treasury securities.
Even with these conditions, grantees will have many different types of accounts to choose from, such as 501(c)(3) plans and 529 plans.
With regard to the comment raising concerns about 529 plans, the Department believes that the requirements outlined in the priority will protect against those concerns such that plans that have the flaws the commenter identified would not meet the requirements for selection. Similarly, we are confident that these requirements do not preclude grantees from using 529 plans but instead provide grantees with sufficient flexibility to choose what works best for them.
Another commenter offered recommendations about the way the savings accounts should be set up, suggesting for example that (1) the basic savings accounts be interest bearing with no minimum balance and no fees, (2) parents be able to invest funds in a certificate of deposit or investment product such as a mutual fund, (3) accounts be in the student's name so that assets in the accounts not affect family eligibility for Medicaid and Temporary Assistance for Needy Families (TANF), and (4) withdrawals for unauthorized purposes result in loss of GEAR UP matching funds.
Another commenter stated that while flexibility was important, there are a number of advantages of structuring the saving accounts using a custodial or trustee model and holding all funds under a single tax identification number. These advantages include: accounts can be opened automatically and universally and without the need for Social Security number or parental consent, funds are protected from early or non-qualified withdrawals, account earnings accrue tax free without the need of parents to report these earnings, and assets are not held in a family's name, thus avoiding asset tests for public benefits eligibility.
Yet another commenter recommended that the Department have grantees structure their accounts and projects so that (1) they are free of any fees on the students or the custodians, (2) all funds are insured by the FDIC, (3) there is no minimum balance or deposit amount, (4) parents and students have a range of deposit options, (5) there is strong competency in the management and exchange of data between the projects and financial institutions, (6) while making available limited withdrawals, families are provided access to their funds in the case of an emergency, and (7) families have access to account balances through an online system.
One commenter stated that the family contributions should instead be held in sub-accounts of the single master account, meaning that there would be no need for parallel accounts since the Federal seed deposit and match funds could be accurately and easily tracked using a ledger system.
Another commenter stated that while some college savings account programs use the dual-account approach the Department had proposed, others use software to track and accrue savings matches virtually while keeping the matching funds in a pooled account. Under this approach, when it is time for qualified withdrawals, the appropriate amount is withdrawn from the pool and paid to the institution of higher education or other vendor. The reduction in the number of separate accounts creates large decreases in administrative burden.
Similarly, another commenter stated that to decrease administrative burden, the Department should make use of notional accounts in which the Federal funds would be placed in an account that is parallel to the account holding non-Federal funds. The commenter noted that while the Department might be legally required to use this arrangement, given the enormous number of potential savings accounts and the fact that it could not be a viable method of account delivery in the long term, the commenter urged the Department to use a single account design that would use software to track and account for Federal and non-Federal deposits.
However, another commenter stressed its concern that auto-enrollment without parental consent would be less effective for achieving both the needed parental buy-in to college savings and the student enthusiasm for college that would come from requiring parental engagement, such as a requirement that parents expressly “opt-in” to the project. And another commenter stated that while 529 accounts offer convenience and simplicity, requiring grantees to use these accounts may (1) lead to the removal of other attractive features of accounts, such as the need for families that already had savings accounts to open and add deposits to another, and (2) create much greater administrative burden that could dampen support by those administering the project.
The comment prompted us to examine paragraph (g) in Section I of Priority 2, which, as proposed, did not clarify whether all students in the treatment group need to participate in the required financial counseling. We have revised the provision to clarify that all students must be included.
Another commenter, noting the importance of financial counseling, recommended that each State grantee implement financial counseling using curricula that are consistent and standardized across sites and that are focused on helping GEAR UP students to increase their savings. The commenter indicated that evaluation results with respect to the measure and impact of financial counseling would thereby be as valid and reliable as possible. In order to promote efficiencies and appropriate evaluation results, the commenter also emphasized the need of grantees, in States that mandate a financial education curriculum, to coordinate with that curriculum in the design phase of their projects.
Another commenter emphasized that financial literacy and college savings accounts are not enough to overcome barriers, particularly for first-generation college students, in areas such as preparing for college academically and financially, how to apply to college, and how to choose the right college and career path. The commenter urged the Department to pursue high-impact mentoring, information about academic and career preparedness, and the engagement of parents, counselors, teachers, and other stakeholders as important interventions in addition to college savings accounts. The commenter urged the Department to address these interventions—including through use of the Internet and online tools—as well as college savings accounts in order to provide a more robust set of outcomes.
Noting the proposed requirement for individually targeted financially counseling, another commenter stated that many grantees would not have existing capacity to provide this higher intensity service and that this counseling would be very costly. The commenter urged the Department to invest additional resources in providing needed grantee training and to permit grantees to provide this counseling in partnership with outside organizations with the capacity to assist.
While we appreciate the suggestion that the Department require grantees to provide financial counseling in the classroom rather than after school, we do not think it is appropriate to require this. Some schools may not be able to incorporate it into classroom time, and such a requirement could create problems with finding appropriate instructors. Likewise, we do not believe that an explicit requirement is necessary for coordinating with any financial education already required in grantees' States. The Department notes that, in their applications under this demonstration project, potential grantees will describe project services that are most appropriate to the needs of the target population and that maximize the effectiveness of project services through the collaboration of appropriate partners.
Another commenter recommended that we make this provision more flexible, both to reduce project complexity and to give students the greatest chance to acquire the maximum amount of Federal deposits.
With regard to the request for clarification about a family that over-matched in any month, as we have expressed in response to a prior comment, we believe that given the project's focus on promoting regular savings the amount of a family's overmatch should not be available as a credit for a month in which the family did not meet its match amount. Thus, we also believe that the family should still need to provide catch-up contributions for any months in which it did not provide any contributions and that this should be the result regardless of how much a family over-matched in a given month. We have clarified Priority 2 in this regard.
One of the goals of the demonstration project is to encourage students and families to regularly save for college. Allowing over-matching in one month to count in subsequent months would discourage regular saving and make the program more complex and costly to administer.
The Department appreciates that accounts will have to be administered for a longer period of time than the grantee's project period. But this extended timeframe is necessary to ensure that students are able to access their accounts throughout their time in postsecondary education. While we appreciate that this extended timeframe does place some burden on trustees and creates some uncertainty about how applicants and grantees would budget for these trustee costs, we think that the management of such accounts may become easier as families stop making contributions and instead begin withdrawing funds. In their applications under the program, potential grantees should budget up-front for all years for which the services of the account administrator and trustee will be needed. Moreover, grantees may budget for, and charge GEAR UP funds for, the reasonable and necessary costs of managing the savings accounts. Thus GEAR UP program funds will be available to pay the reasonable and necessary costs that the trustees can be expected to incur.
Another commenter recommended that the program follow the guidelines established by 529 programs for what constitutes a qualified withdrawal. Yet another commenter recommended that, to reduce administrative complexity, we eliminate provisions for reducing the prior match of GEAR UP funds for unqualified withdrawals from the student's account.
Another commenter urged the Department to consider reasonable restrictions on the purposes of withdrawals, perhaps with exceptions for emergencies, or limiting withdrawals to only a certain number of times per year. According to this commenter, surveys and focus groups of low-income individuals have suggested that these approaches may help encourage college savings.
Successful applicants also will establish rules for the withdrawal and transfer of non-Federal funds, which must include a requirement that the account trustee oversees any withdrawal or transfer of non-Federal funds. In terms of requests for additional restrictions on withdrawals or limiting the number of withdrawals allowed per year, the Department thinks that the restrictions placed on withdrawals of the Federal funds are appropriate. For the non-Federal matching funds, however, the Department does not think we need to establish additional restrictions since the loss of previously matched Federal funds that would accompany an unqualified withdrawal should be sufficient to dissuade this from often occurring. If, however, States wish to provide additional restrictions on withdrawing funds from the student's non-Federal college savings account, that is their purview.
We note, however, that the Department intends that the evaluation will address, to the extent possible, the ways in which both regular and demonstration GEAR UP services are implemented across schools. We also intend to collect some information about income and assets through parent surveys conducted in spring 2014 and 2016. However, we do not believe that we can adequately address family financial stability and how that might relate to the timing and levels of contributions to savings accounts without more frequent and longer surveys that would be burdensome to parents and costly for the evaluation to implement. Finally, the Department plans for the evaluation to appropriately adjust for clustering of students within schools in performing the statistical analysis of impacts.
To meet this priority, an applicant must—
(a) Have received a new GEAR UP State grant in FY 2011 or FY 2012 that supports activities in at least six high schools, each of which must serve a cohort of at least 30 GEAR UP participants who will be in ninth grade during the 2013–2014 academic year (for recipients of FY 2011 grants) or 2014–2015 academic year (for recipients of FY 2012 grants);
For the purposes of this priority, “high school” means a school that serves students in grades 9–12.
(b) Use the cohort approach (see Section 404B(d)(1) of the Higher Education Act (HEA)) to select participating GEAR UP students; and
(c) Identify in its application the names, locations, and National Center for Education Statistics (NCES) identification numbers of the GEAR UP high schools expected to participate in the demonstration and the number of GEAR UP participants expected to be in ninth grade during the 2013–2014 or 2014–2015 academic year at each GEAR UP school identified. (NCES school identification numbers can be found at:
To meet this priority, an applicant must submit in its application a comprehensive plan for providing (1) students in half of the GEAR UP high schools identified by the applicant with safe and affordable deposit accounts at federally insured banks, credit unions, or other institutions that offer safe and affordable financial services consistent with provisions of this Priority, and (2) financial incentives to encourage saving and related financial counseling to students and parents.
An applicant also must agree in its application to participate in an evaluation of this college savings account demonstration project that will examine the effect of college savings accounts and counseling on student and family behaviors and attitudes associated with college enrollment, as described in the
The applicant must describe in its application its plan for implementing college savings accounts and financial counseling, including how, preferably at the time of application but no later in time than to have all savings accounts operational before the start of the cohort's ninth grade in the 2013–2014 or 2014–2015 school years, it will—
(a)
(1) In partnership with a financial institution, provide students with an account that allows saving in an interest-bearing, federally insured deposit account, U.S. Government Treasury securities, or a fully guaranteed savings option within a 529 college savings plan. Accounts may also present students and families with investment options that present risks in exchange for the potential for larger returns but that are in no way guaranteed.
(2) Ensure that Federal funds are maintained in a single “notional” account that is in fact separate from any non-Federal funds, tracks the amount of Federal GEAR UP seed and matching funds and accrued interest earned by each student, permits each student to see both the Federal funds and associated interest earned as well as any non-Federal funds in a single account statement, and is invested only in federally insured vehicles or U.S. Treasury securities;
(3) Ensure that the non-Federal investments are in U.S. Government Treasury securities or a low- or no-fee age-based fund unless the parents or student chooses otherwise;
(4) Open savings accounts for students in automatic or nearly automatic fashion and describe how the savings account enrollment approach entails or approximates an automatic enrollment framework. Automatic enrollment means parents and students are not required to opt into the account, but may opt out of it. If parents and students take no action, the account is opened. Action is required to decline participation.
Applicants are also encouraged to propose automatic savings options, such as automatic payroll deductions by parents of participating students.
(5) Ensure that individual deposits could be made easily and at no cost by the student, the student's parents, or others on the student's behalf; that deposits would be able to be made online, including on mobile devices, in person at convenient locations, or by mail; and that account information
(6) Ensure that funds are held in the name of the account trustee described in paragraph (k) of part I of this priority with the participating students named as beneficiaries.
(b)
(1) Within two weeks of the beginning of students' ninth grade school year in the fall of 2013 or the fall of 2014, seed each student's account with $200 in Federal GEAR UP funding.
(2) Each month, for every contribution up to $25 beyond the initial seed amount that the student or family deposits into the student's account, deposit an additional equal size contribution up to $25 of Federal GEAR UP funding into the account, for a maximum of $300 in Federal matching funds each year for a maximum of four years.
(3) Notwithstanding the monthly cap on contributions referenced in paragraph two above, once per quarter during each calendar year during the project period, on a date approved by the Department, offer students and parents a two-week catch-up period if the student has not earned the maximum monthly match for that year and encourage students and families to make contributions at least sufficient to earn up to the maximum Federal match.
(4) Ensure that if, at the end of each calendar year, the student has not exhausted the Federal match, any unearned matching funds would no longer be available to that student or to the applicant and would be returned to the Department.
(c)
(d)
(1) The applicant must ensure that withdrawals of Federal GEAR UP funds are made only upon approval of the savings account trustee and are only made from the account to eligible students, or to an institution of higher education, as the term is defined in section 102 of the HEA, on behalf of a student upon that student's enrollment in an HEA Title IV-eligible institution of higher education, as the term is defined in section 102 of the HEA, for the purposes of paying for tuition, fees, course materials, living expenses, and other covered educational expenses as defined in the HEA, and other costs related to postsecondary education that the account trustee, based on instructions from the grantee, determines to be appropriate.
(2) An account trustee may not withdraw Federal GEAR UP funds for non-qualified purposes and may not transfer them to other individuals. If this rule is broken, the Department may require the applicant to terminate its relationship with the trustee and select a different entity to serve as savings account trustee. The initial trustee may be subject to penalties for misuse of Federal funds.
(e)
For example, if student and parent contributions total $140, Federal GEAR UP matches total $120, and the student withdraws $50 in non-Federal funds for non-qualified purposes, then $30 in Federal GEAR UP matching funds earned up until that point would be removed from the account because the amount of non-Federal funds remaining in the account after the non-qualified withdrawal—$90—is $30 less than the amount of Federal matching funds contributed. The Federal matching funds could be earned back in catch-up periods during that same year. The $200 seed money provided with Federal GEAR UP funds will not be removed from the account.
(f)
(1) Students must be enrolled in the ninth grade in one of the randomly selected treatment high schools (as described in the
(2) If a student does not use funds in the student's account within six years of his or her scheduled completion of secondary school, the undisbursed Federal GEAR UP funds must be returned to the Department.
(3) Students who transfer from a GEAR UP high school to a non-GEAR UP high school during the project period will continue to remain eligible for the matching funds from the grantee.
(4) At the discretion of the grantee, students who during the project period become members of the GEAR UP cohort by transferring from a non-treatment high school into a treatment GEAR UP high school after ninth grade may have an account with the $200 seed money and availability of matching funds, provided that the grantee has sufficient funds to first make the matches it is required to make for students in the treatment high schools.
(g)
(h)
(1) Agree to participate in Department-provided professional development for the GEAR UP or school staff who will deliver the financial planning and counseling described in paragraph (g) of part I of this priority.
(2) Ensure that the project director, site coordinators, and appropriate project staff participate in meetings of GEAR UP grantees that the Department will convene to provide professional development and technical assistance to GEAR UP grantees participating in the demonstration.
The meetings are likely to be held in conjunction with the annual meetings of the National Council for Community and Education Partnerships (NCCEP), the association of GEAR UP grantees. The February 2013 meeting, held in conjunction with the GEAR UP Capacity-Building Workshop, will likely cover technical
(i)
(j)
The account administrator must be able to fulfill its role until all Federal funds have been disbursed or returned to the Department. During the grant project period, modest administrative fees, not to exceed one percent of account balances, could be paid to the savings account administrator with Federal GEAR UP funds to cover expenses related to the GEAR UP College Savings Account Demonstration Project.
(k)
The account trustee must be able to fulfill its role until all Federal funds have been disbursed or returned to the Department. The account trustee may not be a student's parent or guardian, and must be separate and distinct from the account administrator. The trustee must be a State agency, such as a State Department of Treasury, Office of the Governor, Lieutenant Governor, or Comptroller, a tax-exempt non-profit organization or foundation, or for-profit organization or business with demonstrated expertise and experience in successfully managing financial services. During the grant project period, modest administrative fees, not to exceed one percent of account balances, could be paid to the savings account trustee with Federal GEAR UP funds to cover expenses related to the GEAR UP College Savings Account Demonstration Project.
(l)
(m)
(n)
A State grantee would meet the statutory match requirement tied to these additional research demonstration project funds through any “over-matched” non-Federal funds it already is committed to providing under its regular GEAR UP application. A State that would need to provide other non-Federal funds in order to meet the statutory match requirement tied to GEAR UP funds provided for the research demonstration project would need to include with its application a budget of how it proposed to do so. Contributions of students, families, parents' employers, community-based organizations, religious organizations, and others to student savings account could be treated as a matching contribution, but, if during any project year these private contributions to savings account were less than anticipated, a State would have to ensure by the end of each project year that it had met the annual matching requirement through other non-Federal contributions to this project or the regular GEAR UP activities.
(o)
(p)
The applicant must describe in its application its agreement to the following:
(a)
(1) Agree to a random assignment by the evaluation contractor of one-half of the GEAR UP high schools identified in its application for their students to receive demonstration services (treatment schools). In addition to the regular GEAR UP services offered at these treatment schools, GEAR UP projects must also offer the college savings account and financial counseling intervention in accordance with Priority 1 (Funding Eligibility). The students in the remainder of the high schools (control schools) will not receive the college savings account and financial counseling components but will continue to receive regular GEAR UP services.
(2) Agree not to offer a program that provides seed or matching funds for college savings accounts in the control schools for the duration of the GEAR UP grant.
(b)
(1) Two surveys of GEAR UP project directors at the State education agency (SEA) or LEA level and site coordinators for each school about the implementation of the college savings account and counseling components, including the extent to which the college savings account counseling was provided in the treatment schools and counseling and other services were provided under the GEAR UP grant in both treatment and control schools;
(2) Two surveys of GEAR UP students about their participation in GEAR UP program activities and other college access programs; their expectations about college enrollment and costs; their knowledge about college savings and financial aid; their financial literacy; their plans for enrollment in college-preparatory courses; and their financial behaviors, including the extent to which they are saving for college;
(3) Two surveys of parents of students participating in the GEAR UP program, in a form that will be comprehensible to parents of English language learners, about their participation in GEAR UP program activities and other college access programs; their expectations about their child's college enrollment and costs; their knowledge about college savings and financial aid; their financial literacy; and their financial decisions, including the extent to which they are saving for college;
(4) For treatment schools, data on the extent to which their staff attend the required professional development;
(5) For both treatment and control schools, rosters of all GEAR UP participants who are in the ninth grade in fall 2013 or fall 2014, including the names of the students, and other identifying information (such as their dates of birth, zip codes, parent contact information, or district or school identification numbers) that will enable the Department's evaluator to request school administrative records from the State or LEA for the appropriate students;
(6) Access to the appropriate State or LEA school administrative records, which will be used to measure student characteristics and achievement prior to the ninth grade, student attendance, course taking patterns, and credits in grades 9–12 for students in the treatment and control schools;
(7) From the grantee, annual information on the accounts of individual students, including the timing and amounts of disbursements of seed and matching funds, and the student's name, address, and date of birth.
(c)
(1) Letters of support from the relevant LEAs. Unless the SEA agrees in the application to provide this same data on its own, these letters of support also must contain the LEA's agreement to provide the relevant school records data to the evaluation contractor, including the following school records data for GEAR UP participants who are enrolled in the ninth grade in the treatment schools and control schools in the fall 2013 or fall 2014, regardless of whether the student has continued to be enrolled in his or her original high school:
(i) Scores on State or district-administrated assessments of reading and math for the seventh and eighth grades and high school years;
(ii) High school attendance;
(iii) High school courses in which the student was enrolled and grades and credits received for those courses;
(iv) Demographic information such as gender, race/ethnicity, parents' educational attainment, English proficiency, and the extent to which a language other than English is spoken at home;
(v) Whether the student is certified as eligible for free or reduced price lunch through the National School Lunch Program; and
(vi) Whether the student has an individualized education program.
(2) A letter from the principal of each high school identified in the application agreeing to participate in all aspects of the evaluation and grant, including:
(i) Random assignment of the high school;
(ii) If randomly selected to implement the demonstration services, allowing the GEAR UP program to offer the college savings account and counseling components to eligible GEAR UP participants at the principal's high school; and
(iii) Regardless of whether a school is in the treatment or control group, provision to the evaluation contractor of rosters of GEAR UP participants who are in the ninth grade in fall 2013 or fall 2014, including identifying information (such as student names, dates of birth, zip codes, parent contact information, or district or school identification numbers) that will enable the contractor to request the administrative records from the State or LEA about the appropriate students.
(3) Letter from the superintendent of each LEA overseeing the schools in the evaluation, agreeing to all aspects of the evaluation and grant, including—
(i) Random assignment of their GEAR UP high schools listed in the application;
(ii) If randomly selected to implement the demonstration services, an agreement allowing the State GEAR UP program to offer the college savings account and financial counseling to eligible GEAR UP participants consistent with the priorities and requirements in this notice of final priorities; and
(iii) Regardless of whether the schools are in the treatment or control group, an agreement to provide to the evaluation contractor rosters of GEAR UP participants who are in the ninth grade in fall 2013 or fall 2014, including identifying information (such as student names, dates of birth, zip codes, parent contact information, or district or school
(iv) An agreement to have district or school directory information policies in place prior to July 1, 2013, or July 1, 2014, that allow for student information to be shared in compliance with Federal law with the savings account administrator, the savings account trustee, or both, as needed to establish and manage the college savings accounts. Under the provisions of the FERPA and its implementing regulations, each of the LEAs in the application or schools therein must have provided public notice that the district or school has designated as “directory information” under FERPA the student's name, grade level, address, and date of birth. In addition, in accordance with FERPA, if any parents or guardians of a student has opted out of the disclosure of this student directory information, the school or LEA will not provide “directory information” on that student to the savings account administrator or the savings account trustee, and savings accounts with GEAR UP seed money will not be opened in his or her name, unless the parent or guardian of that student provides consent under 34 CFR 99.30.
This notice of final priorities does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice of final priorities does
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final priorities only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
Mine Safety and Health Administration, Labor.
Final rule.
The Mine Safety and Health Administration (MSHA) is revising the Agency's existing regulation for pattern of violations (POV). MSHA has determined that the existing regulation does not adequately achieve the intent of the Federal Mine Safety and Health Act of 1977 (Mine Act) that the POV provision be used to address mine operators who have demonstrated a disregard for the health and safety of miners. Congress included the POV provision in the Mine Act so that mine operators would manage health and safety conditions at mines and find and fix the root causes of significant and substantial (S&S) violations, protecting the health and safety of miners. The final rule simplifies the existing POV criteria, improves consistency in applying the POV criteria, and more effectively achieves the Mine Act's statutory intent. It also encourages chronic safety violators to comply with the Mine Act and MSHA's health and safety standards.
The final rule is effective on March 25, 2013.
George F. Triebsch, Director, Office of Standards, Regulations, and Variances, MSHA, at
Access rulemaking documents electronically at
Congress enacted the pattern of violations (POV) provision to provide MSHA with an additional enforcement tool, when other tools had proven ineffective. The final rule implements the statutory and legislative intent that safe and healthful conditions be restored at noncompliant mines.
This rule will have both quantitative and qualitative benefits and will reduce accidents, injuries, and fatalities in mines. This final rule is responsive to recommendations in the Office of the Inspector General's Report (OIG Report) on MSHA's implementation of its POV authority. The safety and health conditions that led to the accident at the Upper Big Branch (UBB) mine on April 5, 2010, further demonstrated the need to revise the POV regulation.
The POV final rule is one of MSHA's highest priority regulatory initiatives. It strengthens MSHA's ability to focus on those mine operators who demonstrate a disregard for the health and safety of miners through a recurring pattern of significant and substantial (S&S) violations. This final rule allows MSHA to focus on the most troubling mines, provide those operators with notice that they are out of compliance, and review their health and safety conditions until they are improved. This rule will not affect the vast majority of mines that operate in compliance with the Federal Mine Safety and Health Act of 1977 (Mine Act).
Congress intended that MSHA act quickly to address mines with recurring safety and health violations. MSHA's existing POV regulation limits the Agency's effective use of the POV provision, resulting in delays in taking action against chronic violators and depriving miners of necessary safety and health protections.
The final rule simplifies the existing POV criteria, improves consistency in applying the POV criteria, and increases the efficiency and effectiveness in issuance of a POV notice. The final POV rule:
• Retains the existing regulatory requirement that MSHA review all mines for a POV at least once each year;
• Eliminates the initial screening and the potential pattern of violations (PPOV) notice and review process;
• Eliminates the existing requirement that MSHA can consider only final orders in its POV review;
• Like the existing rule, establishes general criteria that MSHA will use to identify mines with a pattern of significant and substantial (S&S) violations;
• Provides for posting, on MSHA's Web site, the specific criteria (e.g., the number or rate of S&S violations) that MSHA will use in making POV determinations. This is consistent with existing practice; and
• Mirrors the provision in the Mine Act for termination of a POV.
In addition, in response to commenter concerns, the preamble to the final rule addresses:
• MSHA's Monthly Monitoring Tool for Pattern of Violations that operators can use to monitor their compliance performance;
• MSHA's commitment to requesting stakeholder input to revisions of the specific criteria; and
• MSHA's response to commenters' due process concerns;
(1) Operator can submit a corrective action program;
(2) Operator can request a meeting with the District Manager to discuss discrepancies in MSHA data; and
(3) Operator can request expedited temporary relief from a POV closure order.
This rule is not economically significant. Net benefits are approximately $6.7 million. Total annualized benefits are $12.6 million and total annualized costs are $5.9 million. The final rule will not have a significant economic impact on a substantial number of small mining operations.
MSHA estimates that the final rule will prevent 1,796 non-fatal and non-disabling injuries over 10 years.
MSHA expects that qualitative benefits will:
• Encourage chronic violators to more effectively and quickly comply with safety and health standards;
• Provide for a more open and transparent process;
• Promote a culture of safety and health at mines and hold operators more accountable; and
• Simplify MSHA's procedures to improve consistency.
In enacting the Federal Mine Safety and Health Act of 1977 (Mine Act), Congress included the pattern of violations (POV) provision in section 104(e) to provide MSHA with an additional enforcement tool to protect miners when the mine operator demonstrated a disregard for the health and safety of miners. The need for such
The Mine Act places the responsibility for ensuring the health and safety of miners on mine operators. The legislative history of the Mine Act emphasizes that Congress reserved the POV provision for mine operators with a record of repeated significant and substantial (S&S) violations. Congress intended the POV provision to be used for mine operators who have not responded to the Agency's other enforcement efforts. The legislative history states that Congress believed that the existence of a pattern would signal to both the mine operator and the Secretary that “there is a need to restore the mine to effective safe and healthful conditions and that the mere abatement of violations as they are cited is insufficient” (S. Rep. No. 181, supra at 33).
The Mine Act does not define pattern of violations. Section 104(e)(4) authorizes the Secretary “to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists.” Congress provided the Secretary with broad discretion in establishing these criteria, recognizing that MSHA may need to modify the criteria as experience dictates.
MSHA proposed a POV regulation in 1980 (45 FR 54656). That proposal included: purpose and scope, initial screening, pattern criteria, issuance of notice, and termination of notice. Commenters were generally opposed to the 1980 proposal and it was never finalized.
On February 8, 1985 (50 FR 5470), MSHA announced its withdrawal of the 1980 proposed rule and issued an advance notice of proposed rulemaking (ANPRM) that addressed many of the concerns expressed about the 1980 proposal. In the 1985 ANPRM, MSHA stated that it intended to focus on the health and safety record of each mine rather than on a strictly quantitative comparison of mines to industry-wide norms. In the ANPRM, MSHA stated that the Agency envisioned simplified criteria, focusing on two principal questions:
• Were S&S violations common to a particular hazard or did S&S violations throughout the mine represent an underlying health and safety problem?
• Is the mine on a § 104(d) unwarrantable failure sequence, indicating that other enforcement measures had been ineffective?
Based on the comments on the 1985 ANPRM, MSHA published a new proposed rule on May 30, 1989 (54 FR 23156), which included criteria and procedures for identifying mines with a pattern of S&S violations. The 1989 proposal included procedures for initial identification of mines developing a POV; criteria for determining whether a POV exists at a mine; notification procedures that would provide both the mine operator and miners' representative an opportunity to respond to the Agency's evaluation that a POV may exist; and procedures for terminating a POV notice. The 1989 proposal addressed the major issues raised by commenters on the 1980 proposal and the 1985 ANPRM. Commenters' primary concerns were MSHA's policies for enforcing the S&S provisions of the Mine Act, the civil penalty regulation, and MSHA's enforcement of the unwarrantable failure provision of the Mine Act. MSHA held two public hearings. After consideration of the information and data in the rulemaking record, MSHA issued a final rule on July 31, 1990 (55 FR 31128).
