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Agricultural Marketing Service, USDA.
Final rule.
This rule revises the United States Standards for Grades of Almonds in the Shell. These standards are issued under the Agricultural Marketing Act of 1946. The Agricultural Marketing Service (AMS) is revising the standards by changing the determination of internal defects from count to weight. These revisions will align the inspection procedures for incoming inspections (based on the marketing order) and outgoing inspections (based on the standards). These changes will promote greater uniformity and will provide consistency with current marketing practices.
Effective April 8, 2013.
Lindsay Mitchell, Standardization Branch, Specialty Crops Inspection (SCI) Division, (540) 361-1127 or 1150. The United States Standards for Almonds in the Shell are available through the SCI Division Web site at:
This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of the action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The final rule will revise the United States Standards for Grades of Almonds in the Shell (standards) that were issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627). Standards issued under the 1946 Act are voluntary.
Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers have been defined as those having annual receipts of less than $750,000. There are approximately 53 handlers of almonds that would potentially be affected by the changes set forth in this rule and approximately 6,500 producers of almonds. Information provided by the Almond Board of California (ABC) indicates that approximately 36 percent of the handlers would be considered small agricultural service firms. According to data reported by the National Agricultural Statistics Service (NASS), the two-year average crop value for 2008-09 and 2009-10 was $2.566 billion. Dividing that average by 6,500 producers yields average estimated producer revenues of $394,769, which suggests that the majority of almond producers would be considered small entities according to the SBA's definition.
The California almond bearing acreage increased approximately 9 percent between 2008 and 2010, from 680,000 to 740,000 acres. Approximately 1.643 billion pounds (shelled basis) of almonds were produced during the 2009-10 season. More than two thirds of California's almond crop is exported to approximately 90 countries worldwide, and comprises nearly 80 percent of the world's almond supply.
The changes herein will have the effect of improving grading methods and accuracy without adding any additional financial burden to buyers or sellers of almonds in the shell. This rule changes one step in a multi-step grading procedure (7 CFR 51.2080) and changes the method of determining one of five tolerances used in determining grade (7 CFR 51.2075(b)(5)). The outgoing inspection procedure will become more closely aligned with incoming inspection by shifting the basis (from count to weight) in the standards for determining the percentage of internal defects in an inspection sample of almonds in the shell.
In addition to simplifying the grading process, the weight basis would yield a more accurate percentage of internal defects. With a count method, a defect such as shriveling would result in a particular kernel being counted as one of the 300 kernels in the sample with internal defects, even if the defect left only a small portion of the original kernel in the sample. Due to its lower weight relative to a fully formed kernel, a shriveled kernel has a smaller impact on the percentage of internal defects when the sample is weighed rather than counted.
The lower average percentage of internal defects using the weight method was confirmed by a review of shipping point inspection records, with 14 examples in which both the count and weight method were used on the same sample of inshell almonds. The average serious damage percentages of the count method and the weight method were 1.5 percent and 0.8 percent, respectively. Smaller percentages of defects in sampled lots using the weight method will mean larger quantities of almonds meet a particular grade, which would positively affect the quality of the almonds, as it would yield more accurate percentages of defects, resulting in higher payments to growers.
Shifting the determination of internal (kernel) defects from a count basis to a weight basis in the standards is expected to contribute to efficiencies in the grading process. It would make the internal defects aspect of the outgoing inspection process consistent with that of the incoming inspection. Weighing rather than counting the kernels may result in slightly more time in the inspection process, but any potential effect on the cost of inspections is expected to be minor or nonexistent, and would be offset by the benefits.
There is no disproportionate impact on smaller entities; entities of all sizes will benefit.
This rule would not impose any additional reporting or recordkeeping requirements on either small or large almond producers, handler or exporters.
The use of grading services and grading standards is voluntary unless required by a specific Act, Federal Marketing Order or Agreement, or other regulations governing domestic, import or export shipments. USDA has not identified any Federal rules that duplicate, overlap, or conflict with this rule. However, there is a marketing program which regulates the handling of almonds under 7 CFR part 981. The revision in this action only affects the inspection procedures for internal defects in the standards. As such, the action would not affect almonds in the shell under the marketing order.
Alternatives were considered for this action. One alternative would be to not issue a rule. However, the need for revisions remains due to differing procedures for incoming and outgoing almond inspections, and is the result of a request by industry. Further, the purpose of these standards is to facilitate the marketing of agricultural commodities.
The rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.
Section 203(c) of the Act directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request.
On March 11, 2011, AMS received a letter from the Almond Board of California (Board) requesting that the procedure for measuring internal (kernel) defects in the United States Standards for Grades of Almonds in the Shell be changed from a count basis to a weight basis. The purpose of this change is to align incoming and outgoing inspection procedures.
Currently, almonds must undergo incoming inspections and may undergo outgoing inspections. The almond marketing order (part 981—Almonds Grown in California) mandates that the percentage of inedible kernels is determined during an incoming inspection. As required in the marketing order (7 CFR 981.42 and 981.442 (Quality Control)), federally licensed state inspectors perform these inspections on 100 percent of the product moving from growers to handlers (packers). “Inedible kernel” is defined in §§ 981.8 and 981.408 of the marketing order and is based on internal (kernel) defects as defined in the standards, in §§ 51.2087 (Decay), 51.2088 (Rancidity), 51.2089 (Damage) and 51.2090 (Serious Damage).
Federally licensed state inspectors also perform outgoing inspections, which are voluntary, on approximately 75 percent of all of the almonds going from the handlers to domestic and international markets, according to shipping point records maintained by Federal State Inspection. The current procedures for determining the percentage of defective kernels in the two different inspections are not the same. For incoming inspections, the percentage of inedible kernels is determined on a weight basis. With outgoing inspections, however, determining the percentage of internal (kernel) defects, which is one step in a multi-step procedure specified in the standards for determining U.S. grade, is done through a combination of count and weight of the nuts in the sample. This change to the standards would more closely align the procedures of the incoming and outgoing inspections.
A key reason for making this change is the increasing magnitude of exports of almonds in the shell. Between the 2006/07 and 2009/10 seasons, export shipments of almonds in the shell doubled, rising from 148 to 297 million pounds (inshell basis), according to trade data from the Foreign Agricultural Service of USDA. During this same time period, the number of handlers exporting almonds in the shell increased by 42 percent. Due to the substantial increase in the number of handlers and volume of shipments, the Board received numerous inquiries regarding the reasons for the different procedures for determining internal defects on incoming and outgoing inspections.
A number of handlers asked the Board's Food Quality and Safety Committee (committee) to look into how to change the standards to make outgoing inspections more consistent with the incoming inspection method. Determining the percentage of nuts with internal defects is the third of three required steps in section 51.2080 (Determination of Grade). In addition, a 10 percent tolerance for internal (kernel) defects is one of five tolerances that are specified in section 51.2075(b)(5) for determining whether a lot of inshell almonds is graded as U.S. No. 1. Committee staff queried handlers that ship almonds in the shell about changing the determination of internal defects from a count basis to a weight basis, which would apply to both of these sections.
A proposed rule regarding these revisions to the United States Standards for Grades of Almonds in the Shell was published in the
Agricultural commodities, Food grades and standards, Fruits, Nuts, Reporting and record keeping requirements, Trees, Vegetables.
For reasons set forth in the preamble, 7 CFR part 51 is to be amended as follows:
7 U.S.C. 1621-1627.
(b) * * *
(5)
In grading the inspection sample, the percentage of loose hulls, pieces of shell, chaff and foreign material is determined on the basis of weight. Next, the percentages of nuts which are of dissimilar varieties, undersize or have
Agricultural Marketing Service, USDA.
Confirmation of regulations.
This document summarizes the results of an Agricultural Marketing Service (AMS) review of the Pork Promotion, Research, and Consumer Information Program (Program), commonly known as the Pork Checkoff Program, under the criteria contained in section 610 of the Regulatory Flexibility Act (RFA). Based upon this review, AMS concluded that there is a continued need for the Pork Promotion, Research, and Consumer Information Order (Order). Copies of the review performed by AMS are available to interested parties.
Effective March 8, 2013.
Interested persons may obtain a copy of the review. Requests for copies should be sent to Kenneth R. Payne, Director, Marketing Programs Division, Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 0251, 1400 Independence Avenue SW, Washington, DC 20250-0251 or email
Kenneth R. Payne, Director, Marketing Programs Division, Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 0251, 1400 Independence Avenue SW, Washington, DC 20250-0251 or email
The Order (7 CFR Part 1230) is authorized under the Pork Promotion, Research, and Consumer Information Act of 1985 (Act) (7 U.S.C. 4801-4819). As part of a comprehensive strategy to strengthen the pork industry's position in the marketplace, this national pork Program maintains and expands existing domestic and foreign markets and develops new markets for pork and pork products. The Program is funded by a mandatory assessment of $0.40 per-hundred-dollars of market value. Nearly all producers, with few exceptions, owning and marketing swine, regardless of the size of their operation or the value of their swine, must pay the assessment. A comparable assessment is collected on all imported swine, pork, and pork products. Assessments collected under this Program are used for promotion, research, consumer information, and industry information.
The Program is administered by the National Pork Board (Board), which is composed of 15 producer members. Board members serve 3-year terms, but no individual may serve more than two consecutive 3-year terms. Producer members are selected by the National Pork Producers Delegate Body, a group of producer and importer members that represent all 50 States and importers. The Program became effective on September 5, 1986, when the Order was issued. Assessments began on November 1, 1986.
On February 18, 1999, AMS published in the
The reviews are being conducted over a ten-year period under section 610 of the RFA. The Program was reviewed for the purpose of determining whether it should be continued without change, or should be amended, rescinded, or terminated (consistent with the objectives of applicable statutes) to minimize the impacts on small entities.
AMS published a notice for review and request for written comments on the Order in the March 27, 2008, issue of the
Comments were due May 27, 2008. USDA received one comment generally opposing the Program, which did not specifically address the criteria provided under section 610 of the RFA.
The review was undertaken to determine whether the Order should be continued without change, amended, or rescinded (consistent with the objectives of the Act) to minimize the impacts on small entities. In conducting this review and using the guidance set forth in section 610 of the RFA, AMS considered the following factors: (1) The continued need for the Order; (2) the nature of complaints or comments received from the public concerning the Order; (3) the complexity of the Order; (4) the extent to which the Order overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the Order has been evaluated or the degree to which technology, economic conditions or other factors have changed in the area affected by the Order.
Based upon this review, AMS has concluded that there is continued need for the Order. AMS plans to continue working with the pork industry in maintaining an effective program. Interested parties may request a copy of the review by AMS as set forth in this Confirmation of Regulations.
7 U.S.C. 4801-4819.
Federal Aviation Administration (FAA), DOT.
Final rule, technical amendment.
This action amends the description of the Houston, TX, Class B airspace area by changing the airport reference for describing the William P. Hobby Airport in the Class B airspace header from “Secondary Airport” to “Primary Airport.” This change is editorial only and does not alter the
Colby Abbott, Airspace Policy and ATC Procedures Group, Office of Mission Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
In 1973, the FAA issued a final rule (38 FR 31286, November 13, 1973) which established the Houston Terminal Control Area (TCA), with an effective date of March 28, 1974. The Houston TCA listed the Houston Intercontinental Airport (later renamed the George Bush Intercontinental Airport) as the primary airport. In 1987, to further reduce the risk of midair collision in the Houston terminal areas and promote the efficient control of air traffic, the FAA issued a final rule (52 FR 1418, January 13, 1987) which established the William P. Hobby Airport, Airport Radar Service Area (ARSA) next to and under the existing Houston TCA airspace. Then, in 1992, to better accommodate current traffic flows and provide a greater degree of safety in known areas of congestion involving controlled IFR and uncontrolled VFR operations, the FAA issued a final rule (57 FR 30818, July 10, 1992) and a final rule; correction (57 FR 40095, September 2, 1992) which amended the Houston TCA configuration, listed two primary airports (Houston Intercontinental Airport and William P. Hobby Airport) in the Houston TCA description, and rescinded the William P. Hobby Airport ARSA concurrently. As a result of the Airspace Reclassification final rule (56 FR 65638, December 17, 1991), which became effective on September 16, 1993, the term “terminal control area” was replaced by “Class B airspace area.”
In 1998, the FAA issued a final rule (63 FR 4162, January 28, 1998) further amending the Houston Class B airspace area to enhance safety, reduce the potential for midair collision, and better manage the air traffic operations into, out of, and through Houston Class B airspace. However, the airport reference for describing William P. Hobby Airport in the Class B airspace header was inadvertently changed from “Primary Airport” to “Secondary Airport.” The unintended consequence of this inadvertent change has led to questions and concerns regarding the 30-nautical mile (NM) Mode C veil that is charted around the Houston terminal airspace area, as well as why William P. Hobby Airport is listed as a secondary airport and what that means. The charted depiction of the Mode C veil surrounding the George Bush Intercontinental Airport and William P. Hobby Airport is correct with no change to the existing charted boundaries. Additionally, the FAA does not define what a secondary airport is, nor is that description used to identify airports in any other Class B or Class C airspace areas.
The FAA is changing the airport reference for William P. Hobby Airport in the Houston Class B airspace header to “Primary Airport,” reflecting the FAA's original intent for the Houston Class B airspace area to encompass two primary airports, George Bush Intercontinental Airport and William P. Hobby Airport, as specified in the final rule (57 FR 30818, July 10, 1992) and final rule; correction (57 FR 40095, September 2, 1992). Additionally, the FAA plans to add the William P. Hobby Airport to the list of airports identified in Title 14 of the Code of Federal Regulations, Part 91, Appendix D, Section 1, in a separate rulemaking action.
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by editing the Houston, TX, Class B airspace description changing the airport reference for William P. Hobby Airport listed in the header from “Secondary Airport” to “Primary Airport.” This editorial change does not alter the currently charted boundaries or altitudes or ATC procedures for the Houston Class B airspace area. The FAA is taking this action to correctly describe the primary airports listed in the Houston Class B airspace area, resolve issues associated with William P. Hobby Airport having been described as a “Secondary Airport,” and reaffirms the currently charted boundary of the Mode C veil around the Houston terminal airspace area is correct, as originally intended by the FAA.
Class B airspace areas are published in paragraph 3000 of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class B airspace area listed in this document will be published subsequently in the Order.
Because the amendment does not affect the boundaries, designated altitudes, or activities conducted within the Class B airspace area, Houston, TX, I find that notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it makes editorial corrections to an existing Class B airspace description to maintain accuracy.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with 311a, FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” This airspace action is an editorial change only and is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace at Hot Springs, SD. Additional controlled airspace is necessary to accommodate new Area Navigation (RNAV) Standard Instrument Approach Procedures at Hot Springs Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport. Geographic coordinates of the airport are also updated.
Effective date: 0901 UTC, June 27, 2013. The Director of the Federal Register approves this incorporation by reference action under 1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone 817-321-7716.
On November 16, 2012, the FAA published in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to the north of the airport to accommodate new standard instrument approach procedures at Hot Springs Municipal Airport, Hot Springs, SD. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (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); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Hot Springs Municipal Airport, Hot Springs, SD.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (Air)
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Hot Springs Municipal Airport, SD
(Lat. 43°22′06″ N., long. 103°23′18″ W.)
That airspace extending upward from 700 feet above the surface within a 7.4-mile radius of Hot Springs Municipal Airport, and within 2 miles each side of the 021° bearing from the airport extending from the 7.4-mile radius to 12.1 miles north of the airport.
Federal Aviation Administration (FAA), DOT.
Policy statement.
This statement describes a policy change to the FAA's International Aviation Safety Assessment (IASA) program. The FAA wants to ensure that countries do not remain on this listing when the results of the FAA's IASA determinations as to those countries might no longer be accurate or reasonably current. The FAA is accordingly adopting a procedure to remove a country from the IASA program summary listing when that country's air carriers no longer provide air service to the United States, none of the country's air carriers participates in code-share arrangements with U.S. air carriers, and the country's civil aviation authority (CAA) has ceased interacting with the FAA for an extended period of time. The FAA is making this change to improve the quality of the IASA summary listing. This statement also explains IASA Categories 1 and 2 in terms of what the flying public may reasonably take them to mean. This document modifies the IASA policies previously announced by the FAA.
Manager of the International Programs and Policy Division (AFS-50), Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, (202) 385-8070.
Under the IASA program, the FAA assesses whether another country's oversight of its air carriers that operate, or seek to operate, into the U.S., or codeshare with a U.S. air carrier, complies with international aviation safety standards established by the International Civil Aviation Organization (ICAO). The FAA maintains and publishes a country-by-country summary listing of the results of its IASA determinations. Some countries continue to be listed on the IASA summary, whether in Category 1 or 2, even though the countries have no air carriers that are serving the United States or code sharing with one or more U.S. partner airlines. Because of the lack of air service to the United States, there is minimal, if any, interaction between the FAA and the subject CAAs. To date, countries have not been removed from the category listing for inactivity, even though the safety oversight information previously collected may become stale and unreliable. To improve the quality of information on the IASA program summary category listing, the FAA is initiating a process to remove inactive countries from the listing.
Information generated by the IASA program is used by the U.S. and foreign governments, the aviation industry, and the traveling public. IASA information disseminated should be accurate and reasonably current. To this end, countries whose IASA information can no longer be considered accurate and reasonably current will be removed from the published IASA summary listing.
In determining whether a country's IASA information is no longer accurate and reasonably current, we will proceed on the basis that if, after a four year period, a country has no air carrier providing air transport service to the United States, none of the country's air carriers participates in code-share arrangements with U.S. air carriers, and the CAA does not interact significantly with the FAA, the FAA will remove that country from the IASA summary category listing. These criteria will be applied immediately in a review of countries currently on the list and on a continual basis going forward.
Before the FAA removes a country from the IASA program listing, the country's CAA will receive formal notification prior to the removal. Just as it does when a country is added to the list or a country's IASA category is changed, the FAA will notify the public regarding the removal of a country from the IASA summary listing.
Once a country is removed from the IASA summary listing, a full reassessment of the CAA must be conducted before the country can be rated in the IASA program and before a carrier subject to that country's aviation safety oversight can serve the United States using its own aircraft or can put a U.S. carrier code on its flights.
Members of the public have asked what the IASA category rating for a country means when they are making transportation choices. Category 1 means that the FAA has found that the country meets ICAO Standards for safety oversight of civil aviation. Category 2 means that the FAA has found that the country does not meet those Standards. The ICAO Standards are presumptively binding on ICAO Member States as signatories to the Chicago Convention. The Standards are promulgated from time to time by ICAO and grouped by subject matter (for example, airline personnel licensing or operation of aircraft) in Annexes to the Chicago Convention.
The FAA normally determines the appropriate IASA category rating for a country using information collected during an in-country assessment of that country's CAA. The FAA also may consider other reliable sources of information on a CAA's compliance with international standards when making a determination of safety oversight under the IASA program. The FAA may use the information developed by these other sources to supplement the information developed during an FAA assessment of the CAA, or to entirely replace the assessment altogether, when making an IASA category determination.
In conducting its IASA assessments, the FAA uses a standardized checklist that groups the ICAO Standards on safety oversight into eight critical elements: (1) Primary aviation legislation, (2) specific operating regulations, (3) organization structure
The FAA assessment focuses on the ability of the host country's aeronautical authorities to oversee the operational safety of its airlines. It does not assess the safety compliance of any particular air carrier (nor does it address aviation security, airports, or air traffic management). Although the FAA assessment team typically visits one or more air carriers during its mission, it does so only to verify the relationship between the carrier and the country's aviation safety officials, not to assess the carrier itself.
Finally, the IASA category rating applies only to services to and from the United States and to codeshare operations when the code of a U.S. air carrier is placed on a foreign carrier flight. The category ratings do not apply to a foreign carrier's domestic flights or to flights by that carrier between its homeland and a third country. The assessment team looks at those flights only to the extent that they reflect on the country's oversight of operations to and from the United States and to codeshare operations where a U.S. air carrier code is placed on a flight conducted by a foreign operator.
In short, a category 1 rating means that, as to the operations by a category 1 country's carriers between that country and the United States, and when the code of a U.S. air carrier is placed on a foreign carrier flight, the FAA has found that the country's civil aviation authorities exercise safety oversight over those carriers consistent with international safety standards. A Category 2 rating, on the other hand, means the FAA has found that, in at least one critical area, the safety measures applied by the country's civil aviation authorities do not meet international standards.
Current IASA category determinations for countries included in the IASA categorization system are available on the FAA Web site at:
Office of the Secretary (OST), Department of Transportation (DOT).
Final rule.
In accordance with existing regulations, this final rule raises the minimum limit on domestic baggage liability applicable to air carriers to reflect inflation since July 2008, the basis month of the most recent previous revision to the liability limit. DOT regulations require that the Department of Transportation periodically revise the limit to reflect changes in the Consumer Price Index for All Urban Consumers (CPI-U). This revision adjusts the minimum limit of liability from the current amount of $3,300, set by the Department in November 2008, to $3,400, to take into account the changes in consumer prices since the prior revision.
This rule is effective on June 6, 2013.
Nicholas Lowry, Senior Attorney, Office of the General Counsel, Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590; 202-366-9351,
Part 254 of the Department's rules (14 CFR part 254) establishes minimum baggage liability limits applicable to domestic air service. Section 254.6 of this rule requires the Department to review every 2 years the minimum limit of liability prescribed in Part 254 in light of changes in the CPI-U and to revise the limit of liability to reflect changes in that index as of July of each review year. Section 254.6 prescribes the use of a specific formula to calculate the revised minimum liability amount when making these periodic adjustments. The formula is below.
In its rule “Enhancing Airline Passenger Protections” (76 FR 23110, Apr. 25, 2011), the Department required the amount of compensation due to passengers in instances of denied boarding (DBC) to be adjusted to reflect CPI-U changes. Under 14 CFR 250.5(e), the review of denied boarding compensation was to take place every 2 years, with the first such review occurring in July 2012, to coincide with our review of the baggage liability amount. We have reviewed the compensation amounts stated in the 2011 rule according to the formula set out in section 250.5(e) and found that no change in DBC amounts is warranted in 2012.
The Administrative Procedure Act (APA) (5 U.S.C. 553) contains a “good cause” exemption which allows agencies to dispense with notice and comment if those procedures are impracticable, unnecessary or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with a notice of proposed rulemaking and public comment as the application of this rule does not involve any agency discretion. This rulemaking is required by the terms of 14 CFR
Although this final rule will become effective on June 6, 2013, in order to avoid imposing an undue burden the Department will defer enforcement of the notice provision in the rule (section 254.5) as it pertains to printed notices about the new limit for a reasonable time period to allow carriers to replace or update any current paper ticket stock and ticket jackets or inserts. Electronic notices about the minimum domestic liability limit, including notices that are printed “on demand” from an electronic source (e.g., Web sites, email messages, and airport kiosks) should be updated no later than the effective date of this final rule. Carriers are subject to enforcement action from the effective date of this final rule if they fail to provide notice of the new minimum liability limit in the manner described above, or if they fail to apply the new limit.
This final rule has been evaluated in accordance with existing policies and procedures and is considered not significant under both Executive Order 12866 and DOT's Regulatory Policies and Procedures. The rule has not been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. This revision of 14 CFR 254.4 provides for an inflation adjustment to the amount of the minimum limit on baggage liability that air carriers may incur in cases of mishandled baggage, as required by section 254.6. The provisions are required by current regulatory language, without interpretation.
This rule will pose minor additional costs to airlines only in those instances in which carriers lose, damage or delay baggage and where the amount of the passenger's claim in those instances exceeds the prior minimum liability limit of $3,300. The maximum potential impact in those instances is $100 on each such claim. Reports filed each month with the Department by airlines that each account for at least one percent of total domestic scheduled-service passenger revenues show that, in 2012, approximately 0.3 percent (.003) of domestic passengers experience a mishandled bag. The total number of domestic scheduled passenger enplanements in 2012 was 652,178,681. This means that approximately 2 million domestic scheduled passengers experience a mishandled bag each year (.003 multiplied by 652.2 equals 1,956,536). However, the vast majority of the instances of mishandled baggage do not result in a claim in an amount that is affected by the liability limit in this rule. We contacted a few carriers to determine how many of their domestic passengers have had claims that exceed the prior minimum liability limit of $3,300. Based on the information provided, we believe a little more than one half percent (0.0058) of the domestic passengers who experience a mishandled bag would benefit from an increase in the minimum limit on baggage liability, i.e., about 11,300 passengers. Therefore, we expect that there would be a cost to the airline industry of $1.1 million each year (the number of domestic passengers who receive a baggage settlement that exceeds the prior minimum liability limit of $3,300, which is 11,300 passengers multiplied by the maximum potential impact in those instances which is $100). There would also be a benefit to passengers in the same amount.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires an assessment of the impact of proposed and final rules on small entities unless the agency certifies that the proposed regulation will not have a significant economic impact on a substantial number of small entities. Since notice and comment rulemaking is not necessary for this rule, the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) do not apply. However, DOT has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. An air carrier is a small business if it provides air transportation only with small aircraft (i.e., aircraft with up to 60 seats/18,000 pound payload capacity). See 14 CFR 399.73. This revision affects only flight segments operated with large aircraft and other flight segments appearing on the same ticket as a large-aircraft segment. As a result, many operations of small entities, such as air taxis and many commuter air carriers, are not covered by the rule. Moreover, any additional costs for small entities associated with the rule should be minimal and may be covered by insurance. Accordingly, we certify that this action will not have a significant economic impact on a substantial number of small entities.
This final rule imposes no new reporting or record keeping requirements necessitating clearance by OMB.
Air carriers, Administrative practice and procedure, Consumer protection, Department of Transportation.
Accordingly, the Department of Transportation amends 14 CFR part 254 as follows:
49 U.S.C. 40113, 41501, 41504, 41510, 41702 and 41707.
Bureau of Industry and Security, Commerce.
Final rule.
This rule amends the Export Administration Regulations (EAR) by adding three entries to the Entity List for one person who has been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. This person will be listed on the Entity List under Germany, Russia, and Taiwan.
Karen Nies-Vogel, Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Fax: (202) 482-3911, Email:
The Entity List (Supplement No. 4 to Part 744) notifies the public about entities that have engaged in activities that could result in an increased risk of the diversion of exported, reexported, or transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to activities sanctioned by the State Department and activities contrary to U.S. national security or foreign policy interests, including terrorism and export control violations involving abuse of human rights. Certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require licenses from BIS and are usually subject to a policy of denial. The availability of license exceptions in such transactions is very limited. The license review policy for each entity is identified in the License Review Policy column on the Entity List and the availability of license exceptions is noted in the
The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, when appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.
This rule implements the decision of the ERC to add one person, under three entries, to the Entity List on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The three entries, two of which are alternate addresses and slightly different names used in different countries for the person being added to the Entity List, consist of single entries in Russia, Germany, and Taiwan. The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add this one person under three entries to the Entity List. Under that paragraph, persons for which there is reasonable cause to believe, based on specific and articulable facts, that the persons have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. The ERC has reasonable cause to believe that the one person being listed under three separate entries, T -Platforms, a company headquartered in Russia, has been listed as the ultimate consignee on multiple automated export system (AES) records filed for the export of dual-use items controlled for national security reasons but shipped without the required licenses. Further, the ERC has reason to believe that T-Platforms is associated with military procurement activities, including the development of computer systems for military end-users and the production of computers for nuclear research. T-Platforms has locations in Germany and Taiwan that are engaged in the same types of activities of concern. Based on T-Platforms' activities, including those of its locations in Germany and Taiwan, the ERC determined that it is engaged in activities contrary to U.S. national security and foreign policy interests and poses a high risk of involvement in violations of the EAR.
Therefore, pursuant to § 744.11(b)(3) and (5) of the EAR, the ERC determined that such conduct raises sufficient concern that prior review of exports, reexports, or transfers (in-country) of items subject to the EAR involving this one person being listed under three entries, and the possible imposition of license conditions or license denials, will enhance BIS's ability to prevent violations of the EAR.
For the one person being added to the Entity List under three entries, the ERC specified a license requirement for all items subject to the EAR and established a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such person or in which such person acts as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to this person being added to the Entity List under three entries.
This final rule adds the following one person under three entries to the Entity List:
(1)
(1)
(1)
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on March 8, 2013, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2012, 77 FR 49699 (August 16, 2012), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a 30-day delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:
50 U.S.C. app. 2401
The additions read as follows:
Environmental Protection Agency (“EPA”).
Final rule—consistency update.
EPA is finalizing the update of the Outer Continental Shelf (“OCS”) Air Regulations proposed in the
This rule is effective on April 8, 2013. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of April 8, 2013.
EPA has established docket number OAR-2004-0091 for this action. The index to the docket is available electronically at
Cynthia G. Allen, Air Division (Air-4), U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947-4120,
Throughout this document, the terms “we,” “us,” or “our” refer to U.S. EPA.
Organization of this document: The following outline is provided to aid in locating information in this preamble.
On October 9, 2012 (77 FR 61308), EPA proposed to incorporate various Ventura County APCD air pollution control requirements into the OCS Air Regulations at 40 CFR part 55. We are incorporating these requirements in response to the submittal of these rules by the District. EPA has evaluated the proposed requirements to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or Part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure that they are not arbitrary or capricious. 40 CFR 55.12(e).
Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.
EPA's proposed actions provided a 30-day public comment period. During this period, we received no comments on the proposed actions.
In this document, EPA takes final action to incorporate the proposed changes into 40 CFR part 55. No changes were made to the proposed action except for minor technical corrections to the list of rules in the part 55 regulatory text to accurately reflect the action we proposed. EPA is approving the proposed action under section 328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act requires that EPA establish requirements to
Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by EPA. For that reason, this 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);
• 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 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, nor does it impose substantial direct compliance costs on tribal governments, nor preempt tribal law.
Under the provisions of the Paperwork Reduction Act, 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 currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.07 was published in the
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 7, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Administrative practice and procedures, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer Continental Shelf, Ozone, Particulate matter, Permits, Reporting and recordkeeping requirements, Sulfur oxides.
Title 40 of the Code of Federal Regulations, Part 55, is amended as follows:
Section 328 of the Clean Air Act (42 U.S.C. 7401
(e) * * *
(3) * * *
(ii) * * *
(H)
(b) * * *
(8) The following requirements are contained in
Federal Communications Commission.
Final rule.
In this
Effective April 8, 2013, except for §§ 25.132(b)(3), and 25.227(b), (c), and (d), which contain new information collection requirements that require approval by the Office of Management and Budget (OMB) under the PRA. The Federal Communications Commission will publish a document in the
Andrea Kelly, Satellite Division, International Bureau, (202) 418-0719, or Howard Griboff, Policy Division, International Bureau, (202) 418-1460.
This is a summary of the Commission's
On January 18, 2005, the Commission adopted the
The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). In light of the rules adopted in this
This
The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
Frequency allocations, Satellites.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 25 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
The revisions and additions read as follows:
US133 In the bands 14-14.2 GHz and 14.47-14.5 GHz, the following provisions shall apply to the operations of Earth Stations Aboard Aircraft (ESAA):
(a) In the band 14-14.2 GHz, ESAA licensees proposing to operate within radio line-of-sight of the coordinates specified in 47 CFR 25.227(c) are subject to prior coordination with NTIA in order to minimize harmful interference to the ground terminals of NASA's Tracking and Data Relay Satellite System (TDRSS).
(b) In the band 14.47-14.5 GHz, operations within radio line-of-sight of the radio astronomy stations specified in 47 CFR 25.226(d)(2) are subject to coordination with the National Science Foundation in accordance with 47 CFR 25.227(d).
NG52 Except as otherwise provided for herein, use of the bands 10.7-11.7 GHz (space-to-Earth) and 12.75-13.25 GHz (Earth-to-space) by geostationary satellites in the fixed-satellite service (FSS) shall be limited to international systems,
NG54 In the band 14-14.5 GHz, Earth Stations Aboard Aircraft (ESAA) as regulated under 47 CFR part 25 may be authorized to communicate with geostationary satellites in the fixed-satellite service (Earth-to-space), subject to the condition that ESAA shall not claim protection from, nor cause interference to, earth stations at given positions (where the given position may be a specified fixed point or any fixed point within specified areas).
NG55 In the band 11.7-12.2 GHz, Earth Stations Aboard Aircraft (ESAA) as regulated under 47 CFR part 25 are an application of the fixed-satellite service and may be authorized to communicate with geostationary satellites in the fixed-satellite service (space-to-Earth) on a primary basis.
47 U.S.C. 701-744. Interprets or applies Sections 4, 301, 302, 303, 307, 309, and 332 of the Communications Act, as amended, 47 U.S.C. 154, 301, 302, 303, 307, 309, and 332 unless otherwise noted.
(a) * * *
(2) * * *
(iii) The earth station is not an ESV, VMES or ESAA.
(a) Applications for a new or modified transmitting earth station facility shall be submitted on FCC Form 312, and associated Schedule B, accompanied by any required exhibits, except for those earth station applications filed on FCC Form 312EZ pursuant to § 25.115(a). All such earth station license applications must be filed electronically through the International Bureau Filing System (IBFS) in accordance with the applicable provisions of part 1, subpart Y of this chapter. Additional filing requirements for Earth Stations on Vessels are described in §§ 25.221 and 25.222. Additional filing requirements for Vehicle-Mounted Earth Stations are described in § 25.226. Additional filing requirements for Earth Stations Aboard Aircraft are described in § 25.227. In addition, applicants that are not required to submit applications on Form 312EZ, other than ESV, VMES or ESAA applicants, must submit the following information to be used as an “informative” in the public notice issued under § 25.151 as an attachment to their application:
(b) * * *
(3) Applicants seeking authority to use an antenna that does not meet the standards set forth in § 25.209(a) and (b), pursuant to the procedure set forth in § 25.220, § 25.221, § 25.222, § 25.223, § 25.226 or § 25.227, are required to submit a copy of the manufacturer's range test plots of the antenna gain patterns specified in paragraph (b)(1) of this section.
(a)(11)(i) The following frequencies are available for use by Earth Stations Aboard Aircraft (ESAA):
(ii) ESAAs shall be authorized as set forth in § 25.227.
(c) Prior to the filing of its application, an applicant for operation of an earth station, other than an ESV, VMES or ESAA, shall coordinate the proposed frequency usage with existing terrestrial users and with applicants for terrestrial station authorizations with previously filed applications in accordance with the following procedure:
(d) An applicant for operation of an earth station, other than an ESV, VMES or an ESAA, shall also ascertain whether the great circle coordination distance contours and rain scatter coordination distance contours,
(k) An applicant for operation of an earth station, other than an ESV, VMES or an ESAA, that will operate with a geostationary satellite or non-geostationary satellite in a shared frequency band in which the non-geostationary system is (or is proposed to be) licensed for feeder links, shall demonstrate in its applications that its proposed earth station will not cause unacceptable interference to any other satellite network that is authorized to operate in the same frequency band, or certify that the operations of its earth station shall conform to established coordination agreements between the operator(s) of the space station(s) with which the earth station is to communicate and the operator(s) of any other space station licensed to use the band.
(k) Within radio line-of-sight of the Tracking and Data Relay System Satellite (TDRSS) sites identified in § 25.227(c), ESAA transmissions in the 14.0-14.2 GHz (Earth-to-space) band shall not exceed an EIRP spectral density towards or below the horizon of 12.5 dBW/MHz, and shall not exceed an EIRP towards or below the horizon of 16.3 dBW.
(d) While on the ground, ESAAs shall not be authorized for transmission at angles less than 5° measured from the plane of the horizon to the direction of maximum radiation. While in flight there is no minimum angle of antenna elevation.
(f) An earth station with an antenna not conforming to the standards of paragraphs (a) and (b) of this section will be authorized only if the applicant meets its burden of demonstrating that its antenna will not cause unacceptable interference. For ESVs in the C-band, this demonstration must comply with the procedures set forth in § 25.221. For ESVs in the Ku-band, this demonstration must comply with the procedures set forth in § 25.222. For VMES, this demonstration shall comply with the procedures set forth in § 25.226. For ESAAs, this demonstration shall comply with the procedures set forth in § 25.227. For feeder-link earth stations in the 17/24 GHz BSS, this demonstration must comply with the procedures set forth in § 25.223. For other FSS earth stations, this demonstration must comply with the procedures set forth in §§ 25.218 or 25.220. In any case, the Commission will impose appropriate terms and conditions in its authorization of such facilities and operations.
(a) * * *
(1) ESV, VMES and ESAA Applications
(a)(1) This section applies to earth station applications other than ESV, VMES, ESAA and 17/24 GHz BSS feeder link applications in which the proposed earth station operations do not fall within the applicable off-axis EIRP density envelope specified in § 25.218.
(a) The following ongoing requirements govern all ESAA licensees and operations in the 10.95-11.2 GHz (space-to-Earth), 11.45-11.7 GHz (space-to-Earth), 11.7-12.2 GHz (space-to-Earth) and 14.0-14.5 GHz (Earth-to-space) frequency bands receiving from and transmitting to geostationary orbit satellites in the Fixed-Satellite Service. ESAA licensees shall comply with the requirements in either paragraph (a)(1), (a)(2) or (a)(3) of this section and all of the requirements set forth in paragraphs (a)(4) through (a)(16) and paragraphs (c), (d), and (e) of this section. Paragraph (b) of this section identifies items that shall be included in the application for ESAA operations to demonstrate that these ongoing requirements will be met.
(1) The following requirements shall apply to an ESAA that uses transmitters with off-axis EIRP spectral-densities lower than or equal to the levels in paragraph (a)(1)(i) of this section. ESAA licensees operating under this section shall provide a detailed demonstration as described in paragraph (b)(1) of this section. The ESAA transmitter also shall comply with the antenna pointing and cessation of emission requirements in paragraphs (a)(1)(ii) and (iii) of this section.
(i) An ESAA licensee shall not exceed the off-axis EIRP spectral-density limits and conditions defined in paragraphs (a)(1)(i)(A) through (D) of this subsection.
(A) The off-axis EIRP spectral-density for co-polarized signals emitted from the ESAA, in the plane of the geostationary satellite orbit (GSO) as it appears at the particular earth station location, shall not exceed the following values:
(B) In all directions other than along the GSO, the off-axis EIRP spectral-density for co-polarized signals emitted from the ESAA shall not exceed the following values:
(C) The off-axis EIRP spectral-density for cross-polarized signals emitted from the ESAA shall not exceed the following values:
(ii) Each ESAA transmitter shall meet one of the following antenna pointing requirements:
(A) Each ESAA transmitter shall maintain a pointing error of less than or equal to 0.2° between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna; or
(B) Each ESAA transmitter shall declare a maximum antenna pointing error that may be greater than 0.2° provided that the ESAA does not exceed the off-axis EIRP spectral-density limits in paragraph (a)(1)(i) of this section, taking into account the antenna pointing error.
(iii) Each ESAA transmitter shall meet one of the following cessation of emission requirements:
(A) For ESAAs operating under paragraph (a)(1)(ii)(A) of this section, all emissions from the ESAA shall automatically cease within 100 milliseconds if the angle between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna exceeds 0.5°, and transmission shall not resume until such angle is less than or equal to 0.2°, or
(B) For ESAA transmitters operating under paragraph (a)(1)(ii)(B) of this section, all emissions from the ESAA shall automatically cease within 100 milliseconds if the angle between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna exceeds the declared maximum antenna pointing error and shall not resume transmissions until such angle is less than or equal to the declared maximum antenna pointing error.
(2) The following requirements shall apply to an ESAA, or ESAA system, that uses off-axis EIRP spectral-densities in excess of the levels in paragraph (a)(1)(i) of this section. An ESAA, or ESAA network, operating under this subsection shall file certifications and provide a detailed demonstration as described in paragraph (b)(2) of this section.
(i) The ESAA shall transmit only to the target satellite system(s) referred to in the certifications required by paragraph (b)(2) of this section.
(ii) If a good faith agreement cannot be reached between the target satellite operator and the operator of a future satellite that is located within 6 degrees longitude of the target satellite, the ESAA operator shall accept the power-density levels that would accommodate that adjacent satellite.
(iii) The ESAA shall operate in accordance with the off-axis EIRP spectral-densities that the ESAA supplied to the target satellite operator in order to obtain the certifications listed in paragraph (b)(2) of this section. The ESAA shall automatically cease emissions within 100 milliseconds if the ESAA transmitter exceeds the off-axis EIRP spectral-densities supplied to the target satellite operator and transmission shall not resume until ESAA conforms to the off-axis EIRP spectral densities supplied to the target satellite operator.
(iv) In the event that a coordination agreement discussed in paragraph (b)(2)(ii) of this section is reached, but that coordination agreement does not address protection from interference for the earth station, that earth station will be protected from interference to the same extent that an earth station that meets the requirements of § 25.209 of this title would be protected from interference.
(3) The following requirements shall apply to an ESAA system that uses variable power-density control of individual simultaneously transmitting co-frequency ESAA earth stations in the same satellite receiving beam. An ESAA system operating under this subsection shall provide a detailed demonstration as described in paragraph (b)(3) of this section.
(i) The effective aggregate EIRP density from all terminals shall be at least 1 dB below the off-axis EIRP density limits defined in paragraph (a)(1)(i)(A) through (C), with the value of N=1. In this context the term “effective” means that the resultant co-polarized and cross-polarized EIRP density experienced by any GSO or non-GSO satellite shall not exceed that produced by a single transmitter operating 1 dB below the limits defined in paragraph (a)(1)(i)(A) through (C). The individual ESAA transmitter shall automatically cease emissions within 100
(ii) The following requirements shall apply to an ESAA that uses off-axis EIRP spectral-densities in excess of the levels in paragraph (a)(3)(i) of this section. An ESAA system operating under this subsection shall file certifications and provide a detailed demonstration as described in paragraphs (b)(3)(ii) and (b)(3)(iii) of this section.
(A) If a good faith agreement cannot be reached between the target satellite operator and the operator of a future satellite that is located within 6 degrees longitude of the target satellite, the ESAA shall operate at an EIRP density defined in (a)(3)(i) of this section.
(B) The ESAA shall operate in accordance with the off-axis EIRP spectral-densities that the ESAA supplied to the target satellite operator in order to obtain the certifications listed in paragraph (b)(3)(ii) of this section. The individual ESAA terminals shall automatically cease emissions within 100 milliseconds if the ESAA transmitter exceeds the off-axis EIRP spectral-densities supplied to the target satellite operator. The overall system shall be capable of shutting off an individual transmitter or the entire system if the aggregate off-axis EIRP spectral-densities exceed those supplied to the target satellite operator.
(C) The ESAA shall transmit only to the target satellite system(s) referred to in the certifications required by paragraph (b)(3) of this section.
(4) An applicant filing to operate an ESAA terminal or system and planning to use a contention protocol shall certify that its contention protocol use will be reasonable.
(5) There shall be a point of contact in the United States, with phone number and address, available 24 hours a day, seven days a week, with authority and ability to cease all emissions from the ESAA.
(6) For each ESAA transmitter, a record of the vehicle location (
(7) In the 10.95-11.2 GHz (space-to-Earth) and 11.45-11.7 GHz (space-to-Earth) frequency bands ESAAs shall not claim protection from interference from any authorized terrestrial stations to which frequencies are either already assigned, or may be assigned in the future.
(8) An ESAA terminal receiving in the 11.7-12.2 GHz (space-to-Earth) bands shall receive protection from interference caused by space stations other than the target space station only to the degree to which harmful interference would not be expected to be caused to an earth station employing an antenna conforming to the referenced patterns defined in paragraphs (a) and (b) of section 25.209 and stationary at the location at which any interference occurred.
(9) Each ESAA terminal shall automatically cease transmitting within 100 milliseconds upon loss of reception of the satellite downlink signal or when it detects that unintended satellite tracking has happened or is about to happen.
(10) Each ESAA terminal should be subject to the monitoring and control by an NCMC or equivalent facility. Each terminal must be able to receive at least “enable transmission” and “disable transmission” commands from the NCMC and must automatically cease transmissions immediately on receiving any “parameter change command,” which may cause harmful interference during the change, until it receives an “enable transmission” command from its NCMC. In addition, the NCMC must be able to monitor the operation of an ESAA terminal to determine if it is malfunctioning.
(11) Each ESAA terminal shall be self-monitoring and, should a fault which can cause harmful interference to FSS networks be detected, the terminal must automatically cease transmissions.
(12) Unless otherwise stated all ESAA system that comply with the off-axis EIRP spectral-density limits in paragraph (a)(1)(i) of this section may request ALSAT authority.
(13) ESAA providers operating in the international airspace within line-of-sight of the territory of a foreign administration where fixed service networks have primary allocation in this band, the maximum power flux density (pfd) produced at the surface of the Earth by emissions from a single aircraft carrying an ESAA terminal should not exceed the following values unless the foreign Administration has imposed other conditions for protecting its fixed service stations:
(14) All ESAA terminals operated in U.S. airspace must be licensed by the Commission.
(15) For ESAA systems operating over international waters, ESAA operators will certify that their target space station operators have confirmed that proposed ESAA operations are within coordinated parameters for adjacent satellites up to 6 degrees away on the geostationary arc.
(16) Prior to operations within the foreign nation's airspace, the ESAA operator will ascertain whether the relevant administration has operations that could be affected by ESAA terminals, and will determine whether that administration has adopted specific requirements concerning ESAA operations. When the aircraft enters foreign airspace, the ESAA terminal would be required to operate under the Commission's rules, or those of the foreign administration, whichever is more constraining. To the extent that all relevant administrations have identified geographic areas from which ESAA operations would not affect their radio operations, ESAA operators would be free to operate within those identified areas without further action. To the
(b) Applications for ESAA operation in the 14.0-14.5 GHz (Earth-to-space) band to GSO satellites in the Fixed-Satellite Service shall include, in addition to the particulars of operation identified on Form 312, and associated Schedule B, the applicable technical demonstrations in paragraphs (b)(1), (b)(2) or (b)(3) and the documentation identified in paragraphs (b)(4) through (b)(8) of this section.
(1) An ESAA applicant proposing to implement a transmitter under paragraph (a)(1) of this section shall demonstrate that the transmitter meets the off-axis EIRP spectral-density limits contained in paragraph (a)(1)(i) of this section. To provide this demonstration, the application shall include the tables described in paragraph (b)(1)(i) of this section or the certification described in paragraph (b)(1)(ii) of this section. The ESAA applicant also shall provide the value N described in paragraph (a)(1)(i)(A) of this section. An ESAA applicant proposing to implement a transmitter under paragraph (a)(1)(ii)(A) of this section shall provide the certifications identified in paragraph (b)(1)(iii) of this section. An ESAA applicant proposing to implement a transmitter under paragraph (a)(1)(ii)(B) of this section shall provide the demonstrations identified in paragraph (b)(1)(iv) of this section.
(i) Any ESAA applicant filing an application pursuant to paragraph (a)(1) of this section shall file three tables and/or graphs depicting off-axis EIRP density masks defined by § 25.227(a) and measured off-axis EIRP density levels of the proposed earth station antenna in the direction of the plane of the GSO; the co-polarized EIRP density in the elevation plane, that is, the plane perpendicular to the plane of the GSO; and cross-polarized EIRP density. Each table shall provide the EIRP density level at increments of 0.1° for angles between 0° and 10° off-axis, and at increments of 5° for angles between 10° and 180° off-axis.
(A) For purposes of the off-axis EIRP density table in the plane of the GSO, the off-axis angle is the angle in degrees from the line connecting the focal point of the antenna to the orbital location of the target satellite, and the plane of the GSO is determined by the focal point of the antenna and the line tangent to the arc of the GSO at the orbital position of the target satellite.
(B) For purposes of the off-axis co-polarized EIRP density table in the elevation plane, the off-axis angle is the angle in degrees from the line connecting the focal point of the antenna to the orbital location of the target satellite, and the elevation plane is defined as the plane perpendicular to the plane of the GSO defined in paragraph (b)(1)(i)(A) of this section.
(C) For purposes of the cross-polarized EIRP density table, the off-axis angle is the angle in degrees from the line connecting the focal point of the antenna to the orbital location of the target satellite and the plane of the GSO as defined in paragraph (b)(1)(i)(A) of this section will be used.
(ii) An ESAA applicant shall include a certification, in Schedule B, that the ESAA antenna conforms to the gain pattern criteria of § 25.209(a) and (b), that, combined with the maximum input power density calculated from the EIRP density less the antenna gain, which is entered in Schedule B, demonstrates that the off-axis EIRP spectral density envelope set forth in paragraphs (a)(1)(i)(A) through (a)(1)(i)(C) of this section will be met under the assumption that the antenna is pointed at the target satellite.
(iii) An ESAA applicant proposing to implement a transmitter under paragraph (a)(1)(ii)(A) of this section shall:
(A) Demonstrate that the total tracking error budget of their antenna is within 0.2° or less between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna. As part of the engineering analysis, the ESAA applicant must show that the antenna pointing error is within three sigma (б) from the mean value; and
(B) Demonstrate that the antenna tracking system is capable of ceasing emissions within 100 milliseconds if the angle between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna exceeds 0.5°.
(iv) An ESAA applicant proposing to implement a transmitter under paragraph (a)(1)(ii)(B) of this section shall:
(A) Declare, in its application, a maximum antenna pointing error and demonstrate that the maximum antenna pointing error can be achieved without exceeding the off-axis EIRP spectral-density limits in paragraph (a)(1)(i) of this section; and
(B) Demonstrate that the ESAA transmitter can detect if the transmitter exceeds the declared maximum antenna pointing error and can cease transmission within 100 milliseconds if the angle between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna exceeds the declared maximum antenna pointing error, and will not resume transmissions until the angle between the orbital location of the target satellite and the axis of the main lobe of the ESAA antenna is less than or equal to the declared maximum antenna pointing error.
(2) An ESAA applicant proposing to implement a transmitter under paragraph (a)(2) of this section and using off-axis EIRP spectral-densities in excess of the levels in paragraph (a)(1)(i) of this section shall provide the following certifications and demonstration as exhibits to its earth station application:
(i) A statement from the target satellite operator certifying that the proposed operation of the ESAA has the potential to receive harmful interference from adjacent satellite networks that may be unacceptable.
(ii) A statement from the target satellite operator certifying that the power density levels that the ESAA applicant provided to the target satellite operator are consistent with the existing coordination agreements between its satellite(s) and the adjacent satellite systems within 6° of orbital separation from its satellite(s).
(iii) A statement from the target satellite operator certifying that it will include the power-density levels of the ESAA applicant in all future coordination agreements.
(iv) A demonstration from the ESAA operator that the ESAA system will comply with all coordination agreements reached by the satellite operator and is capable of detecting and automatically ceasing emissions within 100 milliseconds when the transmitter exceeds the off-axis EIRP spectral-densities supplied to the target satellite operator.
(3) An ESAA applicant proposing to implement an ESAA system under paragraph (a)(3) of this section and using variable power-density control of individual simultaneously transmitting co-frequency ESAA earth stations in the same satellite receiving beam shall provide the following certifications and demonstration as exhibits to its earth station application:
(i) The applicant shall make a detailed showing of the measures it intends to employ to maintain the effective aggregate EIRP density from all simultaneously transmitting co-frequency terminals operating with the same satellite transponder at least 1 dB below the off-axis EIRP density limits defined in paragraphs (a)(1)(i)(A) through (C) of this section. In this context the term “effective” means that
(ii) An applicant proposing to implement an ESAA system under paragraph (a)(3)(ii) of this section that uses off-axis EIRP spectral-densities in excess of the levels in paragraph (a)(3)(i) of this section shall provide the following certifications, demonstration and list of satellites as exhibits to its earth station application:
(A) A detailed showing of the measures the applicant intends to employ to maintain the effective aggregate EIRP density from all simultaneously transmitting co-frequency terminals operating with the same satellite transponder at the EIRP density limits supplied to the target satellite operator. The International Bureau will place this showing on Public Notice along with the application.
(B) A statement from the target satellite operator certifying that the proposed operation of the ESAA has the potential to create harmful interference to satellite networks adjacent to the target satellite(s) that may be unacceptable.
(C) A statement from the target satellite operator certifying that the aggregate power-density levels that the ESAA applicant provided to the target satellite operator are consistent with the existing coordination agreements between its satellite(s) and the adjacent satellite systems within 6° of orbital separation from its satellite(s).
(D) A statement from the target satellite operator certifying that it will include the aggregate power-density levels of the ESAA applicant in all future coordination agreements.
(E) A demonstration from the ESAA operator that the ESAA system is capable of detecting and automatically ceasing emissions within 100 milliseconds when an individual transmitter exceeds the off-axis EIRP spectral-densities supplied to the target satellite operator and that the overall system is capable of shutting off an individual transmitter or the entire system if the aggregate off-axis EIRP spectral-densities exceed those supplied to the target satellite operator.
(F) An identification of the specific satellite or satellites with which the ESAA system will operate.
(4) There shall be an exhibit included with the application describing the geographic area(s) in which the ESAA will operate.
(5) Any ESAA applicant filing for an ESAA terminal or system and planning to use a contention protocol shall include in its application a certification that will comply with the requirements of paragraph (a)(4) of this section.
(6) The point of contact referred to in paragraph (a)(5) of this section shall be included in the application.
(7) Any ESAA applicant filing for an ESAA terminal or system shall include in its application a certification that will comply with the requirements of paragraphs (a)(6), (a)(9), (a)(10), and (a)(11) of this section.
(8) All ESAA applicants shall submit a radio frequency hazard analysis determining via calculation, simulation, or field measurement whether ESAA terminals, or classes of terminals, will produce power densities that will exceed the Commission's radio frequency exposure criteria. ESAA applicants with ESAA terminals that will exceed the guidelines in § 1.1310 of this chapter for radio frequency radiation exposure shall provide, with their environmental assessment, a plan for mitigation of radiation exposure to the extent required to meet those guidelines. All ESAA licensees shall ensure installation of ESAA terminals on aircraft by qualified installers who have an understanding of the antenna's radiation environment and the measures best suited to maximize protection of the general public and persons operating the vehicle and equipment. An ESAA terminal exhibiting radiation exposure levels exceeding 1.0 mW/cm
(c)(1) Operations of ESAAs in the 14.0-14.2 GHz (Earth-to-space) frequency band in the radio line-of-sight of the NASA TDRSS facilities on Guam (latitude 13°36′55″ N, longitude 144°51′22″ E) or White Sands, New Mexico (latitude 32°20′59″ N, longitude 106°36′31″ W and latitude 32°32′40″ N, longitude 106°36′48″ W) are subject to coordination with the National Aeronautics and Space Administration (NASA) through the National Telecommunications and Information Administration (NTIA) Interdepartment Radio Advisory Committee (IRAC). Licensees shall notify the International Bureau once they have completed coordination. Upon receipt of such notification from a licensee, the International Bureau will issue a public notice stating that the licensee may commence operations within the coordination zone in 30 days if no party has opposed the operations.
(2) When NTIA seeks to provide similar protection to future TDRSS sites that have been coordinated through the IRAC Frequency Assignment Subcommittee process, NTIA will notify the Commission's International Bureau that the site is nearing operational status. Upon public notice from the International Bureau, all Ku-band ESAA licensees shall cease operations in the 14.0-14.2 GHz band within radio line-of-sight of the new TDRSS site until the licensees complete coordination with NTIA/IRAC for the new TDRSS facility. Licensees shall notify the International Bureau once they have completed coordination for the new TDRSS site. Upon receipt of such notification from a licensee, the International Bureau will issue a public notice stating that the licensee may commence operations within the coordination zone in 30 days if no party has opposed the operations. The ESAA licensee then will be permitted to commence operations in the 14.0-14.2 GHz band within radio line-of-sight of the new TDRSS site, subject to any operational constraints developed in the coordination process.
(d)(1) Operations of ESAA in the 14.47-14.5 GHz (Earth-to-space) frequency band in the radio line-of-sight of radio astronomy service (RAS) observatories observing in the 14.47-14.5 GHz band are subject to coordination with the National Science Foundation (NSF). The appropriate NSF contact point to initiate coordination is Electromagnetic Spectrum Manager, NSF, 4201 Wilson Blvd., Suite 1045, Arlington VA 22203, fax 703-292-9034, email
(2) A list of applicable RAS sites and their locations can be found in § 25.226(d)(2) Table 1.
(3) When NTIA seeks to provide similar protection to future RAS sites that have been coordinated through the IRAC Frequency Assignment Subcommittee process, NTIA will notify the Commission's International Bureau that the site is nearing operational status. Upon public notice from the International Bureau, all Ku-band ESAA licensees shall cease operations in the 14.47-14.5 GHz band within the relevant geographic zone of the new RAS site until the licensees complete coordination for the new RAS facility. Licensees shall notify the International Bureau once they have completed coordination for the new RAS site and shall submit the coordination agreement to the Commission. Upon receipt of such notification from a licensee, the International Bureau will issue a public notice stating that the licensee may commence operations within the coordination zone in 30 days if no party has opposed the operations. The ESAA licensee then will be permitted to commence operations in the 14.47-14.5 GHz band within the relevant coordination distance around the new RAS site, subject to any operational constraints developed in the coordination process.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS is reallocating the projected unused amounts of the Aleut Corporation's pollock directed fishing allowance and the Community Development Quota from the Aleutian Islands subarea to the Bering Sea subarea directed fisheries. These actions are necessary to provide opportunity for harvest of the 2013 total allowable catch of pollock, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area.
Effective 1200 hrs, Alaska local time (A.l.t.), March 8, 2013, until 2400 hrs, December 31, 2013, Alaska local time.
Steve Whitney, 907-586-7269.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
In the Aleutian Islands subarea, the portion of the 2013 pollock total allowable catch (TAC) allocated to the Aleut Corporation's directed fishing allowance (DFA) is 15,500 metric tons (mt) and the Community Development Quota (CDQ) is 1,900 mt as established by the final 2013 and 2014 harvest specifications for groundfish in the BSAI (78 FR 13813, March 1, 2013).
As of March 1, 2013, the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that 10,500 mt of Aleut Corporation's DFA and 1,900 mt of pollock CDQ in the Aleutian Islands subarea will not be harvested. Therefore, in accordance with § 679.20(a)(5)(iii)(B)(
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of AI pollock. Since the pollock fishery is currently open, it is important to immediately inform the industry as to the final Bering Sea subarea pollock allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery; allow the industry to plan for the fishing season and avoid potential disruption to the fishing fleet as well as processors; and provide opportunity to harvest increased seasonal pollock allocations while value is optimum. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 1, 2013.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (SNPRM); reopening of comment period.
We are revising an earlier proposed airworthiness directive (AD) to supersede an existing AD for certain The Boeing Company Model 767 airplanes. The existing AD currently requires repetitive inspections to detect discrepancies of the wiring and surrounding Teflon sleeves of the fuel tank boost pumps and override/jettison pumps; replacement of the sleeves with new sleeves, for certain airplanes; and repair or replacement of the wiring and sleeves with new parts, as necessary. The first SNPRM proposed to reduce the initial compliance time and repetitive inspection interval in the existing AD. The first SNPRM also proposed to mandate a terminating action for the repetitive inspections, to eliminate wire damage. In addition, the first SNPRM proposed to remove certain airplanes from the applicability of the existing AD. The first SNPRM was prompted by fleet information indicating that the repetitive inspection interval in the existing AD is too long, because excessive chafing of the sleeving continues to occur much earlier than expected between scheduled inspections. This action revises the first SNPRM by also proposing to require revising the maintenance program to incorporate changes to the airworthiness limitations section. We are proposing this second SNPRM to detect and correct chafing of the fuel pump wire insulation and consequent exposure of the electrical conductor, which could result in electrical arcing between the wires and conduit and consequent fire or explosion of the fuel tank. Since these actions impose an additional burden over that proposed in the first SNPRM, we are reopening the comment period to allow the public the chance to comment on these proposed changes.
We must receive comments on this proposed AD by April 22, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede airworthiness directive (AD) 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)). That first SNPRM would apply to certain Model 767-200, -300, -300F, and -400ER series airplanes. The first SNPRM published in the
Since we issued the first SNPRM (77 FR 39188, July 2, 2012), we have reviewed the information specified in Airworthiness Limitation Instruction, Critical Design Configuration Control Limitations (CDCCL) Task 28-AWL-29, “In-Tank AC Fuel Pump Wire Bundles with Protective Liner;” and CDCCL Task 28-AWL-30, “Fuel Boost Pump Wires in Conduit Installation—In Fuel Tank;” of Section 9 of Boeing 767 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision October 2012. We have determined it is necessary to revise the maintenance program to include these tasks in order to address the identified unsafe condition.
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 39188, July 2, 2012), and the FAA's response to each comment.
Air Canada (ACN) asked that the terminating action mandated by the first SNPRM (77 FR 39188, July 2, 2012) be deemed optional. American Airlines (AAL) stated that after complying with the inspections in the first SNPRM, very little damage was found. AAL added that damage is confined to the outer sleeve beyond 44,400 flight hours, and the wiring damage does not occur until 17 years later when undisturbed. AAL concluded that, given its service experience, Boeing's service data and analysis and the proposed 15,000 flight-hour inspection interval, the terminating action should not be mandated. ACN provided no justification for its request.
We do not agree with the commenters. Mandating the terminating action is based on our determination that, in this case, long term continued operational safety would be better ensured by a modification to remove the source of the problem, rather than by repetitive inspections. As a matter of policy, we have determined that long-term inspections might not provide the degree of safety necessary for the transport airplane fleet. This determination has led us to consider placing less emphasis on inspections and more emphasis on design improvements. The modification is consistent with these conditions. Therefore, we have not changed the second SNPRM in this regard.
ACN stated that it would like the FAA to confirm that the new repetitive inspection interval proposed by Boeing is based on sufficient evidence and supported by proper risk analysis. ACN noted that the information should be specific to the Model 767 fleet and should justify such a drastic increase in the frequency of the repetitive inspection interval.
We agree to provide justification. Operators have reported finding chafing of the fuel pump wire bundle before the accumulation of 30,000 flight cycles or 60,000 flight hours. Wire bundle chafing could wear away the sleeving, jacket, and wire installation, in addition to exposing metal conductors and causing electrical arcing. Based on these reports, the design approval holder (DAH) recommended that the wiring inspection required by this proposed AD be done within 15,000 flight hours after doing the most recent inspection. The DAH also recommended not including flight cycles in the inspection interval. We analyzed their recommendations and agreed. The repetitive interval for the wiring inspection is within 15,000 flight hours after the most recent inspection until the terminating action has been done. We have not changed the second SNPRM in this regard.
United Airlines (UAL), Japan Airlines (JAL), and UPS asked that the paragraph identifiers referenced within certain paragraphs in the first SNPRM (77 FR 39188, July 2, 2012) be corrected. UAL, JAL, and UPS stated that those paragraph identifiers are incorrect and suggested changes. The suggested changes to the first SNPRM are as follows:
• The reference within paragraph (i)(2)(i)(C) that identifies paragraph (h)(2)(i)(D) should identify paragraph (i)(2)(i)(D).
• The reference within paragraph (i)(2)(i)(D) that identifies paragraph (h)(2) should identify paragraph (i)(2).
• The reference within paragraph (k) that identifies paragraph (l)(1) or (l)(2) should identify paragraph (k)(1) or (k)(2).
We agree with the commenters' requests for the reasons provided. We have changed those paragraphs identified above accordingly.
JAL asked that paragraph (g) be added to paragraph (l) of the first SNPRM (77 FR 39188, July 2, 2012), so that accomplishing the terminating action specified in Boeing Alert Service Bulletin 767-28A0104, Revision 1, dated March 2, 2012, applies to paragraphs (g) and (k) of the first SNPRM. JAL also asked that Boeing Alert Service Bulletin 767-28A0104, Revision 1, dated March 2, 2012, be added to paragraph (m) of the first SNPRM.
We agree to clarify the terminating action. We have changed the last sentence of paragraph (l) of this second SNPRM to read: “Accomplishing the replacement specified in this paragraph ends the repetitive inspection requirements in paragraphs (g) and (k) of this AD.” However, we have not changed paragraph (m) of this second SNPRM in this regard, because that paragraph gives credit for accomplishing the terminating action required by paragraph (l) of this second SNPRM, if the terminating action was done before the effective date of the AD using Boeing Alert Service Bulletin 767-28A0104, dated January 25, 2011.
UAL stated that it reviewed Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, which contains a note that refers to paragraph (c)(2)(ii) of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)). UAL suggested that the first SNPRM (77 FR 39188, July 2, 2012), provide information regarding the applicable equivalent paragraph in the superseding AD.
We acknowledge that Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, refers to paragraph (c)(2)(ii) of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)). Paragraph (c)(2)(ii) of AD 2000-11-06 corresponds to paragraph (i)(2)(ii) of this second SNPRM. However, we do not agree with requiring a service information update, because the note which refers to paragraph (c)(2)(ii) of that service information will not adversely affect accomplishment of the required actions. We have not changed the second SNPRM in this regard.
