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Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of denial of petition for reconsideration.
This document announces the U.S. Department of Energy's (DOE) denial of a petition from the Association of Home Appliance Manufacturers (AHAM) requesting reconsideration of DOE's final rule to amend the test procedures for residential dishwashers, dehumidifiers, and conventional cooking products, as well as the direct final rule to amend energy conservation standards for dishwashers.
This denial is effective April 10, 2013.
This notice involves a petition by AHAM for reconsideration of DOE's final test procedure rule to amend the test procedures for dishwashers, dehumidifiers, and conventional cooking products (77 FR 65942, Oct. 31, 2012) and its direct final rule to amend the energy conservation standards applicable to dishwashers (77 FR 31918, May 30, 2012; 77 FR 59712, Oct. 1, 2012).
In support of its request, AHAM asserts that the test procedure amendments for fan-only mode and standby and off mode energy use impact the measured energy use of dishwashers. As a result, AHAM states that the Energy Policy and Conservation Act of 1975 (EPCA), as amended, requires DOE to adjust the stringency of the energy conservation standards in the direct final rule accordingly or delay compliance with those test procedure amendments until a subsequent amended standard is promulgated for dishwashers. AHAM acknowledges that the standards established in the direct final rule were submitted to DOE in a consensus agreement to which it was a party and adopted pursuant to DOE's authority at 42 U.S.C. 6295(p)(4).
In support of AHAM's contention that the fan-only mode test procedure revisions require an adjustment of the standard, AHAM cited DOE's conclusion that measurement of fan-only mode energy use would increase the measured energy use of the dishwasher by 0.4-17 kilowatt-hours per year (kWh/year). In addition, AHAM cited a statement from a supplemental notice of proposed rulemaking (SNOPR) that the higher end of the range is greater than 5 percent of the maximum allowable annual energy consumption for a standard dishwasher. (77 FR 31444, May 25, 2012) (May 2012 SNOPR). (DOE notes that the percentage cited in the May 2012 SNOPR references the 355 kWh per year standard applicable to standard dishwashers until May 30, 2013. The statement should therefore read “less” than 5 percent because 17 kWh/year represents 4.8 percent of 355 kWh/year.)
AHAM asserted that notwithstanding DOE's arguments that the energy use in
In support of AHAM's contention that the standby and off mode test procedure revisions require an adjustment of the standard, AHAM noted DOE's conclusion that while DOE did not expect the estimated annual energy use (EAEU) or estimated annual energy cost to be significantly affected by the proposed amendments to measure standby and off mode energy use, integrating such energy use into the overall efficiency metric would produce a measureable difference in EAEU (Public Meeting Transcript, Dec. 17, 2010).
As with fan-only mode, AHAM pointed out that the stakeholders to the consensus agreement, upon which the standards in the direct final rule were based, agreed that if the test procedure were amended, the stakeholders would recommend that DOE translate the standards to equivalent levels specified under revised test procedures, as specified in 42 U.S.C. 6293(e). In addition, AHAM asserted that DOE took this approach in establishing revised standards for room air-conditioners and clothes dryers in its direct final rule establishing amended energy conservation standards (76 FR 22454, Apr. 21, 2011; 76 FR 52854, Aug. 24, 2011).
DOE published AHAM's petition for comment on December 31, 2012 (77 FR 76952). DOE received five comments on the petition. These comments and DOE's responses are set forth in the paragraphs that follow.
BSH Home Appliances Corporation (BSH)
Further analysis of DOE's
For standby and off mode energy use, DOE proposed to measure such energy use in the December 2010 proposed test procedure amendments using IEC Standard 62301 “Household electrical appliances—Measurement of standby power,” First Edition 2005-06 (IEC 62301). 75 FR 75290 (Dec. 2, 2010). In the September 2011 SNOPR, DOE proposed to measure such energy use using the Second Edition of IEC 62301, as recommended by commenters. 76 FR 58346 (Sept. 20, 2011). DOE analyzed the change in measured energy use, if any, that would occur as a result of these proposed changes and concluded that these amendments would not measurably alter the energy use of dishwashers. 75 FR 75290, 75316-17; 76 FR 58346, 58355 (Dec. 2, 2010).
For fan-only mode energy use, DOE proposed a method to measure such energy use in the May 2012 SNOPR (71 FR 31444, 31447) and proposed an alternative method to measure such energy use in the August 2012 SNOPR based on comments received from interested parties, including manufacturers (77 FR 49064, 49067). DOE determined that the energy use measured in fan-only mode would represent less than 5 percent of the total energy use of standard dishwashers. Given that 65 percent of all standard dishwashers currently on the market meet or exceed the minimum energy conservation standards established in the direct final rule, inclusion of this small amount of energy use would have virtually no impact on compliance with the revised standard. As a result, DOE determined that the energy use in fan-only mode is
In response to BSH's other comments, DOE considered impacts to consumer utility in adopting the standards established in the direct final rule and concluded that the standards adopted in that rule would not impact product utility. 77 FR 31918, 31956-57 (May 30, 2012). In addition, DOE takes no position on the business or marketing decisions made by manufacturers in response to amendments to applicable
The California IOUs (Pacific Gas and Electric Company, Southern California Gas Company, San Diego Gas and Electric, and Southern California Edison) and a number of energy efficiency advocates and consumer groups (Appliance Standards Awareness Project, American Council for an Energy Efficient Economy, Alliance to Save Energy, Consumer Federation of America, Natural Resources Defense Council, Northwest Energy Efficiency Alliance, Northwest Power and Conservation Council, and Earthjustice, hereinafter referred to as the “Joint Commenters”) opposed staying the effective date of the direct final rule. These commenters also stated that if manufacturers provide data documenting non-compliance with the standard as a result of the test procedure changes, DOE could stay those portions of the test procedure specified in AHAM's petition.
The Joint Commenters also stated that AHAM has not shown that DOE was incorrect in concluding that any impact on measured energy consumption would be
As explained in Section III of this notice, DOE declines to grant AHAM's request to stay the effective date of the standards established in the direct final rule until DOE: (1) Revises the standards in the final standards rule to account for the impact on measured energy resulting from test procedure amendments to measure fan-only mode and standby and off mode energy use; or (2) delays requirements regarding measurement of fan-only mode and standby and off mode energy use until promulgation of a revised standard for dishwashers. As part of this determination, DOE maintains its conclusion that the energy use in fan-only and standby and off mode is
DOE also received a comment from a private citizen asserting the need for energy efficient appliances as soon as possible at a reasonable cost. The commenter recommended that the Federal government provide incentives to the American manufacturers to produce these products. This comment is outside the scope of DOE's response to the AHAM petition.
EPCA requires DOE to determine to what extent, if any, proposed test procedure amendments would alter the measured energy efficiency, energy use, or water use of any covered product as determined under the existing test procedure. 42 U.S.C. 6293(e)(1). If DOE determines that the amended test procedure will alter the measured energy efficiency, energy use, or water use of a covered product, DOE must amend the applicable energy conservation standard. The amended standard is calculated as the average of the energy efficiency, energy use, or water use determined by testing a representative sample of products that minimally comply with the existing standard using the amended test procedure. 42 U.S.C. 6293(e)(2).
In applying these provisions to the energy conservation standards adopted in the direct final rule for dishwashers, DOE determined that no adjustment to the standard levels was warranted because the changes in measured energy use resulting from the test procedure amendments for the measurement of fan-only mode and standby and off mode energy use were
AHAM argues in its petition that DOE must grant the requested relief, either adjusting the standard levels established in the direct final rule or delaying compliance with the test procedure provisions for measuring energy use in fan-only mode and standby and off mode, because Congress did not provide a
As noted in Section II of this notice, DOE analyzed the change in measured energy use, if any, that would occur as a result of the proposed changes to the measurement of standby mode and off mode energy use, and fan-only mode energy use. As discussed in the paragraphs that follow, DOE determined that the data submitted by manufacturer commenters does not change the conclusion that measurement of the energy use in fan-only mode and standby and off mode is insufficient to materially alter the measured energy use of dishwashers and therefore does not require an adjustment of the energy conservation standards established in the direct final rule.
DOE estimated fan-only mode energy use at 0.4-17 kWh per year, which even at the high end of the range is less than 5 percent of the energy use of standard dishwashers. DOE emphasizes, and agrees with the point made by the Joint Commenters, that a standards
DOE estimates standby and off mode energy use at 2 percent of total energy use of a standard dishwasher. As noted in the test procedure rulemaking and in Section II of this notice, DOE further estimated that the test procedure amendments made for appendix C1 would not materially alter that measured energy use. AHAM collected data showing that the updated test procedure for measuring standby and off mode energy use in Appendix C1 would add a shipment-weighted average of 1.10 kWh per year. BSH submitted data indicating that standby and off mode energy use could add up to 21 kWh per year for the BSH models tested. AHAM's figure of 1.10 kWh/year is only 0.4 percent of the May 2013 standard level for standard dishwashers. DOE notes that the BSH estimate of an additional 21 kWh per year of standby and off mode energy use would represent an increase in low-power mode consumption of 2 to 3 Watts compared to the standby power measured according to Appendix C, which is at least three times the maximum inactive or off mode power consumption that DOE measured in its sample of 14 dishwashers tested for the December 2010 proposed test procedure amendments. DOE also notes that its statement about a measurable difference in EAEU at the public meeting, noted in Section II of this notice, was meant to convey that integration of the standby and off mode energy use into the overall efficiency metric pursuant to 42 U.S.C. 6295(gg)(3) would still allow for calculation of this energy use, even though the energy use measurement was very small. After considering the data submitted by commenters, DOE maintains its conclusion that the amendments to measure standby and off mode energy use would not measurably alter the energy use of dishwashers.
AHAM also argues in its petition that DOE must adjust the standard levels established in the direct final rule or delay compliance with the test procedure provisions for measuring energy use in fan-only mode and standby and off mode because it has not provided a definition of
DOE has determined in at least one instance that adjustment of the standard levels based on test procedure amendments was warranted. As AHAM noted, in the direct final rule establishing energy conservation standards for clothes dryers and room air conditioners, DOE adjusted the standard for clothes dryers based on its estimate of the increase in average energy factor that would result from use of the amended test procedure, which ranged from 10.3-22.5 percent (77 FR 22454, 22477, Apr. 21, 2011). This range is significantly larger than the percentage increase DOE estimated for the dishwasher rule and the average percentage increase that AHAM estimated—0.29 kWh/year for fan-only mode and 1.10 kWh/year for standby and off mode, which represent in total approximately 0.45 percent of the May 2013 standards for dishwashers.
Regarding DOE's statement that 65 percent of standard dishwashers on the market would meet the standards established in the direct final rule, DOE intended to convey that the standard adopted in the direct final rule, which represented the maximum improvement in energy efficiency that was technologically feasible and economically justified, was not so stringent that only a very small percentage of dishwashers would comply. In such a case, DOE might consider whether a smaller change in measured energy use could trigger the requirements of 42 U.S.C. 6293(e)(2).
Even if DOE had determined that the change in measured energy use as a result of test procedure provisions for the measurement of standby and off mode energy use were not
As a result of the above analysis, and in consideration of AHAM's petition and the comments received thereon, DOE declines to grant the petition.
Bureau of Consumer Financial Protection.
Final Policy Statement.
The Bureau of Consumer Financial Protection (Bureau) is issuing a final policy statement (Policy Statement) to provide guidance on how the Bureau plans to exercise its discretion to publicly disclose certain consumer complaint data that do not include personally identifiable information. The Bureau receives complaints from consumers under the terms of Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The Policy Statement also identifies additional ways that the Bureau may disclose consumer complaint data but as to
This Policy Statement is effective on March 25, 2013.
Scott Pluta, Office of Consumer Response, Bureau of Consumer Financial Protection, at (202) 435-7306.
Under the final Policy Statement,
In its Proposed Complaint Data Disclosure Policy Statement, the Bureau generally described how the Office of Consumer Response (“Consumer Response”) accepts and processes consumer complaints (collectively the “Complaint System”).
In its Proposed Complaint Data Disclosure Policy Statement, the Bureau proposed to extend its existing disclosure practices described in the Final Credit Card Data Disclosure Policy Statement to apply to other complaint data. The Bureau noted that the basic structure of the credit card data disclosure policy, including the public database, could be duplicated for other consumer products and services in addition to credit cards. The Bureau also observed that the purposes underlying the Final Credit Card Data Disclosure Policy Statement would apply to this extension, and the legal authority to disclose the data in the public database and in the Bureau's own reporting is likewise the same.
The Bureau received 26 unique sets of comments in response to its Notice of Proposed Complaint Data Disclosure Policy Statement. Fifteen industry groups submitted letters. One financial reform coalition submitted a single set of comments on behalf of 22 consumer, civil rights, privacy, and government groups. One mortgage provider, a financial services provider, and an online social network submitted comments. Finally, five consumers submitted comments.
Almost all comments concerned expansion of the public database component of the Proposed Complaint Data Disclosure Policy Statement. Many of these comments generally reiterated comments submitted in response to the Proposed Credit Card Complaint Disclosure Policy Statement. Industry commenters generally opposed the inclusion of additional complaint data in the public database, and reiterated opposition to the database itself. Although they endorsed the intended goals of the public database, many industry commenters asserted that the database would confuse consumers and unfairly damage the reputation of companies. Several trade associations commented that the database is contrary to the Bureau's mission to help consumers and to promote the transparency and efficiency of markets for consumer financial products and services. Some commenters specifically noted their support for the Bureau's work to help educate consumers through supplying timely and comprehensive information to make informed decisions about their financial transactions and the companies they choose to work with, but stated that complaints are best handled by the parties themselves.
The disclosure of company names in the public database was a particular focus of these comments, as was normalization or the use of some metric to provide context for data—by, for example, including information on the number of accounts a company has for each particular product or service. Some industry commenters reiterated comments that the Bureau lacks legal authority to disclose individual-level complaint data. One commenter reiterated opposition to the database and disclosure of any complaint data, asserting that Congress intended the complaint function to ensure that the Bureau has knowledge of the consumer
Consumer groups and consumers endorsed the goals underlying the public database proposal. The submission from the financial reform coalition on behalf of 22 consumer, civil rights, privacy, and government groups supported the existence and expansion of the public database, citing the data publication as a public service and a way to fulfill the Bureau's affirmative disclosure requirements under FOIA. Those groups also urged the Bureau to publicly disclose consumers' narratives and companies' response narratives. Other groups commented that the Bureau should carefully weigh privacy concerns associated with expanding the fields disclosed.