MSHA proposed revisions to its POV rule on February 2, 2011 (76 FR 5719). The Agency held five public hearings: June 2 in Denver, CO; June 7 in Charleston, WV; June 9 in Birmingham, AL; June 15 in Arlington, VA; and July 12 in Hazard, KY. MSHA also extended the comment period three times to April 18, June 30, and August 1, 2011.
Until mid-2007, POV screening was decentralized; MSHA District offices were responsible for conducting the required annual POV screening of mines. Following the accidents at the Sago, Darby, and Aracoma mines in 2006, MSHA developed a centralized POV screening process.
MSHA initiated a newly developed “Pattern of Violations Screening Criteria and Scoring Model” in mid-2007, using a computer program based on the screening criteria and scoring model to generate lists of mines with a potential pattern of violations (PPOV). In late 2009, MSHA determined that the Agency needed to revise its POV regulation and placed Part 104—Pattern of Violations on the Agency's 2010 Spring Semi-annual Regulatory Agenda. The safety and health conditions at the Upper Big Branch (UBB) mine that led to the accident on April 5, 2010, further demonstrated the need to update the POV regulation. As one commenter stated, the UBB mine avoided being placed on a POV despite an egregious record of noncompliance.
In order to increase transparency, the Agency also created a user-friendly, “Monthly Monitoring Tool for Pattern of Violations” (on-line Monthly Monitoring Tool) that provides mine operators, on a monthly basis, a statement of their performance with respect to each of the PPOV screening criteria posted on MSHA's Web site.
Prior to MSHA's creation of the on-line Monthly Monitoring Tool, mine operators had to track each mine's compliance performance and calculate the statistics to determine whether the mine met each of the specific screening criteria. Many mine operators relied on MSHA to issue a PPOV notice. Now, with MSHA's on-line Monthly Monitoring Tool, they do not have to calculate the statistics. Operators, including those that own multiple mines, can easily monitor their performance.
MSHA's on-line Monthly Monitoring Tool is quick and easy to use; it does not require extra skill or training. To use the on-line Monthly Monitoring Tool, mine operators enter their mine ID number, view their mine's performance, and see whether that performance triggers the applicable threshold for each of the screening criteria. The mine operator:
(1) Goes to MSHA's Web site at
(2) Goes to the Pattern of Violations Single Source Page;
(3) Enters the mine ID number under the “Monthly Monitoring Tool for Pattern of Violations;” and
(4) Clicks on the “Search” button.
In 2010, the U.S. Department of Labor's Office of the Inspector General (OIG) audited MSHA's POV program. On September 29, 2010, the OIG published its audit report titled, “In 32 Years MSHA Has Never Successfully Exercised Its Pattern of Violations Authority” (Report No. 05–10–005–06–001). The OIG found that the existing POV regulation created limitations on MSHA's authority that were not present in the Mine Act, specifically,
• Requiring the use of final citations and orders in determining a PPOV, and
• Creating a PPOV warning to mine operators and a subsequent period of further evaluation before exercising its POV authority.
The final rule allows MSHA to focus on the most troubling mines that disregard safety and health conditions and will not affect the vast majority of mines, which operate substantially in compliance with the Mine Act.
Final § 104.1 provides the purpose and scope of the rule and is substantively unchanged from the existing provision.
Commenters suggested that the scope be changed to exclude those mines with effective safety and health management programs that have already demonstrated proactive measures to protect the health and safety of miners. Other commenters suggested that MSHA exempt salt mines that have an exemplary record of safety.
Consistent with the Mine Act, the final rule covers all mines. MSHA acknowledges, however, that the majority of mine operators are conscientious about providing a safe and healthful work environment for their miners. The POV regulation is not directed at these mine operators. Consistent with the legislative history, it is directed at those few operators who have demonstrated a repeated disregard for the health and safety of miners and the health and safety standards issued under the Mine Act. The final rule addresses situations where a mine operator allows violations to occur and hazardous conditions to develop repeatedly without taking action to ensure that the underlying causes of the violations are corrected.
Like the proposal, final § 104.2 combines existing §§ 104.2 and 104.3 into a single provision. In combining existing §§ 104.2 and 104.3, the final rule eliminates the initial screening review process and the PPOV notification. Like the proposal, the final rule eliminates the requirement that MSHA consider only final orders when evaluating mines for a POV. Final § 104.2 specifies the general criteria that MSHA will use to identify mines with a POV. The final rule simplifies the process for determining whether a mine has a POV and more accurately reflects the statutory intent.
Final § 104.2, like the proposal, does not include a provision for a PPOV. Commenters in support of eliminating the PPOV stated that mine operators should know the details of their compliance history; there is no need for MSHA to warn an operator in advance that a mine may be subject to enhanced enforcement measures. Commenters said that eliminating the PPOV process would remove the incentive for mine operators to make just enough short-term improvements to get off the PPOV list, but then backslide and wait for MSHA to issue the next PPOV notice. Commenters stated that the elimination of the PPOV process should serve to effect greater improvements for more miners, at more operations, and on a longer-term basis.
Many commenters opposed the proposed elimination of the PPOV process. These commenters stated that elimination of the PPOV provisions denies mine operators their constitutional rights to adequate notice and a fair opportunity to be heard before MSHA issues one of its toughest sanctions. They also stated that elimination of the PPOV process further aggravates the impact of basing POV decisions on violations issued rather than on final orders.
Many commenters stated that eliminating the existing PPOV notice worsens the impact of any inaccurate data on which the POV is based. Some commenters stated that self-monitoring is unlikely to result in the prompt action that a PPOV notice would have triggered. Some stated that the problem in relying on self-monitoring is that MSHA and mine operators often reach different conclusions based on the same data. In their view, the existing PPOV notice process is straightforward and provides an opportunity for mine operators to address differences with MSHA. Some commenters stated that the elimination of PPOV also eliminates an element of transparency, as well as any chance of discussing the basis for the POV with MSHA before suffering loss due to inaccurate information or data.
Commenters pointed out that 94 percent of mine operators who received the PPOV notice reduced their S&S citations by at least 30 percent and 77 percent reduced S&S citations to levels at or below the national average for similar mines. These commenters stated that the initial screening is effective in identifying poor performance. Some said that the PPOV process has been effective at rehabilitating a significant number of problem mines and should not be changed. Commenters urged MSHA to focus efforts on those few mine operators who fail to improve performance, to not eliminate a program that allows mine operators and MSHA to work together, and to retain the existing two-step process.
Beginning in June 2007 through September 2009, MSHA conducted seven cycles of PPOV evaluations, on an average of every 6 to 9 months. In each cycle, eight to 20 of all mines met the criteria for issuance of a PPOV. During that period, MSHA sent 68 PPOV letters to 62 mine operators (six mine operators received more than one notification). After receiving the PPOV, 94 percent of the mines that remained in operation to the next evaluation reduced the rate of S&S citations and orders by at least 30 percent, and 77 percent of the mines reduced the rate of S&S citations and orders to levels at or below the national average for similar mines. These improvements declined over time at some mines. Compliance at 21 percent (13/62 = 0.21) of the 62 mines that received PPOV letters deteriorated enough over approximately a 24-month period to warrant a second PPOV letter (MSHA Assessment data). Six of these mines were actually sent a second PPOV letter, while the other seven (of the 13) could have received a second letter but did not, generally due to mitigating circumstances. MSHA believes that the final rule will result in more sustained improvements in mines that may have conditions that approach the POV criteria.
Commenters stated that MSHA already possesses the graduated enforcement tools necessary to shut down all or any part of unsafe operations through the use of unwarrantable failure to comply, imminent danger, and other elevated enforcement actions. Commenters also stated that MSHA fell short by not requiring mines receiving a PPOV to make fundamental safety process changes as part of their corrective actions. Commenters recognized that long-term continuous safety improvement requires fundamental changes in an organization's culture,
Some commenters stated that elimination of PPOV places a greater burden on small, remote mine operators that do not have computers or internet access. These operators will likely be unable to access the MSHA on-line databases on a timely basis to track their compliance performance. One commenter stated that MSHA should continue to provide written notification to mines in danger of establishing a pattern of violations unless a company requests that it not be sent.
MSHA's existing POV rule was developed before the widespread use of the Internet or even computers in many mines. Now, with MSHA's on-line Monthly Monitoring Tool, operators, including those that own multiple mines, can easily and frequently monitor their compliance performance. MSHA believes that the final rule is an improvement over the PPOV screening process in the existing regulation. The final rule encourages mine operators to continually evaluate their compliance performance and respond appropriately. Through MSHA's on-line Monthly Monitoring Tool, mine operators now have information readily available regarding each mine, the level of violations compared with the criteria, and an indication of whether the mine in question has triggered one of the POV criteria. This information eliminates uncertainty surrounding POV status and the need for MSHA to inform mine operators of a PPOV, since mine operators are able to access that information at any time. In addition, MSHA does not believe that eliminating the PPOV notice poses a burden on mine operators who may not have access to a computer or the internet. In the rare situations where mine operators do not have access to a computer or the internet, they may request periodic POV status updates from MSHA and the Agency will provide this information to them at no cost. Alternatively, MSHA can assist small or remote mine operators by providing them this information at the opening conference of each inspection visit.
Mine operators are responsible for operating their mines in compliance with all applicable standards and regulations. The on-line Monthly Monitoring Tool, which is currently available, will continue to provide mine operators, on a monthly basis, their performance status relative to the POV screening criteria posted on MSHA's Web site. MSHA developed the on-line Monthly Monitoring Tool based on feedback from the mining industry. MSHA conducted a stakeholder meeting prior to announcing the implementation of the “Monthly Monitoring Tool for Pattern of Violations” on April 6, 2011. At this meeting, MSHA demonstrated use of the on-line Monthly Monitoring Tool. The POV Single Source Page at
Using the enforcement data and specific POV criteria on MSHA's Web site, mine operators can perform the same review of their compliance and accident data as MSHA. MSHA's on-line Monthly Monitoring Tool is self-effectuating, quick, and easy to use; it does not require extra skill or training, technical assistance, or interpretation. Indeed, MSHA data indicate that operators are already making frequent use of the tool—there are nearly 2,200 hits per month on the on-line Monthly Monitoring Tool on the POV single source page.
Elimination of PPOV underscores the mine operators' responsibility to monitor their own compliance records and encourages them to verify that the information on MSHA's Web site is accurate. This is consistent with the Mine Act's premise that the mine operator has the authority, control, and primary responsibility for the health and safety conditions at their mines.
As stated earlier, the OIG concluded, and MSHA agrees, that the existing PPOV and final order provisions are impediments to MSHA's POV authority that were not required by the Mine Act. Experience has shown that the existing PPOV provision created the unintended consequence of encouraging some mine operators to achieve short-term improvements instead of adopting systemic, long-term improvements in their health and safety management culture. MSHA believes that eliminating the initial screening and PPOV provisions will create an additional incentive for mine operators to address the root causes of recurrent S&S violations and will facilitate long-term compliance at mines with a repeated history of S&S violations. Based on the Agency's experience under the existing regulation, MSHA has concluded that incentivizing greater use of the on-line Monthly Monitoring Tool by mine operators facilitates a more proactive approach to health and safety.
Final § 104.2 eliminates existing § 104.3(b), which provides that—
Only citations and orders issued after October 1, 1990, and that have become final shall be used to identify mines with a potential pattern of violations under this section.
Several commenters supported MSHA's proposal to eliminate the final order requirement. Some agreed with MSHA's conclusion that the existing regulation impedes MSHA's ability to use the POV enforcement tool in the manner intended by Congress. Some commenters stated that the final order requirement makes it impossible to use the POV tool to address serious current health and safety problems at mines. They stated that by the time a citation becomes final, the health and safety conditions at the mine may bear no relationship to what they were when the hazard was originally identified and cited.
Commenters supporting elimination of the final order requirement stated that the plain language of the Mine Act and its legislative history do not require MSHA to rely on final orders when identifying a pattern of violations. These commenters stated that the language of the Mine Act and its legislative history support MSHA's decision to consider citations and orders as issued, rather
Based on Agency experience with the existing regulation, the final rule, like the proposal, includes all citations and orders issued by MSHA in the Agency's POV determination. This is consistent with the language, legislative history, and purpose of the Mine Act's POV provision. Section 104(e)(1) of the Mine Act states that an operator shall be given a POV notice—
* * * if it has a pattern of violations of mandatory health or safety standards. * * * which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards. (30 U.S.C. 814(e)(1))
Not only does the language of section 104(e) contain nothing that prohibits the Secretary from basing POV determinations on non-final citations and orders, but section 104(e)(4) explicitly provides that the Secretary “shall make such rules as [s]he deems necessary to establish criteria for determining when a pattern of violations of mandatory health or safety standards exists”.
Because Congress explicitly delegated to the Secretary the authority to establish POV criteria, and because nothing in the language of section 104(e) explicitly limits the Secretary's discretion to base POV determinations on non-final citations and orders, the Secretary's interpretation that she may do so must be given “controlling weight” (
The elimination of the final order provision in the final rule is also consistent with the legislative history. The Senate Report accompanying the Mine Act states that section 104(e) was enacted in response to the Scotia mine disaster, an accident that “forcefully demonstrated” the need for such a provision (S. Rep. No. 181, 95th Cong., 1st Sess. 32, reprinted in Legislative History of the Federal Mine Safety and Health Act of 1977). The Report noted that the Senate's investigation of that disaster revealed that—
* * * the Scotia mine, as well as other mines, had an inspection history of recurrent violations, some of which were tragically related to the disasters, which the existing enforcement scheme was unable to address. (Id. at 32)
The Senate Report also specifically referenced the similarities between section 104(e) and 104(d) of the Mine Act and stated that the POV sequence parallels the existing unwarrantable failure sequence (Id. at 33). That statement reflects Congress' intent that POV determinations, like section 104(d)(1) and (2) withdrawal orders, should be based on non-final citations and orders.
In addition, the Senate Report stated that the Secretary have both section 104(d) and 104(e) enforcement tools available for use simultaneously if the situation warrants (Id. at 34). Congress specifically indicated its intent that the Secretary use the POV enforcement tool as a last resort when other enforcement tools (available to the Secretary) fail to bring an operator into compliance. This underscores Congress' intent that all enforcement tools be used together, and in the same manner, that is, use of issued citations and orders, as opposed to final orders.
Finally, the Senate Report emphasized Congress' intention that the Secretary have “broad discretion” in establishing criteria for determining when a pattern exists, and that the Secretary continually evaluate and modify the POV criteria as she deems necessary (Id. at 33). This specific grant of discretion to the Secretary supports the Agency's action in the final rule to eliminate the use of only final orders in making a POV determination. The final rule supports the enforcement structure in the Mine Act that the Secretary use non-final citations and orders as the basis for section 104(e) withdrawal orders.
Interpreting section 104(e) to permit the Secretary to rely on non-final citations and orders in determining POV status is consistent with the purpose of section 104(e)—protecting miners working in mines operated by habitual offenders whose chronic S&S violations have not been deterred by the Secretary's other enforcement tools. The Secretary has determined that the final order requirement in the existing rule has prevented the Secretary from using section 104(e) as the effective enforcement tool that Congress intended. Some S&S citations and orders do not reach the final order stage for years.
The average number of days from contest to disposal (the time it currently takes for a typical citation to make it all the way through the appeals process) was 534 days in calendar year 2011 (about 1.5 years). The number of citations disposed of in less than two years was 131,000 (or 82%). Fourteen percent were disposed of within two to three years, 3% were disposed of within three to four years, and 1% were disposed of in four or more years.
The contest rate for S&S violations increased greatly following MSHA's revision of its civil penalty regulations in 2007, pursuant to the Mine Improvement and New Emergency Response Act (MINER Act) of 2006. The backlog of contested cases at the FMSHRC has grown so large that even with an increase in the numbers of cases disposed of in 2011, final orders may not be issued for two or three years. As stated by one commenter, the delay caused by the backlog allows POV sanctions to be postponed or avoided altogether. This often leaves the Secretary unable to base POV determinations on mine operators' recent compliance history—no matter how egregious that history may be. Interpreting section 104(e) to permit the Secretary to base compliance determinations on non-final citations or orders will allow the Secretary to protect miners working in mines where there is a recent history of S&S violations and where the mine is operated by habitual offenders who have been undeterred by other enforcement sanctions—precisely the type of circumstances section 104(e) was intended to correct.
Many commenters opposed the Agency's proposal to eliminate the final order requirement. Some stated that the proposal violates mine operators' due process rights under the Fifth Amendment to the United States Constitution. Commenters stated that the use of violations issued to trigger punitive POV sanctions without a meaningful opportunity for prior independent review, together with the proposed rule's elimination of the PPOV provisions, denies mine operators the constitutional right to notice and the opportunity to be heard.
Commenters who opposed elimination of the final order requirement were concerned with the possibility of the erroneous deprivation of property that may occur without adequate procedural protections. They stated that the property interest at stake—the economic viability of a mine—is so jeopardized by the threat of the POV sanction that MSHA must provide maximum protection to mine operators before it exercises POV authority. Some commenters stated that the proposed rule, as written, does not provide adequate procedural protections. They cited cases from the U.S. Supreme Court and other federal courts to support their position that due process requires MSHA to provide notice and a hearing to mine operators before imposing the POV sanction.
MSHA does not agree with commenters who stated that elimination of the PPOV and final order provisions violate mine operators' due process rights under the U.S. Constitution. Citations and orders, together with notice of the POV criteria posted on the Web site, and the on-line Monthly Monitoring Tool, will provide sufficient notice to alert operators of the possibility that they may be subject to a POV. Under existing MSHA procedures, mine operators can discuss citations and orders with the inspector both during the inspection and at the closeout conference. They also can request a safety and health conference with the field office supervisor or the district manager to review citations and orders and present any additional relevant information. Additionally, mine operators who may be approaching POV status have the opportunity to implement a corrective action program, and MSHA considers a mine operator's effective implementation of an MSHA-approved corrective action program as a mitigating circumstance in its POV review.
The Supreme Court has held that adequate post-deprivation procedures are sufficient to satisfy due process where public health and safety are at stake. See
The Mine Act guarantees due process for mine operators subject to MSHA enforcement actions. A mine operator may seek expedited temporary relief under section 105(b)(2) of the Mine Act from a pattern designation provided a withdrawal order is issued under section 104(e). Operators must have at least one withdrawal order in order to contest the pattern designation. Requests for temporary relief are reviewed within 72 hours and assigned to a Commission Administrative Law Judge as a matter of procedure, provided the request raises issues that require expedited review. The Mine Act's expedited review procedure satisfies the Constitution's due process requirements.
The on-line Monthly Monitoring Tool will allow operators to review their compliance information on a monthly basis and bring to MSHA's attention any data discrepancies in the POV database as it is updated each month. Mine operators will have an opportunity to meet with District Managers for the purpose of correcting any discrepancies after MSHA conducts its POV screenings and issues a POV. As with all citations and orders issued under the Mine Act, mine operators have the right to contest any citation or order before the FMSHRC and operators may seek expedited review of a POV closure order.
Final § 104.2(a), like the existing rule, provides that MSHA will review the compliance records of mines at least once each year to determine if any mines meet the specific POV criteria posted on MSHA's Web site at
After reviewing all comments, the final rule retains the once-a-year review in the existing rule. Under the final rule, the Agency could conduct more than one review a year if conditions warrant, as it has done under the existing rule.
Final § 104.2(a), like the proposal, contains the criteria that MSHA will consider in evaluating whether a mine exhibits a POV. These criteria do not include numerical measures. MSHA will post the specific criteria, with numerical data, on the Agency's Web site at
Commenters stated that MSHA seems to be basing POV determinations on multiple unrelated violations. They stated that a POV must be based on repeated violations of the same or related standards.
The Mine Act does not require that MSHA base POV decisions on repeated violations of the same or related standards. The pattern criteria in the existing regulation for a PPOV include repeated S&S violations of a particular standard or standards related to the same hazard that are final orders of the FMSHRC. Like the existing rule, under the final rule, MSHA will base POV decisions on a complete review of a mine's health and safety conditions, not only on repeated violations of the same or related standards as recommended by some commenters. MSHA believes that limiting the scope of the POV regulation to repeated violations of the same or related standards would unnecessarily hinder MSHA's ability to address chronic violators and would ignore the reality that, in dangerous safety situations there are often multiple contributing violations.
Some commenters stated that the review must be limited, e.g., to citations issued within the previous 2 years. Some commenters expressed concern that, because of the Commission's heavy case load, many citations could be adjudicated at the same time causing an unfair surge in citations in one review period. Some commenters stated that a mine's POV status can be threatened by a single inspection or a few inspections with few citations followed by one with a lot of citations. These commenters stated that MSHA should not be able to issue a POV notice based on only a few inspections, one of which had many citations. According to one commenter, in these situations, posting the specific criteria on a Web site does not warn a mine operator that the mine's compliance history is approaching a POV. In support of this position, the commenter provided an example of a mine operator undergoing one inspection and receiving a smaller number of S&S citations, followed by another inspection within the next several months with a much larger number of S&S citations.
MSHA will continue the existing policy of reviewing a mine's compliance history over a 12-month period of time. MSHA believes that this provides the best opportunity for the Agency to evaluate whether a mine has a POV. Under the final rule, mine operators have the responsibility to constantly monitor their compliance performance and to assure that health and safety conditions are addressed in a timely manner. MSHA suggests that mines receiving an inordinate number of S&S violations over a short period of time may need to develop a corrective action program designed to address the root causes of any recent increases in S&S citations.
Commenters also expressed concern about how MSHA interpreted S&S. Many commenters emphasized that the mine operator and MSHA inspector often disagree. Some stated that inexperienced or insufficiently trained inspectors mark many citations as S&S when there is no likelihood of an injury or illness, and no negligence. They stated that MSHA must clarify what constitutes an S&S violation.
MSHA's interpretation of what constitutes an S&S violation is posted on MSHA's Web site at
Final § 104.2(a)(7), like the proposal, provides that MSHA will consider other information that demonstrates a serious safety or health management problem at the mine. It includes the information addressed in existing §§ 104.2(b)(2)–(b)(3) and 104.3(a)(1)–(a)(2). Under the final rule, this other information may include, but is not limited to, the following:
• Evidence of the mine operator's lack of good faith in correcting the problem that results in repeated S&S violations;
• Repeated S&S violations of a particular standard or standards related to the same hazard;
• Knowing and willful S&S violations;
• Citations and orders issued in conjunction with an accident, including orders under sections 103(j) and (k) of the Mine Act; and
• S&S violations of health and safety standards that contribute to the cause of accidents and injuries.
Commenters were concerned that MSHA's consideration of other information in the POV review criteria gives the Agency almost limitless discretion to include anything the Agency wants to consider. Some stated that unless the basis for this determination is clearly defined, it is too broad and subjective.
Some commenters also stated that MSHA already possesses the authority to shut down a mine for a variety of reasons, such as an imminent danger or an unwarrantable failure to comply, and does not need the POV sanction to stop operations at dangerous mine sites. According to these commenters, in these situations, mine operators must immediately comply with the order and withdraw miners until the hazard is eliminated or the violation is abated, though the mine operator still has the right to challenge MSHA's issuance of the order. They stated that, in addition, MSHA can seek a restraining order in the appropriate federal district court under section 108(a)(2) of the Mine Act whenever the Agency believes that the mine operator is engaged in a pattern of violations that constitutes a continuing hazard to the health or safety of the miners. For these reasons, commenters stated that MSHA has no basis to dispense with the notice and comment process in a manner contrary to due process and the statutory enforcement scheme of the Mine Act in exercising the Agency's POV authority. (See discussion on the elimination of the PPOV and final order provisions above in sections III.B.1. and 2. of this preamble.)
Other commenters were concerned that MSHA's consideration of injuries and illness might cause some mine operators to not report them. These commenters stated that MSHA should not penalize mine operators for reporting accidents, injuries, and illnesses by considering them in the Agency's POV review. These commenters stated that a pattern of injuries does not mean a pattern of violations and that injuries and illnesses are not well correlated either quantitatively or qualitatively with violations. MSHA data do not reveal a direct statistical correlation between citations and injuries. However, as a general matter, since passage of the Mine Act and MSHA's enforcement of health and safety standards at mines, annual mining fatalities and injuries have steadily declined. In 1977, there were 273 mining fatalities and 40,000 injuries. In 2011, there were 37 fatalities and less than 9,000 injuries. Moreover, among mines that have been placed on PPOV status in prior years, data generally show both a reduction in violations and a corresponding decrease in injuries in the year after mines were placed on that status.
One commenter stated that including injuries in POV determinations can only diminish the value of the POV in identifying truly dangerous mine operations. Another commenter stated that MSHA's data are unreliable because of underreporting and suggested that MSHA conduct a part 50 audit as part of a POV review. This commenter recommended that MSHA weigh heavily any information that shows a mine operator failed to report or is trying to cover up underreporting or violations.
Consistent with MSHA's position that the Agency will consider a variety of sources of information bearing on a mine's health and safety record when it conducts POV evaluations, this provision of the final rule restates the other information that the Agency may consider in determining whether a mine has a POV. MSHA data and experience show that violations of approval,
In this final rule, MSHA states what it considers mitigating circumstances and, based on its experience, provides more explanation for how the Agency considers mitigating circumstances in its POV decisions.
Many commenters stated that MSHA should provide more information about the role that mitigating circumstances play in the POV review process. Some commenters responded as though MSHA will issue a POV notice automatically if the criteria on the MSHA Web site are met. These commenters stated that final § 104.3 requires the District Manager to issue a pattern of violations notice when a mine has a pattern of violations; however, the discussion of mitigating circumstances states that MSHA has discretion to consider other factors before determining whether a POV notice is necessary. One commenter stated that the mining community needs to know more about what mitigating factors MSHA will consider and how the presence of mitigating factors could remove an operation from POV status. This commenter urged MSHA to consider only objective measures that demonstrate significant improvements in mine health and safety for mitigation purposes. This commenter was concerned that MSHA may relieve a mine operator from a POV determination based on short-term improvements without an objective commitment to long-term change. Other commenters stated that the proposed rule did not prescribe a specific procedure for MSHA consideration of mitigating circumstances prior to issuance of the POV notice. They requested that MSHA provide more information about the means for presenting mitigating information to the Agency and include the mechanism for this approach in the rule.
Under the existing rule, MSHA considers mitigating circumstances before issuing a POV notice. Under the final rule, this will not change; however, MSHA will no longer provide a notice to mine operators that a mine's violation history is approaching a pattern of S&S violations. Under the final rule, the mine operator is responsible for knowing if the mine's violation history is approaching a pattern of S&S violations. As stated above, MSHA exercises caution and considers all relevant information, including any mitigating information, before it exercises its POV authority. There may be extraordinary occasions when a mine meets the POV criteria, but mitigating circumstances make a POV notice inappropriate. The mine operator will have to establish mitigating circumstances with MSHA before the Agency issues a POV notice. The types of mitigating circumstances that could justify a decision to not issue a POV notice, or to postpone the issuance of a POV notice to reevaluate conditions in the mine, may include, but are not limited to, the following:
• An approved and implemented corrective action program to address the repeated S&S violations accompanied by positive results in reducing S&S violations;
• A bona fide change in mine ownership that resulted in demonstrated improvements in compliance; and
• MSHA verification that the mine has become inactive.
MSHA will continue to consider only the enforcement record of the current operator of the mine in determining whether the mine meets the POV criteria. MSHA, in coordination with the Office of the Solicitor, when necessary, determines whether there has been a change in the mine operator that warrants the start of a new violation history at a mine. Mines that have undergone bona fide changes in ownership may have POV notices postponed while MSHA determines if the new owner is achieving measurable improvements in compliance. Mines at which POV enforcement actions have been postponed due to a change to inactive status will immediately be subject to further POV enforcement once the mines resume production.
Although the final rule does not establish a specific procedure for mine operators to present mitigating circumstances to MSHA prior to the issuance of a POV notice, mine operators can present information to support mitigating circumstances to the District Manager at any time. (See MSHA's discussion of its on-line Monthly Monitoring Tool, for monitoring a mine's compliance history, under section III.B.1. of this preamble.)
Commenters misunderstood MSHA's use of the term “safety and health program” in the proposed rule. Several commenters suggested that MSHA use another term, such as remedial plan or targeted remedial plan, to avoid confusion. One commenter stated that including comprehensive safety and health management programs in the final rule, as these programs are typically understood, will establish a detrimental precedent that safety and health programs are merely compliance. This commenter offered to support the development of expertise in MSHA staff so that MSHA could work cooperatively with mine operators approaching POV status to enable them to develop safety and health programs, stating that anything short of such a measure demeans the value of a safety and health program.