Boeing asked that the language in the “Comments” section of the preamble of
We acknowledge and agree with the commenter's request for clarification; however, the content of that section of the preamble of the first SNPRM (77 FR 39188, July 2, 2012) does not reappear in this second SNPRM. However, we have added the words “with a conduit liner” to paragraph (l) of this second SNPRM for clarification.
UAL requested that we reference new service information to address minor corrections for Boeing Alert Service Bulletin 767-28A0104, Revision 1, dated March 2, 2012. UAL noted that certain figure callouts should be revised.
We do not agree. Boeing has not yet issued a revised service bulletin. Accomplishing Boeing Alert Service Bulletin 767-28A0104, Revision 1, dated March 2, 2012, addresses the identified unsafe condition. If a new service bulletin is issued later, operators may request an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (p) of this AD. We have not changed the second SNPRM in this regard.
UAL asked that the work-hours specified in the “Costs of Compliance” section of the first SNPRM (77 FR 39188, July 2, 2012) be increased. UAL stated that the new proposed action in the first SNPRM specifies that it will take 33 work-hours per airplane; however, Boeing Alert Service Bulletin 767-28A0104, Revision 1, dated March 2, 2012, specifies 41.5 work-hours per airplane. UAL suggested increasing the work-hours to be consistent with the service information.
We agree with the commenter. The cost data that was included in the first SNPRM (77 FR 39188, July 2, 2012) has been updated. We have changed the total number of work-hours for the “new proposed action” in the “Costs of Compliance” section of this second SNPRM accordingly.
We are proposing this second supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the first SNPRM (77 FR 39188, July 2, 2012). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this second SNPRM.
This second SNPRM would require repetitive inspections to detect discrepancies of the wiring and surrounding Teflon sleeves of the fuel tank boost pumps and override/jettison pumps; replacement of the sleeves with new sleeves, for certain airplanes; and repair or replacement of the wiring and sleeves with new parts, as necessary; a terminating action for the repetitive inspections, to eliminate wire damage. This second SNPRM also would require revising the maintenance program to incorporate changes to the airworthiness limitations section.
We estimate that this proposed AD affects 414 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary repairs that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these repairs:
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,
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by April 22, 2013.
This AD supersedes AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)).
(1) This AD applies to The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes, certificated in any category, as identified in Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011.
(2) This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections) and/or Critical Design Configuration Control Limitations (CDCCLs). Compliance with these actions and/or CDCCLs is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (p) of this AD. The request should include a description of changes to the required actions that will ensure the continued operational safety of the airplane.
Air Transport Association (ATA) of America Code 28: Fuel.
This AD was prompted by fleet information indicating that the repetitive inspection interval in the existing AD is too long because excessive chafing of the sleeving continues to occur much earlier than expected between scheduled inspections. We are issuing this AD to detect and correct chafing of the fuel pump wire insulation and consequent exposure of the electrical conductor, which could result in electrical arcing between the wires and conduit and consequent fire or explosion of the fuel tank.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (a) of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)), with revised service information. Perform a detailed visual inspection to detect discrepancies—including the presence of cuts, splits, holes, worn areas, and lacing ties installed on the outside of the sleeves (except at the sleeve ends)—of the Teflon sleeves surrounding the wiring of the fuel tank boost pumps and override/jettison pumps, at the earlier of the times specified in paragraphs (g)(1) and (g)(2) of this AD, in accordance with Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. Repeat the inspection thereafter at intervals not to exceed 60,000 flight hours or 30,000 flight cycles, whichever occurs first. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(1) Prior to the accumulation of 50,000 total flight hours, or within 90 days after July 6, 2000 (the effective date of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)), whichever occurs later.
(2) Within 18 months after July 6, 2000 (the effective date of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)).
This paragraph restates the requirements of paragraph (b) of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)), with revised service information. If any discrepancy is detected during any inspection required by paragraph (g) of this AD: Prior to further flight, remove the Teflon sleeves and perform a detailed visual inspection to detect damage of the wiring, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(1) If no damage to the wiring is detected, prior to further flight, install new Teflon sleeves, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(2) If any damage to the wiring is detected, prior to further flight, accomplish the requirements of paragraph (i) of this AD.
This paragraph restates the requirements of paragraph (c) of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)), with revised service information. If any damage to the wiring is detected during any inspection required by paragraph (h) of this AD: Prior to further flight, perform a detailed visual inspection to determine if the wiring damage was caused by arcing, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-
(1) If the wire damage was not caused by arcing: Prior to further flight, repair any damaged wires or replace the wires with new or serviceable wires, as applicable, and install new Teflon sleeves, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(2) If any damage caused by arcing is found: Prior to further flight, perform an inspection for signs of fuel inside the conduit or on the wires, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(i) If no sign of fuel is found, accomplish the actions specified in paragraphs (i)(2)(i)(A), (i)(2)(i)(B), (i)(2)(i)(C), and (i)(2)(i)(D) of this AD.
(A) Prior to further flight, repair the wires or replace the wires with new or serviceable wires, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(B) Prior to further flight, install new Teflon sleeves, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(C) Repeat the inspection for signs of fuel inside the conduit thereafter at intervals not to exceed 500 flight hours, until the requirements of paragraph (i)(2)(i)(D) of this AD have been accomplished. If any fuel is found inside the conduit during any inspection required by this paragraph, prior to further flight, replace the conduit with a new or serviceable conduit in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. Thereafter, repeat the inspection specified in paragraph (g) of this AD at intervals not to exceed 60,000 flight hours or 30,000 flight cycles, whichever occurs first. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(D) Within 6,000 flight hours or 18 months after the initial fuel inspection specified by paragraph (i)(2) of this AD, whichever occurs first, replace the conduit with a new or serviceable conduit, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. Such conduit replacement constitutes terminating action for the repetitive fuel inspections required by paragraph (i)(2)(i)(C) of this AD. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
(ii) If any fuel is found in the conduit or on any wire: Prior to further flight, replace the conduit with a new or serviceable conduit, replace damaged wires with new or serviceable wires, and install new Teflon sleeves; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. Thereafter, repeat the inspection specified in paragraph (g) of this AD at intervals not to exceed 60,000 flight hours or 30,000 flight cycles, whichever occurs first. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
This paragraph restates the requirements of paragraph (d) of AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)), with revised service information. For any wire bundle removed and reinstalled during any inspection required by this AD: Prior to further flight after such reinstallation, retest the fuel pump in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 1, dated August 5, 1999; Boeing Alert Service Bulletin 767-28A0053, Revision 2, dated June 24, 2010; or Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011, may be used to do the actions required by this paragraph.
Do the inspection required by paragraph (g) of this AD at the time specified in paragraph (k)(1) or (k)(2) of this AD, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-28A0053, Revision 3, dated November 11, 2011. Repeat the inspection thereafter at intervals not to exceed 15,000 flight hours. Accomplishing the first inspection in this paragraph ends the repetitive inspection requirements in paragraph (g) of this AD.
(1) For airplanes on which the inspection required by paragraph (g) of this AD has been done as of the effective date of this AD: Do the inspection within 15,000 flight hours after the most recent inspection or within 6,000 flight hours after the effective date of this AD, whichever occurs later, but not to exceed 60,000 flight hours after the most recent inspection required by paragraph (g) of this AD.
(2) For airplanes on which the inspection required by paragraph (g) of this AD has not been done as of the effective date of this AD: Do the inspection before the accumulation of 15,000 total flight hours or within 6,000 flight hours after the effective date of this AD, whichever occurs later.
Within 60 months after the effective date of this AD: Replace the fuel boost pump and override/jettison pump wire bundles inside the in-tank electrical conduit with a conduit liner and new wire bundles, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-28A0104, Revision 1, dated March 2, 2012. Accomplishing the replacement specified in this paragraph ends the repetitive inspection requirements in paragraphs (g) and (k) of this AD.
This paragraph provides credit for the actions required by paragraph (l) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 767-28A0104, dated January 25, 2011.
Within 180 days after the effective date of this AD: Revise the maintenance program to incorporate CDCCL Task 28-AWL-29, “In-Tank AC Fuel Pump Wire Bundles With Protective Liner;” and CDCCL Task 28-AWL-30, “Fuel Boost Pump Wires in Conduit Installation—In Fuel Tank;” of Section 9, of Boeing 767 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), of the Boeing 767 Maintenance Planning Data (MPD) Document, D622T001-9, Revision October 2012.
After accomplishing the revision required by paragraph (n) of this AD, no alternative actions (e.g., inspections), intervals, and/or CDCCLs may be used unless the actions, intervals, and/or CDCCLs are approved as an alternative method of compliance in accordance with the procedures specified in paragraph (p) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) AMOCs approved previously in accordance with AD 2000-11-06, Amendment 39-11754 (65 FR 34928, June 1, 2000; corrected August 1, 2000 (65 FR 46862)), are approved as AMOCs with the corresponding requirements of this AD. Compliance time extensions approved previously in accordance with AD 2000-11-06 are not approved as AMOCs for the compliance times required by paragraph (k) of this AD.
(1) For more information about this AD, contact Rebel Nichols, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6509; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations relating to the penalty under section 6708 of the Internal Revenue Code for failing to make available lists of advisees with respect to reportable transactions. Section 6708 imposes a penalty upon material advisors for the failure to make available to the Secretary, upon written request, lists required by section 6112 within the time prescribed by section 6708(a)(1). These proposed regulations reflect changes to section 6708 made by the American Jobs Creation Act of 2004 and provide guidance regarding the imposition of the section 6708 penalty on material advisors who are required to maintain lists of advisees pursuant to section 6112. This document also provides notice of a public hearing on these proposed regulations.
Written or electronic comments must be received by June 6, 2013. Requests to speak and outlines of topics to be discussed at the public hearing scheduled for July 2, 2013 at 10:00 a.m. must be received by June 10, 2013.
Send submissions to: CC:PA:LPD:PR (REG-160873-04), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LDP:PR (REG-160873-04), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulations, Emily M. Lesniak at (202) 622-4910; concerning submission of comments, the hearing, or to be placed on the building access list to attend the hearing, Oluwafunmilayo (Funmi) Taylor at (202) 622-7180 (not toll-free numbers).
The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by May 7, 2013. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information or of the certification contained under the heading “Special Analyses”;
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collection of information may be minimized; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchases of service to provide information.
The collection of information in this proposed regulation is in § 301.6708-1(c)(3)(ii). This information is required for the IRS to determine whether good cause exists to allow a person affected by these regulations an extension of the legislatively established 20-business-day period to furnish a lawfully requested list to the IRS. The collection of information is voluntary to obtain a benefit. The likely respondents are persons (individuals and entities) who qualify as material advisors, as defined in section 6111, who are unable to respond to a valid and statutorily authorized section 6112 list request within the statutory period of time provided by section 6708.
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 control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains proposed amendments to 26 CFR part 301 relating to the section 6708 penalty for failing to make available, as required by section 6112, lists of advisees with respect to reportable transactions. Section 6112 requires material advisors to maintain lists of advisees and other information with respect to reportable transactions and to make that information available to the Secretary upon written request.
Section 6708 was added to the Internal Revenue Code by the Deficit Reduction Act of 1984 (Pub. L. 98-369, 98 Stat. 680). At that time, section 6708 imposed a penalty on each organizer or seller of a potentially abusive tax shelter who failed to meet the requirements of section 6112 unless the person showed that the failure occurred as a result of reasonable cause and not as a result of willful neglect. The amount of the penalty was $50 for each person who was sold an interest in a tax shelter and whose name (or other required information) was not listed or maintained pursuant to the requirements of section 6112. The maximum penalty imposed was $50,000 for each tax shelter for a calendar year. Treasury Reg. § 301.6708-1T was issued shortly after section 6708 became law. Subsequently, the Tax Reform Act of 1986 (Pub. L. 99-514, 100 Stat. 2090) increased the maximum calendar year penalty to $100,000.
The American Jobs Creation Act of 2004, Public Law 108-357, 118 Stat. 1418 (AJCA), was enacted on October 22, 2004. AJCA section 817 amended section 6708, significantly increasing the amount of the penalty and eliminating the maximum calendar-year limit on the penalty. As amended by the AJCA, section 6708 imposes a penalty on a person required to maintain a list under section 6112 (a “material advisor”) who fails to make the list available to the IRS upon written request. Under section 6708(a)(1), if a material advisor fails to comply with a written request for the section 6112 list within 20 business days after the request is made, the material advisor is subject to a penalty in the amount of $10,000 for each day of the failure after the 20th business day. Under section 6708(a)(2), the penalty will not be imposed on any day that the failure is due to reasonable cause. There is no statutory limitation to the amount of the penalty that can be imposed under section 6708. Section 6708(b) provides that the penalty imposed under section 6708(a) shall be in addition to any other penalty provided by law. Section 6708, as amended, is effective for requests made after October 22, 2004, and it encompasses requests made for lists required to be maintained under section 6112 before section 6112 was amended by the AJCA.
To implement the pertinent provisions of the AJCA, the Treasury Department and IRS issued Notice 2004-80, 2004-2 C.B. 963 (see § 601.601(d)(2)(ii)(b)), which provided interim guidance relating to section 6708, as well as section 6112. With respect to section 6708, Notice 2004-80 provides that the 20-business-day period within which a person must provide the list required to be maintained under section 6112 shall begin on the first business day following the earlier of the date that the IRS: (1) Mails a request for the list by certified or registered mail to the last known address of the material advisor required to maintain the list; or (2) hand-delivers the written request in person. The Treasury Department and IRS also issued interim guidance relating to section 6112 in Notice 2005-17, 2005-1 C.B. 606; Notice 2005-22, 2005-1 C.B. 756; and Notice 2006-6, 2006-1 C.B. 385. On July 31, 2007, the Treasury Department and IRS issued final regulations under section 6112 (TD 9352) replacing the interim guidance relating to section 6112. The Treasury Department and IRS have received various comments and questions regarding the application of section 6708 as amended by the AJCA. Consequently, after consideration of these comments and questions, the Treasury Department and IRS are publishing proposed rules reflecting the AJCA amendments to section 6708.
Proposed § 301.6708-1(a) provides that, in general, section 6708 imposes a penalty of $10,000 per day for the failure of a person required to maintain a list under section 6112 to furnish the list to the IRS, upon written request, within 20 business days after the date of the request, absent reasonable cause.
Proposed § 301.6708-1(b) provides that the 20-business-day period begins on the first business day following the earlier of the date that the IRS: (1) Mails the request for the section 6112 list by certified or registered mail to the person required to maintain the list; (2) hand delivers the request for the section 6112 list directly to the person; or (3) leaves the request for the section 6112 list at the last and usual place of abode or usual place of business of the person. Proposed § 301.6708-1(c) provides that the person may make the requested list available to the IRS as required by section 6112 by delivering it to the IRS by either hand delivery, the U.S. mail, a private delivery service, or by arranging with the IRS to produce the list by another agreed-upon method within the 20-business-day period following the list request.
The Treasury Department and the IRS believe that there are situations in which it is necessary to permit an extension of the 20-business-day response period. Proposed § 301.6708-1(c)(3) permits the IRS to grant an extension, at its discretion, if prior to the expiration of the 20-business-day period, the person establishes that the person cannot reasonably meet the 20-business-day deadline despite diligent efforts to maintain the materials constituting a list and to make that list available to the IRS in the time and manner required by the Secretary under section 6112. The proposed regulations explain how to request an extension and discuss the various factors that the IRS will consider in determining whether to grant the person's extension request. The IRS may, in its discretion, grant the person's extension request in full or in part. The failure of the IRS to grant the person's extension request in full or in part may not be reviewed in any judicial proceeding.
The conference report accompanying the enactment of the AJCA amendments to section 6708 describes the penalty as a “time-sensitive penalty,” and, accordingly, no extensions will be granted where the IRS determines that a significant reason for the extension request is to delay production of the list. See H.R. Rep. No. 108-755, 108th Cong., 2d Sess., at 597. In this regard, § 301.6708-1(c)(3)(ii) of the proposed regulations requires persons seeking extensions to affirmatively state that the extension request is not made for purposes of avoiding the person's list maintenance obligations imposed by section 6112 and its corresponding regulations. The Treasury Department and IRS believe that the time-sensitive
The conference report accompanying the AJCA modifications to the section 6708 penalty provides that the “penalty applies to a person who fails to maintain a list, maintains an incomplete list, or has in fact maintained a list but does not make the list available to the Secretary.” H.R. Rep. No. 108-755, 108th Cong., 2d Sess., at 598. Consistent with the legislative history of the AJCA, a failure to furnish the list that triggers the imposition of the section 6708 penalty may take various forms. Proposed § 301.6708-1(d) provides that a failure for purposes of section 6708 includes the failure to furnish a list in a timely manner and in the form required under section 6112 and its corresponding regulations. Regarding the determination of whether the list is furnished in the form required under section 6112 and its corresponding regulations, the Treasury Department and the IRS recognize that they have issued several regulations under section 6112 and that the description of the required contents of a list maintained under section 6112 has varied over time. The Treasury Department and the IRS intend that the description of the contents of the list that is used for purposes of this penalty is the description required by section 6112 (and any corresponding regulations) that was in effect on the date the material advisor's list preparation and maintenance requirement arose with respect to the reportable transaction.
The IRS will make reasonable efforts to review responses submitted under section 6112 and inform the person of any potential or identified failures in the person's response on a timely basis. If the person's response is determined to be incomplete, or untimely, the IRS may impose the section 6708 penalty on a daily basis, consistent with section 6708(a) and proposed § 301.6708-1(e). Proposed § 301.6708-1(e) provides that the section 6708 penalty accrues on a daily basis, absent reasonable cause, beginning on the first calendar day after the expiration of the 20-business-day period following a written list request, and continues for each calendar day until, and including, the day the person furnishes a list that complies with the requirements of section 6112 and its corresponding regulations. If the IRS grants an extension of the 20-business-day period, proposed § 301.6708-1(e)(2) provides that the section 6708 penalty accrues on a daily basis, absent reasonable cause, beginning on the first calendar day after the expiration of the extension period, and continues each calendar day thereafter until, and including, the day the person furnishes a list that complies with the requirements of section 6112 and its corresponding regulations.
Proposed § 301.6708-1(e)(3) provides guidance on the obligations of, and assessment of penalties against, a material advisor when more than one material advisor provided advice on a particular transaction and the material advisors are parties to a designation agreement pursuant to section 6112 and its corresponding regulations.
The section 6708 penalty will not be imposed for any day for which the material advisor establishes that there was reasonable cause for the failure to make the list available. Proposed §§ 301.6708-1(g) and (h) describe reasonable cause for purposes of the section 6708 penalty. Reasonable cause is determined on a day-by-day and case-by-case basis, taking into account all the relevant facts and circumstances. The material advisor against whom the penalty is imposed has the burden of proving that reasonable cause exists for a specific day or days. Facts and circumstances relevant to a material advisor's reasonable cause for failing to provide the list on a specific day include facts and circumstances arising subsequent to the request for the list and the material advisor's response to the request. Thus, if the material advisor establishes reasonable cause, the IRS will abate the penalty completely or for the period to which the established reasonable cause relates, which may be for a specific day, days, or the entire period. Proposed § 301.6708-1(g)(6) provides examples involving reasonable cause.
Because reasonable cause can be shown to exist in situations involving a variety of facts and circumstances, the proposed regulations include a nonexclusive list of categories of reasonable cause factors that the IRS will consider. Pursuant to proposed § 301.6708-1(g)(2), the most important factors in a reasonable cause analysis are those that reflect the extent of the material advisor's good-faith efforts to timely and fully comply with section 6112. Proposed § 301.6708-1(g)(3) provides that the exercise of ordinary business care by a material advisor may constitute reasonable cause, but only where the material advisor shows that it took immediate steps to correct any failure upon its discovery. A material advisor's failure to take immediate steps to correct a failure shall be a factor weighing against a finding that the material advisor exercised ordinary business care.
Proposed § 301.6708-1(g)(4) provides that reasonable cause may exist if a failure is due solely to a supervening event, such as illness, theft, fire, flood, storm, or other similar, unexpected event that is beyond the material advisor's control and that prevents the material advisor from making the list available pursuant to the requirements of section 6112.
Proposed § 301.6708-1(g)(5) provides that reasonable cause may be established if the material advisor relied on the advice of an “independent tax professional” as defined in the proposed regulations. The proposed regulations explain that the reliance on an independent tax professional's advice must be reasonable and in good faith, and will be viewed in light of all the relevant facts and circumstances. In addition to other factors described in the regulations, the advice must be received by the person prior to the time that the list is required to be furnished to the IRS. If the person received advice from an independent tax professional, the person's reliance on that advice will be considered reasonable only if the independent tax professional expressed a reasonable belief that it is more likely than not that the person is compliant with section 6112 or does not have an obligation imposed by section 6112. Advice from a nonindependent tax professional may be considered in conjunction with all other relevant facts and circumstances but by itself is not sufficient to establish reasonable cause.
Proposed § 301.6708-1(h) describes additional reasonable cause factors that are applicable in limited factual circumstances. Proposed § 301.6708-1(h)(1) provides that if a material advisor dissolves, is liquidated, or is otherwise no longer in existence, the IRS will consider facts surrounding the
If the material advisor establishes that it acted in good faith (within the meaning of proposed § 301.6708-1(g)(2)) in its efforts to fully comply with the requirements of section 6112, the material advisor will have reasonable cause for the days between when the material advisor provided the list to the IRS and when the IRS reviews the list. If the material advisor does not establish that it acted in good faith, the IRS will not consider the time taken by the IRS to review a list or inform a material advisor of identified failures as a factor in determining whether the material advisor has reasonable cause for that period.
Proposed § 301.6708-1(h)(3) provides examples to illustrate when a material advisor has acted in good faith.
The regulations, as proposed, apply to all written requests made after the date of publication of a Treasury decision adopting these rules as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the collection of information described above under the heading “Paperwork Reduction Act” only affects persons who qualify as material advisors as defined in section 6111, who are statutorily required by section 6112 to maintain and furnish the underlying documents and information upon which the collection of information is based, and who are unable to meet the section 6708 statutorily provided period of time for furnishing these documents and information. Moreover, requiring those persons to report the information described above imposes only a minimal burden in time or expense. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and IRS specifically request comments on the clarity of the proposed regulations and on how they can be made easier to understand. All comments submitted by the public will be made available for public inspection and copying.
A public hearing has been scheduled for July 2, 2013, beginning at 10:00 a.m. in the Auditorium (7th Floor) of the Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments by June 6, 2013 and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by June 10, 2013. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the schedule of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these regulations is Lawrence E. Mack, Office of the Associate Chief Counsel (Procedure and Administration).
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 301.6708-1 also issued under 26 U.S.C. 6708 * * *
(a)
(b)
(1) Mails a request for the list required to be maintained under section 6112(a) by certified or registered mail to the person required to maintain the list;
(2) Hand delivers the written request to the person required to maintain the list; or
(3) Leaves the written request at the last and usual place of abode or usual place of business of the person required to maintain the list.
(c)
(2) A person who is required to maintain a list required by section 6112 may also make the list available to the IRS by making it available for inspection during normal business hours, as provided by section 6112, or by another agreed-upon method, on an agreed upon date that falls within the 20-business-day period following the list request.
(3)
(ii)
(4)
Firm A is a large law firm that is a material advisor. Firm A conducts annual sessions to educate its professionals about reportable transactions and the obligations of the firm related to those reportable transactions. Firm A instructs its professionals to provide information on tax engagements that involve reportable transactions and to provide the documents required to be maintained under section 6112 to Firm A's compliance officer for list maintenance purposes. Firm A's policy provides that, for each engagement involving a reportable transaction, one firm professional will send an email to the firm's compliance officer about the engagement and then direct a subordinate to send the documents required to be maintained to the firm's compliance officer.
Firm A receives a request from the IRS for a section 6112 list. In compiling its list to turn over to the IRS during the 20-business-day period following the list request, Firm A discovers that, with respect to one reportable transaction, a subordinate did not provide the documentation required by Firm A's policy. In addition, Firm A experiences difficulty locating the required documents as both the professional and the subordinate who worked on the matter are no longer employed by Firm A, requiring the firm to undertake an extensive search of its storage facility for the documents responsive to the list request. Firm A also seeks the materials from the firm's clients, but they are unable to respond timely to the request. Firm A notifies the IRS, in writing, of the difficulties it is experiencing, and provides all other required list information to the IRS, together with a description of the documents that are being searched for at the storage facility, a proposed schedule of production of the documents within 10 business days, and all statements required by these regulations, within the 20-business-day period while it locates the documents for this one engagement.
Under these circumstances, Firm A demonstrated that it could not reasonably make the portion of the list relating to the one engagement, including the documents in the storage facility, available within the 20-business-day period and thus qualified for an extension. Firm A had established procedures reasonably designed and implemented to ensure compliance with the requirements of section 6112. The facts indicate that Firm A made diligent efforts to maintain the materials constituting the list in a readily accessible form and as otherwise required by the Secretary under section 6112. Based on the above, the IRS should grant a 10-business-day extension with respect to the portion of the list including the documents that are located at the storage facility.
(d)
(e)
(2)
(3)
(4)
The IRS hand delivers a written request for the list required to be maintained under section 6112 to Firm B, a material advisor, on Friday, March 4, 2011. Firm B must make the list available to the IRS on or before Friday, April 1, 2011, the 20th business day after the request was hand delivered. If Firm B fails to make the list available to the IRS by that day, absent reasonable cause or the IRS grant of an extension for the response time, the $10,000-per-day penalty begins on Saturday, April 2,
(f)
(1)
(2)
(3)
(4)
(g)
(2)
(i) The person's efforts to determine or assess its status as a material advisor as defined by section 6111;
(ii) The person's efforts to determine the information and documentation required to be maintained under section 6112;
(iii) The person's efforts to meet its obligations to maintain a readily-producible list as required by section 6112;
(iv) The person's efforts to make the list available to the IRS within the 20-business-day period (or extended period) following the list request; and
(v) The person's efforts to ensure that the list that is furnished to the IRS is accurate and complete.
(3)
(4)
(5)
(ii)
(6)
On August 11, 2011, the IRS sends a list request via certified mail to Firm C, a material advisor. Firm C consists of a sole practitioner, X, who is away from the office on vacation on this date. X has arranged for a colleague, Y, to review Firm C's mail, email, and telephone messages daily during his absence. X returns to the office the day after his vacation ends, on September 2, 2011, and immediately contacts the IRS to notify it of his absence. Firm C provides a complete list to the IRS on September 19, 2011, 10 business days after he has returned from vacation. Firm C establishes that X was on vacation at the time the list request was sent to Firm C, and Firm C promptly provided the requested list in a manner and time period reflecting ordinary business care and prudence upon X's return to the office. Under these circumstances, Firm C is considered to have made a good-faith effort to comply with the requirements of section 6112. Firm C has established reasonable cause for the entire period between the expiration of the 20-business-day period following the list request and the date the list was provided to the IRS. See paragraphs (g)(2) and (3) of this section.
On March 3, 2011, the IRS hand delivers to Firm D, a material advisor, a list request related to a transaction believed by the IRS to have been implemented in November 2008 by a group of Firm D's clients (the advisees). Firm D's involvement in the transaction included implementing the transaction on behalf of some but not all of the advisees. Firm D timely provides the requested list to the IRS. Upon review, the IRS determines that the information provided by Firm D appears to be accurate, but the IRS believes that some of the information is incomplete because it does not contain information about certain individuals who were identified through other investigative means as clients of Firm D who may have engaged in the transaction. In response to a follow-up inquiry by the IRS, Firm D establishes, however, that it is not a material advisor with respect to these taxpayers. Under these circumstances, Firm D has furnished the list as required by section 6112. Because the list was complete when furnished, Firm D need not make a showing of reasonable cause. See paragraph (g)(1) of this section.
The IRS sends a list request by certified mail to Firm E, a material advisor. Firm E maintains the materials responsive to the list request in a CD-ROM format. Under Firm E's established procedures for maintaining section 6112 lists, once the transaction is completed, the documents are scanned and saved to a CD-ROM. After the scanning process is completed, the paper copies of the documents are sent to an off-site storage facility. Three days prior to the 20th business day following the date of the written request, Firm E's office is damaged in a building fire and the CD-ROM is destroyed. Firm E contacts the IRS representative listed as a contact person on the section 6112 list request to advise him that the relevant records were damaged by fire. Under these circumstances, Firm E has reasonable cause for the period of time that Firm E cannot respond to the list request due to circumstances out of Firm E's control. The reasonable cause exception, however, will only be available to Firm E for the period of time that a person who exercises ordinary business care would need to obtain the paper copies of the documents from the off-site storage facility and provide the list to the IRS. See paragraphs (g)(3) and (4) of section.
On February 1, 2011, the IRS hand delivers a list request to Firm F, a material advisor. Firm F filed with the IRS the disclosure statement required by section 6111 for the reportable transaction that is the subject of the list request but did not maintain the section 6112 list documentation in a readily accessible format after the filing of the section 6111 statement. On March 2, 2011, the 20th business day after the list request is provided to Firm F, Firm F calls the IRS to ask for additional time to comply with the list request, stating that it could not gather the list information together in 20 business days. Because Firm F is not able to show that it made diligent efforts to maintain the materials constituting the list in a readily accessible form, the IRS should not grant Firm F an extension of time. See paragraph (c)(3) of this section. Further, Firm F does not have reasonable cause because it has demonstrated a lack of a good faith effort to comply with the requirements of section 6112 and a lack of ordinary business care. See paragraphs (g)(2) and (3) of this section.
On August 11, 2011, the IRS sends a list request, via certified mail, to Firm G, a material advisor. Firm G, consisting of a sole practitioner, P, maintains the materials responsive to the list request in a CD-ROM format. Generally, once the transaction is completed, the documents are scanned and then saved to a CD-ROM. The hard copies of the documents are sent to off-site storage. P is aware of the list request but ignores it. On September 22, 2011, the 13th calendar day after the 20-business-day period following the list request, P suffers a temporary but debilitating illness that lasts 22 days. Following the illness, P immediately returns to work. After returning to work, P continues to ignore the list request. In this situation, the facts and circumstances indicate that Firm G does not have reasonable cause for any day in which there was a failure to make the list available to the IRS, because the failure was not due solely to the supervening event occurring on September 22, 2011, that lasts for 22 days. Firm G did not make a good-faith effort to make the list available to the IRS prior to the occurrence of the supervening event. Firm G is liable for the $10,000 per day penalty from the first day following the expiration of the 20-business-day period until a complete list is provided to the IRS. See paragraphs (g)(2) and (4) of this section.
On August 11, 2011, the IRS sends a list request, via certified mail, to Firm H, a material advisor. Firm H, consisting of a sole practitioner, P, maintains the materials responsive to the list request in a CD-ROM format. Generally, once the transaction is completed, the documents are scanned and then saved to a CD-ROM. The hard copies of the documents are sent to off-site storage. P is aware of the list request and begins compiling the documents to respond to the IRS within the 20-business-day period ending on September 9, 2011. Prior to responding to the list request, P suffers a temporary but debilitating illness on September 3, 2011, that lasts through September 20, 2011. Upon returning to work on September 21, 2011, P contacts the IRS to explain that P experienced a temporary but debilitating illness from September 3, 2011, through September 20, 2011, and that P has returned to the office and intends to provide the list response to the IRS within a short period of time. Firm H provides the list response to the IRS on September 23, 2011. In this situation, the facts and circumstances indicate that Firm H has reasonable cause for the period from September 10, 2011 until September 23, 2011, attributable to P's illness. The failure to furnish the list in a timely fashion was solely attributable to the supervening event occurring on September 3, 2011, and Firm H promptly provided the requested list in a manner and time period reflecting ordinary business care upon P's return to the office. Firm H is considered to have made a good-faith effort to comply with the requirements of section 6112. Firm H has established reasonable cause for the entire period between the expiration of the 20-business-day period following the list request and the date the list was provided to the IRS. See paragraphs (g)(2) and (4) of this section.
Firm I receives a list request for transactions that are the same or substantially similar to the listed transaction described in Notice 2002-21, 2002-1 C.B. 730. Firm I will be considered a material advisor with respect to a particular transaction for which it provided advice if the transaction is the same as or substantially similar to the transaction described in Notice 2002-21. Firm I, however, is unsure whether the transaction is the same as or substantially similar to the transaction described in Notice 2002-21. Therefore, Firm I seeks an opinion from Firm L, a law firm, on this issue. P, a partner in Firm L, provided tax advice to clients who invested in other Notice 2002-21 transactions regarding reporting the purported tax benefits on their income tax returns, and Firm L is a material advisor with respect to those transactions. Because Firm L is a material advisor with respect to the type of transaction that is the same as or substantially similar to the transaction described in Notice 2002-21, Firm L is not considered an independent tax professional. Therefore, Firm I cannot rely on advice provided by Firm L to establish reasonable cause under this section. The IRS may consider Firm L's advice in the determination of reasonable cause in light of other facts and circumstances, but Firm's L's advice is not sufficient to establish reasonable cause independently. See paragraph (g)(5) of this section.
Firm J, a law firm, provides advice to various clients of the firm regarding the potential tax benefits of a reportable transaction under § 1.6011-4(b)(5) of this chapter (involving a section 165 loss) and is a material advisor with respect to the transaction. Firm J also provides advice to Firm M, an accounting firm, regarding the same transaction. Firm M then advises
(h)
(2)
(3)
On February 1, 2011, the IRS hand delivers a list request to Firm O, a material advisor. On March 2, 2011, the 20th business day after the list request is delivered to Firm O, Firm O sends a list to the IRS that was contemporaneously prepared after the issuance of advice with respect to the reportable transaction and continuously maintained in accordance with the requirements of section 6112 and the related regulations. Prior to sending the list, a supervisor at Firm O carefully reviewed the list to verify that it was comprehensive and accurate. The IRS completes its review on March 22, 2011, and determines that the list is not complete because O furnished a draft copy of the tax opinion, rather than the final document as the final document had been mistakenly misfiled. After Firm O is notified of the missing information, Firm O immediately furnishes a complete copy of the final version of the tax opinion. Firm O made a good-faith effort to comply with the requirements of section 6112, including its efforts to ensure that the list that was furnished to the IRS was accurate and complete. Firm O has reasonable cause for the entire period between the expiration of the 20-business-day period following the list request and the date the complete list was provided to the IRS.
On February 1, 2011, the IRS hand delivers a list request to Firm P, a material advisor. Firm P's involvement in the reportable transaction included implementing the transaction on behalf of some but not all of Firm P's clients. On March 2, 2011, the 20th business day after the list request is delivered to Firm P, Firm P sends the list to the IRS. The IRS completes its review on March 22, 2011. The IRS believes the client list is incomplete because it does not contain information about certain individuals who were identified through other investigative means as clients of Firm P who may have engaged in the transaction. On March 25, 2011, in response to a follow-up inquiry by the IRS, Firm P establishes that it is not a material advisor with respect to these taxpayers. Therefore, the March 2, 2011 list was complete and accurate. Under these circumstances, Firm P has timely furnished the list as required by section 6112. Because Firm P complied with the requirements of section 6112, Firm P does not need to establish reasonable cause for the period from March 3, 2011, through March 25, 2011.
On February 1, 2011, the IRS hand delivers a list request to Firm Q, a material advisor. On March 2, 2011, the 20th business day after the list request is delivered to Firm Q, Firm Q sends the list to the IRS. Firm Q had not maintained a list contemporaneously after the issuance of advice with respect to the reportable transaction, and during the 20 business days prior to providing the list to the IRS, Firm Q created the list. To meet the 20-business-day deadline, a supervisor did not review the final list prior to sending the list to the IRS. The IRS completes its review on March 22, 2011, and determines that the list is not complete because the list does not include 15 persons for whom Firm Q acted as a material advisor with respect to the reportable transaction. Firm Q provides the additional information on March 25, 2011. Because Firm Q is not able to show that it made diligent efforts to maintain the materials constituting the list in a readily accessible form and that it made a reasonable effort to ensure that the list that was furnished to the IRS was accurate and complete, Firm Q cannot establish that it exhibited a good faith effort to comply with the requirements of section 6112. Firm Q does not have reasonable cause for the failure to furnish the complete list from March 3, 2011, through March 25, 2011.
Within the 20-business-day period following a list request, Firm R sends four boxes of documents comprising the required list to the IRS using a commercial delivery service. The IRS receives only three of the boxes because Box 4 was erroneously self-addressed using Firm R's office address. Box 4 arrives at Firm R's office on January 6, 2012, the 22nd business day after the list request was made. Firm R immediately recognizes its clerical error, promptly contacts the IRS, and resends the original and unopened Box 4, properly addressed, to the IRS together with documentation supporting the error. The IRS receives Box 4 on January 9, 2012. Under these circumstances, Firm R has reasonable cause for the late delivery of Box 4, because it made a good-faith attempt to timely comply with the list request and immediately corrected an inadvertent error upon its discovery. As a result, no penalty will be imposed based on the delay in providing Box 4. If, after inspection, the IRS determines that the list is incomplete or defective, even with the contents of Box 4, Firm R must establish reasonable cause for the incomplete nature of the list or the defect to avoid imposition of a penalty for the period beginning January 5, 2012, until the day that a complete list is provided by Firm R.
(i)
Office of Special Education and Rehabilitative Services, Department of Education.
Proposed priorities.
The Assistant Secretary for Special Education and Rehabilitative Services proposes four priorities for the Disability and Rehabilitation Research Projects and Centers Program administered by the National Institute on Disability and Rehabilitation Research (NIDRR). Specifically, this notice proposes a priority for a Rehabilitation Engineering Research Center (RERC) on each of: Rehabilitation Strategies, Techniques, and Interventions (priority 1); Information and Communication Technologies (priority 2); Individual Mobility and Manipulation (priority 3); and Physical Access and Transportation (priority 4). The Assistant Secretary may use one or more of these priorities for competitions in fiscal year (FY) 2013 and later years. We take this action to focus research attention on areas of national need. We intend the priorities to improve rehabilitation services and outcomes for individuals with disabilities.
We must receive your comments on or before April 8, 2013.
Address all comments about this notice to Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue SW., Room 5133, Potomac Center Plaza (PCP), Washington, DC 20202-2700.
If you prefer to send your comments by email, use the following address:
Marlene Spencer. Telephone: (202) 245-7532 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
This notice of proposed priorities is in concert with NIDRR's approved Long-Range Plan (Plan). The Plan, which was published in the
Through the implementation of the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training methods to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms for integrating research and practice; and (6) disseminate findings.
This notice proposes four priorities, each of which NIDRR intends to use for one or more RERC competitions in FY 2013 and possibly in later years. However, nothing precludes NIDRR from publishing additional priorities, if needed. Furthermore, NIDRR is under no obligation to make an award using these priorities. The decision to make an award will be based on the quality of applications received and available funding.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed priorities. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about this notice in room 5140, 550 12th Street SW., PCP, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.
The purpose of NIDRR's RERCs program, which is funded through the Disability and Rehabilitation Research Projects and Centers Program, is to improve the effectiveness of services authorized under the Rehabilitation Act. It does so by conducting advanced engineering research, developing and evaluating innovative technologies, facilitating service delivery system changes, stimulating the production and distribution of new technologies and equipment in the private sector, and providing training opportunities. RERCs seek to solve rehabilitation problems and remove environmental barriers to improvements in employment, community living and participation, and health and function outcomes of individuals with disabilities.
The general requirements for RERCs are set out in subpart D of 34 CFR part 350 (What Rehabilitation Engineering Research Centers Does the Secretary Assist?).
Additional information on the RERCs program can be found at:
29 U.S.C. 762(g) and 764(b)(3).
This notice contains four proposed priorities. These include a priority for a RERC on ech of: Rehabilitation Strategies, Techniques, and Interventions (priority 1); Information and Communication Technologies (priority 2); Individual Mobility and Manipulation (priority 3); and Physical Access and Transportation (priority 4).
NIDRR's mission is to generate new knowledge and promote its effective use to improve the abilities of people with disabilities to perform activities of their choice in the community, and also to expand society's capacity to provide full opportunities and accommodations for its citizens with disabilities (NIDRR Long-Range Plan, 2006). In support of this mission, NIDRR sponsors RERCs to address the barriers confronted by individuals with disabilities in all aspects of their lives.
NIDRR-sponsored RERCs engage in the systematic application of engineering sciences to design, develop, adapt, test, evaluate, apply, and distribute technological solutions to problems confronted by individuals with disabilities in functional areas, such as mobility, communications, hearing, vision, and cognition, and in activities associated with employment, independent living, education, and integration into the community (Rehabilitation Act of 1973). RERCs may focus their efforts at the individual level, for example, to develop assistive technology devices that enhance the physical, sensory, and cognitive abilities of individuals with disabilities. RERCs may also focus on the systems level, for example, by mitigating or eliminating barriers found in large social systems such as public transportation, telecommunications, information technology, and the built environment. RERCs conduct research and development that leads to the transfer of technology into commercialized or non-commercialized products that can be readily accessed and used to improve the lives of individuals with disabilities.
NIDRR seeks to establish RERCs that will address topics in four broad areas of rehabilitation engineering. These four areas, outlined in NIDRR's proposed Long-Range Plan for 2013-2017 (NIDRR Long-Range Plan, 2013), include: (1) Rehabilitation strategies, techniques, and interventions; (2) information and communication technologies; (3) individual mobility and manipulation; and (4) physical access and transportation. By holding field-initiated RERC grant competitions in these four broad areas, we aim to increase competition for NIDRR's RERC grants, and draw upon the field's expertise, knowledge, and creativity to optimize the quality and relevance of the rehabilitation engineering grants that we fund.
In the area of rehabilitation strategies, techniques, and interventions (priority 1), NIDRR seeks to fund research and development that leads to rehabilitation practices and services that improve the health, and the physical, cognitive, sensory, and communication abilities, of individuals with a wide range of disabling conditions. Rehabilitation engineering in this area should result in new or improved products, devices, and technological advances that enhance rehabilitation services in clinical or community settings. In this broad area, NIDRR has previously funded RERCs on successful aging, low vision and blindness, hearing enhancement, communication enhancement, cognitive technologies, recreational technologies, rehabilitation robotics, and telerehabilitation, among others.
In the area of information and communication technologies (priority 2), NIDRR seeks to fund research and development that reduces the digital divide between people with and without disabilities (Vicente & Lopez, 2010). Rehabilitation engineering in this area should optimize accessibility and usability of telecommunications products, wireless technologies, technology interfaces, computer systems, software, and networks for individuals with disabilities. In this broad area, NIDRR has previously funded RERCs on universal interface and information technology access, wireless technologies, and telecommunications access, among others.
In the area of individual mobility and manipulation (priority 3), NIDRR seeks to fund research and development to enhance mobility, physical movement, and manipulation of the environment, and to accommodate limitations in manual dexterity among individuals with a variety of disabling conditions. Rehabilitation engineering in this area should result in new or improved products, devices, or technological advances to allow individuals with disabilities to be more mobile and to manipulate their environments more easily and effectively, increasing the independence of individuals with disabilities and allowing them to participate fully in their communities. In this broad area, NIDRR has previously funded RERCs on prosthetics and orthotics, wheeled mobility, and children with orthopedic disabilities, among others.
In the area of physical access and transportation (priority 4), NIDRR seeks to fund research and development that leads to greater accessibility of the built environment and better access to safe and accessible transportation options for individuals with disabilities. There is a need for more accessibility in commercial and private facilities, outdoor environments, and housing to increase independence and promote community integration for individuals with disabilities. In addition, easy-to-use, safe, and accessible transportation systems allow individuals with disabilities to move around, and participate more fully, in their communities and neighborhoods. Rehabilitation engineering in this area should result in the continued promotion of universal design and the planning of accessible buildings, parks, neighborhoods, transportation options, and cities. In this broad area, NIDRR has previously funded RERCs on accessible medical instrumentation, workplace accommodations, universal design in the built environment, accessible public transportation, and wheelchair transportation safety, among others.
The Assistant Secretary for Special Education and Rehabilitative Services proposes the following priorities for the establishment of a Rehabilitation Engineering Research Center (RERC) on each of: (1) Rehabilitation Strategies, Techniques, and Interventions; (2) Information and Communication Technologies; (3) Individual Mobility and Manipulation; and (4) Physical Access and Transportation. Each RERC will focus on innovative technological solutions, new knowledge, and concepts that will improve the lives of individuals with disabilities.
Under this priority, the RERC must research, develop, and evaluate innovative technologies and strategies that will result in new or improved products, devices, and technological advances that are integrated into rehabilitation services in clinical or community settings. The RERC must be designed to improve outcomes of individuals with disabilities in one or more of the following domains: Employment, community living and participation, or health and function. Research and development topics under this priority may include but are not limited to: Virtual reality; therapy robots; telerehabilitation; recreational technology; health-related products and equipment; and cognitive, sensory, and communication aids.
Under this priority, the RERC must research, develop, and evaluate innovative technologies and strategies that will optimize accessibility and usability of one or more of the following: Telecommunications products, wireless technologies, technology interfaces, computer systems, software, and networks for individuals with disabilities. The RERC must be designed to improve outcomes of individuals with disabilities in one or more of the following domains: Employment, community living and participation, or health and function. Research and development topics under this priority may include but are not limited to: Telecommunication access in emergency situations; interoperability between current and next generation telecommunication access; access to and use of wireless technologies; universal design approaches in future generations of wireless technologies; and accessibility of information technologies and electronic products by people with disabilities.
Under this priority, the RERC must research, develop, and evaluate innovative technologies and strategies that will result in new or improved products, devices, or technological advances that allow individuals with disabilities to be more mobile and to manipulate their environments more efficiently and effectively. The RERC must be designed to improve outcomes of individuals with disabilities in one or more of the following domains: Employment, community living and participation, or health and function. Research and development topics under this priority may include but are not limited to: Equipment for personal mobility; assistive technology for manipulation; and prosthetics and orthotics.
Under this priority, the RERC must research, develop, and evaluate innovative technologies and strategies that will result in one or more of the following: The continued promotion of universal design and the planning of accessible buildings, homes, parks, neighborhoods, and cities, or the accessibility and safety of transportation options. The RERC must be designed to improve outcomes of individuals with disabilities in one or more of the following domains: Employment, community living and participation, or health and function. Research and development topics under this priority may include but are not limited to: Design and modification of the built environment; and the accessibility, safety, affordability and independent use of transportation options (including public transportation, commercial transportation, and personal vehicles).
Under each priority, the RERC must be designed to contribute to the following outcomes:
(1) Increased technical and scientific knowledge relevant to its research area. The RERC must contribute to this outcome by conducting high-quality, rigorous research and development projects.
(2) Increased innovation in technologies, products, environments, performance guidelines, and monitoring and assessment tools applicable to its research area. The RERC must contribute to this outcome through the development and testing of these innovations.
(3) Improved research capacity in its research area. The RERC must contribute to this outcome by collaborating with the relevant industry, professional associations, institutions of higher education, health care providers, or educators, as appropriate.
(4) Improved usability and accessibility of products and environments in its research area. The RERC must contribute to this outcome by emphasizing the principles of universal design in its product research and development. For this purpose, “universal design” means the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design.
(5) Improved awareness and understanding of cutting-edge developments in technologies within its research area. The RERC must contribute to this outcome by identifying and communicating with relevant stakeholders, including NIDRR, individuals with disabilities, their representatives, disability organizations, service providers, professional journals, manufacturers, and other interested parties regarding trends and evolving product concepts related to its research area.
(6) Increased dissemination of research in the research area. The RERC must contribute to this outcome by providing technical assistance to relevant public and private organizations, individuals with disabilities, employers, and schools on policies, guidelines, and standards related to its research area.
(7) Increased transfer of RERC-developed technologies to the marketplace. The RERC must contribute to this outcome by developing and implementing a plan for ensuring that all technologies developed by the RERC are made available to the public. The technology transfer plan must be developed in the first year of the project period in consultation with the NIDRR-funded Disability Rehabilitation Research Project, Center on Knowledge Translation for Technology Transfer.
In addition, under each priority, the RERC must—
• Have the capability to design, build, and test prototype devices and assist in the technology transfer and knowledge translation of successful solutions to relevant production and service delivery settings;
• Evaluate the efficacy and safety of its new products, instrumentation, or assistive devices;
• Provide as part of its proposal, and then implement, a plan that describes how it will include, as appropriate, individuals with disabilities or their representatives in all phases of its activities, including research, development, training, dissemination, and evaluation;
• Provide as part of its proposal, and then implement, a plan to disseminate its research results to individuals with disabilities and their representatives; disability organizations; service providers; professional journals; manufacturers; and other interested parties. In meeting this requirement, each RERC may use a variety of
• Coordinate research projects of mutual interest with relevant NIDRR-funded projects, as identified through consultation with the NIDRR project officer.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
We will announce the final priorities in a notice in the
This notice 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 proposed 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 proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed priorities only upon a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that these proposed priorities are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with 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.
The benefits of the Disability and Rehabilitation Research Projects and Centers Program have been well established over the years. Projects similar to the RERCs have been completed successfully, and the new RERCs, established consistently with the proposed priorities, are expected to improve the lives of individuals with disabilities and generate through research and development, disseminate, and promote the use of new information that would improve the outcomes for individuals with disabilities in the areas of community living and participation, employment, and health and function.
You may also access documents of the Department published in the
Environmental Protection Agency (EPA).
Notice of public comment period and of public hearing.
The purpose of this notice is to announce that the Environmental Protection Agency (EPA) has received a complete program revision package from the State of Washington requesting approval of its revised Underground Injection Control (UIC) program; the EPA has determined the application contains all the required elements; the application is available for inspection and copying at the address appearing below; public comments are requested; and a public hearing will be held.
The purpose of this notice is to inform the public that the State of Washington has revised its UIC regulations, including the transfer of oversight authority from the Department of Ecology to the Energy Facility Site Evaluation Council to issue UIC permits at energy facilities and other minor technical corrections.
Comments will be accepted until April 22, 2013. A Public Hearing will be held on April 8, 2013 at 2:30 p.m. at EPA Region 10, 1200 6th Ave., Seattle WA; visitor check in is on the 12th Floor. Requests to testify may be mailed to: David Tetta, Ground Water Unit, EPA Region 10, Suite 900 M/S OCE-082, 1200 6th Ave., Seattle, WA 98101. For additional information regarding the public hearing, please contact David Tetta, (206) 553-1327 or
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2012-0186, by one of the following methods:
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•
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(1) Environmental Protection Agency, Region 10, Library, 10th Floor, 1200 Sixth Avenue, Seattle, WA 98101. The Library is open from 9:00 a.m. to 12:00 p.m. and 1:00 p.m.-4:00 p.m. Monday through Friday, excluding legal holidays. The telephone number for the Library is (206) 553-1289.
(2) Washington Department of Ecology, Water Quality Program, 300 Desmond Drive SE., Lacey, WA 98503. The Office is open from 8:00 a.m. to 5:00 p.m. Monday through Friday, excluding legal holidays. Please contact Mary Shaleen Hansen at (360) 407-6143.
(3) State of Washington; Underground Injection Control (UIC) Program Primacy Docket: EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OW Docket is (202) 566-2426; and
David Tetta, Ground Water Unit, Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Suite 900 M/S OCE-082, Seattle, WA 98101; telephone number: (206) 553-1327; Fax number: (206) 553-6984; email address:
The UIC program revision package from the State of Washington includes a description of the State Underground Injection Control program, copies of all applicable rules and forms, a statement of legal
Federal Communications Commission.
Proposed rule.
This
Submit comments on or before April 8, 2013, and replies on or before April 29, 2013.
You may submit comments, identified by IB Docket No. 12-376, by any of the following methods:
Andrea Kelly, Satellite Division, International Bureau, FCC, (202) 418-0748,
This is a summary of the Commission's
Pursuant to §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
In the
NG55 In the bands 11.7-12.2 GHz (space-to-Earth) and 14-14.5 GHz (Earth-to-space), Earth Stations on Vessels (ESV), Vehicle-Mounted Earth Stations (VMES), and Earth Stations Aboard Aircraft (ESAA) as regulated under 47 CFR part 25 are applications of the fixed-satellite service and may be authorized to communicate with geostationary satellites in the fixed-satellite service on a primary basis.
This proposed footnote would grant primary status to ESAA in the 14.0-14.5 GHz band, and as a ministerial matter, would consolidate the text from footnotes NG54, NG183, and NG187, which the Commission proposes to eliminate. The Commission requests comment on these proposals, including on all costs and benefits. Further, the Commission also seeks comment on whether changing ESAA operations in the uplink band from secondary status
The
As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this
The
The proposed action is authorized pursuant to sections 1, 2, 4(i), 301, 302, 303, and 324 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 301, 302, 303, and 324.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
Two economic census categories address the satellite industry. The first category has a small business size standard of $15 million or less in average annual receipts, under SBA rules. The second has a size standard of $25 million or less in annual receipts. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Census Bureau data for 2007 show that 512 Satellite Telecommunications firms that operated for that entire year. Of this total, 464 firms had annual receipts of under $10 million, and 18 firms had receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by our action.
The second category,
Commission records reveal that there are approximately 20 space station licensees and operators in the 10.95-11.2 GHz, 11.45-11.7 GHz, 11.7-12.2 GHz and 14.0-14.5 GHz bands. We do not request or collect annual revenue information concerning such licensees and operators, and thus are unable to estimate the number of geostationary space station licensees and operators that would constitute a small business under the SBA definition cited above, or apply any rules providing special consideration for geostationary space station licensees and operators that are small businesses.
Currently there are approximately 2,879 operational Fixed-Satellite Service transmit/receive earth stations authorized for use in the band. The Commission does not request or collect annual revenue information, and thus is unable to estimate the number of earth stations that would constitute a small business under the SBA definition.
The rules proposed here merely propose a change to the Table of Frequency Allocations, and therefore the Commission does not project any new reporting, recordkeeping, or other compliance requirements for the licensees.
The RFA requires that, to the extent consistent with the objectives of applicable statutes, the analysis shall discuss significant alternatives such as: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
The
Frequency allocations.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 2 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
The revisions and additions read as follows:
NG55 In the bands 11.7-12.2 GHz (space-to-Earth) and 14-14.5 GHz (Earth-to-space), Earth Stations on Vessels (ESV), Vehicle-Mounted Earth Stations (VMES), and Earth Stations Aboard Aircraft (ESAA) as regulated under 47 CFR part 25 are applications of the fixed-satellite service and may be authorized to communicate with geostationary satellites in the fixed-satellite service on a primary basis.
Federal Communications Commission.
Proposed rule.
In this document, the Wireline Competition Bureau seeks public input on three newly added virtual workshop discussion topics and further comment on two existing topics.
Comments are due on or before March 25, 2013. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit comments, identified by WC Docket No. 10-90, by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Katie King, Wireline Competition Bureau at (202) 418-7491 or TTY (202) 418-0484.
This is a synopsis of the Wireline Competition Bureau's Public Notice in WC Docket Nos. 10-90; DA 13-276 released February 22, 2013, as well as information posted online in the Wireline Competition Bureau's Virtual Workshop. The complete text of the Public Notice is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. These documents may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the Internet at
1. On Tuesday, October 9, 2012, the Wireline Competition Bureau (Bureau) announced the commencement of a virtual workshop to solicit input and facilitate discussion on topics related to the development and adoption of the forward-looking cost model for Connect America Phase II. To date, parties have commented on 18 different topics in the virtual workshop. On January 17, 2013, the Bureau announced the release of version two of the Connect America Cost Model.
2. Today, the Bureau seeks public input on three newly added virtual workshop discussion topics:
3. In addition, the Bureau seeks public input on additional questions relating to plant mix input values and the busy hour demand for residential and business. As a comment under the existing “Plant Mix” topic, the Bureau seeks comment on updated plant mix data recently submitted by the ABC Coalition and asks whether it should use that plant mix data when it adopts the final version of the model. As a comment under the “Sizing of Network Facilities” topic, the Bureau asks whether it should use 440 kbps as the busy hour offered load value when it adopts the final version of the model.
4. Responses should be submitted in the virtual workshop no later than March 25, 2013.
5. The Bureau may continue to add discussion topics or follow-up questions, which will be announced by Public Notice. Parties can participate in the virtual workshop by visiting the Connect America Fund Web page,
6. Comments from the virtual workshop will be included in the official public record of this proceeding. The Bureau will not rely on anonymous comments posted during the workshop in reaching decisions regarding the model. Participants should be aware that identifying information from parties that post material in the virtual workshop will be publicly available for inspection upon request, even though such information may not be posted in the workshop forums.
7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Bureau prepared an Initial Regulatory Flexibility Analysis (IRFA), included as part of the
8. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
9.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
10.
11.
12.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a new collection for awarding local agencies for excellence in WIC breastfeeding services and support. Section 231 of the Healthy, Hunger-Free Kids Act of 2010, Public Law 111-296, requires that the Department of Agriculture (USDA) establish a program to recognize WIC local agencies and clinics that demonstrate exemplary breastfeeding promotion and support activities.
Written comments must be received on or before May 7, 2013.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were 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 use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be submitted using the Federal eRulemaking Portal:
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval.
Anne Bartholomew, Chief, Nutrition Services Branch, Supplemental Food Programs Division, FNS, USDA, 3101 Park Center Drive, Room 520, Alexandria, VA 22302. Telephone: (703) 305- 2746.
In recognizing exemplary local agencies and clinics, the HHFKA requires that the Secretary consider the following criteria: (1) Performance measurements of breastfeeding; (2) the effectiveness of a peer counselor program; (3) the extent to which the agency or clinic has partnered with other entities to build a supportive breastfeeding environment for women participating in WIC; and (4) other criteria the Secretary considers appropriate after consultation with State and local program agencies. The information will be submitted voluntarily by WIC local agencies who will be applying for an award. FNS will use the information collected to evaluate the components of existing breastfeeding programs and support in WIC local agencies and make decisions about awards. This program is expected to provide models and motivate other local agencies and clinics to strengthen their breastfeeding promotion and support activities. Applications will be submitted online.
A recent FNS study on WIC Breastfeeding Peer Counseling found that approximately one third of the local WIC agencies operate a “Loving Support Program.” The Loving Support Program is an FNS initiative that equips WIC programs with an implementation and management model—the “Loving Support Model”—that serves as a framework for designing, building, and sustaining peer counseling programs; a requirement for award eligibility. Based on the findings of the study, it is estimated that approximately 607 of the 1838 WIC local agencies will be eligible to apply for an award. The estimated number of respondents for local agency applications assumes all eligible local WIC agencies will apply for an award. The estimated number of respondents for the State agency application verification is derived from the total number of State WIC agencies.
See the table below for estimated total annual burden for each type of respondent.
The time for the WIC local agency is an estimated time for the agency to voluntarily review the instructions, fill out the “Loving Support Award of Excellence” application, and attach supportive documentation. The time for the State WIC agency is an estimated time for the agency to review the instructions, evaluate the components of the local WIC agencies applications, and make a recommendation for an award.
Kaibab National Forest, USDA Forest Service, Arizona.
Notice of New Fee Sites.
The Kaibab National Forest is proposing to charge fees for the overnight rental of three historic facilities on the North Kaibab Ranger District. Jumpup cabin is the oldest Ranger Station on the North Kaibab Ranger District. The cabin was recently rehabilitated with American Recovery and Reinvestment Act (ARRA) and Forest Service funds and is a popular overnight stop for hikers in the Kanab Creek Wilderness Area. The new fee is proposed at $60.00 per night for Jumpup Cabin with a maximum capacity of eight people. Pleasant Valley Cabin is located on Highway 67, a few miles north of the Grand Canyon National Park. The cabin will require substantial rehabilitation work over the next two years to prepare it for public use. The new fee is proposed at $140.00 per night for Pleasant Valley Cabin with a maximum capacity of four people. Big Springs Administrative Center is on the National Register of Historic Places and has been used by homesteaders, and later the Forest Service, since the 1800's. The complex consists of a historic office, dining hall, shower house, group kitchen, seven residential units, and several administrative structures. The residential units were recently restored using ARRA funds. While Big Springs serves as an active administrative site for the U.S. Forest Service, rental cabins available to the public are in a discrete location separated from administrative structures. The proposed fee is $65.00 per night for an individual cabin at Big Springs. Individual cabins vary in occupancy from two to four people per cabin and includes use of the shower house, kitchen and dining hall.
Other cabin rentals within the Arizona National Forests have shown that the public appreciates and enjoys the availability of historic rental facilities. Funds from the rentals will be used for the continued operation and maintenance of these facilities and other properties in the Arizona “Rooms with a View” Cabin Rental Program.
Send any comments about these fee proposals by June 1, 2013 so comments can be compiled, analyzed and shared with the BLM Arizona Resource Advisory Council (RAC). Jumpup Cabin will become available for rent in fall of 2013, Big Springs Administrative Center will become available for rent in spring of 2014, and Pleasant Valley Cabin will be available for rent in spring of 2015.
Forest Supervisor, Kaibab National Forest, 800 S. 6th St., Williams, Arizona 86046-2899.
Missy Spandl, Recreation Manager, Kaibab National Forest, at (928) 643-8120 or
The Federal Recreation Lands Enhancement Act (Title VII, Public Law 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the
The Kaibab National Forest currently has two other cabin rentals available (Spring Valley Cabin and Hull Cabin) that rent for $100 to $150 per night. People wanting to rent any of these cabins will need to do so through the National Recreation Reservation Service, at
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension for a currently approved information collection in support of the program for 7 CFR part 4279.
Comments on this notice must be received by May 7, 2013 to be assured of consideration.
Brenda Griffin, Loan Specialist, Business and Industry Division, Rural Business-Cooperative Service, U.S. Department of Agriculture, STOP 3224, 1400 Independence Ave. SW., Washington, DC 20250-3224. Telephone: (202) 720-6802. The TDD number is (800) 877-8339 or (202) 708-9300.
Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division at (202) 692-0040.
Rural Development, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Development's intention to request clearance for continuation of information collection to measure the quality of loan servicing provided by the Rural Development, Centralized Servicing Center (CSC) in St. Louis, MO.
Comments on this notice must be received by May 7, 2013 to be assured of consideration.
Terrie Barton, Customer Service Branch Director, Centralized Servicing Center, 4300 Goodfellow Blvd., Mail Code FC 25, St. Louis, Missouri 63120-1703, phone: (314) 457-5133, email:
To facilitate CSC's mission and in an effort to continuously improve service delivery, a survey has been developed that will measure the change in quality of service that borrower's receive when they contact the CSC. Four previous surveys have been completed under prior authorization. Respondents will only need to report information on a one-time basis.
The results of the survey will provide a general satisfaction level among borrowers throughout the nation. The data analysis will provide comparisons to prior surveys and reveal areas of increased satisfaction as well as areas in need of improvement. CSC's goal is to continuously improve program delivery, accessibility and overall customer service satisfaction. A follow up survey will be conducted in 24-36 months, but may or may not be sent to the same initial respondents. Additionally, in accordance with Government Performance and Results Act (GPRA), the survey will enable CSC to measure the results and overall effectiveness of customer services provided as well as implement action plans and measure improvements.
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 agency, including whether the information will have practical utility; (b) the accuracy of agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including 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 Ave. 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.
Bureau of Economic Analysis, Commerce.
Notice of Reporting Requirements.
By this Notice, the Bureau of Economic Analysis is informing the public that it is conducting the mandatory survey titled BE-15, Annual Survey of Foreign Direct Investment in the United States. This survey is authorized by the International Investment and Trade in Services Survey Act.
This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, the survey. A completed report covering a reporting company's fiscal year ending during the previous calendar year is due by May 31 (or by June 30 for reporting companies that use BEA's eFile system). The BE-15 survey forms and instructions are available on the BEA Web site at
(a)
(b)
(c)
(d)
(a) Reports are required from each U.S. business enterprise in which a foreign person has a direct and/or indirect ownership interest of at least 10 percent of the voting stock if an incorporated business enterprise or an equivalent interest if an unincorporated business enterprise and that meets the additional conditions detailed in Form BE-15.
(b) Entities required to report will be contacted individually by the Bureau of Economic Analysis (BEA). Entities not contacted by BEA have no reporting responsibilities.
Note that there is no BE-15 survey covering fiscal year 2012; operations data on U.S. affiliates of foreign companies for fiscal year 2012 are collected on the BE-12, Benchmark Survey of Foreign Direct Investment in the United States.
22 U.S.C. 3101-3108.
An application is currently pending with Foreign-Trade Zones (FTZ) Board (the Board) (FTZ Board Docket B-1-2013, 78 FR 2952, 01/05/2013), submitted by the San Francisco Port
The applicant has now amended its application to reduce the portions of Napa and Sonoma Counties proposed for inclusion in the expanded service area. There is no change in terms of Marin, Contra Costa and Solano Counties.
A copy of the revised application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
On November 1, 2012, CODEZOL, C.D., grantee of FTZ 163, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Zimmer Manufacturing BV, within Subzone 163A, in Ponce, Puerto Rico.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Notice is hereby given of termination of review of an application submitted by the South Carolina State Ports Authority, grantee of FTZ 38, on behalf of BMW Manufacturing Co., LLC (BMWMC), operator of Subzone 38A, requesting authority to expand BMWMC's scope of FTZ manufacturing authority to include additional production capacity. The application was filed on June 15, 2011 (76 FR 36079-36080, 6-21-2011).