Many submissions included comments directed to the Bureau's method of processing consumer complaints,
This section provides a summary of the comments received by subject matter. It also summarizes the Bureau's assessment of the comments by subject matter and, where applicable, describes the resulting changes that the Bureau is making in the final Policy Statement. All such changes concern the public database. There are no changes to the policy regarding the Bureau's issuance of its own complaint data reports.
Several trade associations commented that, each time the Bureau intends to add complaints to the public database about a certain type of consumer financial product or service, it should provide the opportunity to comment prior to doing so.
Consumer Response already maintains several feedback mechanisms for stakeholders, and has conducted specific outreach to companies, consumer groups, and trade associations to obtain feedback prior to beginning to accept new types of complaints (and therefore before inclusion in the public database). One trade association noted its support of the Bureau's feedback process and engagement with regulated entities. The Bureau will also delay publication of complaints about categories of products or services other than those immediately subject to this policy
The Bureau is committed to transparency and robust engagement with the public regarding its actions. Although not required by law to do so, the Bureau solicited and received public comment on the Proposed Complaint Data Disclosure Policy Statement. The Bureau received substantial public feedback expressing a range of viewpoints, and it has carefully considered the comments received, as described in detail below including comments specific to the expansion of the database to particular consumer financial markets. As stated in the final Policy Statement, the Bureau plans to study the effectiveness of its policy on an ongoing basis, and plans to continue to engage with the public, including regulated entities, as it assesses the efficacy of its complaint disclosure policy.
In its Final Credit Card Data Disclosure Policy Statement, the Bureau addressed in detail several arguments related to the Bureau's authority to establish a public database. Several comments in response to the Proposed Complaint Data Disclosure Policy Statement implicate the same arguments concerning the Bureau's legal authority. For example, several trade associations reiterated claims that the public database and individual-level complaint data disclosure are inconsistent with the Freedom of Information Act (FOIA) and the Trade Secrets Act. A financial reform organization and 22 consumer groups, civil rights, privacy, and government groups specifically noted their disagreement with those comments and asserted that the Bureau not only has the authority but also may have an obligation to create the public database in order to meet its affirmative disclosure requirements under FOIA and the Bureau's own regulations. The Bureau stands by its previous statements and analysis on this issue.
Comments from consumer groups, privacy groups, and consumers contended that the public database empowers consumers to better understand and detect instances of unfair or deceptive practices, and identifies companies that prioritize customer service and alleviate problems up front by helping consumers avoid “bad actors.” They further asserted that the addition of data on other products and services will extend and enhance these benefits of the database. Several contended that disclosure is one of the best tools government agencies can use to improve the operation of consumer financial markets and the consumer experience. They argued that consumers can draw their own conclusions from the public database, and endorsed its accessibility and adaptable architecture. Several stated that the data do not need to be fully verified nor randomly generated to be of potential use to outside parties, and they contended that the data can serve to help consumers and advocates detect trends of unfair, deceptive, or abusive acts and practices.
Industry commenters, by contrast, mainly asserted that the publication of additional complaint data in the public database would mislead consumers because the data would be unverified, unrepresentative, lacking in context, and open to manipulation.
Several trade associations commented that the Bureau should not disclose unverified data. Some argued that the Bureau should only include complaints found to have contained regulatory violations. Others stated that the consumer complaints are likely to contain only unsubstantiated, inaccurate, and frivolous allegations that could mislead consumers. One industry group pointed to the existence of conflicting accounts between the company and the consumer as a reason to withhold complaints from publication. Privacy and consumer groups, on the other hand, commented that the lack of verification presented only minimal risks to companies because of controls in place to ensure that complaints must come from actual customers of that company, and furthermore that companies are given adequate time to challenge the customer/company relationship. They further contended that the benefit of making the data public is not outweighed by the “speculative harm of unverified complaints.”
The Bureau acknowledges that the Complaint System does not provide for across the board verification of claims made in complaints. On its Web site, the Bureau makes clear that it does “not verify the accuracy of all facts alleged in [the] complaints” contained in the public database.
Several trade associations reiterated previously submitted comments that it is inappropriate for the Bureau to publish data that is not randomly sourced. Non-random complaints, they contended again, cannot provide consumers with useful information. In contrast, one consumer group noted that the data need not be random to be of use in identifying trends and providing consumers with a valuable educational tool.
The latter view finds support in analyses of the database conducted by independent researchers. For example, one report notes the database's potential for assisting companies in decreasing risk and cost, increasing customer service, and identifying best practices that allow companies to address problems before they become complaints by comparing the Bureau's complaint data, social media data, and companies' own internal records.
Industry comments on representativeness also recognized that the Bureau is expressly authorized to use complaint data to set priorities in its supervision process. Some industry comments also recognized that the data could play a role with respect to other statutory obligations, such as fair lending enforcement or market monitoring. If complaint data can provide the Bureau with meaningful information, then logically they may also prove useful to consumers and other reviewers. If the data lacked such potential, Congress would not have pointed to complaints as a basis to inform important Bureau priorities.
Several trade associations commented that Bureau disclaimers about the lack of verification or representativeness will not effectively warn consumers about the limitations of the public database. The associations expressed concern that consumers and the media will inevitably see or portray the information as being endorsed by the Bureau, notwithstanding the Bureau's disclaimers. In addition, one trade group commented that the marketplace of ideas cannot prevent consumers from being misled by the public database. Another commented that the database fails to distinguish complaints of major and minor significance or those based on confusion about a regulatory requirement from those asserting a regulatory violation, and that, without that context, the data are open to misinterpretation.
One trade association suggested language for a new disclaimer, including statements that there are no attempts to verify the accuracy of any aspect of the complaint and that one should not draw any conclusion about any financial product or service, or any company mentioned. Given the various authentication measures used by the Bureau and the clear indication from—among others—Congress, companies themselves, and outside researchers that the data are informative, the Bureau has decided not to adopt this suggested language.
Some trade associations did not seem to be familiar with the additional context that the Bureau already provides to consumers and reviewers, asserting that the Bureau does not encourage consumers to view the Bureau's aggregate data reports and that the database does not provide the public with the date that it was last updated. On the consumer complaint database Web page, in addition to tutorials on how to use the data tool and a description of how the Bureau processes complaints, the Bureau maintains a section on its affirmative reports of data findings and provides links to copies of each of the documents.
The Bureau acknowledges the possibility that some consumers may draw (or be led to) erroneous conclusions from the data. That is true, however, for any market data. In addition, the Bureau's two-part disclosure policy—first, its own affirmative reports of data findings that it believes may inform consumers, and second, a public database that researchers and others can mine for possible data trends—is intended to minimize any consumer confusion about the scope of the Bureau's own conclusions with respect to the complaint data. The Bureau is open, however, to further suggestions from trade associations, companies, and other concerned stakeholders on how best to provide additional context for the public database.
The Bureau notes the general acceptance by consumer and industry groups that normalization can improve data utility. Thus, although trade associations uniformly reiterated their opposition to the release of company names in the public database, many recognized the importance of normalizing the data that the Bureau decides to release.
One trade association suggested that normalization be addressed by the provision of independently verified data on the number of customer contacts on an annual basis, with the inclusion of an extra data field providing a proportion of complaints to contacts. Other commenters suggested including indications of scale, number of transactions or accounts, portfolio size, and information on closed or unopened accounts. Several groups and associations also noted that the database should provide the functionality to break down the data by types of products and services. The database does provide the ability to filter by product or service, and will continue to feature this function.
The Bureau agrees with commenters that, if possible, normalization should account, for example, for closed accounts with a balance and declined loan applications because these are additional contacts with the consumer and may be the subject of complaints. One trade association noted that additional time to prepare a proposal on normalization would be helpful. The Bureau intends to work further with commenters and other interested stakeholders on specific normalization approaches, and welcomes further operational suggestions on the point.
Several trade associations reiterated comments that third parties like debt negotiation companies could use complaint filing as a strategic tool to aid their clients. One trade association again commented that outside parties may artificially inflate complaint counts for litigation purposes. Several trade associations also repeated claims that one outside party has submitted numerous fraud complaints about a single merchant, allegedly for improper purposes.
The Complaint System has a number of protections against manipulation. For example, the burden of submitting a complaint is not negligible. Consumers must affirm that the information is true to the best of their knowledge and belief. The consumer is asked for a verifiable account number for account-based services. If none is provided (or available) and the consumer is unable to produce verifiable documentation of the relationship with the provider (such as a statement or receipt), the complaint is not pursued further. As described further below, when a company offers a reasonable basis to challenge its identification in a complaint, the Bureau does not post the relevant complaint to the public database unless and until the correct company is identified. Furthermore, the Bureau takes steps to consolidate duplicate complaints from the same consumer into a single complaint.
The Bureau maintains additional controls after complaints are submitted and companies are able to alert the Bureau to any suspected manipulation. Companies have the ability to provide feedback to the Bureau if they believe they are not the correct entity about which the consumer is complaining. In addition, companies can provide feedback to the Bureau about complaints they believe were not submitted by an authorized consumer or his or her representative. The Bureau may also intervene to clarify ambiguities if it observes anomalies in mass complaint submissions. As detailed in the final Policy Statement, where the company provides feedback that they are unable to verify the commercial relationship with the consumer who filed the complaint, the complaint will not be published in the database. If companies find this combined package of controls insufficient in practice, the Bureau is open to suggestions for addressing identifiable problems.
Consumer groups commented that the disclosure of company names represents a significant aspect of the Bureau's policy. They noted that other complaint databases that disclose the identity of specific companies in other industries have created pressure on companies to improve whatever metrics are measured by the public database. As a result, these groups expect the Bureau's public database to cause companies to compete more effectively on customer service and product quality. Together with privacy and open government groups, consumer groups contended that outside groups can use the company data to help consumers make more informed decisions.
Industry groups disagreed that disclosing company names serves these or any policy purposes. They reiterated previous comments that this form of disclosure would unfairly damage companies' reputation and competitive position. One trade association indicated that the inclusion of company names could implicate safety and soundness concerns, particularly in light of viral media. Several noted that the public database would not take account of the size and nature of the portfolio of different companies, which would cause consumer confusion. Others commented that company names should be reported as the parent company in order to avoid consumer confusion about the various ways companies with decentralized systems would show up in the database. Several industry groups also noted concerns over how a company acquired by another company would be displayed in the database. One trade association expressed a concern that disclosure of complaint data related to debt collection could be noncompliant with the Fair Debt Collection Practices Act, and suggested de-identification of company and consumer information related to such complaints.
Trade groups asserted that if company names are to be included, they should be verified. Several noted that consumers would be particularly likely to name the merchant or other partner in connection with pre-paid cards, and not the actual issuer. Some noted that account numbers would not be sufficient for verification because the system will accept complaints without an account number and some complaints—like declined application complaints—will arise even when there is no account number.
The Bureau believes that industry comments fail to acknowledge the system controls that are in place to verify that a complaint is from an actual customer of the company and that the company is properly identified. If a consumer contacts the Bureau solely with an inquiry, it will not be recorded as a complaint and therefore not published in the database. Companies have the ability to notify the Bureau if they cannot take action because the complaint is not related to the company. No company will be associated with a complaint if it demonstrates a reasonable basis to challenge a commercial relationship with the consumer. Currently, the Complaint System provides companies 15 days to challenge company identification, a time period which experience has shown to be sufficient.
For many complaints, account numbers provide a reliable method to verify the identity of the company. The Bureau acknowledges that some complaints may identify the company as the merchant or, for example, another partner. In such cases, the account number provided will not match the name provided. To prevent this, the Bureau can confirm the account number and other descriptive information with the consumer, and then substitute the name of the correct company. The merchant or other partners are not named. The Bureau also recognizes that there are cases in which no account number is available to the consumer, such as when credit applications are declined, or when the complaints involve services that are not tied to accounts. In these cases, the Bureau works directly with the consumer to identify the correct company from correspondence or other communications provided by or received from the company. If the correct company cannot be identified in this manner, the complaint will be closed and no data will be added to the public database.
The Bureau acknowledges, as it did in the Proposed Complaint Data Disclosure Policy Statement, that there are significantly varying views among stakeholders about whether consumer and company provided data is useful to consumers. However, the Bureau continues to believe that this disclosure may allow researchers to inform consumers about potentially significant trends and patterns in the data. In addition, given that companies have made competitive use of this and other public databases, the Bureau anticipates these disclosures have the potential to sharpen competition over product quality and customer service.
Furthermore, as several trade associations conceded and as previously noted above, Congress itself recognized that the Bureau may properly use consumer complaint data to set supervision, enforcement, and market monitoring priorities.
Finally, any privacy issues related to the Fair Debt Collection Practices Act will be considered and addressed when the Bureau begins accepting complaints about debt collection companies and considers disclosing related complaint data. Any issues raised with respect to processing of pre-paid cards, or other products and services about which the Bureau does not yet accept complaints, will be considered and addressed when the Bureau begins accepting such complaints and considers disclosing related complaint data. As stated in the final Policy Statement, the Bureau plans to study the effectiveness of its policy on an ongoing basis, and plans to continue to engage with the public, including regulated entities, as it assesses the efficacy of its complaint disclosure policy and retains the ability to make adjustments as needed when addressing the concerns of particular financial markets.
Consumer groups commented that the Bureau should add additional location fields, such as city and census tract level data. Several trade associations, however, commented that zip code disclosure creates risks to privacy because zip codes can be combined with other data to identify consumers, particularly in sparsely populated rural zip codes and with respect to particular types of products, and suggested disclosing only the state. Trade associations also commented that zip code data may be misunderstood to imply discriminatory conduct, leading to unfounded allegations of discrimination.