In response to comments, MSHA clarified in its notices of public hearings and its opening statements at the public hearings that the Agency did not intend that these safety and health management programs be the same as those referenced in the Agency's rulemaking on comprehensive safety and health management programs (RIN 1219–AB71). The public hearing notice further stated that MSHA would consider a safety and health management program as a mitigating circumstance in the pattern of violations proposal when it: (1) Includes measurable benchmarks for abating specific violations that could lead to a pattern of violations at a specific mine; and (2) addresses hazardous conditions at that mine. MSHA's use of the term “safety and health program” in relation to mitigating circumstances in the POV proposal is related to corrective action programs focused on reducing S&S violations at a particular mine. Further, MSHA clarified that its rulemaking on safety and health programs is a totally separate action, unrelated to the POV rulemaking. MSHA also stated that these programs referenced in the POV rulemaking would have to be approved by the Agency prior to the issuance of a POV notice. To avoid any confusion, the final rule uses only the term “corrective action program”, it does not address safety and health management programs at all.
MSHA will evaluate the mine operator's corrective action program to determine if it is structured so that MSHA can determine whether the program's parameters are likely to result in meaningful, measurable, and significant reductions in S&S violations. MSHA has guidelines for corrective action programs on the Agency's Web site at
MSHA will consider an operator's effective implementation of an MSHA-approved corrective action program as a mitigating circumstance that may justify postponing a POV notice. Like the Agency's policy under the existing rule, the program must set measurable benchmarks for evaluating the program's effectiveness and show measurable improvements in compliance to warrant postponement of a POV notice.
Under the final rule, if a mine operator is close to meeting the POV criteria, the mine operator may submit to MSHA for approval a corrective action program to be implemented at the mine. If requested, MSHA will assist mine operators in developing an appropriate corrective action program.
Final § 104.2(b), proposed as § 104.2(a), provides that MSHA will post, on its Web site at
As stated in the proposed rule and at the public hearings, to provide transparency and to put operators on notice of how the Agency will determine if a mine has a POV, MSHA will continue to post specific criteria on the Agency's Web site. The specific criteria can be found at
The specific criteria are an important element in MSHA's POV evaluation process. MSHA agrees with the commenters who stated that the Agency may from time to time need to modify thresholds and other factors to assure mine operators of fair and equitable criteria that take into account different mine sizes, mine types, and commodities. The final rule retains the Agency's longstanding practice of developing specific criteria through policy and provides the flexibility to adapt the specific criteria as changing conditions and factors dictate.
MSHA considers the specific POV criteria on its Web site to be a discretionary statement of Agency policy. Posting the specific POV criteria on MSHA's Web site promotes openness and transparency by encouraging mine operators to examine their own compliance records more closely and ascertain whether they have recurring S&S violations. Many mine operators are currently monitoring their compliance performance against the specific criteria posted on MSHA's Web site.
In the preamble to the proposed rule, MSHA requested comments on how the Agency should obtain input from stakeholders during the development and periodic revision of the Agency's specific POV criteria and the best methods for notifying mine operators of changes to the specific criteria. MSHA also stated that the Agency plans to provide any change to the specific criteria to the public, via posting on the Agency's Web site, for comment before MSHA uses it to review a mine for a pattern of violations.
Some commenters opposed MSHA's proposed approach to revise the specific criteria. Commenters stated that MSHA's POV screening criteria are not interpretive, are not a statement of policy, and do not constitute a logical outgrowth of the proposed rule. Instead, they stated that these criteria constitute rulemaking and require formal notice and comment under the Administrative Procedure Act (5 U.S.C. 551
Commenters stated that the specific criteria should not be a moving target, but should be fixed in the final rule so that stakeholders will know what is expected of them to avoid a pattern notice. They stated further that promising to obtain public comment before establishing specific criteria is not the same as putting the criteria in the rule and going through the notice-and-comment rulemaking process. Commenters also stated that specific numerical criteria need to be included in the rule so that they can comment on the impact of the proposal, numbers of mines affected, or costs. They stated that the OIG specifically recommended that MSHA seek stakeholder input on POV screening criteria.
Some commenters requested that MSHA include specific numbers in the final rule for how the general criteria will be measured. Other commenters suggested that MSHA not use absolute numbers as the control for the criteria—large mines should not be compared with small mines and vice versa; they stated that inspection hours provides a better basis for comparison. Some commenters stated that there is a disproportionately large number of inspection hours at large unionized mines, where miners are encouraged to point out all violations to inspectors,
Some commenters agreed with MSHA's proposed approach to revise the specific criteria. They stated that MSHA has many years of experience with developing POV criteria and possesses the necessary expertise to determine what specific criteria should be used to identify problem mines. They recommended that MSHA post this information in a single location on the Agency's Web site so that mine operators and other interested parties are able to view all of the relevant information at once by entering the mine ID number.
After reviewing all comments, based on Agency experience, the final rule, like the proposal, does not include specific POV criteria. This provides the Agency with necessary flexibility in establishing criteria for POV evaluations. By retaining the specific pattern of violations criteria as a statement of Agency policy, as has always been the case under the existing regulation, the Agency has flexibility to adjust the specific criteria, as necessary, to accomplish its mission and to provide relief to mine operators. Such relief might be necessary if, for example, the results of the application of the specific criteria have unintended consequences on a particular mine sector or mine size. In this case, MSHA might determine that the existing specific criteria are not fairly or properly evaluating a mine's compliance record for a pattern of violations. The Agency might determine that the existing specific criteria are no longer an appropriate measure of elevated risk to miners. If this were to occur, mine operators and miners would be unfairly impacted by inappropriate criteria. This could also have an adverse or punitive impact on mine operators. MSHA understands the importance of getting input from all of its stakeholders whenever the Agency considers revision of the specific criteria, and would provide opportunity for stakeholder input (76 FR 35801).
This aspect of the final rule is consistent with the legislative history of section 104(e), which stated that a “pattern does not necessarily mean a prescribed number of violations of predetermined standards” (S. Rep. No. 181, supra at 32–33). MSHA recognizes that a certain number of violations that might constitute a pattern at one mine may be insufficient to trigger a pattern at another.
MSHA considers the specific POV criteria to be a statement of Agency policy that is designed to provide guidance to MSHA personnel when making POV decisions. A mine that meets the specific criteria's numerical thresholds is not automatically placed in POV status. Rather, MSHA retains the discretion to consider mitigating circumstances for each individual mine and may choose not to use the POV sanction even if a mine meets the specific criteria. Federal courts have consistently held that nonbinding statements of agency policy do not require notice and comment rulemaking (
Final § 104.3 simplifies the requirements for issuing a POV notice and is essentially unchanged from the proposal. MSHA believes that it allows the Agency to more effectively implement the POV provision in a manner consistent with legislative intent. As stated earlier, some mines made initial safety improvements, however, these improvements declined over time. MSHA's experience and data reveal that some mine operators who received PPOV letters temporarily reduced their S&S violations, but reverted back to allowing the same hazards to occur repeatedly without adequately addressing the underlying causes. MSHA believes that operators who greatly reduced violations after receiving a PPOV letter and maintained this improved level of compliance are likely to continue monitoring their own performance under the final rule.
Final § 104.3(a), like the proposal, provides that, when a mine has a POV, the District Manager will issue a POV notice to the mine operator that specifies the basis for the Agency's action. The District Manager will also provide a copy of the POV notice to the representative of miners. Final § 104.3(b) requires that the mine operator post the POV notice on the mine bulletin board and that it remain posted until MSHA terminates the POV. After the operator receives the POV notice, MSHA's web site Data Retrieval System will list the POV notice, along with other enforcement actions, for the affected mine.
Some commenters stated that some of the data MSHA uses to screen operators for PPOV (or POV) is inaccurate, and that mine operators should have an opportunity to meet with MSHA to question underlying data after being notified of a POV. As discussed earlier, commenters were concerned that, without procedural safeguards and mine operator input, MSHA could issue a POV notice based on inaccurate data; they thought data inaccuracies were a common occurrence in the overloaded MSHA database. Commenters were also concerned that MSHA would be less inclined to conference once the POV notice was issued. To relieve these concerns, some commenters suggested that MSHA provide mine operators an informal warning and a short period of time to review data and demonstrate that the underlying violations may be invalid or otherwise flawed for purposes of POV consideration. Commenters stated that removing this informal step would result in more inaccurate POV determinations and unnecessary expenditure of resources. Some commenters suggested that MSHA provide mine operators an opportunity to present their case to the District Manager that the mine operator (1) has, or can implement immediately, a corrective action program to address the Agency's concerns; or (2) can demonstrate that, unknown to MSHA, the mine operator has been taking steps to address violations. Other commenters opposed a warning step stating that the threat of closure must be real for it to be an effective deterrent.
MSHA will continue to adhere to its policy of holding informal closeout conferences following an inspection, when the mine operator and the MSHA inspector discuss citations and orders. The operator can also request a conference with the field office supervisor or district manager.
In addition, in response to comments, and to ensure that all data are accurate, MSHA will also provide mine operators an opportunity to meet with the district manager for the limited purpose of discussing discrepancies (e.g., citations that are entered incorrectly or have not yet been updated in MSHA's computer system, Commission decisions rendered, but not yet recorded, on contested citations, and citations issued in error to a mine operator instead of an independent contractor at the mine) in the data. A mine operator may request a meeting with the District Manager for the sole purpose of presenting discrepancies in MSHA data. At this meeting, mine operators will have an
As stated previously, mine operators have the responsibility to monitor their own compliance record. MSHA encourages mine operators and contractors to monitor their compliance records using the POV on-line Monthly Monitoring Tool and notify MSHA as soon as possible if they believe any information on the POV web database is inaccurate. MSHA anticipates that operators will constantly monitor their performance using the on-line Monthly Monitoring Tool and inform the Agency of any discrepancies between their data and data posted on MSHA's Web site. Like under the existing rule, MSHA will correct inaccurate information after verifying it. MSHA believes that ongoing operator monitoring of Agency compliance data will minimize the potential for inaccurate POV determinations. The District Manager will rescind a POV notice if the Agency determines that it was based on inaccurate data and that the mine did not meet the criteria for a POV.
One commenter stated that posting the POV notice on the mine bulletin board is necessary for informing those most affected that their workplace exhibits substandard health and safety conditions so they can be attentive in protecting themselves and their fellow miners.
Under the final rule, mine operators are required to post the POV notice on the mine bulletin board and to keep it posted until MSHA terminates the POV. Additionally, the operator is required to provide a copy of the POV notice to the representative of miners.
Final § 104.3(c) and (d) are the same as proposed. They restate the requirements in the Mine Act for MSHA actions after a POV notice is issued. Final § 104.3(c) requires MSHA to issue an order withdrawing all persons from the affected area of the mine if the Agency finds any S&S violation within 90 days after the issuance of the POV notice. Final § 104.3(d) provides that if a withdrawal order is issued under § 104.3(c), any subsequent S&S violation will result in an order withdrawing all persons, except those responsible for correcting the cited condition, from the affected area of the mine until MSHA determines that the violation has been abated. Commenters stated that MSHA must clarify that a subsequent withdrawal order must apply only to persons in the specific area who are exposed to risk of harm from the cited violation.
As stated previously, MSHA considers 30 CFR part 104—Pattern of Violations—as a procedural regulation that promotes transparency. It informs mine operators and others about the steps MSHA will follow in implementing section 104(e) of the Mine Act. This final rule does not require additional compliance by mine operators. Rather, it places the primary responsibility on the mine operator and allows the mine operator to be more proactive in eliminating hazards. Through this more proactive approach, mine operators will monitor their compliance performance against MSHA records, reconcile discrepancies, and seek MSHA assistance in correcting ineffective procedures, practices, and policies. Likewise, as is existing MSHA practice, a withdrawal order usually will apply only to persons in the specific area who are exposed to risk of harm from the cited violation. MSHA, however, has the authority to withdraw miners whenever, in the judgement of the inspector at the mine, there is an imminent risk of harm to miners.
Final § 104.4 addresses the termination of a POV notice and is unchanged from the proposal. MSHA's POV Procedures Summary, posted on MSHA's Web site at
Commenters expressed concern that, once a POV notice is issued, it is practically impossible to terminate, especially for large mines. Commenters said that it is highly unlikely that any operation could go 90 days without an S&S violation. One commenter pointed out that the seasonal nature of operations in Alaska makes it infeasible or impossible to conduct timely follow-up inspections.
Commenters also stated that MSHA must clarify how the Agency will handle POV status when citations or orders that form the basis for the POV status are vacated or reduced to non-S&S. Many commenters urged MSHA to set up an expedited process to review POV status if citations or orders on which the status is based are subsequently vacated or reduced in severity, in settlement or by litigation, so that the mine no longer meets the POV criteria. Many commenters stated that MSHA must terminate the POV status if the mine no longer meets the criteria for the POV status.
The requirements for termination of a POV notice are provided in section 104(e)(3) of the Mine Act. A POV notice will be terminated if MSHA finds no S&S violations during an inspection of the entire mine. Final § 104.4 merely restates the requirements at 30 U.S.C. 814(e)(3) for terminating a pattern notice. Final paragraph (b) is revised to make nonsubstantive changes to clarify that partial inspections of the mine, within 90 days, taken together constitute an inspection of the entire mine.
As previously mentioned, mine operators may challenge section 104(e) withdrawal orders, as well as the underlying POV designation, before the Commission. Section 105(b)(2) of the Mine Act provides for expedited Commission review of requests for temporary relief from the issuance of POV withdrawal orders. Under Commission procedural rules, and subject to judges' availability, it is possible for a hearing to occur as early as four days from the date of the request for an expedited hearing. For this reason, it is unnecessary for MSHA to establish a similar administrative process.
Under the statute, to be removed from POV status, a mine must receive a complete inspection with no S&S violations cited. In CY 2010, CY 2011, and the first quarter of CY 2012, MSHA conducted 48,397 regular, complete inspections. No S&S violations were cited during 26,124 (54%) of these inspections. 9,430 inspections resulted in no violations cited at all. (
With respect to seasonal operations that operate on an intermittent basis, the Mine Act requires inspections for intermittent operations. As with mines that change to inactive status after receipt of a POV notice, MSHA would temporarily postpone enforcement while the mine is inactive, but would
Many commenters urged MSHA to consider a mine's injury prevention effectiveness as well as enforcement performance, saying they should be given equal weight. These commenters stated that injury prevention is a core value that should be MSHA's primary focus—how well a mine prevents injuries—and that enforcement performance does not equal safety. Other commenters suggested that rates and measures must be normalized for mine size and type, stating that severity measures can skew injury rates for small mines. Some commenters suggested that MSHA use the Safety Performance Index (SPI), also known as the Grayson Model, as one viable POV model that uses injury prevention and enforcement criteria in equal measures. It normalizes the criteria and provides a holistic view (i.e., analysis of a whole system rather than only its individual components) of a mine's safety performance so that it is predictive in nature.
MSHA reviewed the SPI model when the Agency was considering changes to the specific criteria used in its POV procedures summary which provides the basis for the Agency's on-line Monthly Monitoring Tool. MSHA found that the model places a high degree of emphasis on accident and injury data reported by the mine operators, more than MSHA believed was appropriate. MSHA's existing POV criteria, however, contain elements similar to some of those in the SPI model (i.e., normalized S&S citations and orders and injury severity measures). As previously stated in this preamble, under this final rule, mine operators will have the opportunity to comment on any future POV criteria that MSHA posts for comment on its Web site at
MSHA has not prepared a separate regulatory economic analysis for this rulemaking. Rather, the analysis is presented below.
Under Executive Order (E.O.) 12866, the Agency must determine whether a regulatory action is “significant” and subject to review by the Office of Management and Budget (OMB).
MSHA has determined that this final rule will not have an annual effect of $100 million or more on the economy, and is not an economically “significant regulatory action” pursuant to section 3(f) of E.O. 12866. MSHA used a 10-year analysis period and a 7 percent discount rate to calculate $6.7 million in annualized net benefits ($12.6 million in annualized benefits minus $5.9 million in annualized costs). However, OMB has determined that the final rule is a “significant” regulatory action because it will likely raise novel legal or policy issues.
Executive Order 13563 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility to minimize burden. MSHA has determined that this rule does not add a significant cumulative effect. The rule imposes requirements only on mines that have not complied with existing MSHA standards. The analysis identifies costs for mine operators who voluntarily choose to routinely monitor their citation data and undertake corrective action programs to prevent being placed on a POV.
Commenters stated that the proposed rule failed to consider the interplay between the POV rule and other Agency rules as required by E.O. 13563, which requires agencies to regulate industry in the least burdensome manner and to take into account the costs of cumulative regulations. Commenters stated that the cumulative effect of changes to other rules, such as respirable dust, examinations, and rock dust, on the POV regulation, will likely cause an increase in the numbers of S&S citations and, consequently, could result in more mines meeting the criteria for a POV notice. In response to commenters' concerns, MSHA clarifies that this final rule will achieve the legislative intent and impact only those mines that show a disregard for miners' health and safety. This rule does not add to the number of S&S citations. Mines can avoid costs associated with POV status by complying with MSHA's health and safety standards.
The final rule applies to all mines in the United States. MSHA divides the mining industry into two major sectors based on commodity: (1) coal mines and (2) metal and nonmetal mines. Each sector is further divided by type of operation, e.g., underground mines or surface mines. The Agency maintains data on the number of mines and on mining employment by mine type and size. MSHA also collects data on the number of independent contractor firms and their employees providing mining related services. Each independent contractor is issued one MSHA contractor identification number, but may work at any mine.
In 2010, there were 14,283 mines with employees. Table 1 presents the number of mines in 2010 by type and size of mine.
The estimated value of coal produced in U.S. coal mines in 2010 was $36.2 billion: $18.8 billion from underground coal and $17.4 billion from surface coal. The estimated value of coal production was calculated from the amount of coal
The value of the U.S. mining industry's metal and nonmetal (M/NM) output in 2010 was estimated to be approximately $64.0 billion. Metal mining contributed an estimated $29.1 billion to the total while the nonmetal mining sector contributed an estimated $34.9 billion. The values of production estimates are from the U.S. Department of the Interior (DOI), U.S. Geological Survey (USGS),
The combined value of production from all U.S. mines in 2010 was $100.2 billion. Table 2 presents the estimated revenues for all mines by size of mine.
This final rule provides MSHA a more effective use of its POV tool to ensure that operators improve their compliance with existing health and safety standards. Based on 2010 mine employment data, effective use of this enforcement tool will provide improvement in the conditions for 319,247 miners. These workers are found in underground coal mines (51,228), surface coal mines (70,178), underground metal/nonmetal mines (22,930), and surface metal/nonmetal mines (174,911).
The Agency used its experience under the existing POV rule to estimate benefits under the final rule. Specifically, the Agency used safety results derived after PPOV notices were issued to mine operators. MSHA's data reveal that improvements declined over time at about a fifth of the mines that received PPOV notices, based on MSHA's data over the last four years.
Beginning in June 2007 through September 2009, MSHA conducted seven cycles of PPOV evaluations, on an average of every 6 to 9 months. In each cycle, eight to 20 of all mines met the criteria for issuance of a PPOV. During that period, MSHA sent 68 PPOV letters to 62 mine operators (six mine operators received more than one notification). After receiving the PPOV, 94 percent of the mines that remained in operation to the next evaluation reduced the rate of S&S citations and orders by at least 30 percent, and 77 percent of the mines reduced the rate of S&S citations and orders to levels at or below the national average for similar mines. These improvements declined over time at some mines. Compliance at 21 percent (13/62 = 0.21) of the 62 mines that received PPOV letters deteriorated enough over approximately a 24-month period to warrant a second PPOV letter. Six of these mines were actually sent a second PPOV letter, while the other seven (of the 13) could have received a second letter but did not, generally due to mitigating circumstances.
In the proposed rule, MSHA estimated that 50 mines would submit corrective action programs in the first year. After reviewing public comments on the proposed rule, the Agency performed a POV analysis to review the 12-month violation history of all active mines for each of the five months from September 2011 to January 2012. The analysis used the existing PPOV screening criteria except for the final order criteria. Of the over 14,000 mines under MSHA jurisdiction, MSHA identified 313 mines that either met all of the initial screening criteria or all but one of the initial screening criteria. MSHA believes that most mine operators in this situation will submit and implement corrective action programs. MSHA believes that almost 90 percent (or 275) of these mines will submit corrective action programs in the first year under the final rule. MSHA believes operators will improve compliance over time but lacks any historical basis for a data driven estimate. Rather, the Agency selected a 10-percent reduction each year as a reasonable assumption based on its data and experience with the issuance of PPOV notices under the existing regulation. The costs for the corrective action programs include this 10-percent reduction each year in operators submitting corrective action programs.
Under the final rule, operators can submit corrective action programs as evidence of mitigating circumstances to demonstrate their commitment to improve health and safety at their mines. Mines who submit effective corrective action programs will reduce the number of S&S violations, thereby reducing the probability of injuries and of being placed on a POV. MSHA reviewed the five 12-month periods ending on September 30, 2011; October 31, 2011; November 30, 2011; December 31, 2011; and January 31, 2012, which resulted in an average of 12 mines that met all of the POV screening criteria. Based on this data, MSHA projects that 12 mines will meet all of the POV criteria in the first year under the final rule. As previously stated, of the 90 percent or 11 mines that implement a corrective action program, MSHA estimates that 80 percent will successfully reduce S&S violations. Therefore, 20 percent or two of the mines that implement a corrective action program will be issued a POV notice, primarily because they did not successfully implement a corrective action program or the corrective action program did not achieve the results intended in reduced S&S citations to avoid a POV. MSHA further estimates that 10 percent or one mine will not have implemented a corrective action program and will be issued a POV notice. Therefore, MSHA estimates that a total of three mines will be issued POV notices annually.
MSHA estimated the impact that the final mitigating circumstances provision in the final rule (including the opportunity for mine operators to submit corrective action programs) will have on the number of nonfatal injuries at mines. MSHA determined that the 62 mines, which received PPOV letters from June 2007 through September
One commenter stated that MSHA had provided no rational basis for its estimate that the proposed rule would reduce the number of nonfatal injuries per mine by an average of three per year. In response to the comment, MSHA's estimate for reduced non-fatal injuries per year in the proposed rule was based on Agency experience under the existing rule. However, MSHA has reduced the estimate of non-fatal injuries avoided per year from three in the proposed rule to one in the final rule.
MSHA reviewed 10 years of accident data for all mines using the Agency's Open Government Initiative Accident Injuries dataset at
MSHA does not believe that it has a reliable basis on which to quantify a reduction in fatalities or disabling injuries. MSHA believes, however, that the implementation of an MSHA-approved corrective action program will reduce fatalities and disabling injuries. Although MSHA has not quantified a reduction in injuries at the three mines estimated to be placed on a POV each year, the Agency believes that there will likely be injury reductions at these mines.
In the first year following receipt of the PPOV, mines receiving PPOV letters showed reductions in S&S violations and injuries. Unfortunately, some mines failed to sustain these improvements in the second year. Of the 62 mines receiving PPOV letters from June 2007 through September 2009, 49 mines had two full years of data following receipt of the PPOV letter. Of these 49 mines, 19 (39%) experienced an increase in the number of injuries in the second year following receipt of the PPOV letter compared to the first.
MSHA expects that, under the final rule, more mines will sustain improvements in health and safety. MSHA expects that operators that proactively implement effective MSHA-approved corrective action programs will have health and safety systems that allow them to continuously monitor hazardous conditions and sustain improvements. Mines that meet the conditions for termination of a POV will have increased incentive to remain off (see the cost analysis) and will likely implement continuing, proactive measures to prevent S&S violations.
MSHA based its estimates of the monetary values for the benefits associated with the final rule on the work of Viscusi and Aldy (2003). Viscusi and Aldy's work on willingness-to-pay is widely recognized and accepted by the Department of Labor and other federal agencies. Viscusi and Aldy conducted an analysis of studies that use a willingness-to-pay methodology to estimate the value of life-saving programs (i.e., meta-analysis) and found that each fatality avoided was valued at approximately $7 million and each lost work-day injury was approximately $50,000 in 2000 dollars. Using the Gross Domestic Product (GDP) Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an estimate of $8.7 million for each fatality avoided and $62,000 for each lost work-day injury avoided in 2009 dollars. As a conservative estimate, MSHA has used the lost work-day injury value for all nonfatal injuries as there is insufficient data to separately estimate permanently disabling injuries.
MSHA recognizes that willingness-to-pay estimates involve some uncertainty and imprecision. Although MSHA is using the Viscusi and Aldy (2003) study as the basis for monetizing the expected benefits of the final rule, the Agency does so with several reservations, given the methodological difficulties in estimating the compensating wage differentials (see Hintermann, Alberini, and Markandya, 2008). Furthermore, these estimates pooled across different industries may not capture the unique circumstances faced by miners. For example, some have suggested that the models be disaggregated to account for different levels of risk, as might occur in coal mining (see Sunstein, 2004). In addition, miners may have few options of alternative employers and, in some cases, only one employer (near-monopsony or monopsony) that may depress wages below those in a more competitive labor market.
MSHA estimates a reduction of 1,796 injuries over the 10-year period. This value is based on the estimated prevention of 275 nonfatal injuries in year one (first year 275 mines with corrective action programs times 1 injury reduction per mine) and a 10 percent reduction in mines submitting programs and corresponding reduction in non-fatal injuries in each successive year. This reduction results in an estimated 107 mine operators submitting programs in the 10th year. The monetized benefits are calculated by multiplying the reduction in each year by $62,000 per lost work-day injury. This reduction in injuries, due to this final rule, will result in a 10-year monetary benefit of $111.4 million which when annualized at 7 percent equals $12.6 million. MSHA believes that this is a low estimate for the total benefits of the final rule as no monetary benefit for potential avoided fatalities was included and avoided injuries were all assumed to be less serious than a disabling injury.
MSHA estimates this rule will result in total compliance costs of $54.4 million over 10 years. The total 10-year estimated costs are comprised of costs for monitoring compliance or enforcement data ($11.6 million), costs for developing and submitting corrective action programs ($20.1 million), and lost production when a POV and withdrawal order are issued ($22.7 million). The costs, when annualized at 7 percent, are $5.9 million. These costs are described below. MSHA's estimates do not include the cost of compliance with MSHA's health or safety standards. Although these costs can be substantial, they are addressed in rulemakings related to MSHA's existing health and safety standards, and are not included in this analysis.
The final rule mirrors the statutory provision in section 104(e) of the Mine Act for issuing a POV notice. Final § 104.3(c) provides that MSHA will issue an order withdrawing all persons from the affected area of the mine if any S&S violation is found within 90 days after the issuance of a POV notice. No
The Congress intended that the POV tool be used to cause operators of unsafe mines to bring them into compliance, even if this meant shutting down production. Withdrawal orders issued under the final rule can stop production until the condition has been abated. The threat of a withdrawal order provides a strong incentive for mine operators to ensure that S&S violations do not recur. MSHA expects that, rather than risking a POV and the possibility of a closure, mine operators will monitor their compliance record against the POV criteria using the on-line Monthly Monitoring Tool on the Agency's Web site. MSHA estimates that it will take a supervisor an average of 0.08 hour (5 minutes) each month to monitor a mine's performance using the Agency's on-line Monthly Monitoring Tool.
Commenters both supported and disagreed with the time, ease of use, and frequency associated with monitoring the on-line Monthly Monitoring Tool referenced in the proposed rule. Commenters stated that MSHA's estimate of 5 minutes to monitor the Web data was too low. Besides the time required for monitoring, commenters also stated concern about the ease of use of MSHA's on-line Monthly Monitoring Tool.
After reviewing the comments, MSHA has determined that, due to the broad range in mine sizes and types affected by this rule, an average of 5 minutes per month is an appropriate time for an operator to monitor a mine's compliance performance. Some large mines may take much longer; many mine operators may monitor the on-line Monthly Monitoring Tool only a few times a year and incur lower costs. Mine operators may also request this information directly from MSHA. As support for its estimates, MSHA believes that its on-line Monthly Monitoring Tool can be easily used by mine operators and without the need for special skills or training.
MSHA calculated the average supervisory wage, including benefits, for all mining in 2010 at $81.27 per hour. MSHA estimates that the yearly cost for all mine operators to monitor their performance will be approximately $1.1 million (14,283 mines × 0.08 hours (5 minutes) per month × 12 months per year × $81.27 per hour).