The termination is a result of changed circumstances, and the case has been closed without prejudice.
Import Administration, International Trade Administration, Department of Commerce.
Elizabeth Eastwood or David Crespo, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3874 and (202) 482-3693, respectively.
On September 4, 2012, the Department of Commerce (the Department) published a notice of opportunity to request an administrative review of the antidumping duty order on narrow woven ribbons with woven selvedge from Taiwan covering the period September 1, 2011, through August 31, 2012.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The petitioner's request was submitted within the 90-day period and, thus, is timely. Because the petitioner's withdrawal of request for an antidumping duty administrative review is timely and because no other party requested a review of the companies listed above, in accordance with 19 CFR 351.213(d)(1), we are rescinding this administrative review with respect to the following companies: (1) Apex Ribbon; (2) Apex Trimmings; (3) Hubschercorp; (4)
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the companies for which this review is rescinded antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice.
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on small diameter graphite electrodes (graphite electrodes) from the People's Republic of China (PRC), covering the period February 1, 2011, through January 31, 2012. The Department has preliminarily determined that during the period of review (POR) certain companies covered by this review have not made sales of subject merchandise at less than normal value, and that other companies are now part of the PRC-wide entity.
Dmitry Vladimirov or Minoo Hatten, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington DC 20230; telephone: (202) 482-0665 or (202) 482-1690, respectively.
The merchandise covered by the order includes all small diameter graphite electrodes with a nominal or actual diameter of 400 millimeters (16 inches) or less and graphite pin joining systems for small diameter graphite electrodes. Small diameter graphite electrodes and graphite pin joining systems for small diameter graphite electrodes that are subject to the order are currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 8545.11.0010 and 3801.10. The HTSUS numbers are provided for convenience and customs purposes. A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Import Administration, “Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Small Diameter Graphite Electrodes from the People's Republic of China” dated concurrently with this notice (Preliminary Decision Memorandum), which is hereby adopted by this notice. The written description is dispositive. The Preliminary Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
Based on the withdrawal of the requests for review and because the companies previously established their entitlement to a separate rate, we are rescinding this administrative review with respect to 19 companies named in the
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). Export prices have been calculated in accordance with section 772 of the Act. Because the PRC is a non-market economy (NME) within the meaning of section 771(18) of the Act, normal value has been calculated in accordance with section 773(c) of the Act. Specifically, the respondents' factors of production have been valued using prices in Ukraine, a country which is economically comparable to the PRC and a significant producer of comparable merchandise. For a full description of the methodology underlying our conclusions,
The Department has determined that the following preliminary dumping margins exist for the period February 1, 2011, through January 31, 2012:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
The Department intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
In accordance with 19 CFR 351.301(c)(3)(ii), the deadline for submission of publicly available information to value factors production under 19 CFR 351.408(c) is 20 days after the date of publication of these preliminary results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department has extended the deadline), the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the Department generally will not accept in the rebuttal submission additional or alternative surrogate value information not previously on the record, if the deadline for submission of surrogate value information has passed.
Upon issuing the final results of review, the Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
On October 24, 2011, the Department announced a refinement to its assessment practice in NME cases.
The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Fushun Jinly Petrochemical Carbon Co., Ltd., Xinghe County Muzi Carbon Co., Ltd., and the five companies comprising the Fangda Group
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Firms for which we are rescinding this administrative review because we received timely withdrawal requests and these companies have a separate rate from a prior segment.
Firms for which we are not rescinding the review even though we received timely withdrawal requests because these companies are part of the PRC entity as they did not have a separate rate from a prior segment.
Companies that are now part of the PRC entity because they did not demonstrate in this review that they are entitled to a separate rate.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce has suspended the antidumping investigation involving fresh tomatoes from Mexico. The basis for the suspension of the antidumping investigation is an agreement between the Department of Commerce and producers/exporters accounting for substantially all imports of fresh tomatoes from Mexico wherein each signatory producer/exporter has agreed to revise its prices to eliminate completely the injurious effects of exports of this merchandise to the United States.
Judith Wey Rudman or Julie Santoboni at (202) 482-0192 or (202) 482-3063, respectively; Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue NW., Washington, DC 20230.
On February 2, 2013, the Department of Commerce (the Department) and Mexican tomato growers/exporters accounting for a significant percentage of all fresh tomatoes imported into the United States from Mexico initialed a proposed agreement to suspend the antidumping investigation on fresh tomatoes from Mexico. The Department released the proposed agreement to interested parties on February 2, 2013 and afforded them an opportunity to comment on the initialed agreement by February 11, 2013. Several interested parties filed comments.
Based on this proposed agreement, and the anticipation that the Mexican tomato growers/exporters would withdraw from the 2008 Suspension Agreement on Fresh Tomatoes from Mexico (
On February 28, 2013, Mexican tomato growers/exporters accounting for a significant percentage of all fresh tomatoes imported into the United States from Mexico provided written notice to the Department of their withdrawal from the 2008 Agreement, effective 90 days from the date of their withdrawal letter (
On March 4, 2013, the Department signed a new suspension agreement (2013 Suspension Agreement) with certain growers/exporters of fresh tomatoes from Mexico. The 2013 Suspension Agreement is attached to this notice of Suspension of Antidumping Investigation.
The merchandise subject to this investigation is all fresh or chilled tomatoes (fresh tomatoes) which have Mexico as their origin, except for those tomatoes which are for processing. For purposes of this investigation, processing is defined to include preserving by any commercial process, such as canning, dehydrating, drying, or the addition of chemical substances, or converting the tomato product into juices, sauces, or purees. Fresh tomatoes that are imported for cutting up, not further processing (
Commercially grown tomatoes, both for the fresh market and for processing, are classified as Lycopersicon esculentum. Important commercial varieties of fresh tomatoes include common round, cherry, grape, plum, greenhouse, and pear tomatoes, all of which are covered by this investigation.
Tomatoes imported from Mexico covered by this investigation are classified under the following subheading of the Harmonized Tariff Schedules of the United States (HTSUS), according to the season of importation: 0702. Although the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
The Department consulted with the Mexican tomato growers/exporters and the petitioners and has considered the comments submitted by interested parties with respect to the proposal to suspend the antidumping investigation. In accordance with section 734(c) of the Tariff Act of 1930 (the Act), we have determined that extraordinary circumstances are present in this case, as defined by section 734(c)(2)(A) of the Act.
The 2013 Suspension Agreement provides that the subject merchandise will be sold at or above the established reference price and, for each entry of each exporter, the amount by which the estimated normal value exceeds the export price (or constructed export price) will not exceed 15 percent of the weighted-average amount by which the estimated normal value exceeded the export price (or constructed export price) for all less-than-fair-value entries of the producer/exporter examined during the course of the investigation. We have determined that the 2013 Suspension Agreement will eliminate completely the injurious effect of exports to the United States of the subject merchandise and prevent the suppression or undercutting of price levels of domestic fresh tomatoes by imports of that merchandise from Mexico.
We have also determined that the 2013 Suspension Agreement is in the public interest and can be monitored effectively, as required under section 734(d) of the Act.
For the reasons outlined above, we find that the 2013 Suspension Agreement meets the criteria of section 734(c) and (d) of the Act.
In accordance with section 734(f) of the Act, the Department has notified the International Trade Commission of the 2013 Suspension Agreement.
The suspension of liquidation ordered in the preliminary affirmative determination in this case published on November 1, 1996 (
Notwithstanding the 2013 Suspension Agreement, the Department will continue the investigation if it receives such a request within 20 days after the date of publication of this notice in the
The Administrative Protective Orders (APOs) that the Department granted in the original investigation phase and the resumed investigation segment of this proceeding remain in place. While the investigation is suspended, parties subject to those APOs may retain, but may not use, information received under those APOs. All parties wishing access to business proprietary information submitted during the administration of the 2013 Suspension Agreement must submit APO applications in accordance with the Department's regulations currently in effect.
We are issuing and publishing this determination under section 734(f) of the Act.
Pursuant to section 734(c) of the Tariff Act of 1930, as amended (19 U.S.C. 1673c(c)) (the Act), and section 351.208 of the U.S. Department of Commerce (the Department) regulations (19 CFR 351.208 (2012)),
The merchandise subject to this Agreement is all fresh or chilled tomatoes (fresh tomatoes) which have Mexico as their origin, except for those tomatoes which are for processing. For purposes of this Agreement, processing is defined to include preserving by any commercial process, such as canning, dehydrating, drying, or the addition of chemical substances, or converting the tomato product into juices, sauces, or purees. In Appendix F of this Agreement the Department has outlined the procedure that signatories must follow for selling subject merchandise for processing. Fresh tomatoes that are imported for cutting up, not further processing (
Commercially grown tomatoes, both for the fresh market and for processing, are classified as Lycopersicon esculentum. Important commercial varieties of fresh tomatoes include common round, cherry, grape, plum, greenhouse, and pear tomatoes, all of which are covered by this Agreement.
Tomatoes imported from Mexico covered by this Agreement are classified under the following subheadings of the Harmonized Tariff Schedules of the United States (HTSUS), according to the season of importation: 0702. Although the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope of this Agreement is dispositive.
In accordance with section 734(c)(1) of the Act, the signatories are the producers and exporters in Mexico which account for substantially all of the subject merchandise imported into the United States. The Department may at any time during the period of the Agreement require additional producers/exporters in Mexico to sign
In order to satisfy the requirements of section 734(c)(1)(A) of the Act, each signatory individually agrees that, in order to prevent price suppression or undercutting, it will not sell in the United States, on and after the effective date of the Agreement, merchandise subject to the Agreement at prices that are less than the reference price, in accordance with Appendix A to this Agreement.
In order to satisfy the requirements of section 734(c)(1)(B) of the Act, each signatory individually agrees that for each entry the amount by which the estimated normal value exceeds the export price (or the constructed export price) will not exceed 15 percent of the weighted average amount by which the estimated normal value exceeded the export price (or the constructed export price) for all less-than-fair-value entries of the producer/exporter examined during the course of the investigation, in accordance with the Act and the Department's regulations and procedures, including but not limited to the calculation methodologies described in Appendix B of this Agreement.
1. The parties to this Agreement acknowledge that the signatories intend to establish a joint industry-Government-of-Mexico working group (“Working Group”) that will regularly monitor and reconcile Mexican export data and identify and address any inconsistencies or irregularities. The Working Group will refer any alleged violations (either those discovered during its monitoring exercises or those reported by the Department) to the Mexican Government for appropriate action. For further information, please see information provided at:
2. The Department will monitor entries of fresh tomatoes from Mexico to ensure compliance with section III of this Agreement.
3. The Department will review publicly available data and other official import data, including, as appropriate, records maintained by U.S. Customs and Border Protection, to determine whether there have been imports that are inconsistent with the provisions of this Agreement.
4. The Department will review, as appropriate, data it receives from the Working Group and through any data exchange program between U.S. and Mexican government agencies, to determine whether there have been imports that are inconsistent with the provisions of this Agreement.
1. The Department may require, and each signatory agrees to provide, confirmation, through documentation provided to the Department, that the price received on any sale subject to this Agreement was not less than the established reference price. The Department may require that such documentation be provided and be subject to verification.
2. The Department may require and each signatory agrees to report in the prescribed format and using the prescribed method of data compilation, each sale of the merchandise subject to this Agreement, either directly or indirectly to unrelated purchasers in the United States, including each adjustment applicable to each sale, as specified by the Department. Each signatory agrees to permit review and on-site inspection of all information deemed necessary by the Department to verify the reported information.
3. The Department may only initiate administrative reviews under section 751(a) of the Act in the month immediately following the anniversary month, upon request or upon its own initiative, to ensure that exports of fresh tomatoes from Mexico satisfy the requirements of section 734(c)(1)(A) and (B) of the Act. The Department may perform verifications pursuant to administrative reviews conducted under section 751 of the Act.
4. At any time it deems appropriate, and without prior notice, the Department will conduct verifications of parties handling signatory merchandise to determine whether they are selling signatory merchandise in accordance with the terms of this Agreement. The Department will also conduct verifications at the association level at locations and times it deems appropriate.
1. All reference prices will be expressed in U.S. $/lb in accordance with Appendix A of this Agreement. Subject to paragraph 24 of Annex 703.2 of the North American Free Trade Agreement, the quality of each entry of fresh tomatoes exported to the United States from Mexico will conform with any applicable U.S. Department of Agriculture minimum grade, size, and/or quality import requirements in effect.
2. The parties to this Agreement acknowledge that in accordance with Mexican regulations, Mexican tomato growers and non-grower exporters exporting to the United States will become signatories to the Agreement. Signatories will fully comply with all requirements of Mexican regulations concerning identification, tracking, verification and inspection by the relevant Mexican authorities including the Ministry of Economy (SECON), the Ministry of Agriculture (SAGARPA), SAGARPA's National Food Health, Safety and Quality Service (SENASICA) and Customs. In accordance with Mexican regulations, non-compliance will result in the revocation of export privileges. For further information, please see information provided at:
3. Signatories agree not to circumvent the Agreement and to undertake measures that will help to prevent circumvention. For example, each signatory will take the following actions:
a. It is the responsibility of each signatory to ensure that sales of its merchandise are made consistent with the requirements of this Agreement. To that end, each signatory shall enter into a contract with the party that is responsible for the first sale of its subject merchandise to an unaffiliated customer in the United States (the Selling Agent) that incorporates the terms of this Agreement.
Through a contractual arrangement signatories shall also require the Selling Agent to establish a contract with third parties to ensure that adjustments for spoilage or other claims inconsistent with the Agreement will not be permitted. Further, this contractual arrangement must establish that the Selling Agent maintain documentation demonstrating that sales of their
b. Each signatory will label its boxes of subject merchandise that are exported to the United States with its name, signatory identification number, and a statement that “These Tomatoes Were Grown/Exported By a Signatory of the 2013 Suspension Agreement.”
For purposes of this Agreement, controlled environment tomatoes are limited to those tomatoes grown in a fully-enclosed permanent aluminum or fixed steel structure clad in glass, impermeable plastic, or polycarbonate using automated irrigation and climate control, including heating and ventilation capabilities, in an artificial medium using hydroponic methods.
c. Each signatory will label its boxes of fresh tomatoes sold in Mexico with its name and the statement “Prohibida Su Exportacion a los EUA/Not for Export to the United States”.
4. Not later than thirty days after the end of each quarter, each signatory will submit a written statement to the Department certifying that all sales during the most recently completed quarter were at net prices (after rebates, backbilling, discounts for quality and other claims) at or above the reference prices in effect and were not part of or related to any act or practice which would have the effect of hiding the real price of the fresh tomatoes being sold (
The Department may reject: (1) Any information submitted after the deadlines set forth in this Agreement; (2) any submission that does not comply with the filing, format, translation, service, and certification of documents requirements under 19 CFR 351.303; (3) submissions that do not comply with the procedures for establishing business proprietary treatment under 19 CFR 351.304; (4) submissions that do not comply with any other applicable regulations, as appropriate, or any information that it is unable to verify to its satisfaction. If information is not submitted in a complete and timely fashion or is not fully verifiable, the Department may use facts otherwise available for the basis of its decision, as it determines appropriate, unless the Department determines that section V applies.
1. When the Department identifies, through import or compliance monitoring or otherwise, that sales may have been made at prices inconsistent with section III of this Agreement, the Department will notify each signatory which it believes is responsible through their associations' counsel or directly, in the event that the signatory is not represented by counsel. The Department will consult with each such party for a period of up to sixty days to establish a factual basis regarding sales that may be inconsistent with section III of this Agreement.
2. During the consultation period, the Department will examine any information that it develops or which is submitted, including information requested by the Department under any provision of this Agreement.
3. If the Department is not satisfied at the conclusion of the consultation period that sales by such signatory are being made in compliance with this Agreement, the Department may evaluate under section 751 of the Act whether this Agreement is being violated, as defined in section V.F of this Agreement, by such signatory. Without prejudice to the provisions of section VI.B of this Agreement, in no event will the Department terminate the Agreement under this provision outside of the scope of a review under section 751.
The Department will consult with the signatories regarding the operations of this Agreement. A party to the Agreement may request such consultations in any April or September (
Notwithstanding the previous paragraph, the parties may agree to revise the reference prices at any time.
A. “Violation” means noncompliance with the terms of this Agreement, whether through an act or omission, except for noncompliance that may be considered inconsequential and inadvertent, or does not substantially frustrate the purposes of this Agreement.
B. If the Department determines that there has been a violation of the Agreement or that the Agreement no longer meets the requirements of sections 734(c) or (d) of the Act, the Department shall take action it determines appropriate under section 734(i) of the Act and the Department's regulations.
C. Pursuant to section 734(i) of the Act, the Department will refer any intentional violations of the Agreement to U.S. Customs and Border Protection. Any person who intentionally commits a violation of the Agreement shall be subject to a civil penalty assessed in the same amount, in the same manner, and under the same procedures as the penalty imposed for a fraudulent violation of section 592(a) of the Act. A fraudulent violation of section 592(a) of the Act is punishable by a civil penalty in an amount not to exceed the domestic value of the merchandise. For purposes of the Agreement, the domestic value of the merchandise will be deemed to be not less than the reference price, as the signatories agree not to sell the subject merchandise at prices that are less than the reference price or to ensure that sales of the subject merchandise are made consistent with the terms of the Agreement.
D. In addition, the Department will examine the activities of signatories, their Selling Agents, and any other party to a sale subject to the Agreement to determine whether any activities conducted by any party aided or abetted another party's violation of the Agreement. If any such parties are found to have aided or abetted another party's violation of the Agreement, they shall be subject to the same civil penalties described in section V.C. above.
Signatories to this Agreement consent to the release of all information presented to or obtained by the Department during the conduct of verifications with U.S. Customs and Border Protection and/or the U.S. Department of Agriculture. Further, through a contractual arrangement, signatories shall require that the Selling
E. A violation of this Agreement by a Selling Agent may also constitute an unfair trade practice that violates the PACA.
F. The following activities shall be considered violations of the Agreement:
1. Sales that are at net prices (after rebates, backbilling, discounts for quality and other claims) that are below the reference price.
2. Any act or practice which would have the effect of hiding the real price of the fresh tomatoes being sold (
3. Sales that are not in accordance with the terms and conditions applied by the Department when calculating prices for transactions involving adjustments due to changes in condition after shipment as detailed in Appendix D of this Agreement.
4. Selling signatory tomatoes to Canada in a manner that is not consistent with the requirements of Appendix E of this Agreement.
5. Selling signatory tomatoes for processing in the United States in a manner that is not consistent with the requirements of Appendix F of this Agreement.
6. Labeling boxes in a manner that is inconsistent with the labeling provisions of section IV.C.3.b. and c. above for the apparent purpose of circumventing this Agreement.
7. Repeated or routine over filling of boxes beyond reasonable variations in weights for the apparent purpose of circumventing this Agreement.
8. Any other act or practice that the Department finds is in violation of this Agreement.
A. In entering into this Agreement the signatories do not admit that any exports of fresh tomatoes from Mexico are having or have had an injurious effect on fresh tomato producers in the United States, have caused the suppression or undercutting of prices, or have been sold at less than fair value.
B. The signatories or the Department may withdraw from this Agreement upon ninety days written notice to the other party.
C. Upon request, the Department will advise any signatory of the Department's methodology for calculating its export price (or constructed export price) and normal value in accordance with the Act and the Department's regulations and procedures, including but not limited to, the calculation methodologies described in Appendix B of this Agreement.
This section provides for disclosure and comment on consultations not involving a review under section 751 of the Act.
A. If the Department proposes to revise the reference price(s) as a result of consultations under this Agreement, not later than two months prior to the first day of each semi-annual period, the Department will disclose the results and the methodology of the Department's calculation of the preliminary reference price(s) established for that upcoming semi-annual period.
B. Not later than seven days after the date of disclosure under paragraph VII.A, the parties to the proceeding may submit written comments concerning the proposed reference price(s) to the Department, not to exceed fifteen pages. After reviewing these submissions, the Department will provide the final reference price(s) for the upcoming semi-annual period, normally within thirty days after the date of disclosure under paragraph VII.A.
C. The Department may make available to representatives of each interested party to the proceeding, under appropriately drawn administrative protective orders, any business proprietary information submitted to and/or collected by the Department pursuant to section IV of this Agreement, as well as the results of the Department's analysis of that information.
This Agreement has no scheduled termination date. Termination of the suspended investigation will be considered in accordance with the five-year review provisions of section 351.218 of the Department's regulations.
The effective date of the Agreement is March 4, 2013.
The following parties hereby certify that the members of their organization agree to abide by all terms of the Agreement:
Consistent with the requirements of section 734(c) of the Act, to eliminate completely the injurious effect of exports to the United States and to prevent the suppression or undercutting of price levels of domestic fresh tomatoes, the Department and the signatory producer/exporters of the subject merchandise hereby agree to adopt the reference prices calculated based on a similar methodology to that outlined in the November 1, 1996, agreement suspending the antidumping investigation involving fresh tomatoes from Mexico, as amended on August 14, 1998. See
Accordingly, the reference prices are as follows:
These reference prices will remain in effect unless modified in accordance with the provisions of paragraph IV.F of the Agreement or as described below. The Department reserves the right to modify its methodology in establishing a reference price, if appropriate, and will do so in accordance with the provisions of paragraph IV.F of the Agreement.
The term “reference price” refers to the price F.O.B. from the Selling Agent. The reference price includes all palletizing and cooling charges incurred prior to shipment from the Selling Agent. The actual movement or handling expenses beyond the point of entry into the United States (
Parties should refer to “Agricultural Refrigerated Truck Quarterly”, which can be found at
During the Department's verifications of parties handling signatory merchandise it will ascertain whether: (1) The handling expenses beyond the point of entry into the United States are added to the reference price and reflect the actual cost for an arm's-length transaction; and (2) the transfer price from the Selling Agents to their affiliates are at or above the applicable reference price and that any subsequent sale to an unaffiliated party includes the appropriate markups (
The reference price for each type of box shall be determined based on the average weights stated in the chart contained in Appendix C of the Agreement.
The cost or price information reported to the Department that will form the basis of the normal value (NV) calculations for purposes of the Agreement must be comprehensive in nature and based on a reliable accounting system (
When the Department bases normal value on sales prices, such prices will be the prices at which the foreign like product is first sold for consumption in the comparison market in the usual commercial quantities and in the ordinary course of trade. Also, to the extent practicable, the comparison shall be made at the same level of trade as the export price (EP) or constructed export price (CEP).
Calculation of NV:
When normal value is based on constructed value, the Department will compute constructed values (CVs) for each growing season, as appropriate, based on the
Calculation of CV:
* SG&A and profit are based on home-market sales of the foreign like product made in the ordinary course of trade. SG&A includes financing but not movement expenses.
EP and CEP refer to the two types of calculated prices for merchandise imported into the United States. Both EP and CEP are based on the price at which the subject merchandise is first sold to a person not affiliated with the foreign producer or exporter.
Calculation of EP:
Calculation of CEP:
To ensure that a fair comparison with EP or CEP is made, the Department will make adjustments to normal value. The Department will adjust for physical differences between the merchandise sold in the United States and the merchandise sold in the home market. For EP sales, the Department will add in U.S. direct selling expenses, U.S. commissions
The Department has the sole authority to make revisions to the Box Weight Charts used to apply the applicable reference price to particular box configurations. The reference prices for each pack style or box configuration shall be determined based on the average net weights stated in the Box Weight Charts below.
The Department intends to commence and complete a box weighing exercise within 12 months following the signature of this Agreement, and thereafter, at such times as considered appropriate by the Department.
All weighing exercises may occur at a U.S. Customs and Border Protection (CBP) port facility, at U.S. Selling Agent facilities, in bonded compounds, or at signatory packhouses, at the sole discretion of the Department. For weighing exercises conducted at a CBP port facility, the Department will coordinate with CBP in its collection and review of data for calculating and monitoring box-specific average weights for any winter or summer season, as appropriate.
The Department will provide 14 hours advance notice to the signatories (through their associations' counsel or directly to the signatories, in the event that they are not represented by counsel) of the commencement of any box weighing exercise. Subject to approval by the Department and CBP, as appropriate, the Department will undertake best efforts to ensure that at least two, but no more than four representatives of the signatories are permitted access to a port or other facility to observe the box weighing exercise. Observers will be chosen by the signatory associations. Any requests for additional observers from signatories not represented by association counsel will be considered by the Department. In the event that no otherwise qualified observers are permitted by CBP to enter a port facility, the Department will either delay the exercise until at least one qualified observer is present or, at its discretion, will conduct the box weighing exercise at an alternate location.
To derive representative average net weights
Observers may raise bona fide challenges to the recording of the weight of a particular box at the time it is weighed and must specify the nature of the challenge.
If the Department determines to revise an average weight figure based upon information that an average weight on the chart is no longer accurate or to provide an average weight for a box configuration not currently on the chart, the Department will provide at least fifteen days notice to signatories (through their associations' counsel or directly to the signatories, in the event that they are not represented by counsel) prior to the effective date of such revised average weights for purposes of this Agreement. The Department will determine the revised average weight in accordance with the procedure described above.
In the event that a signatory intends to export subject merchandise to the United States in a box for which there is no average weight on the chart, the signatory shall notify the Department in writing no later than five business days prior to the date of the first exportation of such boxes to the United States. Signatories can obtain from the Department's Web site a copy of the suggested form for submitting this information. See “Notification of Intent to Ship Tomatoes in a New Pack Type” at
The purpose of this appendix is to explain the procedures for making adjustments to the sales price of signatory tomatoes due to certain changes in condition after shipment, such that the sales price for any tomatoes accepted in a lot
As explained in Appendix A of the Agreement, the term “reference price” refers to the price F.O.B. from the Selling Agent. The reference price includes all palletizing and cooling charges incurred prior to shipment from the Selling Agent. The actual movement or handling expenses beyond the point of entry into the United States (
Appendix G of the Agreement outlines specific actions that signatories should take to ensure that their efforts to abide by the Agreement are upheld in any claims taken to the U.S. Department of Agriculture under PACA.
To facilitate the verification of claims for changes in condition after shipment, the contract between the signatory and the Selling Agent must establish that all paper work be completed within 15 business days after the USDA inspection, and that claims be resolved within 15 business days after the USDA inspection, unless the claim is referred to PACA for mediation. Failure to complete this paperwork in a timely manner may constitute a violation of the Agreement. When filing quarterly certifications with the Department, signatories should report the number of lots on which claims for condition defects were granted, the total volume of tomatoes destroyed or donated, and the total value of claims granted. Signatories can obtain from the Department's Web site a copy of the suggested form for submitting the quarterly certification information. See “Quarterly Certification” at
1. A USDA inspection certificate must be provided to support claims for rejection of all or part of a lot. Further, no adjustments will be made for failure to meet suitable shipping conditions unless supported by an unrestricted USDA inspection.
2. If the USDA inspection indicates that the lot has: 1) Over 8% soft/decay condition defects; 2) over 15% of any one condition defect; or 3) greater than 20% total condition defects, the receiver may reject the lot or may accept a portion of the lot and reject the quantity of tomatoes lost during the salvaging process. In those instances, price adjustments will be calculated as described below. For purposes of this Agreement, a condition defect is any defect listed in the chart in part A.5 below. When a lot of tomatoes has condition defects in excess of those outlined above as documented on a USDA inspection certificate, the documented percentage of the tomatoes with condition defects are considered DEFECTIVE tomatoes.
3. No adjustments will be made for failure to meet suitable shipping conditions if the USDA inspection certificate does not indicate one of the condition thresholds outlined above.
4. The USDA inspection must be called for no more than eight hours from the time of arrival at the destination specified by the receiver and be performed in a timely fashion thereafter. If there is more than one USDA inspection on a given lot, the inspection certificate corresponding to the first inspection is the one that will be used for making any adjustment to the sales price. However, if an appeal inspection is conducted which reverses the original inspection, it will supersede the first inspection, as long as the appeal inspection is requested within a reasonable amount of time not to exceed 12 hours from the first inspection.
The first receiver of the product, regardless of whether that receiver is acting as an agent or a broker for an unrelated purchaser or whether the receiver is the unrelated purchaser acting on its own right, must specify the city/metropolitan area of the destination of the product. The inspection will take place at the destination of delivery as specified prior to shipment.
No adjustments will be granted for a USDA inspection at a destination which is different from the destination specified by the first receiver of the product. In the event that the first receiver does not specify the city/metropolitan area of the destination of the product, the six-hour period within which an inspection may be requested will begin to run at such time as title to the product transfers to the unrelated purchaser, for example, upon loading of the product at the first handler's (importer's) warehouse in an F.O.B. transaction and upon delivery of the product to the first buyer's warehouse in a delivered sale.
A person or company shall be considered an agent or broker for an unrelated purchaser: (1) When that person or company falls within the description of types of broker operations set forth in 7 CFR 46.27; or (2) have provided a broker's memorandum of sale as set forth in 7 CFR 46.28(a). The following paragraphs apply if a broker or dealer is involved in the transaction.
A broker, unlike a dealer, does not take ownership or control of the tomatoes but arranges for delivery directly to the vendor or purchaser. Because a broker never takes ownership or control over the tomatoes, the customer and not the broker may request an inspection, and only the customer is entitled to any resulting adjustments. The inspection would take place at the customer's destination, as specified in the broker's contract with the Selling Agent.
When a dealer is involved in the sale, the destination of delivery stated in the contract is where the inspection is to take place. If the dealer does not specify the destination of delivery, the default destination of delivery is the warehouse of the Selling Agent. With respect to a lot of tomatoes that is owned or controlled by a dealer, it is the responsibility of the dealer to request an inspection of the tomatoes in his possession in a timely manner, if he deems it necessary. If the dealer does not request an inspection in a timely manner (
5. Under this Agreement, adjustments to the sales price of signatory tomatoes will be permitted only for condition defects. The term “condition defect” is intended to have the same definition recognized by the Specialty Crops Inspection Division of the United States Department of Agriculture, with the exception of abnormal coloring, soil spot, blossom end discoloration, and surface discoloration (silvery-white and gold fleck), and, therefore, covers the following items:
6. In calculating the transaction price for lots subject to an adjustment claim for condition defects, as defined above, the tomatoes classified as DEFECTIVE will be treated as rejected and as not having been sold.
If the lot contains condition defects greater than those outlined above and the receiver does not reject the entire lot of tomatoes, the Department will factor certain adjustments into the transaction price, provided that the following conditions apply:
1. The price invoiced to and paid by the receiver for the accepted tomatoes must not fall below the reference price.
2. The Selling Agent may reimburse the receiver for actual destruction costs associated with the DEFECTIVE tomatoes. If properly documented, these expenses will not be considered in the calculation of the price of the accepted tomatoes.
3. The Selling Agent may reimburse the receiver for the portion of freight expenses allocated to the DEFECTIVE tomatoes. If properly documented, these expenses will not be considered in the calculation of the price of the accepted tomatoes.
4. If the Selling Agent follows the guidelines outlined below, it may reimburse the receiver for repacking charges directly associated with salvaging and reconditioning the lot. If properly documented, these expenses will not be considered in the calculation of the price of the accepted tomatoes.
a. If the salvaging and reconditioning activity is performed by a party unaffiliated with the Selling Agent's customer the fee charged for the service may be reimbursed if the Selling Agent's customer can provide evidence for such costs (
b. If the salvaging and reconditioning activity is performed by the Selling Agent's customer or a party affiliated with the Selling Agent, the direct labor costs or, in lieu thereof, one-half of the ordinary and customary repacking charges may be reimbursed. To substantiate such costs the Selling Agent's customer or party affiliated with the Selling Agent must provide detailed records of the labor cost incurred for repacking or, where applicable, evidence of the ordinary and customary repacking costs.
5. The Selling Agent may reimburse the receiver for the inspection fees listed on the USDA inspection certificate. If properly documented, these expenses will not be considered in the calculation of the price of the accepted tomatoes.
6. Any reimbursements from, by, or on behalf of the Selling Agent that are not specifically mentioned in items B.2, B.3, B.4, or B.5 above, or that are not properly documented, will be factored into the calculation of the price for the accepted tomatoes.
7. The receiver may not resell the DEFECTIVE tomatoes. The receiver may choose to have the DEFECTIVE tomatoes destroyed, donated to non-profit food banks, or returned to the Selling Agent. The DEFECTIVE tomatoes may not be sold.
8. In addition, for each transaction involving adjustments due to changes in condition after shipment the Selling Agent must obtain/maintain the following documents/information:
In cases where the receiver has rejected the full lot of tomatoes based on condition defects, the Selling Agent may choose to have the entire lot destroyed, donated to non-profit food banks, or returned. If the entire lot is destroyed or donated, the Selling Agent will require the receiver to provide the documentation noted above for partial-lot rejections. Further, the Selling Agent may reimburse the receiver for ordinary and customary expenses that the receiver incurred with respect to the lot, including those expenses associated with the destruction or donation process, as long as the Selling Agent obtains the support documentation specified above under B.8. The Department will treat such transactions as “non-sales” provided that adequate support documentation is available.
Alternatively, the Selling Agent may sell the entire rejected lot to another receiver. In that case, the price paid must be not less than the reference price plus all costs incurred (
As explained in part A.1 above, the Department will only allow adjustments to the transaction price for condition defects if the USDA inspection is unrestricted. During the time between the call for inspection and the arrival of the USDA inspector, the receiver might sell part of the lot and, therefore, by the time the USDA inspector arrives, that part is not available for inspection. If the USDA inspector is allowed full access to the partial lot, the Department will consider this an unrestricted partial-lot inspection. Alternatively, if the USDA inspector is not allowed full access to the partial lot, the Department will deem it a restricted inspection. No adjustments will be made for failure to meet suitable shipping conditions if the USDA inspection is restricted. For purposes of this Agreement, when calculating an adjustment for failure to meet suitable shipping conditions where an unrestricted partial-lot inspection has taken place, only the portion of the lot inspected is eligible for adjustment. The portion of the lot that the receiver sold prior to the inspection will not be eligible for an adjustment based on the USDA inspection.
For example, before the USDA inspector arrives, the receiver sells 140 boxes of 5x5s from a lot identified as 160 5x5s on the invoice. When the USDA inspector arrives, the receiver requesting the inspection provides full access to the partial lot within its possession. The inspector finds that the partial lot of 20 5x5s has soft/decay condition defects of 25 percent and notes this on this inspection certificate. Under the Agreement, only the 20 5x5s are eligible for an adjustment for failure to meet suitable shipping conditions, and the 140 5x5s that the receiver already sold will not be eligible for an adjustment based on the USDA inspection.
Based on our experience in this proceeding, it is common practice for the signatory's Selling Agent to enter the merchandise into the United States for consumption and then re-export it to Canada. The purpose of this appendix is to: (1) Outline the process that each signatory to this Agreement must follow to ensure that the Selling Agent properly documents sales to Canada as such and (2) ensure that the signatory notifies the Canadian customer that any resales of its merchandise from Canada into the United States must be in accordance with the terms of this Agreement.
To document sales of Mexican tomatoes to Canada properly, this Agreement requires that such transactions be made pursuant to a contractual arrangement where each signatory requires that the Selling Agent that facilitates the sale to Canada maintain the following information in its files:
1. Signatory name and identification number;
2. Shipping manifest;
3. An invoice identifying sale date, brand, tomato type, quantity (boxes), and value; and
4. Entry documentation from Canadian Customs (
If a signatory to the Agreement or its Selling Agent does not document a sale to Canada in accordance with the procedures outlined above, the Department will consider the transaction a U.S. sale. Failure to properly document a sale to Canada may constitute a violation of the Agreement.
We also require signatories to ensure that the Canadian customer is notified that any resale of the signatory merchandise from Canada into the United States must be in accordance with the terms of the Agreement and that any movement or handling expenses beyond the point of export from Mexico must be added to the reference price and must reflect the actual cost for an arm's-length transaction. Signatories can obtain from the Department's Web site a copy of the suggested form for providing such notification. See “Form for Notifying Canadian Customer That Resales of Signatory Merchandise Into the United States Are Covered by the Terms of the 2013 Suspension Agreement” at
Sales to the United States of signatory tomatoes for processing must be:
1. Sold directly to a processor (in other words, the first purchaser in the United States of tomatoes for processing must be an actual processor);
2. Accompanied by an “Importer's Exempt Commodity Form”—Form FV-6, within the meaning of 7 CFR 980.501(a)(2) and 980.212(I), should be used for all tomatoes for processing that are covered by the Federal Marketing Order 966 (Marketing Order); tomatoes for processing that are not covered by the Marketing Order (
3. Shipped in a packing form that is not typical of tomatoes for the fresh market (
4. Clearly labeled on the packaging as “Tomatoes for Processing”.
Signatories can obtain from the Department's Web site an example of the “2013 Suspension Agreement—Tomatoes for Processing Exemption Form”. See
Sales of signatory merchandise to a processor after importation into the United States are a violation of the Agreement.
This appendix provides guidance on the specific actions signatories can take to ensure that their efforts to abide by the Agreement are upheld in any claims taken to the Department of Agriculture under PACA.
Payment disputes arising under the Agreement are actionable and/or able to be resolved under the PACA dispute resolution procedure. PACA will uphold actions taken by a signatory or a signatory's representative (collectively “signatory”) to comply with the Agreement to the extent that the sales contract for the transaction at issue establishes that the sale is subject to the terms of the Agreement.
In other words, if, prior to making the sale, the signatory, or the Selling Agent acting on behalf of the signatory through a contractual arrangement, informs the customer that the sale is subject to the terms of the Agreement and identifies those terms, PACA will recognize the identified terms of the Agreement as integral to the sales contract. In particular, signatories should inform their customers that their contractual agreement to allow defect claim adjustments is limited in accordance with the Agreement, including:
* Claims for adjustments must be supported by an unrestricted USDA inspection called for no more than eight hours from the time of arrival at the receiver and performed in a timely fashion thereafter.
* The USDA inspection must find that the condition defects exceed the thresholds outlined in Appendix D above.
* Any price adjustments will be limited to the actual percentage of condition defects as documented by a USDA inspection certificate.
* The price adjustments will be limited to actual destruction costs, the allocated freight expense, and salvaging and reconditioning expenses calculated in accordance with Appendix D above.
* The customer may not resell any DEFECTIVE tomatoes. Instead, they must be destroyed, returned or donated to a non-profit food bank. Signatories should provide
The process by which a signatory could provide evidence to PACA that its sales contracts were made subject to the terms of the Agreement including, in particular, those terms listed above is outlined below.
* The signatory should maintain written documentation demonstrating that it had informed its customers and the customers accepted that the sales were subject to the terms of the Agreement prior to issuing the invoice. A signed contract to that effect would be the best evidence of that fact; however, a purchase by the customer after being informed of the relevance of the Agreement is evidence of acceptance.
* The signatory should send letters to its customers via registered mail, return receipt requested, overnight mail, or email with a confirmation received from the recipient, informing the customers that, as a signatory to the Agreement, all of the signatory's sales are subject to the terms of the Agreement and that, by purchasing from them, the buyer agrees to those terms. The letter should also indicate that the signatory's sales personnel do not have authority to alter the terms of the Agreement.
* In addition, the signatory should include a statement on its order confirmation sheets that its contract with the buyer is subject to the terms of the Agreement as detailed in the signatory's “pre-season” letter and maintain a copy of the order confirmations and fax receipts demonstrating that they were sent to the customer prior to making the sale. If the sale is to a first-time purchaser that did not receive a “pre-season” letter, a letter should be supplied to the buyer prior to making a sale.
PACA does not require any one particular form of written documentation but USDA officials have confirmed that, if signatories maintain written evidence demonstrating that their customers were informed that their sales were made subject to the terms of the Agreement prior to sale, PACA will recognize those terms as part of the sales contract.
International Trade Administration, Department of Commerce.
Replacement Notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is replacing the Notice regarding the Trade Mission to Egypt April 14-16, 2013, published at 78 FR 7752, February 4, 2013. The effect of this notice is to expand the mission eligibility to companies in all sectors and/or industries. All companies that have applied to this mission to date, and all companies that apply by March 14, 2013 will be considered.
In June 2012 the Department of Commerce initiated recruitment for participation in the U.S. Trade Mission to Egypt and Kuwait March 10-14, 2013, published at 77 FR 33439, June 6, 2012. In 77 FR 71777, December 4, 2012, the Department of Commerce announced that the application deadline for the mission was extended until January 18, 2013. Since then, due to unforeseen circumstances, the Kuwait portion of the mission has been cancelled, and Trade Mission to Egypt will be April 14 to 16 and the application deadline March 14. Interested firms that have not already submitted an application are encouraged to apply. Applications will be accepted after the deadline only to the extent that space remains and scheduling constraints permit.
The Trade Mission to Egypt and Kuwait is replaced to read as follows:
The U.S. Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is organizing a Trade Mission to Cairo, Egypt to explore opportunities in all industries.
Led by a senior executive of the Department of Commerce or other U.S. Government agency, the trade mission will include one-on-one business appointments with pre-screened potential buyers, agents, distributors and joint venture partners; meetings with national and regional government officials, chambers of commerce, and business groups; and networking receptions for companies and trade associations representing companies interested in expansion into the North African and Middle Eastern markets. Meetings will be offered with government authorities that can address questions about policies, tariff rates, incentives, grid interconnection, regulation, etc.
The mission will help participating firms and trade associations gain market insights, make industry contacts, solidify business strategies, and advance specific projects, with the goal of increasing U.S. exports to Egypt. Participating in an official U.S. industry delegation, rather than traveling to Egypt on their own, will enhance the companies' ability to secure meetings in Egypt.
Egypt is strategically located at the gateway of trade for Africa and the Middle East. It is a prime location for the transit of goods, as well as a key destination for American companies seeking to do business in the region.
Egypt has experienced profound political changes over the past year. On February 11, 2011, President Hosni Mubarak's 30-year rule came to an end. In January 2012, Egypt seated its first freely and fairly elected parliament, and has held a Presidential election. In the meantime, the United States remains committed to a strong partnership with Egypt.
As the largest Arab country with a population of 90 million, Egypt is the fourth largest export market for U.S. products and services in the Middle East. The United States is Egypt's largest bilateral trading partner, and the second largest investor. In 2011, bilateral trade reached $8.2 billion. The gross domestic product (GDP) grew over five percent from 2009 to 2010. According to Business Monitor International's forecasts, Egypt's real GDP is expanding 2.1% in FY2011/12 and projected to grow 4.9% in FY2012/13 (Egypt's fiscal year is July through June). Egyptian law requires that foreign companies retain Egyptian commercial agents for public tenders, but they may work directly with private companies. Most foreign companies have found it beneficial, however, to engage a local agent for private sector transactions as well because of their familiarity of the language, law and general business practices. Based on geographical location or product basis, a firm can appoint multiple agents in Egypt to further enhance its success.
The goal of the trade mission is to provide U.S. participants with first-hand market information, access to government decision makers as appropriate and one-on-one meetings with business contacts, including potential agents, distributors and partners, so they can position themselves to enter or expand their presence in the Egypt.
Cairo is the capital of Egypt and the largest city in Africa. The business week runs from Sunday through Thursday.
All parties interested in participating in the Trade Mission to Egypt must complete and submit an application package for consideration by the U.S. Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 15 U.S. companies and/or trade associations and maximum of 20 companies and/or trade associations will be selected to participate in the mission from the applicant pool. U.S. companies or trade associations already doing business with Egypt, as well as U.S. companies or trade associations seeking to enter these countries for the first time may apply.
After a company has been selected to participate on the mission, a payment to the U.S. Department of Commerce in the form of a participation fee is required. The fee for one representative to participate in the mission is $1400 for an SME and $2100 for large firms or trade associations. The fee for each additional company or association representative (SME or large firm) is $400. Expenses for travel, lodging, most meals, interpreters, and incidentals are the responsibility of each mission participant. Participants may be able to take advantage of Embassy rates for hotel rooms.
• An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the U.S. Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least 51 percent U.S. content. In the case of a trade association or trade organization, the applicant must certify that, for each company to be represented by the trade association or trade organization, the products and services the represented company seeks to export are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content.
• Consistency of the applicant's goals and objectives with the stated scope of the mission
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including posting Export.gov—and other Internet Web sites; publication in trade publications and association newsletters; direct outreach to the Department's clients; posting in the
Recruitment for the mission will begin January 28, 2013 and conclude no later than March 14, 2013. The U.S. Department of Commerce will review applications and make selection decisions on a rolling basis until the maximum of twenty participants is reached. We will inform all applicants of selection decisions as soon as possible after the applications are reviewed. Applications received after the March 14 deadline will be considered only if space and scheduling constraints permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Gulf of Mexico Fishery Management Council will convene scoping meetings to discuss a For-Hire Red Snapper Days-at-Sea Pilot Program.
The scoping meetings will be held on March 25, 2013 through April 3, 2013 at eight locations throughout the Gulf of Mexico. The scoping meetings will begin at 6 p.m. and will conclude no later than 9 p.m. For specific dates, see
The scoping meetings will be held in the following locations: St. Petersburg, Naples and Destin, FL; Kenner, LA; Biloxi/Gulfport, MS;
Drs. Assane Diagne, Economist and Ava Lasseter, Anthropologist; Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The Gulf of Mexico Fishery Management Council has scheduled scoping meetings on a proposed amendment addressing the For-Hire Red Snapper Days-at-Sea Pilot Program. The days-at-sea program would apply to the charter industry. Issues to be discussed include, but are not limited to, the purpose and need for this amendment and the potential management actions that may be considered. Management actions under consideration range from the selection of program participants to the establishment of effort and catch validation methods and criteria for program evaluation.
The eight scoping meetings will begin at 6 p.m. and conclude at the end of public testimony or no later than 9 p.m. at the following locations:
Copies of the scoping document will be available two weeks prior to the first scoping meeting and can be obtained by calling (813) 348-1630, or from the Council Web site at
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, March 27, 2013, at 9:30 a.m.
The meeting will be held at the Westin Waterfront Hotel, 425 Summer Street, Boston, MA 02110; telephone: (617) 532-4600; fax: (617) 532-4650.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will recommend measures for Framework 25 to the Sea Scallop Fishery Management Program (FMP). Framework 25 will include fishery specifications for fishing year 2014 and default measures for 2015 as well as accountability measures for southern windowpane flounder. The committee will provide recommendations for research priorities as well as review the status of the fishery for fishing year 2012. In addition, the committee will review progress on the Limited Access General Category Individual Fishing Quota performance report being completed by the Scallop Plan Development Team. Finally, NMFS will give a presentation about management action timing issues. The Committee will review the general timelines and steps involved in reviewing and approving fishery management actions and have an opportunity to ask questions.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public hearing.
The Caribbean Fishery Management Council will hold a public hearing to obtain input from fishers, the general public, and the local agencies representatives on the Draft Regulatory Amendment 2 to the Fishery Management Plan for Queen Conch Resources of Puerto Rico and the U.S. Virgin Islands: Compatible Trip and Bag
The public hearing will be held on March 25, 2013, from 7 p.m. to 10 p.m.
The hearing will be held at The Buccaneer Hotel, 7 Estate Shoys, Christiansted, St. Croix, U.S. Virgin Islands.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918; telephone: (787) 766-5926.
The Caribbean Fishery Management Council will hold a public hearing to receive public input on the following management options:
The National Marine Fisheries Service, in collaboration with the Council, has developed Regulatory Amendment 2 and its Environmental Assessment to establish compatible regulations with U.S. Virgin Islands (USVI) territorial regulations for the harvest of queen conch. Fishing and possession of queen conch in the U.S. Caribbean exclusive economic zone (EEZ) is only allowed in the area of Lang Bank, to the east of St. Croix.
The USVI has expressed interest in having federal waters become compatible with the territorial trip limit because some of the harvest of queen conch in St. Croix comes from the EEZ, and that harvest must traverse territorial waters to be landed. Thus, establishing compatible regulations would aid enforcement by eliminating the inconsistency in the number of queen conch allowed to be possessed on the water.
The alternatives considered in this Regulatory Amendment address the following issues:
The current trip limit in federal waters allows a licensed commercial fisherman to harvest up to 150 queen conch per day, but does not establish a harvest limit per vessel. USVI regulations allow the harvest of 200 queen conch per vessel regardless of the number of licensed fishermen on board.
The daily recreational bag limit in federal waters allows three queen conch per person and a maximum of 12 queen conch per boat. In contrast, the USVI daily recreational bag limit consists of six queen conch per person and a maximum of 24 per boat.
Although commercial and recreational harvest of queen conch appears to occur primarily in territorial waters, with only minimal EEZ harvest, queen conch is currently classified as an overfished species, and it is managed under a 15-year rebuilding plan. Establishing compatible regulations would allow for more efficient management and enforcement of queen conch regulations in both territorial and EEZ waters.
The goal of Regulatory Amendment 2 is to achieve state-federal compatibility of queen conch.
ACTION 1: Modify the trip limit for the commercial harvest of queen conch in the U.S. Caribbean exclusive economic zone (EEZ).
Alternative 1: No Action. Do not modify the current trip limit for the commercial harvest of queen conch in the U.S. Caribbean EEZ, which allows no more than 150 queen conch per licensed commercial fisherman per day.
Alternative 2: Modify the trip limit for the commercial harvest of queen conch in the U.S. Caribbean EEZ to be consistent with the U.S. Virgin Islands (USVI) limit which consists of no more than 200 queen conch per vessel per day.
Alternative 3: Modify the trip limit for the commercial harvest of queen conch in the U.S. Caribbean EEZ to allow for no more than 150 queen conch per vessel per day if there is one licensed commercial fisherman on board, or no more than 200 queen conch per vessel per day if more than one licensed commercial fisherman is on board.
ACTION 2: Modify the bag limit for the recreational harvest of queen conch in the U.S. Caribbean EEZ.
Alternative 1: No Action. Do not modify the current bag limit for the recreational harvest of queen conch in the U.S. Caribbean EEZ, which consists of 3 queen conch per person per day, or if more than 4 persons are aboard, 12 queen conch per vessel per day.
Alternative 2: Modify the bag limit for the recreational harvest of queen conch in the U.S. Caribbean EEZ to be consistent with the USVI territorial limit of 6 queen conch per person per day, with a maximum of 24 queen conch per vessel per day.
Alternative 3: Modify the bag limit for the recreational harvest of queen conch in the U.S. Caribbean EEZ to allow no more than 6 queen conch per person per day, with a maximum of 12 queen conch per vessel per day.
Alternative 4: Modify the bag limit for the recreational harvest of queen conch in the U.S. Caribbean EEZ to allow no more than 3 queen conch per person per day, with a maximum of 24 queen conch per vessel per day.
The hearing is physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918, telephone: (787) 766-5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, March 26, 2013, at 12 p.m.
The meeting will be held at the Westin Waterfront Hotel, 425 Summer Street, Boston, MA 02110; telephone: (617) 532-4600; fax: (617) 532-4650.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will recommend measures for Framework 25 to the Sea Scallop Fishery Management Program (FMP). Framework 25 will include fishery specifications for fishing year 2014 and default measures for 2015 as well as accountability measures for southern windowpane flounder. The
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Dolphin Wahoo Advisory Panel (AP) in North Charleston, SC.
The meeting will be held on Wednesday, March 27, 2013, from 9 a.m. until 3 p.m.
The meeting will be held at the Crowne Plaza Airport Hotel, 4831 Tanger Outlet Blvd., North Charleston, SC 29418; telephone: (843) 744-4422; fax: (843) 744-4472.
Kim Iverson, Public Information Officer, SAFMC; telephone: (843) 571-4366 or toll free (866) SAFMC-10; fax: (843) 769-4520; email:
The items of discussion in the AP's agenda are as follows:
1. Approve the current agenda as well as the minutes from the April 2012 Dolphin Wahoo AP meeting.
2. Receive a presentation on dolphin research from the Cooperative Sciences Center.
3. Receive an update from the January 2013 scoping meetings regarding Dolphin Wahoo Amendment 5. This amendment pertains to: Revision of accountability measures; changes to dolphin sector allocations; modifications to the framework for dolphin and wahoo; and changes to the Annual Catch Limit (ACL) and the Allowable Biological Catch (ABC). Discuss timing of the amendment.
4. Receive an overview Dolphin Wahoo Amendment.
5. Discuss the amendment and provide AP recommendations.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Gulf of Mexico Fishery Management Council Spanish Mackerel and Cobia Stock Assessment Review Workshop.
Independent peer review of Gulf of Mexico Spanish Mackerel and Cobia stocks will be accomplished through written reviews because delays in completing the assessments prevented their consideration at the SEDAR 28 Review Workshop. This workshop is being held by the Gulf of Mexico Fishery Management Council to consider recommendations from the written reviews and develop recommendations for the Gulf Council Scientific and Statistical Committee. See
The Stock Assessment Review Workshop for Gulf of Mexico Spanish Mackerel and Cobia will be held on March 25-26, 2013, from 8 a.m. to 5 p.m. on both days. The established time may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from, or completed prior to the times established by this notice.
The Review Workshop will take place in the conference room of the Gulf of Mexico Fishery Management Council's office at 2203 North Lois Avenue, Suite 1100, Tampa FL 33607. The workshop is open to members of the public. Those interested in participating should contact Ryan Rindone at SEDAR (see
Ryan Rindone, SEDAR Coordinator, 2203 N Lois Ave, Suite 1100, Tampa FL 33607; telephone: (813) 348-1630; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions,
SEDAR (Southeast Data, Assessment, and Review) 28 addressed assessments of Gulf of Mexico and South Atlantic Spanish mackerel and Cobia. During the stock assessment process, Assessment Workshop Panelists determined that assessments of the Gulf stocks of cobia and Spanish mackerel were not complete by the deadline for consideration at the SEDAR 28 Review Workshop. Therefore, the SEDAR Steering Committee modified the approach for these assessments and requested that the Center for Independent Experts (CIE) provide formal written reviews of these stocks conducted by 3 independent experts. The findings of the 3 independent reviewers will be considered by a panel of Gulf Council SSC representatives, which will develop recommendations for consideration by the Gulf Council SSC. The Desk reviews for these species will be provided to the Gulf Council SSC Review Panel approximately one month prior to the workshop.
Panelists will review modeling methodologies and results for the Gulf of Mexico Spanish Mackerel and Cobia fisheries.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Dr. Jennifer Burns, University of Alaska Anchorage, Biology Department, Anchorage, AK, has applied in due form for a permit to conduct research on marine mammals in Antarctica.
Written, telefaxed, or email comments must be received on or before April 8, 2013.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376; and
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562) 980-4001; fax (562) 980-4018.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Tammy Adams or Amy Sloan, (301)427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant requests a five-year permit to study three questions: (1) What intrinsic or extrinsic factors determine molt phenology in Weddell seals?; (2) How does late season condition and molt status influence current pregnancy and future parturition rates?; and (3) To what extent might changes in food availability during the austral summer impact molt timing and future reproductive success? To achieve project goals, 24 adult female Weddell seals (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the Sonoma County Water Agency (SCWA) for an Incidental Harassment Authorization (IHA) to take marine mammals incidental to Russian River estuary management activities. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to SCWA to take, by Level B Harassment only, several species of marine mammals during the specified activity.
Comments and information must be received no later than April 8, 2013.
Comments on the application should be addressed to Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
A copy of the application as well as a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental taking shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking, other means of effecting the least practicable impact on the species or stock and its habitat, monitoring and reporting of such takings are set forth. NMFS has defined `negligible impact' in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by Level B harassment as defined below. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization and publish notice in the
Except with respect to certain activities not pertinent here, the MMPA defines `harassment' as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
We received an application on January 17, 2013 from SCWA requesting issuance of an IHA for the taking, by Level B harassment only, of marine mammals incidental to activities conducted in management of the Russian River estuary in Sonoma County, California. This would be the fourth such IHA, if issued. SCWA was first issued an IHA, valid for a period of one year, on April 1, 2010 (75 FR 17382), and was subsequently issued IHAs for incidental take associated with the same activities on April 21, 2011 (76 FR 23306) and April 17, 2012 (77 FR 24471). The proposed activities include management of a naturally-formed barrier beach at the mouth of the river in order to minimize potential for flooding adjacent to the Russian River estuary and enhance habitat for juvenile salmonids, and biological and physical monitoring of the estuary. Flood control-related breaching of barrier beach at the mouth of the river may include artificial breaches, as well as construction and maintenance of a lagoon outlet channel. The latter activity, an alternative management technique conducted to mitigate impacts of flood control on rearing habitat for Endangered Species Act (ESA)-listed salmonids, occurs only from May 15 through October 15 (hereafter, the “lagoon management period”). Species known from the haul-out at the mouth of the Russian River or from peripheral haul-outs, and
Breaching of naturally-formed barrier beach at the mouth of the Russian River requires the use of heavy equipment (e.g., bulldozer, excavator) and increased human presence. As a result, pinnipeds hauled out on the beach may exhibit behavioral responses that indicate incidental take by Level B harassment under the MMPA. Numbers of harbor seals, the species most commonly encountered at the haul-out, have been recorded extensively since 1972 at the haul-out near the mouth of the Russian River (the Jenner haul-out). Based on these monitoring data and SCWA's estimated number of management events, SCWA is requesting authorization to incidentally harass up to 3,130 harbor seals, 42 California sea lions, and 42 northern elephant seals during the 1-year time span of the proposed IHA, from April 21, 2013 to April 20, 2014.
The estuary is located about 97 km (60 mi) northwest of San Francisco in Sonoma County, near Jenner, California (see Figure 1 of SCWA's application). The Russian River watershed encompasses 3,847 km
Within the Russian River watershed, the U.S. Army Corps of Engineers (Corps), SCWA and the Mendocino County Russian River Flood Control and Water Conservation Improvement District (District) operate and maintain federal facilities and conduct activities in addition to the estuary management, including flood control, water diversion and storage, instream flow releases, hydroelectric power generation, channel maintenance, and fish hatchery production. The Corps, SCWA, and the District conducted these activities for many years before salmonid species in the Russian River were protected under the ESA. Upon determination that these actions were likely to affect ESA-listed salmonids, as well as designated critical habitat for these species, formal consultation under section 7 of the ESA was initiated. In 2008, NMFS issued a Biological Opinion (BiOp) for Water Supply, Flood Control Operations, and Channel Maintenance conducted by the Corps, SCWA, and the District in the Russian River watershed (NMFS, 2008). This BiOp found that the activities—including SCWA's estuary management activities—authorized by the Corps and undertaken by SCWA and the District, if continued in a manner similar to recent historic practices, were likely to jeopardize the continued existence of ESA-listed salmonids and were likely to adversely modify critical habitat.
If a project is found to jeopardize a species or adversely modify its critical habitat, NMFS must develop and recommend a non-jeopardizing Reasonable and Prudent Alternative (RPA) to the proposed project, in coordination with the federal action agency and any applicant. A component of the RPA described in the 2008 BiOp requires SCWA to collaborate with NMFS and modify their estuary water level management in order to reduce marine influence (i.e., high salinity and tidal inflow) and promote a higher water surface elevation in the estuary in order to enhance the quality of rearing habitat for juvenile salmonids. A program of potential incremental steps prescribed to reach that goal includes adaptive management of the outlet channel. SCWA is also required to monitor the response of water quality, invertebrate production, and salmonids in and near the estuary to water surface elevation management in the estuary-lagoon system.
The analysis contained in the BiOp found that maintenance of lagoon conditions was necessary only for the lagoon management period. See NMFS' BiOp (2008) for details of that analysis. As a result of that determination, there are three components to SCWA's estuary management activities: (1) Lagoon outlet channel management, during the lagoon management period only, required to accomplish the dual purposes of flood risk abatement and maintenance of juvenile salmonid habitat; (2) traditional artificial breaching, with the sole goal of flood risk abatement; and (3) physical and biological monitoring. Please see the previously referenced
In addition to the previously described activities, SCWA proposes to conduct new monitoring work at the mouth of the Russian River during the period of this proposed IHA. This additional activity comprises a plan to study the effects of a historical, dilapidated jetty on the formation and maintenance of the Russian River estuary, as required under RPA 2 of the 2008 BiOp. Through several phases from 1929-1948, the jetty and associated seawall, roadway, and railroad were constructed, reinforced and then abandoned by various entities. The plan for study of the jetty is described in greater detail in SCWA's “Feasibility of Alternatives to the Goat Rock State Beach Jetty for Managing Lagoon Water Surface Elevations—A Study Plan” (ESA PWA, 2011). The jetty study was planned for 2012 (and considered under the previous IHA) but did not occur, and is now planned for 2013.
NMFS' BiOp determined that salmonid estuarine habitat may be improved by managing the Russian River estuary as a perched, freshwater lagoon and, therefore, stipulates as a RPA to existing conditions that the estuary be managed to achieve such conditions between May 15th and October 15th. In recognition of the complexity and uncertainty inherent in attempting to manage conditions in a dynamic beach environment, the BiOp stipulates that the estuarine water surface elevation RPA be managed adaptively, meaning that it should be planned, implemented, and then iteratively refined based on experience gained from implementation. The first phase of adaptive management, which has been implemented since 2010, is limited to outlet channel management (ESA PWA, 2012). The second phase requires study of and consideration of alternatives to the jetty (e.g., complete removal, partial removal).
The jetty, which is embedded in the barrier beach, may significantly affect some of the physical processes which
The goal of the proposed study is to evaluate the feasibility of modifying or removing the jetty to improve the likelihood of achieving the target lagoon water surface elevations. To accomplish this goal, the study objectives include: (1) Describe the extent and composition of the jetty; (2) understand the jetty's effects on the physical processes which partially determine lagoon water surface elevations, including beach permeability, sand storage, and sand transport; (3) evaluate the jetty's role in flood risk to property adjacent to the estuary; and (4) recommend an approach for developing and analyzing jetty alternatives, such as jetty removal, partial removal, jetty notching and other uses of the jetty which may help achieve target lagoon water surface elevations.
The study would involve delineation of two study transects perpendicular to the beach barrier (see Figure 5 of SCWA's application). To study water seepage rates, six monitoring wells would be constructed on the barrier beach of the estuary (three per transect); these would be installed using a hollow stem auger drill rig and two inch diameter casings. Wells would be capped and buried below the sand surface to prevent vandalism and tourist interaction. The well locations were chosen to minimize potential for disturbance of pinnipeds using the Jenner haul-out (i.e., greater than 200 ft south of the actual haul-out location and on the opposite side of the jetty). No personnel or heavy equipment would need to approach or transit the haul-out, as is required for other estuary management activities. The noise generated from the drill is estimated to be 85-90 db re: 20 μPa at a distance of 20 ft. Given a maximum estimated source level of 90 dB (at 20 ft) and the distance between planned location of the wells and the haul-out, received sound levels at the haul-out would be below the level at which NMFS considers harassment from airborne sound to be a possibility for harbor seals (90 dB re: 20 μPa). It is unlikely that harassment of pinnipeds would result from this activity; however, SCWA would implement standard mitigation measures as for other planned activities.
In order to better understand the characteristics of the barrier beach substrate and the location and composition of buried portions of the jetty and associated structures, geophysical surveys would be conducted along the barrier beach. Seismic refraction and electrical resistivity profiling would be conducted simultaneously. Seismic refraction involves pounding an impact hammer on the surface of the beach, creating a sound wave that resonates through the sand bar. It is not believed that this activity would generate sound at levels sufficient to be detected by seals hauled out along the beach; in fact, it is likely that sound waves generated by ocean waves crashing on the beach will be a source of interference when trying to detect the sound waves generated by the impact hammer (i.e., hauled-out seals would not be able to distinguish between sound pressure waves felt as a result of surf as opposed to seismic refraction). Electric resistivity profiling involves placing probes down into the substrate and would not produce any physical or auditory disturbance to the pinnipeds on the beach. This profile would be completed by a staff of up to three personnel for a period of 2 consecutive days. Ground-penetrating radar (GPR) profiles would also be completed near the jetty in perpendicular transects 30 to 40 feet long. The profiles would be collected by two personnel travelling on foot and should only take 1 day to complete.
Once the initial geophysical surveys have been completed, additional surface electromagnetic profiles will be collected along the barrier beach in order to explore how the jetty impacts beach seepage relative to the natural beach berm. Collecting these electromagnetic profiles will involve 2-3 personnel walking along the barrier beach using either a hand-held conductivity meter or a pull-along capacitively coupled Ohm-Mapper system cable with sensors. Neither of these instruments generates sound that could disturb pinnipeds on the beach.
Harbor seals are the most common species inhabiting the haul-out at the mouth of the Russian River (Jenner haul-out). California sea lions and northern elephant seals have also been observed infrequently in the project area. In addition to the Jenner haul-out, there are eight peripheral haul-outs nearby (see Figure 4 of SCWA's application). These include North Jenner and Odin Cove to the north; Pocked Rock, Kabemali, and Rock Point to the south; and Penny Logs, Patty's Rock, and Chalanchawi upstream within the estuary.