The Bureau is mindful of the potential privacy implications of zip code disclosure. For the time being, and pending additional study, it will limit zip code disclosures to five digits, even if a consumer provides the full nine-digit zip code. Furthermore, as it analyzes the potential for narrative disclosure, the Bureau will consider the impact of zip code disclosures in assessing privacy risks. The Bureau will also analyze whether there are ways to disclose more granular location fields without creating privacy risks, as suggested by some commenters.
Consumer groups and trade associations mainly reiterated comments made in response to the Credit Card Data Proposed Policy Statement. Consumer groups generally favored the inclusion of the data, and industry groups commented that it should remain excluded. One trade association suggested eliminating the field from the complaint intake forms altogether, citing a lack of meaningful data and evidence of value in its collection. Some consumer groups, however, suggested that the Bureau request protected class information to assist in the detection of patterns and practices of lending and credit discrimination, and provide an explanation to consumers as to the value in collecting such information.
The Bureau is continuing to refine its methods for identifying discrimination allegations in complaints submitted by consumers. Accordingly, the Bureau does not plan to disclose discrimination field data in the public database at this time. In the interim, the Bureau will continue to study the conditions, if any, necessary for the appropriate disclosure of such information at the individual complaint level. The Bureau may also report discrimination allegation data at aggregated levels in its own periodic complaint data reports.
Trade and consumer groups reiterated comments that the Bureau could improve this data field in several respects, including allowing a consumer to be able to select several issues for a
The Bureau is working to develop the required functionality for a consumer to be able to “tag” a complaint as implicating more than one issue. In addition, the Bureau is weighing possible improvements to the issue categories and is considering the extent to which Bureau staff should “tag” complaints as raising certain issues. The Bureau welcomes further input from stakeholders on how to further improve the issue categories.
Consumer groups reiterated comments on the need to include additional data about the company's response, including narratives accompanying the disposition code and the date of the company response.
The Bureau believes the changes previously made in response to industry concerns regarding the Complaint Systems' company response categories address the negative connotation concerns.
Finally, the Bureau agrees with the commenters who argued for the inclusion of additional dates in the public database such as the date of the company's response and the consumer's assessment of that response, so that a user of the public database would know how fast complaints are processed. The Bureau includes the date that a complaint is sent to the Bureau and the date that the Bureau forwards it to the relevant company.
The Bureau received a number of comments about data fields that the Proposed Complaint Data Disclosure Policy Statement did not list for disclosure in the public database, including consumer and company response narratives. The Bureau is not shifting any of these fields into the disclosed category in the final Policy Statement, although several fields remain under assessment for potential inclusion at a later date.
The issue of disclosing consumer narratives generated the most comments. Consumer, civil rights, open government, and privacy groups uniformly supported disclosure on the grounds that it would provide consumers with more useful information on which to base financial decisions and would allow reviewers to assess the validity of the complaint. These groups also noted the potential for the narrative data to reduce perceived risk of reputational harm by providing context to the complaints, and submitted a proposal that would allow the consumer to submit a complaint without the collection of confidential personal information in the complaint description. Their proposal would also provide a consumer the chance to opt out of narrative disclosure in the public database, in whole or in part.
Trade groups and industry commenters nearly uniformly opposed disclosure of consumer narratives, reiterating comments made in response to the Bureau's Proposed Credit Card Data Disclosure Policy Statement. Several suggested that if the Bureau resolved to disclose narratives, it might inadvertently disclose personally identifiable information, with potentially significant consequences to the affected individuals. These commenters also argued that narrative disclosure might undermine the Bureau's mission to the extent that consumers, fearing potential disclosure of their personal financial information, would become reluctant to submit complaints. One trade association commented that the Bureau should consider the potential benefit of including both the consumer's narrative description and the company's narrative response.
While acknowledging the general lack of consensus in this area, the Bureau notes that almost all commenters—in response to both the Proposed Credit Card Complaint Data Disclosure Policy Statement and the recently Proposed Consumer Complaint Data Disclosure Policy Statement—agreed that the privacy risks of narrative disclosure must be carefully addressed if narrative disclosure is to take place. Accordingly, the Bureau will not publish narrative data until such time as the privacy risks of doing so have been carefully and fully addressed. In addition to assessing the feasibility of redacting personally identifiable information (“PII”) and narrative information that could be used for re-identification, by algorithmic and/or manual methods, the Bureau will carefully consider whether there are ways to give submitting consumers a meaningful choice of narrative disclosure options.
Consumer groups argued that companies should have the same ability as consumers to offer their responsive narratives for either public disclosure or private communication to the consumer. According to these commenters, this mechanism would protect consumer privacy, allow for effective communication between consumers and companies, and permit companies to respond publicly to public complaint narratives. Most trade associations disagreed, reiterating arguments that the Gramm-Leach-Bliley Act prohibits them
Several consumer groups asked the Bureau to add new data fields for collection and disclosure via the public database, including the ability to further define issue categories, noting that additional detail would make the database even more valuable as a pre-purchase educational tool. One group suggested that the database identify the commercial name of the individual financial product or service, not the company or product category alone. As noted, several groups urged that location data be provided at the city or census tract level to help identify discriminatory practices. To that same end, several groups urged the collection of demographic data on a voluntary basis. The Bureau discloses the product category (
One consumer group commented that the public database should include data on complaints that the Bureau forwards to other agencies. This group also commented that the Bureau should encourage other agencies to submit complaints to the Bureau's public database.
The Bureau agrees that the utility of the public database would be improved by the inclusion of as many complaint records as possible. As a result, it is open to other regulators providing parallel complaint data for inclusion in the public database. Until that can be achieved, however, the Bureau does not believe it would be that useful to include referred complaints in the public database. The Bureau would not be able to verify a commercial relationship, nor describe how and when a company responded to a referred complaint, or whether the consumer accepted or disputed the outcome.
The text of the final Policy Statement is as follows:
The Bureau receives complaints from consumers about consumer financial products and services. The Bureau intends to disclose certain information about such consumer complaints in a public database and in the Bureau's own periodic reports. The purpose of this disclosure is to provide consumers with timely and understandable information about consumer financial products and services and to improve the functioning of the consumer financial markets for such products and services. By enabling more informed decisions about the use of consumer financial products and services, the Bureau intends for its complaint data disclosures to improve the transparency and efficiency of such consumer financial markets.
Data from complaints that consumers submit will be uploaded to a publicly accessible database, as described below.
To be included in the public database, complaints must: (a) Not be duplicative of another complaint at the Bureau from the same consumer; (b) not be a whistleblower complaint; (c) involve a consumer financial product or service within the scope of the Bureau's jurisdiction; and (d) be submitted by a consumer (or his or her authorized representative) with an authenticated commercial relationship with the identified company. The public database will include data from certain consumer complaints submitted on or after December 1, 2011.
For included complaints, the Bureau will upload to the public database certain non-narrative fields that do not call for PII. The Bureau plans to include the following fields:
(i) Bureau-assigned unique ID number;
(ii) Channel of submission to Bureau;
(iii) Date of submission to Bureau;
(iv) Consumer's 5-digit zip code;
(v) Product or service;
(vi) Sub-product;
(vii) Issue;
(viii) Date of submission to company;
(ix) Company name;
(x) Company response category;
(xi) Whether the company response was timely; and
(xii) Whether the consumer disputed the response.
The consumer generates data for fields (iv), (v), (vi), (vii), and (xii). The Bureau will authenticate the consumer's identification of the relevant company in field (ix), and finalize the entry in that field as appropriate.
The complaint system automatically populates the two date fields, (iii) and (viii). The Bureau completes fields (i), (ii), and (xi).
The Bureau will generally add field data to the public database for a given complaint within 15 days of forwarding the complaint to the company in question. If the company responds “Closed with monetary relief,” “Closed with non-monetary relief,” “Closed with explanation,” “Closed,” or “In progress” before the 15-day deadline for response, the Bureau will then post applicable data for that complaint to the public database. If the company fails to respond at all by the 15-day deadline, the Bureau will also post data for that complaint at that point. In such case, the company response category field will be blank and the “Untimely Response” field will be marked. As noted above, if a company demonstrates by the 15-day deadline that it has been wrongly identified, no data for that complaint will be posted unless and until the correct company is identified. Once the Bureau discloses some data for a given complaint, it will add to the public database any new complaint data that are subject to disclosure as they become available. Subject to these various restrictions, data will be posted to the public database on a daily basis.
A public platform for the public database will enable user-defined searches of the posted field data. Each complaint will be linked with a unique identifier, enabling reviewers to aggregate the data as they choose, including by complaint type, company, location, date, or any combination of variables. The data platform will also enable users to save and disseminate their data aggregations. These aggregations can be automatically updated as the public database expands to include more complaints. Finally, users will be able to download the data or analyze it via an Application Programming Interface.
The public database will not include PII fields such as a consumer's name, account number, or address information other than a 5-digit zip code. At least until it can conduct sufficient further study and install satisfactory controls, the Bureau will not post to the public database the consumer's narrative description of “what happened,” his or her description of a “fair resolution,” or his or her reason for disputing the company's response, if applicable. The Bureau also will not post a company's narrative response. The Bureau intends to study the potential inclusion of narrative fields as described further in section 4 of this Policy Statement.
At periodic intervals, the Bureau intends to publish reports about complaint data, which may contain its own analysis of patterns or trends that it identifies in the complaint data. To date, the Bureau has published eight reports containing aggregate complaint data.
Going forward, the Bureau intends to study the effectiveness of its consumer complaint disclosure policy in realizing its stated purposes, and plans to continue to engage with the public, including regulated entities, as it makes these assessments. The Bureau will also analyze options for normalization, and welcomes further input from stakeholders on how to implement such metrics. In addition, the Bureau will assess whether there are practical ways to disclose narrative data submitted by consumers and companies in a manner that will improve consumer understanding without undermining privacy interests or the effectiveness of the consumer complaint process, and without creating unwarranted reputational injury to companies.
This Policy Statement is intended to provide guidance regarding the Bureau's exercise of discretion to publicly disclose certain data derived from consumer complaints. The Policy Statement does not create or confer any substantive or procedural rights on third parties that could be enforceable in any administrative or civil proceeding.
12 U.S.C. 5492(a), 5493(b)(3), 5496(c)(4), 5511(b)(1), (5), and (c)(3), 5512(c)(3)(B).
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200, A330-200 Freighter, A330-300, A340-200, and A340-300 series airplanes; and Model A340-541 airplanes and Model A340-642 airplanes. This AD was prompted by reports of cracks in the bogie pivot pin caused by material heating due to friction between the bogie pivot pin and bush, leading to chrome detachment and chrome dragging on the bogie pivot pin. This AD requires repetitive detailed inspections for degradation of the bogie pivot pins and for any cracks and damage of the pivot pin bushes of the main and central landing gear; a magnetic particle inspection of the affected bogie pivot pins for corrosion and base metal cracks; and repairing or replacing bogie pivot pins and pivot pin bushes, if necessary. We are issuing this AD to detect and correct cracks and damage to the main and central landing gear, which could result in the collapse of the landing gear and adversely affect the airplane's continued safe flight and landing.
This AD becomes effective May 15, 2013.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 15, 2013.
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1138; fax (425) 227-1149.
We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That SNPRM was published in the
During removals of A330/340 Main Landing Gear (MLG) Bogie Beams and A340-500/600 Center Landing Gear (CLG) Bogie Beams, cracks in the bogie pivot pin were found.
Investigations indicated that these findings were the result of material heating, caused by friction between bogie pivot pin and bush, leading to chrome detachment and stress corrosion cracking.
This condition, if not detected and corrected, could lead to collapse of the main or center landing gear, possibly resulting in damage to the aeroplane and/or injury to occupants.
As a precautionary measure, EASA [European Aviation Safety Agency] issued AD 2011-0040 to require a one-time [detailed] inspection of the MLG (all types of A330 and A340 aeroplanes) and CLG (A340-500/600 aeroplanes only) to detect degradation or cracking of the bogie pivot pin [and to detect cracks and damage of the bushes], as applicable to aeroplane model, and the reporting of inspections results.
Following issuance of EASA AD 2011-0040, several operators reported finding chrome detachment or chrome dragging on bogie pivot pin. New cases of cracks were also reported. It has been confirmed as well that, due to similar design, the enhanced MLG bogie pivot pin (Airbus modification 54500) could also be affected by this condition.
Prompted by these findings, Airbus have developed an inspection programme consisting of repetitive inspections of the bogie pivot pin and applicable corrective actions.
For the reasons described above, this [EASA] AD, which supersedes EASA AD 2011-0040 and extends the applicability to all A330 and A340 aeroplanes, requires accomplishment of repetitive inspections of the MLG and CLG (for A340-500 and A340-600 aeroplanes) bogie pivot pins and pivot pin bushes, and corrective actions, depending on findings.
We gave the public the opportunity to participate in developing this AD. We have considered the comments received.
Delta Air Lines, Inc. (DAL) requested that the initial compliance time in paragraph (g) of the SNPRM (77 FR 55163, September 7, 2012) be changed from “* * * first flight of the airplane,” to “* * * first flight of the new or overhauled landing gear,” in two locations in that paragraph. The commenter did not provide rationale for this request.
We disagree with DAL's request. Our compliance time coincides with EASA AD 2012-0053, dated March 30, 2012, which specifically states, “Accomplishment of an overhaul of the landing gear does not substitute the accomplishment of an inspection as required by paragraph (1) of this [EASA] AD.” The inspections required by this final rule are not equivalent to what is accomplished during landing gear overhaul. However, if the inspections required by this final rule are positively verified to have been accomplished during overhaul, the overhaul date may be used to determine the next repetitive inspection date. We have not changed this final rule in this regard.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed—except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the SNPRM (77 FR 55163, September 7, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the SNPRM (77 FR 55163, September 7, 2012).
We estimate that this AD will affect 29 products of U.S. registry. We also estimate that it will take about 22 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $54,230, or $1,870 per product.
In addition, we estimate that any necessary follow-on actions would take about 6 work-hours and require parts costing $21,222, for a cost of $21,732 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective May 15, 2013.
None.