With respect to compliance performance, MSHA's experience reveals that the vast majority of mines operate substantially in compliance with the Mine Act. As mentioned above, MSHA identified 313 mines that either met all or all but one of the initial screening criteria. MSHA projects that almost 90 percent of these 313 mines (or 275) will submit corrective action programs in the first year under the final rule. Under the final rule, MSHA projects that these 275 operators, after monitoring their compliance performance, will submit corrective action programs to MSHA as evidence of mitigating circumstances to demonstrate their commitment to improve their compliance performance. MSHA estimates that mine operators will improve their compliance performance and the number of corrective action programs will gradually decrease. After the final rule becomes effective, MSHA projects increased compliance and applied a 10 percent reduction per year to the number of mines submitting corrective action programs. This results in an estimated 107 submissions in year 10.
MSHA estimates that, on average, it will take a total of 128 hours of a supervisor's time to develop an effective corrective action program with meaningful and measurable benchmarks, obtain the Agency's approval of the program, and implement the program. The 128 hours of supervisory time is comprised of 80 hours for development of the program, 8 hours for submittal and approval, and 40 hours for implementation. MSHA estimates that 8 hours of miners' time will be associated with implementation of the program. MSHA re-evaluated and reduced the estimated hours based on public comments. The cost for any copying and mailing of the corrective action program documents and revisions will be about $100.
The final rule applies to all mines. Because underground coal mines generally receive more S&S violations (50% of all S&S violations in 2011) than other types of mines, MSHA projects that the final rule will affect underground coal mines more than any other mining sector. From June 2007 through November 2011, underground coal mine operators received nearly 80 percent of the PPOV letters. MSHA used the 2010 underground coal mine hourly wage rates, including benefits, of $84.69 for a supervisor and $36.92 for a miner to estimate the corrective action program costs.
MSHA received a public comment that individual mines had different wage rates. MSHA recognizes that wages, and therefore costs, will vary across mines, with some higher and some lower than the average. This evaluation uses average underground coal mine wage rates to estimate the overall costs. Since hourly wage rates in underground coal mining are higher than those in surface coal and metal/nonmetal mining, MSHA believes this approach may overestimate the costs.
In the final rule, MSHA clarified that the corrective action programs that mine operators may submit to MSHA for consideration as mitigating circumstances will not need to be comprehensive in nature. The corrective action programs referenced in the final rule need to cover only health and safety issues reflected in the citations and orders that result in a POV. The costs related to the proposed rule were based on a comprehensive safety and health program, which would be more extensive and address all health and safety issues at the mine and involve more extensive miner participation to develop. With this clarification, MSHA estimates that the costs to develop the corrective action program will be $11,200, as opposed to $22,100 in the proposed rule. The revised average cost to develop and implement an approved corrective action program at a mine will be approximately $11,200 ((128 hours of a supervisor's time × $84.69 per hour) + (8 hours of miners' time × $36.92 per hour) + $100). MSHA anticipates that the cost to mine operators developing and implementing an MSHA-approved corrective action program will be approximately $20.1 million over 10 years (1,796 mines develop and implement program × $11,200 per mine).
Several commenters provided estimates of $14,000–$44,000 per hour of shutdown at large mines. These commenters suggested that shutdowns would be from 4 hours to 2 days and the number of citations could raise costs by between $3.5 and $7 million per year. MSHA does not have an historical basis from which to estimate the potential costs that will be incurred by a mine on POV. MSHA believes that a reasonable estimate of shutdown costs is the potential production lost when miners are withdrawn while the mine operator takes the necessary actions to correct the health and safety violations. Lost revenue due to the withdrawal orders will vary considerably.
As noted above, MSHA expects that the final rule will affect underground coal mining more than any other mining sector. MSHA, therefore, used underground coal mine revenue to estimate potential production losses. In 2010, 566 underground coal mines
The majority of the S&S violations issued in underground coal mines are abated immediately, or within hours, and have no impact on production. A smaller percentage of violations may take an extended period of time and will impact production. Based on MSHA experience, the Agency estimates an average of 5 days lost production for a mine on POV. MSHA estimates the cost of lost production at $755,000 ($151,000 lost revenue per day × 5 days). Based on the 3 mines per year that MSHA estimates will be placed on a POV, the total annual lost revenue is estimated at $2.3 million. Some mines may incur greater than average losses while others may incur less than average losses. The small number of large mines relative to the number of small mines would result in a lower overall cost than those suggested by commenters.
The rule does not require that every S&S violation result in a shutdown of the entire mine. Only miners from the affected area are withdrawn. Withdrawal of miners does not always result in a loss of production.
Since the average revenue per underground coal mine ($33.2 million) is significantly higher than the average revenue produced by all mines ($7.0 million), MSHA believes this approach may overstate the estimated costs.
Under the Mine Act, MSHA is not required to use estimated net benefits as the basis for its decision to promulgate a rule. Based on the estimated prevention of 1,796 nonfatal injuries over 10 years, MSHA estimates that the final rule will result in annualized (7%) monetized benefits of $12.6 million. The 10-year annualized (7%) costs are $5.9 million. The net benefit is approximately $6.7 million per year.
MSHA has concluded that the requirements of the pattern of violations final rule are technologically and economically feasible.
MSHA concludes that this final rule is technologically feasible because it is not technology-forcing. In order to avoid a POV, mine operators will have to comply with existing MSHA health and safety standards, which have previously been determined to be technologically feasible.
MSHA also concludes that this final rule is economically feasible because mine operators can avoid the expenses of being placed on a POV by complying with MSHA's existing health and safety standards, all of which have previously been found to be economically feasible. For those mine operators who are in danger of a POV, MSHA will consider the implementation of an approved corrective action program, among other factors, as a mitigating circumstance. MSHA expects about three mines per year will incur the potential expenses associated with closures while on a POV.
MSHA has traditionally used a revenue screening test—whether the yearly compliance costs of a regulation are less than one percent of revenues—to establish presumptively that compliance with the regulation is economically feasible for the mining community. Based on this test, MSHA has concluded that the requirements of the final rule are economically feasible. The first year compliance cost to mine operators is the highest year at $6.5 million. This is insignificant compared to total annual revenue of $100.2 billion for the mining industry (i.e., costs are significantly less than one percent). Each year beyond the first year has lower total costs and, therefore, even less economic impact. Even if all of the costs were borne by the underground coal industry, the estimated $6.5 million first year cost of the final rule is about 0.03 percent of the underground coal industry's 2010 revenue of $18.8 billion. MSHA, therefore, concludes that compliance with the provisions of the final rule will be economically feasible for the mining industry.
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the final rule on small businesses. Based on that analysis, MSHA has notified the Chief Counsel for Advocacy, Small Business Administration (SBA), and made the certification under the RFA at 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented below.
Under the RFA, in analyzing the impact of the final rule on small entities, MSHA must use the SBA definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the
In addition to examining small entities as defined by SBA, MSHA has also looked at the impact of this final rule on mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as small mines. These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. The costs of complying with the final rule and the impact of the final rule on small mines will also be different. It is for this reason that small mines are of special concern to MSHA.
MSHA concludes that it can certify that the final rule will not have a significant economic impact on a substantial number of small entities that will be covered by this final rule. The Agency has determined that this is the case both for mines with fewer than 20 employees and for mines with 500 or fewer employees.
Mine operators can avoid the expenses of being placed on a POV by complying with existing MSHA health and safety standards. Under the final rule, MSHA may consider the implementation of a corrective action program, coupled with improved compliance levels, as a mitigating circumstance for those mine operators who are subject to being placed on a POV. MSHA expects few mines, if any, will choose to incur the potential expenses associated with closures under a POV.
MSHA initially evaluates the impacts on small entities by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs are less than one percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether a further analysis
If the total estimated compliance cost of $6.5 million were incurred by small mines, the impact would be as summarized below.
One commenter stated that the average cost of the rule, as calculated by MSHA for the typical mine, would likely put some small mines, especially placer gold mines, out of business. The cost for such small mines, which typically employ one to three miners, is likely to be less than the average cost that MSHA calculated for an average-sized small mine. For example, a corrective action program would require fewer hours to develop and implement.
Accordingly, MSHA has certified that the final rule will not have a significant economic impact on a substantial number of small entities.
This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA).
MSHA estimates that under the final rule approximately 275 mines will develop and implement MSHA-approved corrective action programs in the first year. MSHA believes this number will decrease by 10 percent in each subsequent year. The average number of mines that will develop and implement MSHA-approved corrective action programs per year over 3 years is 249 ((275 + 248 + 223)/3). The development and MSHA approval of a corrective action program will impose information collection requirements related to mitigating circumstances under final § 104.2(a)(8).
MSHA expects that developing such a program with meaningful and measurable benchmarks will take about 128 hours of a supervisor's time and 8 hours of miners' time. Costs for copying and mailing the program and revisions are estimated to be $100 per program.
The burden of developing and implementing an approved corrective action program is 136 hours per mine (128 + 8) plus an additional cost of $100 per mine for copying and mailing.
The information collection package for this final rule has been submitted to OMB for review under 44 U.S.C. 3504(h) of the Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3501 et seq.).
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 if the collection of information does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
The Department has submitted the information collections contained in this final rule for review under the PRA to the OMB. The Department will publish an additional Notice to announce OMB's action on the request and when the information collection requirements will take effect. The regulated community is not required to respond to any collection of information unless it displays a current, valid, OMB control number. MSHA displays the OMB control numbers for the information collection requirements in its regulations in 30 CFR part 3.
MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this final rule will not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor will it increase private sector expenditures by more than $100 million (adjusted for inflation) in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 requires no further Agency action or analysis.
This final rule will not have federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, under E.O. 13132, no further Agency action or analysis is required.
Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this final rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. This final rule impacts only the mining industry. Accordingly, MSHA certifies that this final rule will not impact family well-being.
One commenter stated that if mines are put out of business because they cannot pay MSHA fines, then lack of jobs would put families and children into poverty. As explained above, MSHA has concluded that compliance with the provisions of the final rule will be economically feasible for the mining industry. This final rule will not impose additional compliance costs on the mining industry, thus, it will not put mines out of business.
The final rule will not implement a policy with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required.
This final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. Accordingly, this final rule will meet the applicable standards provided in section 3 of E.O. 12988, Civil Justice Reform.
This final rule will have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required.
This final rule will not have tribal implications because it will not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Accordingly, under E.O. 13175, no further Agency action or analysis is required.
One commenter asserted that the rule could have impacts on Alaska Regional and Village Corporations that have royalty agreements with mining companies. Within E.O. 13175 guidelines, effects on royalties are not considered a direct effect of the rule and, therefore, they are not included.
Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action (i.e., it adversely affects energy supply, distribution, or use). MSHA has reviewed this final rule for its energy effects because the final rule applies to the coal mining sector. Even if the entire annualized cost of this final rule of approximately $5.9 million were incurred by the coal mining industry, MSHA has concluded that, relative to annual coal mining industry revenues of $36.2 billion in 2010, it is not a significant energy action because it is not likely to have a significant adverse affect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.
MSHA has reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined and certified that the final rule will not have a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Law enforcement, Mine safety and health, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977 as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is amending chapter I of title 30 of the Code of Federal Regulations by revising part 104 to read as follows:
30 U.S.C. 814(e), 957.
This part establishes the criteria and procedures for determining whether a mine operator has established a pattern of significant and substantial (S&S) violations at a mine. It implements section 104(e) of the Federal Mine Safety and Health Act of 1977 (Mine Act) by addressing mines with an inspection history of recurrent S&S violations of mandatory safety or health standards that demonstrate a mine operator's disregard for the health and safety of miners. The purpose of the procedures in this part is the restoration of effective safe and healthful conditions at such mines.
(a) At least once each year, MSHA will review the compliance and accident, injury, and illness records of mines to determine if any mines meet the pattern of violations criteria. MSHA's review to identify mines with a pattern of S&S violations will include:
(1) Citations for S&S violations;
(2) Orders under section 104(b) of the Mine Act for not abating S&S violations;
(3) Citations and withdrawal orders under section 104(d) of the Mine Act, resulting from the mine operator's unwarrantable failure to comply;
(4) Imminent danger orders under section 107(a) of the Mine Act;
(5) Orders under section 104(g) of the Mine Act requiring withdrawal of miners who have not received training and who MSHA declares to be a hazard to themselves and others;
(6) Enforcement measures, other than section 104(e) of the Mine Act, that have been applied at the mine;
(7) Other information that demonstrates a serious safety or health management problem at the mine, such as accident, injury, and illness records; and
(8) Mitigating circumstances.
(b) MSHA will post the specific pattern criteria on its Web site.
(a) When a mine has a pattern of violations, the District Manager will issue a pattern of violations notice to the mine operator that specifies the basis for the Agency's action. The District Manager will also provide a copy of this notice to the representative of miners.
(b) The mine operator shall post the pattern of violations notice issued under this part on the mine bulletin board. The pattern of violations notice shall remain posted at the mine until MSHA terminates it under § 104.4 of this part.
(c) If MSHA finds any S&S violation within 90 days after issuance of the pattern notice, MSHA will issue an order for the withdrawal of all persons from the affected area, except those persons referred to in section 104(c) of the Mine Act, until the violation has been abated.
(d) If a withdrawal order is issued under paragraph (c) of this section, any subsequent S&S violation will result in a withdrawal order that will remain in effect until MSHA determines that the violation has been abated.
(a) Termination of a section 104(e)(1) pattern of violations notice shall occur when an MSHA inspection of the entire mine finds no S&S violations or if MSHA does not issue a withdrawal order in accordance with section 104(e)(1) of the Mine Act within 90 days after the issuance of the pattern of violations notice.
(b) The mine operator may request an inspection of the entire mine or portion of the mine. MSHA will not provide advance notice of the inspection and will determine the scope of the inspection. Inspections of portions of the mine, within 90 days, that together cover the entire mine shall constitute an inspection of the entire mine for the purposes of this part.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking.
The U.S. Department of Energy (DOE) proposes to establish a new test procedure for set-top boxes (STBs). The proposed test procedure describes the methods for measuring the power consumption of STBs in the on, sleep (commonly known as standby mode), and off modes. Further, an annual energy consumption (AEC) metric is proposed to calculate the annualized energy consumption of the STB based on its power consumption in the different modes of operation. DOE has tentatively identified that the test methods described in the draft Consumer Electronics Association (CEA) standard, CEA–2043, “Set-top Box (STB) Power Measurement” are appropriate to use as a basis for developing the test procedure for STBs. The draft CEA–2043 standard specifies the test methods for determining the power consumption of a STB in the on, sleep, and off modes. The proposed test procedure in this rulemaking is primarily based on the draft CEA–2043 standard, which was issued as an email ballot to the members of the CEA working group developing the standard for a vote on November 27, 2012.
DOE will hold a public meeting on Wednesday, February 27, 2013, from 9 a.m. to 4 p.m., in Washington, DC. The meeting will also be broadcast as a webinar. See section V, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) before and after the public meeting, but no later than April 8, 2013. See section V, “Public Participation,” for details.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E–089, 1000 Independence Avenue SW., Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586–2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards to initiate the necessary procedures. Please also note that those wishing to bring laptops into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes. Persons can attend the public meeting via webinar. For more information, refer to the Public Participation section near the end of this notice.
Any comments submitted must identify the NOPR for the Test Procedure for Set-top Boxes, and provide docket number EERE–2012–BT–TP–0046 and/or regulatory information number (RIN) number 1904–AC52. Comments may be submitted using any of the following methods:
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For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).
A link to the docket Web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586–2945 or by email:
Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 586–9870. Email:
Ms. Celia Sher, U.S. Department of Energy, Office of the General Counsel, GC–71, 1000 Independence Avenue SW., Washington, DC, 20585–0121. Telephone: (202) 287–6122. Email:
Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291,
Classifying the product as a covered product is necessary or appropriate to carry out the purposes of EPCA; and
The average annual per-household energy use by products of such type is likely to exceed 100kWh per year. (42 U.S.C. 6292(b)(1))
Under this authority, DOE published a notice of proposed determination (the 2011 proposed determination), that tentatively determined that STBs and network equipment qualify as a covered product because classifying products of such type as a covered product is necessary or appropriate to carry out the purposes of EPCA, and the average U.S. household energy use for STBs and network equipment is likely to exceed 100 kilowatt-hours (kWh) per year. 76 FR at 34914 (June 15, 2011).
DOE may prescribe test procedures for any product it classifies as a “covered product.” (42 U.S.C. 6293(b)) Under EPCA, the “Energy Conservation Program for Consumer Products Other Than Automobiles” consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use (1) as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) for making representations about the efficiency of those products. Similarly, DOE must use these test requirements to determine whether the products comply with any relevant standards promulgated under EPCA.
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending a test procedure for covered products. EPCA provides in relevant part that any test procedure prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
In addition, if DOE determines that a test procedure amendment is warranted, it must publish a proposed test procedure and offer the public an opportunity to present oral and written comments on it. (42 U.S.C. 6293(b)(2)) Finally, in any rulemaking to amend a test procedure, DOE must determine to what extent, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))
EPCA specifies that if the Secretary determines that a test procedure should be prescribed for a covered product, a proposed test procedure should be published in the
In addition to proposing a test procedure to measure the energy consumption of STBs in on mode, DOE is proposing test procedures to measure the energy consumption of STBs in sleep mode (an industry term that refers to standby mode) and off mode. This is consistent with EISA 2007, which amended EPCA to require DOE to implement a standby and off mode energy consumption measurement, if technically feasible, in new or existing test procedures that do not have this measurement. Otherwise, DOE must prescribe a separate standby and off mode energy test procedure, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) EISA 2007 also requires any final rule establishing or revising energy conservation standards for a covered product, adopted after July 1, 2010, to incorporate standby mode and off mode energy use into a single amended or new standard, if feasible. (42 U.S.C. 6295(gg)(3)(A)) DOE recognizes that the standby and off mode conditions of operation apply to STBs, the product covered by this proposed rule. Therefore, in response to this requirement, DOE proposes to adopt provisions in the test procedure to measure the energy use in standby and off mode for STBs. Because `sleep' is the term used by industry for indicating that a STB is in standby mode, DOE is using the term `sleep mode' to refer to standby mode in today's NOPR. The proposed approach for measuring the power consumption in sleep and off modes is discussed in sections III.G.6 and III.G.7, respectively.
In June 2011, DOE published the 2011 proposed determination that tentatively determined that STBs and network equipment meet the criteria for covered products. 76 FR at 34914 (June 15, 2011). If DOE issues a final determination that STBs are a covered product, it may establish a test procedure and energy conservation standard for STBs. To initiate this rulemaking process, DOE published a request for information (RFI) document on December 16, 2011 (the 2011 RFI), requesting stakeholders to provide technical information regarding various test procedures used by industry to measure the energy consumption of
In this NOPR, DOE proposes measurement tests to determine the power consumption of STBs in the on, sleep, and off modes. Pursuant to the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104–113), which directs Federal agencies to use voluntary consensus standards in lieu of Government standards whenever possible, DOE proposes a STB test procedure that has primarily been developed from the draft CEA–2043
In this NOPR, DOE proposes: (1) A test procedure for determining the energy consumption of STBs in the on, sleep, and off modes; (2) a method for determining the ratings of power consumption in the on, sleep, and off modes for a given basic model of STB; and, (3) a metric to calculate the AEC of the STB. DOE also proposes to exclude network equipment from the scope of this rulemaking, which is discussed in further detail in section III.B of this NOPR.
DOE's proposed test procedure for determining the energy consumption of the STB is largely developed from the draft CEA–2043 standard. The draft CEA–2043 standard was issued as an email ballot to CEA's working group members for vote on November 27, 2012. The standard specifies the definitions, measurement criteria, and the test methods for determining the power consumption of the STB in different modes of operation. DOE reviewed several approaches for testing the power consumption of STBs and determined that the test procedure specified in the draft CEA–2043 standard is representative and generates repeatable power consumption values. This determination was made based on discussions with industry experts as well as through DOE's internal research and analysis. Additionally, DOE has proposed some modifications to the test procedure specified in the draft CEA–2043 standard as discussed in sections III.D through III.G.
DOE's proposed test procedure for determining the power consumption of a STB in on mode is comprised of two main tests: (1) An on (watch television (TV)) test that records the power consumption when a channel is viewed; and, (2) a multi-stream test that evaluates different functions of multi-streaming STBs depending on its capabilities, such as channel viewing, recording, and playback. The proposed tests for on mode are discussed in further detail in section III.G.5 of the NOPR. For testing the power consumption of the STB in sleep mode, DOE developed the test procedure from the sleep mode test procedure specified in the draft CEA–2043 standard. Sleep mode as defined in the CEA standard meets the definition of standby mode as outlined in EISA 2007. (42 U.S.C. 6295(gg)) As discussed in Authority and Background, section I of this NOPR, DOE proposes to use the industry term `sleep' mode in place of standby for this test. For the sleep mode test, DOE proposes two tests: (1) a manual sleep test in which the STB enters sleep mode through a user action on the remote control; and, (2) an auto power down (APD) test in which the STB automatically enters sleep mode after a period of user inaction. For both sleep mode tests, an average power measurement over a period of at least 4 hours and up to a maximum of 8 hours is recorded as discussed in section III.G.6. For testing the power consumption of the STB in off mode, DOE proposes an average measurement over 2 minutes after the STB has been placed in off mode. The proposed off mode measurement test is discussed in further detail in section III.G.7.
In addition to proposing measurement tests to measure the power consumption of the STB in the different modes of operation, DOE is proposing a sampling plan that requires testing of at least two STBs for each basic model, to determine the power consumption in each mode of operation and the application of tolerances for determining the rating of a given basic model, as discussed in further detail in section III.H.
Finally, DOE is proposing a metric to calculate the AEC of the STB from the rated power consumption in the on, sleep, and off modes of operation. The proposed metric combines the rated power consumption values of the STB in the different modes of operation into a single metric based on the expected time spent in each mode of operation such that it is representative of the STB's annual energy use. The time weightings used to calculate TEC in the ENERGY STAR specification were used as the starting point to develop the time weightings that are proposed for the AEC metric. DOE believes that the proposed test procedure will accurately represent the energy consumption of STBs by capturing the AEC in on, sleep, and off modes. The AEC metric is discussed in further detail in section III.I.
If adopted, the effective date for this test procedure would be 30 days after publication of the test procedure final rule in the
The final DOE test procedure shall be utilized or referenced by all other organizations, such as U.S. Environmental Protection Agency (EPA) for its ENERGY STAR specification for STBs, the California Energy Commission (CEC) and any other state regulation providing for the disclosure of information with respect to any measure of STB energy consumption once the test procedure becomes effective 30 days after the test procedure final rule publication. The final rule will supersede any existing state test procedure for STBs to the extent the state regulation requires testing in a manner other than that required by the final DOE test procedure. (42 U.S.C. 6297(a)(1))
In the 2011 RFI, DOE requested comment on the scope of the STB and network equipment test procedure rulemaking. DOE received some comments that network equipment should not be included in the scope of the rulemaking, and received some comments in favor of developing a Federal test procedure for STBs. Verizon commented that DOE should not identify network equipment as a covered product and should clarify that only “traditional, dedicated” STBs would be subject to any test procedure or energy conservation standard. (Verizon, No. 0032 at p. 5)
Based on stakeholder feedback, DOE proposes to exclude network equipment from the scope of this NOPR and focus exclusively on STBs. DOE proposes that the scope of today's proposed rulemaking is to capture the energy consumption of STBs that primarily receive and output video content. DOE proposes to define STBs as described in section III.D.1 below. DOE will continue to evaluate the need for a test procedure for network equipment.
In addition to receiving comments on the overall scope of coverage of today's NOPR, DOE received comments about the exclusion of specific models of STBs. Sidley Austin LLP (Sidley Austin) commented that during a meeting between DOE, AT&T, and Sidley Austin on March 7, 2012, AT&T representatives suggested that AT&T's U-verse® receivers should not be covered under any test procedure or energy conversation standard rulemaking because the product already uses less power than other STBs and does not meet the annual 100 kWh statutory threshold set by EPCA for covered products to be regulated. (Sidley Austin LLP, No. 0024 at p. 2) Sidley Austin further commented that AT&T's U-verse® is one of the most energy efficient STBs on the market and is continuing to improve its efficiency. (Sidley Austin LLP, No. 0024 at p. 2) Next, AT&T commented that DOE should refrain from promulgating a test procedure or energy efficiency standard for Internet Protocol TV (IPTV) receivers because the energy use of IPTV STBs does not meet the statutory threshold for these boxes to be regulated. (AT&T, No. 0032 at p. 5) DOE considers that today's test procedure NOPR is applicable to any STB, including IPTV, as defined in section III.D.1 and will address the scope of coverage for any energy conservation standard during that rulemaking, if required.
DOE also received several comments on the coverage of low noise block-downconverters (LNBs), auxiliary boxes, optical network terminals (ONTs), and standalone digital video recorders (DVRs). The Natural Resources Defense Council (NRDC) recommended including all of these products in the scope of this rulemaking. (NRDC, No. 0017 at p. 2) NRDC further commented that once ONTs are installed, they are not removed when service is terminated. If a customer switches to a service provider that does not require an ONT, this unit could continue drawing power without being used. (NRDC, No. 0017 at p. 2) Conversely, DISH, EchoStar, and DIRECTV commented that LNBs should not be included in the scope of this rulemaking. They commented that LNBs can consume varied power in different configurations. (DISH, EchoStar, DIRECTV, No. 0030 at p. 5) Further, the outdoor unit (ODU) that consists of a receiving dish, LNB, and radio frequency (RF) switch would need to be specified in detail to test these units in a repeatable fashion. Finally, the power consumption of the ODU devices varies with weather and location. (DISH, EchoStar, DIRECTV, No. 0030 at p. 11)
Because of the complexity associated with these equipment and the
DOE requests comment on focusing the scope of today's rulemaking to STBs and excluding network equipment. Further, DOE seeks additional information and comment related to the development of a test procedure for LNBs, ONTs, ODUs, or other infrastructure devices and the standard configuration in which these products should be tested.
While developing the proposed test procedure for STBs, DOE researched existing and draft test procedures that measure STB energy consumption, as discussed in the 2011 RFI. DOE received a comment from CEA stating that it should not duplicate the private sector's development of a consensus standard test procedure for measuring the power consumption of STBs. (CEA, No. 0031 at p. 3) DOE agrees with CEA and is proposing a test procedure for STBs that is largely based on standards accepted and developed by industry. The standards that were reviewed to develop this test procedure NOPR include the ENERGY STAR specification, CEA standards ANSI/CEA–2013A, ANSI/CEA–2022, the draft CEA–2043 standard, CSA test procedure C380–08, as well as IEC standard IEC 62087.
The ENERGY STAR specification includes a test method for determining the power consumption of the STB in different modes of operation. The ENERGY STAR test method provides the test setup, test conduct, initialization requirements, and test procedures for testing the STB in many different modes of operation. These include, in the on mode: watching TV, recording to a DVR and removable media, and playing back recorded content from a DVR and removable media. In the sleep mode, the test procedures include: sleep mode, APD, and deep sleep. Finally, the ENERGY STAR test method also includes a method for testing a STB that has multi-room capability. The ENERGY STAR test method was developed based on the CSA test procedure, C380–08. DOE referred to some sections of the ENERGY STAR specification to develop today's NOPR, which are discussed in detail in sections III.D to III.I.
The ANSI/CEA–2022 and ANSI/CEA–2013A provide an overview to determine the power consumption of STBs in the on, sleep and off modes, respectively. The standards do not contain detailed information about testing and setup for the different modes of operation. As discussed, CEA is also developing a new standard, CEA–2043, that is currently in draft form but will supersede CEA standards ANSI/CEA–2013A and ANSI/CEA–2022 once it is published. Therefore, DOE did not refer to ANSI/CEA–2013A and ANSI/CEA–2022 to develop today's proposed rule; instead it refers to the draft CEA–2043 standard.
The CSA test procedure, C380–08, specifies test conditions and setup requirements that are also referenced in the ENERGY STAR specification and are the same as those specified in the draft CEA–2043 standard. The C380–08 standard specifies test procedures for determining energy consumption in the on and sleep modes of operation, from which the ENERGY STAR specification was developed. Therefore, DOE does not reference this CSA test procedure in the NOPR because the information specified in the CSA test procedure is also included in the ENERGY STAR specification.
IEC 62087 provides specification for testing the STB at different input signal levels and different input terminals depending on the type of the STB. The standard provides test procedures for determining power consumption in the on and sleep modes. In the on mode, IEC 62087 specifies tests in the play, record, and multi-function (with single and multiple tuners) modes. In sleep mode, it specifies tests at the active high, active low, and passive modes. DOE refers to IEC 62087 to support some of its proposed requirements.