Harbor seals in the eastern Pacific inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. In California, approximately 400-600 harbor seal haul-outs are widely distributed along the mainland and on offshore islands, including intertidal sandbars, rocky shores and beaches (Hanan, 1996).
The harbor seal population in California is estimated at approximately 30,196 (CV=0.157) (Carretta
In general, harbor seals do not undertake long migrations, but do travel 300-500 km on occasion to find food or suitable breeding areas (Herder, 1986). Harbor seals are rarely found in pelagic waters and typically stay within the tidal and intertidal zones. On land, harbor seals haul out on rocky outcrops, mudflats, sandbars and sandy beaches with unrestricted access to water and with minimal human presence. Haul-out sites are important as resting sites for harbor seals, who feed opportunistically in shallow waters on fish, crustaceans, and cephalopods. Harbor seals are typically solitary while foraging, although small groups have been observed. They normally choose isolated sites for pupping, which normally occurs at the Russian River from March until late June, and sometimes into early July. The Jenner haul-out is the largest in Sonoma County.
A substantial amount of monitoring effort has been conducted at the Jenner haul-out and surrounding areas. Concerned local residents formed the Stewards' Seal Watch Public Education Program in 1985 to educate beach visitors and monitor seal populations. State Parks Volunteer Docents continue this effort towards safeguarding local harbor seal habitat. On weekends during the pupping and molting season (approximately March-August), volunteers conduct public outreach and record the numbers of visitors and seals on the beach, other marine mammals
Ongoing monthly seal counts at the Jenner haul-out were begun by J. Mortenson in January 1987, with additional nearby haul-outs added to the counts thereafter. In addition, local resident E. Twohy began daily observations of seals and people at the Jenner haul-out in November 1989. These datasets note whether the mouth at the Jenner haul-out was opened or closed at each observation, as well as various other daily and annual patterns of haul-out usage (Mortenson and Twohy, 1994). Recently, SCWA began regular baseline monitoring of the haul-out as a component of its estuary management activity. Table 1 shows average daily numbers of seals observed at the mouth of the Russian River from 1993-2005 and from 2009-12.
The number of seals present at the Jenner haul-out generally declines during bar-closed conditions (Mortenson, 1996). SCWA's pinniped monitoring efforts from 1996 to 2000 focused on artificial breaching activities and their effects on the Jenner haul-out. Seal counts and disturbances were recorded from one to two days prior to breaching, the day of breaching, and the day after breaching (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). In each year, the trend observed was that harbor seal numbers generally declined during a beach closure and increased the day following an artificial breaching event. Heckel (1994) speculated that the loss of easy access to the haul-out and ready escape to the sea during bar-closed conditions may account for the lower numbers. Table 2 shows average daily seal counts recorded during SCWA monitoring of breaching events from 1996-2000 and 2009-12, representing bar-closed conditions, when seal numbers decline.
Mortenson (1996) observed that pups were first seen at the Jenner haul-out in late March, with maximum counts in May. In this study, pups were not counted separately from other age classes at the haul-out after August due to the difficulty in discriminating pups from small yearlings. From 1989 to 1991, Hanson (1993) observed that pupping began at the Jenner haul-out in mid-April, with a maximum number of pups observed during the first two weeks of May. This corresponds with the peaks observed at Point Reyes, where the first viable pups are born in March and the peak is the last week of April to early May (SCWA, 2011). Based on this information, pupping season at the Jenner haul-out is conservatively defined here as March 15 to June 30.
California sea lions range from southern Mexico to British Columbia, Canada. The entire U.S. population has been estimated at 296,750, and grew at a rate of approximately 5.4 percent annually between 1975 and 2008 (Carretta
California sea lions exhibit seasonal migration patterns organized around their breeding activity. Sea lions breed at large rookeries in the Channel Islands in southern California, and on both sides of the Baja California peninsula, typically from May to August. Females
Solitary California sea lions have occasionally been observed at or in the vicinity of the haul-out (MSC, 1999, 2000). Individual sea lions were observed near the mouth of the Russian River in November and December of 2009; a single individual was observed hauled-out on one occasion in November 2009. Juvenile sea lions were observed during the summer of 2009 at the Patty's Rock haul-out, and some sea lions were observed during monitoring of peripheral haul-outs in October 2009. Male California sea lions are occasionally observed hauled out at or near the Russian River mouth in most years: Once in August 2009, January and December 2011, and January 2012. Other individuals were observed in the surf at the mouth of the river or swimming inside the estuary. Most recently, a solitary male sea lion was observed hauled out at the river mouth in January 2012 during breaching activities. The occurrence of individual California sea lions in the action area may occur year-round, but is infrequent and sporadic.
Populations of northern elephant seals in the U.S. and Mexico are derived from a few tens or hundreds of individuals surviving in Mexico after being nearly hunted to extinction (Stewart
Northern elephant seals breed and give birth in California and Baja California, Mexico, primarily on offshore islands from December to March (Stewart
Censuses of pinnipeds at the mouth of the Russian River have been taken at least semi-monthly since 1987. Elephant seals were noted from 1987-95, with one or two elephant seals typically counted during May censuses, and occasional records during the fall and winter (Mortenson and Follis, 1997). A single, tagged northern elephant seal sub-adult was present at the Jenner haul-out from 2002-07. This individual seal, which was observed harassing harbor seals also present at the haul-out, was generally present during molt and again from late December through March. A single juvenile elephant seal was observed at the Jenner haul-out in June 2009. The occurrence of individual northern elephant seals in the action area has generally been infrequent and sporadic from December through March in the past 10 years.
A significant body of monitoring data exists for pinnipeds at the mouth of the Russian River. In addition, pinnipeds have co-existed with regular estuary management activity for decades, as well as with regular human use activity at the beach, and are likely habituated to human presence and activity. Nevertheless, SCWA's estuary management activities have the potential to harass pinnipeds present on the beach. During breaching operations, past monitoring has revealed that some or all of the seals present typically move or flush from the beach in response to the presence of crew and equipment, though some may remain hauled-out. No stampeding of seals—a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus—has been documented since SCWA developed protocols to prevent such events in 1999. While it is likely impossible to conduct required estuary management activities without provoking some response in hauled-out animals, precautionary mitigation measures, described later in this document, ensure that animals are gradually apprised of human approach. Under these conditions, seals typically exhibit a continuum of responses, beginning with alert movements (e.g., raising the head), which may then escalate to movement away from the stimulus and possible flushing into the water. Flushed seals typically re-occupy the haul-out within minutes to hours of the stimulus. In addition, eight other haul-outs exist nearby that may accommodate flushed seals. In the absence of appropriate mitigation measures, it is possible that pinnipeds could be subject to injury, serious injury, or mortality, likely through stampeding or abandonment of pups.
However, based on a significant body of site-specific data, harbor seals are unlikely to sustain any harassment that may be considered biologically significant. Individual animals would, at most, flush into the water in response to maintenance activities but may also simply become alert or move across the beach away from equipment and crews. California sea lions and northern elephant seals have been observed as less sensitive to stimulus than harbor seals during monitoring at numerous other sites. For example, monitoring of pinniped disturbance as a result of abalone research in the Channel Islands showed that while harbor seals flushed at a rate of 69 percent, California sea lions flushed at a rate of only 21 percent. The rate for elephant seals declined to 0.1 percent (VanBlaricom, 2010). In the unlikely event that either of these species is present during management activities, they would be expected to display a minimal reaction to maintenance activities—less than that expected of harbor seals.
Although the Jenner haul-out is not known as a primary pupping beach, pups have been observed during the pupping season; therefore, we have evaluated the potential for injury, serious injury, or mortality to pups. There is a lack of published data regarding pupping at the mouth of the Russian River, but SCWA monitors have observed pups on the beach. No births were observed during recent monitoring, but were inferred based on
Similarly, the period of mother-pup bonding, critical time needed to ensure pup survival and maximize pup health, is not expected to be impacted by estuary management activities. Harbor seal pups are extremely precocious, swimming and diving immediately after birth and throughout the lactation period, unlike most other phocids which normally enter the sea only after weaning (Lawson and Renouf, 1985; Cottrell
Based on extensive monitoring data, we have preliminarily determined that impacts to hauled-out pinnipeds during estuary management activities would be behavioral harassment of limited duration (i.e., less than one day) and limited intensity (i.e., temporary flushing at most). Stampeding, and therefore injury or mortality, is not expected—nor been documented—in the years since appropriate protocols were established (see “Mitigation” for more details). Further, the continued, and increasingly heavy, use of the haul-out despite decades of breaching events indicates that abandonment of the haul-out is unlikely.
The purposes of the estuary management activities are to improve summer rearing habitat for juvenile salmonids in the Russian River estuary and/or to minimize potential flood risk to properties adjacent to the estuary. These activities would result in temporary physical alteration of the Jenner haul-out, but are essential to conserving and recovering endangered salmonid species, as prescribed by the BiOp. These salmonids are themselves prey for pinnipeds. In addition, with barrier beach closure, seal usage of the beach haul-out declines, and the three nearby river haul-outs may not be available for usage due to rising water surface elevations. Breaching of the barrier beach, subsequent to the temporary habitat disturbance, would likely increase suitability and availability of habitat for pinnipeds. Biological and water quality monitoring would not physically alter pinniped habitat. Please see the previously referenced
During SCWA's pinniped monitoring associated with artificial breaching activities from 1996 to 2000, the number of harbor seals hauled out declined when the barrier beach closed and then increased the day following an artificial breaching event (MSC, 1997, 1998, 1999, and 2000; SCWA and MSC, 2001). This response to barrier beach closure followed by artificial breaching is anticipated to continue. However, it is possible that the number of pinnipeds using the haul-out could decline during the extended lagoon management period, when SCWA would seek to maintain a shallow outlet channel rather than the deeper channel associated with artificial breaching. Collection of baseline information during the lagoon management period is included in the monitoring requirements described later in this document. SCWA's previous monitoring, as well as Twohy's daily counts of seals at the sandbar (Table 1) indicate that the number of seals at the haul-out declines from August to October, so management of the lagoon outlet channel (and managing the sandbar as a summer lagoon) would have little effect on haul-out use during the latter portion of the lagoon management period. The early portion of the lagoon management period coincides with the pupping season. Past monitoring during this period, which represents some of the longest beach closures in the late spring and early summer months, shows that the number of pinnipeds at the haul-out tends to fluctuate, rather than showing the more straightforward declines and increases associated with closures and openings seen at other times of year (MSC, 1998). This may indicate that seal haul-out usage during the pupping season is less dependent on bar status. As such, the number of seals hauled out from May through July would be expected to fluctuate, but is unlikely to respond dramatically to the absence of artificial breaching events. Regardless, any impacts to habitat resulting from SCWA's management of the estuary during the lagoon management period are not in relation to natural conditions, but rather in relation to conditions resulting from SCWA's discontinued approach of artificial breaching during this period.
In summary, there will be temporary physical alteration of the beach. However, natural opening and closure of the beach results in the same impacts to habitat; therefore, seals are likely adapted to this cycle. In addition, the increase in rearing habitat quality has the goal of increasing salmonid abundance, ultimately providing more food for seals present within the action area.
SCWA complied with the mitigation and monitoring required under all previous authorizations. In accordance with the 2012 IHA, SCWA submitted a Report of Activities and Monitoring Results, covering the period of January 1 through December 31, 2012. Previous monitoring reports provided additional analysis of monitoring results from 2009-11. In January 2012, the barrier beach was artificially breached after two days of breaching activity. There were also several periods over the course of the year where the barrier beach closed or became naturally perched and then subsequently breached naturally. In 2011 no water level management activities occurred. In 2010 one lagoon management event and two artificial breaching events occurred. Pinniped monitoring occurred the day before, the day of, and the day after each water level management activity. In 2009 eleven artificial breaching events occurred. Pinniped monitoring occurred during each breaching event. In addition, SCWA conducted biological and physical monitoring as described previously. During the course of these activities, SCWA did not exceed the take levels authorized under the relevant IHAs.
Baseline monitoring was performed to gather additional information regarding a possible relationship between tides, time of day, and the highest pinniped counts at the Jenner haul-out and to gain a better understanding about which specific conditions harbor seals may prefer for hauling out. The effect of tide cycle and time of day on the abundance of seals at the Jenner haul-out was explored in detail in the SCWA's previous report; data collected in 2012 did not change the interpretation of these findings. Baseline monitoring of the peripheral haul-outs was conducted concurrently with monitoring at the mouth of the Russian River, and was scheduled for 2 days out of each month with the intention of capturing a low and high tide each in the morning and afternoon. A total of 25 baseline surveys were conducted. No species of pinnipeds other than harbor seals were observed at the Jenner haul-out during the baseline monitoring. Figure 3 of SCWA's report shows the mean number of harbor seals during twice-monthly baseline monitoring events from 2009-12.
Peak seal abundance occurred during the summer molting period with a similar peak in abundance during the spring pupping season. Peak seal abundance, as determined by the single greatest count of harbor seals at the Jenner haul-out, was on July 2 (335 seals) and on April 4 (326 seals). In previous years the peak seal abundance occurred in July, however the April peak in seal abundance was only observed in the current year. Using the mean number of seals hauled out as a measure of average abundance, seal abundance at Jenner was greatest in April and remained at a similar level through July. In previous years average seal abundance was greatest in July. Similar to previous years, seal abundance did decline in the fall, however the 2012 average seal abundance was significantly higher in September and November compared to previous years. The same analysis concluded that the 2012 average seal abundance in March was lower than in previous years. No other statistical differences were found in the monthly seal abundance between 2012 and all previous years combined.
No distressed or abandoned pups were reported by in 2012. Pup production at the Jenner haul-out was 13.8 percent of total seals as calculated from the peak pup count recorded on May 16 and the number of adult harbor seals present at the same time. Pup production was much lower compared to 2011 where 29.3% of seals were pups at the time of the peak pup count on May 4. However, the average of pups observed (when pups were present) during April and May were similar between years: 15.4 pups in 2012 and 14.9 pups in 2011. Comparison of count data between the Jenner and peripheral haul-outs did not show any obvious correlations (e.g., the number of seals occupying peripheral haul-outs compared to the Jenner haul-out did not necessarily increase or decrease as a result of disturbance caused by beach visitors). Please review SCWA's report for a more detailed discussion.
One breaching action occurred over two days in January 2012, including two pre-breaching, two breaching, and one post-breaching surveys. No injuries or mortalities were observed during 2012, and harbor seal reactions ranged from merely alerting to crew presence to flushing from the beach. One California sea lion was observed, but did not respond in a way that would indicate behavioral harassment had occurred.
Total observed take of marine mammals, by harassment only, from water level management activity and biological and physical monitoring, was 208 harbor seals (detailed in Table 3). SCWA was authorized to take, by harassment only, 2,963 harbor seals, 37 California sea lions, and twenty northern elephant seals. While the observed take was significantly lower than the level authorized, it is possible that incidental take in future years could approach the level authorized. Actual take is dependent largely upon the number of water level management events that occur, which is unpredictable. Take of species other than harbor seals depends upon whether those species, which do not consistently utilize the Jenner haul-out, are present. The authorized take, though much higher than the actual take, was justified based on conservative estimated scenarios for animal presence and necessity of water level management. No significant departure from the method of estimation is used for the proposed IHA (see “Estimated Take by Incidental Harassment”) for the same activities in 2013.
On the days listed above, approximately 33 percent of seals present were behaviorally harassed—a lower proportion than is typically observed for harbor seals (73 percent of seals were reported harassed by abalone researchers in the Channel Islands). Of those animals disturbed, approximately 59 percent flushed from the haul-out (as opposed to simply moving away from the stimulus), which is also low. In the same reporting by abalone researchers, 94 percent of harassed seals flushed the haul-out. While no conclusions can be drawn, it is possible that seals at the Jenner haul-out are more acclimated to the presence of humans.
SCWA also investigated the relative disturbance caused by their activities versus that caused by other sources (see Figure 8 and Table 4 of SCWA's monitoring report). Disturbance sources were separated into nine categories: SCWA, aircraft, bird, dog, people, kayak, other boat, vehicle, and unknown. SCWA activity associated with water level management events were excluded, as these do not represent typical conditions, but monthly monitoring surveys were included. Frequency of disturbance by source was also compared by barrier beach condition.
Harbor seals were most frequently disturbed by people on foot (50 percent of surveys), with a small increase in frequency of disturbances during bar-closed conditions. Kayakers were the next most frequent source of disturbance overall (23.1%) with an increase during bar-closed conditions (31.6 percent). SCWA personnel represented the third most frequent source of disturbance at 14.9 percent. For any disturbance event it is often only a fraction of the total haul-out that responds. Some sources of disturbance, though rare, have a larger disturbing effect when they occur. For example, disturbances from dogs occur in less than 5 percent of the surveys, but these incidents disturbed over half of the seals hauled out. Although SCWA activities represented the third most frequent source of disturbance, on average less than one third of the haul-out was disturbed. Overall, seals are most often disturbed by people on foot (67.7 percent) and kayakers (15.4 percent).
The following section provides a summary of information available in SCWA's Monitoring Report. The primary purpose of SCWA's Pinniped Monitoring Plan is to detect the response of pinnipeds to estuary management activities at the Russian River estuary. However, the following questions are also of specific interest:
1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?
2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?
3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer lagoon in the Russian River estuary?
4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?
The limited data available thus far precludes drawing conclusions regarding the key questions in SCWA's Monitoring Plan. However, baseline data collected from 2009-12 indicates that the highest numbers of pinnipeds are observed at the Jenner haul-out in July, during the molting season (see Figure 3 of SCWA's Monitoring Report) although this seasonal pattern was not as evident in 2012 as seals were equally abundant from April through July. The abundance of harbor seals during the fall of 2012 was greater than in previous years, especially during September and November. Although multiple factors likely influence harbor seal presence at the haul-out, SCWA believes that barrier beach condition may be significant. For 2009 and 2010 the barrier beach was closed during the month of September, and in 2011 there was a period when the channel was extremely narrow and potentially in naturally perched conditions. These closed or perched barrier beach conditions did not exist in September 2012 and may have contributed to depressed seal abundance in previous years. Decreased seal abundance during bar-closed conditions may be a result of the lack of direct aquatic access from the estuary. Harbor seals prefer haul-outs with easy aquatic egress as they move more slowly and awkwardly on land, compared to other pinnipeds like California sea lions. This effect may also be related to the closer proximity of people to the Jenner haul-out during bar-closed conditions. In addition, when the barrier beach is open the river mouth channel provides a natural barrier between visitors accessing Goat Rock State Beach from the main parking area to the south. The increase in disturbances due to kayakers during bar-closed conditions may also be due to the lack of river outflow to the ocean, allowing for kayakers to paddle much closer to the seal haul-out.
Overall, seals appear to utilize the Jenner haul-out throughout the tidal cycle. Seal abundance is significantly lower during the highest of tides when the haul-out is subject to an increase in wave overwash. Time of day had some affect on seal abundance at the Jenner haul-out, as abundance was greater in the afternoon hours compared to the morning hours. More analysis exploring the relationship of ambient temperature, incidence of disturbance, and season on time of day effects would help to explain why these variations in seal abundance occur. It is likely that a combination of multiple factors (e.g., season, tides, wave heights, level of beach disturbance) influence when the haul-out is most utilized.
SCWA has, thus far, implemented the lagoon outlet channel only one time (July 8, 2010). The response of harbor seals at the Jenner haul-out to the outlet channel implementation activities (Question 2 above) was similar to responses observed during artificial breaching events in 2010 and 2012 and in previous years of monitoring the Jenner haul-out during breaching events (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). The harbor seals typically alert to the sound of equipment on the beach and leave the haul-out as the crew and equipment approach. Individuals then haul out on the beach while equipment is operating, leaving the beach again when equipment and staff depart, and typically begin to return to the haul-out within 30 minutes of the work ending. Because the barrier beach reformed soon after outlet channel implementation and subsequently breached on its own following the 2010 event, maintenance of the outlet channel was not necessary and monitoring of the continued response of pinnipeds at the Jenner haul-out to maintenance of the outlet channel and management of the lagoon for the duration of the lagoon management period has not yet been possible.
There is little information available to draw conclusions regarding Questions 3, as the duration of closure associated with the lagoon outlet channel implementation was not dissimilar from the duration of closures that have been previously observed at the estuary. A barrier beach has only formed during the lagoon management period eight times, with an average duration of seven days. However, it is possible to examine some of the short-term effects of bar-closed conditions on seal abundance. The overall decline in seal abundance during bar-closed conditions was not observed during June and July of 2012. This suggests that when seals are more
Similarly, the lack of extended lagoon conditions precludes any conclusions regarding Question 4. Initial comparisons of peripheral (river and coastal) haul-out count data to the Jenner haul-out counts suggest that further information from subsequent estuary management activities are needed. For example, during the single lagoon outlet implementation in 2010, low seal abundance was recorded at Jenner and high seal abundance was recorded at Odin Cove. On the day after the lagoon outlet implementation seal abundance rose at Jenner and decreased at Odin Cove. This pattern is consistent with the idea that seals disturbed from the Jenner haul-out would temporarily relocate to a nearby haul-out. However, these results are inconclusive, as SCWA is not able to track the movements of individual seals and it is possible that abundance at these sites is related to biologically seasonal events of pupping and molting rather than dispersal from the Jenner haul-out during disturbance.
In order to better answer these questions, SCWA is considering a photo-identification study as a means to observe individual seals over time. The first step would be a pilot study to determine whether current observation locations allow capture of the detailed images of seals necessary to identify individuals based on spot patterns.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
SCWA has proposed to continue the following mitigation measures, as implemented during the previous IHA, designed to minimize impact to affected species and stocks:
• SCWA crews would cautiously approach the haul-out ahead of heavy equipment to minimize the potential for sudden flushes, which may result in a stampede—a particular concern during pupping season.
• SCWA staff would avoid walking or driving equipment through the seal haul-out.
• Crews on foot would make an effort to be seen by seals from a distance, if possible, rather than appearing suddenly, again preventing sudden flushes.
• During breaching events, all monitoring would be conducted from the overlook on the bluff along Highway 1 adjacent to the haul-out in order to minimize potential for harassment.
• A water level management event may not occur for more than 2 consecutive days unless flooding threats cannot be controlled.
In addition, SCWA has proposed mitigation measures specific to pupping season (March 15-June 30), as implemented in the previous IHA:
• SCWA will maintain a 1 week no-work period between water level management events (unless flooding is an immediate threat) to allow for an adequate disturbance recovery period. During the no-work period, equipment must be removed from the beach.
• If a pup less than 1 week old is on the beach where heavy machinery would be used or on the path used to access the work location, the management action will be delayed until the pup has left the site or the latest day possible to prevent flooding while still maintaining suitable fish rearing habitat. In the event that a pup remains present on the beach in the presence of flood risk, SCWA would consult with us to determine the appropriate course of action. SCWA will coordinate with the locally established seal monitoring program (Stewards' Seal Watch) to determine if pups less than 1 week old are on the beach prior to a breaching event.
• Physical and biological monitoring will not be conducted if a pup less than 1 week old is present at the monitoring site or on a path to the site.
For all activities, personnel on the beach would include up to two equipment operators, three safety team members on the beach (one on each side of the channel observing the equipment operators, and one at the barrier to warn beach visitors away from the activities), and one safety team member at the overlook on Highway 1 above the beach. Occasionally, there would be two or more additional people on the beach (SCWA staff or regulatory agency staff) on the beach to observe the activities. SCWA staff would be followed by the equipment, which would then be followed by an SCWA vehicle (typically a small pickup truck, the vehicle would be parked at the previously posted signs and barriers on the south side of the excavation location). Equipment would be driven slowly on the beach and care would be taken to minimize the number of shut downs and start-ups when the equipment is on the beach. All work would be completed as efficiently as possible, with the smallest amount of heavy equipment possible, to minimize disturbance of seals at the haul-out. Boats operating near river haul-outs during monitoring would be kept within posted speed limits and driven as far from the haul-outs as safely possible to minimize flushing seals.
We have carefully evaluated the applicant's mitigation measures as proposed and considered their effectiveness in past implementation to preliminarily determine whether they are likely to effect the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures includes consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; (3) the practicability of the measure for applicant implementation, including consideration of personnel safety, and practicality of implementation.
Injury, serious injury, or mortality to pinnipeds would likely result from startling animals inhabiting the haul-out into a stampede reaction, or from extended mother-pup separation as a result of such a stampede. Long-term impacts to pinniped usage of the haul-out could result from significantly increased presence of humans and equipment on the beach. To avoid these possibilities, we have worked with SCWA to develop the previously described mitigation measures. These are designed to reduce the possibility of startling pinnipeds, by gradually apprising them of the presence of humans and equipment on the beach, and to reduce the possibility of impacts to pups by eliminating or altering management activities on the beach when pups are present and by setting limits on the frequency and duration of events during pupping season. During the past 15 years of flood control management, implementation of similar mitigation measures has resulted in no known stampede events and no known
In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216 indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
The applicant has developed a Pinniped Monitoring Plan which describes the proposed monitoring efforts. This Monitoring Plan can be found on the NMFS Web site at
1. Under what conditions do pinnipeds haul out at the Russian River estuary mouth at Jenner?
2. How do seals at the Jenner haul-out respond to activities associated with the construction and maintenance of the lagoon outlet channel and artificial breaching activities?
3. Does the number of seals at the Jenner haul-out significantly differ from historic averages with formation of a summer (May 15 to October 15) lagoon in the Russian River estuary?
4. Are seals at the Jenner haul-out displaced to nearby river and coastal haul-outs when the mouth remains closed in the summer?
In summary, past monitoring includes the following, which is proposed to continue should an IHA be issued:
Seals at the Jenner haul-out are counted twice monthly for the term of the IHA. This baseline information will provide SCWA with details that may help to plan estuary management activities in the future to minimize pinniped interaction. This census begins at local dawn and continues for 8 hours. All seals hauled out on the beach are counted every 30 minutes from the overlook on the bluff along Highway 1 adjacent to the haul-out using spotting scopes. Monitoring may conclude for the day if weather conditions affect visibility (e.g., heavy fog in the afternoon). Counts are scheduled for 2 days out of each month, with the intention of capturing a low and high tide each in the morning and afternoon. Depending on how the sandbar is formed, seals may haul out in multiple groups at the mouth. At each 30-minute count, the observer indicates where groups of seals are hauled out on the sandbar and provides a total count for each group. If possible, adults and pups are counted separately.
In addition to the census data, disturbances of the haul-out are recorded. The method for recording disturbances follows those in Mortenson (1996). Disturbances would be recorded on a three-point scale that represents an increasing seal response to the disturbance (Table 4). The time, source, and duration of the disturbance, as well as an estimated distance between the source and haul-out, are recorded. It should be noted that only responses falling into Mortenson's Levels 2 and 3 will be considered as harassment under the MMPA, under the terms of this proposed IHA.
Weather conditions are recorded at the beginning of each census. These include temperature, percent cloud cover, and wind speed (Beaufort scale). Tide levels and estuary water surface elevations are correlated to the monitoring start and end times.
In an effort towards understanding possible relationships between use of the Jenner haul-out and nearby coastal and river haul-outs, several other haul-outs on the coast and in the Russian River estuary are monitored as well (see Figure 4 of SCWA's application). The peripheral haul-outs are visited for 10-minute counts twice during each baseline monitoring day. All pinnipeds hauled out were counted from the same vantage point(s) at each haul-out using a high-powered spotting scope or binoculars.
A 1-day pre-event channel survey would be made within 1 to 3 days prior to constructing the outlet channel. The haul-out would be monitored on the day the outlet channel is constructed and daily for up to the maximum 2 days allowed for channel excavation activities. Monitoring would also occur on each day that the outlet channel is maintained using heavy equipment for the duration of the lagoon management period. Monitoring of outlet channel construction and maintenance would correspond with that described under the “Baseline” section previously, with the exception that management activity monitoring duration is defined by event
In an attempt to understand whether seals from the Jenner haul-out are displaced to coastal and river haul-outs nearby when management events occur, other nearby haul-outs are monitored concurrently with monitoring of outlet channel construction and maintenance activities. This provides an opportunity to qualitatively assess whether these haul-outs are being used by seals displaced from the Jenner haul-out during lagoon outlet channel excavation and maintenance. This monitoring would not provide definitive results regarding displacement to nearby coastal and river haul-outs, as individual seals are not marked, but is useful in tracking general trends in haul-out use during lagoon outlet channel excavation and maintenance. As volunteers are required to monitor these peripheral haul-outs, haul-out locations may need to be prioritized if there are not enough volunteers available. In that case, priority would be assigned to the nearest haul-outs (North Jenner and Odin Cove), followed by the Russian River estuary haul-outs, and finally the more distant coastal haul-outs.
Pinniped response to artificial breaching will be monitored at each such event during the term of the IHA. Methods would follow the census and disturbance monitoring protocols described in the “Baseline” section, which were also used for the 1996 to 2000 monitoring events (MSC, 1997, 1998, 1999, 2000; SCWA and MSC, 2001). The exception, as for lagoon management events, is that duration of monitoring is dependent upon duration of the event. On the day of the management event, pinniped monitoring begins at least 1 hour prior to the crew and equipment accessing the beach work area and continues through the duration of the event, until at least 1 hour after the crew and equipment leave the beach.
For all counts, the following information would be recorded in 30-minute intervals: (1) Pinniped counts, by species; (2) behavior; (3) time, source and duration of any disturbance; (4) estimated distances between source of disturbance and pinnipeds; (5) weather conditions (e.g., temperature, wind); and (5) tide levels and estuary water surface elevation.
If, during monitoring, observers sight any pup that might be abandoned, SCWA would contact the NMFS stranding response network immediately and also report the incident to NMFS' Southwest Regional Office and NMFS Headquarters within 48 hours. Observers will not approach or move the pup. Potential indications that a pup may be abandoned are no observed contact with adult seals, no movement of the pup, and the pup's attempts to nurse are rebuffed.
Training on the MMPA, pinniped identification, and the conditions of the IHA is held for staff and contractors assigned to estuary management activities. The training includes equipment operators, safety crew members, and surveyors. In addition, prior to beginning each water surface elevation management event, the biologist monitoring the event participates in the onsite safety meeting to discuss the location(s) of pinnipeds at the Jenner haul-out that day and methods of avoiding and minimizing disturbances to the haul-out as outlined in the IHA.
SCWA is required to submit a report on all activities and marine mammal monitoring results to the Office of Protected Resources, NMFS, and the Southwest Regional Administrator, NMFS, 90 days prior to the expiration of the IHA if a renewal is sought, or within 90 days of the expiration of the IHA otherwise. This annual report will also be distributed to California State Parks and Stewards, and would be available to the public on SCWA's Web site. This report will contain the following information:
• The number of pinnipeds taken, by species and age class (if possible);
• Behavior prior to and during water level management events;
• Start and end time of activity;
• Estimated distances between source and pinnipeds when disturbance occurs;
• Weather conditions (e.g., temperature, wind, etc.);
• Haul-out reoccupation time of any pinnipeds based on post-activity monitoring;
• Tide levels and estuary water surface elevation; and
• Pinniped census from bi-monthly and nearby haul-out monitoring.
The annual report includes descriptions of monitoring methodology, tabulation of estuary management events, summary of
SCWA is requesting, and we are proposing, authorization to take harbor seals, California sea lions, and northern elephant seals, by Level B harassment only, incidental to estuary management activities. These activities, involving increased human presence and the use of heavy equipment and support vehicles, are expected to harass pinnipeds present at the haul-out through disturbance only. In addition, monitoring activities prescribed in the BiOp may harass additional animals at the Jenner haul-out and at the three haul-outs located in the estuary (Penny Logs, Patty's Rock, and Chalanchawi). Estimates of the number of harbor seals, California sea lions, and northern elephant seals that may be harassed by the proposed activities is based upon the number of potential events associated with Russian River estuary management activities and the average number of individuals of each species that are present during conditions appropriate to the activity. As described previously in this document, monitoring effort at the mouth of the Russian River has shown that the number of seals utilizing the haul-out declines during bar-closed conditions. Tables 5 and 6 detail the total number of estimated takes.
Events associated with lagoon outlet channel management would occur only during the lagoon management period, and are split into two categories: (1) Initial channel implementation, which would likely occur between May and September, and (2) maintenance and monitoring of the outlet channel, which would continue until October 15. In addition, it is possible that the initial outlet channel could close through natural processes, requiring additional channel implementation events. Based on past experience, SCWA estimates that a maximum of three outlet channel implementation events could be required. Outlet channel implementation events would only occur when the bar is closed; therefore, it is appropriate to use data from bar-closed monitoring events in estimating take (Table 2). Construction of the outlet channel is designed to produce a perched outflow, resulting in conditions that more closely resemble bar-closed than bar-open with regard to pinniped haul-out usage. As such, bar-closed data is appropriate for estimating take during all lagoon management period maintenance and monitoring activity. As dates of outlet channel implementation cannot be known in advance, the highest daily average of seals per month—the June average for 2009-12—is used in estimating take. For maintenance and monitoring activities associated with the lagoon outlet channel, which would occur on a weekly basis following implementation of the outlet channel, the average number of harbor seals for each month was used.
Artificial breaching activities would also occur during bar-closed conditions; however, data collected specifically during bar-closed conditions exists only for April through January (Table 2). These data (excluding December, when a zero average was recorded for harbor seal presence during bar-closed conditions) may be used for estimating take associated with artificial breaching occurring during those months. For activity occurring in December, February, and March, monitoring data that are not specific to bar conditions may be used for estimating take (Table 1). Harbor seal numbers from 2010-12 SCWA baseline surveys were used to estimate take associated with artificial breaching in December, February, and March as this was the most recent information available for those months.
For monthly topographic surveys on the barrier beach SCWA believes that only a small percentage (estimated at 10 percent) of seals hauled out are likely to be disturbed by this activity, which involves two people walking along the barrier beach with a survey rod. During these surveys a pinniped monitor is positioned at the Highway 1 overlook and is able to notify the surveyors via radio when any seals on the haul-out begin to alert to their presence. At this time the surveyors retreat slowly away from the haul-out, typically resulting in no disturbance. The 10 percent is a conservative allowance for the occasions where a few seals may move or flush following their initial alert, despite the surveyors retreat. The number of seals expected to be encountered is based on the average monthly number of seals hauled out as recorded during baseline surveys conducted by SCWA in 2010-12 (Table 1).
For electromagnetic imaging profiles associated with the jetty study, the estimate of take was calculated similar to that of the topographic surveys described above. The field work for these profiles will be conducted in a similar manner to the topographic surveys with a monitor present. In addition, these imaging profiles will be conducted outside of the harbor seal pupping season, in an effort to reduce disturbance to nursing females and young pups. As noted previously, SCWA believes that, due to the nature of the activity and mitigation measures to be implemented, other components of the jetty study are unlikely to result in incidental take.
For biological and physical habitat monitoring activities in the estuary, it was assumed that pinnipeds may be encountered once per event and flush from a river haul-out. The potential for harassment associated with these events is limited to the three haul-outs located in the estuary. In past experience, SCWA typically sees no more than a single harbor seal at these haul-outs, which consist of scattered logs and rocks that often submerge at high tide.
NMFS has defined `negligible impact' in 50 CFR 216 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In determining whether or not authorized incidental take will have a negligible impact on affected species stocks, we consider a number of criteria regarding the impact of the proposed action, including the number, nature, intensity, and duration of Level B harassment take that may occur. Although SCWA's estuary management activities may harass pinnipeds hauled out at the mouth of the Russian River, as well as those hauled out at several locations in the estuary during recurring monitoring activities, impacts are occurring to a small, localized group of animals. No injury, serious injury, or mortality is anticipated, nor is the proposed action likely to result in long-term impacts such as permanent abandonment of the haul-out. Seals will likely become alert or, at most, flush into the water in reaction to the presence of crews and equipment on the beach. However, breaching the sandbar has been shown to increase seal abundance on the beach, with seals quickly re-inhabiting the haul-out following cessation of activity. In addition, the implementation of the lagoon management plan may provide increased availability of prey species (salmonids). No impacts would be expected at the population or stock level.
No pinniped stocks known from the action area are listed as threatened or endangered under the ESA or determined to be strategic or depleted under the MMPA. Recent data suggests that harbor seal populations have reached carrying capacity; populations of California sea lions and northern elephant seals in California are also considered healthy.
The proposed number of animals taken for each species of pinnipeds can be considered small relative to the population size. There are an estimated 30,196 harbor seals in the California stock, 296,750 California sea lions, and 124,000 northern elephant seals in the California breeding population. Based on extensive monitoring effort specific to the affected haul-out and historical data on the frequency of the specified activity, we are proposing to authorize take, by Level B harassment only, of 3,130 harbor seals, 42 California sea lions, and 42 northern elephant seals, representing 10.4, 0.01, and 0.03 percent of the populations, respectively. However, this represents an overestimate of the number of individuals harassed over the duration of the proposed IHA, because these totals represent much smaller numbers of individuals that may be harassed multiple times.
The proposed action would not be likely to cause injury, serious injury, or mortality to any harbor seal pup, nor would it impact mother-pup bonding. The peak of pupping season occurs during May, when few management activities are anticipated. However, any management activity that is required during pupping season will be delayed in the event that a pup less than 1 week old is present on the beach. As described previously in this document, harbor seal pups are precocious, and mother-pup bonding is likely to occur within minutes. Delay of events would further ensure that mother-pup bonding is not interfered with.
Based on the foregoing analysis, behavioral disturbance to pinnipeds at the mouth of the Russian River would be of low intensity and limited duration. To ensure minimal disturbance, SCWA would implement the mitigation measures described previously, which we have preliminarily determined would serve as the means for effecting the least practicable adverse impact on the relevant marine mammal stocks or populations and their habitat. We preliminarily find that SCWA's estuary management activities would result in the incidental take of small numbers of marine mammals, and that the requested number of takes would have no more than a negligible impact on the affected species and stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
There are no ESA-listed marine mammals found in the action area; therefore, no consultation under the ESA is required for such species. As described elsewhere in this document, SCWA and the Corps consulted with NMFS under section 7 of the ESA regarding the potential effects of their operations and maintenance activities, including SCWA's estuary management program, on ESA-listed salmonids. As a result of this consultation, NMFS issued the Russian River Biological Opinion (NMFS, 2008), including Reasonable and Prudent Alternatives, which prescribes modifications to SCWA's estuary management activities. The effects of the proposed activities and authorized take would not cause additional effects for which section 7 consultation would be required.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As a result of these preliminary determinations, we propose to authorize the take of marine mammals incidental to SCWA's estuary management activities, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 12/21/2012 (77 FR 75616); 12/31/2012 (77 FR 77038); 1/11/2013 (78 FR 2378); and 1/18/2013 (78 FR 4133-4134), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 USC 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501-8506) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add a product and service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes a product and service previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the product and service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following product and service are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following product and service are proposed for deletion from the Procurement List:
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirement on respondents can be properly assessed.
Currently, CNCS is soliciting comments concerning the proposed revision of its VISTA Concept Paper, Application, and Budget Instructions (OMB Control Number 3045-0048) which will expire on September 30, 2015.
This revision reflects CNCS's intent to modify the application for inclusion of a new section to collect performance measure data required by the Edward M. Kennedy Serve America Act and recently approved by the Office of Management and Budget.
Written comments must be submitted to the office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) By mail sent to: Corporation for National and Community Service, Attn. Kelly Daly, Program Development Specialist, 1201 New York Avenue NW., Washington, DC 20525.
(2) By hand delivery or by courier to CNCS's reception desk on the 10th floor at the mailing address given in paragraph (1) above, between 9 a.m. and 4 p.m. Monday through Friday except Federal holidays.
(3) By fax to: (202) 606-3475, Attn. Kelly Daly, Program Development Specialist.
(4) Electronically through CNCS's email address system:
(5) Electronically through
(6) Individuals who use a telecommunications device for the deaf (TTY-TDD) may call (202) 606-3472 between 8:30 a.m. and 5:00 p.m. Eastern Time, Monday through Friday.
Kelly Daly (202-606-6849) or by email at
CNCS is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the
• Enhance the quality, utility and clarity of the information to be collected; and,
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submissions of responses).
The VISTA Concept Paper, Application, and Budget Instructions are designed to assure that potential AmeriCorps VISTA sponsors provide the information needed to determine their suitability for approval.
CNCS seeks to revise the current forms used by potential and current AmeriCorps VISTA sponsors to both apply for and report on the use of AmeriCorps VISTA resources. The information collection will otherwise be used in the same manner as the existing application package. CNCS also seeks to continue using the current application package until the revised application is approved by OMB. The current application package is due to expire on September 30, 2015.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Defense Security Cooperation Agency. Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 13-05 with attached transmittal, policy justification, and Sensitivity of Technology.
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(viii) Date Report Delivered to Congress: 27 February 2013.
The Government of Australia has requested a possible sale of up to 12 F/A-18E/F Super Hornet aircraft, 12 EA-18G Growler aircraft, 54 F414-GE-402 engines (48 installed and 6 spares) 2 engine inlet devices, 35 AN/APG-79 Radar Systems, 70 AN/USQ-140 Multifunctional Informational Distribution System Low Volume Terminals (MIDS-LVT) or RT-1957(C)/USQ-190(V) Joint Tactical Radio Systems, 40 AN/ALQ-214 Integrated Countermeasures Systems, 24 AN/ALR-67(V)3 Electronic Warfare Countermeasures Receiving Sets, 72 LAU-127 Guided Missile Launchers, 15 M61A2 Vulcan Cannons, 32 AN/AVS-9 Night Vision Goggles or Night Vision Cueing Device System, 40 AN/APX-111 Combined Interrogator Transponders, 80 AN/ARC-210/RT-1990A(C) Communication Systems, 100 Digital Management Devices with KG-60's, 36 Accurate Navigation Systems, 30 AN/AYK-29(V) Distributed Targeting Systems (DTS), 4 AN/PYQ-21 DTS Mission Planning Transit Cases, 24 AN/ASQ-228 Advance Targeting Forward Looking Infrared (ATFLIR) Pods, 40 AN/PYQ-10 Simple Key Loaders (SKL), 80 KIV-78 Mode
Australia is an important ally in the Western Pacific that contributes significantly to ensuring peace and economic stability in the region. Australia's efforts in peacekeeping and humanitarian operations have made a significant impact on regional political and economic stability and have served U.S. national security interests. This proposed sale is consistent with those objectives and facilitates burden sharing with our allies.
The proposed sale will improve Australia's capability in current and future coalition efforts. Australia will use the enhanced capability as a deterrent to regional threats and to strengthen its homeland defense. Australia will have no difficulty absorbing these additional aircraft into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be The Boeing Corporation in St. Louis, Missouri; General Electric Aircraft Engines in Lynn, Massachusetts; Data Link Solutions in Chesterfield, Missouri; BAE Systems in Rockville, Maryland; Northrop Grumman Corporation in Falls Church, VA; Raytheon Corporation in Waltham, MA; and Visions Systems International in San Jose, California. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale may require the assignment of additional U.S. Government or contractor representatives to Australia.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
1. The F/A-18E/F Super Hornet is a single- and two-seat, twin engine, multi-mission fighter/attack aircraft that can operate from either aircraft carriers or land bases. The F/A-18 fills a variety of roles: Air superiority, fighter escort, suppression of enemy air defenses, reconnaissance, forward air control, close and deep air support, and day and night strike missions. The F/A-18E/F Weapon System is considered Secret.
2. The EA-18G Growler is a two-seat, twin engine, multi-mission Airborne Electronic Attack (AEA) aircraft that can operate from either aircraft carriers or land bases. It provides a capability to detect, identify, locate, and suppress hostile emitters. The EA-18G provides organic accurate emitter targeting for employment of onboard suppression weapons, such as High-Speed Anti-Radiation Missile (HARM). The EA-18G Weapon System is considered Secret.
3. The AN/APG-79 Active Electronically Scanned Array Radar System is classified Secret. The radar provides the F/A-18 aircraft with all-weather, multimission capability for performing air-to-air and air-to-ground targeting and attack. Air-to-air modes provide the capability for all-aspect target detection, long-range search and track, automatic target acquisition, and tracking of multiple targets. Air-to-surface attack modes provide high-resolution ground mapping navigation, weapon delivery, and sensor cueing. The system component hardware (Antenna, Transmitter, Radar Data Processor, and Power Supply) is Unclassified. The Receiver-Exciter hardware is Confidential. The radar Operational Flight Program (OFP) is classified Secret. Documentation provided with the AN/APG-79 radar set is classified Secret.
4. The AN/ALR-67(V)3 Electric Warfare Countermeasures Receiving Set is classified Confidential. The AN/ALR-67(V)3 provides the F/A-18F aircrew with radar threat warnings by detecting and evaluating friendly and hostile radar frequency threat emitters and providing identification and status information about the emitters to on-board Electronic Warfare (EW) equipment and the aircrew. The OFP and User Data Files (UDF) used in the AN/ALR-67(V)3 are classified Secret. Those software programs contain threat parametric data used to identify and establish priority of detected radar emitters.
5. The AN/ALE-47 Countermeasures Dispensing Systems is classified Secret. The AN/ALE-47 is a threat-adaptive dispensing system that dispenses chaff, flares, and expendable jammers for self-protection against airborne and ground-based Radio Frequency and Infrared threats. The AN/ALE-47 Programmer is classified Confidential. The OFP and Mission Data Files used in the AN/ALE-47 are classified Secret. Those software programs contain algorithms used to calculate the best defense against specific threats.
6. The APX-111 Combined Interrogator/Transponder (CIT) with the Conformal Antenna System (CAS) is classified Secret. The CIT is a complete MARKXII identification system compatible with Identification Friend or Foe (IFF) Modes 1, 2, 3/A, C, 4, and 5 (secure). A single slide-in module that can be customized to the unique cryptographic functions for a specific country provides the systems secure mode capabilities. The Mode S Beacon System is a combined data link and Secondary Surveillance Radar (SSR) system that was standardized in 1985 by the International Civil Aviation Organization (ICAO). Mode S provides air surveillance using a data link with a permanent unique aircraft address.
7. The Joint Helmet Mounted Cueing System (JHMCS) is a modified HGU-55/P helmet that incorporates a visor-projected Heads-Up Display (HUD) to cue weapons and aircraft sensors to air and ground targets. In close combat, a pilot must currently align the aircraft to shoot at a target. JHMCS allows the pilot to simply look at a target to shoot. This system projects visual targeting and aircraft performance information on the back of the helmet's visor, enabling the pilot to monitor this information without interrupting his field of view through the cockpit canopy, the system uses a magnetic transmitter unit fixed to the pilot's seat and a magnetic field probe mounted on the helmet to define helmet pointing positioning. A Helmet Vehicle Interface (HVI) interacts with the aircraft
8. The AN/AVS-9 Night Vision Goggles provide imagery sufficient for an aviator to complete night time missions down to starlight and extreme low light conditions. The AN/AVS-9 is designed to satisfy the F/A-18 mission requirements for covert night combat, engagement, and support. The third generation light amplification tubes provide a high-performance, image-intensification system for optimized F/A-18 night flying at terrain-masking altitudes. The AN/AVS-9 night vision goggles are classified as Unclassified but with restrictions on release of technologies.
9. The AN/USQ-140 Multifunctional Informational Distribution System (MIDS) Low Volume Terminal (LVT) is classified Confidential. The MIDS LVT is a secure data and voice communication network using the Link-16 architecture. The systems provides enhanced situational awareness, positive identification of participants within the network, secure fighter-to-fighter connectivity, and secure voice capability and ARN-118 TACAN functionality. It provides three major functions: Air Control, Wide Area Surveillance, and Fighter-to-Fighter. The MIDS LVT can be used to transfer data in Air to-Air, Air-to-Surface, and Air-to-Ground scenarios. The MIDS enhanced Interference Blanking Unit (EIBU) provides validation and verification of equipment and concept. EIBU enhances input/output signal capacity of the MIDS LVT and addresses parts obsolescence.
10. The RT-1957(C)/USQ-190(V)Multifunctional Informational Distribution System (MIDS) Joint Tactical Radio System (JTRS) is classified Confidential. It is a 4-channel radio designed to run the complex Link 16 waveform and up to three additional communication protocols, including Airborne Networking Waveform (ANW). The terminal can host and provide the necessary computer processing to run routing and platform specific applications.
11. The ALE-55 Fiber Optic Towed Decoys is radio frequency countermeasure designed to protect an aircraft from radar guided missiles. It consists of an aircraft-towed decoy and onboard electronics. It works together with the aircraft's electronic warfare system to provide radar jamming. In addition, it can also be used in a backup mode as a signal repeater, which allows it to lure incoming missiles away from their actual target.
12. The AN/ARC-210, RT-1990A(C) Communication System has been designed to better meet software defined radio tenets, and architectures, provides superior performance in the transfer of networked and point to point data and voice imagery.
13. The Accurate Navigation Systems (ANAV) with country specific Selective Availability Anti-Spoofing Module (SASSM) including Advance Digital Antenna Production/Antenna Electronics (ADAP/AE) and Conformal-Controlled Reception Patterned Antenna (C-CRPA) provide full accuracy and P/Y-Code GPS. The ANAV can accommodate many interfaces to various sensors through a number of available options including Selective Availability and Anti-spoofing Module (SASSM), and can be integrated with existing Inertial Navigation System (INS) and Doppler systems. The system also incorporates Air Navigation Warfare (NAVWAR) protection designed to counter GPS Electronic Warfare threats due to intentional and unintentional interference by providing the warfighter continued access to GPS through the use of Anti-jam (AJ) Antenna Systems consisting of the Conformal—Controlled Reception Pattern Antenna, (C-CRPA), and the Advanced Digital Antenna Production/Antenna Electronics, (ADAP/AE).
14. The AN/AYK-29(V) Distributed Targeting Systems (DTS) and AN/PYQ-21 DTS Mission Planning Transit Case uses onboard hardware and software processing to produce precise targeting solutions for Super Hornet aircrews. The system compares synthetic-aperture radar (SAR) maps from the aircraft's active-array radar with stored geo-registered SAR maps and generates precise target coordinates for GPS-guided weapons. DTS enhances Super Hornet aircrews' situational awareness when engaging air-to-ground targets.
15. The AN/ALQ-214(V)4 Jammer is the next generation integrated countermeasures system that blends sensitive receivers and active countermeasures to form an electronic shield for the F/A-18 fighter aircraft. The RF countermeasure system responds to threats autonomously with a specific series of measures designed to protect the aircraft from detection and engages any fired threats to the aircraft, to ensure mission success.
16. The AN/ASQ-228 Advance Targeting Forward Looking Infrared (ATFLIR) Pod is a multi-sensor, electro-optical targeting pod incorporating infrared, low-light television camera, laser rangefinder/target designator, and laser spot tracker developed and manufactured by Raytheon. It is used to provide navigation and targeting for military aircraft in adverse weather and using precision-guided weapons.
17. The LAU-127 Guided Missile Launchers is a rail launcher designed to carry and launch AMRAAM. It provides the electrical and mechanical interface between the missile and launch aircraft as well as the two-way data transfer between missile and cockpit controls and displays to support preflight orientation and control circuits to prepare and launch the missile. The launcher will also be capable of carrying and launching the AIM-9L/M SIDEWINDER missile.
18. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12-60 with attached transmittal, policy justification, and Sensitivity of Technology.
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The Government of Iraq has requested a possible sale of 90 M45 RAPISCAN Mobile Eagle High Energy Mobile System Vehicles, 40 M60 RAPISCAN Mobile Eagle High Energy Mobile System Vehicles, 70 American Science and Engineering brand Z Backscatter Vans, spare and repair parts, support equipment, personnel training and training
This proposed sale directly supports the Iraqi government and serves the interests of the Iraqi people and the United States.
This proposed sale of RAPISCAN systems and vehicles will contribute to a stable, sovereign, and democratic Iraq. The purchase and use of these systems will facilitate progress toward this goal by increasing the Government of Iraq's ability to defend critical infrastructure and reduce terror and insurgent activities. The Z Backscatter vans will be used to scan vehicle interiors and will provide the Government of Iraq a tool to restrict the ability of insurgent and terrorist groups to operate by detecting contraband movement through borders and checkpoints. Iraq will have no difficulty absorbing this equipment.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractors will be Rapiscan Systems in Torrance, California; and American Science and Engineering in Billerica, Massachusetts. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require contractor representatives (30 from Rapiscan and 15 from American Science and Engineering) to travel to Iraq for a period of three years to provide management, and operation and maintenance training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Office of the Secretary of Defense, DoD.
Notice to add a new system of records.
The Office of the Secretary of Defense proposes to add a new system of records in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
This proposed action will be effective on April 8, 2013 unless comments are received which result in a contrary determination. Comments will be accepted on or before April 8, 2013.
You may submit comments, identified by docket number and title, by any of the following methods:
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Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Director of Administration and Management (DA&M) Mentoring Program.
Triple Creek Associates, Inc., 7730 E. Belleview Ave., Suite 200A, Greenwood Village, CO 80111-6617.
Participating DA&M, Washington Headquarters Service (WHS), and Pentagon Force Protection Agency civilian employees and assigned military personnel.
Name, employment information (work email, work phone number, work location, organization, department, work experience, years of experience in DA&M, total years of work experience, job level, job competencies, and competency level), education (e.g., degrees, training, coursework), job title, pay plan, job series, job grade, feedback on mentoring experience, discussion board posts, responding to polls.
10 U.S.C. 113, Secretary of Defense; DoD Directive (DoDD) 5105.53, Director of Administration and Management; DoDD 5110.4, Washington Headquarters Services; and DoDD 5105.68, Pentagon Force Protection Agency.
To provide participants with an automated mentoring system to match learners with potential advisors based on learner need and advisor capabilities and experience. The system will facilitate the tracking and management of these mentoring relationships and will also be used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness and conducting research.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD Blanket Routine Uses published at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of record notices may apply.
Electronic storage media.
By participant's name.
The system is a web-based system, and it is maintained by a DoD contractor on a contractor owned computer server. The data is protected by dedicated firewalls and web servers that are physically separated from other
All web connections to the system use a secure connection via Secure Socket Layer/Transport Layer Security. Data transfers require encryption.
Access to PII is role-based and limited to those individuals with an identified need to access the records in the conduct of their official duties. A login consisting of either the participant's work email address and password or Common Access Card and PIN prevents unauthorized access.
Destroy three (3) years after participant's withdrawal, termination, transfer, or inactivity.
DA&M Mentoring Program Manager, 4800 Mark Center Drive, Suite 03D08, Alexandria, VA 22350-3200.
Individuals seeking to determine whether information about themselves is contained in this record system should address written inquiries to the DA&M Mentoring Program Manager, 4800 Mark Center Drive, Suite 03D08, Alexandria, VA 22350-3200.
Individuals should furnish full name and organization.
Individuals seeking access to information about themselves contained in this record system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 4800 Mark Center Drive, Alexandria, VA 22350-3100.
Written requests must be signed and contain full name, organization and the name and number of this system of records notice.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the program manager.
The individual.
None.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of Open House meetings.
Notice is hereby given that the U.S. Army Corps of Engineers, Mobile District (USACE), will conduct open house style meetings and accept comments on the Draft Environmental Impact Statement (DEIS) for the update of the Alabama-Coosa-Tallapoosa River Basin (ACT) Water Control Master Manual (Master Manual). The public comment period began with the Notice of Availability published by the Environmental Protection Agency on March 1, 2013 and will end 60 days after that date. The open houses will be held at the times and places indicated in the
Comments on the DEIS are due by May 1, 2013 and should be submitted as indicated in the
Mr. Lewis Sumner at telephone (251) 694-3857.
The Master Manual includes appendices prepared for individual projects in the ACT Basin and is the guide used by USACE to operate a system of five Federal reservoir projects in the basin—Allatoona Dam and Lake, Carters Dam and Lake and Carters Reregulation Dam, Robert F. Henry Lock and Dam and R.E. “Bob” Woodruff Lake, Millers Ferry Lock and Dam and William “Bill” Dannelly Lake, and Claiborne Lock and Dam and Lake. In addition the Master Manual includes appendices prepared for two of the Alabama Power Company (APC) projects for which USACE has authority for flood risk management water management control—Neely Henry and R.L. Harris. APC regulates these two non-federal projects in compliance with the projects' Federal Energy Regulatory Commission (FERC) licenses and in accordance with USACE water control plans for flood management regulation and navigation support.
USACE is updating the water control plans and manuals for the ACT Basin in order to improve operations for authorized purposes to reflect changed conditions since the manuals were last developed. The purpose and need for the updated Master Manual is to determine how the federal projects in the ACT Basin should adjust operations for their authorized purposes, in light of current conditions and applicable law and to implement those operations through updated water control plans and manuals. The updated plans and manuals will comply with existing USACE regulations and reflect operations under existing congressional authorizations, taking into account changes in basin hydrology and demands from years of growth and development, new/rehabilitated structural features, legal developments, and environmental issues.
USACE regulations also provide specific policy and guidance for inclusion of drought contingency plans as part of USACE's overall water control management activities in the basin. To be effective, the drought plan must incorporate a comprehensive, basin-wide approach that considers the interrelationship of USACE projects and APC projects and the proposed drought plan was developed in collaboration with APC.
USACE's objectives for the Master Manual are to develop a Water Control Plan that meets the existing water resources needs of the basin, fulfills its responsibilities in operating for the authorized project purposes, and complies with all pertinent laws. The DEIS presents the results of USACE's analysis of the environmental effects of the Proposed Action Alternative (PAA) that the USACE believes accomplishes these objectives.
USACE evaluated an array of potential water management alternatives during the Master Manual update process, resulting in the selection of the PAA. Additional information on the components of the PAA can be found at
The proposed action does not include the building, installing, or upgrading of any facilities. USACE will not modify any authorized project purpose via this action, although the extent to which some can be achieved may be affected. This action is limited to the way reservoir levels are managed and water is released from them.
The DEIS and appendices are available to the public for review in the following formats:
• Online as PDF documents at
• As a CD or bound copies when requested in writing to: Commander, U.S. Army Corps of Engineers, Mobile District, Attn: PD-EI (ACT-DEIS), P.O. Box 2288, Mobile AL 36628.
• A limited number of CD copies will also be available at the DEIS open houses.
USACE recognizes that the decisions made concerning revisions to the water control operations at USACE projects within the ACT Basin will have wide-ranging effects and encourages the public to submit comments on the content of the DEIS. All persons and organizations that have a potential interest in the proposed action, including minority, low-income, disadvantaged, and Native American groups, are urged to participate in this NEPA environmental analysis process by reviewing the DEIS and submitting comments for consideration.
Comments may be submitted via the following methods:
• Onsite at open houses through comment cards.
• Verbally through the court reporter at open houses.
• Online at
• By emailing
• By letter addressed to: Commander, U.S. Army Corps of Engineers, Mobile District, Attn: PD-EI (ACT-DEIS), P.O. Box 2288, Mobile AL 36628.
Further information regarding the update of the Master Manual, including all available documents, background and historical information, and updates is available online at the Web site given above.
Open house style meetings will be held the week of March 25, 2013 at the following locations and times:
• Monday, March 25 from 5-8 p.m. at Cobb Conference Center 755 Cobb Place Blvd. NW., Kennesaw, GA 30144.
• Tuesday, March 26 from 5-8 p.m. at The Forum Civic Center, 2 Government Plaza, Rome, GA 301901.
• Wednesday, March 27 from 4-7 p.m. at The Senior Activity Center, 623 Broad Street, Gadsden, AL 35901.
• Thursday, March 28 from 5-8 p.m. at Auburn University-Montgomery, Center for Lifelong Learning, 75 TechnaCenter Drive, Montgomery, AL 36117.
All comments will be catalogued and reviewed after the 60-day public comment period. The final EIS (FEIS) is scheduled to be completed and filed with the USEPA in the summer of 2013. The Record of Decision, if appropriate, will be signed following the FEIS and the Master Manual is scheduled to be approved in October 2013.
Office of Vocational and Adult Education, Department of Education.
Notice; correction.
On February 26, 2013, the Office of Vocational and Adult Education in the U.S. Department of Education published in the
Effective March 8, 2013.
In the
The deadline date for transmittal of applications is correctly stated as March 28, 2013 on page 13031 of the notice. However, on page 13036, the deadline date for transmittal of applications is incorrectly stated as April 12, 2013, rather than the correct date March 28, 2013. We are correcting that error.
20 U.S.C. 2301,
Gwen Washington, U.S. Department of Education, 400 Maryland Avenue SW., room 11076, PCP, Washington, DC 20202-7241. Telephone: (202) 245-7790. Fax: (202) 245-7170 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice extending deadline date for the FY 2013 grant competition.
On January 23, 2013, we published in the
Catherine St. Clair, Student Service, Office of Postsecondary Education, U.S. Department of Education, 1990 K Street NW., Room 7051, 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 (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
20 U.S.C. 1070a-21 through 20 U.S.C. 1070a-28.
Office of Science, Department of Energy.
Notice of Inquiry and Request for Comment.
The Department of Energy (DOE) currently produces and distributes the radioisotope germanium-68. DOE is seeking comment and information from the public to assist in its consideration of DOE withdrawal from the commercial production and distribution of germanium-68, based upon private industry expression of interest in and capability to engage in commercial production of germanium-68.
Interested persons must submit written comments by April 30, 2013.
Comments may be submitted electronically by emailing to:
Dr. Jehanne Gillo, Director, Facilities and Project Management Division, Office of Nuclear Physics, Office of Science, U.S. Department of Energy, Germantown Building, SC-26.2, 1000 Independence Ave. SW., Washington, DC 20585-1290, Tel: 301-903-1455.
It is DOE policy to refrain from competition with private industry in the commercial production and distribution of radioisotopes when those radioisotopes are reasonably available commercially. This policy was announced, and remains in effect, as stated in the Notice published in the
The Department has been made aware of private industry development of commercial production and distribution of the radioisotope germanium-68. In light of these circumstances, DOE intends to evaluate the capability of private industry to satisfy the market demand for germanium-68, consistent with the guidelines provided in the Statement of Policy, referenced above. In summary, DOE's evaluation will include consideration of: a demonstrable private capability to produce and distribute germanium-68; effective competition in the market for the production and distribution of germanium-68; assurance that private industry will not discontinue production or distribution of germanium-68 in a manner that would adversely impact the public interest; and the germanium-68 will be available at reasonable prices consistent with its intended uses and the prices to be charged will also encourage further research and development. Comments and information from the public received in response to this Notice will be considered in this evaluation.
If the determination is made that germanium-68 is reasonably available from commercial sources and it is appropriate for DOE to withdraw from commercial production and distribution of this radioisotope, DOE will publish in the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit three information collection requests (ICRs), “Information Requirements for Importation of Nonconforming Vehicles (Renewal)”, EPA ICR No. 0010.13, OMB Control No. 2060-0095; “Control of Evaporative Emissions from New and In-Use Portable Gasoline Containers (Renewal)”, ICR 2213.04, OMB 2060-0597; and “Motor Vehicle and Engine Compliance Program Fees (Renewal)”, EPA ICR 2080.05, OMB Control No. 2060-0545 to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 7, 2013.
Submit your comments, referencing the Docket ID numbers provided for each item in the text, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Lynn Sohacki, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood, Ann Arbor, Michigan 48105; telephone number: 734-214-4851; fax number 734-214-4869; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another
T
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office requests public nominations of scientific experts to form an SAB panel to review the Agency's draft science synthesis report on the connectivity of streams and wetlands to downstream waters.
Nominations should be submitted by March 29, 2013 per the instructions below.
Any member of the public wishing further information regarding this Notice and Request for Nominations may contact Dr. Thomas Armitage, Designated Federal Officer (DFO), SAB Staff Office, by telephone/voice mail at (202) 564-2155, by fax at (202) 565-2098, or via email at
Persons having questions about the nomination procedures, or who are unable to submit nominations through the SAB Web site, should contact Dr. Thomas Armitage, DFO, as indicated above in this notice. Nominations should be submitted in time to arrive no later than March 29, 2013. EPA values and welcomes diversity. In an effort to obtain nominations of diverse candidates, EPA encourages nominations of women and men of all racial and ethnic groups.
The EPA SAB Staff Office will acknowledge receipt of nominations. The names and biosketches of qualified nominees identified by respondents to this
For the EPA SAB Staff Office a balanced review panel includes candidates who possess the necessary domains of knowledge, the relevant scientific perspectives (which, among other factors, can be influenced by work history and affiliation), and the collective breadth of experience to adequately address the charge. In forming this expert panel, the SAB Staff Office will consider public comments on the List of Candidates, information provided by the candidates themselves, and background information independently gathered by the SAB Staff Office. Selection criteria to be used for panel membership include: (a) Scientific and/or technical expertise, knowledge, and experience (primary factors); (b) availability and willingness to serve; (c) absence of financial conflicts of interest; (d) absence of an appearance of a lack of impartiality; (e) skills working in committees, subcommittees and advisory panels; and, (f) for the panel as a whole, diversity of expertise and viewpoints.