This AD applies to Airbus Model A330-201, -202, -203, -223, -243, -223F, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes; Model A340-211, -212, -213, -311, -312, and -313 airplanes; and Model A340-541 and Model A340-642 airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports of cracks in the bogie pivot pin caused by material heating due to friction between the bogie pivot pin and bush, leading to chrome detachment and chrome dragging on the bogie pivot pin. We are issuing this AD to detect and correct cracks and damage to the main and central landing gear, which could result in the collapse of the landing gear and adversely affect the airplane's continued safe flight and landing.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 26 months after the effective date of this AD or 26 months after the first flight of the airplane, whichever occurs later, but no earlier than 12 months after the first flight of the airplane: Do a detailed inspection for degradation (i.e., loss of chromium plate, loose chromium, sharp edges) of the bogie pivot pins and for any cracks and damage of the pivot pin bushes of the main landing gear, and, as applicable, the central landing gear, in accordance with the Accomplishment Instructions of the applicable service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD. Repeat the inspection thereafter at intervals not to exceed 26 months. Accomplishment of an overhaul of the landing gear does not substitute the accomplishment of the inspection as required by this paragraph.
(1) Airbus Mandatory Service Bulletin A330-32-3240, Revision 02, including Appendices 01 and 02, dated December 2, 2011 (for Model A330-200 series airplanes, Model A330-200 Freighter series airplanes, and Model A330-300 series airplanes).
(2) Airbus Mandatory Service Bulletin A340-32-4281, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-200 series airplanes and Model A340-300 series airplanes).
(3) Airbus Mandatory Service Bulletin A340-32-5096, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-541 airplanes and Model A340-642 airplanes).
If, during any inspection required by paragraph (g) of this AD, any pivot pin bush is found cracked or damaged: Before further flight, repair or replace the pivot pin bush with a new or serviceable pivot pin bush, in accordance with the Accomplishment Instructions of the applicable service bulletin specified paragraph (h)(1), (h)(2), or (h)(3) of this AD.
(1) Airbus Mandatory Service Bulletin A330-32-3240, Revision 02, including Appendices 01 and 02, dated December 2, 2011 (for Model A330-200 series airplanes, Model A330-200 Freighter series airplanes, and Model A330-300 series airplanes).
(2) Airbus Mandatory Service Bulletin A340-32-4281, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-200 series airplanes and Model A340-300 series airplanes).
(3) Airbus Mandatory Service Bulletin A340-32-5096, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-541 airplanes and Model A340-642 airplanes).
If, during any inspection required by paragraph (g) of this AD, degraded chrome plating on any bogie pivot pin is found: Before further flight, do a non-destructive test (magnetic particle inspection) of the affected bogie pivot pin for corrosion and base metal cracks, in accordance with the Accomplishment Instructions of the applicable service bulletin specified paragraph (i)(1), (i)(2), or (i)(3) of this AD.
(1) Airbus Mandatory Service Bulletin A330-32-3240, Revision 02, including Appendices 01 and 02, dated December 2, 2011 (for Model A330-200 series airplanes, Model A330-200 Freighter series airplanes, and Model A330-300 series airplanes).
(2) Airbus Mandatory Service Bulletin A340-32-4281, Revision 01, including
(3) Airbus Mandatory Service Bulletin A340-32-5096, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-541 airplanes and Model A340-642 airplanes).
If, during the non-destructive test (magnetic particle inspection) specified in paragraph (i) of this AD, the bogie pivot pin is found corroded or the base metal is found cracked: Before further flight, repair or replace the bogie pin with a new or serviceable bogie pin, in accordance with the Accomplishment Instructions of the applicable service bulletin specified paragraph (j)(1), (j)(2), or (j)(3) of this AD.
(1) Airbus Mandatory Service Bulletin A330-32-3240, Revision 02, including Appendices 01 and 02, dated December 2, 2011 (for Model A330-200 series airplanes, Model A330-200 Freighter series airplanes, and Model A330-300 series airplanes).
(2) Airbus Mandatory Service Bulletin A340-32-4281, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-200 series airplanes and Model A340-300 series airplanes).
(3) Airbus Mandatory Service Bulletin A340-32-5096, Revision 01, including Appendices 01 and 02, dated December 2, 2011 (for Model A340-541 airplanes and Model A340-642 airplanes).
Accomplishment of the corrective actions required by paragraphs (h) and (j) of this AD does not terminate the repetitive inspections required by paragraph (g) of this AD.
Submit a one-time report of the findings (both positive and negative) of the inspections required by paragraphs (g) and (i) of this AD to Airbus, Customer Services Directorate, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex France, ATTN: SDC32 Technical Data and Documentation Services; fax (+33) 5 61 93 28 06; email
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 90 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 90 days after the effective date of this AD.
This paragraph provides credit for the actions required by paragraphs (g) through (j) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (m)(1) through (m)(4) of this AD, which are not incorporated by reference in this AD.
(1) Airbus Mandatory Service Bulletin A330-32-3240, including Appendix 1, dated December 8, 2010 (for Model A330-200 series airplanes, Model A330-200 Freighter series airplanes, and Model A330-300 series airplanes).
(2) Airbus Mandatory Service Bulletin A330-32-3240, including Appendix 1, Revision 01, dated May 4, 2011 (for Model A330-200 series airplanes, Model A330-200 Freighter series airplanes, and Model A330-300 series airplanes).
(3) Airbus Mandatory Service Bulletin A340-32-4281, including Appendix 1, dated December 8, 2010 (for Airbus Model A340-200 series airplanes and Model A340-300 series airplanes).
(4) Airbus Mandatory Service Bulletin A340-32-5096, including Appendix 1, dated December 8, 2010 (for Model A340-541 airplanes and Model A340-642 airplanes).
The following provisions also apply to this AD:
Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2012-0053, dated March 30, 2012, and the service information specified in paragraphs (o)(1) through (o)(3) of this AD, for related information.
(1) Airbus Mandatory Service Bulletin A330-32-3240, Revision 02, including Appendices 01 and 02, dated December 2, 2011.
(2) Airbus Mandatory Service Bulletin A340-32-4281, Revision 01, including Appendices 01 and 02, dated December 2, 2011.
(3) Airbus Mandatory Service Bulletin A340-32-5096, Revision 01, including Appendices 01 and 02, dated December 2, 2011.
(1) The Director of the Federal Registe approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Airbus Mandatory Service Bulletin A330-32-3240, Revision 02, including Appendices 01 and 02, dated December 2, 2011.
(ii) Airbus Mandatory Service Bulletin A340-32-4281, Revision 01, including Appendices 01 and 02, dated December 2, 2011.
(iii) Airbus Mandatory Service Bulletin A340-32-5096, Revision 01, including Appendices 01 and 02, dated December 2, 2011.
(3) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus Model A318, A319, and A320 series airplanes. This AD was prompted by fuel system reviews conducted by the manufacturer, which revealed that certain fuel pumps under certain conditions can create an ignition source in the fuel tank. This AD requires modification of the center tank fuel pump control circuit by installation of ground fault interrupters (GFIs). This AD would also require either replacement of the GFI or deactivation of the associated fuel pump following failure of any post-modification operational test of the GFI. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
This AD becomes effective May 15, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 15, 2013.
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-1405; fax 425-227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
* * * The FAA published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) published Interim Policy INT/POL/25/12.
In the framework of these requirements, EASA [European Aviation Safety Agency] have determined that the electrical power supply circuits of certain fuel pumps, installed on A320 family aeroplanes, for which the canisters become uncovered during normal operation, could, under certain conditions, create an ignition source in the tank vapour space.
This condition, if not corrected, could result in a fuel tank explosion and consequent loss of the aeroplane.
To address this potential unsafe condition, Airbus developed a modification which includes installing Ground Fault Interrupters (GFI) into the centre tank fuel pump control circuit, providing additional system protection by electrically isolating the pump in case of a ground fault condition downstream of the GFI.
Consequently, EASA issued AD 2012-0133 to require modification of the centre tank fuel pump control circuit by installing GFI and thereafter, in case a GFI failed an operational test, replacement of the faulty GFI, or deactivation of the associated fuel pump in accordance with the provisions of the applicable Master Minimum Equipment List (MMEL).
Since that [EASA] AD was issued, it was noted that, inadvertently, the Applicability of the Final AD was incorrect (the preceding PAD [proposed AD] 12-051 was correct) by excluding aeroplanes on which Airbus modification 150736 has been embodied in production. As a result, the required actions when a GFI fails an operational test did not apply to those aeroplanes.
For the reasons described above, this [EASA] AD retains the requirements [modification of the centre tank fuel pump control circuit by installing GFI] of EASA AD 2012-0133, which is superseded, and expands the Applicability to aeroplanes on which Airbus modification 150736 has been embodied in production.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
An anonymous commenter questioned the constitutionality of creating an airworthiness directive.
We infer that the commenter is requesting that we withdraw the NPRM (77 FR 64765, October 23, 2012), because it is unconstitutional. We disagree. Under part 39 of the Federal Aviation Regulations (14 CFR part 39), we issue an AD addressing a product when we find that an unsafe condition exists in the product, and the condition is likely to exist or develop in other products of the same type design. In the case of this AD, we determined that the unsafe condition-the potential of ignition sources inside fuel tanks with flammable fuel vapors-could result in fuel tank explosions and consequent loss of the airplane.
Further, under the Administrative Procedure Act (APA) (Pub. L. 79-404, 5 U.S.C. 551, et.seq.) we are required to provide notice of our intent to add, change, or remove information in a rule, as well as to give the public an opportunity to participate in rulemaking actions unless we find good cause to bypass those requirements. (The APA is a body of laws that, working together, provide minimum guidelines and rules that federal agencies are required to follow when issuing a rule or changing existing rules that, if adopted, would impact the rights of the regulated public.) We have followed these requirements in issuing this AD. We have determined it is appropriate to proceed with issuing the final rule.
Although agreeing with the intent of the NPRM (77 FR 64765, October 23, 2012), Air Line Pilots Association, International (ALPA) recommended that we shorten the compliance time to 24 months or less.
We disagree with the request to shorten the compliance time of the AD. The ALPA did not provide substantiating data that would justify such a shortening of the compliance time. We determined the compliance time (48 months after the effective date of this AD) primarily based on our assessment of the safety risk. In establishing the compliance time, we considered the overall risk to the fleet, including the severity of the failure and the likelihood of the failure's occurrence. We have not changed this final rule regarding this issue.
Virgin America requested clarification of paragraph (h) of the NPRM (77 FR
We agree to clarify the intent of paragraph (h) of this AD. Paragraph (h) of this AD is to ensure that the modification required by paragraph (g) of this AD is required only if the operator has modified the airplane from the as-delivered configuration. We have revised paragraph (h) of this final rule accordingly.
Virgin America stated that clarification is needed for paragraph (i) of the NPRM (77 FR 64765, October 23, 2012) with regard to deactivation of the center tank fuel pump. FAA master minimum equipment list (MMEL) 28-21-02 does not include instructions for deactivating center tank fuel pumps.
We agree. The terminology in FAA MMEL 28-21-02 is different from what is used in EASA AD 2012-0198, dated September 26, 2012. We have revised paragraph (i) in this final rule to clarify that the word “deactivated” is synonymous with “inoperative.” The FAA MMEL does contain (M) notation (i.e., maintenance requirements for certain cases of dispatch).
Delta stated that there have been industry reports of in-service difficulties due to the GFI's tripping and generating a “CTR TK PUMP 2 LO PR” message. Preliminary evaluations by the manufacturer have found the subject GFIs to be faulty, but a root cause has not been reported. Delta requested that we work with Airbus to provide instructions for continued flight after inadvertent GFI tripping.
We are aware of these events. GFIs are expected to isolate the ignition source downstream of the GFI in the center fuel tank. We encourage operators to work with the original equipment manufacturers (OEMs) for identifying the root cause of premature failure of GFIs so that OEMs can take appropriate steps to alleviate the commenter's concerns referenced in the comment. These events are not considered unsafe conditions that warrant changing the final rule regarding this issue.
Delta requested that we define the conditional tasks—to be done if a GFI fails an operational test—as specified in paragraph (i) of the NPRM (77 FR 64765, October 23, 2012).
We partially agree with the commenter. We agree that no tasks have been provided by Airbus at this time to address failure of the GFI operational tests; however, this AD requires the operators to contact the FAA for approval of an alternative method of compliance (AMOC) in accordance with paragraph (j)(1) of this AD. We have not changed the final rule regarding this issue.
Airbus and Kirk Taylor requested that we revise the NPRM (77 FR 64765, October 23, 2012) to reflect the correction of the maintenance review board report (MRBR) task in Note 1, which should read “28.18.00/10” instead of 28.18.00/01.
We agree with the request to correct the MRBR task number. We have revised Note 1 to paragraph (i) of this AD to refer to Task 28.18.00/10, Operational Check of Centre Tank Fuel Pump GFI, of the Airbus A318/A319/A320/A321 Maintenance Review Board Report or Task 281800-710-801, Operational Check of Centre Tank Fuel Pump GFI, of the Airbus A318/A319/A320 Aircraft Maintenance Manual.
Virgin America noted an error in Note 2 of the NPRM (77 FR 64765, October 23, 2012), which should refer to paragraph (i) instead of paragraph (h) of the AD.
We agree. We have changed Note 2 to paragraph (i) of this AD to correct the reference to paragraph (i).
Virgin America stated that it was aware of an Airbus/operator forum discussion regarding in-service failures of the GFI unit. Virgin American requested that we consider these failure events and associated consequences in the rulemaking process.
We are aware of these events. GFIs are expected to isolate the ignition source downstream of the GFI in the center fuel tank. We encourage operators to work with the OEMs for identifying the root cause of premature failure of GFIs so that OEMs can take appropriate steps to alleviate concerns. These events are not considered unsafe conditions that warrant changing the final rule regarding this issue.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 64765, October 23, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 64765, October 23, 2012).
Based on the service information, we estimate that this AD affects about 755 products of U.S. registry. We also estimate that it takes 11 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts cost about $3,360 per product, depending on configuration. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the AD on U.S. operators to be $3,242,725, or $4,295 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective May 15, 2013.