DOE primarily focused on the draft CEA–2043 standard to develop the test procedure for STBs that is proposed in this NOPR. The draft CEA–2043 standard specifies the test conditions and test setup at which power consumption of the STB should be measured. These include the modes of operation of the STB, test room and equipment requirements, and measurement tests for determining the power consumption in each mode of operation. DOE also referred to the ENERGY STAR specification to develop some of the proposed requirements, such as the AEC metric, that are not specified in the draft CEA–2043 standard. In review of CEA–2043, DOE found that CEA is a leading organization that connects consumer electronics manufacturers, retailers, and other interested parties to develop industry accepted electronics test procedures. The CEA Technology & Standards program is CEA's standards making body that is accredited by ANSI.
The draft version of the CEA–2043 standard was in a 30 day voting period that ended on December 28, 2012. Once the final CEA–2043 standard is published, it will be available on CEA's Web site at
Because there are no statutory definitions for STBs under EPCA currently, DOE proposes to develop a definition for STBs. Cisco commented that defining STBs as traditional STBs would capture only some of the ways in which video program is delivered and a broader definition that is designed to encompass all means by which a consumer could receive video signals from multichannel video programming distributors (MVPD) could inadvertently bring tablet computers, computers, gaming consoles, and smartphones under this regulation. (Cisco Systems, Inc., No. 0027 at p. 11) DOE understands these concerns and is proposing a definition that captures more than just traditional STBs, while mitigating the issues associated with a broader definition of STBs. The proposed definition would be included in 10 CFR Part 430.2 and would define STBs as “a device combining hardware components with software programming designed for the primary purpose of receiving television and related services from terrestrial, cable, satellite, broadband, or local networks, providing
DOE also proposes to include a definition for direct video connection, in 10 CFR Part 430.2, as “any connection type that is one of the following: High-Definition Multimedia Interface (HDMI), Component Video, S-Video, Composite Video, or any other video interface that may be used to output video content.”
DOE's proposed definition of STBs is different from the definition specified in section 4 of the draft CEA–2043 standard. That standard defines a STB as “a device that receives video content which is then delivered to a display device, recording device, or client”. DOE did not adopt CEA's definition in the NOPR because DOE believes the definition is vague and can include such devices in the scope of this rulemaking that are not, in fact, STBs. According to the definition specified in the draft CEA–2043 standard, any device that can receive video content and can deliver it to display device, recording device, or client is a STB. Under this definition, devices such as a smartphone could potentially be included under the scope. DOE believes these devices should not be included because the scope of today's rulemaking is to capture the energy use for those devices that primarily receive and output video content. Because the primary use of a device such as a smartphone or gaming console is not to output video content, today's test procedure would not make adequate energy representations of these products. DOE believes that smartphones do not meet the definition of a STB under today's proposed definition.
DOE does not propose to use the definition specified in the draft CEA–2043 standard. Instead, DOE developed a definition for STBs that includes specific detail about the types of networks the device can receive video content from and the allowable output connections for delivering the video content. The types of networks from which content could be received—terrestrial, cable, satellite, broadband, or local networks—are all networks that are commonly used for STBs. In fact, STBs are often defined by their base type functionality, which generally includes the network type used. This information was also included in the definition for STBs in an older draft of the CEA–2043 standard and DOE proposes to include it to add specificity to the STB definition. Additionally, DOE's proposed definition refers to a device that is manufactured when both the hardware components and the software is loaded on the device such that its primary purpose is receiving and outputting video. DOE believes it is important for the definition of a STB to include both software and hardware because the underlying hardware for a STB could look much like a general purpose computer, but the software added to such hardware distinguishes the unit allowing it to function as a STB. Further, the proposed DOE definition does not include specific devices to which the content is delivered, while the draft CEA–2043 definition specifies that the content is delivered to a display device, recording device, or client. In lieu of specifying the types of devices to which the content may be delivered, DOE's proposal specifies the types of video connections that may be used, since, at a minimum, a STB must deliver content to a video device. Including detail about the direct video connections that are permissible ensures that devices that do not primarily deliver content to a video device do not meet the proposed definition. For example, devices that receive and transmit information solely through a network interface and do not have a video output would not be considered a STB under DOE's proposed regulatory definition, but would be considered a STB if the draft CEA–2043 standard's definition were adopted. DOE believes that today's proposed test procedure would not make appropriate representations of energy consumption for devices that do not provide a direct video output, and therefore, has proposed this definition to narrow the scope compared to the CEA–2043 standard.
Finally, to further aid in defining the scope of coverage of this rulemaking, DOE proposes to include definitions for Component Video, Composite Video, HDMI, and S-Video in the test procedure. These terms are all used in the definition for direct video connection, which is used to define STBs. DOE proposes to define these terms in section 430.2 of subpart A of 10 CFR part 430 as follows:
For the definitions of Component Video and HDMI, DOE proposes to incorporate by reference two industry standards that are used to define these terms. Specifically, DOE proposes to define Component Video as a connection that meets the requirements found in CEA–770.3–D.
In the 2011 proposed determination, DOE proposed a definition for STBs and network equipment as “a device whose principal function(s) are to receive television signals (including, but not limited to, over-the-air, cable distribution system, and satellite signals) and deliver them to another consumer device, or to pass Internet Protocol traffic among various network interfaces.” 76 FR at 34915 (June 15, 2011). DOE received several comments about this definition from stakeholders. The Northwest Energy Efficiency Alliance (NEEA) suggested a new definition for STBs that accounts for the fact that these devices serve a broader function than to simply relay TV signals. (EERE–2010–BT–DET–0040, NEEA, No. 0006 at p. 2) AT&T and the California Investor Owned Utilities (CA IOUs) commented that DOE should adopt the definition of STB that has been developed by the ENERGY STAR program because it is well known by industry. (EERE–2010–BT–DET–0040, AT&T, No. 0008 at p. 9) (EERE–2010–BT–DET–0040, CA IOUs, No. 0011 at p. 2) Further, the Northeast Energy Efficiency Partnerships (NEEP) commented that STBs and network equipment should have a single definition because they perform similar functions. (EERE–2010–BT–DET–0040, NEEP, No. 0010 at p. 2) In contrast, the CA IOUs commented that separated definitions should be adopted for STBs and network equipment to explicitly describe the products covered. (EERE–2010–BT–DET–0040, CA IOUs, No. 0011 at p. 2) NCTA commented that STBs and network equipment vary too
DOE reviewed the comments it received on the 2011 proposed determination and preliminarily concluded that it will not continue with the definition proposed for STBs and network equipment in the 2011 proposed determination, for the following reasons. First, the intent of the proposed definition in the 2011 proposed determination was that it be broad enough so that it covered both STBs and network equipment. However, as discussed in section III.B, today's proposed rule narrows the scope of the rulemaking to cover only STBs and not network equipment. Second, DOE believes that the definition in the 2011 proposed determination may be too broad for the purposes of the STB test procedure rulemaking. The definition of “principal function” could be ambiguous; it is not explicit whether the principal function is based on how the device is used by the consumer or how the manufacturer intends the device to be used. Further, the definition in the 2011 proposed determination does not explicitly state that video content should be delivered using a direct video connection, which is included in the definition proposed in today's NOPR. As discussed previously, specifying that the device should deliver video content using a direct video connection ensures that devices that do not use this connection are excluded from the proposed definition of STB. Therefore, DOE has proposed a new definition solely for STBs as discussed in the above paragraph.
DOE also considered defining a STB using the base types included in the ENERGY STAR specification. However, the ENERGY STAR definition is more suited to differentiating product types for the purposes of efficiency levels, which is not necessary when it comes to defining scope of coverage for DOE's regulatory program.
In conclusion, DOE proposes to define STBs as “a device combining hardware components with software programming designed for the primary purpose of receiving television and related services from terrestrial, cable, satellite, broadband, or local networks, providing video output using at least one direct video connection.” DOE invites comment on this proposed definition of STBs. In particular, DOE requests comment about whether the proposed definition is specific enough to exclude non-STB devices such as gaming consoles and smartphones, yet broad enough to cover traditional STBs as well as newer STBs. DOE also requests comment on the proposed definitions for direct video connection, Component Video, Composite Video, HDMI, and S-Video.
In March 2011, DOE published a final rule for `Certification, Compliance, and Enforcement for Consumer Products and Commercial and Industrial Equipment'. 76 FR at 12422 (March 7, 2011). In this rule, DOE codified a definition for basic model in 10 CFR Part 430.2 as follows:
“Basic model means all units of a given type of covered product (or class thereof) manufactured by one manufacturer, having the same primary energy source, and which have essentially identical electrical, physical, and functional (or hydraulic) characteristics that affect energy consumption, energy efficiency, water consumption, or water efficiency; and
(1) With respect to general service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps: Lamps that have essentially identical light output and electrical characteristics—including lumens per watt (lm/W) and color rendering index (CRI).
(2) With respect to faucets and showerheads: Have the identical flow control mechanism attached to or installed within the fixture fittings, or the identical water-passage design features that use the same path of water in the highest flow mode.”
For today's NOPR, DOE reviewed this definition of a basic model and has determined that the definition of basic model codified in 10 CFR Part 430.2 is applicable to STBs. For STBs, the `identical electrical, physical, and functional characteristics' that identify two units as being the same basic model would also cover software download or hardware integration. This is because hardware components and software programming can change the functional or physical characteristics of the box that affect energy consumption and/or energy efficiency. Thus, in order for multiple STBs to be in the same basic model they must have essentially the same software downloads and hardware integration. Additionally, for today's proposed rule, DOE also believes that two STB units are considered to be the same basic model if they have the same multi-streaming and DVR functionality as described in section III.D.4.
DOE invites comment on the discussion of basic model as it pertains to the STB rulemaking.
DOE considers today's proposed test procedure applicable to any person that meets the definition of manufacturer under EPCA as it relates to STBs. EPCA defines the term “manufacture” as “to manufacture, produce, assemble, or import.” (42 U.S.C. 6291(10)) The proposed definition of a STB itself is discussed in section III.D.1 of the NOPR.
For the STB test procedure NOPR, DOE proposes to define terms that are relevant for the test procedure based on the definitions specified in section 4 of the draft CEA–2043 standard. Of these definitions, DOE proposes clarifying information, beyond what is provided in the draft CEA–2043 standard, for the definitions of DVR, display device, and home network interface (HNI). Additionally, DOE is including new
Auto power down (APD): A STB feature that monitors parameters correlated with user activity or viewing. If the parameters collectively indicate that no user activity or viewing is occurring, the APD feature enables the STB to transition to sleep or off mode.
Client: Any device (example: STB, thin-client STB, smart TV,
Content provider: An entity that provides video programming content.
Crest factor: The ratio of the peak current to the root-mean-square (rms)
Digital video recorder (DVR): A STB feature that records TV signals on a hard disk drive (HDD) or other non-volatile storage device integrated into the STB. A DVR often includes features such as: Play, Record, Pause, Fast Forward (FF), and Fast Rewind (FR). STBs that support a service provider delivery network based “DVR” service are not considered DVR STBs for the purposes of this test procedure. The presence of DVR functionality does not mean the device is defined to be a STB.
Display device: A device (example: TV, Computer Monitor, or Portable TV) that receives its content directly from a STB through a video interface (example: HDMI, Component Video, Composite Video, or S-Video), not through a home network interface (HNI), and displays it for viewing.
Harmonic: A component of order n of the Fourier series
High definition test stream (HD): Video content delivered to the STB by the content provider to produce a minimum output resolution of 1280 × 720 pixels in progressive scan mode
Home network interface (HNI): An interface with external devices over a local area network (example: IEEE 802.11 (Wi-Fi), Multimedia over Coax Alliance (MoCA)
Low noise block-downconverter (LNB): A combination of low-noise amplifier, block-downconverter and intermediate frequencies (IF) amplifier. It takes the received microwave transmission, amplifies it, down-converts the block of frequencies to a lower block of IF where the signal can be amplified and fed to the indoor satellite TV STB using coaxial cable.
Multi-stream: A STB feature that may provide independent video content to one or more clients, one or more directly connected TVs, or a DVR.
Outdoor unit (ODU): Satellite signal reception components including: a receiving dish, one or more LNBs, and imbedded or independent radio frequency (RF) switches, used to distribute a satellite service provider network to consumer satellite STBs.
Point of deployment (POD) module: A plug-in card that complies with the ANSI/SCTE
Power mode: A condition or state of a device that broadly characterizes its capabilities, power consumption, power indicator coding, and responsiveness to input.
Principal STB function: Functions necessary for selecting, receiving, decoding, decompressing, or delivering video content to a display device, DVR, or client. Monitoring for user or network requests is not considered a principal STB function.
Satellite STB: a STB that receives and decodes video content as delivered from a service provider satellite network.
Service provider: A business entity that provides video content, a delivery network, and associated installation and support services to subscribers with whom it has an ongoing contractual relationship.
Smart Card: A plug-in card that complies with ISO
Standard definition test stream (SD): Video content delivered to the STB by the content provider to produce an output resolution of 640 × 480 pixels in interlaced scan mode at minimum frame rate of 29.97 fps (abbreviated 480i30).
Thin-client STB: A STB that can receive content over an HNI from another STB, but is unable to interface directly to the service provider network.
DOE proposes to incorporate by reference the industry standards that are used in the definitions of POD and smart card. These standards are: ANSI/SCTE 28 for the definition of POD and ISO/IEC 7816–12 for the definition of Smart Card. These industry standards are part of the definition provided in the draft CEA–2043 standard, and DOE believes the standards provide necessary information to define the POD and Smart Card plug-in cards.
The definition of DVR in the draft CEA–2043 standard is, “a STB feature that records TV signals on a hard disk drive (HDD) or other non-volatile storage device. A DVR often includes features such as: Play, Record, Pause, Fast Forward (FF), and Fast Rewind (FR). STBs that support a service provider delivery network based “DVR” service are not considered DVR STBs for the purposes of this test procedure. The presence of DVR functionality does not mean the device is defined to be a STB.” The definition of DVR in the draft CEA–2043 standard does not explicitly state that the HDD should be integrated into the STB, while DOE's proposed definition adds the specification that the HDD or other non-volatile storage
In today's NOPR, DOE is proposing only to test STBs with integrated storage as a DVR. For STBs that support DVR only through an external storage device, DOE is proposing to test these basic models as a STB without DVR. There are currently a wide selection of external storage devices that can be paired with a STB to support DVR functionality, and DOE believes the choice of external storage device paired with the unit could impact the energy consumption of the STB itself. While DOE's preferred approach is to test the STB without DVR capabilities if they use an external storage device, DOE did consider an alternative that would capture this use. For testing purposes, DOE could specify the external storage device such as the storage device that is shipped with the STB or specifying a standard storage device that is for testing all applicable STBs across the board. DOE requests comment on the proposed approach of not testing STBs with external storage as a DVR. If DOE does consider testing the STB with an external storage device as a DVR in response to comments, DOE specifically requests comments on the proper external storage device to use.
The definition of display device in the draft CEA–2043 standard is, “a display device (example: TV, Computer Monitor, or Portable TV) receives its content directly from a STB through a video interface (example: HDMI, Component Video, Composite Video, or S-Video), and not through a home network interface (HNI).” DOE's proposed definition of a display device adds clarification that the content that is received from the STB through a video interface is displayed for viewing. DOE proposes to include this clarification to the definition of display device, because the definition specified in the draft CEA–2043 standard explains the functionality of a display device but does not explicitly define the device itself.
The definition of HNI in the draft CEA–2043 standard is, “the interface with external devices over a local area network (example: IEEE 802.11 (Wi-Fi), MoCA, HPNA, IEEE 802.3, or HomePlug AV).” DOE proposes to include clarifying information in the definition of HNI to explain that the interface is capable of transmitting video content. DOE believes that the definition in the draft CEA–2043 standard, which specifies that HNI is the interface with external devices over a local area network, is vague and could potentially include other interfaces that may not be capable of transmitting video content, and therefore, not applicable for connecting with a STB. Therefore, DOE is proposing to clarify that the HNI connection should be such that is capable of transmitting video content.
Finally, DOE proposes to include a definition for content provider and multi-stream that is not included in the draft CEA–2043 standard. DOE is proposing a definition for content provider because the term is used in today's proposed test procedure to explain the type of content that should be streamed to a connected display device or client. DOE's proposed definition for multi-stream was adopted from an older version of the draft CEA standard, which included this definition. While CEA has removed the definition for multi-stream from the most recent version of the draft, DOE proposes to include it in this NOPR because DOE uses the definition to describe STBs that have multi-streaming capability and also proposes a multi-stream test to determine the power consumption of such STBs (section III.G.5.b).
In addition to the definitions adopted from the draft CEA–2043 standard, DOE proposes to include the terms ANSI, IEC, ISO, and SCTE in the definition section of the proposed Appendix AA to Subpart B of 10 CFR Part 430. These terms are used in the definitions of POD and Smart Card and therefore, DOE has included the full forms of these terms.
DOE invites interested parties to comment on the proposed definitions for the STB test procedure NOPR, and, in particular, the clarifying information included for the definitions of DVR, display device, HNI, and the definitions included for content provider and multi-stream.
While power mode is defined in section III.D.4 above, DOE proposes to define the different modes of operation for the STB in further detail similar to those provided in section 6 of the draft CEA–2043 standard. The draft CEA–2043 standard describes the on, sleep, and off modes of STB operation, which are defined and discussed below. The proposed power mode definitions would be included in section 2.25 (Definition of Power Modes) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. DOE invites interested parties to comment on the proposed definitions for each mode of operation of the STB.
DOE's view is that a STB has “all principal STB functions provisioned for use” if all principal STB functions are prepared or equipped for use by the consumer. This description of on mode aligns with the consumer's expectation of what a STB should do when it is turned on, or when it is “in-use”. The proposed definition also aligns with the definition in the ENERGY STAR specification for on mode operation.
The proposed definition for sleep mode is similar to the definition for sleep mode in the draft CEA–2043 standard with one key addition. The proposal that the STB should transition to on mode within 30 seconds has been included to ensure that a valid sleep mode includes the ability to resume full functionality in a timely manner. DOE received a comment from AT&T in response to the 2011 RFI that referenced consumer studies to indicate strong consumer resistance to any recovery time from “minimum power” mode longer than 1 minute. (AT&T, No. 0032 at p. 16) AT&T further indicated that this was true even when the consumer was prompted that longer recovery times would have environmental and energy saving benefits. (AT&T, No. 0032 at p. 16) Additionally, CA IOUs indicated that long wake times are a significant barrier to consumer adoption. (CA IOUs, No. 0033 at p. 6) NCTA also commented that a STB could take much longer than 2 to 5 minutes if the STB were to shut off power
Because the overall energy consumption of a STB is dependent on consumer adoption of sleep modes that can resume functionality quickly, DOE proposes to set a maximum allowable transition time of 30 seconds from sleep mode to on mode, which is half the acceptable duration referenced in AT&T's studies. If the STB cannot transition from sleep mode to on mode in 30 seconds or less, it is not considered to have sleep mode capability and shall not be tested for the energy consumption in sleep mode, which is discussed in section III.G.6. That is, if the STB does not transition from sleep mode to on mode within 30 seconds, the value of the power consumption in sleep mode for the AEC metric (discussed in detail in section III.I of the NOPR) would be set equal to the power consumption in on (watch TV) mode for such STBs. It is DOE's view that market forces will drive STBs to utilize a shorter transition period; however, DOE adds this limit as an upper bound to facilitate consumer adoption of sleep mode. If a STB takes very long to resume functionality from sleep mode, it is DOE's assumption that consumers are less likely to place the STB in sleep mode. The 30 second upper limit may mitigate some of these consumer concerns of resuming functionality quickly from sleep mode. DOE also considered other allowable transition times less than 30 seconds or more than 30 seconds. However, its view is that a transition time shorter than 30 seconds may be too restrictive for certain STB designs. Conversely, DOE believes a transition time greater than 30 seconds may discourage consumers from using sleep mode and would affect DOE's estimated usage profile for the calculation of AEC as discussed in section III.I.
DOE recognizes that imposing the 30 second requirement would not measure any sleep power saving techniques that may take longer than 30 seconds to resume functionality and may subsequently discourage power saving techniques in that area. On the other hand, excluding this requirement would essentially treat all low power sleep modes the same for the purposes of power measurement, regardless of whether or not the STB resumed functionality quickly. STBs that resume functionality more quickly could have higher consumer adoption and thus, more overall energy savings, which would not be captured if there were no requirement for resuming functionality. This is because, as indicated by AT&T's consumer studies and other public commenters, consumers are less likely to use the various sleep modes if it takes too long to resume functionality,, which would result in more STBs staying in on mode all day. Therefore, DOE is proposing the requirement that the STB shall transition to on mode within 30 seconds and requests stakeholders to comment on the proposed requirement.
DOE invites interested parties to comment, and provide data if available, on the proposed requirement of transitioning from sleep mode to on mode within 30 seconds or whether a different maximum allowable transition time should be considered.
The proposed definition for off mode is exactly as specified in the draft CEA–2043 standard. A STB that is de-activated does not provide any functions and a user action is required for the STB to provide any function. A user action means an action that would require the consumer to interact with the STB using either a single or a series of keystrokes or button presses, either on a remote control or on the STB unit. DOE understands that this is the generally accepted definition by industry for off mode.
DOE received comments regarding the configuration in which the STB should be setup for testing. NCTA stated that STBs should be tested in “as-shipped” condition and as normally installed for an end-user. (NCTA, No. 0034 at p. 19) AT&T and CEA commented that in order to reduce the risk of stifling innovation, the STB test procedure rulemaking should require that newly introduced features be turned off to the extent possible. CEA commented similarly but further stated that turning off newly introduced features during testing could reduce the accuracy and utility of the test procedure. (AT&T, No. 0032 at p. 22) (CEA, No. 0031 at p. 5)
DOE proposes the following requirements for setting up the STB for testing. There are different requirements depending on whether the STB can be installed by the consumer using the user manual shipped with the unit or whether a technician is required to install the STB per the manufacturer's instructions. These proposed requirements are included in section 3.1 (Set-top Box Settings) of the proposed Appendix AA to Subpart B of 10 CFR Part 430.
For all STBs that require subscription to a service, the simplest available video subscription that supports all functionality proposed in today's test procedure shall be selected for operating the STB. That is, subscriptions with TV services only shall be selected and packages with non-video capability, such as telephony, shall not be selected.
If the STB can be installed by the consumer per the manufacturer's instructions without the service of a technician, then it shall be installed and setup according to the user manual shipped with the unit. Only those instructions in the user manual should be used for setting up the STB and setup should be considered complete once they are followed.
If the STB must be installed by a technician per the manufacturer's instructions, then the unit shall be setup as installed by the technician for testing. All steps that a technician would follow when installing a STB for use in a consumer residence should be followed. DOE recognizes that for testing a STB in the setup in which it is installed in a consumer's home, a third-party test lab would require this setup information. Therefore, information about each of the steps that were performed to setup the STB by a technician shall be recorded and maintained by the manufacturer pursuant to 10 CFR Part 429.71 as part of the test data underlying the ratings.
The goal of DOE's proposed requirements for the STB settings is to ensure that the STB is tested under the same settings as it would be when installed in a consumer's home. This proposal is similar to an older draft version of the CEA–2043 standard, which required STBs to be tested in the configuration in which it is supplied to consumers. DOE proposes to use the simplest available video subscription that supports all functionality proposed in today's test procedure for testing because, at a minimum, all STBs will provide these services. Testing all STBs with the simplest subscription ensures consistency across testing of the different STB models. Further, DOE believes that setting up the STB in the same configuration that the consumer would use the STB, ensures that the test is representative.
DOE requests comment on the proposed requirements for setting up the STB as installed in a consumer's home for testing.
In regards to comments made by AT&T and CEA about newly introduced features on STBs, DOE disagrees with commenters and is not proposing to turn off or disable any such features.
DOE proposes to specify ambient conditions for testing STBs that are similar to the requirements specified in section 7.3 of the draft CEA–2043 standard. DOE recognizes that the power consumption of the STB could vary with the ambient conditions of the room in which the STB is tested. Therefore, the ambient conditions shall be controlled to ensure that the power measurements are repeatable and reproducible. The test conditions specified in the draft CEA–2043 standard, proposed in this NOPR, ensure that the test results are repeatable, reliable, and consistent without significant test burden. These conditions are discussed in further detail below and are included in section 3.2 (Test Room) of the proposed Appendix AA to Subpart B of 10 CFR Part 430.
DOE proposes that testing shall be carried out in a test room where the ambient temperature is maintained at 23 degrees Celsius (°C) ± 5 °C. DOE's believes that 23 °C represents the temperature of a typical room in which a STB may be used; it is DOE's understanding that this is the temperature range in which most household appliances are typically tested. Further, a tolerance of 5 °C for the ambient temperature is achievable because temperature measurement instruments generally provide for a greater accuracy than 5 °C and DOE expects it would not be burdensome for test labs to climate control the test room to meet these requirements. Finally, the temperature requirement of 23 °C ± 5 °C is the same as that specified in the ENERGY STAR specification, which requires that the ambient temperature should remain between 18 °C and 28 °C, inclusive, throughout testing.
DOE further proposes that the test room shall be such that the air movement surrounding the STB shall be less than or equal to 0.5 meters per second (m/s), as required in the draft CEA–2043 standard. However, DOE understands that it may be difficult to maintain the required ambient temperature range at such a low air speed. This is because the heat generated from the STB may heat up the surrounding air, and at such a low air speed, the ambient temperature may exceed the required range. Since it is likely that the power consumption of a STB does not change significantly at moderately higher air speeds, the requirement specified in the draft CEA–2043 standard may be stringent in conjunction with the temperature requirements. DOE therefore requests comments and data, if available, on the proposed 0.5 m/s air movement requirement and whether this value should be relaxed to a higher value or removed altogether.
Finally, DOE proposes that the STB shall be tested on a thermally non-conductive surface, which is a requirement specified in the draft CEA–2043 standard. This requirement ensures that the internal temperature of the STB is maintained at a level consistent with a typical consumer setup, which usually does not have a thermally conductive surface. DOE requests comment on the proposed test room conditions for testing STBs, including the air temperature, air speed, and thermally non-conductive test surface requirements.
DOE proposes that the input power requirements for testing STBs shall be as specified in section 7.4 of the draft CEA–2043 standard and are included in section 4.1 (Test Voltage) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. These requirements state that an alternating current (AC) power source shall be used to power the STB with an input voltage of 115 volts (V) ± 1 percent. Further, the frequency of the power source shall be 60 hertz (Hz) ± 1 percent. The total harmonic distortion of the supply voltage when supplying power to the STB in the specified mode shall not exceed 2 percent, up to and including the 13th harmonic. Finally, the peak value of the test voltage shall be between 1.34 and 1.49 times its rms value; that is, the value of the crest factor shall be between 1.34 and 1.49. DOE's understanding is that the proposed requirements for input power are typical for testing consumer electronics and notes that this aligns with the requirements specified in the ENERGY STAR specification for qualifying STBs in the North American market. DOE invites interested parties to comment on the proposed input power requirements.
DOE proposes to specify the accuracy of power measurements similar to those required in section 7.2 of the draft CEA–2043 standard. These requirements are included in section 4.2 (Measurement Accuracy) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. The draft CEA–2043 standard specifies that power measurements of 0.5 watt (W) or greater shall be made such that the uncertainty of the measurement is less than or equal to 2 percent at the 95 percent confidence level. For power measurements of less than 0.5 W, the uncertainty of the measurement shall be less than or equal to 0.01 W at the 95 percent confidence level. The resolution of the instrument used to measure power shall be 0.01 W or better for power measurements of 10 W or less, 0.1 W or better for power measurements greater than 10 W and up to 100 W, and 1 W or better for power measurements greater than 100 W. For equipment connected to more than one phase, the power measurement instrument shall be equipped to measure the total power of all phases that are connected. DOE's view is that these requirements are reasonable and generally accepted by industry for the accuracy of power measurements. The uncertainty requirements are specified in IEC–62301,
Section 7.5 of the draft CEA–2043 standard provides recommendations for equipment that may be used to monitor AC line current, voltage, and frequency. DOE proposes to include this recommended equipment that is optional for testing. The following recommended equipment are included in section 4.3 (Test Equipment) of the
(1) An oscilloscope with a current probe to monitor the AC line current waveform, amplitude, and frequency.
(2) A true rms voltmeter to verify the voltage at the input of the STB; and
(3) A frequency counter to verify the frequency at the input of the STB.
DOE's view is that these instruments would be appropriate to ensure that the current, voltage, and frequency measurements are accurate. DOE invites interested parties to comment on the recommended test equipment to measure the AC line current, voltage, and frequency.