The SAB Staff Office's evaluation of an absence of financial conflicts of interest will include a review of the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110-48). This confidential form allows government officials to determine whether there is a statutory conflict between a person's public responsibilities (which include membership on an EPA federal advisory committee) and private interests and activities, or the appearance of a lack of impartiality, as defined by federal regulation. The form may be viewed and downloaded from the following URL address
The approved policy under which the EPA SAB Office selects subcommittees and review panels is described in the following document:
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 7, 2013. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 25, 2013.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566:
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B. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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C. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 4, 2013.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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B. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
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This notice corrects a notice (FR Doc. 2013-03831) published on page 11884 of the issue for Wednesday, February 20, 2013.
Under the Federal Reserve Bank of San Francisco heading, the entry for One PacificCoast Foundation and One PacificCoast Bancorp, Inc., both in Oakland, California, is revised to read as follows:
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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In connection with this application, Applicant also has applied to retain voting shares of One PacificCoast Bank FSB, Oakland, California, and thereby engage in operating a nonbank thrift subsidiary, pursuant to section 225.28(b)(4)(ii).
Comments on this application must be received by March 15, 2013.
The companies listed in this notice have given notice under the Home Owners' Loan Act (HOLA) (12 U.S.C. 1461
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 10a(c)(4)(B) of HOLA (12.U.S.C. 1467a(c)(4)(B)).
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 25, 2013.
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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The meeting announced below concerns Epidemiology, Prevention and Treatment of Influenza and other Respiratory Infections in Panama and Central America Region, Funding Opportunity Announcement (FOA) IP13-002; and Strengthening Global Animal-Human Interface Activities for Avian Influenza and other Zoonotic Diseases, FOA CK13-002, initial review.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on April 8, 2013.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by May 7, 2013:
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In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “What You Need to Know About Administrative Detention of Foods; Small Entity Compliance Guide” (SECG) which updates an earlier guidance of similar title. Previously, this guidance restated the legal requirements of FDA's administrative detention regulation. This document also at one time served as FDA's guidance for administrative detention. In October 2011, FDA revised an earlier version of this guidance document to be consistent with the changes made by an interim final rule (IFR) issued in the
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of the guidance to the Outreach and Information Center (HFS-009), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740. Send one self-addressed adhesive label to assist that office in processing your request. See the
Submit electronic comments on the guidance to
William A. Correll, Jr., Office of Compliance (HFS-607), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-1611.
The FDA Food Safety Modernization Act (FSMA) (Pub. L. 111-353) was signed into law on January 4, 2011. Section 207 of FSMA amended the criteria for ordering administrative detention in section 304(h)(1)(A) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 334(h)(1)(A)) to provide FDA the authority to order administrative detention if there is reason to believe that an article of food is adulterated or misbranded. On May 5, 2011, in accordance with FSMA, FDA
In October 2011, FDA updated an existing guidance which had restated the legal requirements of FDA's administrative detention regulation at 21 CFR part 1, subpart K, implementing section 304(h) of the FD&C Act, as added by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. This document had also served as FDA's guidance for 21 CFR part 1, subpart K in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The title of the October 2011 guidance was “What You Need to Know About Administrative Detention of Foods,” (76 FR 66073, October 25, 2011). The guidance was intended to provide individuals in the human and animal food industries with an understanding of FDA's authority to order the administrative detention of human or animal food under section 304(h) of the FD&C Act, as amended by section 207 of FSMA. It provided practical information, including who can approve an administrative detention order, what food may be subject to administrative detention, who receives a copy of an administrative detention order, and the process for appealing an administrative detention order. Additionally, the guidance identified references that contain more information regarding FDA's authority to order administrative detention.
FDA received one general comment about FDA decisionmaking to the docket associated with the October 2011 version (Docket Number FDA-2011-D-0643). The comment stated that it would like to ensure that FDA makes sound decisions based on testing from qualified laboratories. As such, the comment continued, FDA and private laboratories must be accredited and must follow good laboratory practices in their testing programs. In addition, the comment stated that testing should be conducted using validated testing methods that have been accredited and approved. Sound science is the cornerstone of FDA regulatory programs and actions and, to that extent, FDA agrees with the comment; however, in the context of administrative detention, FDA is not limited, as implied by the comment, to relying on analytical test results to determine whether FDA has a reason to believe a food is adulterated or misbranded. All evidence available to the Agency may be considered when making such a determination.
Since then, in the
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to determine whether a final rule will have a significant impact on small entities when an Agency issues a final rule “after being required * * * to publish a general notice of proposed rulemaking.” Although FDA is not required to perform a regulatory flexibility analysis because, in accordance with 5 U.S.C. 553(b)(3)(B) and 21 CFR 10.40(e)(1), the Agency found for good cause that use of prior notice and comment procedures were contrary to the public interest; FDA has nonetheless examined the economic implications of the final rule in accordance with the Regulatory Flexibility Act and determined that the final rule will not have a significant economic impact on a substantial number of small entities (78 FR 7994). Similarly because FDA is not required to perform a final regulatory flexibility analysis under 5 U.S.C. 605(b) for the final rule, FDA is not required to issue a guidance to comply with section 212 of SBREFA (Pub. L.104-121); nevertheless, FDA has updated this guidance to state in plain language the requirements of 21 CFR part 1, subpart K.
FDA is issuing this guidance consistent with FDA's good guidance practices regulation (21 CFR 10.115(c)(2)). This guidance represents the Agency's current thinking on administrative detention of foods. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance refers to collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We conclude that the collections of information in §§ 1.381(d) and 1.402 are exempt from OMB review under 44 U.S.C. 3518(c)(1)(B)(ii) and 5 CFR 1320.4(a)(2) as collections of information obtained during the conduct of a civil action to which the United States or any official or Agency thereof is a party, or during the conduct of an administrative action, investigation, or audit involving an Agency against specific individuals or entities. The regulations in 5 CFR 1320(c) provide that the exception in 5 CFR 1320.4(a)(2) applies during the entire course of the investigation, audit, or action, but only after a case file or equivalent is opened with respect to a particular party. Such a case file would be opened as part of the decision to detain an article of food.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice, request for comments.
The Food and Drug Administration (FDA or the Agency) is announcing the availability of a draft 5-year plan describing the Agency's approach to further developing and implementing a structured framework for benefit-risk assessment in the human drug and biologic review process and the opportunity for public comment on the draft plan. This plan is part of FDA's commitments that were made as part of the fifth authorization of the Prescription Drug User Fee Act (PDUFA V). FDA has published the draft plan on its Web site at
Submit either electronic or written comments by May 7, 2013.
Submit electronic comments to
Graham Thompson, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 1199, Silver Spring, MD 20993, 301-796-5003, FAX: 301-847-8443, Email:
On July 9, 2012, the President signed into law the Food and Drug Administration Safety and Innovation Act (FDASIA), (Pub. L. 112-144). Section 905 of FDASIA amends section 505(d) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) by requiring FDA to “implement a structured risk-benefit assessment framework in the new drug approval process to facilitate the balanced consideration of benefits and risks, a consistent and systematic approach to the discussion and regulatory decisionmaking, and the communication of the benefits and risks of new drugs.” Title I of FDASIA reauthorizes PDUFA and provides FDA with the user fee resources necessary to maintain an efficient review process for human drug and biological products. The reauthorization of PDUFA includes performance goals and procedures for the Agency that represent FDA's commitments during fiscal years 2013-2017. These commitments are fully described in the document entitled “PDUFA Reauthorization Performance Goals and Procedures Fiscal Years 2013 through 2017” (“PDUFA Goals Document”), available on FDA's Web site at
Ensuring the safety, effectiveness, and quality of human drugs is a complicated regulatory task, requiring FDA's consideration of a multitude of complex factors. FDA's regulatory decision making process takes into consideration not only the data submitted in a marketing application, but also a broad set of additional factors, including the clinical context for the proposed product (such as the nature and severity of the disease or condition that the proposed product is intended to treat or prevent and the benefits and risks of other available therapies for that disease or condition) and any risk management tools that might be necessary to ensure that the benefits of the proposed product outweigh its risks.
FDA believes that implementing a standardized structure for the analysis of the various benefit and risk considerations that make up a regulatory decision will help to facilitate balanced and consistent consideration of the benefit and risk factors during the review process and to enhance the transparency of regulatory review. FDA therefore has developed a draft plan describing a benefit-risk assessment framework that is designed to make explicit the consideration of the various benefit-risk factors and the role of those factors in the regulatory decision-making process for human drug and biological product marketing applications. It is important to note that, as specified in section 905 of FDASIA, this framework does not change the criteria for approval of a drug or biological product. All new drug applications and biological license applications must meet the requirements for approval under the FD&C Act and the Public Health Service Act, respectively.
By clearly articulating FDA's key considerations in a standard structure, this framework can serve as an important tool for the analysis and discussion of the relevant benefit and risk considerations during the review process. A second and equally important purpose of the benefit-risk framework is that it can serve as a tool to communicate the reasoning of FDA's regulatory decisions to the public. When FDA approves a new drug or biological product, it generally posts decisional memos on the Agency's Web site. These documents may be highly technical and may not be easily understandable to a broad audience with varying backgrounds. The benefit-risk framework aims to enhance FDA's communication of its decisions by making clear the important considerations in the Agency's decision-making process, and how they affected the final regulatory decision, in a clear, succinct summary.
With this notice, FDA is announcing the availability of a draft 5-year plan describing the Agency's approach to further developing and implementing the benefit-risk framework and the opportunity for the public to comment on the plan. FDA has published the plan on the Agency's Web site at
The National Toxicology Program (NTP) announces a public webinar, “Human cancer studies on exposure to pentachlorophenol (PCP): Differentiating potential cancer effects of PCP exposure from effects due to occupational co-exposures or PCP contaminants.” The Office of the Report on Carcinogens (ORoC), Division of the NTP (DNTP), National Institute of Environmental Health Sciences (NIEHS) will hold the webinar using Adobe® Connect
Dr. Ruth M. Lunn, Director, ORoC, DNTP, NIEHS, P.O. Box 12233, MD K2-14, Research Triangle Park, NC 27709. Phone: (919) 316-4637; Fax: (301) 480-2970, Email:
PCP, including its sodium salt, is a chlorinated aromatic compound that is used primarily as a wood preservative in the United States. It was selected as a candidate substance following solicitation of public comment and review by the NTP Board of Scientific Counselors on June 21-22, 2012 (
The objective of the webinar is to provide scientific input to the ORoC on issues related to its approach for evaluating the epidemiologic studies on exposure to PCP and not to receive recommendations from invited speakers or the public on whether or not PCP should be listed in the RoC. The webinar will consist of (1) four presentations, each of which will be followed by a short question and answer period specific for the presentation, and (2) a discussion session across presentations. The goals of the individual presentations are (1) to identify occupational co-exposures and PCP components or contaminants in human epidemiologic studies of exposure to PCP, (2) to identify which co-exposures should be considered as potential confounders, and (3) to discuss the methods used in the epidemiologic studies to evaluate confounding.
The preliminary agenda, list of speakers, and abstracts of the presentations should be posted on the NTP Web site (
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2); 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 purpose of this meeting is to evaluate requests for preclinical development resources for potential new therapeutics for the treatment of cancer. The outcome of the evaluation will provide information to internal NCI committees that will decide whether NCI should support requests and make available contract resources for development of the potential therapeutic to improve the treatment of various forms of cancer. The research proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the proposed research projects, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Joseph Tomaszewski, Ph.D., Executive Secretary, Development Experimental Therapeutics Program, National Cancer Institute, NIH, 31 Center Drive, Room 3A44, Bethesda, MD 20892, (301) 496-6711,
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting hosted by the Scientific Management Review Board.
The NIH Reform Act of 2006 (Pub. L. 109-482) provides organizational authorities to HHS and NIH officials to: (1) Establish or abolish national research institutes; (2) reorganize the offices within the Office of the Director, NIH including adding, removing, or transferring the functions of such offices or establishing or terminating such offices; and (3) reorganize divisions, centers, or other administrative units within an NIH national research institute or national center including adding, removing, or transferring the functions of such units, or establishing or terminating such units. The purpose of the Scientific Management Review Board (also referred to as SMRB or Board) is to advise appropriate HHS and NIH officials on the use of these organizational authorities and identify the reasons underlying the recommendations.
The meeting will be open to the public through teleconference at the number listed below.
The toll-free number to participate in the teleconference is 877-891-6972. Indicate to the conference operator that your Participant pass code is “NIH”.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person. The draft meeting agenda, meeting materials, dial-in information, and other information about the SMRB, will be available at
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Office of AIDS Research Advisory Council.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The National Toxicology Program (NTP) announces a public, web-based meeting on the assessment of data quality in animal studies. The Office of Health Assessment and Translation (OHAT), Division of the National Toxicology Program (DNTP), National Institute of Environmental Health Sciences (NIEHS) will host the web-based meeting using Adobe® Connect
Dr. Andrew Rooney, Deputy Director, OHAT, DNTP, NIEHS, P.O. Box 12233, K2-04, Research Triangle Park, NC 27709. Phone: 919-541-2999, Fax: 301-480-3299, Email:
The NTP plans to hold a series of web-based, public meetings with a focus on methodological issues related to OHAT implementing systematic review. The first will focus on the assessment of data quality in animal studies. The meeting will begin with invited presentations related to the assessment of study quality followed by a general discussion period.
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.
The National Institutes of Health and the Interagency Pain Research Coordinating Committee (IPRCC) are seeking nominations for membership of five working groups established to support efforts to create a comprehensive, population health level strategy for pain prevention, treatment, management, and research as recommended in the 2011 Institute of Medicine report titled “Relieving Pain in America: A Blueprint for Transforming Prevention, Care, Education, and Research.”
Nominations are due by 5 p.m. on March 22, 2013.
Nominations must be sent to Linda Porter, Ph.D., NINDS/NIH, 31 Center Drive, Room 8A03, Bethesda, MD 20892, or by email to
Contact Linda Porter, Ph.D., NINDS/NIH, 31 Center Drive, Room 8A03, Bethesda, MD 20892,
The Department of Health and Human Services (Department) has created the Interagency Pain Research Coordinating Committee (IPRCC). As specified in Public Law 111-148 (“Patient Protection and Affordable Care Act”) the Committee will: (a) Develop a summary of advances in pain care research supported or conducted by the Federal agencies relevant to the diagnosis, prevention, and treatment of pain and diseases and disorders associated with pain; (b) identify critical gaps in basic and clinical research on the symptoms and causes of pain; (c) make recommendations to ensure that the activities of the National Institutes of Health and other Federal agencies are free of unnecessary duplication of effort; (d) make recommendations on how best to disseminate information on pain care; and (e) make recommendations on how to expand partnerships between public entities and private entities to expand collaborative, cross-cutting research.
The Office of the Assistant Secretary for Health, Department of Health and Human Services, has charged the IPRCC to create a comprehensive, population health level strategy for pain prevention, treatment, management, and research as recommended in the 2011 Institute of Medicine Report titled “Relieving Pain in America: A Blueprint for Transforming Prevention, Care, Education, and Research.” The National Institutes of Health and the IPRCC are seeking nominations for membership of five working groups established to support efforts to address this charge. The working groups will focus on five defined areas related to pain: (1) Professional education and training, (2) Public education and communication, (3) Public health: care, prevention, and disparities, (4) Public health: service delivery and reimbursement, and (5) Population research.
Membership on the working groups will include representation from the public, scientific community, health care providers, and federal and state agencies with expertise and knowledge appropriate for each group. Members will serve for the duration of the effort to develop the strategic plan. It is anticipated that each working group will meet multiple times over approximately 18 months. Appointment to these working groups shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.
The Department is soliciting nominations for each working group to include non-federal members from among scientists, physicians, and other health professionals and for members of the general public who are representatives of leading research, advocacy, and service organizations for people with pain-related conditions. Nominations for representatives from private insurers, professional accreditation, certification, examination, and licensing organizations also are appropriate for some working groups as are those from state workers' compensation, Medicaid programs, and health departments. More information can be found at
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer at (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Section 1955 of the Public Health Service Act (42 U.S.C. 300x-65), as amended by the Children's Health Act of 2000 (Pub. L. 106-310) and Sections 581-584 of the Public Health Service Act (42 U.S.C. 290kk et seq., as added by the Consolidated Appropriations Act (Pub. L. 106-554)), set forth various provisions which aim to ensure that religious organizations are able to compete on an equal footing for federal funds to provide substance abuse services. These provisions allow religious organizations to offer substance abuse services to individuals without impairing the religious character of the organizations or the religious freedom of the individuals who receive the services. The provisions apply to the Substance Abuse Prevention and Treatment Block Grant (SABG), to the Projects for Assistance in Transition from Homelessness (PATH)
No changes are being made to the regulations or the burden hours.
Information on how states comply with the requirements of 42 CFR part 54 was approved by the Office of Management and Budget (OMB) as part of the Substance Abuse Prevention and Treatment Block Grant FY 2012-2013 annual application and reporting requirements approved under OMB control number 0930-0168.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2-1057, One Choke Cherry Road, Rockville, MD 20857
Federal Emergency Management Agency, DHS.
Notice.
On Tuesday, January 29, 2013, President Obama signed the Sandy Recovery Improvement Act of 2013, which includes a provision amending the Robert T. Stafford Disaster Relief and Emergency Assistance Act to provide federally recognized Indian tribal governments the option to make a request directly to the President for a Federal emergency or major disaster declaration, or to seek assistance, as they do presently, under a declaration for a State. In support of preliminary implementation of this provision, the Federal Emergency Management Agency (FEMA) is engaging in a comprehensive consultation effort with federally recognized Indian tribal governments. To initiate that consultation, FEMA is soliciting comments regarding FEMA procedures for declaration requests from Indian tribal governments.
Comments must be received by April 22, 2013.
Comments must be identified by docket ID FEMA-2013-0006 and may be submitted by one of the following methods:
Jessica Stewart, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, 202-646-3888.
You may submit your comments and material by the methods specified in the
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) authorizes the President to make certain Federal assistance available to support State, tribal, and local efforts to respond to and recover from a disaster. The President makes disaster assistance available after he declares that an emergency or major disaster has occurred and that Federal assistance is needed to supplement State and local government resources. In the past, the Stafford Act allowed only the Governor of a State to make a request for a declaration by the President for an emergency or major disaster.
On Tuesday, January 29, 2013, President Obama signed the Sandy Recovery Improvement Act of 2013, that included a provision amending the Stafford Act to provide Federally recognized Indian tribal governments the option to choose whether to make a request directly to the President for a Federal emergency or major disaster declaration, or to seek assistance, as they do presently, under a declaration for a State.
Specifically, the amendment permits the “Chief Executive” of an “affected Indian tribal government” to submit a request for a declaration to the President that a major disaster or emergency exists consistent with the requirements listed in Stafford Act section 401 (major disasters) and 501 (emergencies). The amendment also stipulates that an Indian tribal government may be eligible to receive assistance through a declaration made by the President at the request of a State, so long as the Indian tribal government does not receive a separate declaration from the President for the same incident.
FEMA plans to establish a pilot program for managing requests from Indian tribal governments; during development of this pilot program, FEMA will engage in a comprehensive consultation effort with Indian tribal governments.
Below you will find an explanation of the
As an initial step in consultation with Indian tribal governments and outreach to other stakeholders, FEMA asks Indian tribal governments for their thoughts and comments on how these requirements and factors may or may not be appropriate as applied to requests from Indian tribal governments during the pilot program. The input provided will inform the development of the pilot program to process declaration requests from Indian tribal governments. FEMA welcomes comments on any or all of the topics addressed in this Notice. Comments are also welcomed on any other issues that may not be covered in the below topics.
Stafford Act assistance is intended to supplement State and local resources. States must establish in their requests that the event is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments. (42 U.S.C. 5121(2))
Types of FEMA disaster assistance that may be made available by major disaster declarations:
• Individual Assistance—Assistance to individuals and households. (More information can be found at:
• Public Assistance—Assistance to State, Indian tribal and local governments and certain private nonprofit organizations for emergency work and the repair or replacement of disaster-damaged facilities. (More information can be found at:
• Hazard Mitigation Assistance—Assistance to State and local governments and certain private nonprofit organizations for actions taken to prevent or reduce long term risk to life and property from natural hazards. (More information can be found at
In support of requests for a major disaster declaration, Preliminary Damage Assessments (PDAs) are conducted to estimate the extent of the disaster and its impact on individuals and public facilities. A PDA is not required for an emergency declaration request. The PDA team may be comprised of personnel from FEMA, the State's emergency management agency, Territorial, Indian tribal and affected local government officials and other Federal agencies (e.g., the U.S. Small Business Administration). The team's work begins with assessing the emergency costs incurred by the units of government, the uninsured damage to public facilities, and the impacts on individuals' lives, homes and businesses. This information is included in the Governor's request to the President.
Governors submit declaration requests to the President through the appropriate FEMA Regional Administrator. The Stafford Act requires a Governor of an affected State to base his/her declaration request on the finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. The Governor must also take appropriate response action under State law, direct execution of the State's emergency plan, have or will commit resources to alleviate the results for the disaster, and certify that the State will comply with all cost sharing requirements.
In order for FEMA to make Public Assistance, Individual Assistance, and Hazard Mitigation available to eligible areas, Governors must have the following agreements and/or plans:
○ Within 72 hours of a disaster declaration, a State may submit modifications of the Administrative Plan. (44 CFR 206.120(e)).
The Federal Assistance to Individuals and Households Program (IHP) (44 CFR 206.110-206.120) provides financial assistance, such as funding to repair damaged homes or replacement of household items, and if necessary, direct assistance to eligible individuals and households. IHP is intended to help disaster-impacted individuals and households who have uninsured or under-insured housing and other needs and are unable to meet such expenses or needs through other means.
Housing Assistance under IHP is administered directly by FEMA. However, the delivery of Other Needs Assistance (ONA) under IHP is contingent upon the State choosing an ONA Administrative Option. The State may either request FEMA to administer ONA or they may request a grant so they can administer ONA. Currently, most States opt to have FEMA administer ONA instead of choosing to administer it themselves. In order for eligible disaster survivors to receive assistance for clothing, personal property, transportation and other non-housing related needs, States must select an option for administering ONA.
The Stafford Act requires Indian tribal governments to have a FEMA-approved mitigation plan as a condition of receipt of hazard mitigation assistance (42 U.S.C. 5165). Assistance programs impacted include Public Assistance Categories C-G and the Hazard Mitigation Grant Program. The State or Tribal Mitigation Plan outlines processes for identifying the natural hazards, risks, and vulnerabilities of the area, as well as actions to reduce losses from future disasters (44 CFR 201.7).
For States that do not have a FEMA-approved State Mitigation Plan, FEMA allows 30 days from the date of the declaration for the State to submit to FEMA an approved or approvable State Mitigation Plan.
FEMA's regulations require a Governor to submit a request for an emergency or major disaster declaration within 30 days of the date of the incident. FEMA's regulations allow
The Stafford Act recognizes that primary responsibility for emergency management is at the local level; thus, Stafford Act assistance is intended to be available only as a supplement to other governmental and non-governmental resources. The Act instructs Governors to base their declaration requests on the finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. The Stafford Act is not intended to provide assistance for every event that impacts a State or county, so FEMA established evaluation factors based on this principle.
When Governors request that the President declare a major disaster which authorizes Public Assistance, FEMA uses the following criteria to make a recommendation to the President whether assistance is warranted.
• Estimated cost of the assistance.
• Localized impacts.
• Insurance coverage in force.
• Hazard Mitigation.
• Recent multiple disasters.
• Programs of other Federal assistance.
For State requests, FEMA evaluates the estimated cost of Federal and non-Federal public assistance against the statewide population, to give some measure of the per capita impact within the State. This provides a sense of proportional impact of on the population of the State. We use a figure of $1.37 per capita (FY13) as an indicator that the disaster is of such size that might warrant Federal assistance (adjusted annually based on the Consumer Price Index).
FEMA has also established a minimum of $1 million in public assistance estimated damages per disaster, based on the belief that we can reasonably expect even the least populated States to cover this level of public assistance damage.
For State requests, FEMA evaluates the impact of the disaster at the county and local government level, as well as the impact on American Indian/Alaska Native (AI/AN) Indian tribal government levels. This is because, at times, there are extraordinary concentrations of damages that might warrant Federal assistance, even if the statewide per capita is not met. This is particularly true in situations where critical facilities are involved, or where localized per capita impacts might be extremely high.
For State requests, FEMA considers the amount of insurance coverage that is in force, or should have been in force, as required by law and regulation at the time of the disaster.
For State requests, FEMA also considers the extent to which State and local government measures contributed to the reduction of disaster damages for the disaster under consideration.
For State requests, FEMA evaluates the 12-month disaster history to better understand the overall impact on the State or locality. FEMA considers declarations under the Stafford Act, as well as declarations made by the Governor, and the extent to which the State has spent its own funds on those disasters.
For State requests, FEMA also considers the programs of other Federal agencies because at times, their programs of assistance might more appropriately meet the needs created by the disaster.
When the Governor of a State requests that the President declare a major disaster that authorizes Individual Assistance, FEMA uses the following criteria to determine whether Federal assistance is needed.
• Concentration of damages.
• Trauma.
• Special populations.
• Voluntary agency assistance.
• Insurance.
For State requests, FEMA evaluates the concentrations of damages to individuals. High concentrations of damages generally indicate a greater need for Federal assistance than widespread and scattered damages throughout a State.
FEMA considers the degree of trauma to a State and to communities. Some of the conditions that might cause trauma are:
• Large numbers of injuries or deaths;
• Large scale disruption of normal community functions and services; and
• Emergency needs such as extended or widespread loss of power or water.
FEMA considers whether special populations, such as low-income, the elderly, or the unemployed are affected, and whether they may have a greater need for assistance. FEMA also
FEMA considers the extent to which voluntary agencies and State or local programs meet the needs of the disaster survivors.
FEMA considers the amount of insurance coverage because, by law, Federal disaster assistance cannot duplicate insurance coverage.
After the President declares that an emergency or major disaster exists in a State, areas within the State are designated as eligible for assistance. FEMA's regulatory definition of “designated area” eligible for assistance under each program (Public Assistance, Individual Assistance, and the Hazard Mitigation Grant Program) is “any emergency or major disaster-affected portion of a State which has been determined eligible for Federal assistance.” (44 CFR 206.2(a)(4)) In practice, FEMA typically identifies counties, parishes, independent cities, and Indian tribal governments as “designated areas” eligible for assistance.
When a request for an emergency or major disaster declaration is denied, the Governor may appeal the decision. The appeal must be submitted within 30 days of the date of the letter denying the request. The Governor can make only one appeal. The Governor should include in the appeal additional information which supports his/her request for supplemental Federal assistance.
When certain areas that were requested by the Governor are not designated, the Governor or Governor's Authorized Representative may appeal the decision. The appeal must be submitted within 30 days of the date of the letter denying the request. The Governor has only one appeal. The Governor or the Governor's Authorized Representative should include in the appeal additional information which supports his/her request.
When types of assistance that are requested by the Governor are not authorized, the Governor may appeal the decision. The appeal must be submitted within 30 days of the date of the letter denying the request. The Governor has only one appeal. The Governor should include in the appeal additional information which supports his/her request.
The Stafford Act directs FEMA to pay “not less than” 75-percent of the eligible costs for essential assistance (Stafford Act Section 403, 42 U.S.C. 5170b), repair, restoration, and replacement of damaged facilities (Stafford Act Section 406, 42 U.S.C. 5172), and debris removal (Stafford Act Section 407, 42 U.S.C. 5173). FEMA's regulations outline the criteria FEMA uses to recommend to the President an adjustment to the Federal cost share.
FEMA will recommend the President adjust the Federal cost share from 75-percent to not more than 90 percent when actual Federal obligations under the Stafford Act meet or exceed $133 (2013) per capita of State population. When recommending a cost share adjustment to the President, FEMA also considers the impact of major disaster declarations in the State during the previous 12-months.
If warranted by the needs of the disaster, FEMA may recommend up to 100 percent Federal funding for emergency work under section 403 of the Stafford Act (essential assistance) and section 407 of the Stafford Act (debris removal), including direct Federal assistance, for a limited time in the initial days of the disaster irrespective of the per capita impact.
Once the President has made a declaration determination (e.g., emergency, major disaster, denial), the Regional Administrator will notify the Governor as well as other Federal agencies and other interested parties.
Disaster Unemployment Assistance (DUA) (44 CFR 206.141 and 20 CFR 625) provides unemployment benefits and re-employment services to individuals who have become unemployed as a result of a major disaster and who are not eligible for regular State unemployment insurance (UI). FEMA has delegated to the Secretary of Labor the responsibility of administering the DUA program and payment of DUA benefit assistance.
Under the current program regulations, applicants are required to first apply and exhaust UI through the State workforce agency. Levels of UI are based on State formulas, which may be different for each State.
Disaster Legal Services (DLS) (44 CFR 206.164) provides legal assistance to low-income individuals who, prior to or as a result of the disaster, are unable to secure legal services adequate to meet their disaster-related needs. These services are typically provided to survivors through an agreement with the Young Lawyers Division of the American Bar Association.
Pub. L. 113-2.
U.S. Citizenship and Immigration Services, DHS.
Notice.
U.S. Citizenship and Immigration Services (USCIS) is announcing the newly revised Employment Eligibility Verification form, Form I-9. Employers are required to use the Form I-9 to verify the identity and employment authorization eligibility of their employees. The revisions to Form I-9 contain formatting changes and the inclusion of additional data fields. This notice contains the dates that employers should begin using the newly revised Form I-9 and announces the date that employers can no longer use prior versions of the forms.
Employment Eligibility Verification form (Form I-9) with a revision date of “(Rev. 03/08/13) N” is available for use beginning March 8, 2013. Prior versions of Form I-9 (Rev. 08/07/09) Y and (Rev. 02/02/09) N can no longer be used by the public effective May 7, 2013.
Sharon Ryan, Department of Homeland Security, U.S. Citizenship and Immigration Services, Verification Division, 131 M Street NE., Suite 200, Washington, DC 20529. For information about the employment eligibility verification process, employers can call the Verification hotline at 888-464-4218 (877-875-6028 for TTY) and employees can call 888-897-7781 (877-875-6028 for TTY) for further information. The public can also email Verification at
Employers and certain agricultural recruiters and referrers for a fee (referred to collectively as “employers”) are required to verify on Employment Eligibility Verification form (Form I-9) the employment authorization and identity of each individual they hire (or recruit or refer for a fee if applicable), for employment in the United States.
Form I-9 contains three sections. The purpose of Section 1 of the form is to collect, at the time of hire identifying information about the employee (and preparer or translator if used), and for the employee to attest to whether he or she is a U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work in the United States. The employee must also present documentation for review evidencing his or her identity and authorization to engage in this employment. The purpose of Section 2 of the form is to collect, within 3 business days of the employee's hire, identifying information from the employer and information regarding the identity and employment authorization documentation presented by the employee and reviewed by the employer. The purpose of Section 3 of the form is to collect information regarding the continued employment authorization of the employee. This section, if applicable, is completed at the time that the employee's employment authorization and/or employment authorization documentation recorded in either Section 1 or Section 2 of the form expires. This section may also be used if the employee is rehired within 3 years of the date of the initial execution of the form and to record a name change if Section 3 is otherwise completed.
Employers are required to maintain Forms I-9 for as long as an individual works for the employer and for the required retention period for the termination of an individual's employment [either 3 years after the date of hire or 1 year after the date employment ended, whichever is later]. Also, employers are required to make their employees' Forms I-9 available for inspection upon request by officers of U.S. Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices, and the Department of Labor. Failure of an employer to ensure proper completion and retention of Forms I-9 may subject the employer to civil money penalties, and, in some cases, criminal penalties.
On March 27, 2012, USCIS published a 60-day information collection notice in the
The newly revised Form I-9 makes several improvements designed to minimize errors in form completion. The key revisions to Form I-9 include:
• Adding data fields, including the employee's foreign passport information (if applicable) and telephone and email addresses.
• Improving the form's instructions.
• Revising the layout of the form, expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents).
In this notice, USCIS is announcing that employers should begin using Form I-9 with a revision date of “(Rev. 03/08/13)N” to comply with their employment eligibility verification responsibilities. The revision date is located in the bottom right-hand corner of the form.
After May 7, 2013, all prior versions of Form I-9 can no longer be used by the public. The public can download the new Form I-9 at
Employers must use the new Form I-9 immediately; however, USCIS recognizes that some employers may need additional time in order to make necessary updates to their business processes to allow for use of the new Form I-9. USCIS recognizes that modifications to electronic systems may
Note that employers do not need to complete the new Form I-9 (Rev. 03/08/13)N for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Unnecessary verification may violate the anti-discrimination provision at section 274B of the INA, 8 U.S.C. 1324b, which is enforced by DOJ's Office of Special Counsel for Immigration Related Unfair Employment Practices.
Employers may access the new Form I-9 (Rev. 03/08/13)N online by visiting the USCIS Web site at
A Spanish-language version of the new Form I-9 is available at
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day Notice and request for comments; Extension of an existing collection of information: 1651-0018.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning the Ship's Stores Declaration (CBP Form 1303). This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Written comments should be received on or before May 7, 2013, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual costs burden to respondents or record keepers from the collection of information (a total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day notice and request for comments; Extension of an existing information collection: 1651-0091.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning the Andean Trade Preferences. This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3505(c)(2)).
Written comments should be received on or before May 7, 2013, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Requests for additional information
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3505(c)(2)). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) estimates of capital or start-up costs and costs of operations, maintenance, and purchase of services to provide information. The comments that are submitted will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document the CBP is soliciting comments concerning the following information collection:
The ATPA declaration format is provided for by 19 CFR Part 10.201-10.207. The type of information collected includes the processing operations performed on articles, the material produced in a beneficiary country or in the U.S., and a description of those processing operations. CBP Form 17, Andean Trade Preference Act (ATPA) Declaration, may be used when claiming preferential treatment under ATPA. This form is accessible at:
ATPDEA is provided for by 19 CFR 10.251-10.257. Claims under ATPDEA are submitted using CBP Form 449, Andean Trade Promotion and Drug Eradication Act (ATPDEA) Certificate of Origin. This form can be used only when claiming ATPDEA preferential treatment on the goods listed on the back of the form. CBP Form 449 is accessible at:
Office of the Secretary, Interior.
Notice of meeting.
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., 2, the U.S. Department of the Interior, Office of the Secretary, Wildland Fire Executive Council (WFEC) will meet as indicated below.
The next meeting will be held on April 5, 2013.
The meetings will be held from 10:00 a.m. to 1:00 p.m. on April 5 at the Main Interior Building, 1849 C Street NW., Washington, DC 20240, OWF Conference Room, Room 2654.
Shari Eckhoff, Designated Federal Officer, 300 E Mallard Drive, Suite 170, Boise, Idaho 83706; telephone (208) 334-1552; fax (208) 334-1549; or email
The WFEC is established as a discretionary advisory committee under the authorities of the Secretary of the Interior and Secretary of Agriculture, in furtherance of 43 U.S.C. 1457 and provisions of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
The purpose of the WFEC is to provide advice on coordinated national-level wildland fire policy and to provide leadership, direction, and program oversight in support of the Wildland Fire Leadership Council. Questions related to the WFEC should be directed to Shari Eckhoff (Designated Federal Officer) at
Questions about the agenda or written comments may be emailed or submitted by U.S. Mail to: Department of the Interior, Office of the Secretary, Office of Wildland Fire, Attention: Shari Eckhoff, 300 E. Mallard Drive, Suite 170, Boise, Idaho 83706-6648. WFEC requests that written comments be received by the Friday preceding the scheduled meeting. Attendance is open to the public, but limited space is available. Persons with a disability requiring special services, such as an interpreter for the hearing impaired, should contact Ms. Eckhoff at (202) 527-0133 at least seven calendar days prior to the meeting.
Office of the Secretary, Interior.
Notice of Meeting Change.
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., 2, the U.S. Department of the Interior, Office of the Secretary, Wildland Fire Executive Council (WFEC) will meet as indicated below.
The next meeting will be held on March 19, 2013.
The meetings will be held from 3:00 p.m. to 5:00 p.m. (Eastern Timezone) on March 19. This will be a virtual meeting being held at the Peppermill Resort, 2707 South Virginia Street, Reno, NV 89502 and via teleconference for those not in Reno.
Shari Eckhoff, Designated Federal Officer, 300 E Mallard Drive, Suite 170, Boise, Idaho 83706; telephone (208) 334-1552; fax (208) 334-1549; or email
The WFEC is established as a discretionary advisory committee under the authorities of the Secretary of the Interior and Secretary of Agriculture, in furtherance of 43 U.S.C. 1457 and provisions of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-742j), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
The purpose of the WFEC is to provide advice on coordinated national-level wildland fire policy and to provide leadership, direction, and program oversight in support of the Wildland Fire Leadership Council. Questions related to the WFEC should be directed to Shari Eckhoff (Designated Federal Officer) at
Questions about the agenda or written comments may be emailed or submitted by U.S. Mail to: Department of the Interior, Office of the Secretary, Office of Wildland Fire, Attention: Shari Eckhoff, 300 E. Mallard Drive, Suite 170, Boise, Idaho 83706-6648. WFEC requests that written comments be received by the Friday preceding the scheduled meeting. Attendance is open to the public, but limited space is available. Persons with a disability requiring special services, such as an interpreter for the hearing impaired, should contact Ms. Eckhoff at (202) 527-0133 at least seven calendar days prior to the meeting.
Office of the Secretary, Interior.
Notice.
The U.S. Fish and Wildlife Service of the Department of the Interior is hosting a Vendor Outreach Workshop for small businesses in the Southeast region of the United States that are interested in doing business with the Department. This outreach workshop will review market contracting opportunities for the attendees. Business owners will be able to share their individual perspectives with Contracting Officers, Program Managers and Small Business Specialists from the Department.
The workshop will be held on April 8, 2013, from 8:30 a.m. to 4:00 p.m.
The workshop will be held at the Georgia Tech Research Institute Conference Center, 250 14th Street NW., Atlanta, GA 30318. For registration information, please call (404) 679-4146 or email
Nijua Heard, Small Business Specialist/Contract Officer, U.S. Fish and Wildlife Service, Region 4, Atlanta, GA 30345, telephone (404) 679-4146.
In accordance with the Small Business Act, as amended by Public Law 95-507, the Department has the responsibility to promote the use of small and small disadvantaged business for its acquisition of goods and services. The Department is proud of its accomplishments in meeting its business goals for small, small disadvantaged, 8(a), woman-owned, HUBZone, and service-disabled veteran-owned businesses. In Fiscal Year 2012, the Department awarded over 50 per cent of its $2.7 billion in contracts to small businesses and in Fiscal Year 2011 also awarded over 50 percent of its $2.7 billion in contracts to small businesses.
This fiscal year, the Office of Small and Disadvantaged Business Utilization is reaching out to our internal stakeholders and the Department's small business community by conducting several vendor outreach workshops. The Department's presenters will focus on contracting and subcontracting opportunities and how small businesses can better market services and products.
These outreach events are a new and exciting opportunity for the Department's bureaus and offices to improve their support for small business. Additional scheduled events are posted on the Office of Small and Disadvantaged Business Utilization Web site at
U.S. Geological Survey, Interior.
Notice of an extension of an information collection (1028-0090).
We (the U.S. Geological Survey) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. To comply with the Paperwork Reduction Act of 1995 (PRA) and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This collection is scheduled to expire on May 31, 2013.
You must submit comments on or before May 7, 2013.
You may submit comments on this information collection to the Information Collection Clearance Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive MS 807, Reston, VA 20192 (mail); (703) 648-7199 (fax); or
To request additional information please contact Charles Mandeville at (703) 648-4773 or by email at
During FY13 and FY15, the Volcano Hazards Program (VHP) will provide funding for improvement of the volcano and other monitoring systems and other monitoring-related activities that contribute to mitigation of volcano hazards. This notice concerns the collection of information that is sufficient and relevant to evaluate and select proposals for funding under the VHP. We will accept proposals from State geological surveys and academic institutions requesting funds to assist in the monitoring of active volcanoes and to conduct volcano-related research. Financial assistance will be awarded on a competitive basis following the evaluation and ranking of State and academic proposals. VHP proposals will be reviewed by a peer panel of six (6) members. Five (5) members will be Department of the Interior representatives; and one (1) member will be an external representative. To submit a proposal, you must follow the written guideline (that will be made available at
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 Federal Acknowledgment of Tribes authorized by OMB Control Number 1076-0104.
Submit comments on or before May 7, 2013.
You may submit comments on the information collection to R. Lee Fleming, Director, Office of Federal Acknowledgment, Assistant Secretary—Indian Affairs, 1951 Constitution Avenue NW., MS-34B SIB, Washington, DC 20240; facsimile: (202) 219-3008; email:
R. Lee Fleming, (202) 513-7650.
The Assistant Secretary—Indian Affairs is seeking renewal of the approval for the information collection conducted under 25 CFR part 83, to establish whether a petitioning group has the characteristics necessary to be acknowledged as having a government-to-government relationship with the United States. Federal recognition makes the group eligible for benefits from the Federal Government. Approval for this collection expires July 31, 2013. Three forms are used as part of this information collection.
The Assistant Secretary—Indian Affairs 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, DOI, and Indian Health Service, HHS.
Notice of request for comments.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, which requires 60 days for public comment on proposed information collection projects, the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) are publishing for comment, a summary of a proposed information collection, titled “Indian Self-Determination and Education Assistance Contracts, 25 CFR part 900,” to be submitted to the Office of Management and Budget (OMB) for review. The information is collected to process contracts, grants or cooperative agreements (contracts) for award by BIA and IHS, as authorized by the Indian Self-Determination and Education Assistance Act (ISDEAA), as amended (25 U.S.C. 450 et seq.). This previously approved information collection (OMB Control Number 1076-0136) expires May 31, 2013.
Submit comments on or before May 7, 2013.
Terry Parks through the methods listed in the above section or by calling (202) 513-7625 regarding the BIA information collection activities (OMB Control No. 1076-0136); and contact Roselyn Tso through the methods listed in the above
Representatives of the BIA and IHS seek renewal of the approval for information collections conducted under their joint rule, 25 CFR part 900, implementing the ISDEAA. The Act requires the joint rule to govern how contracts are awarded to Indian tribes, thereby avoiding the unnecessary burden or confusion associated with two sets of rules and information collection requirements. See 25 U.S.C. 450k(a)(2)(A)(ii). The joint rule at 25 CFR part 900 was developed through negotiated rulemaking with tribes in 1996 and governs, among other things, what must be included in a tribe's initial ISDEAA contract proposal to the BIA or IHS. There is no change to the approved burden hours for this information collection.
The information requirements for this joint rule represent significant differences from other agencies in several respects. Under the Act, the Secretaries of Health and Human Services and the Department of the Interior are directed to enter into self-determination contracts with tribes upon request, unless specific declination criteria apply, and, generally, tribes may renew these contracts annually, whereas other agencies provide grants on a discretionary or competitive basis. Both the BIA and IHS award contracts for multiple programs whereas other agencies usually award single grants to tribes.
The BIA and IHS use the information collected to determine applicant eligibility, evaluate applicant capabilities, protect the service population, safeguard Federal funds and other resources, and permit the Federal agencies to administer and evaluate contract programs. Tribal governments or tribal organizations provide the information by submitting Public Law 93-638 contract proposals to the appropriate Federal agency. No third party notification or public disclosure burden is associated with this collection.
The BIA and IHS request 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 request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information for Navajo Partitioned Lands Grazing Permits authorized by OMB Control Number 1076-0162. This information collection expires May 31, 2013.
Submit comments on or before May 7, 2013.
You may submit comments on the information collection to David Edington, Office of Trust Services, 1849 C Street NW., Mail Stop 4637, Washington, DC 20240; facsimile: (202) 219-0006; email:
David Edington, (202) 513-0886.
BIA is seeking renewal of the approval for the information collection conducted under 25 CFR part 161, implementing the Navajo-Hopi Indian Relocation Amendments Act of 1980, 94 Stat. 929, and the Federal court decisions of
This information collection allows BIA to receive the information necessary to determine whether an applicant to obtain, modify, or assign a grazing permit on Navajo Partitioned Lands is eligible and complies with all applicable grazing permit requirements.
The 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.
This notice publishes the Liquor Control Ordinance No. 2012-07 of the Bishop Paiute Tribe. The Ordinance regulates and controls the possession, sale and consumption of liquor within the Indian Country of the Bishop Paiute Tribe. The land is trust land and this Ordinance allows for the possession and sale of alcoholic beverages within the jurisdiction of the Bishop Paiute Tribe. This Ordinance will increase the ability of the tribal government to control the distribution and possession of liquor within their jurisdiction, and at the same time will provide an important source of revenue, the strengthening of the tribal government and the delivery of tribal services.
Harley Long, Tribal Government Officer, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, CA 95825, Phone: (916) 978-6067; Fax: (916) 916-6099: or De Springer, Office of Indian Services, Bureau of Indian Affairs, 1849 C Street NW., MS-4513-MIB, Washington, DC 20240; Telephone (202) 513-7640.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Bishop Tribal Council duly adopted Liquor Control Ordinance No. 2012-07 by Resolution T2012-46 on October 29, 2012.
The Bishop Paiute Tribal Liquor Control Ordinance No. 2012-07 shall read as follows:
The Bishop Paiute Tribe (Tribe), aka the Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony (Tribe), a federally recognized Indian Tribe located on the Bishop Paiute Reservation, established under Act of Congress of April 20, 1937 (50 Statutes 70), in Inyo County, California, with inherent sovereignty and a government to government relationship with the United States of America, has all the rights accorded to federally recognized tribes, with the Bishop Paiute Tribal Council recognized as the duly elected governing body of the Tribe.
This Ordinance is hereby enacted by the Bishop Tribal Council (Tribal Council) in exercising its inherent legal authority as the governing body of the Bishop Paiute Tribe.
Additional authority for the adoption of this ordinance is found in Federal Law at 18 U.S.C. 1161, providing in part that the Indian Liquor Laws found in the United States Code, shall not apply to any act or transaction with any area of Indian Country, provided such act or transaction is in conformity with both the laws of the state in which such act or transaction occurs, and with the laws duly adopted by the Tribe having jurisdiction over such areas of Indian Country.
The purpose of this Ordinance is to regulate the sale, possession and use of alcoholic liquor on the Bishop Paiute Reservation and other lands subject to Tribal jurisdiction with the exception of Blocks thirty seven (37) and thirty eight (38) which are addressed by General Council Ordinance adopted on August 22, 1961. This Ordinance (2012-07) does not change or affect any provisions of the General Council Ordinance relating to Blocks thirty seven (37) and thirty eight (38).
In construing the provisions of this Ordinance, the following words or phrases shall have the meaning designated unless a different meaning is
01. “Licensed Premises” means any Tribally authorized establishment at which liquor is sold and, for the purpose of this Ordinance, includes stores only a portion of which are devoted to sale of liquor or beer, any bar, or any public place designated by the Tribes as a licensed establishment for the sale of liquor/alcohol beverages under this ordinance.
.02 “Liquor/Alcohol Beverage” includes all alcohol, spirits, wine, beer, and any liquid or solid containing alcohol, spirits, wine or beer, and which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed or combined with other substances. Alcohol and liquor are interchangeable in this ordinance.
.03 “Tribal Council” means the Bishop Tribal Council, the duly elected governing body of the Tribe.
.04 “Tribal Land” means all lands within the exterior boundaries of the Bishop Paiute Reservation and such other lands as may hereafter be acquired by the Tribe, whether within or without the present exterior boundaries, under any grant, transfer, purchase, gift, adjudication, executive order, Act of Congress, or other means of acquisition.
.05 “Tribal Court” means the Bishop Paiute Tribal Court.
.01 Sales of Liquor/Alcohol—The sale of alcoholic beverages by business enterprises owned by and/or subject to the control of the Tribe under this ordinance shall be lawful within the exterior boundaries of the Bishop Paiute Reservation, provided such sales are in conformity with the laws of the State of California governing the sale of alcoholic beverages and this ordinance.
.02 Sales for Cash—All liquor/alcohol sales on Tribal Land shall be on a cash-only basis and no credit shall be extended to any person, organization, or entity, except that this provision does not prevent the use of major credit cards such as, but not limited to Visa or American Express.
.03 Sales for Personnel Consumption—All liquor/alcohol sales shall be for the personal use and consumption of the purchaser. Resale of any liquor/alcohol purchased on or off Tribal Lands is prohibited. Any person who is not licensed pursuant to this ordinance and who purchases liquor/alcoholic beverages on or off Tribal Lands and sells it on Tribal Lands within Tribal jurisdiction, whether in the original container or not, shall be guilty of a violation of this ordinance and shall be subject to penalties as set forth herein.
Nothing in this section shall prohibit a tribal licensee or the Tribe from purchasing liquor from an off reservation source for resale on the Reservation or the delivery to the Tribe for a tribal licensee of liquor purchased from off-reservation sources for resale on the Reservation.
.01 Prohibition of the unlicensed sale of liquor/alcohol—No person shall import for sale, manufacture, distribute, or sell any liquor/alcohol beverages within the reservation without first applying for and obtaining a Tribal liquor/alcohol license from the Tribal Council issued in accordance with the provisions of this ordinance. Prior to the Tribal Council issuing such liquor/alcohol license, the applicant must possess a valid California liquor/alcohol license.
.02 Authorize to Sell Liquor/Alcohol—Any person applying for and obtaining a liquor/alcohol license under the provisions of this ordinance shall have the right to engage in only liquor/alcohol transactions expressly authorized by such license and only at those specific places or areas designated in the license.
.03 Types of license—The Tribal Council shall have the authority is issue the following types of liquor licenses within the reservation.
(a) “Retail on-sale general license” means a license authorizing the applicant to sell liquor/alcoholic beverages at retail to be consumed by the buyer only on the premises or at the location designated in the license.
(b) “Retail on-sale beer and wine license” means a license authorizing the applicant to sell beer and wine at retail to be consumed by the buyer only on the premises or at the location designated in the license.
(c) “Retail off-sale general license” means a license authorizing the applicant to sell liquor/alcoholic beverages at retail to be consumed by the buyer off the premises or at a location other than the one designated in the license.
(d) “Retail off-sale beer and wine license” means a license authorizing the applicant to sell beer and wine at retail to be consumed by the buyer off the premises or at a location other than the one designated in the license.
(e) “Manufacture's license” means a license authorizing the applicant to manufacture liquor/alcoholic beverages for the purpose of sale on the reservation.
The drinking age for individuals within the exterior boundaries of the Bishop Paiute Reservation and/or general governmental jurisdiction of the Tribe shall be the same as that of the State of California, which is currently 21 years. No person under the age of 21 years shall purchase, possess or consume any liquor/alcoholic beverage. At such time, if any, as California Business and Profession Code Section 25658, which sets the drinking age for the State of California, is repealed or amended to raise or lower the drinking age within California, the Tribe shall operate concurrently with the State of California as to legal liquor/alcohol drinking age limits.
.01 Sale or Service of Liquor/Alcohol by licensee's minor employees
(a) The holder of a license issued under this Ordinance may employee persons
(b) Except as stated in this section, it shall be unlawful to hire any person to work in connection with the sale and service of liquor/alcoholic beverage in a tribally licensed liquor/alcohol establishment if such person is under the age of 21 years.
Licensed premises establishments must post signs that conform to applicable State, Federal and Tribal Laws.
.01 Sale of Possession of with the intent of sell without a Liquor/Alcohol License—Any person who sells or offers for sale or distributes or transport(s) in any manner, any liquor in violation of this ordinance, or who possesses liquor/alcohol with intent to sell or distribute without a Tribal liquor license, shall be guilty of a violation of this ordinance.
.02 Sale(s) to Intoxicated Persons—Any person who knowingly sells liquor/alcohol to any person under the
.03 Consuming Liquor/Alcohol in Public Conveyance—Any person engaged wholly or in part in the public conveyance business of carrying passengers for hire and every agent, servant, or employee or such person, who knowingly permits any person to drink any liquor/alcohol in any vehicle that carries passengers for hire, while such vehicle in on Tribal land, shall be guilty of a violation of this ordinance. Any person who drinks any liquor/alcohol in any vehicle that carries passengers for hire, while such vehicle is on Tribal land, shall be guilty of a violation of this ordinance.
.04 Liquor/Alcohol may not be given as a prize, gift, premium or consideration for a lottery, contest, game of chance or skill, or competition of any kind.
.01 Enforcement—The Tribe through its Tribal Council and Bishop Paiute Tribal Court (Tribal Court) and duly authorized security personnel, shall have the authority to enforce this Ordinance which shall include confiscating any liquor/alcohol manufactured, introduced, sold or possessed located on Tribal Lands in violation of this ordinance. The Tribal Council shall be empowered to sell confiscated liquor/alcohol for the benefit of the Tribe after receiving Tribal Court approval, and to develop and approve such regulations as may become necessary for the enforcement of this Ordinance.
.02 Jurisdiction—Any violations of this ordinance shall constitute a public nuisance under Tribal law. It shall be the Tribal Council or its duly authorized security personnel who may initiate and maintain an action in the Tribal Court to abate and permanently enjoin any nuisance declared under this ordinance and to enforce any and all provisions and penalties under this ordinance. The Tribal Council shall authorize and implement the development of Court rules and procedures that will ensure due process as to all Tribal Court proceedings under this ordinance. Any actions taken under this section 8 may be in addition to any other penalties provided in this ordinance or adopted by the Tribal Council from time to time. This ordinance when approved by the United States Department of the Interior and published in the
.03 General penalties—The Tribe through the Tribal Court may implement monetary fines not to exceed $500 for each violation and/or causing the suspension or revocation of a liquor/alcohol license. The Tribal Court may adopt by resolution a separate schedule of fines for each type of violation, taking into account its seriousness and the threat it may pose to the general health and welfare of tribal members. This schedule will include violations for repeat offenders. Any penalties provided herein shall in addition to any criminal penalties, which may be imposed by the Tribal Court through an adopted separate ordinance that conforms to federal law.
.04 Conflicting provisions—Whenever any conflict occurs between the provisions of this ordinance or the provisions of any other ordinance of the Tribe, the stricter of such provisions shall apply.
.05 Severability—If any provision or application of this ordinance is determined invalid such determination shall not invalidate the remaining portions of this ordinance.
By enacting this ordinance, the Tribe does not waive, or limit or modify its sovereign immunity from unconsented suit or any other judicial or administrative proceeding except as specifically provided herein.
The Tribe agrees and grants a limited waiver of its sovereign immunity solely for the purpose of authorizing the State of California through or on behalf of the California State Department of Alcohol Beverage Control or any other appropriate sState agency to bring an action in courts of appropriate jurisdiction with the State of California or California State Administrative Proceedings, for the purpose of providing the State of California with remedies to enforce all laws, rules, regulations and rights the state has relating to the issuance of a liquor/alcohol beverage license to the Tribe.
The Tribal Council may revoke or suspend the license for reasonable cause after providing the licensee with notice and an opportunity to participate in a hearing at which time the licensee is given an opportunity to respond to any claims against it alleging a violation of this Ordinance, and to demonstrate why the license should not be revoked or suspended. Any determination of the Tribal Council concerning revocation or suspension of a license is final. The Tribal Council shall direct its authorized representatives to prepare appropriate rules of procedure concerning how a revocation/suspension hearing is to be held and the form of notice to be given to a licensee subject to potential revocation or suspension of its license.
The premises on which liquor is sold or distributed shall be open for inspection by the Tribal Council and/or its authorized representative with respect to the enforcement of this Ordinance at all reasonable times for the purpose of ascertaining whether the rules and regulations of the Tribal Council and this Ordinance are being complied with.
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) is extending the public scoping period to prepare an EIS for the Navajo Nation Integrated Weed Management Plan on the Navajo Indian Reservation.
Scoping comments are due on March 20, 2013.
Renee Benally at (928) 283-2210; email:
The BIA published a Notice of Intent in the
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) is extending the review period for the Final Environmental Impact Statement (FEIS) for the Spokane Tribe of Indians West Plains Casino and Mixed Use Project, City of Airway Heights, Spokane County, Washington.
Comments related to the FEIS must be received by the BIA by May 1, 2013. The Record of Decision on the proposed action will be issued on or after that date.
Dr. B.J. Howerton, Bureau of Indian Affairs, Northwest Region, 911 Northeast 11th Avenue, Portland, Oregon 97232; fax (503) 231-2275; phone (503) 231-6749.
The BIA published a Notice of Availability for the FEIS in the
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information that assists the BLM in preventing unnecessary or undue degradation of public lands by operations authorized by the mining laws, and in obtaining financial guarantees for the reclamation of public lands. The Office of Management and Budget (OMB) has assigned control number 1004-0194 to this information collection.
Please submit comments on the proposed information collection by May 7, 2013.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0194” regardless of the form of your comments.
Adam Merrill, at 202-912-7044. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Mr. Merrill.
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) The accuracy of the agency's burden estimates; (3) Ways to enhance the quality, utility and clarity of the information collection; and (4) Ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The following information is provided for the information collection:
• Form 3809-1, Surface Management Surety Bond;
• Form 3809-2, Surface Management Personal Bond;
• Form 3809-4, Bond Rider Extending Coverage of Bond to Assume Liabilities for Operations Conducted by Parties Other Than the Principal;
• Form 3809-4a, Surface Management Personal Bond Rider; and
• Form 3809-5, Notification of Change of Operator and Assumption of Past Liability.
The estimated annual burdens for this collection are itemized in the following table:
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a draft Resource Management Plan (RMP) revision and draft Environmental Impact Statement (EIS) for the Miles City Field Office and by this notice is announcing the opening of the comment period. The RMP/EIS revision will replace the Powder River and Big Dry RMPs.
To ensure that comments will be considered, the BLM must receive written comments on the draft RMP/EIS within 90 days following the date the Environmental Protection Agency publishes the notice of the draft RMP/EIS in the
You may submit comments related to the Miles City draft RMP/EIS by any of the following methods:
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Whenever possible, please reference the page or section in the draft RMP/EIS to which the comment applies.
Copies of the Miles City draft RMP/EIS are available in the Miles City Field Office at the above address or may be viewed at:
Mary Bloom, Project Manager, BLM, telephone 406-233-2800; address Miles City Field Office, 111 Garryowen Road, Miles City, MT; email
Public land management within the planning area is currently guided by the Big Dry RMP and the Powder River RMP, which were completed in 1996 and 1985, respectively.
The intent of the planning process is to analyze and update public land and resource management objectives within the planning area. The planning area includes all of the BLM-administered surface (2,759,155 acres) and mineral estate (11,032,026 acres) managed by the Miles City Field Office in Carter, Custer, Daniels, Dawson, Fallon, Garfield, McCone, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Treasure, and Wibaux counties and portions of Big Horn and Valley counties in Montana.
Public scoping in preparation of the draft RMP/EIS was initiated in February
Five alternative management scenarios present a range of management actions to address the issues: Alternative A is existing management (No Action); Alternative B emphasizes soil, water, air, vegetation, wildlife, and cultural resource protection; Alternative C emphasizes local economies; Alternative D encourages development while maintaining existing land uses; and Alternative E is the BLM's Preferred Alternative. The draft RMP/EIS discloses the environmental consequences of each alternative. Identification of a Preferred Alternative does not represent the final agency decision. The BLM encourages public comment on all alternatives and management actions described in the draft RMP/EIS.
Consistent with BLM Washington Office Instruction Memorandum No. 2010-0117,
Pursuant to 43 CFR 1610.7-2(b), this notice announces the public comment period on proposed areas of critical environmental concern (ACECs). The draft RMP/EIS evaluate 26 ACEC nominations. The BLM proposes designation and special management for 21 areas. Five areas that were evaluated are not proposed for ACEC designation, including areas identified as Greater Sage-Grouse protection priority areas. The 21 areas proposed for designation and the resource use limitations which would occur if formally designated are described below. All resource use limitations described below are subject to valid existing rights.
• The Cedar Creek Battlefield (1,022 public surface acres) would be designated an ACEC. This significant battlefield would be managed to enhance and protect cultural resources. Management actions proposed for this area are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with a no surface occupancy (NSO) stipulation, geophysical exploration would be closed, off-highway vehicle (OHV) use would be limited to existing roads and trails, the area would be managed as a right-of-way (ROW) avoidance area, livestock grazing would be allowed, and management would be per visual resource management (VRM) Class II.
• Flat Creek (547 acres) and Powderville (9,518 acres) areas would also be designated ACECs. Management actions proposed for these significant paleontological areas are: mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, and livestock grazing would be allowed. The Powderville area would be managed per VRM Classes II and III, and the Flat Creek area would be managed per VRM Classes III and IV.
• The Long Medicine Wheel (179 acres) and Powers-Yonkee (40 acres) areas would be designated ACECs. Management actions proposed for these significant cultural resource sites are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be closed, ROWs would be excluded, livestock grazing would be allowed, and management would be per VRM Class II.
• The Walstein area (2,054 acres) would be designated an ACEC. Management actions proposed for this significant cultural and paleontological area are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed within the significant cultural resource sites within the ACEC, OHV use would be closed, the area would be managed as a ROW avoidance area, livestock grazing would be allowed, and management would be per VRM Class II.
• The Battle Butte Battlefield ACEC would increase in size from 121 acres to 320 acres and continue to be designated and managed as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, ROWs would be excluded, livestock grazing would be allowed, and management would be per VRM Class II.
• Reynolds Battlefield would increase in size from 324 acres to 922 acres and continue to be designated and managed as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, the area would be managed as a ROW avoidance area, livestock grazing would be allowed, and management would be per VRM Class II.
• The Big Sheep Mountain ACEC (363 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, geothermal leasing would be closed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, livestock grazing would be allowed, and management would be per VRM Class II.
• The Hoe ACEC (147 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, geothermal leasing would be closed, 19 acres of the ACEC would be closed to livestock grazing, and management would be per VRM Class II.
• The Jordan Bison Kill ACEC (160 acres) would continue to be managed as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration
• The Powder River Depot ACEC (1,401 acres) would continue to be managed and designated as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, geothermal leasing would be closed, livestock grazing would be excluded on 219 acres of the ACEC, and management would be per VRM Classes I (Terry Badlands Wilderness Study Area overlap) and II (remainder of the ACEC).
• The Seline ACEC (80 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant cultural resource site are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, geothermal leasing would be closed, livestock grazing would be allowed, and management would be per VRM Class II.
• The Smoky Butte ACEC (80 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant geologic area are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would be allowed, OHV use would be closed, the area would be managed as a ROW avoidance area, livestock grazing would be allowed, and management would be per VRM Class III.
• The Finger Buttes ACEC (1,520 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant scenic area are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, geothermal leasing would be closed, and management would be per VRM Class II.
• The Ash Creek Divide (7,921 acres), Bug Creek (3,837 acres), Hell Creek (19,373 acres), and Sand Arroyo (9,052 acres) ACECs would continue to be designated and managed as ACECs. Management actions proposed for these significant paleontological areas are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would be allowed, OHV use would be limited to existing roads and trails, ROWs would be allowed, geothermal leasing would be closed, livestock grazing would be allowed, and management would be per VRM Classes II through IV.
• The Black-footed Ferret Reintroduction ACEC (11,221 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant habitat are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with a controlled surface use stipulation, geophysical exploration would be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, livestock grazing would be allowed, and management would be per VRM Classes I (overlap with Terry Badlands WSA), II, III, and IV.
• The Piping Plover ACEC (15 acres) would continue to be designated and managed as an ACEC. Management actions proposed for this significant habitat are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be limited to existing roads and trails, the area would be managed as a ROW avoidance area, geothermal leasing would not be allowed, livestock grazing would not be allowed from May 1 through July 15 of each year, and management would be per VRM Class II.
• The Yonkee site (40 acres) would be designated an ACEC. This significant cultural resource site would be managed to enhance and protect cultural resources. Management actions proposed for this area are: Mineral material sales and permits would be closed, oil and gas leasing would be allowed with an NSO stipulation, geophysical exploration would not be allowed, OHV use would be closed, ROWs would be excluded, livestock grazing would be allowed, and management would be per VRM Class II.
Following the close of the public review and comment period on this draft RMP/EIS, public comments will be used to prepare the BLM Miles City Proposed RMP and final EIS. The BLM will respond to each substantive comment received during the draft RMP/EIS review period by making appropriate revisions to the document or by explaining why a comment did not warrant a change. After comments have been considered and the draft RMP/EIS has incorporated all potential revisions to develop the proposed RMP and final EIS, a notice of the availability for the Proposed RMP and final EIS will be published in the
Please note that public comments and information submitted including names, street addresses, and email addresses of persons who submit comments will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
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 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice.