None.
This AD applies to Airbus Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; and Model A320-111, -211, -212, -214, -231, -232, and -233 airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by fuel system reviews conducted by the manufacturer, which revealed that certain fuel pumps under certain conditions can create an ignition source in the fuel tank. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Except as provided by paragraph (h) of this AD: Within 48 months after the effective date of this AD, modify the center tank fuel pump control circuit by installing ground fault interrupters (GFIs), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-28-1188, dated March 23, 2012.
For airplanes on which Airbus Modification 150736 has been embodied in production, and on which no GFI has been permanently removed since first flight, the modification specified in paragraph (g) of this AD is not required.
After accomplishment of the modification specified in paragraph (g) or (h) of this AD, each time a GFI fails an operational test, before further flight, replace the GFI or deactivate (make inoperative) the associated fuel pump, in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA.
Guidance on the operational test specified in paragraph (i) of this AD can be found in Task 28.18.00/10, Operational Check of Centre Tank Fuel Pump GFI, of the Airbus A318/A319/A320/A321 Maintenance Review Board Report or Task 281800-710-801, Operational Check of Centre Tank Fuel Pump GFI, of the Airbus A318/A319/A320 Aircraft Maintenance Manual.
Guidance on the fuel pump deactivation specified in paragraph (i) of this AD can be found in Item 28-21-02, Center Tank Systems, of the FAA Master Minimum Equipment List for Airbus A318/A319/A320/A321.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI EASA Airworthiness Directive 2012-0198, dated September 26, 2012; and Airbus Service Bulletin A320-28-1188, dated March 23, 2012; for related information.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Airbus Service Bulletin A320-28-1188, dated March 23, 2012.
(ii) Reserved.
(3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton,
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Eurocopter France EC130B4 helicopters. This AD requires visually checking the center windscreen panel (center windscreen) for a crack and replacing the center windscreen if there is a crack, if the windscreen distorts during flight, or within 12 months. This AD was prompted by in-flight cracking and failure of a center windscreen. The actions of this AD are intended to detect a crack in the blending radii of the center windscreen to prevent failure of the windscreen, injury to the flight crew, and subsequent loss of control of the helicopter.
This AD is effective May 15, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of May 15, 2013.
For service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, TX 75052, telephone (972) 641-0000 or (800) 232-0323, fax (972) 641-3775, or at
You may examine the AD docket on the Internet at
Jim Grigg, Manager, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 222-5110; email
On June 18, 2012, at 77 FR 36213, the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, issued EASA AD No. 2010-0258, dated December 6, 2010 (AD 2010-0258), to correct an unsafe condition for the Eurocopter France EC130B4 helicopters. EASA received reports that center windscreen panels failed during flights due to a crack that started in the blending radius between the lower and upper sections of the windscreen. EASA stated that this condition, if not detected and corrected, could result in serious injury of the helicopter occupants, and therefore, issued Emergency AD 2007-0219-E, dated August 24, 2007, (AD 2007-0219-E), requiring a pre-flight inspection of the center windscreen, repair or replacement of a cracked windscreen, and an airspeed limitation. In AD 2010-0258, EASA notes that it approved a modification (MOD 073590) for the EC130B4 helicopters that incorporates a newly designed center windscreen panel, part number (P/N) 350A25-9045-20, to “eliminate the possibility of centre windshield cracks thus providing an alternative terminating action for the preflight inspections.”
We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (77 FR 36213, June 18, 2012).
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.
The EASA AD imposes flight restrictions and replacing the windscreen within 50 flight hours or 15 days, whichever occurs first, if distortion of the windscreen is detected in-flight. This AD mandates replacing the windscreen before further flight if distortion occurs during flight. In addition, this AD mandates MOD
We reviewed Eurocopter Emergency Alert Service Bulletin (ASB) No. 05A005 Revision 2, dated November 22, 2010. The ASB specifies:
• Performing a visual check of the center windscreen before each flight.
• Replacing any center windscreen before resuming flight if a crack is detected.
• If in-flight distortion is found, immediately restricting airspeed to 70 knots or below, and
○ If a crack is found, before next flight, replacing the windscreen per Eurocopter Service Bulletin 56-003, dated November 16, 2010, (SB 56-003), which describes procedures to perform MOD 073590, and
○ If no crack is found, affixing an airspeed limitation label and within 50 flying hours or 15 days, whichever is earlier, replacing the windscreen per MOD 073590.
• That incorporation of MOD 073590 is an alternative to the bulletin, relieving users of the inspection requirements.
EASA has classified this ASB as mandatory and issued AD 2010-0258 to ensure the continued airworthiness of these helicopters.
We estimate that this AD will affect 87 helicopters of U.S. registry and that labor costs will average $85 per work-hour. Therefore, we estimate the following costs to comply with this AD:
• The check of the center windscreen before each flight will take about 15 minutes for a labor cost of $21.25 per inspection. No parts will be needed, so the total cost for the U.S. 87-helicopter fleet is about $1,849 per inspection.
• Replacing the center windscreen will require about 20 work-hours for a labor cost of $1,700 per helicopter. Parts will cost $6,037 for a total cost per helicopter of $7,737.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Eurocopter France EC130B4 helicopters with center windscreen panel (center windscreen), part number (P/N) 350A25-9004-00, 350A25-9025-00, or 350A25-9041-20, certificated in any category.
This AD defines the unsafe condition as a crack in the blending radii of the center windscreen, which could lead to failure of the center windscreen, injury to the flight crew, and subsequent loss of control of the helicopter.
This AD becomes effective May 15, 2013.
You are responsible for performing each action required by this AD within the specified compliance time unless accomplished previously.
(1) Until the center windscreen is replaced with center windscreen P/N 350A25-9045-20, before each flight, visually check the center windscreen for a crack in the area of the blending radii where the front-lower part of the center windscreen joins the front fuselage as depicted in Figure 1 to paragraph (e)(1) of this AD. This visual check may be performed by the owner/operator (pilot) holding at least a private pilot certificate, and must be entered into the aircraft records showing compliance with this AD in accordance with Title 14 Code of Federal Regulations (14 CFR) 43.9 (a)(1)-(4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.
(2) If there is a crack or if a pilot indicates that the center windscreen distorted during flight, before further flight, replace the center windscreen with an airworthy center windscreen, P/N 350A25-9045-20, in accordance with the Accomplishment Instructions, paragraphs 2.B.2.b. through 2.B.2.b.4., of Eurocopter Service Bulletin No. 56-003, Revision 0, dated November 16, 2010.
(3) Within 12 months, replace the center windscreen with an airworthy center windscreen, P/N 350A25-9045-20, in accordance with the instructions contained in paragraph (e)(2) of this AD.
(4) Replacing the center windscreen with center windscreen, P/N 350A25-9045-20, constitutes terminating action for the requirements of this AD.
Special flight permits may be issued in accordance with 14 CFR 21.197 and 21.199 to operate the helicopter to a location where the requirements of this AD can be accomplished, provided that:
(1) No passengers are onboard;
(2) The time to fly to the location does not exceed 10 hours time-in-service; and
(3) The airspeed does not exceed 70 knots indicated air speed (KIAS).
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Jim Grigg, Manager, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency AD No. 2010-0258, dated December 6, 2010.
Joint Aircraft Service Component (JASC) Code: 5600, Window/Windshield System.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Eurocopter Service Bulletin No. 56-003, Revision 0, dated November 16, 2010.
(ii) Reserved.
(3) For Eurocopter service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, TX 75052, telephone (972) 641-0000 or (800) 232-0323, fax (972) 641-3775, or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding an existing airworthiness directive (AD) for certain The Boeing Company Model 757 airplanes equipped with Rolls-Royce RB211-535E engines. That AD currently requires repetitive inspections for signs of damage of the aft hinge fittings and attachment bolts of the thrust reversers, and related investigative and corrective actions if necessary. The existing AD also provides for an optional terminating modification for the repetitive inspections. For certain airplanes, this new AD adds a one-time inspection of the washers installed under the attachment bolts of the aft hinge fittings for correct installation sequence, and reinstallation if necessary. This new AD also adds an option for installing a redesigned aft hinge fitting with the trim already done, instead of trimming an existing or new hinge fitting, which is included in the existing optional terminating modification. This AD was prompted by reports of incorrectly installed washers under the attachment bolts of the aft hinge fittings of the thrust reversers. We are issuing this AD to prevent failure of the attachment bolts and consequent separation of a thrust reverser from the airplane during flight, which could result in structural damage to the airplane.
This AD is effective May 15, 2013.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of May 15, 2013.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of August 6, 2008 (73 FR 37786, July 2, 2008).
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
You may examine the AD docket on the Internet at
Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6440; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008). That AD applies to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 49396, August 16, 2012) and the FAA's response to each comment.
Boeing concurred with the content of the NPRM (77 FR 49396, August 16, 2012).
FedEx Express stated that it is accomplishing the actions specified in the NPRM (77 FR 49396, August 16, 2012), and determined that its regular maintenance check schedule is not adversely affected by the specified actions.
Aviation Partners Boeing (APB) stated that it has reviewed the NPRM (77 FR 49396, August 16, 2012), and Boeing Special Attention Service Bulletin 757-54-0049, Revision 1, dated September 23, 2009, and Revision 2, dated July 27, 2011; and Boeing Special Attention Service Bulletin 757-54-0050, Revision 1, dated October 7, 2009, and Revision 2, dated July 27, 2011; and has determined that the installation of winglets, per Supplemental Type Certificate (STC) ST01518SE, “does not affect them.”
We infer that APB means the installation of these winglets does not affect accomplishing the NPRM (77 FR 49396, August 16, 2012). We agree with the commenter and have determined that this AD should clarify the procedures to address these APB winglets. We have added a new paragraph (c)(2) to this AD to state that the installation of STC ST01518SE (
American Airlines (AAL) stated that the existing FAA AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008), is sufficient to correct the unsafe condition identified in the NPRM (77 FR 49396, August 16, 2012). AAL noted that if an operator deviated from the fastener stack-up in Figures 11 and 12 of Boeing Special Attention Service Bulletin 757-54-0049, dated July 16, 2007, it should be dealt with on a case-by-case basis, and not by issuing an industry-wide requirement.
Although AAL did not make a specific request, we infer that it wants the NPRM (77 FR 49396, August 16, 2012) withdrawn. We agree that operators with airplanes on which the subject modification has been done must accomplish a one-time inspection and corrective action because the washers may have been installed backwards. However, we do not agree that improper installation of the washers using the procedures in Boeing Special Attention Service Bulletin 757-54-0049, dated July 16, 2007, should be dealt with on a case-by-case basis.
Improper installation would recreate the unsafe condition, which must be addressed by doing the actions required by this AD. In addition, although the correct part number for the incorrect washer name of “plain washer” is identified in Boeing Special Attention Service Bulletin 757-54-0049, dated July 16, 2007, information for substituting other “plain washers” is also provided by referring to the additional guidance specified in the Boeing 757 Structural Repair Manual. Therefore, we are issuing this AD without further delay, in order to eliminate the identified unsafe condition of incorrectly installed washers under the attachment bolts of the aft hinge fittings of the thrust reversers.
AAL asked that it be allowed to accomplish certain steps in the referenced service information out of sequence. AAL stated that Boeing Special Attention Service Bulletin 757-54-0049, Revision 2, dated July 27, 2011, removed Note 1 from the Work Instructions, and Note 1 allowed operators to change the sequence of steps for the specified procedures. AAL noted that if it is not allowed to accomplish certain steps out of sequence, it will be prevented from accomplishing the actions in that service bulletin in a timely manner. AAL added that the inspection and modification instructions are straightforward and are fundamental maintenance procedures.
We agree that certain steps in the Work Instructions of Boeing Special Attention Service Bulletin 757-54-0049, Revision 2, dated July 27, 2011, could be accomplished out of sequence; however, certain other steps cannot. We suggest that AAL provide supporting data to Boeing to substantiate that the service information can be revised to permit accomplishing those steps out of sequence when appropriate. AAL may also submit a request for approval of an alternative method of compliance (AMOC), as specified in paragraph (n) of this AD, to use for accomplishing those steps out of sequence. We have not changed the AD in this regard.
AAL asked that only the work steps critical to correcting the unsafe condition be mandated by the AD. AAL stated that “open and close” are part of typical maintenance that is fundamental to a qualified maintenance facility; therefore, the instructions on how an operator gets to the steps should not be mandated but left to the operator's discretion as the best method to use to address the existing unsafe condition.
We agree that certain steps in the Work Instructions of Boeing Special Attention Service Bulletin 757-54-0049, Revision 2, dated July 27, 2011, may not need to be mandated; however, AAL did not provide supporting data of which steps in particular. We infer that AAL is asking to exclude the instructions mandated for access and close. Therefore, we have changed paragraph (g) of this AD to specify accomplishing Part II of the service information. We have also changed paragraph (l) of this AD to specify accomplishing Part IV of the service information for the inspection, and Part III of the service information for the preventive modification. These changes exclude Parts I and V of the service information which contain the instructions for access and close.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We also determined that this change will not increase the economic burden on any operator or increase the scope of the AD.
We estimate that this AD affects 389 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective May 15, 2013.
This AD supersedes AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008).
(1) This AD applies to The Boeing Company Model 757-200, -200CB, -200PF, and -300 series airplanes; certificated in any category; equipped with Rolls-Royce RB211-535E engines.
(2) Installation of Supplemental Type Certificate (STC) ST01518SE (
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 54, Nacelles/Pylons.