DOE proposes that the power meter attributes shall be as specified in section 7.5.2 of the draft CEA–2043 standard, which provides the crest factor, bandwidth, frequency response, and sampling interval requirements for the power wattmeter. Each of these attributes is discussed in section III.F.4.a through III.F.4.d below and are included in section 4.4 (True Power Wattmeter) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. These requirements are necessary because electronic equipment can cause harmonics that lead to inaccurate power measurements. The proposed requirements are standard specifications for measuring power using a power wattmeter and are listed as the characteristics of approved meters in IEC–62301. Additionally, these requirements are specified in the ENERGY STAR specification for testing STBs. Due to widespread industry acceptance, DOE's view is that these requirements are reasonable and it should not be burdensome for stakeholders to meet these conditions. DOE invites interested parties to comment on the proposed power meter instrumentation requirements, such as the crest factor, bandwidth, frequency response requirements, and sampling interval.
DOE proposes that the crest factor attributes shall be as specified in the draft CEA–2043 standard, which requires that the power wattmeter shall have an accuracy and resolution in accordance with that proposed in section III.F.2 of this NOPR and sufficient bandwidth. Additionally, the crest factor rating shall be appropriate for the waveforms that are measured, and it shall be capable of reading the available current waveform without clipping the waveform. Consistent with the draft CEA–2043 standard, DOE also proposes that the peak of the current waveform that is measured during the on and sleep modes of the STB shall be used to determine the crest factor rating and the current range setting. The full-scale value of the selected current range multiplied by the crest factor for that range shall be at least 15 percent greater than the peak current to prevent measurement error.
DOE proposes the following requirements as specified in the draft CEA–2043 standard. The current and voltage signal shall be analyzed to determine the highest frequency component (that is, harmonic) with a magnitude greater than 1 percent of the fundamental frequency under the test conditions. Additionally the minimum bandwidth of the test instruments shall be determined by the highest frequency component of the signal.
As specified in the draft CEA–2043 standard, DOE proposes that a wattmeter with a frequency response of at least 3 kilo-hertz (kHz) shall be used in order to account for harmonics up to the 50th harmonic.
DOE proposes to adopt the sampling interval requirement as specified in the draft CEA–2043 standard. This requirement specifies that the wattmeter shall be capable of sampling at intervals less than or equal to 1 second.
DOE proposes to specify test instrument calibration requirements that are identical to those required in section 7.5.1 the draft CEA–2043 standard. The draft CEA–2043 standard specifies that the testing equipment shall be calibrated annually to traceable national standards to ensure that the limits of error in measurement are not greater than ± 0.5 percent of the measured value over the required bandwidth of the output. The annual calibration requirement proposed by DOE is typical for the equipment required for testing of all electrical products. The proposed calibration requirements are included in section 4.5 (Calibration) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. DOE invites interested parties to comment on the proposed calibration requirements for testing STBs.
As specified in section 8.1.4 of the draft CEA–2043 standard, DOE proposes that for STBs that require the use of a home network, such as thin-client STBs, an HNI connection shall be used. Further, DOE proposes that the HNI connection shall be used in the following order of preference: MoCA, HPNA, Wi-Fi, or any other HNI connection. That is, if MoCA connection is available, the STB shall be tested using MoCA. If MoCA is not available, HPNA shall be used followed by Wi-Fi as the last option. These proposed requirements are consistent with the requirements listed in the ENERGY STAR specification and are sequenced based on most commonly used HNI connections to least commonly used HNI connections. These requirements are included in section 4.6.1 (Home Network Connection) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. DOE invites interested parties to comment on the proposed requirements for testing STBs that require an HNI connection. DOE also requests comment about whether there are any additional HNI connections that should be included and the order of preference in which they should be included.
DOE proposes to specify setup requirements for STBs requiring broadband service connections that are similar to the requirements stated in section 8.1.5 of the draft CEA–2043 standard. These requirements are included in section 4.6.2 (Broadband Service) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. The draft CEA–2043 standard specifies that if the STB includes an HNI and the HNI shall be connected to broadband service for operation of a principal STB function, then it shall be tested while connected to a broadband network. Broadband performance criteria, such as download speed, upload speed, and latency shall meet the specific requirements of the STB to fulfill the principal STB functions. DOE understands that certain STBs, such as IPTV STBs, require a broadband connection to provide the principal STB functions and is therefore proposing this requirement. DOE also proposes to include clarification that for STBs designed to operate both with a broadband connection and service provider network connection (as discussed in section III.F.6.e), the service provider connection takes precedence, and a broadband connection shall only be made if the STB requires it for operating a principal STB function. This clarification has been included because there may be some STBs that are able to provide service on both a broadband network as
As specified in section 8.1.6 of the draft CEA–2043 standard, DOE proposes that for STBs that require the use of external equipment to connect the service provider network to the STB, the power consumption of the external equipment shall not be included with the power consumption of the STB itself. If such equipment is integrated into the STB in the future, the power consumption of the equipment shall be included in the power consumption of the STB. Such external equipment may include network gateways, network routers, network bridges, ONTs, wireless access points, media extenders, or any other device that is required for the distribution of a service provider network to the STB. DOE is excluding the power consumption of the external equipment because network distribution equipment does not meet the proposed definition of the STB. As discussed in section III.B of this NOPR, if DOE initiates a rulemaking for network equipment in the future, the external equipment required to connect the service provider network to the STB would likely be under the scope of that rulemaking. DOE invites interested parties to comment on the proposed exclusion of external equipment power consumption from the power consumption of the STB itself. These requirements are included in section 4.6.3 (Service Provider Network Distribution Equipment) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. If stakeholders indicate that the power consumption of such external equipment should be included with the power consumption of the STB, DOE requests input on the test method and standard configuration that could be used to measure the power consumed.
As discussed in section III.B of this NOPR, DOE received several comments from stakeholders regarding the inclusion of specific types of input signal equipment, such as LNB equipment, in the scope of this proposed rule. However, as explained in section III.B, DOE does not believe input signal equipment meets the definition of STB as proposed in this NOPR because of significant operational differences from STBs. There is no standard configuration for the number of STBs that can be connected to any single input signal equipment. For example, for a certain household an LNB may be connected to three STBs and a different household may require two LNBs to connect three STBs. This lack of standardization does not allow a direct comparison between the different STBs that are connected to these equipment and therefore DOE does not propose to test input signal equipment while testing STBs.
Instead, DOE proposes to adopt the specifications stated in section 8.1.7 of the draft CEA–2043 standard with some modification. DOE proposes that when an ODU, over the air (OTA) antenna amplifier, cable TV (CATV) distribution amplifier, or similar signal equipment is required to operate the STB, the measurement shall not include the power consumption of this equipment, if it can be powered from a source other than the STB. If the signal equipment cannot be powered from a different source, then the power for these equipment shall be included in the STB power consumption measurement, and the signal equipment should be configured in its lowest power consuming mode. However, if the equipment is powered from a source other than the STB, it shall be powered from another source, and the signal equipment shall not deliver any power to the connected STB.
DOE's proposed specification is slightly different from that in the draft CEA–2043 standard. DOE proposes to include the requirement that if the input signal equipment cannot be powered from a source other than the STB, then it shall be powered from the STB and the power supplied to these equipment shall be included in the STB power consumption measurement. Further, DOE proposes to include the additional clarification that the signal equipment should not deliver any power to the STB, if the equipment is powered from a different source, to avoid the possibility of circumvention. This would occur if the power consumption of the STB is rated lower than the actual consumption of the STB because a separately powered device, the input signal equipment, provides the additional power required to operate the STB. DOE also considered requiring the use of a direct current (DC) block in order to prevent power transfer to and from any such input signal equipment; however, DOE has not proposed this requirement because the DC block could potentially impact the functionality of such input signal equipment. These requirements are included in section 4.6.4 (Input Signal Equipment) of the proposed Appendix AA to Subpart B of 10 CFR Part 430.
DOE requests comment on the proposed exclusion of the power consumption of the input signal equipment from the power consumption of the STB and the additional clarification that such equipment should not supply power to the STB. DOE also requests feedback on the potential use of a DC block to prevent power transfer to and from any input signal equipment. Further, if stakeholders indicate that such equipment should be tested and the power consumption be measured as part of this proposed rule, DOE requests comment on the test method and standard configuration that could be used to test this equipment.
DOE received some comments from NRDC and CA IOUs about testing STBs on a live network or closed network. NRDC commented that STBs should be tested as they are deployed in the field with “live” head-end equipment. (NRDC, No. 0017 at p. 4) Further the CA IOUs commented that while testing performed on a live network would result in real power consumption, it also may be impractical. They further stated that if testing was performed during a period of a large software update, the power consumption of the STB may be elevated and atypical. Additionally, it may take longer measurement periods to yield repeatable results on the live network. (CA IOUs, No. 0033 at p. 7) Finally, DISH, EchoStar, and DIRECTV commented that the energy consumption of a satellite STB on a live network is generally not affected by geography, location, time of day, or subscription package, which are possible sources of variation when using a live network. (DISH, EchoStar, DIRECTV, No. 0030 at p. 11)
Based on its review of the comments received, the practicality of testing a STB on a live network compared to a closed network, and a review of CEA's requirements in the draft CEA–2043 standard, DOE proposes to adopt the same requirements listed in section 8.1.8 of the draft CEA–2043 standard. These requirements allow either a live network or closed network to be used for testing and provide specific
For testing the STB in a laboratory environment, DOE proposes to adopt the specification in the draft CEA–2043 standard, which states that the STB may be tested in a laboratory environment containing control equipment comparable to a live service provider system. For a cable STB, this would require a laboratory that contains a conditional access system, the appropriate equipment to communicate with the STB (such as ANSI/SCTE 55–1
These requirements are included in section 4.6.5 (Service Provider Network Connection) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. DOE invites interested parties to comment on the proposed requirements for service provider network connection. Particularly, DOE requests comment and data, if available, about whether the power consumption of a given STB is similar when it is operated on a live network versus a closed network.
The first step in measuring the power consumption of the STB after setting up the test room and equipment is to connect the STB and operate it for a certain period of time until it reaches a stable condition. It is important to warm-up, or stabilize, the STB so that the measured values of power consumption are not fluctuating dramatically, and a repeatable measurement can be taken. To stabilize the STB, DOE proposes to adopt the requirement specified in section 8.1.1(e) of the draft CEA–2043 standard. The standard requires the STB be operated in on mode (as discussed in section III.G.5 of this NOPR) while receiving and decoding video for at least 15 minutes for the STB to achieve stable condition. DOE expects that 15 minutes should be sufficient to warm-up the STB. This warm-up is also consistent with the ENERGY STAR test method. The STB warm-up requirements are specified in section 5.1 (Set-top Box Warm-up) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. DOE invites interested parties to comment on the proposed warm-up time for stabilizing the STB.
To test the STB in on, sleep, and off modes, DOE proposes to specify the configuration in which the STB shall be connected with one or more display devices and clients. This information is not specified in the draft CEA–2043 standard; instead section 8.1.11 of the standard states that the entity specifying the use of the CEA standard is expected to provide this information. Because DOE is proposing to adopt the requirements specified in the draft CEA–2043 standard, DOE qualifies as the entity specifying the use of the CEA standard. Accordingly, DOE proposes to specify this information, as discussed in the following paragraphs. The proposed test configuration information is included in section 5.2 (Test Configuration Information) of the proposed Appendix AA to Subpart B of 10 CFR Part 430.
The draft CEA–2043 standard requires the following information to be specified: a configuration diagram of the STBs, clients, display devices, and any other devices required for testing; the specific network technology to be used for each test, if applicable; the maximum number of connected display devices and clients for each test, if applicable; devices in the network configuration that cannot be tested; required tests to be run on each device; and, test parameters for each required test.
Accordingly, DOE proposes to specify that the test configuration described in Table 1 shall be used to configure all STBs and connected devices. Because it is possible to configure STBs in several different ways, DOE is proposing a table that lists the priority in which STBs shall be configured rather than providing several different configuration diagrams to cover the various possibilities. For multi-streaming STBs, the proposed configuration in Table 1 describes the number of display devices and clients that shall be connected to the STB depending on its capabilities. If a STB is not capable of multi-streaming, that is, if the STB cannot connect to multiple display devices and does not support DVR and clients, then it shall be connected to only one display device according to the proposed configuration in the last row of Table 1. Each STB type is expected to fall in one of the rows of Table 1 only. For example, a STB with DVR capability that supports connections to multiple display devices and clients shall be connected to one display device and one client according to the configuration proposed in the first row of Table 1. DOE developed the proposed configuration table such that a maximum of three different content streams are enabled for multi-streaming STBs for the multi-stream test, which is discussed in section III.G.5.b.
DOE further proposes that the same test configuration shall be used throughout testing in the on, sleep, and off modes of operation for all STBs. The draft CEA–2043 standard also requires DOE to propose the maximum number of display devices and clients that shall be connected to the STB. Because the number of connections depends on the configuration that is feasible from Table 1, DOE is not proposing the maximum number of connections. Instead, DOE proposes to use as many connections as required for the configuration that is feasible from Table 1. For example, a STB that can be connected to multiple display devices and a client, but does not have DVR capability, shall be connected to two display devices and one client throughout testing.
DOE proposes that the connection type that is used to connect the display device to the STB shall be selected in the following order of preference. The first preference shall be to connect a display device to the STB using an HDMI connection, followed by Component Video, S-Video, and Composite Video, respectively. If none of these connections are available or feasible, then any other video interface that is feasible shall be used. The order of preference for connecting display devices to the STB is adopted from the comments received from stakeholders in response to the TVs test procedure rulemaking. 77 FR 2830, 2839–2840 (January 19, 2012). Sharp commented that video input to a TV should be selected in the following order: HDMI, Component Video, S-Video, and Composite Video. (EERE–2010–BT–TP–0026, Sharp, No. 45 at p. 6) Mitsubishi Electric Visual Solutions America (MEVSA) suggested the following input hierarchy definition: “Testing shall be performed using a HDMI input. If the TV does not have an HDMI input, the following inputs shall be used in the following order: component, S-Video, and composite. If the TV has none of these inputs, an appropriate interface shall be used.” (EERE–2010–BT–TP–0026, MEVSA, No. 44 at p. 3)
Additionally, DOE proposes that the connection type that is used to connect the client to the STB shall be an HNI connection. The order of preference in which an HNI connection shall be selected is discussed in section III.F.6.a of this NOPR.
Finally, the draft CEA–2043 standard provides that the entity specifying the use of the CEA–2043 standard (which is DOE in this case) is expected to specify the required tests to be run on each device and the test parameters for each required test. DOE proposes these test specifications in the on, sleep, and off modes in sections III.G.5 to III.G.7 of the NOPR.
DOE invites interested parties to comment on all aspects of the proposed configuration for testing STBs in the on, sleep, and off modes of operation. DOE is especially interested in receiving comments on the proposed connections for the test configuration. DOE also invites comments on the proposed order of preference for connecting a display device to the STB.
DOE proposes to specify the type of content that shall be streamed to each device that is connected to the STB according to the configuration discussed in section III.G.2 above. The information about the streaming content is included in section 5.3 (Test Conduct) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. While the connections required for the STB configuration during testing shall remain the same throughout testing, the number and type of test streams that shall be enabled for the various tests are proposed to be different. This is similar to the usage expected in a typical household that has all display devices and clients connected to the STB at all times, but the number of streams enabled to each connected device is different depending on the number of active viewers on different display devices at a given point of time. When multiple streams are enabled to output connect to a display device, record on a DVR that is integrated into the STB, or stream content to a connected client, DOE proposes that the content streamed to each shall be different. That is, the content outputted to a display device for viewing a channel shall be different from the content recorded on a DVR, which shall also be different from the content streamed to a connected client. DOE is proposing this requirement because DOE believes consumers generally view and record different content simultaneously. Further, DOE proposes the following specifications for the content stream that is used for streaming to a display device, DVR, and client.
For tests requiring output to be sent to a display device(s), DOE proposes that a channel shall be selected and viewed on the connected display device(s) as required by the test configuration. If the STB does not support channels, an appropriate SD or HD test stream shall be selected and viewed on the display device(s). If more than one display device is connected to the STB based on the test configuration that is feasible, then the content outputted on each display device shall be different.
DOE's proposed requirements for providing video output to a display device have been adopted from the draft CEA–2043 standard, which specifies that a channel, if supported, or other appropriate content, shall be sent to a connected display device. DOE additionally proposes that if multiple display devices are connected to the STB, then the content on each display device shall be different. This requirement has been specified because DOE believes it mirrors typical user operation wherein if two TVs are operating in a household at the same time, most of the time the content being viewed would be different. DOE requests comment on the proposed
For tests that require recording on a STB with DVR capability, DOE proposes that a channel shall be selected using a connected display device or a client and the program shall be recorded. If more than one recording is required on a DVR that is integrated into the STB, the content for each recording shall be different.
DOE is proposing to test the record functionality of STBs with DVR capability because it believes that this is one of the most commonly used features of such a STB. The proposed method to record the content on a DVR that is integrated into the STB is adopted from the draft CEA–2043 standard's on (record)—DVR STB test. Similar to its proposal in section III.G.3.a above for outputting content to a display device, DOE is proposing that different content be recorded on a DVR integrated into the STB if more than one recording is enabled. This is because it is unlikely that users would record the same programming simultaneously. DOE invites comment on the proposed requirements to record on a DVR integrated into the STB.
DOE proposes that the content streamed to a client shall be selected in the following order of preference depending on the number of streams enabled. The first available stream that is supported by each connected client shall be enabled and the content on each stream shall be different. The first preference shall be to use a stream with recorded content to stream to the client. That is, content that has been recorded previously shall be streamed to the client and viewed on a display device connected to the client. If the client does not support streaming of recorded content, then a stream with channel content shall be used. That is, a channel shall be viewed on the display device connected to the client. An SD test stream shall be viewed if it is an SD client and an HD test stream shall be viewed if it is an HD client. For clients that do not support channels, an appropriate SD or HD test stream shall be selected and viewed. Finally, if the client does not support either a recorded stream or a channel stream, then any other stream that is supported by the client shall be used.
DOE believes that by proposing a hierarchy for the selection of streams for the connected client(s), there will be consistency and repeatability between tests without imposing an undue burden on manufacturers. DOE selected the proposed hierarchy based on the most power consumptive option to the least power consumption option. The power consumed by a STB when streaming recorded content, which requires the HDD to operate as well, is expected to be higher compared to when streaming a channel. This proposed hierarchy would ensure consistency in the results by accounting for the power differences.
DOE's proposed specification for playing back recorded content or streaming a channel to the connected client is adopted from the requirements specified in the draft CEA–2043 standard's on (play)—DVR STB test and on (watch TV) test, respectively. DOE requests comment on the proposed requirements to stream to a connected client. Specifically, DOE requests comment on the proposed hierarchy of content to stream to a connected client.
For all tests in the on, sleep, and off modes (NOPR sections III.G.5, III.G.6, and III.G.7, respectively), DOE proposes that the average power consumption shall be calculated using one of two methods. The two proposed methods are included in section 5.4 (Calculation of Average and Rated Power Consumption) of the proposed Appendix AA to Subpart B of 10 CFR part 430.
The first method is as specified in section 8.2.1 and 8.3.1 of the draft CEA–2043 standard. The standard specifies that the accumulated energy (E
The second method proposed by DOE allows for the average of multiple power samples at a rate of at least 1 sample per second. The average power value is calculated by taking the arithmetic mean of all the power samples over a period of time. This type of measurement is typical of many laboratory setups that perform AC power measurements and therefore DOE is proposing to allow this method in addition to the accumulated energy consumption method above.
For both methods, DOE is proposing an average power measurement rather than an instantaneous measurement. This is consistent with comments from CA IOUs, who are in favor of using an average power consumption value rather than an instantaneous one. Specifically, the CA IOUs commented that if testing is performed during a period of a large software update, the power consumption of the STB could be elevated and atypical. (CA IOUs, No. 0033 at p. 7) DOE believes an average measurement would average out any elevated power consumption.
DOE is proposing an average measurement of power consumption based on comments received from CA IOUs and DOE's internal testing results. DOE tested eight STB models during internal testing using both HD and SD test streams, for a total of 16 tests in the on, sleep, and off modes of operation. The STBs that were tested included two STBs with DVR functionality, two STBs without DVR functionality, and four over-the-top (OTT) STBs. DOE also performed one repeatability test each on three STBs using the HD test stream. The power meter that was used during internal testing provided the accumulated energy consumption over time (the first proposed method) as well as the average power consumption values sampled over time (the second proposed method). The average power consumption using both methods was the same. DOE sampled the power consumption values over a duration of 10 minutes at the rate of one sample per second. That is, DOE collected data that provided the instantaneous power consumption at any point of time over the 10 minute duration as well as the average power consumption over different time periods (example: 2 minutes, 5 minutes, etc.). Figure 1 below compares the instantaneous power versus the 2 minute and 5 minute average power in the on mode for a STB that DOE tested internally. The power consumption values have been normalized to the total average power over the 10 minute test duration.
Figure 1 indicates that an average value over 2 minutes and 5 minutes for the on mode test provided a more stable and repeatable measurement compared to the instantaneous measurement. This result is expected for STBs given the different activities that are performed from time to time, such as maintenance or software updates. If the power is measured at a particular instant, there is a possibility that the recorded value may be too high or too low depending on the content being streamed at that time. Further, for the sleep mode tests which require the power consumption to be determined over 4 to 8 hours, an average measurement could capture the potential decrease in power consumption if the STB powered down into lower power modes, depending on the time when the measurement is taken. DOE's proposed average power measurement is consistent with the requirements specified in section 8.6.5 of the IEC 62087 standard as well.
DOE requests comment on the proposed methods to determine the average power consumption of the STB in each mode of operation.
For on mode testing, DOE proposes two tests: An on (watch TV) test and a multi-stream test, which combines the multiple principal STB functions into a single test. Rather than testing each individual principal STB function separately, which may be burdensome to test, DOE is proposing to use these two tests to best represent typical STB usage. This would simplify testing as well as allow for different STBs to be operated under different conditions. The on (watch TV) test evaluates the power consumption of the STB when utilizing the most basic function that all STBs share in common, watching a channel outputted on a display device from a STB. The multi-stream test evaluates the power consumption of the STB when multiple principal STB functions are used simultaneously.
DOE further proposes that the time period for each test in the on mode, T
DOE invites comment on all aspects of the proposed approach for testing the STB in the on mode of operation.
DOE proposes to adopt the on (watch TV) test procedure specified in section 8.2.2.1 of the draft CEA–2043 standard with some modification. First, the STB shall be configured as proposed in Table 1 in section III.G.2 of the NOPR. The STB shall be configured such that all devices for the feasible configuration are connected to the STB. Of all the connections to the STB, only one stream shall be enabled and shall stream to a connected display device. All other connected display devices and clients shall not have any content streamed to them. Next, an SD channel shall be selected and viewed on the connected display device. If the STB uses a content provider that does not support channels, an appropriate SD test stream shall be selected and viewed on the display device. Finally, the power consumption measurement shall be started and the average power consumption shall be recorded for 2 minutes as P
DOE's proposed method for testing in the on (watch TV) mode is included in section 5.5.2 (On (Watch TV)) of the proposed Appendix AA to Subpart B of 10 CFR part 430. DOE's proposed test method is different from that specified in the draft CEA–2043 standard in one key area. The draft CEA–2043 standard tests an HD STB using an HD test stream only; DOE's proposed approach tests an HD STB for 2 minutes using an SD test stream, followed by 2 minutes of testing using an HD test stream. DOE proposes to use both the SD and HD test streams to test HD STBs because it does not expect all content to be available on an HD stream in the near future. That is, DOE's expectation is that HD STBs may continue to stream some content using an SD stream because the content would not be available in an HD broadcast stream. Therefore, testing an HD STB using both an SD and HD test stream would represent the typical use of an HD STB better than testing it on an HD stream only. This requirement is also specified in the ENERGY STAR specification, and it allows stakeholders the opportunity to represent energy savings if a STB can be designed to consume less energy while streaming SD content compared to streaming HD content. DOE expects this additional test will have minimal impact on testing burden.
Further, DOE proposes that for HD enabled STBs, the average power in on (watch TV) mode shall be the average of the average power consumed using an SD stream and HD stream. DOE also considered whether different weights, other than the average, should be used to combine the power consumption using SD and HD streams for an HD STB that is representative of consumers' usage of each of these streams. However, DOE does not have any data that indicates the percentage of streams that are available only in SD for HD STBs.
DOE requests comment on the proposed method to test the on (watch TV) principal STB function. DOE also requests interested parties to comment, and provide data if available, on the percentage of streams that are available in SD and HD for HD STBs, and whether the proposed equation for calculating P
To test other principal STB functions that are capable of multi-streaming as defined in section III.D.4 of the NOPR, DOE proposes a multi-stream test that simultaneously tests the most common STB functions such as, viewing a channel, recording, and playback. The proposed multi-stream test is included in section 5.5.3 (Multi-stream) of the proposed Appendix AA to Subpart B of 10 CFR part 430. DOE proposes to test the power consumption of STBs that are capable of multi-streaming as follows: First, the STB shall be configured as proposed in Table 1 in section III.G.2 of the NOPR. The STB shall be configured such that all devices required for the feasible configuration are connected to the STB. Next, the number of streams that shall be enabled and the type of content that shall be streamed using the STB shall be as specified in Table 2 of the NOPR. The highest priority (smallest number in column 1 of Table 2) of streaming content that is supported by the STB shall be selected. All streams required for the supported priority shall be enabled using appropriate content as described in section III.G.3 of the NOPR. As an example, if the STB does not have DVR capability but can connect to multiple display devices and clients, priority 3 shall be selected and the STB shall output different content to two display devices and shall playback previously recorded content on a connected client.
If the STB or connected client supports HD streaming, an HD test stream shall be used, otherwise an SD stream shall be used. Finally, the multi-stream mode power consumption measurement shall be started and the average power consumed by the STB shall be recorded for 2 minutes as P
The multi-stream test proposed by DOE to test multiple functionalities of the STB simultaneously, is not explicitly specified in the draft CEA–2043 standard, but the standard contains most of the information that DOE has combined for the multi-stream test. The standard specifies the methods to test the play (section 8.2.2.2 of the standard) and record (section 8.2.2.3 of the standard) functionality of STBs with DVR capability, it provides recommendations for concurrent testing of networked STBs, and the different
DOE's view is that the proposed multi-stream test is representative of typical consumer usage of a STB compared to individually testing the different STB features. That is, DOE expects that users would operate multiple, different functions of the STB at the same time rather than operate each function in sequence.
Further, for STBs that are capable of multi-streaming, DOE is proposing that a maximum of three streams shall be enabled, if feasible. If the STB supports only two streams, then two streams shall be enabled. DOE is proposing to enable a maximum of three streams because, according to data published by The Nielsen Company in January 2011, the average number of TVs per U.S. household is 2.5.
DOE invites interested parties to comment on the proposed test procedure for testing STBs with multi-streaming capability. DOE is especially interested in receiving comments on the proposed priority list for enabling streams for testing STBs with multi-streaming capability. DOE also seeks feedback on whether the number of additional streams that should be enabled should be other than three and the reasons for enabling a different number of streams. DOE requests comment on the possibility of including a maximum power test, which would test the STB such that the maximum number of streams are enabled. If included, DOE requests comment on the weighting that should be applied for the maximum streaming test in the calculation of the AEC.
For sleep mode testing, DOE proposes two tests only for those STBs that are capable of transitioning from sleep mode to on mode within 30 seconds as defined in section III.D.5 of this NOPR. If the STB cannot be placed in sleep mode, DOE proposes that this test be skipped. For manufacturers that wish to determine whether a given basic model contains a sleep mode that meets the 30 second transition time requirement, DOE is proposing that the sleep to on mode transition time test should be performed as described in section III.G.8 of the NOPR. While this test is not necessary for determining the power consumption values in the three modes, DOE would perform this test to determine how the sleep mode consumption should be determined.
The two sleep mode tests are: A manual sleep test in which the STB enters sleep mode through a user action, and an APD test in which the STB automatically enters sleep mode after a period of user inaction. The proposed sleep mode test is included in section 5.6 (Sleep Mode Power Measurement) of the proposed Appendix AA to Subpart B of 10 CFR Part 430.