The Assistant Secretary of the Interior for Policy, Management and Budget proposes to withdraw 5,670.71 acres of public lands to protect special status plant and animal species, cultural resources, and scenic values contained within the areas designated as the Wind Mountain, Cornudas Mountain, and Alamo Mountain Areas of Critical Environmental Concern (ACEC). This notice segregates the lands for up to 2 years from settlement, sale, location,
Comments must be received by June 6, 2013.
Comments should be sent to the BLM Las Cruces District Office, 1800 Marquess Street, Las Cruces, NM 88005.
Edward Seum, Lands and Minerals Supervisor at the address above or by telephone at 575-525-4300. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual. 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.
The Bureau of Land Management (BLM) filed an application requesting the Assistant Secretary for Policy, Management and Budget to withdraw, subject to valid existing rights, the following described lands from settlement, sale, location, and entry under the general land laws, including the United States mining laws, for a period of 20 years:
The area described contains 2,360.71 acres, more or less, in Otero County.
The area described contains 850 acres, more or less, in Otero County.
The area described contains 2,460 acres, more or less, in Otero County.
The total areas described aggregate 5,670.71 acres, more or less, in Otero County.
The BLM's petition has been approved by the Assistant Secretary for Policy, Management and Budget. Therefore, the petition constitutes a withdrawal proposal of the Secretary of the Interior (43 CFR 2310.1-3(e)).
The purpose of the withdrawal is to protect special status plant and animal species, cultural resources, and scenic values contained within the areas designated as the Wind Mountain, Cornudas Mountain, and Alamo Mountain ACECs.
The use of a right-of-way, interagency agreement, or cooperative agreement would not adequately constrain non-discretionary uses that could irrevocably destroy the area's cultural resources, scenic values, and special status plant and animal species habitat.
There are no suitable alternative sites for the requested withdrawal.
No water rights would be needed to fulfill the purpose of the requested withdrawal.
Records relating to the application may be examined by contacting Edward Seum or Bill Childress of the BLM Las Cruces District Office at the above address or phone number.
On or before June 6, 2013, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal may present their views in writing to the BLM Las Cruces District Office at the address noted above. Comments, including names and street addresses of respondents, will be available for public review at the BLM Las Cruces District Office, 1800 Marquess, Las Cruces, New Mexico, during regular business hours, which are 7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays.
Individual respondents may request confidentiality. 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 view, we cannot guarantee that we will be able to do so.
Notice is hereby given that a public meeting will be held in connection with the proposed withdrawal. A notice of the time and place of the public meeting will be announced at least 30 days in advance in the
The application will be processed in accordance with the regulations set forth in 43 CFR part 2300.
For a period until March 9, 2015, the lands described in this notice will be segregated from settlement, sale, location and entry under the general land laws, including the United States mining laws, unless the application is denied or cancelled or the withdrawal is approved prior to that date.
Licenses, permits, cooperative agreement, or discretionary land use authorizations of a temporary nature which will not significantly impact the values to be protected by the withdrawal may be allowed with the approval of the authorized officer of the BLM during the segregative period.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM), Lower Sonoran Field Office (LSFO), proposes a noncompetitive direct sale of one land parcel totaling approximately 160 acres in Pinal County, Arizona. The public land would be sold to the Ak-Chin Indian Community (Community) at not less than the appraised fair market value (FMV). The sale will be subject to the applicable provisions of Sections 203 and 209 of the Federal Land Policy and Management Act of 1976, as amended (FLPMA) and sales and mineral conveyance regulations.
Comments regarding the proposed direct sale must be received by the BLM within 45 days of the date this notice is published in the
Written comments concerning the proposed direct sale should be sent to Penny Foreman, Acting Field Manager, LSFO, Phoenix
JoAnn Goodlow, Realty Specialist, at the above address or phone 623-580-5548. 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.
The following parcel of public land is proposed for direct sale to the Community and is legally described as follows:
The area described contains 160 acres, more or less, in Pinal County, Arizona. Consistent with Section 203 of FLPMA, a tract of public land may be sold where, as a result of approved land use planning, sale of the tract meets the disposal criteria of that section. The land was identified as suitable for disposal in the BLM—Lower Sonoran Record of Decision and Resource Management Plan (RMP) approved on September 14, 2012. The parcel is difficult and uneconomical to manage as part of the public land and is not suitable for management by another Federal department or agency. It is not needed for any other Federal purpose. No potentially significant resource conflicts, legal issues, land, or resource management issues have been identified. The property is a relatively isolated tract, and there are no known uses currently occurring on the property. Regulations contained in 43 CFR 2710.0-6(c)(3)(iii) and 43 CFR 2711.3-3(a)(1) make allowances for direct sales when a competitive sale is not appropriate, and other conditions are met. The Community, who is considered a local government, wishes to purchase the parcel to better serve the public interest by using the land for development purposes to enhance the use and viability of the Community's Phoenix Regional Airport (PRA), which is immediately west of the public land parcel. As such, the BLM has concluded the public interest would be best served by a direct sale. The BLM has prepared a mineral potential report, dated March 19, 2012, which concluded that there are no known mineral values in the land proposed for direct sale. Therefore, the BLM proposes that the conveyance of the Federal mineral interest occur simultaneously with the sale.
The segregation will commence on the date of publication in the
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
2. The conveyance is subject to all valid existing rights of record.
3. Right-of-way AZA-21392 for road purposes granted to Pinal County Highway Department, its successors or assigns, pursuant to the Act of July 26, 1866 (43 U.S.C. 932) is reserved.
4. Additional terms and conditions that the authorized officer deems appropriate. A map delineating the proposed direct sale parcel and Mineral Potential Report are available for public review at the LSFO, which is located at the address above. The FMV for the sale parcel will be available for review 60 days prior to the sale date. Preliminary inspections have revealed no indication of hazardous materials. A biological evaluation, a cultural resources survey, and an environmental assessment (EA) are being prepared for the proposed direct sale. When completed, the EA will also be available for review at the BLM LSFO. The map and EA will also be viewable at the following Web site:
Public comments concerning the proposed direct sale may be submitted in writing to the attention of the BLM Lower Sonoran Field Manager (see
Before including your address, phone number, email address, or other personal identifying information in your comment, be advised 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 from public review your personal identifying information, we cannot guarantee that we will be able to do so.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before February 16, 2013. Pursuant to § 60.13 of 36 CFR Part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by March 25, 2013. 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.
A request for removal has been made for the following resources:
United States International Trade Commission.
Notice.
Keysha Martinez (202-205-2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On February 6, 2013, the Commission established a schedule for the conduct of the five-year reviews of certain pasta from Italy and Turkey (78 FR 9937, February 12, 2013). The Commission is revising its schedule as follows: the hearing will be on July 11, 2013, and the posthearing briefs and non-party written statements are due on July 22, 2013. For further information concerning these reviews see the Commission's notice cited above.
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A, B, and E (19 CFR part 201), and part 207, subparts A and F (19 CFR part 207), as most recently amended at 76 FR 61949 (Oct. 6, 2011).
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
60-Day Notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Cyber Division's National Industry Partnerships Unit (NIPU) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for 60 days until May 7, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments (especially on the estimated public burden or associated response time), suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Stephen Jamison, Supervisory Special Agent, National Industry Partnerships Unit, Federal Bureau of Investigation, Cyber Division, FBIHQ, 935 Pennsylvania Avenue, Washington DC 20035 or facsimile at (202) 651-3187.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following three points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's/component's estimate of the burden of the proposed collection of the information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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If additional information is required, contact: Jerri Murray, Department Clearance Officer, U.S. Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
60-Day Notice.
The Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, will be submitting the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. This proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until May 7, 2013. If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact C. Casto at 1-202-353-7193, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, 810 7th Street NW., Washington, DC 20531 or by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6) An estimate of the total public burden (in hours) associated with the collection is 42 hours. Total Annual Reporting Burden: 125 × 20 minutes per application = 1560 minutes/by 60 minutes per hour = 42 hours.
If additional information is required, please contact: Jerri Murray, Department Clearance Officer, U.S. Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington DC, 20530.
60-Day Notice.
The Department of Justice, Office of Justice Programs, Office for Victims of Crime will be submitting the following information collection request to the
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Chandria Slaughter, Office for Victims of Crime, 810 Seventh Street NW., Washington, DC 20531; by facsimile at (202) 305-2440 or by email, to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information:
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(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, U.S. Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
By application dated January 9, 2013, the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers/Communications Workers of America, Local 502, requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) applicable to workers and former workers of SGL Carbon, LLC, St. Marys, Pennsylvania (subject firm). The determination was issued on December 14, 2012. The Department's Notice of determination was published in the
The initial investigation resulted in a negative determination based on the findings that, with respect to Section 222(a)(2)(A)(i) of the Trade Act of 1974, as amended, the subject firm has not experienced a decline in the sales or production of graphite parts during the relevant period.
The request for reconsideration included information regarding possible increased imports.
The Department has carefully reviewed the request for reconsideration and the existing record, and will conduct further investigation to clarify the subject worker group and to determine if workers at the subject firm have met the eligibility requirements of the Trade Act of 1974, as amended.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
By application dated February 2, 2013, United Steelworkers, Local Union 2632, Unit 16, requested administrative reconsideration of the negative determination regarding workers' eligibility to apply for Trade Adjustment Assistance (TAA) applicable to workers and former workers of Johnstown Specialty Castings, Inc., a subsidiary of WHEMCO, Johnstown, Pennsylvania (subject firm). The determination was issued on January 8, 2013. The workers'
The initial investigation resulted in a negative determination based on the findings that, with respect to Section 222(a) of the Act, the investigation revealed that Criterion (1) has not been met because a significant number or proportion of the workers in the workers' firm have not become totally or partially separated, and are not threatened to become totally or partially separated.
The request for reconsideration included information regarding possible worker separations in the near future. The Department has carefully reviewed the request for reconsideration and the existing record, and will conduct further investigation to determine if workers have met the eligibility requirements of the Trade Act of 1974, as amended.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on September 14, 2012, applicable to workers and former workers of The Evercare Company, Waynesboro, Georgia (subject firm). The subject worker group included on-site leased workers from Global Personnel Solutions.
In response to an inquiry by the State of Georgia, the Department reviewed the certification for workers of the subject firm. According to information provided by the subject firm and Manpower, Manpower workers on-site at the subject firm supplied staffing services and the separation of Manpower workers is due to the subject firm's acquisition from a foreign country the production of articles like or directly competitive with the consumer package goods produced by the subject firm.
The amended notice applicable to TA-W-81,932 is hereby issued as follows:
All workers of The Evercare Company, including on-site leased workers from Global Personnel Solutions and Manpower, Waynesboro, Georgia, who became totally or partially separated from employment on or after August 23, 2011 through September 14, 2014, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (downstream producer for a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criteria under paragraphs (a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 18, 2013.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 18, 2013.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
On January 25, 2013, the Department of Labor issued an Affirmative Determination Regarding Application for Reconsideration applicable to workers and former workers of Naugatuck Valley Surgical Center, a Department of Saint Mary's Hospital, Waterbury, Connecticut (subject firm). The Department's notice of affirmative determination was published in the
Pursuant to 29 CFR 90.18(c), reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The initial investigation resulted in a negative determination based on the Department's findings of no shift in the supply of medical transcription services (or like or directly competitive services) to a foreign country, no acquisition from a foreign country the supply of medical transcription services (or like or directly competitive services), and no subject firm or customer imports of medical transcription services (or like or directly competitive services). The initial investigation also determined that the subject firm is not a supplier or downstream supplier to a firm that employed a worker group eligible to apply for Trade Adjustment Assistance based on a shift of services or increased imports of like or directly competitive services, and that the subject firm was not identified by name by the International Trade Commission, as required by Section 222(e) of the Trade Act of 1974, as amended, 19 U.S.C. 22272(e).
In the request for reconsideration, the state workforce office alleged that a specific firm was used by the subject firm to outsource services that were completed offshore.
Additional information obtained by the Department during the reconsideration investigation confirmed that the subject firm did not use any firm to outsource services and provided substantial evidence that established that outside firms that supply services like or directly competitive with those supplied by the workers at the subject firm must be completed in the United States.
After careful review of previously-submitted information and information obtained during the reconsideration investigation, the Department determines that 29 CFR 90.18(c) has not been met.
After careful review, I determine that the requirements of Section 222 of the Act, 19 U.S.C. 2272, have not been met and, therefore, deny the petition for group eligibility of Naugatuck Valley Surgical Center, a Department of Saint Mary's Hospital, Waterbury, Connecticut, to apply for adjustment assistance, in accordance with Section 223 of the Act, 19 U.S.C. 2273.
On May 9, 2012, the Department of Labor issued an Affirmative Determination Regarding Application for Reconsideration for the workers and former workers of Simpson Lumber Company, LLC, Shelton, Washington (TA-W-81,372), Simpson Lumber Company, LLC, Tacoma, Washington (TA-W-81,372A), and Simpson Lumber Company, LLC, Longview, Washington (TA-W-81,372B) (hereafter referred to collectively as “the subject firm” or “Simpson Lumber Company”). The workers are engaged in activities related to the production of dimension lumber, primarily used in housing construction, remodel, and repair. The worker group does not include leased workers.
The reconsideration investigation revealed that customer imports of dimensional lumber (or like or directly competitive articles) during the relevant period contributed importantly to the worker group separations and production declines at each of the afore-mentioned locations of Simpson Lumber Company.
Section 222(a)(1) has been met because a significant number or proportion of the workers in each of the afore-mentioned locations of Simpson Lumber Company have become totally or partially separated, or are threatened to become totally or partially separated.
A significant number or proportion means at least three workers in a firm (or appropriate subdivision thereof) with a work force of fewer than fifty workers or at least five percent of the workers in a firm (or appropriate subdivision thereof) with a work force of fifty or more workers. 29 CFR 90.2
Section 222(a)(2)(A)(i) has been met because production of dimension lumber at each of the afore-mentioned locations of Simpson Lumber Company has decreased absolutely during the period under investigation.
Section 222(a)(2)(A)(ii) has been met because customer imports of articles like or directly competitive with the dimensional lumber produced by Simpson Lumber Company have increased (absolutely or relatively) during the relevant period.
Finally, Section 222(a)(2)(A)(iii) has been met because the increased customer imports of articles like or directly competitive with dimensional lumber contributed importantly to the worker group separations and production declines at each of the afore-mentioned locations of Simpson Lumber Company.
Contributed importantly means a cause which is important but not necessarily more important than other cause. 29 CFR 90.16(b)(3)
After careful review of the additional facts obtained during the reconsideration investigation, I determine that workers of Simpson Lumber Company, LLC, Shelton, Washington, Tacoma, Washington and Longview, Washington, engaged in employment related to the production of dimension lumber, meet the worker group certification criteria under Section 222(a) of the Act, 19 U.S.C. 2272(a). In accordance with Section 223 of the Act, 19 U.S.C. 2273, I make the following certification:
All workers of Simpson Lumber Company, LLC, Shelton, Washington (TA-W-81,372), Simpson Lumber Company, LLC, Tacoma, Washington (TA-W-81,372A), and Simpson Lumber Company, LLC, Longview, Washington (TA-W-81,372B), who became totally or partially separated from employment on or after February 21, 2011, through two years from the date of certification, and all workers in the group threatened with total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for renewal of an existing information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
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Submit, by May 7, 2013, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly available documents, including the draft 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:
The document will be available on the NRC's home page site for 60 days after the signature date of this notice. Comments submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. Comments submitted should reference Docket No. NRC-2013-0013. You may submit your comments by any of the following methods. Electronic comments: Go to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment about our intention to request the OMB's approval for a new information collection that is summarized below. We are required to publish this notice in the
Information pertaining to the requirement to be submitted:
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The NRC seeks to achieve continuous improvement of the ROP through the ROP self-assessment process. The CY 2013 and 2015 ROP self-assessments will rely, in part, on direct feedback from external stakeholders. The information collected through the voluntary survey will support this purpose, and a summary of the survey results will be included in the annual ROP self-assessment report to the Commission.
Submit, by May 7, 2013, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
The public may examine and have copied for a fee publicly available documents, including the draft 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 submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. Comments submitted should reference Docket No. NRC-2013-0018. You may submit your comments by any of the following methods. Electronic comments: Go to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Request for comments on the notice of intent to prepare an environmental impact statement and notice of public meetings.
Tennessee Valley Authority (TVA) has submitted to the U.S. Nuclear Regulatory Commission (NRC) an application for renewal of Facility Operating Licenses DPR-77 and DPR-79 for an additional 20 years of operation at Sequoyah Nuclear Plant, Units 1 and 2 (SQN). Sequoyah Nuclear Plant is located in Soddy-Daisy, Tennessee. The current operating license for Sequoyah Nuclear Plant, Unit 1 expires on September 17, 2020, and Unit 2 expires on September 15, 2021.
The scoping meetings will be held on April 3, 2013. The first session will be from 2:00 p.m. to 4:00 p.m. and the second session will be from 6:00 p.m. to 8:00 p.m. Submit comments by May 3, 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.
You may access information and comment submissions related to this document, which the NRC possesses and is publically available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Emmanuel Sayoc, Environmental Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-4084, email:
Please refer to Docket ID NRC-2013-0037 when contacting the NRC about the availability of information regarding this document. You may access information related to this document by any of the following methods:
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Please include Docket ID NRC-2013-0037 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The application for renewal, dated January 15, 2013, was submitted pursuant to part 54 of Title 10 of the
As outlined in 36 CFR 800.8, “Coordination with the National Environmental Policy Act,” the NRC plans to coordinate compliance with Section 106 of the National Historic Preservation Act (NHPA) in meeting the requirements of the National Environmental Policy Act of 1969 (NEPA). Pursuant to 36 CFR 800.8(c), the NRC intends to use its process and documentation for the preparation of the EIS on the proposed action to comply with Section 106 of the NHPA in lieu of the procedures set forth at 36 CFR 800.3 through 800.6.
In accordance with 10 CFR 51.53(c) and 10 CFR 54.23, TVA submitted the ER as part of the application. The ER was prepared pursuant to 10 CFR Part 51 and is publicly available in ADAMS under Accession No. ML130240007. The ER may also be viewed on the Internet at
This document advises the public that the NRC intends to gather the information necessary to prepare a plant-specific supplement to the NRC's “Generic Environmental Impact
Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources. The NRC is required by 10 CFR 51.95 to prepare a supplement to the GEIS in connection with the renewal of an operating license. This notice is being published in accordance with NEPA and the NRC's regulations found at 10 CFR part 51.
The NRC will first conduct a scoping process for the supplement to the GEIS and, as soon as practicable thereafter, will prepare a draft supplement to the GEIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. The scoping process for the supplement to the GEIS will be used to accomplish the following:
a. Define the proposed action, which is to be the subject of the supplement to the GEIS;
b. Determine the scope of the supplement to the GEIS and identify the significant issues to be analyzed in depth;
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant;
d. Identify any environmental assessments and other ElSs that are being or will be prepared that are related to, but are not part of, the scope of the supplement to the GEIS being considered;
e. Identify other environmental review and consultation requirements related to the proposed action;
f. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule;
g. Identify any cooperating agencies and, as appropriate, allocate assignments for preparation and schedules for completing the supplement to the GEIS to the NRC and any cooperating agencies; and
h. Describe how the supplement to the GEIS will be prepared and include any contractor assistance to be used.
a. The applicant, TVA;
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved or that is authorized to develop and enforce relevant environmental standards;
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards;
d. Any affected Indian tribe;
e. Any person who requests or has requested an opportunity to participate in the scoping process; and
f. Any person who has petitioned or intends to petition for leave to intervene.
In accordance with 10 CFR 51.26, the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC has decided to hold public meetings for the Sequoyah Nuclear Plant license renewal supplement to the GEIS. The scoping meetings will be held on April 3, 2013, and there will be two sessions to accommodate interested parties. The first session will convene at 2:00 p.m. and will continue until 4:00 p.m., as necessary. The second session will convene at 6:00 p.m. with a repeat of the overview portions of the meeting and will continue until 8:00 p.m., as necessary. Both sessions will be held at the Soddy Daisy City Hall, 9835 Dayton Pike, Soddy Daisy, TN 37379.
Both meetings will be transcribed and will include: (1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the supplement to the GEIS, and the proposed review schedule; and (2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the supplement to the GEIS. Additionally, the NRC staff will host informal discussions one hour prior to the start of each session at the same location. No formal comments on the proposed scope of the supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meetings or in writing, as discussed above.
Persons may register to attend or present oral comments at the meetings on the scope of the NEPA review by contacting the NRC Project Manager, Mr. Emmanuel Sayoc, by telephone at 1-800-368-5642, extension 4084, or by email at
Participation in the scoping process for the supplement to the GEIS does not entitle participants to become parties to the proceeding to which the supplement to the GEIS relates. Matters related to participation in any hearing are outside the scope of matters to be discussed at this public meeting.
At the conclusion of the scoping process, the NRC will prepare a concise summary of the determination and conclusions reached, including the significant issues identified, and will send a copy of the summary to each participant in the scoping process. The summary will also be available for inspection in ADAMS. The staff will then prepare and issue for comment the draft supplement to the GEIS, which will be the subject of a separate notice and separate public meetings. Copies will be available for public inspection at the above-mentioned addresses. After receipt and consideration of the comments, the NRC will prepare a final supplement to the GEIS, which will also be available for public inspection.
For the Nuclear Regulatory Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c3-4 (17 CFR 240.15c3-4) (the “Rule”) under the Securities Exchange Act of 1934 (15 U.S.C. 78a
The staff estimates that the average amount of time a new OTC derivatives dealer will spend establishing and documenting its risk management control system is 2,000 hours and that, on average, a registered OTC derivatives dealer will spend approximately 200 hours each year to maintain (
The staff believes that the cost of complying with Rule 15c3-4 will be approximately $279 per hour.
The records required to be made by OTC derivatives dealers pursuant to the Rule and the results of the periodic reviews conducted under paragraph (d) of Rule 15c3-4 must be preserved under Rule 17a-4 of the Exchange Act (17 CFR 240.17a-4) for a period of not less than three years, the first two years in an easily accessible place. The Commission will not generally publish or make available to any person notice or reports received pursuant to the Rule. The statutory basis for the Commission's refusal to disclose such information to the public is the exemption contained in section (b)(4) of the Freedom of Information Act, 5 U.S.C. 552, which essentially provides that the requirement of public dissemination does not apply to commercial or financial information which is privileged or confidential.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB control number.
Background documentation for this information collection may be viewed at the following Web site:
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (2) of the Act, and under section 6(c) of the Act for an exemption from rule 12d1-2(a) under the Act.
Summary of the Application: The requested order would (a) permit certain registered open-end management investment companies that operate as “funds of funds” to acquire shares of certain registered open-end management investment companies and unit investment trusts (“UITs”) that are within and outside the same group of investment companies as the acquiring investment companies, and (b) permit funds of funds relying on rule 12d1-2 under the Act to invest in certain financial instruments.
The Advisors' Inner Circle Fund (“AIC”), The Advisors' Inner Circle Fund II (“AIC II”) and Bishop Street Funds (“BSF”) (each a “Trust” and together, the “Trusts”); and Citigroup First Investment Management Americas LLC (“Citigroup”), Cornerstone Advisors Inc.
The application was filed on August 1, 2012, and amended on January 8, 2013.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on March 29, 2013, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: c/o Dianne M. Sulzbach, SEI Corporation, One Freedom Valley Drive, Oaks, PA 19456.
Laura J. Riegel, Senior Counsel, at (202) 551-6873, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Each Trust, a Massachusetts business trust, is registered under the Act as an open-end management investment company. Each Trust is comprised of multiple series that pursue different investment objectives and principal investment strategies.
2. Citigroup, a Delaware limited liability company, is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”) and currently serves as investment adviser to certain series of AIC.
3. The Distributor, a Pennsylvania corporation, is registered as a broker-dealer under the Securities Exchange Act of 1934 (the “Exchange Act ”). The Distributor serves as principal underwriter and distributor for the shares of the Trusts' Funds.
4. Applicants request an order to permit (a) a Fund that operates as a “fund of funds” (each a “Fund of Funds”) to acquire shares of (i) registered open-end management investment companies that are not part of the same “group of investment companies,” within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Fund of Funds (“Unaffiliated Investment Companies”) and UITs that are not part of the same group of investment companies as the Fund of Funds (“Unaffiliated Trusts,” together with the Unaffiliated Investment Companies, “Unaffiliated Funds”)
5. Applicants also request an exemption under section 6(c) from rule 12d1-2 under the Act to permit any existing or future Fund that relies on section 12(d)(1)(G) of the Act (“Same Group Investing Fund”) and that otherwise complies with rule 12d1-2 to also invest, to the extent consistent with its investment objective, policies, strategies, and limitations, in financial instruments that may not be securities within the meaning of section 2(a)(36) of the Act (“Other Investments”).
1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, and any Broker from selling the investment company's shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's total outstanding voting stock, or if the sale will cause more than 10% of the acquired company's total outstanding voting stock to be owned by investment companies generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) of the Act to permit a Fund of Funds to acquire shares of the Underlying Funds in excess of the limits in section 12(d)(1)(A), and an Underlying Fund, the Distributor or any principal underwriter for an Underlying Fund, and any Broker to sell shares of an Underlying Fund to a Fund of Funds in excess of the limits in section 12(d)(1)(B) of the Act.
3. Applicants state that the terms and conditions of the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
4. Applicants believe that the proposed arrangement will not result in the exercise of undue influence by a Fund of Funds or a Fund of Funds Affiliate over the Unaffiliated Funds.
5. To further assure that an Unaffiliated Investment Company understands the implications of an investment by a Fund of Funds under the requested order, prior to a Fund of Funds' investment in the shares of an Unaffiliated Investment Company in excess of the limit in section 12(d)(1)(A)(i) of the Act, the Fund of Funds and the Unaffiliated Investment Company will execute an agreement stating, without limitation, that their respective board of directors or trustees (for any entity, the “Board”) and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order (“Participation Agreement”). Applicants note that an Unaffiliated Investment Company (other than an ETF whose shares are purchased by a Fund of Funds in the secondary market) will retain its right at all times to reject any investment by a Fund of Funds.
6. Applicants state that they do not believe that the proposed arrangement will involve excessive layering of fees. The Board of each Fund of Funds, including a majority of the trustees who are not “interested persons” (within the meaning of section 2(a)(19) of the Act) (“Independent Trustees”), will find that the advisory fees charged under investment advisory or management contract(s) are based on services provided that will be in addition to, rather than duplicative of, the services provided under such advisory contract(s) of any Underlying Fund in which the Fund of Funds may invest. In addition, a Fund of Funds Adviser will
7. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Underlying Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except in certain circumstances identified in condition 11 below.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person; (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person; and (c) any person directly or indirectly controlling, controlled by, or under common control with the other person.
2. Applicants state that a Fund of Funds and the Affiliated Funds managed by the same Adviser might be deemed to be under common control of the Fund of Funds Adviser and therefore affiliated persons of one another. Applicants also state that the Fund of Funds and the Unaffiliated Funds might be deemed to be affiliated persons of one another if the Fund of Funds acquires 5% or more of an Unaffiliated Fund's outstanding voting securities. In light of these and other possible affiliations, section 17(a) could prevent an Underlying Fund from selling shares to and redeeming shares from a Fund of Funds.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants submit that the proposed transactions satisfy the standards for relief under sections 17(b) and 6(c) of the Act.
1. Section 12(d)(1)(G) of the Act provides that section 12(d)(1) will not apply to securities of an acquired company purchased by an acquiring company if: (i) The acquiring company and acquired company are part of the same group of investment companies; (ii) the acquiring company holds only securities of acquired companies that are part of the same group of investment companies, government securities, and short-term paper; (iii) the aggregate sales loads and distribution-related fees of the acquiring company and the acquired company are not excessive under rules adopted pursuant to section 22(b) or section 22(c) of the Act by a securities association registered under section 15A of the Exchange Act or by the Commission; and (iv) the acquired company has a policy that prohibits it from acquiring securities of registered open-end management investment companies or registered unit investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
2. Rule 12d1-2 under the Act permits a registered open-end investment company or a registered unit investment trust that relies on section 12(d)(1)(G) of the Act to acquire, in addition to securities issued by another registered investment company in the same group of investment companies, government securities, and short-term paper: (1) Securities issued by an investment company that is not in the same group of investment companies, when the acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other than securities issued by an investment company); and (3) securities issued by a money market fund, when the investment is in reliance on rule 12d1-1 under the Act. For the purposes of rule 12d1-2, “securities” means any security as defined in section 2(a)(36) of the Act.
3. Applicants state that the proposed arrangement would comply with the provisions of rule 12d1-2 under the Act, but for the fact that a Same Group Investing Fund may invest a portion of its assets in Other Investments. Applicants request an order under section 6(c) of the Act for an exemption from rule 12d1-2(a) to allow the Same Group Investing Funds to invest in Other Investments. Applicants assert that permitting Same Group Investing Funds to invest in Other Investments as described in the application would not raise any of the concerns that the requirements of section 12(d)(1) were designed to address.
4. Consistent with its fiduciary obligations under the Act, the Board of each Same Group Investing Fund will review the advisory fees charged by the Same Group Investing Fund's investment adviser to ensure that they are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to the advisory agreement of any investment company in which the Same Group Investing Fund may invest.
Applicants agree that the relief to permit Funds of Funds to invest in Underlying Funds shall be subject to the following conditions:
1. The members of an Advisory Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. The members of a Subadvisory Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Unaffiliated Fund, an Advisory Group or a Subadvisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of the Unaffiliated Fund, then the Advisory Group or the Subadvisory Group will vote its shares of the Unaffiliated Fund in the same proportion as the vote of all other holders of the Unaffiliated Fund's shares. This condition will not apply to a Subadvisory Group with respect to an Unaffiliated Fund for which the Subadviser or a person controlling, controlled by, or under common control with the Subadviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act (in the case of an Unaffiliated Investment Company) or as the sponsor (in the case of an Unaffiliated Trust).
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in shares of an Unaffiliated Fund to influence the terms of any services or transactions between the Fund of Funds or a Fund of Funds Affiliate and the Unaffiliated Fund or an Unaffiliated Fund Affiliate.
3. The Board of each Fund of Funds, including a majority of the Independent Trustees, will adopt procedures reasonably designed to assure that its Fund of Funds Adviser and any Subadviser(s) to the Fund of Funds are conducting the investment program of the Fund of Funds without taking into account any consideration received by the Fund of Funds or Fund of Funds Affiliate from an Unaffiliated Fund or an Unaffiliated Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of an Unaffiliated Investment Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, the Board of the Unaffiliated Investment Company, including a majority of the Independent Trustees, will determine that any consideration paid by the Unaffiliated Investment Company to a Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Unaffiliated Investment Company; (b) is within the range of consideration that the Unaffiliated Investment Company would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Unaffiliated Investment Company and its investment adviser(s) or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Unaffiliated Investment Company or sponsor to an Unaffiliated Trust) will cause an Unaffiliated Fund to purchase a security in any Affiliated Underwriting.
6. The Board of an Unaffiliated Investment Company, including a majority of the Independent Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Unaffiliated Investment Company in an Affiliated Underwriting once an investment by a Fund of Funds in the securities of the Unaffiliated Investment Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board of the Unaffiliated Investment Company will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in the Unaffiliated Investment Company. The Board of the Unaffiliated Investment Company will consider, among other things: (a) Whether the purchases were consistent with the investment objectives and policies of the Unaffiliated Investment Company; (b) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (c) whether the amount of securities purchased by the Unaffiliated Investment Company in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board of the Unaffiliated Investment Company will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interests of shareholders.
7. Each Unaffiliated Investment Company shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and shall maintain and preserve for a period not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in an Affiliated Underwriting once an investment by a Fund of Funds in the securities of an Unaffiliated Investment Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth: (a) The party from whom the securities were acquired, (b) the identity of the underwriting syndicate's members, (c) the terms of the purchase, and (d) the information or materials upon which the determinations of the Board of the Unaffiliated Investment Company were made.
8. Prior to its investment in shares of an Unaffiliated Investment Company in excess of the limit in section 12(d)(1)(A)(i) of the Act, the Fund of Funds and the Unaffiliated Investment Company will execute a Participation Agreement stating, without limitation, that their Boards and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Unaffiliated Investment Company in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Unaffiliated Investment Company of the investment. At such time, the Fund of Funds will also transmit to the Unaffiliated Investment
9. Before approving any advisory contract under section 15 of the Act, the Board of each Fund of Funds, including a majority of the Independent Trustees, shall find that the advisory fees charged under such advisory contract are based on services provided that are in addition to, rather than duplicative of, services provided under the advisory contract(s) of any Underlying Fund in which the Fund of Funds may invest. Such finding and the basis upon which the finding was made will be recorded fully in the minute books of the appropriate Fund of Funds.
10. A Fund of Funds Adviser will waive fees otherwise payable to it by a Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Unaffiliated Investment Company under rule 12b-1 under the Act) received from an Unaffiliated Fund by the Fund of Funds Adviser, or an affiliated person of the Fund of Funds Adviser, other than any advisory fees paid to the Fund of Funds Adviser or its affiliated person by an Unaffiliated Investment Company, in connection with the investment by the Fund of Funds in the Unaffiliated Fund. Any Subadviser will waive fees otherwise payable to the Subadviser, directly or indirectly, by the Fund of Funds in an amount at least equal to any compensation received by the Subadviser, or an affiliated person of the Subadviser, from an Unaffiliated Fund, other than any advisory fees paid to the Subadviser or its affiliated person by an Unaffiliated Investment Company, in connection with the investment by the Fund of Funds in the Unaffiliated Fund made at the direction of the Subadviser. In the event that a Subadviser waives fees, the benefit of the waiver will be passed through to the applicable Fund of Funds.
11. No Underlying Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent that such Underlying Fund: (a) Acquires such securities in compliance with section 12(d)(1)(E) of the Act and either is an Affiliated Fund or is in the same “group of investment companies,” as defined in section 12(d)(1)(G)(ii) of the Act, as its corresponding master fund; (b) receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1) of the Act); or (c) Acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to (i) acquire securities of one or more investment companies for short-term cash management purposes, or (ii) engage in interfund borrowing and lending transactions.
12. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to fund of funds set forth in NASD Conduct Rule 2830.
Applicants agree that the relief to permit Same Group Investing Funds to invest in Other Investments shall be subject to the following condition:
13. Applicants will comply with all provisions of rule 12d1-2 under the Act, except for paragraph (a)(2) to the extent that it restricts any Same Group Investing Fund from investing in Other Investments as described in the application.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements without shareholder approval and would grant relief from certain disclosure requirements.
Cohen & Steers Real Assets Fund, Inc. (the “Corporation”), Cohen & Steers Real Assets Fund, Ltd. (the “Subsidiary”), and Cohen & Steers Capital Management, Inc. (“Cohen & Steers” or the “Advisor”).
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on March 28, 2013, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: the Corporation and the Advisor, 280 Park Avenue, 10th floor, New York, NY 10017; the Subsidiary, Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, Cayman Islands KY1-1104.
Steven I. Amchan, Senior Counsel, at (202) 551-6826, or Jennifer L. Sawin, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Corporation is a Maryland corporation registered under the Act as
2. Under the terms of the Advisory Agreement, the Advisor is responsible for the overall management of the Corporation's business affairs and selecting the Corporation's investments in accordance with its investment objectives, policies and restrictions. For the investment advisory services that it provides to the Corporation, the Advisor receives the fee specified in the Advisory Agreement. The Advisory Agreement also permits the Advisor to retain one or more Subadvisors for the purpose of managing the investments of the Corporation. Pursuant to this authority, the Advisor has entered into investment subadvisory agreements (“Subadvisory Agreements”) with two Subadvisors to provide investment advisory services to the Corporation.
3. The Subsidiary is a Cayman Islands corporation wholly-owned by the Corporation.
4. Applicants request an order to permit the Advisor, subject to Board approval, to enter into and materially amend Subadvisory Agreements without obtaining shareholder approval.
5. Applicants also request an exemption from the various disclosure provisions described below that may require the Corporations to disclose fees paid by the Advisor to the Subadvisors. An exemption is requested to permit a Corporation to disclose (as both a dollar amount and as a percentage of each Corporation's net assets): (a) The aggregate fees paid to the Advisor and any Affiliated Subadvisors; and (b) the aggregate fees paid to Subadvisors (collectively, “Aggregate Fee Disclosure”). Any Corporation that employs an Affiliated Subadvisor will provide separate disclosure of any fees paid to the Affiliated Subadvisor.
6. The Corporations will inform shareholders of the hiring of a new Subadvisor pursuant to the following procedures (“Modified Notice and Access Procedures”): (a) Within 90 days after a new Subadvisor is hired for any Corporation, that Corporation will send its shareholders either a Multi-manager Notice or a Multi-manager Notice and Multi-manager Information Statement;
A “Multi-manager Information Statement” will meet the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the Exchange Act for an information statement. Multi-manager Information Statements will be filed electronically with the Commission via the EDGAR system.
1. Section 15(a) of the Act provides, in relevant part, that it is unlawful for any person to act as an investment adviser to a registered investment company except pursuant to a written contract that has been approved by the vote of a majority of the company's outstanding voting securities. Rule 18f-2 under the Act provides that each series or class of stock in a series investment company affected by a matter must approve that matter if the Act requires shareholder approval.
2. Form N-1A is the registration statement used by open-end investment companies. Item 19(a)(3) of Form N-1A requires disclosure of the method and amount of the investment adviser's compensation.
3. Rule 20a-1 under the Act requires proxies solicited with respect to an investment company to comply with Schedule 14A under the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A, taken together, require a proxy statement for a shareholder meeting at which the advisory contract will be voted upon to include the “rate of compensation of the investment adviser,” the “aggregate amount of the investment adviser's fees,” a description of the “terms of the contract to be acted upon,” and, if a change in the advisory fee is proposed, the existing and proposed fees and the difference between the two fees.
4. Regulation S-X sets forth the requirements for financial statements required to be included as part of investment company registration statements and shareholder reports filed with the Commission. Sections 6-07(2)(a), (b) and (c) of Regulation S-X require that investment companies include in their financial statements information about investment advisory fees.
5. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that the requested relief meets this standard for the reasons discussed below.
6. Applicants assert that the shareholders are relying on the Advisor's expertise to select one or more Subadvisors best suited to achieve a Corporation's investment objectives. Applicants assert that, from the perspective of the investor, the role of the Subadvisors is comparable to that of the individual portfolio managers employed by the Advisor. Applicants state that requiring shareholder approval of each Subadvisory Agreement would impose costs and unnecessary delays on the Corporations, and may preclude the Advisor from acting promptly in a manner considered advisable by the Board. Applicants note that the Advisory Agreement, the Subsidiary Advisory Agreement, and any subadvisory agreements with Affiliated Subadvisors will remain subject to section 15(a) of the Act and rule 18f-2 under the Act.
7. Applicants assert that many Subadvisors use a “posted” rate schedule to set their fees. Applicants state that, while Subadvisors are willing to negotiate fees lower than those posted in the schedule, they are reluctant to do so where the fees are disclosed to other prospective and existing customers. Applicants submit that the requested relief will allow the Adviser to negotiate more effectively with each Subadvisor.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Corporation may rely on the requested order, the operation of the Corporation in the manner described in the application will be approved by a majority of the Corporation's outstanding voting securities, as defined in the Act, or in the case of a Corporation whose public shareholders purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the initial shareholder(s) before offering shares of that Corporation to the public.
2. Each Corporation relying on the requested order will disclose in its prospectus the existence, substance, and effect of any order granted pursuant to the application. Each Corporation will hold itself out to the public as utilizing the Manager of Managers Structure. The prospectus will prominently disclose that the Advisor has ultimate responsibility (subject to oversight by the Board) to oversee the Subadvisors and recommend their hiring, termination, and replacement.
3. Corporations will inform shareholders of the hiring of a new Subadvisor within 90 days after the hiring of the new Subadvisor pursuant to the Modified Notice and Access Procedures.
4. The Advisor will not enter into a subadvisory agreement with any Affiliated Subadvisor without such agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Corporation.
5. At all times, at least a majority of the Board will be Independent Directors, and the nomination of new or additional Independent Directors will be placed within the discretion of the then-existing Independent Directors.
6. Whenever a subadvisor change is proposed for a Corporation with an Affiliated Subadvisor, the Board, including a majority of the Independent Directors, will make a separate finding, reflected in the applicable Board minutes, that such change is in the best interests of the Corporation and its shareholders, and does not involve a conflict of interest from which the Advisor or the Affiliated Subadvisor derives an inappropriate advantage.
7. Independent legal counsel, as defined in Rule 0-1(a)(6) under the Act, will be engaged to represent the Independent Directors. The selection of such counsel will be within the discretion of the then existing Independent Directors.
8. The Advisor will provide general management services to each Corporation, including overall supervisory responsibility for the general management and investment of each Corporation's assets, and, subject to review and approval of the Board, will: (a) Set each Corporation's overall investment strategies; (b) evaluate, select and recommend Subadvisors to manage all or a part of each Corporation's assets; (c) allocate and, when appropriate, reallocate each Corporation's assets among one or more Subadvisors; (d) monitor and evaluate the performance of Subadvisors; and (e) implement procedures reasonably designed to ensure that the Subadvisors comply with each Corporation's investment objective, policies and restrictions.
9. No Director or officer of a Corporation, or director, manager or officer of the Advisor, will own, directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person), any interest in a Subadvisor, except for (a) ownership of interests in the Advisor or any entity that controls, is controlled by, or is under common control with the Advisor, or (b) ownership of less than 1% of the outstanding securities of any class of equity or debt of any publicly traded company that is either a Subadvisor or an entity that controls, is controlled by or is under common control with a Subadvisor. For any Corporation that owns a Subsidiary, this condition shall also apply to the Directors and officers of that Corporation with respect to any interest in a Subadvisor to that Corporation's Subsidiaries.
10. Each Corporation will disclose in its registration statement the Aggregate Fee Disclosure.
11. In the event the Commission adopts a rule under the Act providing substantially similar relief to that in the order requested in the application, the requested order will expire on the effective date of that rule.
12. For any Corporation that pays subadvisory fees directly from its assets, any changes to a Subadvisory Agreement that would result in an increase in the total management and advisory fees payable by the Corporation will be required to be approved by the shareholders of that Corporation.
13. Whenever a subadvisor is hired or terminated, the Advisor will provide the Board with information showing the expected impact on the profitability of the Advisor.
14. Each Advisor will provide the Board, no less frequently than quarterly, with information about the profitability of the Advisor on a per Corporation basis. The information will reflect the impact on profitability of the hiring or termination of any subadvisor during the applicable quarter.
For the Commission, by the Division of Investment Management, under delegated authority.
[78 FR 14141, March 4, 2013]
Open Meeting.
100 F Street NE, Washington, DC.
Wednesday, March 6, 2013.
Date and Time Change.
The Open Meeting scheduled for Wednesday, March 6, 2013 at 10:00 a.m., has been changed to Thursday, March 7, 2013 at 1:00 p.m.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact: The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act ” or “Exchange Act”)
The Exchange is proposing to amend its Fee and Rebate Schedule (the “Fee Schedule”) issued pursuant to Exchange Rule 16.1(a) to charge Equity Trading Permit (“ETP”) Holders
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Section I of its Fee Schedule to charge ETP Holders $0.0020 per share when using a Midpoint-Seeker Order in the Exchange's Auto-Ex Mode to remove liquidity in a security that is priced at or above $1.00. The Midpoint Seeker Order is an Immediate-or-Cancel (“IOC”)
Under Section I of the Fee Schedule, the Exchange currently charges ETP Holders that do not execute at least 50,000 shares of added liquidity in a month using the Exchange's Auto-Ex Mode a per share fee of $0.0030 for any marketable order that removes liquidity. ETP Holders that execute more than 50,000 shares of added liquidity per month in Auto-Ex Mode are eligible for fees and rebates under either the Variable or Fixed Fee Schedules under Section I. Instead of paying the above described fees when removing liquidity in Auto-Ex Mode, ETP Holders will now pay the proposed lower fixed fee of $0.0020 per share when using the Midpoint-Seeker Order to remove liquidity in securities priced at or above $1.00.
The Exchange intends to make the proposed modifications, which are effective upon filing, operative as of the commencement of trading on March 1, 2013. Pursuant to Exchange Rule 16.1(c), the Exchange will “provide ETP Holders with notice of all relevant dues, fees, assessments and charges of the Exchange” through the issuance of an Information Circular and will post a copy of the rule filing on the Exchange's Web site (
The Exchange believes that the proposed fixed fee for Midpoint-Seeker Orders that remove liquidity is consistent with the provisions of Section 6(b) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and rebates to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
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. ETP Holders using the Midpoint-Seeker Order will be charged a lower per share fee for removing liquidity rather than being charged the Exchange's standard fees under Section I of the Fee Schedule. The lower per share fee is designed to increase liquidity by encouraging ETP Holders to use Midpoint Seeker Orders. As stated above, the Exchange operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and rebates to remain competitive with other exchanges.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The proposed rule change has taken effect upon filing pursuant to Section 19(b)(3)(A)(ii) of the Exchange Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt (i) Exchange Rule 953.1NY to provide for how the Exchange proposes to treat orders, market-making quoting obligations, and errors in response to the Regulation NMS Plan to Address Extraordinary Market Volatility; and (ii) to amend Exchange Rule 953NY to codify that the Exchange shall halt trading in all options overlying NMS stocks when the equities markets initiate a market-wide trading halt due to extraordinary market volatility. 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 (i) to adopt Exchange Rule 953.1NY to provide for how the Exchange proposes to treat orders, market-making quoting obligations, and errors in response to the Regulation NMS Plan to Address Extraordinary Market Volatility (the “Plan”), which is applicable to all NMS stocks, as defined in Regulation NMS Rule 600(b)(47); and (ii) to amend Exchange Rule 953NY to codify that the Exchange shall halt trading in all options when the equities markets initiate a market-wide trading halt due to extraordinary market volatility. The Exchange proposes to adopt new Rule 953.1NY for a pilot period that coincides with the pilot period for the Plan, which is currently scheduled as a one-year pilot to begin on February 4, 2013 [sic].
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Plan is designed to prevent trades in individual NMS stocks from occurring outside of specified Price Bands.
As set forth in more detail in the Plan, Price Bands consisting of a Lower Price Band and an Upper Price Band for each NMS Stock are calculated by the Processors.
Trading in an NMS stock immediately enters a Limit State if the National Best Offer (Bid) equals but does not cross the Lower (Upper) Price Band.
The Exchange proposes to adopt new Exchange Rule 953.1NY to provide for how the Exchange shall treat orders and quotes in options overlying NMS stocks when the Plan is in effect.
First, the Exchange proposes rules regarding the treatment of certain orders or quotes if the underlying NMS stock is in a Limit State and Straddle State. Whenever an NMS stock is in a Limit State or Straddle State, trading continues, however, there will not be a reliable price for a security to serve as a benchmark for the price of the option. For example, if the underlying NMS stock is in a Limit State, while trading in that stock continues, by being in a Limit State, there will be either cancellations or executions at that price, and if the Limit State is not resolved in 15 seconds, the NMS Stock will enter a Trading Pause. If an NMS stock is in a Straddle State, that means that there is either a National Best Bid or National Best Offer that is non-executable, which could result in limited price discovery in the underlying NMS stock. In addition to the lack of a reliable underlying reference price, the Exchange is concerned about the width of the markets and quality of the execution for market participants during Limit or Straddle States. While the Exchange recognizes the importance of continued trading in options overlying NMS stocks during Limit States and Straddle States, the Exchange believes that certain types of orders increase the risk of errors and poor executions and therefore should be not allowed during these times when there may not be a reliable underlying reference price, there may be a wide bid/ask quotation differential, and lower trading liquidity in the options markets. Specifically, the Exchange proposes that if the underlying NMS stock is in a Limit State or Straddle State, the Exchange shall reject all incoming Market Orders and will not elect Stop Orders.
Second, the Exchange proposes to adopt subsection (b) to provide that when evaluating whether a Specialist has met its market-making quoting requirement pursuant to Rule 925.1NY(b) or a Market Maker has met its market-making quoting requirement pursuant to Rule 925.1NY(c) in options overlying NMS stocks, the Exchange shall consider as a mitigating circumstance the frequency and duration of occurrences when an underlying NMS stock is in a Limit State or a Straddle State. This is necessary given the direct relationship between an options price and the price of the underlying security. During a Limit or Straddle State, the bid price, offer price or both of the underlying security will be unexecutable [sic]. With the bid and or offer flagged unexecutable, the ability to hedge the purchase or sale of an option will be jeopardized and in fact it may not be possible to purchase or sell shares of the underlying security at any price to offset the risk created by either buying or selling calls and/or put options during a Limit State or a Straddle State. The Exchange expects that its Market Makers will as need to modify their quoting behavior a result. For the reasons described below the Exchange feels that the proposed change to consider as a mitigating circumstance the frequency and duration of periods during which an underlying NMS stock is in a Limit State or a Straddle State is the appropriate approach until such a time as the Exchange has more experience with the impact of the Plan on the options marketplace, particularly the impact on Market Makers ability to provide liquidity in an option when unknown (and possibly very limited) liquidity exists in the underlying security.
The Exchange has settled on this approach after analyzing in detail the alternatives. An undesirable alternative for the Exchange would be to propose to relax the quoting obligations. The relaxed quoting obligations could apply to the full trading day or just during the periods of extraordinary market volatility in the underlying NMS stock during a Straddle State or Limit State. The Exchange could, for example, have proposed to adopt the same market maker quoting obligations that apply to market makers on another options market that only requires its market makers to provide a two-sided continuous quote, without any requirement for a $5 or tighter bid-ask differential.
Therefore, in lieu of these alternatives, the Exchange proposes to adopt subsection (b) to provide that when evaluating whether a Specialist has met its market-making quoting requirement pursuant to Rule 925.1NY(b) or a Market Maker has met its market-making quoting requirement pursuant to Rule 925.1NY(c) in options overlying NMS stocks, the Exchange shall consider as a mitigating circumstance the frequency and duration that an underlying NMS stock is in a Limit State or a Straddle State. For example, if an ATP Holder fails to meet its monthly quoting obligations, and during the review, it is determined that the quoting that failed to meet the obligation was for options that overlay NMS stocks with a significant number of Straddle States and Limit States, then pursuant to proposed Rule 953.1NY(c), that would be considered a mitigating circumstance that would entitle the OTP Holder to relief. The Exchange will work with FINRA to monitor the impact of Straddle States and Limit States on a Specialist or Market Marker's ability to meet its market-maker quoting requirements. The Exchange notes that it does not believe that it needs to modify the existing quoting obligations for Market Markers in Rules 925NY and 925.1NY to reflect how such quoting requirements may interact with how underlying NMS stocks trade during a Straddle State or Limit State. Rather, during periods of extraordinary market volatility in the underlying NMS stock, the Exchange believes that the existing quoting requirements should be maintained in order to facilitate transactions, preserve market liquidity, and ensure the fair and orderly trading of options on the Exchange. This change is also designed to eliminate the technologically difficult and economically prohibitive systems programming that would be required if the Exchange eliminated the $5 bid-ask differential requirement only during Straddle States or Limit States.
Finally, the Exchange proposed to adopt subsection (c) to provide that electronic transactions in stock options that occur during a Limit State or a Straddle State would not be subject to review under Rule 975NY(a) for Obvious Errors or Rule 975NY(d) for Catastrophic Errors. In addition, subsection (c) will provide that electronic transactions in options that overlay an NMS stock that occur during a Limit State or a Straddle State may be reviewed on Exchange motion pursuant to 975NY(b)(3).
The Exchange has settled on this approach after analyzing in detail the alternatives. An undesirable alternative for the Exchange would be to maintain the current operation of Rule 975NY(a) for Obvious Errors or Rule 975NY(d) for Catastrophic Errors during the Limit State or Straddle State. Pursuant to Rules 975NY(a), market participants may have up to 30 minutes to review a transaction as an Obvious Error. Pursuant to 975NY(d), market participants may have up to 8:30 a.m. ET on the first trading day following a transaction to review it as a Catastrophic Error. The Exchange believes that during periods of extraordinary volatility, the review period for transactions under the Obvious Error and Catastrophic Error provisions would allow market participants a second look at transactions during a Limit State or a Straddle State that is potentially unfair to other market participants. For example, thirty
• A $500 security enters a Straddle State resulting in un-executable bids and offers.
• Consequently the market for the options on that security widens to reflect the uncertainty surrounding what price the stock may be sold at to hedge the sale of puts or purchase of calls. Prior to entering the Straddle State, the 22 day at the money $500 strike put options were trading at $24.45-$24.65.
• A limit order to pay $32 for 10 is entered resulting in a new market of $32.00-$35.00. 14 seconds after entering the Limit State in the underlying security, a limit order to sell 10 contracts at $32 is received and trades with the posted $32 limit order to buy. Immediately after the trade is consummated, the Straddle State in the underlying security has not resolved and consequently the underlying security is halted. Upon resumption of trading in the underlying security, consider two possible scenarios:
• Scenario 1—The market for the security is $450-$452. The puts which traded immediately prior to the trading halt are now worth at least their intrinsic value of $50 and quite likely are trading with some time premium as well. The seller of 10 contracts at $32 immediately requests an Obvious Error review under the provisions of Rule 975NY.
• Scenario 2—The market for the security is now $550-$552. The puts which traded immediately prior to the trading halt are now worth an estimated $8.
Under both scenarios the bid/ask spread in the option was $2 at the time of the trade and as such it now falls to a designated trading official to determine what the “theoretical value” of the option is. Absent the ability to ascertain prices at which the stock could have been bought or sold
Another undesirable alternative for the Exchange would be to propose to always use the prevailing NBBO as the metric to decide whether an error has occurred, irrespective of how wide the NBBO was at the time of the execution. This approach alleviates the burden on the Exchange of having to ascribe a Theoretical Price to an option when the stock has an un-executable bid, offer or both but it still presents significant problems. For example, in a Limit or Straddle State it is likely that there will be less depth of book—both on an intra as well as an inter-market basis. This gives rise to the potential for gaming of the Obvious Error Rule which mandates that Market Maker to Market Maker trades are always adjusted. For example, consider this scenario:
An NYSE Amex Market Maker is offering 100 contracts at $15. Another NYSE Amex Market Maker enters an ISO order to buy 100 contracts at $15. Immediately after the execution the same NYSE Amex Market Maker requests a review under Rule 975NY. Simply using the NBBO, in this case $7, would mean that as required under Rule 975NY, the Exchange would rule to adjust that trade to $7.30, essentially forcing the NYSE Amex Options Market Maker who was willing to provide liquidity at $15 to instead provide liquidity at the much worse price of $7.30. Such an outcome would undoubtedly result in fewer Market Makers willing to post any liquidity for
Therefore, in lieu of these alternatives, the Exchange proposes to provide that the electronic transactions in stock options that occur during a Limit State or a Straddle State would not be subject to review under Rule 975NY(a) for Obvious Errors or Rule 975NY(d) for Catastrophic Errors. The Exchange would still review transactions in the interest of maintaining a fair and orderly market and for the protection of investors, on its own motion, determine to review any transaction occurring on the Exchange that is believed to be erroneous that occurs during a Limit State or a Straddle State in accordance with Rule 975NY(b)(3). The Exchange believes that this safeguard will provide the flexibility for the Exchange to act when necessary and appropriate to nullify or adjust a transaction, while also providing market participants with certainty that trades they effect with quotes and/or orders having limit prices will stand irrespective of subsequent moves in the underlying security. By limiting the erroneous trade review to only via Exchange motion, the Exchange believes that the proposal mitigates two of the undesirable aspects of the alternatives described above—(i) the moral hazard associated with granting a second look to trades that went against the market participant after market conditions have changed and (ii) gaming of the Obvious Error Rule to adjust Market Makers—while also limiting the discretion of determining Theoretical Value to only those situations that the Exchange determines is necessary in the interest of maintaining a fair and orderly market and for the protection of investors. The right to review on Exchange motion electronic transactions that occur during a Limit State or Straddle State under this provision would also allow the Exchange to account for unforeseen circumstances that result in Obvious Errors such as technological or systems malfunctions of which a nullification or adjustment may be necessary in order to preserve the interest of maintaining a fair and orderly market and for the protection of investors.
The Exchange notes that there are additional protections in place outside of the Obvious Error Rule, specifically pre-trade protections. First, SEC Rule 15c3-5 requires that, “financial risk management controls and supervisory procedures must be reasonably designed to prevent the entry of orders that exceed appropriate pre-set credit or capital thresholds, or that appear to be erroneous.”
The Exchange proposes to amend Rule 953NY so that the Exchange, as an options market, can better respond to the manner by which the equities markets declare a market-wide trading halt, also known as a market-wide circuit breaker.
The proposed rule change provides that whenever the equities markets halt trading in all NMS stocks due to extraordinary market volatility, the Exchange will similarly halt trading in all options. The Exchange believes that the proposed rule change can be adopted on a permanent basis notwithstanding that the equities market version of the market-wide circuit breakers has been adopted on a pilot basis. In particular, the Exchange believes that the proposed rule provides the Exchange with flexibility to halt trading in options whenever the equities markets halt trading in all stocks, regardless of what triggers that the equities markets may use for halting trading in all stocks. Accordingly, if the equities market pilot rules were to expire and revert back to the pre-February 4, 2013 [sic] version of market-wide trading halts, or if the equities markets again amend the triggers for their market-wide circuit breaker rule, the proposed Exchange rule would have sufficient flexibility to work with the revised equities rule without requiring an additional rule change by the Exchange. The Exchange also notes that in addition to amended Rule 953NY, that the remaining provisions in existing Rule 953NY regarding Trading Halts and Suspensions remain unchanged and provides a means to halt or suspend trading in options contracts whenever the Exchange deems such action appropriate in the interests of a fair and orderly market and to protect investors.
The Exchange believes the proposed rule change is consistent with Section
The proposal to add Rule 953.1NY will ensure that trading in options that overlay NMS stocks is appropriately modified to reflect market conditions that occur during a Limit State or a Straddle States in a manner that promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system. Specifically, the proposal will help allow market participants to continue to trade stock options during times of extraordinary market conditions without the added risk of certain orders that may increase volatility in the options markets during times of extraordinary market volatility and may potentially lead to errors and poor executions due to the lack of reliable reference prices for the options and the width of the markets. Thus, reducing these risks should help encourage market participants to continue to provide liquidity during extraordinary market volatility.
The proposal to consider the frequency and duration of Straddle States and/or Limit States in the underlying NMS stock as mitigating circumstance in determining whether the Market Maker has met their quoting obligations will help ensure Market Markers continue to provide their necessary role in helping to facilitate transactions, to preserve market liquidity, and to help ensure the fair and orderly trading of stock options on the Exchange during periods of extraordinary market volatility while also providing reasonable relief when necessary.
In addition, the proposal to not allow electronic transactions in stock options that occur during a Limit State or a Straddle State to be subject to review under Rule 975NY(a) for Obvious Errors or Rule 975NY(d) for Catastrophic Errors is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, by ensuring that Exchange officials do not have discretion to cancel trades. This change would ensure that limit orders that are filled during a Limit or Straddle State would have certainty of execution in a manner that promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system. The proposal to allow electronic transactions in options that occur during a Limit State or a Straddle State may be reviewed on Exchange motion pursuant to 975NY(b)(3) is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, by providing the flexibility for the Exchange to still review transactions for Obvious Error treatment when in the interest of maintaining a fair and orderly market and for the protection of investors.
Finally, the proposal to amend Rule 953NY will ensure that the Exchange halts trading in all options whenever the equities markets initiate a market-wide trading halt circuit breaker in response to extraordinary market conditions in a manner that promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system because the proposed rule change will assure that the Exchange will halt options trading regardless of the triggers that the equities markets use to initiate a market-wide halt in trading.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed changes are being made to provide for how the Exchange shall treat orders and quotes in options overlying NMS stocks when the Plan is in effect and will not impose any burden on competition while providing certainty of treatment and execution of options orders during periods of extraordinary volatility in the underlying NMS stock, and facilitating appropriate liquidity during a Limit State or Straddle State.
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 such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposal to amend Exchange Rule 1101A (Terms of Option Contracts) to amend Exchange Rule 1101A (Terms of Option Contracts) to clarify that long-term index options series (“long-term options series”) must have a term of not less than nine months to expiration,
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend subsection (b) of Rule 1101A to clarify that long-term options series must have a term of not less than nine months to expiration, and to reflect that certain rules will not apply to such long-term options series until the time to expiration is less than nine months. These changes are proposed to the limited extent needed to make subsection (b) regarding long-term options series consistent with the established rule language of Chicago Board Options Exchange, Inc. (“CBOE”) (e.g. CBOE Rule 24.9 regarding LEAPS
The Exchange believes that its proposal is proper, and indeed desirable, in light of its objective to continue to harmonize the listing rules for options products offered for trading on the Exchange, particularly in light of the symbiotic hedging and trading relationship between index options and other option classes on Phlx, such as stock and ETF options, as well as with options classes on other options exchanges.
Rule 1101A has been developed to discuss, among other things, when and how the Exchange may open months and series (including long-term series) in classes of index options that have been approved for listing and trading on the Exchange. The rule also discusses the price intervals for index option products that include quarterly options, short term options, and currency options. Rule 1101A(b) indicates how the Exchange initially fixes expiration months and series in index options.
Rule 1101A(b) currently states that at the commencement of trading on the Exchange of a particular class of stock index options, the Exchange will open at least one expiration month and series for each class of options open for trading on the Exchange.
Rule 1101A(b)(iii) states that long-term options series have a maximum term of up to 60 months to expiration. The Exchange proposes language in subsection (b)(iii) to also establish a minimum term of not less than nine months to expiration for long-term options series. The Exchange incorporates the long-term options series definition provided in (b)(iii) into subsection (b) to indicate the nine month floor and 60 month ceiling of long-term options series, just as it does in (b)(iii), while deleting obsolete language. The Exchange believes that this is proper and desirable. First, it conforms subsection (b) and (b)(iii) where they refer to long-term options series. Second, it establishes a floor for long-term options series, as is done in CBOE Rule 24.9.
In addition, the Exchange proposes new language in Rule 1101A(b)(iii) to indicate that strike price interval, bid/ask differential and continuity rules shall not apply to options series until the time to expiration is less than nine months (that is, until such time that they are no longer long-term options). This is a concept that is clearly established on the Exchange as well as on other options exchanges. First, the proposed new language directly keys in to the nine month floor for long-term options series that is established in subparagraphs (b) and (b)(iii). Second, the proposed language regarding non-applicability of intervals, differentials, and continuity rules until expiration time is less than nine months is identical to the language found in Rule 1012(a)(i)(D), which deals with long-term equity and ETF options.
The Exchange believes that clarification of its rules to harmonize them across various option classes on Phlx, and other options exchanges, would allow more precise tailoring of hedging and trading opportunities and would thereby be beneficial to the Exchange and its traders, market participants, and public investors in general.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder, including the requirements of Section 6(b) of the Act.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange believes the proposal is pro-competitive. The rule change clarifies the Exchange's long-term index options rules and thereby allows it to more effectively compete with other exchanges in terms of long-term index options products.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)
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 (iii) [sic] 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.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to require that listed companies establish and maintain an internal audit function. The text of the proposed rule change is below. Proposed new language is in italics.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to adopt a new rule to require all listed companies to establish and maintain an internal audit function.
To preserve flexibility, listed companies may choose to outsource this function to a third party service provider other than their independent auditor. However, in all instances, the audit committee has sole responsibility to oversee the internal audit function and cannot allocate or delegate this responsibility to another board committee.
Finally, while Nasdaq believes that, consistent with best practices, many listed companies have already established and implemented an internal audit function, to allow sufficient time for companies that have not yet done so, each company listed on Nasdaq on or before June 30, 2013, will be required to establish an internal audit function by no later than December 31, 2013. Companies listed after June 30, 2013, will be required to establish an internal audit function prior to listing.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 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. In this regard, Nasdaq notes that the competition among exchanges for listings is robust and vigorous, and the proposed rule change is not intended, nor is it expected, to reduce or diminish such competition.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 (
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 its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of 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.
On February 8, 2013, the Commission approved a proposed rule change that would amend CBOE rules to permit the listing and trading, on a pilot basis, of cash-settled S&P 500 index options with third-Friday-of-the-month (“Expiration Friday”) expiration dates for which the exercise settlement value will be based on the index value derived from the closing prices of component securities (“P.M.-settled”) (the proposed contract is referred to as “SPXPM”).
The Exchange already lists and trades A.M.-settled options on the S&P 500 index under the contract “SPX.” Therefore, the Exchange proposes to assess the same fees regarding SPXPM as are assessed regarding SPX (with a few exceptions, which shall be explained herein). Like SPX, SPXPM is one of the Exchange's proprietary index options products, and the Proprietary Index Options Rate Table will apply to SPXPM (as such, SPXPM, like SPX, will be excluded from the Exchange's other Index Options Rate Table, which excludes a number of proprietary index products
All of the proposed SPXPM transaction fees listed above are the same amounts as those for SPX, with the exception of the Professional/Voluntary Professional fee.