This AD results from reports of incorrectly installed washers under the attachment bolts of the aft hinge fittings of the thrust reversers. We are issuing this AD to prevent failure of the attachment bolts and consequent separation of a thrust reverser from the airplane during flight, which could result in structural damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (f) of AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008), with revised service information. At the time specified in paragraph 1.E. “Compliance,” of Boeing Special Attention Service Bulletin 757-54-0049 or 757-54-0050, both dated July 16, 2007, as applicable; except as provided by paragraph (h) of this AD: Do a detailed inspection for signs of damage of the aft hinge fittings and attachment bolts of the thrust reversers by doing all the actions, including all applicable related investigative and corrective actions, as specified in Part II of the Accomplishment Instructions of the applicable service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3); or paragraph (g)(4), (g)(5), or (g)(6) of this AD; as applicable. Do all applicable related investigative and corrective actions at the time specified in paragraph 1.E., “Compliance,” of the applicable service bulletin identified in paragraph (g)(1) or (g)(4) of this AD. As of the effective date of this AD, only the service bulletin specified in paragraph (g)(3) or (g)(6) of this AD, as applicable, may be used to accomplish the actions required by this paragraph. If any damage is found and the service bulletin identified in paragraph (g)(1), (g)(2), (g)(3), (g)(4), (g)(5), or (g)(6) of this AD specifies to contact Boeing for appropriate action: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (n) of this AD.
(1) Boeing Special Attention Service Bulletin 757-54-0049, dated July 16, 2007.
(2) Boeing Special Attention Service Bulletin 757-54-0049, Revision 1, dated September 23, 2009.
(3) Boeing Special Attention Service Bulletin 757-54-0049, Revision 2, dated July 27, 2011.
(4) Boeing Service Bulletin 757-54-0050, dated July 16, 2007.
(5) Boeing Special Attention Service Bulletin 757-54-0050, Revision 1, dated October 7, 2009.
(6) Boeing Special Attention Service Bulletin 757-54-0050, Revision 2, dated July 27, 2011.
This paragraph restates the requirements of paragraph (g) of AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008). Where Boeing Special Attention Service Bulletin 757-54-0049 or Boeing Service Bulletin 757-54-0050, both dated July 16, 2007; as applicable; specifies compliance times relative to the date on the service bulletin, this AD requires compliance within the specified compliance time after August 6, 2008 (the effective date of AD 2008-13-20).
This paragraph restates the actions specified in paragraph (h) of AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008). Accomplishing the preventive modification identified in the service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3); or paragraph (g)(4), (g)(5), or (g)(6) of this AD; as applicable; terminates the repetitive inspections required by paragraph (g) of this AD.
This paragraph restates the requirements of paragraph (i) of AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008). Prior
This paragraph restates the provisions of paragraph (j) of AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008). This paragraph provides credit for the actions required by paragraph (j) of this AD, if those actions were performed before August 6, 2008 (the effective date AD 2008-13-20), using Boeing Service Bulletin 757-54-0015, dated February 16, 1989; Revision 1, dated December 20, 1990; or Revision 2, dated April 21, 1994 (which are not incorporated by reference in this AD).
For Group 1, Configuration 2 airplanes identified in Boeing Special Attention Service Bulletins 757-54-0049 and 757-54-0050, Revision 2, both dated July 27, 2011: Within 3,000 flight cycles after the effective date of this AD, do a detailed inspection of the washers installed under the attachment bolts of the aft hinge fittings for correct installation sequence, in accordance with Part IV of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-54-0049 or 757-54-0050, both Revision 2, both dated July 27, 2011, as applicable. If an incorrect installation sequence is found, before further flight, remove and reinstall the washer stack up correctly, in accordance with Part III of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-54-0049 or 757-54-0050, Revision 2, both dated July 27, 2011, as applicable.
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 Special Attention Service Bulletin 757-54-0049, Revision 1, dated September 23, 2009; or Boeing Special Attention Service Bulletin 757-54-0050, Revision 1, dated October 7, 2009; as applicable.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously in accordance with AD 2008-13-20, Amendment 39-15583 (73 FR 37786, July 2, 2008), are approved as AMOCs for the corresponding provisions of this AD.
For more information about this AD, contact Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6440; fax: 425-917-6590; email:
(1) The Director of the
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved on May 15, 2013.
(i) Boeing Special Attention Service Bulletin 757-54-0049, Revision 2, dated July 27, 2011.
(ii) Boeing Special Attention Service Bulletin 757-54-0049, Revision 1, dated September 23, 2009.
(iii) Boeing Special Attention Service Bulletin 757-54-0050, Revision 2, dated July 27, 2011.
(iv) Boeing Special Attention Service Bulletin 757-54-0050, Revision 1, dated October 7, 2009.
(4) The following service information was approved for IBR on August 6, 2008 (73 FR 37786, July 2, 2008).
(i) Boeing Service Bulletin 757-54-0050, dated July 16, 2007.
(ii) Boeing Special Attention Service Bulletin 757-54-0015, Revision 3, dated September 19, 1996.
(iii) Boeing Special Attention Service Bulletin 757-54-0049, dated July 16, 2007.
(5) 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
(6) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective April 10, 2013. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
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. It, therefore—(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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
On March 4, 2013 (77 FR 14011), the FAA published an Amendment in Docket No. 30887, Amdt No. 3522 to Part 97 of the Federal Aviation Regulations under section 97.33. The following entry for Fort Myers, FL, effective 2 May 2013 is hereby rescinded in its entirety:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective April 10, 2013. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director
Availability of matter incorporated by reference in the amendment is as follows:
For Examination—
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
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. It, therefore— (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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Energy Regulatory Commission, DOE.
Final rule.
In this Final Rule the Commission revises its Continuity of Operations Plan regulations to revise its hierarchy of delegation of Commission authority during emergency conditions, principally to ensure that, during emergency conditions, there are staff members located outside the National Capital Region to whom authority is delegated.
This rule is effective April 10, 2013.
Elizabeth Molloy, Office of the General Counsel, Federal Energy Regulatory Commission, Room 102-67, 888 First St. NE., Washington, DC 20426, (202) 502-8771.
1. The Office of Energy Projects and the Office of Electric Reliability maintain regional offices outside the National Capital Region. This Final Rule revises the Commission's Continuity of Operations Plan (COOP) regulations to incorporate its regional offices into the hierarchy of delegation of Commission authority during emergency conditions, and also to revise that hierarchy.
2. This Final Rule revises the Commission's COOP regulations to expand the hierarchy list to incorporate staff members at its regional offices; this revision recognizes that staff members working in the National Capital Region may be unavailable or incapable of acting to assume authority during an emergency, and accordingly this revision allows for delegation of authority to staff members located in regional offices outside the National Capital Region. In addition, this Final Rule revises the hierarchy list to change the order of positions of the General Counsel and Deputy General Counsels on that list, and adds to the hierarchy list the Deputy Director of the Office of Enforcement who inadvertently was not included when the regulations were earlier revised.
3. The Regulatory Flexibility Act of 1980 (RFA)
4. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.
5. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. Excluded from this requirement are rules that are procedural, ministerial, or internal administrative and management actions.
6. In addition to publishing the full text of this document in the
7. From the Commission's Home Page on the Internet, this information is available in eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits (i.e., the subdocket number—e.g., 000, 001, 002, etc.) in the docket number field.
8. User assistance is available for eLibrary and the Commission's Web site during normal business hours. For assistance, please contact Online Support at 1-866-208-3676 (email at
9. The provisions of 5 U.S.C. section 801 regarding Congressional review of Final Rules do not apply to this Final Rule because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.
10. These regulations are effective on April 10, 2013. The Commission finds that notice and public comments are unnecessary because this rule concerns only agency procedure or practice. Therefore the Commission finds good cause to waive the notice period otherwise required before the effective date of a Final Rule.
Civil defense, Organization and functions (Government agencies).
By the Commission.
In consideration of the foregoing, the Commission amends part 376, Chapter I, Title 18,
5 U.S.C. 553; 42 U.S.C. 7101-7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.
(a)
(b)
(2) The list referred to in paragraph (b)(1) of this section is:
(i) General Counsel;
(ii) Executive Director;
(iii) Director of the Office of Energy Market Regulation;
(iv) Director of the Office of Energy Projects;
(v) Director of the Office of Electric Reliability;
(vi) Director of the Office of Enforcement;
(vii) Deputy General Counsels, in order of seniority;
(viii) Deputy Directors, Office of Energy Market Regulation, in order of seniority;
(ix) Deputy Directors, Office of Energy Projects, in order of seniority;
(x) Deputy Directors, Office of Electric Reliability, in order of seniority;
(xi) Deputy Directors, Office of Enforcement, in order of seniority;
(xii) Associate General Counsels and Solicitor, in order of seniority;
(xiii) In order of seniority, Assistant Directors and Division heads, Office of Energy Market Regulation; Assistant Directors and Division heads, Office of Energy Projects; Assistant Directors and Division heads, Office of Electric Reliability; Deputy Associate General Counsels; Assistant Directors and Division heads, Office of Enforcement;
(xiv) In order of seniority, Regional Engineers and Branch Chiefs of the Office of Energy Projects' regional offices; and Deputy Division Directors and Group Managers of the Office of Electric Reliability's regional offices.
(3) For purposes of paragraph (b)(2)(vii)-(xiv) of this section, order of seniority shall be based on the highest grade and longest period of service in that grade and, furthermore, for purposes of paragraph (b)(2)(xiii)-(xiv) of this section, order of seniority shall be without regard to the particular Office or Division or Branch or Group to which the member of staff is assigned.
(c)
(2) Such delegation shall continue until such time as the Chairman is available and capable of acting, one or more Commissioners are available and capable of acting, or persons listed in paragraph (b)(2)(i) through (xiii) of this section who are located in the National Capital Region are available and capable of acting.
(d)
Import Administration, International Trade Administration, Department of Commerce.
Final rule.
The Department of Commerce (the Department) is modifying its regulations, which define “factual information” and establish time limits for the submission of factual information in antidumping (AD) and countervailing duty (CVD) proceedings. The modifications to the definition of factual information more clearly describe the types of information that can be submitted by a person or placed on the record by the Department in a segment of the proceeding. The modifications to the time limits enable the Department to efficiently determine the type of information being submitted and whether it is timely filed; they also ensure that the Department has sufficient opportunity to review submissions of factual information.
Joanna Theiss at (202) 482-5052 or Charles Vannatta at (202) 482-4036.
On July 10, 2012, the Department published a proposed modification of its regulations regarding the definition of factual information and time limits for submission of factual information.
The Department is modifying two regulations related to AD and CVD proceedings: the definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301). Prior to this modification, 19 CFR 351.102(b)(21) defined factual information as: “(i) initial and supplemental questionnaire responses; (ii) data or statements of fact in support
The final rule identifies five categories of factual information, which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The definition does not change the types of information that can be submitted in a segment of a proceeding; rather, it allows for more accurate classification of factual information.
Prior to this modification, 19 CFR 351.301 set forth the time limits for submission of factual information, including general time limits, time limits for certain submissions such as responses to questionnaires, and time limits for certain allegations. The Department is modifying 19 CFR 351.301 so that, rather than providing general time limits, there are specific time limits based on the type of factual information being submitted, in accordance with the modification to 19 CFR 351.102(b)(21). The modification enables the Department to review and analyze the factual information at the appropriate stage in the proceeding, based on the Department's experience in administering the AD and CVD laws, rather than being required to review large amounts of factual information on the record of a proceeding when it is too late to adequately examine, analyze, conduct follow-up inquiries regarding and, if necessary, verify the information. This modification provides clarity to persons concerning the deadlines for submissions of certain factual information in a segment of a proceeding, including the submission of factual information to rebut, clarify, or correct factual information that is already on the record.
The final rule requires any person, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. This enables the Department and interested parties to efficiently identify the factual information and to analyze it in accordance with the purpose for which it is being submitted.
The Department received numerous comments on its
Many commenters argue that the Department should maintain general time limits and should not base time limits on the type of factual information being submitted, arguing that there is no evidence that the time limits in the prior rule prevented the Department from sufficiently analyzing factual information; that the time limits in the final rule are arbitrary and abrogate the Department's responsibility to calculate accurate dumping margins; and that it is the Department that is responsible for the extent to which factual information in a segment is lacking, due to, for instance, the Department's habit of extending time limits for the preliminary results and delays in selecting respondents. One commenter suggests that there is more than sufficient time after the preliminary determination or preliminary results for the Department to make its determinations without changing the time limits.
Further, although the commenters may perceive that the Department has adequate opportunity to consider factual information in an investigation or a review, this is a misperception of the operational procedures required to complete an investigation or review. For instance, Department officials must make certain internal decisions much earlier than the due date of the preliminary determination or preliminary results, in order to issue questionnaires, supplemental questionnaires, consider all allegations, determine whether critical factual information is missing from the record, conduct a complete and thorough analysis of all the factual information on the record as well as making a myriad of individual decisions with respect to the treatment of each of the facts on the record in relation to applicable regulatory, statutory, and case and legal precedent.
Under the prior rule, the Department often could not fully analyze an issue because parties could submit factual information on that issue long after the issue became ripe for analysis. Given the necessity of allocating Department resources as efficiently as possible, the Department must complete the record for an issue when that issue arises, so that the parties and the Department are presented with all of the record facts to present their arguments and to analyze those arguments in light of the record facts, respectively. As the Department stated in response to a party's argument that the Department should not have rejected factual information to value factors after the time limit for such submissions had passed, “because the submission of wholly new [surrogate value] information can generate the submission of yet more `rebuttal' information, it has the potential to seriously erode the finality of the record necessary for interested parties to make complete assessments of the record for purposes of the submission of complete briefs.”
If parties find that the administrative record is lacking factual information, the parties should explain what additional information they wish to submit, explain why it was not available for timely submission, and request that the Department accept the information. If there is adequate time for rebuttal, comment, analysis, and thorough consideration of the new, previously unavailable information and the Department could potentially verify this information, then the Department may elect to permit submission. Otherwise, the reliability of such late-submitted information cannot be assured.