DOE further proposes that the time period for each test in the sleep mode, T
DOE considered other options for the time period over which the average power of the STB in sleep mode should be measured, such as more than 8 hours, only 8 hours, only 4 hours, or less than 4 hours. DOE did not pursue the option of testing sleep mode over a period greater than 8 hours because of the large testing burden associated with such a long duration. DOE also considered a value less than 4 hours but is concerned that a STB may not power down to the lowest possible energy consumption mode in less than 4 hours. DOE is proposing between 4 to 8 hours for testing the STB because it is the half (4 hours) to full (8 hours) duration of an expected over-night sleep mode of a STB, assuming an 8 hour over-night duration during which most consumers are not using the STB. Further, DOE expects that if a STB has the capability to power down to lower sleep modes, it would do so within 4 to 8 hours.
For both, the manual sleep test and APD test, DOE proposes that certain conditions be ensured while the STB is in sleep mode. That is, it shall be ensured that no recording events are scheduled over the entire duration of the test, including the time the STB is in on mode prior to transitioning to sleep mode. Further, if a STB is capable of scheduling a recording, a recording shall be scheduled 24 or more hours into the future.
Next, no service provider network initiated action (such as, content downloads or software updates) requiring a transition to on mode shall occur over the 4 to 8 hours that the STB is in sleep mode. If a service provider network initiated activity cannot be disabled, then this requirement shall be monitored by sampling the power consumption at a rate of at least 1 sample per second over the entire duration of the test and observing the changes to the power consumption over time. If the input power is less than or equal to 1 W, then a linear regression through all power readings shall have a
Finally, no local area network initiated actions requiring a transition to on mode shall be scheduled over the 4 to 8 hours that the STB is in sleep mode (example: mobile applications or other network devices requesting service).
The above requirements for sleep mode testing have been adopted from the draft CEA–2043 specification with some differences. For example, section 8.3.1 of the draft CEA–2043 standard specifies that no recording shall be scheduled while the STB is in sleep mode. However, DOE proposes that no recording shall be scheduled for the entire duration that the STB is tested for the sleep mode test, including the time the STB is in on mode prior to transitioning to sleep mode. For the manual sleep test, the time period in on mode is 5 minutes (as discussed in section III.G.6.a of the NOPR) and for the APD test, this time period is a maximum of 4 hours (as discussed in section III.G.6.b of the NOPR). This proposed requirement enables the STB to transition to sleep mode as desired, without any scheduled recordings keeping the STB in on mode.
DOE is also proposing, for sleep mode testing, that a recording be scheduled 24 or more hours into the future on STBs that are capable of scheduling a recording. This proposed requirement is not part of the draft CEA–2043 standard. DOE has included the recording requirement because it understands that the power consumption of the STB may be different when a recording is scheduled compared to when it is not. When a recording is scheduled, the STB performs some non-primary functions in the background to keep track of time and ensure that it transitions to on mode once it is time to initiate recording. On the other hand, if the STB does not have any recording or other functions scheduled for the future, it may not perform any function until the user transitions it back to the on mode using a remote control. DOE expects that a STB in a consumer's home typically keeps track of some command that requires it to initiate an action in the future while it is still in sleep mode. For example, while the STB is in sleep mode it may have to transition to on mode because the user had scheduled a recording prior to placing it in sleep mode. Therefore, DOE proposes that a recording shall be initiated 24 or more hours into the future from test time.
Another difference between DOE's proposed test method and the requirements specified in the draft CEA–2043 standard is that section 8.3.1 of the standard specifies that it shall be ensured that no service provider network initiated actions occur while the STB is in sleep mode. However, for STBs that may not be tested by a manufacturer and are tested at a third-party laboratory, it might not be possible to know when a service provider network initiated action occurs. Because it is not possible to control the initiation of this activity, DOE is proposing that the power readings recorded at a rate of at least 1 sample per second shall be observed for changes in power consumption and a linear regression shall be performed to determine whether a service provider initiated activity has occurred. As discussed above, if the slope of the linear regression is greater than 1 percent, for input powers greater than 1 W, then it is assumed a network initiated action occurs and the test shall be restarted or extended until the slope is less than 1 percent. The proposed requirements for analyzing the power consumption readings have been adopted from the IEC 62301 standard with some modification. IEC 62301 specifies similar requirements for determining the power consumption within a mode that is not cyclic. A potential drawback of DOE's proposed method to check for a network initiated action is that if the slope of the linear regression is analyzed and used to gauge for network initiated activities, it is possible that the slope may vary even when the STB transitions to lower power consumption modes through the sleep mode. That is, if a STB enters sleep mode when the “Power” button on the remote is pressed, and then continues to transition to lower power consumption modes over the 4 to 8 hour time period of the sleep mode test, then the slope of the linear regression may not be less than 1 percent of the measured input power per hour as specified in the requirements. In such a scenario, the test duration for the sleep mode may be extended until the power consumption of the STB stabilizes around a particular value. While this would increase the test burden for manufacturers and third-party laboratory testing, an advantage would be that the lowest power consumption modes of the STB would be captured and included in the sleep mode power consumption measurements. Alternatively, DOE is concerned that if the time period of the sleep mode test is extended to be much longer than 8 hours, the test may increase test burden.
DOE also considered other options to monitor for network initiated activities, which it has not proposed in today's rulemaking. One of these options would be to sample the power consumption at a rate of at least 1 sample per second and determine if the power samples continuously exceed the median power consumption by more than 10 percent of the median power for more than 15 minutes over the 4 to 8 hour sleep mode duration. However, DOE did not propose this approach for several reasons. First, any value that is selected for comparing the power samples to the median power (such as 10 percent in the setup discussed here) as well as the duration of time (15 minutes) may not encompass all possible scenarios of a transition from sleep to on mode during the sleep mode test. For example, if a network event increases power by 5 percent over a duration of 2 hours, this approach would not capture the transition from sleep to on mode even though the increase in power consumption would be significant. Another disadvantage of this approach is that periodic events that may be intended to occur during sleep mode would be falsely captured as a network initiated activity. For example, if a STB wakes up for 15 minutes every 2 hours while in sleep mode, this approach would capture it as a network event, while in fact it is a scheduled activity that should be part of the sleep mode power consumption measurement.
Another approach that DOE considered but has not proposed would be to test the STB in sleep mode for a very long period of time, such as 24 hours, so that the effect of a network initiated activity is mitigated over the long time period. However, DOE determined not to propose this approach because of the significant test burden to testing laboratories.
Finally, once all the conditions for performing the sleep mode test are met, DOE proposes that the STB shall be configured as proposed in Table 1 in section III.G.2 of the NOPR. The STB
DOE invites comment on all aspects of the proposed specification for setting up STBs for testing in the sleep mode of operation. In particular, DOE is interested in receiving comments on the proposed time duration of 4 to 8 hours over which the power consumption shall be measured and whether this duration should be increased or decreased to better represent STB power consumption in sleep mode. DOE also requests comment on the proposed scheduled recording requirement prior to placing the STB in sleep mode to measure its power consumption. DOE requests interested parties to provide data, if available, on the variation in power consumption of a STB when a recording is scheduled versus when it is not. Finally, DOE invites interested parties to comment on all aspects of the proposed method to address network initiated actions. DOE requests comment and data, if available, on the approach proposed in today's NOPR, the approaches that were considered but have not been proposed, as well as any other approach that stakeholders believe would best capture the transition of the STB from sleep mode to on mode due to network initiated activities.
DOE proposes to measure the STB power consumption in the manual sleep mode only for STBs that can transition from sleep mode to on mode within 30 seconds as defined in section III.D.5 of the NOPR. For STBs that cannot support sleep mode, DOE proposes that the power consumption in manual sleep mode, P
DOE is proposing to set P
DOE's proposed test procedure for determining the average power consumed by the STB in manual sleep mode is similar to the requirements specified in section 8.3.4 of the draft CEA–2043 standard for the sleep mode test procedure, with some minor differences. While DOE proposes that the STB shall operate in on mode for at least 5 minutes prior to placing the STB in sleep mode, the draft CEA–2043 standard does not specify any time requirement. DOE is proposing this requirement to ensure that all STBs that are tested are operated for the same duration of time prior to transitioning to sleep mode. DOE selected 5 minutes as the minimum proposed duration to operate the STB in on mode prior to placing it in sleep mode to ensure that the STB is fully functional before sleep mode is initiated, without increasing the test burden significantly. During internal testing (described in section III.G.4 of the NOPR), DOE observed that none of the tested STBs took longer than 5 minutes to turn on and enable functionality. DOE believes this requirement will ensure that there is consistency and repeatability between tests without imposing an undue burden on manufacturers.
Another difference between DOE's proposed test and the draft CEA–2043 standard is that the standard provides three different methods to verify that the STB has entered sleep mode and specifies that any of the three methods can be used for verification. These are: ensuring that no channel viewing or recording is supported on the STB; observing a sleep mode indicator on the STB, which may be found from the user manual; or, waiting for a predetermined period of time that is provided by the entity specifying the use of the CEA–2043 standard. Of these methods, DOE is proposing to use the first approach, which requires ensuring that no channel viewing or recording is supported on the STB. DOE expects this method to be the most common way for determining whether or not a STB has entered sleep mode. Not all STBs have a sleep mode indicator on the box and a standard predetermined wait time for all STBs could potentially be long or short for at least some of the STBs. An individual check on each STB guarantees that the STB has transitioned to sleep and that the measurement may be taken.
DOE invites interested parties to comment on the proposed requirements for testing STBs in manual sleep mode.
DOE proposes to perform an APD test as a second sleep mode test. The APD test is included in section 5.6.8 (Auto Power Down (APD) Test) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. To measure the power consumption of a STB that is capable of APD, DOE proposes the following test. Similar to the manual sleep test, once the STB is configured it shall be operated in the multi-stream test configuration (section III.G.5.b of the NOPR) for at least 5 minutes, if the STB supports multi-streaming. If the STB does not support multi-streaming, it shall be operated in the on (watch TV) configuration (section III.G.5.a of the NPR) for at least 5 minutes. Next, the “Power” button on the remote shall be pressed momentarily (for less than 1 second) only for any locally connected clients to place the connected clients into sleep mode, as defined in section III.D.5 of the NOPR. Additionally, if more than one display device is locally connected to the STB, the “Power” button on the remote for the additional
DOE's proposed test is similar to the manual sleep test discussed in section III.G.6.a of the NOPR; the only difference is that in the manual sleep mode test the STB is placed into sleep mode manually, while in the APD test the STB transitions to sleep mode because no user activity occurs over a certain time period. DOE's proposed test for APD also has some differences from the power mode transition—“on to APD” transition test described in section 8.5.1 of the draft CEA–2043 standard. First, the test specified in the draft CEA–2043 standard records both the power consumption to transition from on mode to APD and the time it takes to transition from on mode to APD. In DOE's proposed test procedure, however, DOE proposes a maximum time of 4 hours for the STB to transition to sleep mode through APD. DOE proposes that the STB should transition to sleep mode within 4 hours, or else the STB is not considered to support APD. DOE's proposed 4 hour time limit to transition to APD is adopted from the ENERGY STAR specification, which states that products that offer the APD feature should be shipped with APD enabled by default and with the APD timing set to engage after a period of inactivity less than or equal to 4 hours.
DOE considers the 4 hour time limit to be reasonable because it assumes that TV programming typically does not exceed 4 hours in duration. Therefore, if a viewer is watching such programming without sending any other commands to the STB over the duration of the program, the STB may transition to APD at the end of 4 hours without shutting off the viewer's program of interest. DOE also considered allowing the STB configuration to be changed from its default APD behavior to a shorter period for the purposes of testing APD as long as the default behavior was to power down within 4 hours. This would shorten the test time for the APD test; however, DOE does not propose this approach at this time as it may not be clear as to whether or not the default behavior meets the required 4 hour limit without exercising the test. DOE also considered a period less than 4 hours for the APD test, but preliminarily determined that any mandated time period that is shorter may have a negative impact on the consumer, because it may transition the STB to sleep mode while the consumer may still be viewing the programming.
DOE also considered scaling the APD, wherein the power consumption in APD would be dependent on the duration required for the STB to transition from on mode to sleep mode using the APD feature. For example, DOE currently proposes to assign 7 hours to the APD power consumption value while calculating the AEC metric as discussed in detail in section III.I of the NOPR. The proposed method to calculate AEC allocates these 7 hours to APD assuming it would require 4 hours to transition from on mode to sleep mode using the APD feature. DOE also considered allowing for a higher daily hour allocation for STBs that entered APD within 1 or 2 hours. However, DOE is concerned that proposing scaling of power consumption in APD in the test procedure may encourage manufacturers to use a very short default APD time period that might be intrusive to the consumer experience. This would hamper consumer adoption of APD because the STB may transition to sleep mode while a consumer is still viewing content. In such a situation, if the consumer disables the APD feature, the potential energy savings for APD enabled STBs may not be realized in the field. While DOE is not proposing a scaled APD power consumption value in today's NOPR, it requests stakeholders to comment on potential methods to scale APD and the advantages and disadvantages of scaling the power consumption in APD. DOE also requests comment on the impact of a scaling APD power consumption value on the proposed AEC metric (discussed in section III.I of the NOPR) and potential methods to account for a scaling APD value in the AEC metric.
Another difference between DOE's proposed test for APD and the test specified in the draft CEA–2043 standard is that DOE proposes the same configuration of connections for the STB as is used for all other tests. In contrast, the test specified in the draft CEA–2043 standard tests on an individual STB only. As discussed in section III.G.3 of the NOPR, DOE's proposed method matches the usage expected in a typical household. That is, all connected devices will be connected to the STB at all times, but the STB will be performing different functions at different times. Therefore, DOE has not changed the configuration in which the STB is tested for the APD test.
DOE invites interested parties to comment on the proposed test for determining the STB power consumption in APD. Particularly, DOE requests comment and data, if available, on the time required to transition to sleep mode and whether this time period should be set at a default value of 4 hours or adjusted during testing.
DOE's proposed test procedure for determining the power consumption of a STB in off mode is similar to the test procedure specified in section 8.4.1 of the draft CEA–2043 standard. The proposed off mode test is included in section 5.7 (Off Mode Power Measurement) of the proposed Appendix AA to Subpart B of 10 CFR Part 430. DOE proposes the following test to determine the off mode power consumption of the STB. If the STB supports off mode as defined in section III.D.5 of the NOPR, it shall be placed in off mode. If it does not support off mode as defined in section III.D.5, this test shall be skipped. Next, wait until the STB enters off mode and record the average power consumed by the STB for 2 minutes as P
DOE invites interested parties to comment on the proposed requirements for testing STBs in off mode.
DOE proposes to include a test to verify the time required to transition from sleep mode to on mode to help manufacturers to determine if the basic model contains a sleep mode per DOE's proposed regulatory definition (discussed in section III.D.5 of the NOPR). According to the definition proposed for sleep mode in section III.D.5 of the NOPR, a STB is considered to be in sleep mode only if it can transition from sleep mode to on mode within 30 seconds. While STB manufacturers may know the time it takes for the STB to transition, DOE is including this test in today's proposed test procedure in the event there is any uncertainty if the STB meets the sleep mode requirements. The proposed test procedure for determining the transition time from sleep mode to on mode is described below and has been adopted from section 8.5.5 of the draft CEA–2043 standard's Power Mode Transition—“Sleep to On” Transition test method. The proposed sleep to on mode transition time measurement test is
DOE proposes the following test to determine the sleep to on mode transition time. The test shall be used to verify two different cases. First, to determine the transition time from sleep to on mode for the manual sleep test, and second, to determine the transition time from sleep to on mode for the APD test. For the manual sleep test, the STB shall be placed into sleep mode according to the steps specified in the manual sleep mode test (described in section III.G.6.a of the NOPR). For the APD test, the STB shall be allowed to transition to sleep mode from on mode automatically, according to the steps specified in the APD test (described in section III.G.6.b of the NOPR). For both sleep mode tests, once the STB enters sleep mode, wait until the STB power consumption (P
DOE's proposed test to determine the transition time from sleep mode to on mode is similar to the sleep to on mode transition test specified in the draft CEA–2043 standard, with some additional specifications. First, DOE's proposed test specifies that the STB shall be placed into sleep mode in two different ways; manually using the STB remote for the manual sleep test, and automatically for the APD test as described in section III.G.6.b of the NOPR. DOE has included this requirement to ensure that the STB is placed into sleep mode according to both sleep mode tests proposed in this NOPR. Next, the draft CEA–2043 standard does not explicitly specify the amount of time a STB should be kept in sleep mode, but states that it should be for the predetermined stabilization time. Therefore, DOE is proposing that the STB shall remain in sleep mode for at least 5 minutes to stabilize the STB in sleep mode. DOE believes that 5 minutes is a sufficient period of time to ensure the STB has completed any remaining operations.
For the sleep to on mode transition time measurement test, DOE also proposes that if T
DOE requests comment on the proposed sleep to on mode transition time measurement test.
DOE is proposing the following sampling plan and rounding requirements for STBs to enable manufacturers to make representations of power consumption in the on, sleep, and off modes of operation. The represented power consumption values shall be used to calculate the AEC metric (discussed in section III.I of the NOPR), which shall be rounded according to the requirements proposed below. The sampling requirements are included in the proposed section 429.55 of Subpart B of 10 CFR Part 429.
DOE is proposing to keep the minimum sample size of STBs that shall be tested to determine rated power consumption at two, as defined in 10 CFR Part 429.11. However, manufacturers may choose to test a greater number of samples of a given basic model, if desired. Additionally, DOE is proposing that the rated value of power consumption in the on, sleep, and off modes of operation of a basic STB model for which consumers would favor lower power consumption values shall be greater than or equal to the higher of the mean of the sample or the 95 percent UCL of the true mean divided by 1.05. The equations below show the calculation of the mean and the UCL, respectively.
The mean of the sample is calculated as follows:
The UCL is calculated as follows:
Based on internal testing DOE conducted on STBs (described in section III.G.4 of the NOPR), DOE expects that the proposed test procedure can provide repeatability within 2 percent. Thus, DOE proposes to divide the UCL value by 1.05. In the case where the two samples differ by 2 percent, the UCL value will be 6 percent greater than the mean, and dividing by 1.05 would result in a value that is only 1 percent greater than the mean. Larger variances in samples would result in greater UCL values as dictated by the 95 percent confidence interval. DOE invites interested parties to comment on the proposed sampling plan.
DOE proposes that only the mean and the UCL of the samples tested shall be rounded, while all calculations to
Once the rated power consumption values for the on, sleep, and off modes are calculated and rounded, DOE proposes that these rated values shall be used to calculate the AEC metric, which is discussed in section III.I of the NOPR. For the rounding requirements of the AEC metric from the rated power consumption values, DOE proposes the following: If the AEC is 100 kWh or less, the value shall be rounded to the nearest tenth of a kWh. If the AEC is greater than 100 kWh, the value shall be rounded to the nearest kWh. The proposed rounding requirements for the AEC metric are also based on the accuracy requirements discussed in section III.F.2 of the NOPR. The proposed rounding requirements for the AEC metric are included in section 6 (Calculation of the Annual Energy Consumption of the Set-top Box) of the proposed Appendix AA to Subpart B of 10 CFR Part 430.
DOE requests comment on the proposed rounding requirements for representing the power consumption in each mode of operation and the rounding requirements for the AEC metric, which is calculated from the rated power consumption values.
DOE received several comments about the metric that should be used to determine the annual energy consumption of a STB. CA IOUs commented that while typical energy consumption (TEC) calculation is common practice for rulemakings, it would not work for STBs because these products do not fit the mold for typically regulated products. (CA IOUs, No. 0033 at p. 3) Instead, they suggested a metric that would focus on sleep power levels. In contrast, AT&T commented that consistency with the ENERGY STAR testing methodology was desirable, particularly because regulation is being layered onto an already-existing voluntary program. (AT&T, No. 0032 at p. 28) AT&T further commented that the user profile should reasonably reflect the current usage patterns of their customers. (
Based on the comments received and analyzing the current STB market, DOE proposes that individual power consumption values in each mode of operation and an annualized energy metric, the AEC metric, shall be the metrics from today's proposed test procedure. That is, the power consumption in on mode (P
The average power consumption in each mode of operation is determined as described in sections III.G.5 through III.G.7 of the NOPR. Once the individual average power consumption values are determined, the rated power consumption in each mode of operation is calculated using the sampling plan and statistics discussed in section III.H. The rated power consumption in each mode of operation is then rounded according to the rounding requirements which are also discussed in section III.H. Finally, the AEC metric shall be calculated as a weighted average of the rounded, rated power consumption values, based on the expected time spent by the STB in the respective mode. DOE believes including both the individual power consumption metrics and an annualized metric provides both voluntary and State programs with the flexibility they may wish to run their respective programs. However, DOE reiterates that all representations of STB energy use must be made in accordance with one of these four metrics resulting from the DOE test procedure and sampling plan and as required by applicable State and federal law.
While the draft CEA–2043 standard describes how to measure the power in each mode of operation for a STB, it does not offer a way to combine the values into a single AEC metric. Therefore, to create a metric, DOE studied the ENERGY STAR test method for STBs. DOE believes the TEC metric used by ENERGY STAR is conceptually similar to the AEC metric that DOE is proposing in today's NOPR.
TEC is defined by ENERGY STAR as, “a means for evaluating energy efficiency through a calculation of expected energy consumption for a typical user over a 1-year period, expressed in units of kilo-watt hours per year (kWh/year)”. The TEC metric uses a table of time coefficients to weight individual power measurements that are obtained under the proposed test procedure. DOE proposes to use the same approach, and to name the metric AEC. Like TEC, the AEC metric will produce values measured in kWh/year. The equation below presents this approach mathematically. Power values (
The main modes of operation measured by the proposed measurement tests are:
Inserting each of these modes into the above equation, results in the equation below for AEC.
To determine the time coefficients, DOE evaluated the ENERGY STAR specification time coefficients as a possible source for the usage weightings. Table 3 below lists the ENERGY STAR usage weightings. For the sake of simplicity, the table excludes the ENERGY STAR weightings for deep sleep, which DOE is not proposing to adopt. DOE does not propose to adopt the ENERGY STAR deep sleep weightings because it believes that the proposed power consumption in sleep mode would capture the STB's deep sleep power as well, for any STBs that have deep sleep capabilities. This is because DOE's proposed time period for the sleep mode test is 4 to 8 hours, compared to ENERGY STAR's time period of 5 minutes.
The values in the ENERGY STAR specification do not directly map to the modes DOE is proposing to test. In particular, there are no separate record and playback tests in DOE's proposed test procedure because these are bundled into a single multi-stream test as discussed in section III.G.5.b of this NOPR. However, DOE is proposing to adopt the ENERGY STAR weightings with the following changes: The 3 hour record time is combined with the 2 hour playback time into a single 5 hour multi-stream test. Further, the ENERGY STAR specification does not test the STB in off mode, and therefore does not assign any weighting to the STB power consumption in off mode. While DOE is proposing a test procedure to test the STB in off mode, it is not proposing any weighting to the STB power consumption in off mode because consumers typically do not turn off STBs. This is because often a STB cannot be turned off. Further, for STBs that can be turned off, the time required to start up a STB from off mode is lengthy and this discourages consumer adoption to turn off the STB. Table 4 describes the weightings DOE is proposing to use, which have been developed from the ENERGY STAR weightings.
While DOE is proposing the hour weightings listed in Table 4 above, it also considered an alternative approach to estimate the time coefficients for each mode by researching STB usage profiles. The time coefficients from STB usage profiles is discussed in the following paragraphs and presented in Table 5, but is not proposed in today's NOPR. DOE is including this discussion to obtain stakeholders' feedback on the different possibilities to determine the hour weightings and the preferred approach that should be used for the calculation of AEC.
To determine STB usage profiles, DOE researched publically available usage data. According to the most recent publically available data from the Nielson Company, Americans spent 146.75 hours per month, or approximately 5 hours per day, watching TV in the home.
Using these data, DOE assumed that for STBs without APD or multi-streaming capability, 40 percent remain in the on mode 24 hours per day. The remaining 60 percent spend 5 hours in on mode, and 19 hours in sleep mode. Time spent in APD and multi-streaming is zero. Therefore, the average STB that does not have APD or multi-streaming capability, is in on (watch TV) mode approximately 13 hours per day (40 percent × 24 hours + 60 percent × 5 hours) and sleep mode 11 hours per day (40 percent × 0 hours + 60 percent × 19 hours).
DOE researched market data from The Nielsen Company and found that STBs with DVR capability spend approximately 5 hours viewing live programming and approximately 2 hours recording content and playing it back. For STBs with multi-streaming functionality, DOE assumed that of the 5 hours that are spent viewing live programming, at least 3 hours are viewed on a display device that is connected to a client. That is, at least 3 hours of TV programming is viewed through the multi-streaming functionality of the STB. While DOE does not have any market data that describes the number of hours a STB streams content to a client because multi-streaming is new functionality, it assumed that an increasing amount of content shall be viewed through a client as the technology progresses. Summing the 2 hours for recording and playing back content with the 3 hours for viewing a channel through a client, DOE
To determine the number of hours a STB with APD functionality would spend in APD, DOE assumed that users that place their STB into sleep mode manually when not being used do not get any benefit from APD. APD functionality is only triggered if the STB is left in on mode for a long period of time. DOE has assumed that, for STBs that would otherwise be left in on mode all day, the presence of APD implied that the STB enters sleep mode via APD for 12 hours per day. DOE does not have data on the actual amount of time a STB is in sleep mode via APD and requests stakeholders to submit data, if available. The assumption of 12 hours per day is an estimate based on the expectation that the STB is likely to enter sleep mode via APD during times of light TV use, such as overnight and/or during mid-day. Based on these assumptions, the average STB that has APD but not multi-streaming capabilities is in APD approximately 5 hours per day (40 percent × 12 hours + 60 percent × 0 hours). Thus, DOE expects that STBs that enable APD by default would be in sleep via APD 5 hours per day instead of being in the on (watch TV) mode.
Finally, for STBs that are capable of both multi-streaming and APD functionality and are placed into sleep mode, DOE again assumed that the STB spends 5 hours per day in multi-streaming functionality and 2 hours per day in on (watch TV) mode. For STBs that always remain in on mode, DOE assumed that the total time spent in APD is 10 hours. This assumption is made based on the previous assumption that a STB that is not capable of multi-streaming spends a total of 12 hours per day in APD. That is, for STBs that are not placed into sleep mode manually, the viewer watches content on a TV for approximately 5 hours per day and of the remaining 19 hours, the STB spends approximately 12 hours per day in APD. Therefore, for a STB that has multi-streaming functionality, the viewer watches, records, or plays back content for approximately 7 hours per day and of the remaining 17 hours, the STB spends approximately 10 hours per day in APD. For STBs that are not placed into sleep mode, the remaining 9 hours per day are spent in on (watch TV) mode. That is, DOE assumed that an average STB spends approximately 5 hours per day in on (watch TV) mode (40 percent × 9 hours per day + 60 percent × 2 hours per day); approximately 10 hours per day in sleep mode (40 percent × 0 hours per day + 60 percent × 17 hours per day); approximately 5 hours in multi-streaming functionality; and, approximately 4 hours per day in APD (40 percent × 10 hours per day + 60 percent × 0 hours per day).
The resulting estimates for time coefficients are presented in Table 5 below as alternative weightings to the proposed AEC metric.
DOE has proposed the hour weightings based on the ENERGY STAR specification (Table 4) in today's NOPR and requests comment on the proposed weightings and calculation of AEC. DOE also requests comment on the alternative hour weightings (Table 5) that were developed by researching STB usage profiles. In particular, DOE seeks feedback on the time coefficients for AEC and whether one approach is preferred over the other. The proposed AEC calculation is included in section 6 (Calculation of the Annual Energy Consumption of the Set-top Box) of the proposed Appendix AA to Subpart B of 10 CFR Part 430).
The Office of Management and Budget has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's proposed rule under the provisions of the Regulatory Flexibility Act (RFA) and the policies and procedures published on February 19, 2003. The proposed rule prescribes the test procedure to measure the power consumption of STBs in the on, sleep, and off modes of operation and the calculation of an annualized energy metric, AEC, as a weighted average of the individual power consumption values. The initial regulatory flexibility analysis (IRFA) below discusses the potential impacts of the test procedure on small businesses and alternatives that would minimize the impact on small businesses consistent with statutory objectives.
(1) Description of the reasons why action by the agency is being considered.
A description of the reasons why DOE is considering this test procedure are
(2) Succinct statement of the objectives of, and legal basis for, the proposed rule.
The objectives of and legal basis for the proposed rule are stated elsewhere in the preamble and not repeated here.
(3) Description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.