The Exchange also proposes to apply to SPXPM, like SPX, an Index License Surcharge Fee of $0.13 per contract.
Like SPX, the Exchange proposes to except SPXPM from the Liquidity Provider Sliding Scale,
Unlike SPX, the Exchange does not propose to apply a Tier Appointment Fee
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
It is equitable and not unfairly discriminatory to assess lower fees to CBOE Market-Maker/DPM/E-DPM/LMM orders than those other market participants because CBOE Market-Makers/DPMs/E-DPMs/LMMs must take on a number of obligations, such as quoting obligations, that other market participants do not take on. Similarly, it is equitable and not unfairly discriminatory to assess lower fees to Clearing Trading Permit Holder Proprietary orders than those of other market participants because Clearing Trading Permit Holders have a number of obligations (such as membership with the Options Clearing Corporation), significant regulatory burdens, and financial obligations, that other market participants do not need to take on.
Assessing a higher fee for Customer transactions in SPXPM options whose premium is greater than or equal to $1.00 than for Customer transactions in SPXPM options whose premium is less than $1.00 is equitable and not unfairly discriminatory because the nearly all options based on the S&P 500 Index are priced at well above $1.00. However, most Customers, at the end of an expiration cycle, desire to continue to hold options based on the S&P 500 Index (including both SPX and SPXPM), and because it is the end of an expiration cycle, such options are priced very low. The Exchange therefore offers lower pricing for Customer SPX options (and proposes to offer equivalent pricing for SPXPM options) in order to encourage such trading and thus encourage Customers to open SPX (and SPXPM) options positions in the next cycle. As these new positions will almost certainly be priced above $1.00, offering the lower pricing for SPXPM options whose premium is below $1.00 therefore benefits market participants trading SPXPM options whose premium is at or above $1.00 by encouraging Customers to open up those positions (thereby providing greater liquidity). Customer fees for SPXPM options will still be lower than those assessed to Broker-Dealers and non-Trading Permit Holder Market-Makers (among other market participants) because Customers are not assessed a Surcharge Fee for SPXPM options transactions. Further, the Exchange currently offers different fees depending on the premium for Customer transactions in SPX options, and the amounts of the proposed SPXPM Customer transaction fees are equivalent to those already in existence for SPX.
Also, the SPXPM fee amounts for each separate type of market participant will be assessed equally to all such market participants (
Assessing the Floor Brokerage Fee of $0.04 per contract ($0.02 per contract for crossed orders) to Floor Brokers (and not other market participants) trading SPXPM orders is equitable and not unfairly discriminatory because only Floor Brokers are statutorily capable of representing orders in the trading crowd, for which they charge a commission. Moreover, this fee is already assessed, in the same amounts, to SPX orders.
Assessing the Index License Surcharge Fee of $0.13 per contract to SPXPM transactions is reasonable because the Exchange still pays more for the SPXPM license than the amount of the proposed SPXPM Index License Surcharge Fee (meaning that the Exchange will be subsidizing the costs of the SPXPM license). This increase is equitable and not unfairly discriminatory because the increased amount will be assessed to all market participants to whom the SPXPM Surcharge applies. Not applying the SPXPM Index License Surcharge Fee to Customer orders is equitable and not unfairly discriminatory because this is designed to attract Customer SPXPM orders, which increases liquidity and provides greater trading opportunities to all market participants. Further, there is a longstanding practice in the options marketplace of providing preferential pricing for Customers. Moreover, the proposed SPXPM Index License Surcharge Fee amount is the same amount as already exists for SPX, which also does not apply to Customer orders.
Excepting SPXPM from the Liquidity Provider Sliding Scale, the Marketing Fee, the Fee Cap, the exemption from fees for facilitation orders, the AIM Contra Execution Fee, the CFLEX AIM Response Fee, the Market-Maker Trading Permit Sliding Scale, and the CFLEX AIM Credit is reasonable because SPX is excepted from those same items. This is equitable and not unfairly discriminatory for the same reason; it seems equitable to except SPXPM from items on the Fees Schedule from which SPX, an index options product that, like SPXPM, is based on the S&P 500 Index, is also excepted (barring any further rationale to the contrary).
Applying to SPXPM the CBOE Proprietary Products Sliding Scale and the Customer Large Trade Discount is
Not applying a Tier Appointment Fee, the Hybrid 3.0 Execution Fee, the SPX Arbitrage Phone Positions Fee, and the CME Members SPX Fee to SPXPM is reasonable because those market participants involved in the trading of SPXPM will not have to pay such fees. Not applying a Tier Appointment Fee to SPXPM is equitable and not unfairly discriminatory because the Exchange desires to encourage Market-Makers to register for an SPXPM tier appointment, and the more Market-Makers that do so, the more SPXPM quoting there will be, which benefits all market participants. Not applying a fee to Floor Brokers who execute more than 20,000 SPXPM contracts during a month is equitable and not unfairly discriminatory because the Exchange is not assessing a Tier Appointment Fee for SPXPM (the fee for Floor Brokers in SPX is intended to equalize the opportunity between Market-Makers and Floor Brokers in those classes (since SPX has a Tier Appointment Fee)).
Not applying the Hybrid 3.0 Execution Fee to SPXPM is equitable and not unfairly discriminatory because SPXPM is not traded on Hybrid 3.0. Not assessing the SPX Arbitrage Phone Positions Fee to SPXPM is equitable and not unfairly discriminatory because this fee refers to the actual SPX crowd area at the Exchange. Not applying the CME Members SPX Fee to SPXPM is equitable and not unfairly discriminatory because such fees are no longer applicable to CBOE and the Exchange intends propose to remove them from the Fees Schedule shortly.
CBOE 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. CBOE does not believe that assessing lower fees to CBOE Market-Maker/DPM/E-DPM/LMM orders than those other market participants will impose any unnecessary burden on intramarket competition because CBOE Market-Makers/DPMs/E-DPMs/LMMs must take on a number of obligations, such as quoting obligations, that other market participants do not take on. Similarly, CBOE does not believe that assessing lower fees to Clearing Trading Permit Holder Proprietary orders than those of other market participants will impose any unnecessary burden on intramarket competition because Clearing Trading Permit Holders have a number of obligations (such as membership with the Options Clearing Corporation), significant regulatory burdens, and financial obligations, that other market participants do not need to take on.
CBOE does not believe that not applying the SPXPM Index License Surcharge Fee to Customer orders will impose any unnecessary burden on intramarket competition because this is designed to attract Customer SPXPM orders, which increases liquidity and provides greater trading opportunities to all market participants. Further, there is a longstanding practice in the options marketplace of providing preferential pricing for Customers.
CBOE does not believe that the proposed SPXPM fees will impose any unnecessary burden on intramarket competition because SPXPM is a proprietary product that will only be traded on CBOE. However, to the extent that the proposed SPXPM fees may be attractive to market participants on other exchanges, such market participants may always elect to become CBOE market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes (i) to adopt new Exchange Rule 6.65A to provide for how the Exchange proposes to treat orders, market-making quoting obligations, and errors in response to the Regulation NMS Plan to Address Extraordinary Market Volatility; and (ii) to amend Exchange Rule 6.65 to codify that the Exchange shall halt trading in all options overlying NMS stocks when the equities markets initiate a market-wide trading halt due to extraordinary market volatility. 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 (i) to adopt Exchange Rule 6.65A to provide for how the Exchange proposes to treat orders, market-making quoting obligations, and errors in response to the Regulation NMS Plan to Address Extraordinary Market Volatility (the “Plan”), which is applicable to all NMS stocks, as defined in Regulation NMS Rule 600(b)(47); and (ii) to amend Exchange Rule 6.65 to codify that the Exchange shall halt trading in all options when the equities markets initiate a market-wide trading halt due to extraordinary market volatility. The Exchange proposes to adopt new Rule 6.65A for a pilot period that coincides with the pilot period for the Plan, which is currently scheduled as a one-year pilot to begin on February 4, 2013 [sic].
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Plan is designed to prevent trades in individual NMS stocks from occurring outside of specified Price Bands.
As set forth in more detail in the Plan, Price Bands consisting of a Lower Price Band and an Upper Price Band for each NMS Stock are calculated by the Processors.
Trading in an NMS stock immediately enters a Limit State if the National Best Offer (Bid) equals but does not cross the Lower (Upper) Price Band.
The Exchange proposes to adopt new Exchange Rule 6.65A to provide for how the Exchange shall treat orders and quotes in options overlying NMS stocks when the Plan is in effect.
First, the Exchange proposes rules regarding the treatment of certain orders or quotes if the underlying NMS stock is in a Limit State and Straddle State. Whenever an NMS stock is in a Limit State or Straddle State, trading continues, however, there will not be a reliable price for a security to serve as a benchmark for the price of the option. For example, if the underlying NMS stock is in a Limit State, while trading in that stock continues, by being in a Limit State, there will be either cancellations or executions at that price, and if the Limit State is not resolved in 15 seconds, the NMS Stock will enter a Trading Pause. If an NMS stock is in a Straddle State, that means that there is either a National Best Bid or National Best Offer that is non-executable, which could result in limited price discovery in the underlying NMS stock. In addition to the lack of a reliable underlying reference price, the Exchange is concerned about the width of the markets and quality of the execution for market participants during Limit or Straddle States. While the Exchange recognizes the importance of continued trading in options overlying NMS stocks during Limit States and Straddle States, the Exchange believes that certain types of orders increase the risk of errors and poor executions and therefore should be not allowed during these times when there may not be a reliable underlying reference price, there may be a wide bid/ask quotation differential, and lower trading liquidity in the options markets. Specifically, the Exchange proposes that if the underlying NMS stock is in a Limit State or Straddle State, the Exchange shall reject all incoming Market Orders and will not elect Stop Orders.
Second, the Exchange proposes to adopt subsection (b) to provide that when evaluating whether a Lead Market Maker has met its market-making quoting requirement pursuant to Rule 6.37B(b) or a Market Maker has met its market-making quoting requirement pursuant to Rule 6.37B(c) in options overlying NMS stocks, the Exchange shall consider as a mitigating circumstance the frequency and duration of occurrences when an underlying NMS stock is in a Limit State or a Straddle State. This is necessary given the direct relationship between an options price and the price of the underlying security. During a Limit or Straddle State, the bid price, offer price or both of the underlying security will be unexecutable [sic]. With the bid and or offer flagged unexecutable, the ability to hedge the purchase or sale of an option will be jeopardized and in fact it may not be possible to purchase or sell shares of the underlying security at any price to offset the risk created by either buying or selling calls and/or put options during a Limit State or a Straddle State. The Exchange expects that its Market Makers will need to modify their quoting behavior as a result. For the reasons described below the Exchange feels that the proposed change to consider as a mitigating circumstance the frequency and duration of periods during which an underlying NMS stock is in a Limit State or a Straddle State is the appropriate approach until such a time as the Exchange has more experience with the impact of the Plan on the options marketplace, particularly the impact on Market Makers' ability to provide liquidity in an option when unknown (and possibility very limited) liquidity exists in the underlying security.
The Exchange has settled on this approach after analyzing in detail the alternatives. An undesirable alternative for the Exchange would be to propose to relax the quoting obligations. The relaxed quoting obligations could apply to the full trading day or just during the periods of extraordinary market volatility in the underlying NMS stock during a Straddle State or Limit State. The Exchange could, for example, have proposed to adopt the same market maker quoting obligations that apply to market makers another options market that only required its market makers to provide a two-sided continuous quote, without any $5 or tighter bid-ask differential.
Therefore, in lieu of these alternatives, the Exchange proposes to adopt subsection (b) to provide that when evaluating whether a Specialist has met its market-making quoting requirement pursuant to Rule 925.1NY(b) [sic] or a Market Maker has met its market-making quoting requirement pursuant to Rule 925.1NY(c) [sic] in options overlying NMS stocks, the Exchange shall consider as a mitigating circumstance the frequency and duration that an underlying NMS stock is in a Limit State or a Straddle State. For example, if an OTP Holder fails to meet its monthly quoting obligations, and during the review, it is determined that the quoting that failed to meet the obligation was for options that overlay NMS stocks with a significant number of Straddle States and Limit States, then pursuant to proposed Rule 6.65A(c), that would be considered a mitigating circumstance that would entitle the OTP Holder to relief. The Exchange will work with FINRA to monitor the impact of Straddle States and Limit States on a Lead Market Maker or Market Marker's ability to meet its market-maker quoting requirements. The Exchange notes that it does not believe that it needs to modify the existing quoting obligations for Market Markers in Rules 6.37, 6.37A, and Rule 6.37B to reflect how such quoting requirements may interact with how underlying NMS stocks trade during a Straddle State or Limit State. Rather, during periods of extraordinary market volatility in the underlying NMS stock, the Exchange believes that the existing quoting requirements should be maintained in order to facilitate transactions, preserve market liquidity, and ensure the fair and orderly trading of options on the Exchange. This change is also designed to eliminate the technologically difficult and economically prohibitive systems programming that would be required if the Exchange eliminated the $5 bid-ask differential requirement only during Straddle States or Limit States.
Finally, the Exchange proposed to adopt subsection (c) to provide that electronic transactions in stock options that occur during a Limit State or a Straddle State would not be subject to review under Rule 6.87(a) for Obvious Errors or Rule 6.87(d) for Catastrophic Errors. In addition, subsection (c) will provide that electronic transactions in options that overlay an NMS stock that occur during a Limit State or a Straddle State may be reviewed on Exchange motion pursuant to 6.87(b)(3).
The Exchange has settled on this approach after analyzing in detail the alternatives. An undesirable alternative for the Exchange would be to maintain the current operation of Rule 6.87(a) for Obvious Errors or 6.87(d) for Catastrophic Errors during the Limit State or Straddle State. Pursuant to Rules 6.87(a), market participants may have up to 30 minutes to review a transaction as an Obvious Error. Pursuant to 6.87(d), market participants may have up to 8:30 a.m. e.t. on the first trading day following a transaction to review it as a Catastrophic Error. The Exchange believes that during periods of extraordinary volatility, the review period for transactions under the Obvious Error and Catastrophic Error provisions would allow market participants a second look at transactions during a Limit State or a Straddle State that is potentially unfair to other market participants. For example, thirty minutes after a transaction that occurs during extraordinary volatility that triggers a Limit State or a Straddle State the market could look drastically different from a price and liquidity level. The Exchange believes that market participants should not be able to benefit from the time frame to review their transactions in these situations. This change would ensure that limit orders that were filled during a Limit or Straddle State would have certainty of execution. As noted above with respect to the treatment of Market Orders and Stop Orders when the underlying NMS Stock is in a Limit or Straddle State, the Exchange believes that adding certainty to the execution of orders in these situations will encourage market participants to continue to provide liquidity to the Exchange and thus promote a fair and orderly market. Barring this change, the provisions of Rule 6.87(a)(2)(B) would likely apply in many instances during Limit or Straddle States. This Rule provides that, “if there are not quotes for comparison purposes, or if bid/ask differential for the national best bid or offer for the effected series just prior to the transaction was at least two times the permitted bid/ask differential pursuant to Rule 6.37(b)(1)(A-E), as determined by a designated trading official.” The Exchange believes this provision would give rise to much uncertainty for market
• A $500 security enters a Straddle State resulting in un-executable bids and offers.
• Consequently the market for the options on that security widens to reflect the uncertainty surrounding what price the stock may be sold at to hedge the sale of puts or purchase of calls. Prior to entering the Straddle State, the 22 day at the money $500 strike put options were trading at $24.45-$24.65.
• A limit order to pay $32 for 10 is entered resulting in a new market of $32.00-$35.00. 14 seconds after entering the Limit State in the underlying security, a limit order to sell 10 contracts at $32 is received and trades with the posted $32 limit order to buy. Immediately after the trade is consummated, the Straddle State in the underlying security has not resolved and consequently the underlying security is halted. Upon resumption of trading in the underlying security, consider two possible scenarios:
• Scenario 1—The market for the security is $450-$452. The puts which traded immediately prior to the trading halt are now worth at least their intrinsic value of $50 and quite likely are trading with some time premium as well. The seller of 10 contracts at $32 immediately requests an Obvious Error review under the provisions of Rule 975NY [sic].
• Scenario 2—The market for the security is now $550-$552. The puts which traded immediately prior to the trading halt are now worth an estimated $8.
Under both scenarios the bid/ask spread in the option was $2 at the time of the trade and as such it now falls to a designated trading official to determine what the “theoretical value” of the option is. Absent the ability to ascertain prices at which the stock could have been bought or sold
Another undesirable alternative for the Exchange would be to propose to always use the prevailing NBBO as the metric to decide whether an error has occurred, irrespective of how wide the NBBO was at the time of the execution. This approach alleviates the burden on the Exchange of having to ascribe a Theoretical Price to an option when the stock has an un-executable bid, offer or both but it still presents significant problems. For example, in a Limit or Straddle State it is likely that there will be less depth of book—both on an intra as well as an inter-market basis. This gives rise to the potential for gaming of the Obvious Error Rule which mandates that Market Maker to Market Maker trades are always adjusted. For example, consider this scenario:
An NYSE Amex Market Maker is offering 100 contracts at $15. Another NYSE Amex Market Maker enters an ISO order to buy 100 contracts at $15. Immediately after the execution the same NYSE Amex Options Market Maker requests a review under Rule 6.87. Simply using the NBBO, in this case $7, would mean that as required under Rule 6.87, the Exchange would rule to adjust that trade to $7.30, essentially forcing the NYSE Amex Market Maker who was willing to provide liquidity at $15 to instead provide liquidity at the much worse price of $7.30. Such an outcome would undoubtedly result in fewer Market Makers willing to post any liquidity for fear of having the same thing happen to them. The Exchange notes that, if instead of a Market Maker offering 100 contracts at $15, it was a Customer with a resting order in the Consolidated Book the outcome of a review under Rule 6.87 would have been to bust the trade. The time permitted to request a review, conduct the review and issue notification to the affected parties can be substantial, particularly in light of a Limit or Straddle State where the underlying security price is likely to be moving considerably. So we have a Customer who having sold options at $15 which (for example) they bought earlier for $10 finds themselves without a profit but instead with an open position. Obviously should the stock move adversely during the time taken to review the trade it is even possible for the option to be worth less than where the Customer who was offering at $15 purchased it. The Exchange strongly believes that certainty of trade during periods of market volatility is vital in order to operate a fair and orderly market.
Therefore, in lieu of these alternatives, the Exchange proposes to provide that the electronic transactions in stock options that occur during a Limit State or a Straddle State would not be subject to review under Rule 6.87(a) for Obvious Errors or Rule 6.87(d) for Catastrophic Errors. The Exchange would still review transactions in the interest of maintaining a fair and orderly market
The Exchange notes that there are additional protections in place outside of the Obvious Error Rule, specifically pre-trade protections. First, SEC Rule 15c3-5 requires that, “financial risk management controls and supervisory procedures must be reasonably designed to prevent the entry of orders that exceed appropriate pre-set credit or capital thresholds, or that appear to be erroneous.”
The Exchange proposes to amend Rule 6.65 so that the Exchange, as an options market, can better respond to the manner by which the equities markets declare a market-wide trading halt, also known as a market-wide circuit breaker,
As noted above, the Commission has approved changes to the equities exchanges and FINRA rules regarding market-wide trading halt rules, which are currently scheduled to go into effect on a one-year pilot basis beginning February 4, 2013 [sic]. The Exchange proposes to amend Rule 7.5 to reflect the changes approved for the equities markets by deleting the text that restates the former equities rule on halting trading in stocks and replace it with a new provision in Rule 6.65 that provides more generally that if the equities markets initiate a market-wide trading halt in response to extraordinary market volatility, the Exchange would likewise halt trading in all options. The proposed rule change is similar to a recently approved rule adopted by CBOE.
The proposed rule change provides that whenever the equities markets halt trading in all NMS stocks due to extraordinary market volatility, the Exchange will similarly halt trading in all options. The Exchange believes that the proposed rule change can be adopted on a permanent basis notwithstanding that the equities market version of the market-wide circuit breakers has been adopted on a pilot basis. In particular, the Exchange believes that the proposed rule provides the Exchange with flexibility to halt trading in options whenever the equities markets halt trading in all stocks, regardless of what triggers that the equities markets may use for halting trading in all stocks. Accordingly, if the equities market pilot rules were to expire and revert back to the pre-February 4, 2013 [sic] version of market-wide trading halts, or if the equities markets again amend the triggers for their market-wide circuit breaker rule, the proposed Exchange rule would have sufficient flexibility to work with the revised equities rule without requiring an additional rule change by the Exchange. The Exchange also notes that
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Act
The proposal to add Rule 6.65A will ensure that trading in options that overlay NMS stocks is appropriately modified to reflect market conditions that occur during a Limit State or a Straddle State in a manner that promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system. Specifically, the proposal will help allow market participants to continue to trade stock options during times of extraordinary market conditions without the added risk of certain orders that may increase volatility in the options markets during times of extraordinary market volatility and may potentially lead to errors and poor executions due to the lack of reliable reference prices for the options and the width of the markets. Thus, reducing these risks should help encourage market participants to continue to provide liquidity during extraordinary market volatility.
The proposal to consider the frequency and duration of Straddle States and/or Limit States in the underlying NMS stock as mitigating circumstance in determining whether the Market Maker has met their quoting obligations will help ensure Market Makers continue to provide their necessary role in helping to facilitate transactions, to preserve market liquidity, and to help ensure the fair and orderly trading of stock options on the Exchange during periods of extraordinary market volatility while also providing reasonable relief when necessary.
In addition, the proposal to not allow electronic transactions in stock options that occur during a Limit State or a Straddle State to be subject to review under Rule 6.87(a) for Obvious Errors or Rule 6.87(d) for Catastrophic Errors is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, by ensuring that Exchange officials do not have discretion to cancel trades. This change would ensure that limit orders that are filled during a Limit or Straddle State would have certainty of execution in a manner that promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system. The proposal to allow electronic transactions in options that occur during a Limit State or a Straddle State may be reviewed on Exchange motion pursuant to 6.87(b)(3) is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, by providing the flexibility for the Exchange to still review transactions for Obvious Error treatment when in the interest of maintaining a fair and orderly market and for the protection of investors.
Finally, the proposal to amend Rule 6.65 and delete current Rule 7.5 will ensure that the Exchange halts trading in all options whenever the equities markets initiate a market-wide trading halt circuit breaker in response to extraordinary market conditions in a manner that promotes just and equitable principles of trade and removes impediments to, and perfects the mechanism of, a free and open market and a national market system because the proposed rule change will assure that the Exchange will halt options trading regardless of the triggers that the equities markets use to initiate a market-wide halt in trading.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed changes are being made to provide for how the Exchange shall treat orders and quotes in options overlying NMS stocks when the Plan is in effect and will not impose any burden on competition while providing certainty of treatment and execution of options orders during periods of extraordinary volatility in the underlying NMS stock, and facilitating appropriate liquidity during a Limit State or Straddle State.
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 such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ proposes to assess a fee for the Limit Locator service under Rule 7061. NASDAQ will begin assessing the proposed fee on April 8, 2013.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
Limit Locator is a tool to assist a member firm in monitoring its trades reported into the FINRA/NASDAQ TRF for compliance with the requirements of the National Market System Plan to Address Extraordinary Market Volatility. The service provides a subscribing member firm with an overview of its trades reported at, or outside of, a designated Limit Up/Limit Down pricing band. The service will provide a total count of the subscribing member firm's trades in each category as well as present this information graphically, on a rolling month basis. A subscribing member firm is able to create custom email alerts to notify users when a trade is reported at, or outside of, a Limit Up/Limit Down pricing band. Limit Locator is accessed through the NASDAQ Workstation or Weblink ACT 2.0 and is offered
In its filing with the Commission, NASDAQ included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NASDAQ is proposing to amend Rule 7061 to establish fees for the Limit Locator service. Limit Locator is an add on tool to the NASDAQ Workstation and Weblink ACT 2.0 that assists a member firm that is a FINRA/NASDAQ TRF (“TRF”) participant in monitoring its trades reported into the TRF for compliance with the requirements of the National Market System Plan to Address Extraordinary Market Volatility (the “Plan”).
NASDAQ implemented Limit Locator on February 4, 2013
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange operates in a highly competitive market in which third parties and member firms themselves are able to develop and provide information similar to that of Limit Locator. The service uses a subscribing member firm's data, and as such, the member firm may elect to capture it and perform the same analysis provided by Limit Locator, or seek a solution from a third party. NASDAQ has invested time and capital in developing the service and has determined that the proposed fee is reasonable. Accordingly, to the extent that a member firm believes that the fee is excessive or unreasonable it need not subscribe to the service, and may alternatively capture and analyze the data on its own or through a third party provider. Moreover, the Exchange believes the proposed fees are reasonable because they are based on the Exchange's costs to cover the development and maintenance of the service. The proposed fee will allow the Exchange to recoup these costs and make a profit, while providing member firms the ability to better comply with the requirements of the Plan. The Exchange believes the proposed fee is equitably allocated because all Exchange member firms that voluntarily select this service will be charged the same amount for the same service. As noted, subscription to the service is entirely voluntary and available to all Exchange member firms that are FINRA/NASDAQ TRF participants.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, this proposal will promote competition among member firms, since it provides a compliance solution to member firms that may not have the financial wherewithal to develop such a system on their own. Moreover, by promoting compliance with the Plan, the service will also promote a more efficient and orderly market in which buyers and sellers can compete amongst each other without inadvertently running afoul of the restrictions of the Plan.
Written comments were neither solicited nor 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
OCC proposes to implement a revised method of calculating clearing members' respective contributions to OCC's clearing fund.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to revise OCC's By-Laws and Rules to implement a revised method of calculating clearing members' respective contributions to OCC's clearing fund. Currently, clearing members contribute to the clearing fund in proportion to average daily open interest, i.e., the total number of cleared contracts and open positions plus units of stock underlying open stock loan or borrow positions, over the calendar month preceding the date of calculation, subject to a $150,000 minimum contribution. There are exceptions for a small number of Execution-Only Clearing Members,
OCC has developed a new allocation formula that it believes would more equitably allocate contributions among its clearing members based on each clearing member's particular activities and use of OCC's facilities. The revised formula would include the following components: (1) Open interest; (2) total risk charge; and (3) volume.
OCC believes that the 1980 Standards for the Registration of Clearing Agencies issued by the staff of the Securities and Exchange Commission supports the idea that clearing members' use of the services of a clearing agency forms an appropriate basis on which clearing members should correspondingly be required to participate in the obligations of the clearing agency's risk management framework.
OCC believes that its proposed allocation formula is preferable to its current formula because, by incorporating measurements of volume and certain risk charges, it would apportion contributions based on more sophisticated measurements of clearing members' usage of OCC's facilities. OCC believes that clearing member volume and risk charges would recognize demands on OCC's services and facilities that are not captured by open interest alone. OCC believes that the new formula would incorporate open interest, total risk charge, and volume, in proportions that are designed to equitably allocate clearing fund requirements in light of these additional demands. Specifically, open interest, total risk charge, and volume would have weightings of 50%, 35%, and 15%, respectively. OCC contemplated alternative weightings in its decision to propose this particular allocation method but believes that the proposed formula is appropriate because it would give significant weight to the new volume and risk charge components and tie allocations more closely to demands placed by clearing members on OCC's facilities. While the revised formula would result in significant reallocations of contributions, OCC does not expect that it would unduly burden those clearing members anticipated to experience increased contributions.
OCC believes it is appropriate for open interest to continue to serve as the most heavily weighted component because open interest, generally speaking, is a measure of a clearing member's overall usage of OCC's facilities. With respect to open interest, the definition of open interest in proposed Rule 1001(d) is not identical to the definition of open interest in existing Rule 1001(b), which OCC proposes to delete. However, OCC believes that the differences in these two definitions are not material and are the result of the use of the defined term “cleared contract” in proposed Rule 1001(d) instead of specifically naming the individual types of contracts that make up “cleared contracts,” as well as general updating and restructuring of the rule provision.
OCC also believes that risk and volume are relevant factors because they distinctly measure material aspects of clearance and settlement activity and therefore a clearing member's use of OCC's resources. Each clearing
OCC believes that the inclusion of risk and volume metrics within OCC's clearing fund allocation formula would generally reflect similar practices that are already in place at other registered clearing agencies. OCC believes that these existing allocation practices of other clearing agencies represent a meaningful benchmark of practices that are used across the industry. Taking those practices into account, OCC evaluated the appropriateness of including these mechanisms in its own allocation formula in a way that is tailored to the nature and demands of OCC's particular business. OCC understands that one clearing agency allocates contributions among its affected clearing members using certain measures of volume and open interest in addition to considering margin requirements over a given period.
OCC's intends that its proposed total risk charge would measure the economic significance of the activities of a clearing member. The total risk charge is equal to the margin requirement, as determined by OCC, of the accounts of the clearing member exclusive of the net asset value of those accounts. OCC notes that a range of factors influence the relationship between the open interest in a clearing member's account and its associated risk charge. For example, for each clearing member these factors include, but are not limited to, the types of positions, number of long positions versus short positions, value of the securities underlying the contracts, volatility of the underlying, diversification, number of accounts of the clearing member, and the extent to which the clearing member's options positions are in-the-money or out-of-the-money.
Volume, like open interest, is a measure of a clearing member's level of usage of OCC's facilities. However, volume is distinct from open interest in that it is a function of the average turnover of the positions in the clearing member's account. Therefore, market-making, high frequency trading, and execution-only services are all examples of activities that tend to elevate volume relative to open interest. By contrast, holding long term positions in long term contracts is an example of activity that would lower a clearing member's volume relative to its open interest.
OCC notes that most Clearing Member Groups
The Clearing Fund requirements under the new allocation formula will be communicated to the clearing membership prior to the time they become effective to allow clearing members to review and prepare for any changes they may experience in their specific Clearing Fund contribution amount. OCC will contact those clearing members that will be negatively impacted in a material manner (i.e., an increase of 10% or greater in the dollar amount of a Clearing Member Group's aggregate Clearing Fund requirement) to confirm such clearing members have reviewed the pro forma Clearing Fund requirement numbers and they are ready to meet the new requirement upon implementation. OCC will then begin a two stage phase in process for the new Clearing Fund requirements. The first stage of implementation will occur within 180 calendar days from the date that OCC provides notice to clearing members of its intent to implement the new formula. At that stage, open interest, total risk charge, and volume would be applied in the formula with weightings of 75%, 17.5%, and 7.5%, respectively. The second stage of implementation and the final weightings of 50%, 35%, and 15% would then be implemented within 360 days from the same date of the original notice to clearing members concerning implementation of the new formula.
The proposed rule change would also create a defined term in OCC's By-Laws, “Futures-Only Affiliated Clearing Member,” to refer to a clearing member that is admitted solely for the purpose of clearing transactions in security futures, commodity futures, and/or futures options.
OCC believes that the proposed rule change is consistent with Section 17A of the Securities Exchange Act of 1934 (“Act”)
OCC does not believe that the proposed rule change would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
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 Commissions 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 comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-OCC-2013-02 and should be submitted on or before March 29, 2013.
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 filed a proposal for the BATS Options Market (“BATS Options”) to list and trade option contracts overlying 10 shares of a security (“Mini Options”).
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
The purpose of this proposed rule change is to amend BATS Rules 19.6 (Series of Options Contracts Open for Trading) and 21.4 (Meaning of Premium Quotes and Orders) to list and trade Mini Options overlying five (5) high-priced securities for which the standard contract overlying the same security exhibits significant liquidity. Specifically, the Exchange proposes to list Mini Options on SPDR S&P 500 (“SPY”), Apple, Inc. (“AAPL”), SPDR Gold Trust (“GLD”), Google Inc. (“GOOG”), and Amazon.com Inc. (“AMZN”).
For example, with AAPL trading at $605.85 on March 21, 2012, ($60,585 for 100 shares underlying a standard contract), the 605 level call expiring on March 23 was trading at $7.65. The cost of the standard contract overlying 100 shares would be $765, which is substantially higher in notional terms than the average equity option price of $250.89.
The Exchange currently lists and trades standardized option contracts on a number of equities and Exchange-Traded Funds (“ETFs”), each with a unit of trading of 100 shares. Except for the difference in the deliverable of shares, the proposed Mini Options would have the same terms and contract characteristics as regular-sized equity and ETF options, including exercise style. All existing Exchange rules applicable to options on equities and ETFs would apply to Mini Options. With respect to position
Also, of note, NYSE Arca, Inc. (“NYSE Arca”) lists and trades option contracts overlying a number of shares other than 100.
The Exchange believes that the proposal to list Mini Options will not lead to investor confusion. There are two important distinctions between Mini Options and regular-sized options that are designed to ease the likelihood of any investor confusion. First, the premium multiplier for the proposed Mini Options will be 10, rather than 100, to reflect the smaller unit of trading. To reflect this change, the Exchange proposes to add language to BATS Rule 21.4(a) which notes that bids and offers for an option contract overlying 10 shares would be expressed in terms of dollars per
The Exchange proposes to add BATS Rule 19.6 Interpretations and Policies .07 to reflect that after an option class on a stock, Exchange-Traded Fund Share, Trust Issued Receipt, Exchange Traded Note, and other Index Linked Security with a 100 share deliverable has been approved for listing and trading on the Exchange, series of option contracts with a 10 share deliverable on that stock, Exchange-Traded Fund Share, Trust Issued Receipt, Exchange Traded Note, and other Index Linked Security may be listed for all expirations opened for trading on the Exchange. Also, the Exchange is adding rule text to BATS
The Exchange notes that by listing the same strike price for Mini Options as for regular options, the Exchange seeks to keep intact the long-standing relationship between the underlying security and an option strike price, thus allowing investors to intuitively grasp the option's value,
With regard to the impact of this proposal on system capacity, the Exchange has analyzed its capacity and represents that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with the listing and trading of Mini Options. The Exchange has further discussed the proposed listing and trading of Mini Options with the OCC, which has represented that it is able to accommodate the proposal. In addition, the Exchange would file a proposed rule change to adopt transaction fees specific to Mini Options for listing and trading Mini Options. The current options pricing in the fee schedule would not apply to Mini Options. The Exchange will not commence trading of mini-option contracts until specific fees for mini-options contracts trading have been filed with the Commission.
This filing is similar to approved filings by several other exchanges, including NYSE Arca and the International Securities Exchange LLC (“ISE”)
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that investors would benefit from the introduction and availability of Mini Options by making options on high priced securities more readily available as an investing tool at more affordable prices, particularly for average retail investors, who otherwise may not be able to participate in trading options on high priced securities. The Exchange intends to adopt a different trading symbol to distinguish Mini Options from its currently listed option contracts and, therefore, eliminate investor confusion with respect to product distinction. Moreover, the proposed rule change is designed to protect investors and the public interest by providing investors with an enhanced tool to reduce risk in high priced securities. In particular, Mini Options would provide retail customers who invest in SPY, AAPL, GLD, GOOG, and AMZN in lots of less than 100 shares with a means of protecting their investments that is currently only available to those who have positions of 100 shares or more. Further, the proposed rule change is limited to just five high priced securities to ensure that only securities that have significant options liquidity and therefore, customer demand, are selected to have Mini Options listed on them.
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. In this regard and as indicated above, the Exchange notes that the rule change is being proposed as a competitive response to the NYSE Arca, ISE, and Nasdaq filings. The Exchange believes this proposed rule change is necessary to permit fair competition among the options exchanges.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the 30-day operative delay so that it can list and trade the proposed Mini Options as soon as it is able.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its rules related to complex orders. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the rules related to trading Complex Orders
The proposed rule change generally sets forth rules to facilitate and permit (i) Complex Orders to trade with interest on the BOX Book and (ii) the combination of a Complex Order and an order on one of its component single option series trading on the BOX Book (each a “Leg”) to trade with orders on the other component Leg on the BOX Book.
The Exchange believes this proposal is a reasonable modification to its rules, designed to facilitate increased interaction between orders on the BOX Book and orders on the Complex Order Book, and to do so in such a manner as to ensure a dynamic, real-time trading mechanism that maximizes the opportunity for trade executions for both Complex Orders and orders on single option series. The Exchange believes that it is appropriate and consistent with the Act, for the purpose of clarity and in the public interest, to (i) adopt the proposed amendments to Rules 100(a)(10) and 100(a)(33), (ii) adopt the proposed amendments to Rule 7110(c)(2), (iii) adopt the proposed amendments to Rule 7130(a)(2)(iv), (iv) adopt the proposed amendments to Rules 7150(f)(3), 7150(i) and 7150(j), and (v) delete in its entirety the existing provisions of Rule 7240 (Complex Orders) and adopt the proposed Rule 7240.
The proposed rule change will require that, before executing against another Complex Order, an executable inbound Complex Order on BOX will execute first against interest on the BOX Book if the net price of such interest on the BOX Book is equal to the best price on the Complex Order Book,
The Exchange believes this proposed rule change represents two improvements to the rules on other options exchanges regarding Complex Order trading: (i) The priority of the BOX Book is not limited to “if any of the bids or offers established in the marketplace consist of a Customer Order”
Consequently, a Complex Order will execute against other Complex Orders resting on the Complex Order Book only if the net price is better than cBBO
The exception to the priority of the BOX Book is the execution of a Complex Order on Strategies
The Exchange proposes to apply the straightforward principle of allowing execution of a Complex Order against another Complex Order when interest on the BOX Book at the same net price has already been executed. Thus, the execution price will be at a price better than cBBO (except in the case of insufficient quantity for Non-standard Strategies where the execution could occur at a price equal to cBBO). In the case of Non-standard Strategies, interest on the BOX Book will still have priority and be executed before a Complex Order, to the extent that there is sufficient quantity on the BOX Book to respect the ratio of the Strategy.
The Exchange proposes new provisions in Rule 7240(b)(2) and (3) regarding Complex Order Priority and Execution. Where multiple Complex Orders are at the same price and eligible for execution, they will execute in time priority. BOX will ensure that any such executions are at a price at least equal to cNBBO. The following discussion describes the interaction between orders on the Complex Order Book and interest on the BOX Book.
Proposed Rule 7240(b)(3) provides that a Complex Order will be automatically executed first against interest on the BOX Book for the individual Legs of the Strategy to the extent the Complex Order can be executed in the permissible ratio (as defined by the Strategy) and the price is equal to or better than both the cNBBO and the best price on the Complex Order Book.
“Implied Order” is defined as “a Complex Order at the cNBBO that is derived from the orders at the BBO on the BOX Book for each component Leg of a Strategy.”
“Legging Order” is defined as “a limit order on the BOX Book that represents one side of a Complex Order that is to buy or sell an equal quantity of two options series resting on the BOX Complex Order Book.”
Since a Complex Order will execute against another Complex Order once all interest on the BOX Book at the same price has been executed, any executions of two Complex Orders against each other will necessarily be at a price better than cBBO (except in the case of Complex Orders on Non-standard Strategies where the execution could occur at a price equal to cBBO). This is because, having given priority to the BOX Book, an opposite side Complex Order may execute against a Complex Order once all interest at the same price on the Strategy has been filled on the BOX Book (except in the case of Complex Orders on Non-standard Strategies where, following execution against interest on the BOX Book at the best price in a permissible ratio until the quantities remaining on the BOX Book are insufficient to execute against the Complex Order, the Complex Order may execute against another Complex Order); thus, by definition, any subsequent trade of the remaining quantity of the Complex Order takes place at a price better than the cBBO updated for the executions against the BOX Book (except in the case of Complex Orders on Non-standard Strategies where the execution could occur at a price equal to cBBO).
For additional discussion of the applicability of certain priority rules, see
BOX Book for Option A is:
BOX Book for Option B is:
BOX Book for Option C is:
Complex Order Book for Strategy A+B+C:
An order to sell 10 A+B+C at $3.00 is received.
Prior to execution of this order against the order to buy A+B+C at $3.00 on the Complex Order Book, BOX will determine whether it is possible to execute the inbound Complex Order to sell against interest on the BOX Book at a price equal to or better than the best bid on the Complex Order Book. Since this is the case, the sell order will execute against the bids on A, B and C at $1.00 each for 10 contracts each. As this execution will exhaust the inbound sell order, the Complex Order to buy 20 at $3.00 receives no trade allocation.
The remaining order books are then as follows:
BOX Book for Option A is:
BOX Book for Option B is:
BOX Book for Option C is:
Complex Order Book for Strategy A+B+C:
Beginning with the initial scenario in Example 1, an order to sell 30 (rather than 10 in Example 1) A+B+C at $3.00 is received.
For purposes of this example, assume that BOX is at NBBO on A, B and C and that the NBBO bid for each of A, B and C after these trades is equal to BBO.
The first 10 contracts execute against the BOX Book as in Example 1 above but an order to sell 20 A+B+C at $3.00 remains.
The cBBO for 5 A+B+C is then $2.98 (A: $0.99 + B: $1.00 + C: $0.99) while the best bid on the Complex Order Book is for 20 at $3.00. Since the Complex Order is at a price equal to cNBBO and better than the new cBBO, the remaining 20 to sell at $3.00 will match with the Complex Order bid. The resulting prices for each of the Legs will respect the requirement of “at least one Leg price better than BBO”
The remaining order books are then as follows:
BOX Book for Option A is:
BOX Book for Option B is:
BOX Book for Option C is:
Complex Order Book for Strategy A+B+C:
All inbound Complex Orders to BOX will be filtered to ensure that each Leg of a Complex Order will be executed at a price that is equal to or better than the NBBO and the BOX BBO for each of the component Legs.
If an inbound Complex Order is executable (against either opposite side Complex Orders on the Complex Order Book or interest on the BOX Book) on BOX, BOX will determine if the potential execution price is equal to or better than both cNBBO and cBBO. If so, the inbound Complex Orders will be automatically executed against bids and offers on the Complex Order Book in price/time priority; provided, however, that Complex Orders will execute against other Complex Orders only after interest at the same net price on the BOX Book for the individual Legs have been executed.
If an inbound Complex Order is executable (against either opposite side Complex Orders on the Complex Order Book or interest on the BOX Book) on BOX at a price that is not equal to or better than both cNBBO and cBBO, the incoming Complex Order will be exposed on the Complex Order Book for a period of up to one second at a price that is equal to cNBB
If an inbound Complex Order is not executable on BOX but is executable against cNBBO, Complex Limit Orders will be entered on the BOX Complex Order Book and BOX-Top Complex Orders and Market Complex Orders will be exposed on the BOX Complex Order Book at cNBB (in the case of a sell order) or cNBO (in the case of a buy order) for a period of up to one second; any executable, opposite side orders received during the exposure period, including interest on the BOX Book, will immediately execute against the exposed Complex Order and any unexecuted quantity remaining at the end of the exposure period will be cancelled.
If an inbound Complex Order is not executable on BOX and is not executable against cNBBO, it will be entered on the BOX Complex Order Book.
Begin with the initial scenario in Example 1. However, in Examples 1 and 2, it was assumed that each of the orders on a Leg were equal to NBBO for the related options series. For this example, suppose instead that the NBBO for Option B is $1.01 and $1.05 (better than BBO) and that Options A and C on the BOX Book are equal to NBBO. Accordingly, cNBBO for A+B+C would be $3.01-$3.15.
An order to sell 30 A+B+C at $3.00 is received.
In this case, the inbound order to sell 30 A+B+C at $3.00 would not be able to execute against either the BOX Book or the resting Complex Order bid because of the Complex Order filter.
Proposed Rule 7240(d)(1) defines an Implied Order to mean “a Complex Order at the cNBBO, derived from the orders at the BBO on the BOX Book for each component Leg of a Strategy, provided each component Leg is at a price equal to NBBO for that series.” In other words, an Implied Order for a Strategy is calculated and broadcast if each of the prices of the component Legs is equal to NBBO. Implied Orders are executed in the same manner as regular Complex Orders, including with respect to priority of the BOX Book.
When an Implied Order is no longer at the cNBBO, the Implied Order will be removed and a new Implied Order will be generated, provided there is interest on the BOX Book to generate an Implied Order at the new cNBBO.
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
Assume the bids on A and B on BOX are equal to NBBO for each such that cNBBO is $2.00.
Suppose in this example that the Complex Order to buy 20 at $2.00 is received prior to the receipt of the order to buy 15 B at $1.00. Thus, the Complex Order to buy 20 at $2.00 has time priority over the Implied Order to buy 10 at $2.00.
Subsequently, a Complex Order to sell 20 A+B is received, which could trade with both the Implied Order to buy and the Complex Order to buy. Because, at the same price on the Complex Order Book, an Implied Order has priority over a resting Complex Order even if the Complex Order was entered first,
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
The remaining 10 of the Complex Order to sell Strategy A+B at $2.00 will be executed against the resting Complex Order to buy A+B at $2.00 ($1.00 for each component Leg). Note that no Implied Order for 5 A+B at $1.99 is generated since this would be worse than cNBBO of $2.00.
Except in the case of Complex Orders on Non-standard Strategies which may execute at a price equal to cBBO after executions against the BOX Book, the Exchange proposes to allow two Complex Orders to execute against each other at a net price that is better than cBBO by one cent.
Although BOX is not proposing to establish an auction for Complex Orders
First, BOX will always execute Complex Orders first against interest on the BOX Book to the extent the Complex Order can be executed in full or in a permissible ratio by such interest.
Second, the Exchange believes that one cent is a significant and material improvement to customers.
Third, the Exchange believes that permitting price improvement by one cent rather than by the minimum trading increment could permit more active Complex Order trading by allowing execution where participants may not otherwise be willing to offer better prices in larger increments.
Fourth, since the implementation of the Penny Pilot Program, many of the options instruments involved in Complex Order trading now already have a minimum increment of one cent.
In the case of Non-standard Strategies, the execution of two Complex Orders against each other could occur at prices where the condition that “at least one Leg of the Complex Order must trade at a price that is better than the corresponding bid or offer in the marketplace” is not met. A Complex Order for a Non-standard Strategy will execute against the bids and offers on the BOX Book for the individual Legs of the Strategy for all of the quantity available at the best price in a permissible ratio until the quantities remaining on the BOX Book are insufficient to execute against the Complex Order. Following such execution, a Complex Order may execute against other Complex Orders, and the component Legs of the Complex Order may trade at prices equal to the corresponding prices on the BOX Book.
This treatment of Non-standard Strategies promotes just and equitable principles of trade, removes impediments to and perfects the mechanism of a free and open market and national market system and otherwise is consistent with the requirements of Section 6(b)(5) of the Act
Assume a Non-standard Strategy consisting of the simultaneous purchase of one Option A instrument and two Option B instruments (A+2B).
The order books are initially as follows:
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+2B:
Since A+2B is a Non-standard Strategy (a one-for-two ratio), no Implied Order for A+2B is broadcast. The cBBO is $3.00 bid, $3.26 offered.
In this example, a Complex Order is received to sell 2 A+2B at $3.00. This order can match with the existing bid for three Strategies at $3.00 on A+2B.
However, as the Exchange proposes to give priority to interest on the BOX Book over executable Complex Orders even where no Implied Order is being broadcast for the Strategy, 1 of the 2
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+2B:
One Complex Order to sell A+2B at $3.00 remains.
Because insufficient quantity remains on the bid of B at $1.00 to combine with the bid on A to respect the Complex Order ratio, the remaining order to sell 1 A+2B at $3.00 will be executed against the resting Complex Order to buy at $3.00. In this case, the proposed rules for trading Complex Orders on BOX may result in the match of two Complex Orders without at least one Leg having a price better than the best prices on the BOX Book.
Proposed Rule 7240(b)(4)(i) provides that Complex Orders may be entered as Fill-and-Kill orders, Limit Orders, BOX-Top Orders, Market Orders, or Session Orders, each as defined in existing Rule 7110. The Exchange proposes to delete the provision in existing Rule 7240(b)(4) that provides that Complex Orders may be entered as all-or-none orders because BOX does not have such orders. BOX currently permits Fill-and-Kill Orders which are immediately executed against any existing orders at the specified price or better, up to the volume of the Fill-and-Kill Order. Any residual volume left is cancelled.
The Exchange proposes Rule 7240(b)(4)(ii) to specify that BOX-Top Complex Orders are executed at the best price available in the market for the total quantity available from any contra bid (offer). Any residual volume left after part of a BOX-Top Complex Order has been executed is automatically converted to a limit order on the Complex Order Book at the net Strategy price at which the original BOX-Top Complex Order was executed. See the additional discussion in Section 3(c) and Example 11 below for details on the handling of BOX-Top Orders which partially execute against a Legging Order on a non-penny series.
The Exchange proposes Rule 7240(c) to permit the implementation of Legging Orders. Proposed Rule 7240(c)(1) defines a Legging Order as “a Limit Order on the BOX Book that represents one side of a Complex Order that is to buy or sell an equal quantity of two options series resting on the BOX Complex Order Book.” A Legging Order is a firm order that is included in the BBO if it is equal to, or better than, the existing BBO.
The Exchange proposes that Legging Orders will only be generated for Complex Orders with two Legs and with a ratio of one-to-one.
A Legging Order may be automatically generated for one Leg of a Complex Order at a price at which the net price can be achieved when the other Leg is executed against the best displayed bid or offer on the BOX Book at a price equal to or better than NBBO.
Rules 715(k) and 722(b)(3)(ii). A market participant on the NASDAQ Options Market (“NOM”) may enter Price Improving Orders on NOM that would potentially execute at a one cent increment within the NBBO.
Similar to price improving orders on the NASDAQ Options Market (“NOM”), the Exchange believes that automatically generating Legging Orders, which will not be executed until after all other executable interest on the BOX Book at the same price is executed in full, will provide additional execution opportunities for Complex Orders without negatively impacting any investors in the regular market.
14529-14530 (March 18, 2008).
A Legging Order may be priced and ranked on the BOX Book at a price other than its generated price to buy (sell) and may be displayed at a different price in the following two cases.
First, where the Legging Order price does not respect the price increment of the option series, for display purposes, it will be rounded down (in the case of a buy order) or up (in the case of a sell order) to the nearest valid trading increment. Legging Orders will be automatically generated at prices in one cent increments but, for series trading in nickels or larger increments, will be displayed at the nearest minimum trading increment.
Legging Orders to buy (sell) in an options series with a minimum trading increment greater than one cent are displayed at the appropriate minimum trading increment permitted for the series below (above) the price of the automatically generated Legging Order, (rounding down to the proper increment for buy orders and up to the proper increment for sell orders). While a Legging Order will be displayed at the rounded price in the case of non-penny series, any execution of the Legging Order will occur at the price at which
Second, where the generated price of a Legging Order locks or crosses the best bid or offer of another exchange it will be ranked at the opposite side NBBO price and displayed on the BOX Book at a price rounded down (up) in the case of a buy (sell) Legging Order to the nearest trading increment for the options instrument. The displayed price of the Legging Order will be adjusted for subsequent changes to the opposite side NBBO in accordance with these principles if the adjustment will result in an improvement to the previously displayed price. If an incoming order is executable against such Legging Order, it will be executed at the NBBO.
Assume the following for Option A:
NBBO for Option A is:
BOX Book for Option A is:
First Event:
A Complex Order to buy 10 A+B is received. The best BOX offer on Option B generates a Legging Order to buy 10 A at $1.04. Since this would lock the opposite side NBBO, it is displayed on the BOX Book as an order to buy at $1.03. The BOX Book for Option A then is as follows:
BOX Book for Option A is:
Second Event:
Following the First Event, an order to sell 5 A at $1.03 is received. This executes against the Legging Order at $1.04. Even though the Legging Order and the outright order to buy Option A were displayed at the same price, the Legging Order trades first because the price at which it can trade (opposite side NBBO of $1.04) gives it price priority.
The NBBO and BOX Book for Option A then are as follows:
NBBO for Option A is:
BOX Book for Option A is:
Order to buy 10 at $1.03
Third Event:
Following the Second Event, the NBBO offer subsequently changes to $1.05 and the remaining 5 contracts of Option A on the Legging Order will be displayed at $1.04. The NBBO and BOX Book for Option A are then as follows:
NBBO for Option A is:
BOX Book for Option A is:
Where an options instrument is part of two or more distinct strategies, multiple Legging Orders may be generated. In this case, the principles above regarding display and ranking prices in the case of locked or crossed opposite side NBBO will be observed. The example below illustrates how trade allocations will be performed in the case where several Legging Orders are displayed and ranked at the same price.
Assume the following for Option A:
NBBO for Option A is:
BOX Book for Option A is:
First Event:
A Complex Order to buy 10 A+B is received. The best BOX offer on Option B generates a Legging Order (“Order 1”) to buy 10 A at $1.04. Order 1 is ranked on the BOX Book at $1.04 and displayed on the BOX Book as an order to buy at $1.03.
Next, a Complex Order to buy 10 A+C is received. The best BOX offer on Option C generates a Legging Order (“Order 2”) to buy 10 A at $1.05. Order 2 is ranked on the BOX Book at $1.04 and displayed on the BOX Book as an order to buy at $1.03.
Next, a Complex Order to buy 10 A+D is received. The best BOX offer on Option D generates a Legging Order (“Order 3”) to buy 10 A at $1.06. Order 3 is ranked on the BOX Book at $1.04 and displayed on the BOX Book as an order to buy at $1.03. After the foregoing three Complex Orders have been entered, and the resulting Legging Orders generated, the BOX Book for Option A then is as follows:
BOX Book for Option A is:
Second Event:
Following the First Event, the NBBO Offer for Option A changes from $1.04 to $1.05.
The NBBO and BOX Book for Option A, in order of priority, then are as follows:
NBBO for Option A is:
BOX Book for Option A is:
Third Event:
Following the Second Event, the NBBO Offer for Option A changes from $1.05 to $1.06.
The NBBO and BOX Book for Option A, in order of priority, then are as follows:
NBBO for Option A is:
BOX Book for Option A is:
Fourth Event:
Following the Third Event, an order to buy 10 A at $1.05 is received.
The NBBO and BOX Book for Option A, in order of priority, then are as follows:
NBBO for Option A is:
BOX Book for Option A is:
A Legging Order may execute against an incoming order only after all other executable orders and quotes at the
The following example illustrates the interaction of orders on the BOX Book, Complex Orders and Legging Orders.
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
Legging Orders to buy 10 A at $1.05 (resulting from the Complex Order to buy 10 A+B at $2.25 minus the order to sell 20 B at $1.20) and 10 B at $1.05 (resulting from the Complex Order to buy 10 A+B at $2.25 minus the order to sell 20 A at $1.20) may be automatically generated, improving the BOX best bid for each of Leg A and Leg B, respectively, to $1.05.
The resulting order books are as follows:
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
Subsequently, an outright order to sell 10 of A is received. This order will execute against the Legging Order to buy A at $1.05 and there will be an automatic execution of the other Leg of the Complex Order against the displayed offer for B at $1.20. As a result, the net price of $2.25 is achieved for the Complex Order (buy A at $1.05 + buy B at $1.20 = $2.25 net). Since the Complex Order to buy 10 at $2.25 has been filled, the Legging Order to buy B at $1.05 will be automatically cancelled.
In addition to enabling the execution of the Complex Order at a net price of $2.25, which otherwise would not have been possible, the Legging Order also enhanced execution for outright orders on the BOX Book because (i) the incoming outright order to sell A received a better price ($1.05 instead of $1.00); and (ii) additional liquidity to execute resting interest to sell 10 of B at $1.20 was provided by the Complex Order.
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
The Complex Order to buy A+B at $2.20 results in Legging Orders on each of Option A and Option B equal to the best outright orders on the BOX Book for each Leg at $1.00.
Assume the Complex Order to buy 10 A+B at $2.20 was received prior to the receipt of the outright order to buy 10 A at $1.00. Thus, the Legging Order at $1.00 would have “time priority” over the outright order to buy A at $1.00.
Subsequently, an order to sell 15 A at $1.00 is received. Since interest on the BOX Book have priority over Legging Orders at the same price,
The order books then are as follows:
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
A Legging Order may be generated when at least one Complex Order and at least one order on the other component Leg of such Complex Order(s) are received. Where there are multiple Complex Orders on the same Strategy at the same price, which is also the best price on the Complex Order Book, generated Legging Orders will be aggregated such that only one Legging Order will exist, relating to that Strategy, with respect to any single option series at any time on the BOX Book. Partial executions against a Legging Order that is generated from multiple Complex Orders will be allocated among such Complex Orders and the related orders on the component Leg based on time priority of such Complex Orders and orders on the BOX Book,
The following Example 10 illustrates the allocation of orders when a Legging Order is generated from multiple Complex Orders.
Assume the following orders on A+B bids and B offers (orders below are shown in descending time priority with the earliest orders at the top):
Bids on A+B:
Offers on B:
The above results in the generation of a Legging Order to buy 23 A at $1.00 since sufficient bids on A+B exist to accommodate all 23 existing offers on B.
Assume no outright order to buy A at $1.00 exists and that, subsequently, an order to sell 20 A at $1.00 (order m) is received. BOX will allocate trades on A+B and B according to the time priority of each until the first 20 orders have been filled. The resulting trade executions are as follows (all trades at $1.00):
A Legging Order is automatically removed from the BOX Book if: (i) Execution of the Legging Order would no longer achieve the net price of the Complex Order when the other component Leg is executed against the best displayed bid or offer on the BOX Book, (ii) the other component Leg of the Complex Order cannot be executed at a price equal to the NBBO, (iii) the Complex Order is executed in full or in part, or (iv) the Complex Order is cancelled or modified.
The Exchange proposes to amend Rule 7110(c)(2) regarding BOX-Top Orders to account for a unique result that occurs when a BOX-Top Order executes with a Legging Order at a one cent increment in a series traded in a larger increment. Under existing Exchange rules, BOX-Top Orders entered into the BOX Book are executed at the best price available in the market for the total quantity available from any contra bid (offer), and any residual volume is automatically converted to a limit order at the price at which the BOX-Top Order was executed.
Assume Option A is a non-penny series with a trading increment at five cent intervals. The BOX Book for Option A is as follows:
BOX Book for Option A is:
A BOX-Top Order to sell 15 A is received. The order will execute for 10 contracts of A against the Legging Order at $5.02. The remaining quantity will be booked as a sell order for 5 at $5.05. The resulting BOX Book for Option A would then be:
BOX Book for Option A is:
The unexecuted quantity of a BOX-Top Order that executes against a Legging Order on a non-penny series at the Legging Order's generated (not displayed) price will be rounded up (down) for sell (buy) orders to the nearest valid price increment. The unexecuted portion of a BOX-Top Order will be booked at the same price as its displayed price.
At the conclusion of a PIP, any Legging Order with a price eligible for execution against the PIP Order will cede priority to all quotes and orders, including the Primary Improvement Order and any other Improvement Orders at the same price. In other words, a Legging Order may execute against a PIP Order at the end of a PIP once all other interest at the same price has been fully executed.
Assume at the end of a PIP to sell 30 contracts of A, the Order Book is as follows:
BOX Book for Option A is:
Absent a “surrender quantity” submitted with the Improvement Order, the 30 contracts on Option A would be allocated as follows:
• 18 (60%) to the Improvement Order.
• 12 (40%) to the Primary Improvement Order.
• None to the Complex Order which generated the Legging Order.
Suppose instead that the Primary Improvement Order had included a surrender quantity of 6 contracts (e.g., the Primary Improvement Order wishes to only trade 24 contracts at end of PIP). In this case, the trade allocation would be:
• 20 to the Improvement Order.
• 6 to the Primary Improvement Order.
• 4 to the Complex Order which generated the Legging Order.
The proposed amendments to Rules 7150(i) and 7150(j) provide that Legging Orders on the BOX Book will be treated in the PIP in the same manner as Unrelated Orders are currently. While a PIP is underway on a Leg which is itself part of a Strategy, it is possible that a new order on the Strategy or on the other component Leg (in the case of a Strategy with two Legs and with a ratio of one-to-one) will cause a new Legging Order to be generated for the Leg for which the PIP is in progress. Legging Orders generated on the BOX Book during a PIP will interact with orders in the PIP in the same manner as Unrelated Orders are currently.
Like Unrelated Orders, a Legging Order must be executable to prematurely terminate the PIP or execute with the PIP Order. If a Legging Order is not executable, the PIP will continue through its duration.
The generation of a Legging Order that is on the same side as the PIP Order and whose price is executable against the opposite side BBO, an Improvement Order, a Legging Order, or the Primary Improvement Order, will cause the PIP to terminate early and the PIP Order will execute pursuant to proposed Rule 7150(f)(3).
The following example shows how Legging Orders on the same side as the PIP Order will interact in a PIP on a single Leg:
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
The Complex Order to buy 10 A+B at $2.07 was received after the start of the PIP. Subsequently, an order on the BOX Book to sell 5 A at $1.02 is received prior to the end of the PIP on A. As this order is executable against the Legging Order at $1.02, the PIP will terminate prematurely and the PIP Order will execute to sell 10 at $1.02 against the Legging Order to buy 10 at $1.02. Thereafter, the BOX Trading Host will execute a purchase of 10 B at $1.05 to complete the Complex Order. The 5 remaining contracts of the PIP Order will execute at $1.01 with the PIP Primary Improvement Order.
Assume the same initial facts as in Example 13 above, except that the Complex Order received after the start of the PIP is to buy 10 A+B at $2.06, in which case the Legging Orders on Option A and Option B are generated to buy 10 at $1.01 each. The order books would be as follows:
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
Subsequently, an order to sell 5 A at $1.01 is received, causing the PIP to terminate early. However, in this case, the PIP Order would trade with the Primary Improvement Order at $1.01 because all other orders have priority over Legging Orders at the same price. After the completion of the PIP, the sell order for 5 at $1.01 would execute against the Legging Order to buy 5 at $1.01. Thereafter, the BOX Trading Host will execute a purchase of 5 B at $1.05 to complete the Complex Order.
The generation of a Legging Order that is on the opposite side of the PIP Order and can be executed against the opposite side NBBO, BBO, or a Legging Order, will trade against the PIP Order at one cent better than NBBO if BBO is equal to NBBO, or at NBBO if BBO is worse than NBBO.
The following example shows how Legging Orders on the opposite side of the PIP Order will interact in a PIP on a single Leg.
BOX Book for Option A is:
BOX Book for Option B is:
Complex Order Book for Strategy A+B:
Assume NBBO for A is $1.00 and $1.04. While the PIP is underway, a Complex Order on A+B to buy 10 at $2.07 is received, generating a Legging Order to buy 10 A at $1.04. Since the Legging Order can execute against the NBBO offer on A at $1.04, the Legging Order to buy 10 A at $1.04 will execute with the PIP Order. Thereafter, the BOX Trading Host will execute a purchase of 10 B at $1.03 to complete the Complex Order.
The following discusses proposed additional changes to the rules necessitated by the rule changes discussed above.
The Exchange proposes to amend Rule 7130(a)(2)(iv) (Execution and Price/Time Priority) to add Implied Orders and Legging Orders to the specific items that are displayed to BOX Options Participants through the proprietary High Speed Vendor Feed (“HSVF”). The HSVF is made available to all BOX Options Participants at no charge and, currently, the five best limit prices for single Legs on BOX are provided through the HSVF. The proposed amendment to Rule 7130(a)(2)(iv) will provide that the five best price limit prices and the best-ranked Legging Order (if any), as applicable and defined in Rule 7240(c)(1), will be provided through HSVF for each Leg. Additionally, the Exchange proposes that the five best limit prices and the best-ranked Implied Order (if any), as defined in Rule
The Exchange proposes to amend the definition of “Central Order Book” or “BOX Book” in Rule 100(a)(10) to mean the electronic book of orders on each single option series maintained by the BOX Trading Host. The Exchange believes this clarifying change will convey the intended meaning to exclude Complex Orders from this definition.
The Exchange proposes to amend existing Rule 100(a)(33) to include definitions of “NBB” to mean the national best bid and “NBO” to mean the national best offer, each as calculated by BOX based on market information received by BOX from OPRA. These definitions are necessary to support the definitions of “cNBB” and “cNBO” in proposed Rule 7240(a).
The Exchange proposes that the terms “cBBO” be defined to mean the best net bid and offer price for a Complex Order Strategy based on the BBO on the BOX Book for the individual options components of such Strategy, “cNBB” be defined to mean the best net bid price for a Complex Order Strategy based on the NBBO for the individual options components of such Strategy, “cNBBO” be defined to mean the best net bid and offer price for a Complex Order Strategy based on the NBBO for the individual options components of such Strategy, and “cNBO” be defined to mean the best net offer price for a Complex Order Strategy based on the NBBO for the individual options components of such Strategy.
The Exchange proposes to amend the definition of “Complex Order” in Rule 7240(a)(5) to mean any order involving the simultaneous purchase and/or sale of two or more different options series in the same underlying security, for the same account, in a ratio that is equal to or greater than one-to-three (.333) and less than or equal to three-to-one (3.00) and for the purpose of executing a particular investment strategy.
The Exchange proposes that the term “Complex Order Book” be defined to mean the electronic book of Complex Orders maintained by the BOX Trading Host.