Several commenters argue that the time limits for the submission of factual information to value factors pursuant to 19 CFR 351.408(c) should not occur before the preliminary determination in an investigation, and preliminary results in an administrative review, because the selection of surrogate values has a significant impact on dumping margins in non-market economy cases, and establishing a time limit before the preliminary determination or preliminary results will result in either a deluge of factual information based on the parties' guesses as to what the case may require, or a lack of quality factual information. Several commenters argue that the Department has created uncertainty concerning the time limit for the submission of factual information to value factors because the time limit is based on the scheduled date of the preliminary determination or preliminary results, which can be extended by the Department. One commenter suggests that there be a separate rulemaking to address issues concerning the submission of factual information to value factors; that the burden be on domestic interested parties to make the initial suggestion of a surrogate country and factual information to value factors; that the Department explain why it was not using certain factual information in the preliminary determination or preliminary results; and that the Department should notify parties of “deficiencies” with their factual information to value factors, akin to the requirements of section 782(d) of the Tariff Act of 1930 as amended (the Act). One commenter questions why the Department focused on small entities in the
Under the prior rule, the Department routinely received submissions of factual information to value factors after the preliminary determination or preliminary results, and the Department may have used that information in the final determination without an opportunity for interested parties to review or comment upon the calculations incorporating such information. By requiring parties to submit this information before the preliminary determination or preliminary results, all parties will have the benefit of knowing all record information and what factual information the Department preliminarily relied upon, in order to more effectively comment upon the Department's selections. The purpose of this rulemaking is to improve 19 CFR 351.301 so that the Department may review and analyze factual information at the appropriate stage in the proceeding, rather than be required to review large amounts of information when it is too late to adequately conduct its analysis. Whether or not the Department will undertake additional rulemakings on separate, albeit related, matters is beyond the scope of this rulemaking. Concerning the comment that the domestic interested parties should be required to make the initial suggestion of a surrogate country and factual information to value factors, it is to all parties' advantage to submit surrogate country and corresponding factual information to value factors early in the proceeding. We also note that all interested parties may submit factual information to rebut, clarify, or correct factual information to value factors, as long as that information is submitted solely for rebuttal and not for purposes of establishing new surrogate values.
Several commenters oppose elimination of the general time limit for the submission of factual information to rebut, clarify, or correct questionnaire responses, and argue that the
Several commenters argue that the Department should allow interested parties an additional opportunity to submit factual information to rebut, clarify, or correct another interested party's rebuttal factual information (surrebuttal), arguing that: the volume of factual information on the record will greatly increase because parties must anticipate all potential challenges that may arise in another party's submission of rebuttal factual information; and by providing the opportunity of surrebuttal only to respondents, the respondents will be incentivized to submit incomplete data in their responses to questionnaires. Another commenter argues that respondents should have the “final” right of rebuttal of factual information, because respondents must respond to allegations of dumping in AD proceedings.
Concerning one commenter's argument that respondents should have the “final” right of rebuttal of factual information, the Department has not adopted this proposal. As discussed above, the original submitter of a questionnaire response may submit surrebuttal factual information. Further, it is unclear how this proposal would operate where the respondent is not the original submitter of factual information, because the respondent has the opportunity to submit factual information to rebut, clarify, or correct factual information on the record under the final rule. To the extent that the commenter is arguing that a respondent would be able to submit factual information after other interested parties in all instances, this proposal has not been adopted because the Department has eliminated the general time limits for the submission of factual information.
One commenter argues that, in revising 19 CFR 351.102(b)(21), the Department is substituting the term evidence for “data or statements” without defining evidence, and that it is not clear what the Department intends by 19 CFR 351.102(b)(21)(v) (“evidence, including statements of fact, documents, and data, other than factual information described in (i)-(iv) of this section”).
One commenter stated that the time limits for the submission of allegations of new subsidies in the
Several commenters suggest that the Department incorporate the administrative record from prior segments of a proceeding into the record of an ongoing segment. The comments range from suggesting incorporation of the records of the two immediately preceding segments to the records from all preceding segments. The commenters argue that this would enable all parties to benefit from the information developed in prior
One commenter argues that the Department is imposing discipline on interested parties that may be prone to exploit ambiguities in the time limits for the submission of factual information, but is reserving for itself the discretion to place factual information on the record at any time, and to set the time limits for the submission of factual information to rebut, clarify, or correct that information. This commenter proposes that the regulation provide that the Department may place factual information on the record of the proceeding only up to 14 days before the time limit set forth in 19 CFR 351.301(c)(5).
One commenter argues that the Department should require that surrogate value submissions, apart from the petition, be served by hand by all interested parties within the business day that they are due (or by express mail for all parties not located in Washington, DC). Another commenter suggests that the proposed deadlines create difficulties arising from the service methods given that, pursuant to 19 CFR 351.303(f)(i), either personal service or service via first class mail can be chosen. This commenter is concerned that a respondent could choose service by mail for the purpose of limiting the rebuttal time for domestic interested parties. This commenter suggests that the time period for rebuttal should be triggered by the actual receipt of the submission by an interested party. In the alternative, this commenter suggests that the Department adopt an interim rule to clarify when the time period for rebuttal begins until implementation of Phase III of IA Access.
One commenter suggests that the Department clarify whether verification exhibits will be considered evidence placed on the record by the Department, as defined by proposed 19 CFR 351.102(b)(21)(iv), or evidence placed on the record by the interested party which was verified, as defined by 19 CFR 351.102(b)(21)(i), so that parties may know the time limit for providing rebuttal factual information. The commenter argues that the Department should address late or incomplete service of verification exhibits, bracketing inconsistencies and failure to translate exhibits, and should clarify that the interested party which was verified may not later attempt to cure deficiencies in verification through the submission of a surrebuttal to the verification exhibits.
One commenter notes that the Department's proposed 19 CFR 351.301(c)(3)(iv) indicates that parties have one opportunity to submit arguments to rebut, clarify, or correct factual information pursuant to 19 CFR 351.408(c) or 19 CFR 351.511(a)(2), and that arguments, normally governed by 19 CFR 351.309, should not be thus restricted.
One commenter suggests that whenever a public holiday in the United States or relevant foreign country falls within the time limit for a response, the Department should be required to extend the time limit by the number of days of the intervening holiday, because time limits are unrealistic if they fail to account for the fact that personnel are unavailable on holidays.
Several commenters inquire as to the purpose and legal effect of failing to comply with the requirement in 19 CFR 351.301(b) that every submission of factual information be accompanied by a written explanation identifying the subsection of 19 CFR 351.102(b)(21) under which the information is being submitted, and argue that it may be difficult for parties to comply with this requirement because company representatives will not have access to another party's business proprietary information (BPI), and so would not be able to certify what specific information is being rebutted, all of which could result in delays for the Department. Another commenter argues that, when submitting factual information, parties should explain how it is relevant in the segment of the proceeding.
One commenter suggests that the Department should modify 19 CFR 351.301(c)(1)(i) to indicate that a submitter will have “adequate” time to respond to individual sections of an initial questionnaire, if the time limit is less than the 30 days allotted for response to the full questionnaire. Another commenter argues that the final rule should specify a time limit for supplemental questionnaire responses, rather than a “date specified by the Department.”
One commenter argues that the
One commenter argues that the Department failed to provide an opportunity for parties to rebut, clarify, or correct various allegations such as market viability, sales below cost, or targeted dumping, and inadvertently left out a provision concerning the submission of factual information in support of allegations concerning targeted dumping.
Two commenters argue that the Department's regulation should specify that the initial questionnaire response should be complete and include all requested materials, and one commenter suggests that the final rule should specify that, in general, the Department will issue only one supplemental questionnaire designed to meet the requirements of section 782(d) of the Act. Another commenter argues that the final rule should indicate that the Department will provide fewer and shorter extensions for the submission of initial and supplemental questionnaire responses.
One commenter argues that, where a respondent participating in an ongoing segment has participated in a preceding segment, the Department should require the respondent to report its factual information using the same method that the Department previously accepted. If the respondent wishes to report the information differently, this reporting will be provided only in addition to the reporting in the previous manner.
One commenter urges the Department to increase the rigor of enforcement of 19 CFR 351.304(c), which requires parties to provide a public version of BPI.
In the final rule, the Department has removed the word “arguments” from section 351.301(c)(3)(iv).
This rule has been determined to be not significant for purposes of Executive Order 12866.
The Department has prepared the following Final Regulatory Flexibility Analysis.
This final rule is intended to alter the Import Administration's regulations for AD and CVD proceedings; specifically, to change the definition of factual information and the deadlines for submitting information in AD and CVD proceedings.
The final rule would alter several deadlines for submitting factual information in a segment of a proceeding. Information submitted to rebut, clarify, or correct factual information generally has a deadline of 10 days from the date that the initial factual information is served on the interested party or filed with the Department, except for factual information submitted to rebut, clarify, or correct information in an initial questionnaire response, which is due 14 days after the initial response is filed with the Department. Factual information voluntarily provided to support allegations regarding market viability and the basis for determining normal value is due 10 days after the respondent interested party files the response to the relevant section of the questionnaire. Factual information provided to support an allegation of an upstream subsidy is due no later than 60 days after the preliminary determination.
Deadlines for submissions of factual information to value factors of production and to measure the adequacy of remuneration have been codified or shortened, as appropriate, but this is expected to have a beneficial impact on small entities that participate in AD and CVD proceedings because they will have the opportunity to review and comment on the Department's preliminary analysis of the information, which is not the case under the prior rule.
The Department received no comments concerning the Initial Regulatory Flexibility Analysis.
The Department received no comments from the Chief Counsel for Advocacy of the Small Business Administration.
The final rule will apply to all persons submitting information to the Department in AD and CVD proceedings. This could include exporters and producers of merchandise subject to AD and CVD proceedings and their affiliates, importers of such merchandise, domestic producers of like products, and foreign governments.
Exporters and producers of subject merchandise are rarely U.S. companies. Some producers and exporters of subject merchandise do have U.S. affiliates, some of which may be considered small entities under the appropriate Small Business Administration (SBA) small business size standard. The Department is not able to estimate the number of U.S. affiliates of foreign exporters and producers that may be considered small entities, but anticipates, based on its experience in these proceedings, that the number will not be substantial.
Importers may be U.S. or foreign companies, and some of these entities may be considered small entities under
Some domestic producers of like products may be considered small entities under the appropriate SBA small business size standard. Although it is unable to estimate the number of producers that may be considered small entities, the Department does not anticipate that the number affected by the final rule will be substantial. Frequently, domestic producers that bring a petition account for a large amount of the domestic production within an industry, so it is unlikely that these domestic producers will be small entities.
In sum, while recognizing that exporter and producer affiliates, importers, and domestic producers that submit information in AD and CVD proceedings will likely include some small entities, the Department, based on its experience with these proceedings and the participating parties, does not anticipate that the final rule would impact a substantial number of small entities.
The final rule will require persons submitting factual information to the Department to specify under which subsection of the final definition the information is being submitted. If it is being submitted to rebut, clarify, or correct factual information already on the record, the person will be required to identify the information already on the record that the factual information seeks to rebut, clarify, or correct. This will not amount to a significant burden as the submitter should already be aware of the relevant subsection pursuant to which it is submitting factual information; in addition, all of the required information should be readily available to any person submitting factual information to the Department.
The Department has taken steps to minimize the significant economic impact on small entities. As discussed above, all parties may request an extension pursuant to section 351.302, and the Department will continue to grant extensions of time limits to the extent that they are warranted and deadlines for the segment permit. Further, the Department considered significant alternatives to the final rule. The alternatives are:
(1) Modifying the definition of factual information and modifying the time limits as described in the final rule (the Department's preferred alternative);
(2) Maintaining the status quo definition of factual information and the time limits for the submission of factual information;
(3) Modifying the definition of factual information but maintaining all time limits; and
(4) Modifying the definition of factual information and extending the time limits.
First, the Department does not anticipate that the first, preferred alternative will have a significant economic impact on small entities. The changes to the definition of “factual information” do not impose any significant burden on the parties in AD or CVD proceedings; the changes do not alter the types of information that may be submitted, but merely re-categorize them into more logical groupings than the current definition. The changes to the deadlines for submitting factual information are also not expected to have a significant economic impact on small entities. Although some deadlines are shortened, these are either not expected to have a significant impact on small entities or will actually have a positive impact. For example, for the submission of factual information in support of allegations, or to rebut, clarify, or correct factual information, in the Department's experience the parties submitting these allegations or rebuttals/clarifications/corrections will possess the relevant information with sufficient time to submit them before the information would be due.
By contrast, shortening the time limits for the submission of factual information to value factors of production will have a beneficial impact on any small entities that are participating in an AD proceeding, because it will provide them with an opportunity to review and comment on the Department's preliminary analysis of this information. Because the time limits currently permit such information to be submitted after the Department issues its preliminary calculations, parties wishing to assess the significance of this information would need to undertake their own analysis of the often voluminous information submitted. Such analysis of the often voluminous information may be particularly burdensome for small entities. In addition, parties continue to have a significant amount of time to gather this type of information in advance of the time limit because the Department accepts only publicly available information pursuant to this provision. Further, establishing a time limit for the submission of factual information to measure the adequacy of remuneration under § 351.511(a)(2), where the current regulation does not include any time limit, will provide certainty to parties, including those who wish to submit factual information to rebut, clarify or correct the factual information submitted under this provision.
Under alternative two, the Department determined that maintaining the definition of factual information and the time limits provision would not serve the objective of the proposed rules to permit the Department and interested parties adequate opportunity to review and analyze submissions of factual information in an efficient manner. If the Department were to maintain the current rules, then persons would still be able to submit large amounts of factual information on the record of an AD or CVD segment very close to the Department's statutory deadlines for making certain determinations, thus limiting the Department's ability to consider, analyze and, if applicable, verify the information submitted. The current definition and time limits also do not provide sufficient clarity to persons participating in an AD or CVD proceeding, because the current rules do not require persons submitting information to identify the type of information which is being submitted. Although this alternative was considered, it was not adopted because it does not serve the Department's objectives of creating certainty for
The Department also considered modifying the definition of factual information without modifying the time limits provision, listed as alternative three. This alternative would serve the objective of the proposed rules to identify more clearly the types of factual information which are submitted in AD and CVD proceedings, but does not serve the goal of enabling the Department to efficiently examine factual information at an appropriate stage in the proceeding. For instance, the Department determined that continuing to allow factual information in an AD or CVD investigation “seven days before the date on which verification of any person is scheduled to commence,” 19 CFR 351.301(b)(1), would run counter to the objectives of the proposed rules because the Department often does not have sufficient opportunity to review adequately submissions of factual information when they are submitted at this stage of the proceeding. In addition, maintaining the time limits for, for instance, the submission of factual information to value factors could deprive persons of the opportunity to comment on the Department's preliminary analysis of these submissions in their case briefs. The changes to the definition to more clearly describe the types of factual information which is submitted in an AD and CVD proceeding, without a corresponding modification to the time limits provision, would not serve the objectives of the Department and, thus, has not been adopted.