The Small Business Administration (SBA) has set a size threshold for manufacturers of STBs that defines those entities classified as “small businesses” for the purposes of the RFA. DOE used the SBA's small business size standards to determine whether any small manufacturers of STBs would be subject to the requirements of the rule. 65 FR 30836, 30849 (May 15, 2000), as amended at 65 FR 53533, 53545 (Sept. 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at
Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing are classified under NAICS 334220. SBA sets a threshold of 750 employees or less for an entity to be considered a small business for this category.
Audio and Video Equipment Manufacturing are classified under NAICS 334310. SBA sets a threshold of 750 employees or less for an entity to be considered a small business for this category.
Cable and Other Subscription Programming are classified under NAICS 515210. The SBA threshold to qualify as a small business for this category requires that the average annual receipts should be $15,000,000 or less.
NAICS code 334220—Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing covers manufacturers of all products except OTT STBs. Because some manufacturers of OTT STBs were not listed under NAICS code 334220, DOE added consideration of small business manufacturers listed under NAICS code 334310—Audio and Video Equipment Manufacturing. Additionally, DOE included a search for small businesses listed under NAICS code 515210—Cable and Other Subscription Programming as some businesses in this category would also be subject to today's rulemaking based on the definition of manufacturer discussed in section III.D.3 of the NOPR.
To determine the number of small business manufacturers of STBs in each NAICS code category, DOE compiled a preliminary list of potential small business manufacturers of STBs by searching the Hoovers
(4) Description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule.
To determine the costs of the proposed test procedure on small STB manufacturers, DOE estimated the cost of testing two STBs, the minimum required sample size as discussed in section III.H of this NOPR. DOE estimated a one time setup cost and a labor cost for performing the tests. The labor cost of testing was then multiplied over the estimated number of basic models produced by a small manufacturer. The estimated cost of testing is discussed in further detail below.
For the initial setup for testing STBs, manufacturers require power supply, power meter, cables to connect equipment, and hardware and software instrumentation to measure the power consumption of the STB. DOE estimated an approximate cost of $4,000 for the power supply and $3,000 for the power meter. Further, the equipment cost for cables, monitors, and software was estimated at approximately $3,100 for a total initial setup cost of approximately $10,100.
DOE then estimated the time required to test each basic model of STB based on conservative estimates of the duration proposed for each test in the on, sleep, and off modes of operation. DOE's estimates assume the longest proposed duration for the tests in sleep mode (that is, 8 hours) and are as follows: 1 hour to set up and warm up the STB; half an hour each to perform the on (watch TV) test and multi-stream test of the STB in on mode; 8 hours for the manual sleep test; 12 hours to test the STB in APD; and, half an hour to test the STB in off mode. The total number of hours required to test one STB would be 22.5 hours. For testing two STBs by an electronics engineer whose rate is $40.98 per hour,
DOE used company reports from Dunn & Bradstreet to estimate the revenue for the five small business manufacturers identified. DOE then applied an industry weighted average research and development estimate to determine the budget for research and development for each small business. The average revenue of the five small business manufacturers is approximately $21.8M and the average budget for research and development is approximately $2.02M, or 9.4 percent of revenues. Relative to the average revenue and average research and development budget per small business manufacturer, the total testing cost in the first year is approximately $17,100. This cost is less than 0.1 percent of the average revenue and approximately 0.1 percent of the average research and development budget; that is, DOE believes the cost of testing STBs is relatively small. Therefore, DOE has tentatively concluded that testing costs would not be significant enough to pose a substantial burden on small manufacturers. DOE requests comments on its analysis of burden to small businesses for testing STBs according to the proposed test procedure.
(5) Relevant Federal rules which may duplicate, overlap or conflict with the proposed rule.
This proposed rule would, if adopted, establish a test procedure for STBs. DOE is not aware of any other Federal rules that establish such a procedure or would otherwise duplicate, overlap or conflict with this test procedure.
(6) Description of any significant alternatives to the proposed rule.
DOE considered a number of existing and under-development industry standards that measure the energy consumption of STBs to develop the proposed test procedure in today's rulemaking as discussed in section III.C of the NOPR. Of the standards reviewed, today's proposed rule is primarily based on the draft CEA–2043 standard because DOE believes it provides most of the information required for testing STBs and expects this standard to be adopted across industry to test the power consumption of STBs. DOE seeks comment and information on the need, if any, for alternative test methods that, consistent with the statutory requirements, would reduce the economic impact of the rule on small entities. DOE will consider any comments received regarding alternative methods of testing that would reduce economic impact of the rule on small entities. DOE will consider the feasibility of such alternatives and determine whether they should be incorporated into the final rule.
There is currently no information collection requirement related to the test procedure for STBs. In the event that DOE proposes to require the collection of information derived from the testing of STBs according to this test procedure, DOE will seek OMB approval of such information collection requirement.
DOE established regulations for the certification and recordkeeping requirements for certain covered consumer products and commercial equipment. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping was subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement was approved by OMB under OMB Control Number 1910–1400. Public reporting burden for the certification was estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
As stated above, in the event DOE proposes to require the collection of information derived from the testing of STBs according to this test procedure, DOE will seek OMB approval of the associated information collection requirement. DOE will seek approval either through a proposed amendment to the information collection requirement approved under OMB control number 1910–1400 or as a separate proposed information collection requirement.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this proposed rule, DOE proposes a test procedure for STBs that it expects will be used to develop and implement any future energy conservation standard. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
Today's regulatory action to establish a test procedure for measuring the energy consumption of STBs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95–91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The proposed rule incorporates the following commercial standards: CEA–770.3–D, “High Definition TV Analog Component Video Interface;” HDMI Specification Version 1.0, “High-Definition Multimedia Interface Specification;” ISO/IEC 7816–12, “Identification cards—Integrated circuit cards—Part 12: Cards with contacts—USB electrical interface and operating procedures;” ANSI/SCTE 28 2007, “HOST–POD Interface Standard;” ANSI/SCTE 55–1 2009, “Digital Broadband Delivery System: Out of Band Transport Part 1: Mode A;” and ANSI/SCTE 55–2 2008, “Digital Broadband Delivery System: Out of Band Transport Part 2: Mode B”. These standards would be incorporated by reference in 10 CFR 430.3 (Materials incorporated by reference). The incorporated standards are respectively used to describe Component Video, HDMI, POD, smart card, and equipment that communicate with the STB. The Department has evaluated these standards and is unable to conclude whether these industry standards fully comply with the requirements of section 32(b) of the FEAA, (i.e., that they were developed in a manner that fully provides for public participation, comment, and review). DOE will consult with the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.
The time, date and location of the public meeting are listed in the
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
Submitting comments via regulations.gov. The regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.
DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE requests comment on narrowing the scope of today's rulemaking to STBs and excluding network equipment. See section III.B for further detail.
2. DOE requests comment on using the draft CEA–2043 standard as the basis for today's proposed test procedure for STBs. See section III.C for further detail.
3. DOE requests comment on the proposed definition of STBs. In particular, DOE requests comment about whether the proposed definition is specific enough to exclude non-STB devices such as gaming consoles and smartphones, yet broad enough to cover traditional STBs and newer boxes. DOE also requests comment on the proposed definitions for direct video connection, HDMI, Component Video, S-Video, and Composite Video. See section III.D.1 for further detail.
4. DOE invites comment on the discussion of basic model as it pertains to the STB rulemaking. See section III.D.2 for further detail.
5. DOE invites interested parties to comment on the proposed definitions for the STB test procedure NOPR including the definitions for content provider and multi-stream and clarifying information included for the definitions of DVR, display device, and HNI. For the definition of DVR, DOE requests comment on the proposed approach of not testing STBs with external storage as a DVR. If DOE does consider testing the STB with an external storage device as DVR in response to comments, DOE specifically requests comments on the proper external storage device to use. See section III.D.4 for further detail.
6. DOE invites interested parties to comment on the proposed definitions of on, sleep, and off modes of operation of a STB. In particular, DOE requests comment, and data, if available, on the proposed requirement to transition from sleep mode to on mode within 30 seconds, or whether a different maximum allowable transition time should be considered. See section III.D.5 for further detail.
7. DOE requests comment on the proposed requirements for setting up the STB as installed in a consumer's home for testing. See section III.E.1 for further detail.
8. DOE requests comment on the proposed test room conditions for testing STBs, including air temperature, air speed, and thermally non-conductive test surface requirements. In particular, DOE invites interested parties to comment on the proposed air speed requirement of 0.5 m/s and whether this requirement should be relaxed to a higher value or removed altogether. See section III.E.2 for further detail.
9. DOE invites interested parties to comment on the proposed input power requirements for testing STBs. See section III.F.1 for further detail.
10. DOE requests comment on the proposed requirements for the accuracy of measuring the power consumption of STBs. See section III.F.2 for further detail.
11. DOE invites interested parties to comment on the recommended test equipment to measure the AC line current, voltage, and frequency. See section III.F.3 for further detail.
12. DOE requests comment on the proposed power meter instrumentation requirements such as, crest factor, bandwidth, frequency response, and sampling interval requirements. See section III.F.4 for further detail.
13. DOE requests comment on the proposed calibration requirements for testing STBs. See section III.F.5 for further detail.
14. DOE requests comment on the proposed requirements for testing STBs that require an HNI connection. Particularly, DOE requests comment on the proposed order in which HNI connections shall be used, that is, MoCA, followed by HPNA, followed by Wi-Fi, and finally any other connection. DOE also requests comment about whether there are any additional HNI connections that should be included and the order of preference in which they should be included. See section III.F.6.a for further detail.
15. DOE invites interested parties to comment on the proposed setup requirements for STBs requiring broadband service. Particularly, DOE requests comment on the clarification that a service provider network connection should take precedence over a broadband connection for STBs that are designed to operate on either connection. See section III.F.6.b for further detail.
16. DOE requests comment on the proposed exclusion of external equipment power consumption from the power consumption of the STB itself. Further, if stakeholders suggest that the power consumption of external equipment be tested and measured, DOE requests comment on the test method and standard configuration that should be used to test the external equipment. See section III.F.6.c for further detail.
17. DOE requests comment on the proposed exclusion of power consumption of the input signal equipment from the power consumption of the STB. Further, DOE requests comment on the clarification that such equipment should not supply any power to the STB. DOE also requests feedback on the potential use of a DC block to prevent power transfer to and from any input signal equipment. Finally, if stakeholders indicate that this equipment should be tested and the power consumption be measured, DOE requests comment on the test method and standard configuration that should be used to test this equipment. See section III.F.6.d for further detail.
18. DOE invites interested parties to comment on the proposed requirements for service provider network
19. DOE requests comment on the proposed warm-up time for stabilizing the STB. See section III.G.1 for further detail.
20. DOE invites interested parties to comment on all aspects of the proposed configuration for testing STBs in the on, sleep, and off modes of operation. DOE is especially interested in receiving comments on the proposed connections for the test configuration. DOE also invites comments on the proposed order of preference for connecting a display device to the STB. See section III.G.2 for further information.
21. DOE requests comment on the proposed requirements for streaming an appropriate SD or HD stream to a display device. DOE also invites comment on the proposed requirement to record content on a DVR integrated into the STB. Finally, DOE requests comment on the proposed requirements to stream content to a connected client. Specifically, DOE requests comment on the proposed hierarchy of content to stream to a connected client, which is a recorded stream followed by a channel. See section III.G.3 for further detail.
22. DOE requests comment on the proposed methods to determine the average power consumption of the STB in each mode of operation. See section III.G.4 for further detail.
23. DOE invites comment on all aspects of the proposed approach for testing the STB in the on mode including the proposed time period of 2 minutes for all tests in the on mode. The on mode measurement test includes the on (watch TV) test and multi-stream test. See section III.G.5 for further detail.
24. DOE requests comment on the proposed method for the on (watch TV) test. In particular, DOE requests comment on the approach of using both, an SD and HD stream for testing HD STBs. DOE also requests interested parties to comment, and provide data if available, on the percentage of streams that are available in SD and HD for HD STBs, and whether the proposed equation for calculating P
25. DOE requests comment on the approach of using a single multi-stream test as well as the test procedure to test STBs with multi-streaming capability. DOE is especially interested in receiving comments on the proposed priority list for enabling streams for testing STBs with multi-streaming capability. DOE also seeks feedback on whether the number of additional streams that should be enabled should be other than three and the reasons for enabling a different number of streams. DOE requests comment on the possibility of including a maximum power test, which would test the STB such that the maximum number of streams is enabled. If included, DOE requests comment on the weighting that should be applied for the maximum streaming test in the calculation of the AEC. See section III.G.5.b for further detail.
26. DOE requests comment on all aspects of the proposed specification for setting up STBs for testing in sleep mode. In particular, DOE invites comment on the proposed duration (4 to 8 hours unless network activities prompt a longer time period) over which the power consumption of the STB shall be measured and averaged, and whether this duration should be increased or decreased to better represent the STB power consumption in sleep mode. See section III.G.6 for further detail.
27. DOE also requests comment on the proposed scheduled recording requirement prior to placing the STB in sleep mode to measure its power consumption. DOE requests interested parties to provide data, if available, on the variation in power consumption of a STB when a recording is scheduled versus when it is not scheduled. See section III.G.6 for further detail.
28. DOE invites interested parties to comment on all aspects of the proposed method to address network initiated actions. DOE requests comment and data, if available, on the approach proposed in today's NOPR, the approaches that were considered but have not been proposed, as well as any other approach that stakeholders believe would best capture the transition of the STB from sleep mode to on mode due to network initiated activities. See section III.G.6 for further detail.
29. DOE invites comments on the proposed requirements for testing STBs in manual sleep mode. See section III.G.6.a for further detail.
30. DOE requests comment on the proposed test for determining the STB power consumption in APD. In particular, DOE requests comment and data, if available, on the time required to transition to sleep mode from on mode and whether this time period should be set at a default value of 4 hours or adjusted during testing. DOE also requests comment on potential methods to scale APD and the advantages and disadvantages of scaling the power consumption in APD. Finally, DOE requests comment on potential methods to account for a scaling APD value in the AEC metric. See section III.G.6.b for further detail.
31. DOE invites interested parties to comment on the proposed requirements for testing STBs in off mode. See section III.G.7 for further detail.
32. DOE requests comment on the proposed sleep to on mode transition time measurement test. See section III.G.8 for further detail.
33. DOE requests comment on the proposed sampling plan and rounding requirements for making representations of the STB power consumption in each mode of operation. DOE also requests comment on proposed rounding requirements for AEC, which is calculated from the rated power consumption values. See section III.H for further detail.
34. DOE requests comment on the proposed calculation of the AEC metric for determining the annual energy consumption of the STB. DOE requests comment on the proposed hour weightings that were developed based on the ENERGY STAR specification or whether the alternate hour weightings should be considered instead. DOE also invites comment and data, if available, on the time coefficients for each mode of operation to calculate the AEC. See section III.I for further detail.
35. DOE requests comment on the analysis of the burden to small businesses for testing STBs according to the proposed test procedure. DOE also requests comment on the expected number of small business manufacturers of STBs. See section IV.B for further detail.
36. DOE requests additional information and comment for the development of a test procedure for LNBs, ONTs, ODUs, or other infrastructure devices and the standard configuration in which these devices should be tested, if stakeholders support developing a test procedure for them. See section III.B for further detail.
The Secretary of Energy has approved publication of this proposed rule.
Confidential business information, Energy conservation, Household appliances, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business
For the reasons stated in the preamble, DOE is proposing to amend parts 429 and 430 of Chapter II of Title 10, Subchapter D of the Code of Federal Regulations to read as set forth below:
42 U.S.C. 6291–6317.
(2) For each basic model of set-top box, samples shall be randomly selected and tested to ensure that—
(i) The represented value of power consumption in the on, sleep, and off modes of operation of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
and
(ii) Reserved.
(3) The represented value of the annual energy consumption shall be calculated from the rated power consumption in the on, sleep, and off modes of operation according to the calculation provided in section 6 of Appendix AA of Subpart B of 10 CFR part 430.
(b)
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
The additions read as follows:
(i)
(1) CEA–770.3–D, High Definition TV Analog Component Video Interface, approved February 2008; IBR approved for § 430.2.
(2) [Reserved]
(m)
(1) HDMI Specification Version 1.0, High-Definition Multimedia Interface Specification, Informational Version 1.0, approved September 4, 2003; IBR approved for § 430.2.
(2) [Reserved]
(o)
(3) ISO/IEC 7816–12, Identification cards—Integrated circuit cards—Part 12: Cards with contacts—USB electrical interface and operating procedures, approved October 1, 2005; IBR approved for appendix AA to subpart B.
(r)
(1) ANSI/SCTE 28 2007 (“ANSI/SCTE 28”), American National Standard, HOST–POD Interface Standard; IBR approved for Appendix AA to Subpart B.
(2) ANSI/SCTE 55–1 2009 (“ANSI/SCTE 55–1”), American National
(3) ANSI/SCTE 55–2 2008 (“ANSI/SCTE 55–2”), American National Standard, Digital Broadband Delivery System: Out of Band Transport Part 2: Mode B; IBR approved for appendix AA to subpart B.
1.
2.
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.
2.9.
2.10.
2.11.
2.12.
2.13.
2.14.
2.15.
2.16.
2.17.
2.18.
2.19.
2.20.
2.21.
2.22.
2.23.
2.24.
2.25.
2.25.1.
2.25.2.
2.25.3.
3.
3.1.
3.1.1. For STBs that require subscription to a service, select the simplest available video subscription that supports all functionality specified in this test procedure (example: HD streaming, multi-stream, DVR, etc.). That is, select a subscription with TV services only; services with non-video capability, such as telephony, shall not be selected.
3.1.2. If the STB can be installed by the consumer per the manufacturer's instructions without the service of a technician, then install and setup the STB according to the instructions provided in the user manual shipped with the unit. Setup the STB using only those instructions in the user manual. Setup is considered complete once these instructions are followed.
3.1.3. If the STB must be installed by a technician per the manufacturer's instructions, then it shall be setup as installed by the technician using this test procedure. All steps that a technician would follow when installing a STB for use in a consumer residence should be followed. Information about each of the steps that were performed to setup the STB by a technician shall be recorded and maintained by the manufacturer pursuant to 10 CFR Part 429.71.
3.2.
3.2.1. The air speed surrounding the STB shall be less than or equal to 0.5 meters per second (m/s).
3.2.2. The ambient temperature shall be maintained at 23 °C ± 5 °C for the duration of the test.
3.2.3. The STB shall be tested on a thermally non-conductive surface.
4.
4.1.
4.1.1. An input voltage of 115 volts ± 1 percent.
4.1.2. A frequency of 60 hertz ± 1 percent.
4.1.3. Total harmonic distortion of the supply voltage shall not exceed 2 percent up to and including the 13th harmonic.
4.1.4. The peak value of the test voltage shall be between 1.34 and 1.49 times its rms value. That is, the crest factor shall be between 1.34 and 1.49.
4.2.
4.2.1. 0.01 W or better for power measurements of 10 W or less;
4.2.2. 0.1 W or better for power measurements of greater than 10 W and up to 100 W; and
4.2.3. 1 watt or better for power measurements of greater than 100 W.
For equipment connected to more than one phase, the power measurement instrument shall be equipped to measure the total power of all of the phases connected.
4.3.
4.3.1. An oscilloscope with a current probe to monitor AC line current waveform, amplitude, and frequency.
4.3.2. A true rms voltmeter to verify voltage at the input of the STB.
4.3.3. A frequency counter to verify frequency at the input of the STB.
4.4.
4.4.1.
4.4.1.1. Accuracy and resolution in accordance with section 4.2.
4.4.1.2. Sufficient bandwidth.
4.4.1.3. A crest factor rating that is appropriate for the waveforms being measured and capable of reading the available current waveform without clipping the waveform. The peak of the current waveform measured during sleep and on modes for the STB shall be used to determine the crest factor rating and the current range setting. The full-scale value of the selected current range multiplied by the crest factor for that range shall be at least 15 percent greater than the peak current to prevent measurement error.
4.4.2.
4.4.3.
4.4.4.
4.5.
4.6.
4.6.1.
1. Multimedia over Coaxial Alliance (MoCA);
2. Home PNA Alliance (HPNA);
3. Wi-Fi (802.11); or
4. Other HNI connection.
4.6.2.
4.6.3.
4.6.4.
4.6.5.
5.
5.1.
5.2.
5.2.1. The display device and client setup is described in Table 1 of this appendix. Based on the capability of the STB, the appropriate number of display devices and clients shall be connected.
5.2.2.
1. HDMI
2. Component Video
3. S-Video
4. Composite Video
5. Other video interface
5.2.3.
5.3.
The following section is provided as guidance when conducting the various on, sleep, and off mode tests. When multiple streams are enabled, different content shall be selected to output to a display device, record on a DVR integrated into the STB, and stream to a connected client.
5.3.1.
5.3.2.
5.3.3.
5.3.3.1. Stream with recorded content. That is, previously recorded content shall be viewed on a display device connected to a client.
5.3.3.2. Stream with channel content. That is, a channel (SD stream for an SD client and HD stream for an HD client) shall be viewed on the connected display device. For clients that do not support channels, select an appropriate SD or HD test stream and view the content as indicated.
5.3.3.3. Other streaming option. If the streams from sections 5.3.3.1 and 5.3.3.2 are not supported, use another stream that is available.
5.4.
5.4.1. For all tests in the on, sleep, and off modes (sections 5.5, 5.6, and 5.7), the average power shall be calculated using one of the following two methods:
5.4.1.1. Record the accumulated energy (E
5.4.1.2. Record the average power consumption (P
5.4.2. The rated power consumption in the on, sleep, and off modes shall be determined as follows:
5.4.2.1. Apply the sampling and statistical requirements described in 10 CFR part 429.55 to the average power consumption values in each mode of operation.
5.4.2.2. The resulting rated power consumption value, for each mode of operation, shall be rounded according to the accuracy requirements specified in section 4.2.
5.5.
5.5.1. The time period for each test in the on mode (sections 5.5.2 and 5.5.3), T
5.5.2.
5.5.2.1.
5.5.2.1.1. Configure the STB as specified in section 5.2.
5.5.2.1.2. Of all the connections to the STB, only one stream shall be enabled and shall stream to a display device. No additional streams shall be sent to other connected display devices and/or clients.
5.5.2.1.3. If supported, select an SD channel and view on the connected display device. For STBs using a content provider that does not support channels, select an appropriate SD test stream and view the content as indicated.
5.5.2.1.4. Begin on mode power consumption measurement and record the average power consumption with the SD source content for 2 minutes as P
5.5.2.2.
5.5.2.2.1. If the STB supports HD streaming, repeat the test in section 5.5.2 using HD content instead of SD content and record this value as P
5.5.2.3.
5.5.3.
5.5.3.1. Perform this test only if the STB supports multi-streaming as defined in section 2.14.
5.5.3.2. Configure the STB as specified in section 5.2 of this appendix. Table 2 of this
5.5.3.3. All streams required for the feasible STB configuration shall be enabled using appropriate content as described in section 5.3 of this appendix. If the STB or connected client(s) support HD streaming, an HD stream shall be used, otherwise an SD stream shall be used.
5.5.3.4. Begin the multi-stream mode power consumption measurement and record the average power consumption for 2 minutes as P
5.6.
5.6.1. Only run the test for each mode if the STB supports this functionality, as defined in section 2.25.2. If the STB cannot be placed in sleep mode as defined in section 2.25.2 using a remote control, then this test shall be skipped.
5.6.2. The time period for each test in the sleep mode (sections 5.6.7 and 5.6.8 of this appendix), T
5.6.3. Assure no recording events are scheduled over the entire duration of the test, including the time prior to transitioning to sleep mode. If the STB is capable of scheduling a recording, schedule a recording 24 or more hours into the future.
5.6.4. Assure no service provider network initiated actions requiring a transition to on mode occur during the 4 to 8 hour time period that the STB is in sleep mode (example: Content downloads or software updates). If a service provider network initiated activity cannot be disabled, then this shall be monitored as follows:
5.6.4.1. The power consumption shall be sampled at a rate of at least 1 sample per second.
5.6.4.2. For input powers less than or equal to 1 W, a linear regression through all power readings shall have a slope of less than 10 milli-watts per hour (mW/h). If the slope of the linear regression is equal to or greater than 10 mW/h the test shall either be restarted or extended until a slope of less than 10 mW/h is achieved.
5.6.4.3. For input powers greater than 1 W, a linear regression through all power readings shall have a slope of less than 1 percent of the measured input power per hour. If the slope of the linear regression is equal to or greater than 1 percent the test shall either be restarted or extended until a slope of less than 1 percent is achieved.
5.6.4.4. If the test is extended beyond 8 hours to achieve the desired condition, the average power consumption over the entire test duration shall be reported for P
5.6.5. Assure no local area network initiated actions requiring a transition to on mode are scheduled during the 4 to 8 hour time period that the STB is in sleep mode (example: Mobile applications or other network devices requesting service).
5.6.6. Configure the STB as specified in section 5.2 of this appendix.
5.6.7.
5.6.7.1. If the STB does not support sleep mode, then set P
5.6.7.2. For STBs that are capable of transitioning to sleep mode, operate the STB in the multi-stream test configuration (section 5.5.3 of this appendix) for at least 5 minutes if the STB supports multi-streaming. If the STB does not support multi-streaming, operate the STB in the on (watch TV) configuration (section 5.5.2 of this appendix) for at least 5 minutes.
5.6.7.3. Momentarily (<1 second) press the “Power” button on the remote for the STB, and each locally connected display device and client, to place the STB, and each locally connected display device and client, into sleep mode as defined in section 2.25.2. Some STBs may require a short period of time before they actually enter a lower power consumption mode.
5.6.7.4. Do not use (or move) the STB remote control after section 5.6.7.3 of this appendix.
5.6.7.5. Ensure that the STB and each locally connected client has entered sleep mode by verifying no channel viewing or recording is supported on the STB and client(s). That is, there shall be no video output on the connected display device(s) from the STB and any locally connected clients.
5.6.7.6. Begin manual sleep mode power consumption measurement and record the average power consumed as P
5.6.8.
5.6.8.1. Perform this test only if the STB supports auto power down as defined in section 2.2 of this appendix.
5.6.8.2. If the STB supports multi-streaming, operate the STB in the multi-stream configuration (section 5.5.2 of this appendix) for at least 5 minutes. If the STB does not support multi-streaming, operate the STB in the on (watch TV) configuration (section 5.5.2 of this appendix) for at least 5 minutes.
5.6.8.3. Momentarily (<1 second) press the “Power” button on the remote only for any locally connected clients to place the clients into sleep mode as defined in section 2.25.2. Some clients may require a short period of time before they actually enter a lower power consumption mode. If more than one display device is locally connected to the STB, press the “Power” button for the additional locally connected display devices and stream content to one display device only.
5.6.8.4. Do not use (or move) the STB remote control after section 5.6.8.3 of this appendix.
5.6.8.5. Allow the STB to operate until the STB enters sleep mode or until 4 hours have elapsed, whichever occurs first.
5.6.8.6. If 4 hours have elapsed and the STB is not in sleep mode, then the unit is not considered to support APD and P
5.6.8.7. Once the STB is in APD, begin power consumption measurement in APD and record the average power consumed as P
5.7.
5.7.1. Place the STB in off mode. If the STB cannot be placed off mode as defined in section 2.25.3, then this test shall be skipped.
5.7.2. Wait until the STB enters off mode.
5.7.3. Record the average power for 2 minutes as P
5.8.
5.8.1. For the manual sleep test, place the STB in sleep mode according to the steps specified in sections 5.6.7.2 through 5.6.7.5 of this appendix. For the APD test, place the STB in sleep mode according to the steps
5.8.2. Once the STB enters sleep mode, wait until the STB power consumption reaches P
5.8.3. After the STB power consumption reaches the desired value as specified in section 5.8.2 of this appendix, remain in sleep mode for at least 5 minutes.
5.8.4. Momentarily (<1 second) press the “Power” button on the remote or front panel of the STB.
5.8.5. Begin the elapsed time measurement.
5.8.6. Stop elapsed time measurement when the STB enters on mode. It shall be ensured that the STB has entered on mode when it supports channel viewing on the connected display device or client.
5.8.7. The duration to transition from sleep mode to on mode shall be recorded as T
6.
6.1. The AEC of the STB shall be calculated using the rated values of power consumption in the on, sleep, and off modes of operation (see section 5.4.2 for calculation of rated power consumption values).
6.2. Compute the AEC of the STB using the equation below. The computed AEC value shall be rounded as follows:
6.2.1. If the computed AEC value is 100 kWh or less, the rated value shall be rounded to the nearest tenth of a kWh.
6.2.2. If the computed AEC value is greater than 100 kWh, the rated value shall be rounded to the nearest kWh.