The Exchange proposes that the term “Complex Order Strategy” or “Strategy” be defined to mean a particular combination of components of a Complex Order and their ratios to one another.
The Exchange proposes Rule 7240(b)(1) to provide that bids and offers on a Strategy (i.e., any Complex Order) may be expressed in any decimal price, and that the Legs of a Complex Order may be executed in one cent increments, regardless of the minimum increments otherwise applicable to the individual Legs of the Complex Order. The Exchange also proposes to delete a reference to Stock-Option Order consistent with the change to existing Rule 7240(b)(3) discussed below. Further, the Exchange proposes to delete a reference to priority for Complex Orders at a net price that is not a multiple of the minimum increment. The Exchange believes that this provision is unnecessary if Complex Orders may be expressed in any decimal price.
The Exchange proposes to delete existing Rule 7240(b)(3) regarding Execution of Complex Orders and is proposing various new provisions discussed above regarding Complex Order execution. In connection with amending the definition of Complex Order, the Exchange proposes to delete references to the various types of Complex Orders previously included in the rules (Spread, Straddle, Strangle, Combination, Ratio, Butterfly Spread, BOX Spread and Collar) because these designations will be unnecessary upon implementation of the other proposed rule changes. References to certain order types (Stock-Option Orders and SSF-option Orders) are proposed to be deleted because BOX does not have these order types. If these order types are to be traded on BOX in the future, the Exchange will file an appropriate rule change under Section 19(b)(1) of the Act.
The Exchange proposes deleting Rule 7240(b)(4) regarding Types of Complex Orders, to be replaced by newly proposed 7240(b)(4) discussed above. Additionally, the Exchange proposes renumbering Rule 7240(b)(5), which prohibits Complex Orders being submitted to BOX as Directed Orders or to the PIP, to proposed 7240(b)(4)(iii). The Exchange also proposes deleting Rule 7240(c) regarding how a Participant may propose trading a Strategy on BOX. The planned implementation of the new BOX functionality for Complex Orders will permit Participants to create a Strategy simply by submitting a Complex Order for that Strategy to BOX. The current provision describes a more manual process for establishing a Strategy that will now be unnecessary and thus, not applicable. As such, the Exchange believes it is appropriate to delete this provision. The Exchange proposes to also delete IM-7240-1 regarding trading Stock-Option Orders and SSF-option Orders as inapplicable because BOX does not have these order types.
The number of Strategies created on a Complex Order Book requires adequate systems support and overhead and the number of different Strategies that could be created is nearly endless. Complex Order transactions represent approximately one-fourth of overall options industry volume. Complex Order trading is generally concentrated in a limited number of classes. However, the Complex Order market relies on orders rather than the standard options market reliance on quoted liquidity. As a result, message traffic for Complex Orders is only a fraction of the overall options market. BOX maintains a rigorous capacity planning program that monitors system performance and projected capacity demands. This program is designed to ensure that the system has sufficient capacity to support existing and future trading needs of BOX. As a general matter, the Exchange considers the potential impact on systems capacity of all new initiatives. In particular, the Exchange analyzed the potential for additional message traffic resulting from implementation of this Complex Order proposal and concluded that the Exchange has sufficient systems capacity to handle this implementation without degrading systems performance.
Consistent with the limitations set forth in proposed Rule 7240(d) and above, the Exchange will closely monitor the generation of Implied Orders to ensure that they do not negatively impact system capacity and performance. The Exchange also will closely monitor the generation of Legging Orders to ensure that they do not negatively impact system capacity and performance. While generating
The proposed rule change is consistent with the requirements of the Act and the rules and regulation thereunder applicable to the Exchange as required by Section 19(b)(2) of the Act.
The proposed rule changes are consistent with the Act and further the foregoing objectives of Section 6(b)(5) of the Act
The Exchange believes this proposal is a reasonable modification to its rules, designed to facilitate increased interaction between orders on the Complex Order Book and orders on the BOX Book, and to do so in such a manner as to ensure a dynamic, real-time trading mechanism that maximizes the opportunity for trade executions for both Legs and Complex Orders. The Exchange believes that it is appropriate and consistent with the Act, for the purpose of clarity and in the public interest, to (i) adopt the proposed amendments to Rules 100(a)(10) and 100(a)(33), (ii) adopt the proposed amendments to Rule 7110(c)(2), (iii) adopt the proposed amendments to Rule 7130(a)(2)(iv), (iv) adopt the proposed amendments to Rules 7150(f)(3), 7150(i) and 7150(j), and (v) delete in its entirety the existing provisions of Rule 7240 (Complex Orders) and adopt the proposed Rule 7240.
The Exchange believes the proposed rule changes will result in more efficient trading and reduce the risk that Complex Orders fail to execute for investors by providing additional opportunities to fill Complex Orders, and that the changes are consistent with the Act. The Exchange believes that increased interaction, where possible, on a continuous and real-time basis of the bids and offers on each Leg comprising a Strategy with the bids and offers on the corresponding Strategy and vice versa, through Implied Orders and Legging Orders, will benefit market participants and investors. The proposed rule changes will allow Complex Orders to interact with interest on the BOX Book and, conversely, allow interest on the BOX Book to interact with Complex Orders in an efficient and orderly manner. Orders on the BOX Book comprising a Strategy may interact with Complex Orders on the Strategy and a combination of a Complex Order and an order on a Leg comprising the Complex Order may also interact with orders on other Legs comprising the Strategy.
The Exchange also believes the interaction of orders will benefit investors by increasing the opportunity for Complex Orders to receive execution, while also enhancing execution quality for orders on the BOX Book. Generally, the options industry rules for the execution of Complex Orders, and the current Exchange Rules, provide that two Complex Orders may execute against one another if the execution prices of the component Legs result in a net price that is better than the best customer limit order available for the individual component Legs. This permits an exchange, when executing two Complex Orders against one another, to execute each component Leg on the market's best bid or offer so long as the execution does not trade ahead of customer interest.
The Exchange believes the proposed rule change for trading Complex Orders on BOX is a step forward in options Complex Order execution. The proposed rules require that, before executing against another Complex Order, a Complex Order on BOX will execute first against orders on the BOX Book if the net price of such orders is equal to the best price on the Complex Order Book, provided that all of the orders on the BOX Book are equal to or better than their respective NBBO.
A Complex Order will execute against other Complex Orders resting on the Complex Order Book if the net price is better than cBBO
The exception to the priority of the BOX Book is the execution of a Complex Order on Non-standard Strategies,
The Exchange proposes to apply the straightforward principle of allowing execution of a Complex Order against another Complex Order when interest on the BOX Book at the same net price has already been executed. Thus, the execution price will be at a price better than cBBO (except in the case of insufficient quantity for Non-standard Strategies where the execution could occur at a price equal to cBBO). In the case of Non-standard Strategies, interest on the BOX Book will still have priority and be executed before a Complex Order, to the extent that there is sufficient quantity on the BOX Book to respect the ratio of the Strategy.
The Exchange believes its proposed rules regarding executions of Non-standard Strategies are consistent with the goals of the Act to remove impediments to and perfect the mechanism of a free and open market and a national market system; and, in general, to protect investors and the public interest. In particular, the proposed rules ensure that interest on the BOX Book will have priority to the extent sufficient quantity exists on each Leg to respect the ratio of the Strategy.
In requiring this, the principle is designed to ensure that at least one Leg will execute at a price better than BBO, except in the limited circumstance where there is insufficient quantity, with respect to one of the Legs, on the BOX Book to respect the ratio of the Complex Order. The Exchange believes the proposed rule change is a step forward in Complex Order execution because Implied Orders and Legging Orders will increase the interaction of orders on BOX and increase opportunities for order execution. Additionally, the proposed rules for filtering Complex Orders against NBBO should provide Complex Order executions at prices comparably better than otherwise available in the market.
Other exchange rules currently provide that an incoming Complex Order would trade with a Complex Order that is resting on the Complex Order Book, unless the best bid/offer on either of the component Legs of the Strategy were a customer.
This principle is not limited to instances where a customer limit order is at a price equal to the BBO. Because the component Leg Orders of a Complex Order will have priority and this interest on the BOX Book can execute with a Complex Order on the opposite side of the market, the proposed rule change would ensure that no resting Complex Orders trade before orders on the BOX Book for the component Legs. The Exchange believes this will provide greater opportunities for executions of Complex Orders on BOX, and will benefit the overall BOX market for the component Legs as well.
For the reasons set forth above, the Exchange believes the proposed rule change regarding Complex Order execution, and the priority proposed for interest on the BOX Book, is consistent with the goals of the Act to remove impediments to and to perfect the mechanism of a free and open market and a national market system, and to protect investors and the public interest.
The Exchange proposes to define an Implied Order to mean “a Complex Order at the cNBBO, derived from the orders at the BBO on the BOX Book for each component Leg of a Strategy, provided each component Leg is at a price equal to NBBO for that series.”
Implied Orders are generated and broadcast for Strategies with two Legs and with a ratio of one-to-one.
An Implied Order for a Strategy is calculated and broadcast if each of the prices of the component Leg Orders is equal to NBBO.
The Exchange believes automatically generating Implied Orders will provide additional execution opportunities for Complex Orders and interest on the BOX Book and thus, enhance execution quality for investors on BOX. The Exchange believes the additional opportunities for potential execution through the interaction of orders on the Complex Order Book and orders on the BOX Book as achieved through Implied Orders, and the potential for enhanced execution quality, as outlined above, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market, are in the public interest and, therefore, consistent with the Act.
The Exchange believes the principles set forth in this proposal regarding Complex Order execution and priority are an improvement over the existing rules in the marketplace, and further, are consistent with the goals of the Act to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts, to remove impediments to and to perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
The Exchange proposes that Complex Orders may be entered as Fill-and-Kill Orders, Limit Orders, BOX-Top Orders, Market Orders, or Session Orders, each as defined in Rule 7110.
Legging Orders may be automatically generated on behalf of a Complex Order so they are represented at the BBO on individual Legs.
The Exchange believes that automatically generating Legging Orders, which will be executed after all other executable interest at the same price is executed in full, will provide additional execution opportunities for Complex Orders without negatively impacting any investors in the regular market.
The Exchange also believes that the generation of Legging Orders is compliant with Rule 602 of Regulation NMS (the “Quote Rule”) because each Legging Order is a firm order that is included in the BBO if it is equal to or better than the otherwise existing BBO.
The Exchange proposes that a Legging Order will be placed on the BOX Book at its generated price to buy (sell) and will be displayed at the minimum trading increment permitted for the series (rounding down to the nearest valid increment for the series for buy orders and up to the nearest valid increment for the series for sell orders). Legging Orders will be automatically generated at prices in one cent increments but, for series trading in nickels or other larger increments, will be displayed at the nearest minimum trading increment for the series.
The Exchange believes Legging Orders will increase opportunities for execution of Complex Orders, potentially increase executions of interest on the BOX Book, and will lead to tighter spreads and finer pricing on BOX. While Legging Orders may not always be displayed at their actual penny increment price, Legging Orders will provide investors the opportunity to trade at a better price than would otherwise be available—inside the disseminated best bid and offer for a particular Leg. The Exchange believes that this opportunity for investors to receive executions inside the disseminated BBO could result in better executions for investors, and that Legging Orders are consistent with the Act.
When a BOX-Top Order executes against a Legging Order at a one cent increment in a series traded in a larger increment, the Exchange proposes that any remaining BOX-Top Order quantity will be priced, ranked and displayed on the BOX Book at the nearest increment tick permitted for the series (rounded up (down) in the case of a sell (buy) order).
Legging Orders may be automatically generated on behalf of a Complex Order so they are represented on the BOX Book at the BBO for the individual Legs, and will be eligible for execution after being filtered against NBBO. At the conclusion of a PIP, Legging Orders will be executed after all other executable orders and quotes at the same price are executed in full.
Proposed amendments to Rules 7150(i) and 7150(j) reflect that Legging Orders on the BOX Book will be treated, in connection with the PIP, in the same manner as Unrelated Orders are treated currently. Existing Rule 7150(a) defines Unrelated Order as a non-Improvement Order entered in the BOX market during a PIP. A Legging Order may be generated on the BOX Book for a Leg while a PIP on that Leg is underway. The Commission has previously found the Exchange's treatment of Unrelated Orders received during the PIP consistent with the Act.
The Exchange proposes to add Complex Orders, Implied Orders and Legging Orders to the specific items that are displayed to Participants through the proprietary HSVF.
The Exchange believes that amending the definition of a Complex Order in Rule 7240(a) is consistent with the Act. The Exchange notes that the definition is consistent with the rules of other options exchanges and with the definition of “Complex Trade” in the Options Order Protection and Locked/Crossed National Market System Plan.
Except in the case of Complex Orders on Non-standard Strategies which may execute at a price equal to cBBO after executions against the BOX Book, the Exchange proposes to allow two Complex Orders to execute against each other at a net price that is better than cBBO by one cent.
Although BOX is not proposing to establish an auction for Complex Orders at this time, the Exchange believes that it is consistent with the protection of investors and the public interest to permit Complex Orders (other than Non-standard Strategies) to execute against each other at a price that is better than cBBO by one cent, rather than the minimum trading increment for one of the component series for the following reasons.
First, BOX will always execute Complex Orders first against interest on the BOX Book to the extent the Complex Order can be executed in full or in a permissible ratio by such interest.
Second, the Exchange believes that one cent is a significant and material improvement to customers.
Third, the Exchange believes that permitting price improvement by one cent rather than by the minimum trading increment could permit more active Complex Order trading by allowing execution where participants may not otherwise be willing to offer better prices in larger increments.
Fourth, since the implementation of the Penny Pilot Program, many of the options instruments involved in Complex Order trading now already have a minimum increment of one cent.
For all of the foregoing reasons, the Exchange believes the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to the Exchange.
The Exchange does not currently trade Complex Orders. While the proposed rule changes would permit BOX to trade and display Complex Orders, the Exchange expects that no market participant or investor will have any additional cost or obligation with respect to the Exchange, BOX or Complex Orders relating to the proposed rule changes. No duties are imposed on any party by the proposed rule changes.
The Exchange believes any impact of the proposed rule changes on market participants or investors would be at least neutral and could result in improved liquidity, finer pricing, better executions and increased competition. The Exchange further believes the proposed rule changes may facilitate additional executions for all BOX Options Participants. Moreover, the Exchange believes the proposal will enhance competition among the various markets for Complex Order execution, potentially resulting in more active Complex Order trading.
For these reasons, the Exchange does not believe the proposed rule change will have any negative impact, and will not impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such 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, as amended, is consistent with the Exchange 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.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Hampshire (FEMA-4095-DR), dated 11/28/2012.
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 Private Non-Profit organizations in the State of New Hampshire, dated 11/28/2012, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-4101-DR), dated 02/13/2013.
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.
The notice of the President's major disaster declaration for the State of Mississippi, dated 02/13/2013 is hereby amended to establish the incident period for this disaster as beginning 02/10/2013 and continuing through 02/22/2013.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 6.
This is an amendment of the Presidential declaration of a major disaster for the State of New Jersey (FEMA-4086-DR), dated 10/30/2012.
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 New Jersey, dated 10/30/2012 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 04/01/2013.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 6.
This is an amendment of the Presidential declaration of a major disaster for the State of New York (FEMA-4085-DR), dated 10/30/2012.
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 New York, dated 10/30/2012 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 03/29/2013.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-4101-DR), dated 02/13/2013.
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.
The notice of the Presidential disaster declaration for the State of Mississippi, dated 02/13/2013 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice of open Federal advisory committee meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for the next meeting of the National Women's Business Council (NWBC). The meeting will be open to the public.
The meeting will be held on April 4th, 2013 from approximately 9:00 a.m. to 2:30 p.m. EST.
The meeting will be in Washington, DC.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the National Women's Business Council. The National Women's Business Council is tasked with providing policy recommendations on issues of importance to women business owners to the President, Congress, and the SBA Administrator.
The purpose of the meeting is to provide updates on NWBC's current research portfolio and its upcoming research topics and action items for 2013. The topics discussed will include, but are not limited to: Job creation, access to markets, access to capital, reliable data, and expert briefings and opinions on policy and legislative priorities in the 113th Congress that affect the growth of women-owned business.
The meeting is open to the public however advance notice of attendance is requested. Anyone wishing to attend or make a presentation to the NWBC must either email their interest to
Those needing special accommodation in order to attend or participate in the meeting, please contact 202-205-9974 no later than March 28, 2013.
For more information, please visit our Web site at
Federal Aviation Administration (FAA), DOT.
Notice of new task assignment for the Aviation Rulemaking Advisory Committee (ARAC).
The FAA assigned ARAC a new task to review and assess the adequacy of certain portions of the existing engine bird ingestion requirements. This notice is to inform the public of this ARAC activity.
Alan Strom, Rulemaking and Policy Branch, ANE-111, Engine and Propeller Directorate, FAA, 12 New England Executive Park, Burlington, Massachusetts, 01803, telephone (781) 238-7143, facsimile (781) 238-7199; email
The FAA established ARAC to provide advice and recommendations to the FAA Administrator on the FAA's rulemaking activities with respect to aviation-related issues. This includes obtaining advice and recommendations on the FAA's commitments to harmonize FAA Regulations with its partners in Europe and Canada.
Amendment 33-20, adopted September 5, 2000, revised the bird ingestion type certification standards for aircraft turbine engines to better address the actual bird threat encountered in service. These requirements were adopted, in part, as a response to National Transportation Safety Board (NTSB) safety recommendation A-76-64. The NTSB recommended increasing
Review and assess the standards and advisory material for bird ingestion requirements as follows:
1. Evaluate the core ingestion element of small and medium bird requirements to determine if the intended safety objective of the current rule is adequate. Consider the threat from large flocking bird species in this assessment. Identify any deficiencies in the current rule, and provide the FAA with recommendations for changes as appropriate.
2. Evaluate large flocking bird requirements, to determine the need for new large flocking bird requirements, or advisory material, or both, for Class D engines (1.35m
3. Review and consider the following related National Transportation Safety Board (NTSB) safety recommendations when evaluating items 1 and 2 above:
a. “A-10-64: Modify the 14 Code of Federal Regulations § 33.76(c) small and medium flocking bird certification test standard to require that the test be conducted using the lowest expected fan speed, instead of 100-percent fan speed, for the minimum climb rate.”
b. “A-10-65: During the bird-ingestion rulemaking database (BRDB) working group`s reevaluation of the current engine bird-ingestion certification regulations, specifically reevaluate the 14 Code of Federal Regulations § 33.76(d) large flocking bird certification test standards to determine whether they should: (1) Apply to engines with an inlet area of less than 3,875 square inches and (2) Include a requirement for engine core ingestion. If the BRDB working group`s reevaluation determines that such requirements are needed, incorporate them into 14 CFR § 33.76(d) and require that newly certificated engines be designed and tested to these requirements.”
4. Define an industry led process for periodic update and review of engine bird ingestion data, such that industry and the authorities can maintain an awareness of the bird threat experienced in service.
Tasks 1 through 4 above should consider the Aerospace Industries Association engine bird ingestion database recently updated in coordination with FAA and the European Aviation Safety Agency. That database update was in response to the US Air Flight 1549 Hudson River accident in January 2009 and related NTSB safety recommendations.
The final ARAC report should include a summary of the overall work scope, conclusions and rationale for all recommendations related to the above tasks.
ARAC accepted the task and will establish the Engine Harmonization Working Group (EHWG), under the Transport Airplane and Engine Subcommittee (TAE). The working group will serve as staff to ARAC and assist ARAC in the analysis of the assigned tasks. ARAC must review and approve the working group's recommendations. If ARAC accepts the working group's recommendations, it will forward them to the FAA.
The EHWG must comply with the procedures adopted by ARAC. As part of the procedures, the working group must:
1. Recommend a work plan for completion of the task, including the rationale supporting such a plan for consideration by the subcommittee.
2. Conduct a review and analysis of the assigned tasks.
3. Draft the recommendation report based on the review and analysis of the tasks and any other related materials or documents.
4. Present the recommendation at a subcommittee meeting.
5. Provide a status report at each meeting of the ARAC.
The EHWG will be composed of technical experts having an interest in the assigned task. A working group member need not be a representative or a member of ARAC. If you have expertise in the subject matter and wish to become a member of the working group, write to the person listed under the caption
If you are chosen for membership on the working group, you must represent your aviation community segment and actively participate in the working group by attending all meetings, and providing written comments when requested to do so. You must devote the resources necessary to support the working group in meeting any assigned deadlines. You must keep your management chain and those you may represent advised of working group activities and decisions to ensure that the proposed technical solutions do not conflict with the position of those you represent when the proposed recommendations are presented to the Subcommittee and ARAC for approval.
Once the working group has begun deliberations, members will not be added or substituted without the approval of the Subcommittee Chair, FAA Representatives, including the Designated Federal Officer, and the working group.
The Secretary of Transportation determined that the formation and use of ARAC is necessary and in the public interest in connection with the performance of duties imposed on the FAA by law.
ARAC meetings are open to the public. Meetings of the EHWG will not be open to the public, except to the extent individuals with an interest and expertise are selected to participate. The FAA will make no public announcement of working group meetings.
Federal Aviation Administration (FAA), DOT.
Notice of Request to Release Airport Property.
The FAA proposes to rule and invite public comment on the release of land at the Seattle-Tacoma International Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21), now 49 U.S.C. 47107(h)(2).
Comments must be received on or before April 8, 2013.
Comments on this application may be mailed or delivered to the FAA at the following address: Ms. Carol Suomi, Manager, Federal Aviation Administration, Northwest Mountain Region, Airports Division, Seattle Airports District Office, 1601 Lind Avenue SW., Suite 250, Renton, Washington 98057-3356.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Allan Royal, Port of Seattle Real Estate Development, at the following address: Mr. Allan Royal, Port of Seattle Real Estate Development, P.O. Box 68727, Seattle, Washington 98168.
Mr. Peter Doyle, Project Manager, Federal Aviation Administration, Northwest Mountain Region, Seattle Airports District Office, 1601 Lind Avenue SW., Suite 250, Renton, Washington 98057-3356.
The request to release property may be reviewed, by appointment, in person at this same location.
The FAA invites public comment on the request to release property at the Seattle-Tacoma International Airport under the provisions of the AIR 21 (49 U.S.C. 47107(h)(2)).
On February 22, 2013, the FAA determined that the request to release property at Seattle-Tacoma International Airport submitted by the airport meets the procedural requirements of the Federal Aviation Administration. The FAA may approve the request, in whole or in part, no later than April 8, 2013.
The following is a brief overview of the request:
The Seattle-Tacoma International Airport is proposing the release of approximately 15,628 square feet of airport property to the City of SeaTac. This property is located on International Blvd. and 160th Street in the City of SeaTac, and is required for road improvements to mitigate traffic generated by the Rental Car Facility constructed on airport property. This mitigation measure is required by the environmental analysis to reduce the likely significant adverse environmental traffic impacts to a nonsignificant level. The value of the property is a component of the overall cost of the Rental Car Facility project.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
Federal Aviation Administration (FAA), DOT.
Notice of new task assignment for the Aviation Rulemaking Advisory Committee (ARAC).
The FAA assigned ARAC a new task to prioritize potential topic areas for development of new or revised requirements and guidance material for airplane performance and handling characteristics in new transport category airplanes. The output of this task is intended to support FAA planning for subsequent ARAC taskings in these topic areas. This notice is to inform the public of this ARAC activity.
Joe Jacobsen, Airplane & Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Federal Aviation Administration, 1601 Lind Ave. SW., Renton, Washington 98057-3356; telephone (425) 227-2011, facsimile (425) 227- 1149; email
The FAA established ARAC to provide advice and recommendations to the FAA Administrator on the FAA's rulemaking activities with respect to aviation-related issues. This includes obtaining advice and recommendations on the FAA's commitments to harmonize FAA regulations with its partners in Europe, Canada, and Brazil; in this instance, on airplane performance and handling characteristics standards. ARAC will address this task under the Transport Airplane and Engine (TAE) Subcommittee, and will reestablish the Flight Test Harmonization Working Group (FTHWG) to assist in completion of this task.
The FAA has established regulations and policy in the areas of airplane performance and handling characteristics. However, existing standards do not adequately address airplane designs using fly-by-wire technology. Additionally, there are a number of issues, such as several items in the areas of takeoff and landing performance and flying qualities that may not be adequately addressed by the existing airworthiness requirements and guidance material. Finally, there are cases where guidance information provided by the airworthiness authorities is not harmonized, sometimes leading to different compliance findings.
The FAA tasked ARAC to consider several areas within the airplane performance and handling qualities requirements of the 14 CFR part 25 airworthiness standards and guidance for possible revision. The task includes prioritizing the list of topic areas provided in this notice based on prioritization criteria established by the FTHWG. The prioritization criteria should consider harmonization of regulatory requirements and associated guidance material for airworthiness certification of airplane designs. Recommendations may result in subsequent ARAC taskings for standards recommendations in follow-on phases. ARAC may also recommend additional topics in the general area of airplane performance and handling qualities that are not on the list provided in this notice
The working group will provide a draft report to ARAC recommending focus areas and work plans to address those areas the FTHWG identified as high priorities for airworthiness standards development relative to new
1.
a. Applicability/adaptation of Amendment 25-121 airplane performance and handling characteristics in icing conditions requirements
b. Design maneuver requirements,*
c. Design dive speed,*
d. Side stick controls,*
e. Flight envelope protection, and *
f. Interaction of airplane systems and structure.*
*
2.
a. Flight test methods used to determine maximum tailwind and crosswind capability. Additionally, for crosswind testing, better define intended operational use of demonstrated maximum steady and gusting crosswind performance.
b. Wet runway stopping performance. Recent landing overruns on wet runways have raised questions regarding current wet runway stopping performance requirements and methods. Analyses indicate that the braking coefficient of friction in each case was significantly lower than expected for a wet runway (i.e., lower than the level specified in FAA regulations). Consideration should also be given to the scheduling of landing performance on wet porous friction course and grooved runway surfaces. Recommendations may include the need for additional data gathering, analysis, and possible rulemaking.
c. Go-around performance, specifically height lost in executing a go-around. While airplanes may be able to demonstrate the climb gradient capability prescribed in 14 CFR/European Aviation Safety Agency (EASA) Certification Specification (CS) 25.121, it may not be able to achieve it quickly enough, particularly when executing a go-around close to the ground.
d. Performance standards and guidance regarding landing in abnormal configurations.
e. Guidance regarding the function and use of the amber band on airspeed tapes. Manufacturers' philosophies differ regarding the meaning of the amber band in an airspeed tape display, as do U.S. and European regulatory authorities' policies regarding acceptance of target airspeeds within the amber band.
f. Guidance on piloting procedures used to evaluate airplane tail clearance during certification flight tests for takeoff performance.
g. Landing distance performance for autoland and landing distance performance using heads-up-displays (HUD). Use of autoland or HUD may invalidate landing distance performance determined for compliance to 14 CFR/CS 25.125.
h. Steep approach landing performance. Current airplane certification standards are not harmonized among the U.S., Canadian, Brazilian, and European airworthiness authorities.
i. Narrow runway operations. Current airplane certification standards do not identify minimum runway widths for which the standards apply.
j. Reduced and derated takeoff thrust procedures. Updates to existing guidance material may be appropriate to limit the number of derates permitted for a specific airframe/engine combination.
k. Guidance material for pressure error measurement during takeoff until out of ground effect to ensure proper data reduction for calculation of takeoff distance performance.
l. Guidance material addressing the adverse effects on stall speed in ground effect.
3.
a. Guidance material for assessing handling qualities. Advisory Circular 25-7C, “Flight Test Guide for Certification of Transport Category Airplanes,” provides an FAA Handling Quality Rating Method (HQRM) that is intended to provide a systematic way of determining appropriate minimum handling qualities requirements and evaluating those handling qualities for failure conditions affecting an airplane's flying qualities. The FAA handling quality rating system is not universally accepted within industry, nor is it accepted by EASA.
b. Guidance for assessing susceptibility to pilot-induced oscillations/airplane-pilot coupling (PIO/APC). Guidance provided in AC 25-7C for evaluating PIO/APC is also not well accepted by airplane manufacturers, is not harmonized with EASA, and has been superseded to some extent in recent certification programs. Modified guidance is needed to both simplify and standardize the methods for evaluating an airplane's susceptibility to PIO/APC.
The required completion date for the recommendation report is 9 months after the FAA publishes the task in the
ARAC accepted the task and assigned it to the FTHWG under the TAE Subcommittee. The working group serves as staff to ARAC and assists in the analysis of assigned tasks. ARAC must review and approve the working group's recommendations. If ARAC accepts the working group's recommendations, it will forward them to the FAA.
The FTHWG must comply with the procedures adopted by ARAC. As part of the procedures, the working group must:
1. Develop a prioritized list of subject areas (as provided in this notice or added by the FTHWG) to focus subsequent efforts and standards development in follow-on phases for consideration by ARAC.
2. Based on the priorities from item 1 above, recommend a work plan and phasing for completion of each prioritized task for review and approval by ARAC.
3. Provide a status report at each meeting of ARAC.
4. Provide a final recommendation report to ARAC for review and approval.
The FTHWG is composed of technical experts having expertise in the subject matter and an interest in the assigned task. A working group member need not be a representative or a member of ARAC.
If you have expertise in the subject matter and wish to become a member of the working group, write to the person listed under the caption
If you are chosen for membership on the working group, you must represent your aviation community segment and actively participate in the working group by attending all meetings and providing written comments when requested to do so. You must devote the resources necessary to support the working group in meeting any assigned deadlines. You must keep your management chain and those you may represent advised of working group activities and decisions to ensure that the proposed technical solutions do not conflict with your sponsoring organization's position when the subject being negotiated is presented to ARAC for approval. Once the working group has begun deliberations, members will not be added or substituted without the approval of the FAA and the Working Group Co-Chairs.
The Secretary of Transportation determined that the formation and use of ARAC is necessary and in the public interest in connection with the performance of duties imposed on the FAA by law. ARAC and the TAE Subcommittee meetings are open to the public. Meetings of the Flight Test Harmonization Working Group will not be open to the public, except to the extent individuals with an interest and expertise are selected to participate. The FAA will make no public announcement of working group meetings.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of grant of a petition for a temporary exemption from a provision of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
This notice grants the petition of Group Lotus plc (Lotus) for a temporary exemption of the front passenger position of its Evora model from one advanced air bag requirement of FMVSS No. 208, i.e., the higher maximum speed (56 km/h (35 mph)) belted test requirement using 5th percentile adult female dummies. The agency finds that achieving compliance with that requirement would cause substantial economic hardship to Lotus and that the company has tried to comply with the requirement in good faith.
The exemption remains in effect until March 8, 2014.
David Jasinski, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West Building 4th Floor, Room W41-326, Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.
In 2000, NHTSA published a final rule upgrading the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.”
The requirements for the vehicle performance in an unbelted 32 km/h (20 mph) to 40 km/h (25 mph) rigid barrier crash test and the belted rigid barrier crash test with a maximum test speed of 48 km/h (30 mph) for both the 50th percentile male dummy and the 5th percentile female dummy were phased in, beginning with the 2004 model year. Small volume manufacturers were not subject to these advanced air bag requirements until the end of the phase-in period, which was September 1, 2006.
A second phase-in period required vehicles to be certified as meeting the belted rigid barrier test requirements at speeds up to 56 km/h (35 mph) using the 50th percentile adult male dummy. This requirement was phased in, beginning with the 2008 model year. Small volume manufacturers were not subject to this requirement until the end of the phase-in period, which was September 1, 2010.
The 2000 final rule did not include a higher speed belted rigid barrier test for a 5th percentile adult female dummy. Instead, NHTSA initiated testing to examine the practicability of such a requirement.
On August 31, 2006, NHTSA published a final rule that increased the maximum test speed for the belted rigid barrier test using the 5th percentile adult female test dummy from 48 km/h (30 mph) to 56 km/h (35 mph).
In recent years, NHTSA has addressed a number of petitions for exemption from some of the initial advanced air bag requirements of FMVSS No. 208. The majority of these requests came from small manufacturers, each of which petitioned on the basis that achieving compliance would cause it substantial economic hardship and that it has tried in good faith to comply with the standard. In recognition of the more limited resources and capabilities of small manufacturers, authority to grant exemptions based on substantial economic hardship and good faith efforts was given the agency in 1972 to enable it to give those manufacturers additional time to comply with the Federal safety standards.
NHTSA granted a number of these petitions, usually in situations in which the manufacturer was supplying standard air bags in lieu of advanced air bags.
Notwithstanding those previous grants of exemption, NHTSA has considered two key issues—
(1) Whether it is in the public interest to continue to grant such petitions, particularly in the same manner as in the past, given the number of years these requirements have now been in effect and the benefits of advanced air bags, and
(2) To the extent such petitions are granted, what plans and countermeasures to protect child and infant occupants, short of compliance with the advanced air bags, should be expected of the petitioners.
While the exemption authority was provided by Congress to address the problems of small manufacturers and the agency wishes to be appropriately attentive and responsive to those problems, it was not anticipated by the agency that use of this authority would result in small manufacturers being given much more than relatively short term exemptions from recently implemented safety standards, especially those addressing particularly significant safety problems.
Given the passage of time since the advanced air bag requirements were established and implemented, and in light of the safety benefits of advanced air bags, NHTSA has determined that it is not in the public interest to continue to grant exemptions from these requirements under the same terms as in the past.
NHTSA further notes that the granting of hardship exemptions from motor vehicle safety standards is subject to the agency's finding that the petitioning manufacturer has “tried to comply with the standard in good faith.”
The National Traffic and Motor Vehicle Safety Act (Safety Act), codified as 49 U.S.C. Chapter 301, provides the Secretary of Transportation authority to exempt, on a temporary basis and under specified circumstances, motor vehicles from a motor vehicle safety standard or bumper standard. This authority is set forth at 49 U.S.C. 30113. The Secretary has delegated the authority for implementing this section to NHTSA.
More specifically, the Act authorizes the Secretary to grant a temporary exemption to a manufacturer of not more than 10,000 motor vehicles annually, on such terms as he deems appropriate, if he finds that the exemption would be consistent with the public interest and the Safety Act and if he also finds that “compliance with the standard would cause substantial economic hardship to a manufacturer that has tried to comply with the standard in good faith.”
NHTSA established Part 555,
One of the permissible bases for an exemption specified in § 555.6 is hardship. A manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that production volume criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle. The statutory provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do not state that a manufacturer has substantial responsibility as manufacturer of a vehicle simply because it owns or controls a second manufacturer that assembled that vehicle. However, the agency considers the statutory definition of “manufacturer” (49 U.S.C. 30102) to be sufficiently broad to include sponsors, depending on the circumstances. Thus, NHTSA has stated that a manufacturer may be deemed to be a sponsor and thus a manufacturer of a vehicle assembled by a second manufacturer if the first manufacturer had a substantial role in the development and manufacturing process of that vehicle.
While 49 U.S.C. 30113(b) states that exemptions from a Safety Act standard are to be granted on a “temporary basis,”
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR Part 555, Group Lotus Plc (Lotus) has submitted a petition asking the agency for a temporary exemption from one advanced air bag requirement of FMVSS No. 208 for its Evora model.
Lotus is a United Kingdom corporation. In the year prior to the filing of its petition, Lotus produced a total of 3,115 vehicles.
Lotus previously obtained an exemption from the advanced air bag requirements for its Elise model.
Lotus stated that the Evora cannot meet the higher speed 5th percentile female belted test requirements because the Evora's air bag electronic control unit (ECU) does not have the capability to monitor whether the seat belt is buckled and its seat belt supplier does not have a suitable buckle switch. A buckle switch would allow the ECU to fire only the first stage of the air bag inflator for buckled occupants while firing two stages for unbuckled occupants, allowing the stiffness of the air bag to be different for belted and unbelted occupants. In order to incorporate a buckle switch in the Evora, Lotus stated that a new air bag ECU would need to be sourced, calibrated, and validated; a new seat belt system would need to be sourced; and a complete series of development tests would need to be conducted.
Lotus expects that this development would cost over $4 million. Lotus's financial statements show that between April 2007 and March 2010, the company experienced losses of approximately $40 million. Lotus stated that, without the exemption, it would withdraw from the U.S. market and lose its market share, resulting in intangible losses such as loss of brand image, complication of reentry into the U.S. market in the future, and job losses.
Lotus stated that it has considered alternative means of compliance, but these alternatives have been found to be incapable of providing a solution. Lotus stated that it could not use a seat belt buckle sensor from its current seat belt supplier because the switch is inadequate and there is not a suitable ECU. Lotus stated that it considered moving the passenger seat rearward, but concluded it would need to reevaluate compliance with the 50th percentile male tests in both the belted and unbelted conditions which would result in similar costs to those described above. Lotus also stated that it considered fixing the passenger seat in the mid-position, but concluded that occupant ingress/egress would be adversely affected and it would prevent a 95th percentile occupant from fitting in the passenger seat.
Lotus stated that, if an exemption were granted, the company would provide advice and warnings in its owner's manual identifying the risks associated with incorrect positioning of the seat belt and sitting too close to the air bag.
On July 3, 2012, we published in the
In Lotus's first comment, it addressed three issues. First, Lotus stated that, although its majority shareholder continues to be Proton, Proton has been acquired by DRB-Hicom. Lotus stated that the transfer of ownership of Proton should have no bearing on its eligibility for an exemption. Lotus also stated that the evaluation of its business plan by new management indicated that the actual fiscal year 2012 results for Lotus would be far worse than forecasted in the petition. Finally, Lotus stated that, upon further evaluation of Evora usage, its annual mile usage was actually 5,127 miles, which Lotus suggested was evidence that the Evora is not used as a primary vehicle.
Advocates addressed several issues in its comments. First, Advocates stated that, in spite of Lotus's assertion to the contrary, NHTSA's policy that it is no longer in the public interest to continue to grant exemptions from the advanced air bag requirements in the same circumstances and under the same terms as in the past would apply to Lotus's petition. Although Lotus only seeks exemption from one of the advanced air bag requirements, Advocates noted that other companies have sought partial exemptions.
Advocates also asserted that the Evora could be used to carry children or other smaller statured occupants in the front passenger seat. Advocates stated that it does not believe that the exemption should be based upon Lotus's
Advocates also questioned Lotus's good faith efforts to comply with the standard. Advocates asserted that Lotus dismissed one possible alternative means of compliance, fixing the seat in the middle position, on the grounds of passenger comfort. Advocates stated that Lotus did not provide any evidence that such a solution would not lead to compliance. Advocates also questioned Lotus's good faith efforts in light of the six-year lead time for compliance with the higher speed belted requirement for the 5th percentile female.
Advocates raised two other reasons for denying Lotus's petition. Advocates questioned the degree of Lotus's economic hardship based on the financial projections set forth in its original petition. Finally, Advocates stated that exemptions should only be granted when absolutely necessary and that public safety concerns must outweigh the costs of compliance.
Advocates stated that, based on the foregoing, it could not support granting Lotus's petition for renewal of its temporary exemption.
Lotus submitted a second comment that provided new information regarding the company and addressed Advocates' comments.
First, Lotus addressed its change of ownership to DRB Hicom and how that affects its product plan. Lotus stated that the introduction of new vehicles would be delayed and that Lotus would invest in the Evora to keep the model in production until 2017 to 2020. Lotus stated that, under prior management, bank financing could only be used for new products and could not be spent on the Evora. Thus, Lotus had little funding for improving the Evora, including full FMVSS No. 208-compliance. The new management intends full compliance with FMVSS No. 208 by the end of March 2015.
Lotus also provided updated financial results and projections. Unlike its original projections, Lotus forecasted a loss over the next three years.
Regarding Advocates' comment that Lotus did not consider all alternatives to asking for a waiver, Lotus noted that its inability to spend funds on Evora development meant that it could not pursue any compliance solution that required redesigning and re-certifying its air bag system. Furthermore, Lotus stated that any alternative compliance solution that required redesign and re-certification would result in costs that would be comparable to full FMVSS No. 208-compliance. Lotus stated that other alternatives such as installing an on/off switch, fixing the passenger seat, or withdrawing the 2-seat model from the U.S. market could not guarantee any real-world improvement in safety.
Regarding Advocates' assertion that the public interest does not support granting the exemption, Lotus noted that the limited exemption it seeks is not a complete exemption from the advanced air bag requirements. Lotus also stated its support for NHTSA's general policy that complete exemptions should not be granted as they previously were, but Lotus stated that this request is much narrower.
In this section, we provide our analysis and decision regarding Lotus's temporary exemption request concerning FMVSS No. 208, including our response to the comments received from Advocates and Lotus.
NHTSA requested comments in the notice of receipt for Lotus's petition about a number of issues related to the justification for continuing to grant petitions for a hardship exemption from the advanced air bag requirements. We summarized our new position in the notice of receipt and again earlier in this document. We specifically sought comment on how this position could be applied to Lotus's request.
Given the passage of time since the advanced air bag requirements were established and implemented, and in light of the benefits of advanced air bags, NHTSA has determined that it is not in the public interest to continue to grant exemptions from these requirements in the same circumstances and under the same terms as in the past. The costs of compliance with the advanced air bag requirements of FMVSS No. 208 are costs that all entrants to the U.S. automobile marketplace should expect to bear. Furthermore, NHTSA understands that, in contrast to the initial years after the advanced air bag requirements went into effect, low volume manufacturers now have access to advanced air bag technology.
We have stated that manufacturers are not precluded from submitting petitions for exemption in this area, and NHTSA may grant some such exemptions. However, manufacturers should understand that the circumstances in which we would grant such exemptions are expected to be significantly more limited than in the past.
We believe that Lotus's petition for exemption is significantly more limited in nature than those in the past. Rather than seeking exemption from all or most of the advanced air bag requirements for the Evora, Lotus seeks exemption from only one requirement, higher maximum speed belted rigid barrier test for a 5th percentile adult female dummy, and only seeks this exemption for the passenger seat position. Because of the very limited nature of the exemption sought by Lotus, we consider it to be within the circumstances under which we would consider granting an exemption.
Although Advocates cite examples of what it characterizes as limited exemptions, the examples involve manufacturers seeking exemption from most of the advanced air bag requirements. Furthermore, the documents issued by NHTSA and cited by Advocates related to these exemption requests are notices of receipt, which do not represent a decision of the agency. We have sought comment on the applicability of this policy in all recent notices of receipt of petitions for exemption from any advanced air bag requirement and we will continue to do so if we receive any additional advanced air bag exemption petitions.
In response to Lotus's petition, and after considering all of the information provided as a response to the notice of receipt of the petition, NHTSA has decided to grant Lotus's petition for temporary exemption of the front passenger seat in the Evora from the higher speed belted rigid barrier test for a 5th percentile adult female dummy in FMVSS No. 208 for a period of one year after publication of notice of this decision in the
Our reasoning for granting this exemption is as follows. First, we find that Lotus is eligible for an economic hardship exemption. As discussed above, a manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator. In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle.
Accordingly, we considered whether an entity other than Lotus can be considered to manufacture the Evora. We considered the effect of Proton's ownership of Lotus on its eligibility for an economic hardship exemption in prior notices and concluded that Lotus is eligible under the requirements of 49 U.S.C. 30113(d).
Based on the information provided in Lotus's petition and its comments, NHTSA concludes that Lotus has demonstrated a good faith effort to bring its vehicle into full compliance with the requirements of FMVSS No. 208. We note that, after filing its petition, Lotus underwent a change of ownership and management. As a result of this change, Lotus has reconsidered aspects of its petition and has revised its petition to request a shorter exemption period. Moreover, Lotus has clarified that it intends to make the Evora fully compliant with FMVSS No. 208 at the end of the requested exemption period.
In reaching this conclusion regarding good faith efforts, we also placed substantial weight on the fact that Lotus examined alternative means to bring the vehicle into compliance such as fixing the seat position or moving it rearward. Nevertheless, we believe Lotus should reconsider using these or other alternative means to bring the Evora into full compliance.
As noted earlier, Advocates stated that, in considering alternative means of compliance, Lotus would not need to perform full vehicle tests. However, we note that, in considering alternative means of compliance with the higher maximum speed belted test requirement using 5th percentile adult female dummies, Lotus must also consider the vehicle's compliance with the other requirements of FMVSS No. 208, particularly the unbelted test requirements.
We accept Lotus's assertion that, to ensure compliance with the other advanced air bag requirements, Lotus would need to revalidate some portion of its air bag system. For example, Lotus could achieve compliance with the higher speed belted test requirement by restricting the forward movement of the seat beyond some point. We recognize that restricting the forward movement of the seat would move both the full forward and middle seat track positions rearward, which could affect performance on the unbelted tests. Although Lotus stated that the costs of revalidating its system with the forward movement of the seat restricted would result in similar costs to replacing the ECU, Lotus has not provided any specific explanation of what tests it believes it would need to perform and how much money such a program would cost.
Lotus could fix the passenger seat in the middle position, which would not affect the belted or unbelted test performance with the 50th percentile male. However, it could affect the performance of the 5th percentile female unbelted tests. Although Lotus states that this approach could adversely affect the comfort of larger occupants and could affect ingress or egress, Lotus has not provided the agency with support for these assertions.
Although Lotus suggests that real world safety may not be improved with these alternative means of compliance, Lotus has not provided any data or other evidence to support its assertion that these alternative means for compliance would result in lower real world safety. To the contrary, for a belted 5th percentile female sitting in the passenger seat fixed at the current middle position, this alternative means of compliance would likely result in a higher level of safety as compared to the current full forward position.
Notwithstanding these observations, we conclude that Lotus has acted in good faith in exploring alternative means of compliance and reasonably concluded that such alternative means of compliance are not feasible or desirable at this time. Lotus did not have the benefit of NHTSA's views on these alternative means of compliance prior to filing its petition. The agency's decision to grant this petition for a substantially shorter time period than sought by Lotus will allow Lotus to revisit its assessment of these or other alternative means of compliance or accelerate its schedule for replacing the ECU of its current advanced air bag system.
NHTSA also concludes that Lotus has demonstrated the requisite potential financial hardship. Although Advocates noted that, in its initial projections, Lotus expected to be profitable throughout the exemption period, its revised projections indicate it will incur financial losses, with or without an exemption.
Several factors support a finding that granting Lotus's exemption is in the public interest. NHTSA has traditionally found that the public interest is served by affording consumers the choice of a wider variety of motor vehicles and providing additional employment opportunities. We believe that both of these public interest considerations would be served by granting Lotus's petition and note that the denial of this request would remove a vehicle that is currently being sold in the U.S. market. Furthermore, as the Evora is the only vehicle currently being sold by Lotus, the withdrawal of the Evora from the market would result in Lotus leaving the U.S. market.
There are other relevant considerations. The number of vehicles at issue is small. In the last three years, Lotus has produced between 333 and 409 vehicles annually for the U.S. market. We agree with Lotus that the relatively low number of miles driven by the vehicle because of its nature as a second vehicle will mean that the vehicle is less likely to be involved in a crash. Finally, Lotus is including in its owner's manual information regarding the risk of sitting too close to the air bag. As a condition of this grant, we require Lotus to encourage its dealers to
After considering all of the relevant information, we have decided to grant Lotus a temporary exemption of the front passenger position in its Evora model from the higher maximum speed (56 km/h (35 mph)) belted test requirement using 5th percentile adult female dummies in S14.7 of FMVSS No. 208 for a period of one year after publication of this notice in the
We note that, as explained below, prospective purchasers will be notified that the vehicle is exempted from S14.7 of FMVSS No. 208. Under § 555.9(b), a manufacturer of an exempted passenger car must securely affix to the windshield or side window of each exempted vehicle a label containing a statement that the vehicle conforms to all applicable FMVSSs in effect on the date of manufacture “except for Standard Nos. [listing the standards by number and title for which an exemption has been granted] exempted pursuant to NHTSA Exemption No. ____.” This label notifies prospective purchasers about the exemption and its subject. Under § 555.9(c), this information must also be included on the vehicle's certification label.
The text of § 555.9 does not expressly indicate how the required statement on the two labels should read in situations in which an exemption covers part, but not all, of a FMVSS. In this case, we believe that a statement that the vehicle has been exempted from Standard No. 208 generally, without an indication that the exemption is limited to the specified advanced air bag provisions, could be misleading. A consumer might incorrectly believe that the vehicle has been exempted from all of FMVSS No. 208's requirements. Although we have said in the past that the addition of a reference to individual provisions would be of limited use to consumers in the case of advanced air bag exemptions, in the case of Lotus, which seeks exemption from only a single provision, we will allow Lotus to list the exempted paragraph on the label. For this reason, we believe the two labels should read in relevant part, “except for S14.7 of Standard No. 208, Occupant Crash Protection, exempted pursuant to * * *.”
In accordance with 49 U.S.C. 30113(b)(3)(B)(i), Lotus is granted NHTSA Temporary Exemption No. EX 13-01, from S14.7 of 49 CFR 571.208 for the front passenger seat of its Evora model. The exemption is for no more than 450 vehicles and it shall remain effective until one year following publication of notice of this decision in the
49 U.S.C. 30113; delegation of authority at 49 CFR 1.95.
Norfolk Southern Railway Company (NSR), pursuant to a written trackage rights agreement (Agreement), has agreed to grant temporary overhead trackage rights to Indiana Southern Railroad, LLC (ISRR) over NSR's line of railroad between Oakland City Junction, Ind., (milepost 0.8 EJ) and Enosville, Ind., (milepost 4.8 EJ), a distance of approximately 4.0 miles.
The transaction may be consummated on or after March 22, 2013, the effective date of the exemption (30 days after the verified notice of exemption was filed). The temporary trackage rights are scheduled to expire on or about December 31, 2013. The purpose of the temporary trackage rights is to allow ISRR to bridge loaded and empty coal trains between a customer at Enosville and ISRR's tracks at Oakland City Junction, for further movement over ISRR's line to Petersburg, Ind.
As a condition to this exemption, any employees affected by the acquisition of the temporary trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(8). If it contains false or misleading information, the exemption is void
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 April 8, 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
Copies of the submission(s) may be obtained by calling (202) 927-5331, email at
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and Request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995.
Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are required to publish notice in the
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning its information collection titled, “Notice Regarding Unauthorized Access to Customer Information.”
Comments must be submitted on or before May 7, 2013.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0227, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
You may request additional information or a copy of the collection from Johnny Vilela or Mary H. Gottlieb, OCC Clearance Officers, (202) 649-5490, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
The OCC is proposing to extend, with revision, the approval of the following information collection:
The Interagency Guidelines Establishing Information Security Standards, 12 CFR Part 30, Appendix B and Part 170, Appendix B (collectively,
The Interagency Guidance on Response Programs for Unauthorized Customer Information and Customer Notice (Breach Notice Guidance
(1) Assessing the nature and scope of an incident, and identifying what customer information systems and types of customer information have been accessed or misused;
(2) Notifying its primary Federal regulator as soon as possible when the supervised institution becomes aware of an incident involving unauthorized access to, or use of, sensitive customer information;
(3) Consistent with the OCC's Suspicious Activity Report regulations, notifying appropriate law enforcement authorities, as well as filing a timely SAR in situations in which Federal criminal violations require immediate attention, such as when a reportable violation is ongoing;
(4) Taking appropriate steps to contain and control the incident in an effort to prevent further unauthorized access to, or use of, customer information, for example, by monitoring, freezing, or closing affected accounts, while preserving records and other evidence; and
(5) Notifying customers when warranted.
This collection of information covers the notice provisions in the Breach Notice Guidance.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology;
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information; and
(f) Whether the estimates need to be adjusted based upon banks' experiences regarding the number of actual security breaches that occur.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and Request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) (PRA), Federal agencies are required to publish notice in the
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comments concerning an information collection titled “Bank Secrecy Act/Money Laundering Risk Assessment,” also known as the Money Laundering Risk (MLR) System.
The OCC is also announcing that the proposed collection of information has been submitted to OMB for review and clearance under the Paperwork Reduction Act of 1995.
Comments must be submitted by April 8, 2013.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0231, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0231, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503, or by email to:
You can request additional information from or a copy of the collection from Johnny Vilela or Mary H. Gottlieb, Clearance Officers, (202) 649-5490, Legislative and Regulatory Activities Division (1557-0231), Office of the Comptroller of the Currency, 400 7th Street SW.,
In compliance with 44 U.S.C. 3507, the OCC has submitted the following proposed collection of information to OMB for review and clearance.
The MLR System enhances the ability of examiners and bank management to identify and evaluate Bank Secrecy Act/Money Laundering and Office of Foreign Asset Control (OFAC) sanctions risks associated with banks' products, services, customers, and locations. As new products and services are introduced, existing products and services change, and banks expand through mergers and acquisitions, management's evaluation of potentially new money laundering and terrorist financing risks must evolve as well. Consequently, the MLR risk assessment is an important tool for the OCC's Bank Secrecy Act/Anti-Money Laundering/OFAC supervision activities because it allows the agency to better identify those institutions, and areas within institutions, that pose heightened risk, and allocate examination resources accordingly. This risk assessment is critical in protecting financial institutions of all sizes from potential abuse from money laundering or terrorist financing. Absent an appropriate risk assessment, applicable controls cannot be effectively implemented for lines of business, products, or entities, which would elevate Bank Secrecy Act/Money Laundering and OFAC compliance risks.
The OCC is considering expanding this reporting requirement to include OCC's Midsize and Large Bank populations and, therefore, is seeking OMB approval to include these populations in its information collection.
The OCC recently updated the annual Risk Summary Form. The changes in the 2012 form enhance the assessment process by requiring the reporting of products, services, and customers (PSCs) related to prepaid access or prepaid cards, a growth industry that is receiving increased attention from regulators, law enforcement, and Congress. The form now requires the reporting of the following prepaid card PSCs: (i) Prepaid Cards (Reloadable and Non-Reloadable); (ii) Prepaid Card Programs—Third-Party Sponsored (Reloadable and Non-Reloadable); (iii) Prepaid Card Programs—Bank-Sponsored (Reloadable and Non-Reloadable); (iv) Prepaid Cardholders (Reloadable and Non-Reloadable); and (v) Prepaid Card Program Managers. In addition, the Money Services Business (MSB) section of the form was modified to reflect changes in regulatory definitions. The form now includes MSB customers that are Providers of Prepaid Access and Sellers of Prepaid Access. All of these changes were made within the existing subject headers.
The OCC estimates the burden of this collection of information as follows:
In the
Both commenters recommended the OCC not expand its data collection requirement beyond the current community bank population. One comment letter indicated the collection of Bank Secrecy Act/Money Laundering related data should not be performed in a uniform manner since banks serve different customer types and geographies, and have varied products, transaction volumes, staffing, and expertise. The commenter observed that risk management is not a universal exercise and that management may tailor its risk assessment process to meet a bank's unique needs. The other commenter indicated expanding the data collection to Midsize and Large Banks would create redundancies and unnecessary burden on these financial institutions. The comment letter stated Midsize and Large Banks have been performing annual risk assessments for years, and, as such, these banks are best suited to evaluate their bank secrecy/money laundering risks. The commenter went on to suggest the OCC should instead focus on reviewing banks' analyses and risk assessment methodologies. Finally, the commenter suggested that the burden estimates are low, as the OCC may not fully appreciate the variance between bank data metrics and the data requested by the OCC.
The OCC carefully considered both comment letters. The purpose of the MLR System is to support the OCC's supervisory objectives by allowing for the identification and analysis of Bank Secrecy Act/Money Laundering and OFAC sanctions risks across the population of supervised banks, and to assist examiners in carrying out risk-based supervision and to improve examination scoping and transaction testing. The MLR System is not intended to supplant a bank's full Bank Secrecy Act and OFAC risk assessments, as the MLR seeks only to gather certain specific data without also collecting and considering information related to risk management processes. The OCC's evaluation of the institution's full risk assessment is performed during regular examinations. The MLR System can complement banks' Bank Secrecy Act and OFAC risk assessments, as data gathered should be substantially similar to the information needed to perform internal analyses of inherent Bank Secrecy Act and OFAC risks. Also, the burden estimates provided in this notice were calculated in conformance with OMB methodologies. Finally, the OCC is considering, but has not yet made a decision whether to expand the MLR reporting requirement to the OCC's Midsize and Large Bank populations.
Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
All comments will become a matter of public record. Written comments should address the accuracy of the burden estimates and ways to minimize burden including the use of automated collection techniques or the use of other forms of information technology as well as other relevant aspects of the information collection request.
Financial Management Service, Fiscal Service, Treasury.
Notice and Request for comments.
The Financial Management Service, 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 a continuing information collection requirement, “Accountable Official Application Form for U.S. Department of the Treasury Stored Value Card (SVC) Program.”
Written comments should be received on or before May 7, 2013.
Direct all written comments to Financial Management Service, Records and Information Management Branch, Room 135, 3700 East West Highway, Hyattsville, Maryland, 20782.
Request for additional information or copies of the form(s) and instructions should be directed to Sean Kemple; Agency Enterprise Solutions Division; 401 14th Street SW., Room 348E, Washington, DC 20227, (202) 874-0132.
Pursuant to the Paperwork Reduction Act of 1995, (44 U.S.C. 3506(c)(2)(A)), the Financial Management Service solicits comments on the collection of information described below:
This information is collected under the authority in: 31 U.S.C. 321, General Authority of the Secretary of the Treasury; Public Law 104-134, Debt Collection Improvement Act of 1996, as amended; Department of Defense Financial Management Regulation (DoDFMR) 7000.14—R, as amended; 5 U.S.C. 5514, Installment deduction for indebtedness to the United States; 31 U.S.C. 1322, Payments of unclaimed trust fund amounts and refund of amounts erroneously deposited; 31 U.S.C. 3720, Collection of payments; 31 U.S.C. 3720A, Reduction of tax refund by amount of debt; 31 U.S.C. 7701, Taxpayer identifying number; 37 U.S.C. 1007, Deductions from pay; 31 CFR part 210, Federal Government Participation in the Automated Clearing House; 31 CFR part 285, Debt Collection Authorities under the Debt Collection Improvement Act of 1996; and E.O. 9397 (SSN), as amended.
The information on this form may be disclosed as generally permitted under 5 U.S.C. 552(a) (b) of the Privacy Act of 1974, as amended. It may be disclosed outside of the U.S. Department of the Treasury to its Fiscal and Financial Agents and their contractors involved in providing SVC services, or to the Department of Defense (DoD) for the purpose of administering the Treasury SVC programs. In addition, other Federal, State, or local government agencies that have identified a need to know may obtain this information for the purpose(s) as identified by FMS's Routine Uses as published in the
Financial Management Service, Fiscal Service, Department of the Treasury.
Notice.
This is Supplement No. 5 to the Treasury Department Circular 570, 2012 Revision, published July 2, 2012, at 77 FR 39322.
Surety Bond Branch at (202) 874-6850.
A Certificate of Authority as an acceptable surety on Federal bonds is hereby issued under 31 U.S.C. 9305 to the following company: Atlantic Specialty Insurance Company (NAIC #27154). BUSINESS ADDRESS: 150 Royall Street, Canton, MA 02021-1030. PHONE: (781) 332-7000. UNDERWRITING LIMITATION b/: $62,660,000. SURETY LICENSES c/: AL, AK, AZ, AR, CA, CO, CT, DE, DC, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MD, MA, MI, MN, MS, MO, MT, NE., NV, NH, NJ, NM, NY, NC, ND, OH, OK, OR, PA, RI, SC, SD, TN,
Federal bond-approving officers should annotate their reference copies of the Treasury Circular 570 (“Circular”), 2012 Revision, to reflect this addition.
Certificates of Authority expire on June 30th each year, unless revoked prior to that date. The Certificates are subject to subsequent annual renewal as long as the companies remain qualified (see 31 CFR part 223). A list of qualified companies is published annually as of July 1st in the Circular, which outlines details as to the underwriting limitations, areas in which companies are licensed to transact surety business, and other information.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this Notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of (1) individual whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
The designation by the Director of OFAC of the one (1) individual in this notice, pursuant to Executive Order 13224, is effective on February 14, 2013.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701-1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c. In the Order, the President declared a national emergency to address grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the September 11, 2001 terrorist attacks in New York, Pennsylvania, and at the Pentagon. The Order imposes economic sanctions on persons who have committed, pose a significant risk of committing, or support acts of terrorism. The President identified in the Annex to the Order, as amended by Executive Order 13268 of July 2, 2002, 13 individuals and 16 entities as subject to the economic sanctions. The Order was further amended by Executive Order 13284 of January 23, 2003, to reflect the creation of the Department of Homeland Security.
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in or hereafter come within the United States or the possession or control of United States persons, of: (1) Foreign persons listed in the Annex to the Order; (2) foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, to have committed, or to pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States; (3) persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to be owned or controlled by, or to act for or on behalf of those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order; and (4) except as provided in section 5 of the Order and after such consultation, if any, with foreign authorities as the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, deems appropriate in the exercise of his discretion, persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism or those persons listed in the Annex to the Order or determined to be subject to the Order or to be otherwise associated with those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order.
On February 14, 2013 the Director of OFAC, in consultation with the Departments of State, Homeland Security, Justice and other relevant agencies, designated, pursuant to one or more of the criteria set forth in subsections 1(b), 1(c) or 1(d) of the Order, one (1) individual whose property and interests in property are blocked pursuant to Executive Order 13224.
The listing for this individual on OFAC's list of Specially Designated Nationals and Blocked Persons appear as follows:
1. HAMMAM, Yahya Abu (a.k.a. AKACHA, Jamel; a.k.a. DJAMEL, Akkacha; a.k.a. EL HAMMAM, Yahia Abou); DOB 1979; nationality Algeria (individual) [SDGT].
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Notices and Correspondence Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, April 10, 2013.
Timothy Shepard at 1-888-912-1227 or 206-220-6095.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel Notices and Correspondence Project Committee will be held Wednesday, April 10, 2013, at 12 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Timothy Shepard. For more information please contact Mr. Shepard at 1-888-912-1227 or 206-220-6095, or write TAP Office, 915 2nd Avenue, MS W-406, Seattle, WA 98174, or contact us at the Web site:
The agenda will include a discussion on installment agreement letters, and other issues related to written communications from the IRS.
Internal Revenue Service (IRS), Treasury.
Notice of Meeting.
An open meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, April 10, 2013.
Marisa Knispel at 1-888-912-1227 or 718-834-2203.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project Committee will be held Wednesday, April 10, 2013 at 11:00 a.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Ms. Knispel. For more information please contact Ms. Knispel at 1-888-912-1227 or 718-834-2203, or write TAP Office, 2 MetroTech Center, 100 Myrtle Avenue 7th Floor, Brooklyn, NY 11201, or contact us at the Web site:
The agenda will include various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Thursday, April 18, 2013.
Ellen Smiley or Patti Robb at 1-888-912-1227 or 414-231-2360.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee will be held Thursday, April 18, 2013 at 2:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Ms. Ellen Smiley or Ms. Patti Robb. For more information please contact Ms. Smiley or Ms. Robb at 1-888-912-1227 or 414-231-2360, or write TAP Office Stop 1006MIL, 211 West Wisconsin Avenue, Milwaukee, WI 53203-2221, or post comments to the Web site:
The agenda will include various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, April 9, 2013.
Audrey Y. Jenkins at 1-888-912-1227 or 718-834-2201.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee will be held Tuesday, April 9, 2013, at 2:00 p.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Audrey Y. Jenkins. For more information please contact Ms. Audrey Y. Jenkins at 1-888-912-1227 or 718-834-2201, or write TAP Office, 2 MetroTech Center, 100 Myrtle Avenue 7th Floor, Brooklyn, NY 11201, or contact us at the Web site:
The agenda will include various IRS Issues.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Joint Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, April 24, 2013.
Susan Gilbert at 1-888-912-1227 or (515) 564-6638.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Joint Committee will be held Wednesday, April 24, 2013 at 2:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Notification of intent to participate must be made with Susan Gilbert. For more information please contact Ms. Gilbert at 1-888-912-1227 or (515) 564-6638 or write: TAP Office, 210 Walnut Street, Stop 5115, Des Moines, IA 50309 or contact us at the Web site:
The agenda will include various IRS topics.
Internal Revenue Service (IRS), Treasury.
Notice of Meeting.
An open meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, April 16, 2013.
Marianne Dominguez at 1-888-912-1227 or 954-423-7978.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee will be held Tuesday, April 16, 2013 at 11:00 a.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Marianne Dominguez. For more information please contact Ms. Dominguez at 1-888-912-1227 or 954-423-7978, or write TAP Office, 1000 South Pine Island Road, Suite 340, Plantation, FL 33324, or contact us at the Web site:
The agenda will include various IRS issues.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Division of Property Management, Program Support Center, HHS, room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses: ARMY: Ms. Veronica Rines, Office of the Assistant Chief of Staff for Installation Management, Department of the Army, Room 5A128, 600 Army Pentagon, Washington, DC 20310, (571) 256-8145; (This is not a toll free number).