Finally, as alternative four, the Department considered extending the time limits for the submission of factual information, but this alternative has not been adopted. The Department is required to make certain determinations for AD and CVD proceedings within prescribed statutory deadlines. The prior rule sometimes did not provide the Department with a sufficient opportunity to examine and analyze submissions of factual information before those statutory deadlines, and in some instances deprived parties of the opportunity to comment on the submissions of factual information in their case briefs. An extension of time limits would exacerbate the problem, which the proposed rules seek to address. Therefore, this alternative has not been adopted.
In accordance with Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, the agency has published a guide to assist small entities in complying with the rule.
This final rule does not require a collection of information for purposes of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501
Administrative practice and procedure, Antidumping, Business and industry, Cheese, Confidential business information, Countervailing duties, Freedom of information, Investigations, Reporting and recordkeeping requirements.
For the reasons stated, 19 CFR part 351 is amended as follows:
5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671
(b) * * *
(21)
(i) Evidence, including statements of fact, documents, and data submitted either in response to initial and supplemental questionnaires, or, to rebut, clarify, or correct such evidence submitted by any other interested party;
(ii) Evidence, including statements of fact, documents, and data submitted either in support of allegations, or, to rebut, clarify, or correct such evidence submitted by any other interested party;
(iii) Publicly available information submitted to value factors under § 351.408(c) or to measure the adequacy of remuneration under § 351.511(a)(2), or, to rebut, clarify, or correct such publicly available information submitted by any other interested party;
(iv) Evidence, including statements of fact, documents and data placed on the record by the Department, or, evidence submitted by any interested party to rebut, clarify or correct such evidence placed on the record by the Department; and
(v) Evidence, including statements of fact, documents, and data, other than factual information described in paragraphs (b)(21)(i)-(iv) of this section, in addition to evidence submitted by any other interested party to rebut, clarify, or correct such evidence.
(a)
(b)
(1) If an interested party states that the information is submitted under § 351.102(b)(21)(v), the party must explain why the information does not satisfy the definitions described in § 351.102(b)(21)(i)-(iv).
(2) If the factual information is being submitted to rebut, clarify, or correct factual information on the record, the submitter must provide a written explanation identifying the information which is already on the record that the factual information seeks to rebut, clarify, or correct, including the name of
(c)
(1)
(i) Initial questionnaire responses are due 30 days from the date of receipt of such questionnaire. The time limit for response to individual sections of the questionnaire, if the Secretary requests a separate response to such sections, may be less than the 30 days allotted for response to the full questionnaire. In general, the date of receipt will be considered to be seven days from the date on which the initial questionnaire was transmitted.
(ii) Supplemental questionnaire responses are due on the date specified by the Secretary.
(iii) A notification by an interested party, under section 782(c)(1) of the Act, of difficulties in submitting information in response to a questionnaire issued by the Secretary is to be submitted in writing within 14 days after the date of the questionnaire or, if the questionnaire is due in 14 days or less, within the time specified by the Secretary.
(iv) A respondent interested party may request in writing that the Secretary conduct a questionnaire presentation. The Secretary may conduct a questionnaire presentation if the Secretary notifies the government of the affected country and that government does not object.
(v)
(2)
(i)
(ii)
(A) In an antidumping investigation, on a country-wide basis, 20 days after the date on which the initial questionnaire was issued to any person, unless the Secretary alters this time limit; or, on a company-specific basis, 20 days after a respondent interested party files the response to the relevant section of the questionnaire, unless the relevant questionnaire response is, in the Secretary's view, incomplete, in which case the Secretary will determine the time limit;
(B) In an administrative review, new shipper review, or changed circumstances review, on a company-specific basis, 20 days after a respondent interested party files the response to the relevant section of the questionnaire, unless the relevant questionnaire response is, in the Secretary's view, incomplete, in which case the Secretary will determine the time limit; or
(C) In an expedited antidumping review, on a company-specific basis, 10 days after the date of publication of the notice of initiation of the review.
(iii)
(iv)
(A) In a countervailing duty investigation, 40 days before the scheduled date of the preliminary determination, unless the Secretary extends this time limit for good cause; or
(B) In an administrative review, new shipper review, or changed circumstances review, 20 days after all responses to the initial questionnaire are filed with the Department, unless the Secretary alters this time limit.
(C) Exception for upstream subsidy allegation in an investigation. In a countervailing duty investigation, an allegation of upstream subsidies made by the petitioner or other domestic interested party is due no later than 60 days after the date of the preliminary determination.
(v)
(vi)
(3)
(i)
(ii)
(iii)
(iv)
(4)
(5)
(i) Upon receipt of factual information under this subsection, the Secretary will issue a memorandum accepting or rejecting the information and, to the extent practicable, will provide written notice stating the reasons for rejection.
(ii) If the Secretary accepts the information, the Secretary will issue a schedule providing deadlines for submission of factual information to rebut, clarify or correct the factual information.
Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics, DoD.
Direct final rule with request for comments.
The Department of Defense is updating current policies and procedures for the Defense Shelter for the Homeless Program. This direct final rule makes nonsubstantive changes to the existing rule for this program. The amendments correct the authority citation throughout the text, update organizational titles, and move procedures from the policy section into a separate procedures section. This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
The rule is effective on June 19, 2013 unless comments are received that would result in a contrary determination. Comments will be accepted on or before June 10, 2013.
You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:
•
•
Mr. Randy Wagner, 703-571-9081.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Shelter for the Homeless Program. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule with publication in the
a. The Department of Defense is updating current policies and
b. 10 U.S.C. 2556.
The amendments correct the authority citation throughout the text, update organizational titles, and move procedures from the policy section into a separate procedures section.
There is no cost to the public. The costs to the Department of Defense for implementation of the authorities under this rule will include the administrative costs to process a request and the cost of the services provided incident to the furnishing of a shelter. The benefit is that homeless individuals will have shelter.
It has been certified that 32 CFR part 226 does not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or state, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.
It has been certified that 32 CFR part 226 does not contain a Federal mandate that may result in the expenditure by state, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that 32 CFR part 226 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that this amendment rule for 32 CFR part 226 does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Armed forces, Federal buildings and facilities, Homeless, Intergovernmental relations.
Accordingly, 32 CFR part 226 is amended as follows.
10 U.S.C. 2556
This part implements 10 U.S.C. 2556 by establishing DoD policy, assigning responsibilities, and prescribing procedures for providing shelter for the homeless on military installations.
The revisions and addition read as follows:
It is DoD policy that:
(a) Shelters for the homeless may be established on military installations.
(c) * * * Shelter and incidental services provided under this part may be provided without reimbursement.
The revisions read as follows:
(a) The Deputy Under Secretary of Defense (Installations and Environment) (DUSD(I&E)), under the authority, direction and control of the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall administer the program and issue such supplemental guidance as is necessary.
(c) * * *
(2) Appoint a senior manager to monitor the program within the Department and to provide any assistance that may be required to the Office of the Deputy Under Secretary of Defense (Installations and Environment) (ODUSD(I&E)). Such official, after consultation with the ODUSD(I&E), shall approve or disapprove all requests to establish a shelter in accordance with 10 U.S.C. 2556 and this part.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a special local regulation for the Patriot Challenge Kayak Race in Charleston, SC. The race will take place on April 13, 2013, on the Ashley River. This special local regulation is necessary to insure the safety of life on navigable waters of the United States during the race. The special local regulation will temporarily restrict vessel traffic in a portion of the Ashley River, preventing non-participant vessels from entering the regulated areas.
This rule is effective from 10 a.m. until 12 p.m. on April 13, 2013.
Documents mentioned in this preamble are part of docket USCG-2013-0030. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call Chief Warrant Officer Christopher Ruleman, Sector Charleston Waterways Management, U.S. Coast Guard; telephone (843) 740-3184, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard did not receive necessary information about the event until January 22, 2013. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to insure safety of life on navigable waters of the United States during three Charleston Race Week sailboat races.
On Saturday, April 13, 2013, the Patriot Challenge Kayak Race is scheduled to take place on the waters of the Ashley River and Charleston Harbor. The race will commence at Brittlebank Park, transit south in the Ashley River, head north between Shutes Folly Island and the Charleston peninsula, and then turn around in Tidewater Reach. The race will then return to Brittlebank Park by the same route. The event consists of a large number of kayakers whose speeds are incomparable to powerboats. There will be safety vessels preceding the first participant kayakers, and following the last participant kayakers. The event poses significant risks to participants, spectators, and the boating public because of the large number of paddlers and recreational vessels that are expected in the area of the event. The special local regulation is necessary to ensure the safety of participants, spectators, and vessels from the hazards associated with the event.
The special local regulation will designate a temporary special local regulation, on the Ashley River and Charleston Harbor in Charleston, South Carolina. The special local regulation will be enforced from 10 a.m. until 12 p.m. on April 13, 2013. Persons and vessels may not enter, transit through, anchor in, or remain within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.
Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.
The economic impact of this rule is not significant for the following reasons: (1) The rule will be in effect for only three hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the buffer zones without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the effective period; (3) persons and
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Ashley River encompassed within the special local regulation between 10:00 a.m. and 12:00 p.m. on April 13, 2013. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation issued in conjunction with a regatta or marine parade. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(c)
(1) All persons and vessels, except those participating in the Patriot Challenge or serving as safety vessels, are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area.
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16 to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated areas is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such permission must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated areas through advanced notice via broadcast notice to mariners and by on-scene designated representatives.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Spring Lake in Spring Lake, Michigan. This safety zone is intended to restrict vessels from a portion of Spring Lake due to the Lubbers Cup Regatta. This temporary safety zone is necessary to protect the surrounding public and vessels from the hazards associated with a race competition involving 60-foot rowing vessels.
This rule is effective from 3 p.m. on April 12, 2013, until 3 p.m. on April 13, 2013. This rule will be enforced from 3 p.m. until 7 p.m. on April 12, 2013, and from 8 a.m. until 3 p.m. on April 13, 2013.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2013-0210 and are available online by going to
If you have questions on this temporary rule, contact or email MST1 Joseph McCollum, U.S. Coast Guard Sector Lake Michigan, at 414-747-7148 or
On February 11, 2013, the Coast Guard published an NPRM in the
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because it is unnecessary. The public already had an opportunity to comment on this rule and the Coast Guard received no comments.
Because the Lubber's Cup Regatta would occur within 30 days of the publication, the Coast Guard finds that good cause exists under 5 U.S.C. 553(d)(3), for making this rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
On April 12 and 13, 2013, the Lubbers Cup Regatta will be held on Spring Lake in Spring Lake, Michigan. This competition will extend for approximately one mile along the Lake and is expected to involve more than 60 rowing vessels and 500 spectators. The Captain of the Port, Sector Lake Michigan, has determined that this competition will pose a significant risk to public safety and property. Such hazards include the collision of race and recreational vessels in a congested area, and capsizing competitors and spectators' vessels.
With the aforementioned hazards in mind, the Captain of the Port, Sector Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of persons and vessels during the Lubbers Cup Regatta on Spring Lake. This zone is effective from 3 p.m. on April 12, 2013, until 3 p.m. on April, 13, 2013. This zone will be enforced from 3 p.m. until 7 p.m. on April 12, 2013, and from 8 a.m. until 3 p.m. on April 13, 2013.
The safety zone will encompass all waters of Spring Lake within a rectangle that is approximately 6,300 by 300 feet. The rectangle will be bounded by the points beginning at 43°04′55″ N, 086°12′32″ W; then east to 43°04′57″ N, 086°11′6″ W; then south to 43°04′54″ N, 086°11′5″ W; then west to 43°04′52″ N, 086°12′32″ W; then north back to the point of origin (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be small and enforced for only two days. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Spring Lake in Spring Lake, Michigan on April 12 and 13, 2013.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be effective and thus subject to enforcement for only two days. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we will issue local Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket USCG-2013-0020 where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Lake Michigan or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port, Sector Lake Michigan is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Sector Lake Michigan to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port, Sector Lake Michigan or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Lake Michigan, or his on-scene representative.
Department of Veterans Affairs.
Interim final rule.
This interim final rule amends the Department of Veterans Affairs (VA) regulation on the prioritization of State applications for VA grants for the construction or acquisition of State home facilities that furnish domiciliary, nursing home, or adult day health care to veterans. As amended, the regulation gives preference to State applications that would use grant funds solely or primarily (under certain circumstances) to remedy cited life or safety deficiencies. This rulemaking also makes certain necessary technical amendments to regulations governing State home grants.
Written comments may be submitted by email through
Brandi Fate, Director, Capital Asset Management and Support (10NA5), Veterans Health Administration, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7901. (This is not a toll-free number.)
Pursuant to subchapter III of chapter 81 of title 38, United States Code, VA is authorized to provide grant funds to support the acquisition, construction, expansion, remodeling or alteration by States of State home facilities that furnish domiciliary, nursing home, or adult day health care to veterans. States that desire such assistance must submit to VA an application that VA must assess and prioritize in accordance with the criteria set forth in 38 U.S.C. 8135(c)(2)(A) through (H). VA has implemented this statutory authority in part 59 of title 38, Code of Federal Regulations.
Under 38 U.S.C. 8135(c)(2) and 38 CFR 59.50, VA prioritizes the applications for the construction grant funds each fiscal year. Pursuant to these authorities, VA must generally give the top priority to applications with certified State matching funds, which are prioritized in priority group 1 under 38 CFR 59.50(a)(1). VA further subprioritizes the priority group 1 applications based on the type of project described in the application. Prior to this rulemaking, there were six subpriority groups for priority group 1 applications (i.e., applications with certified State matching funds). This rulemaking adds one more subpriority group to better reflect VA's emphasis on the safety of State home residents and program participants. As a result, there are now a total of seven subpriority groups.
Priority group 1, subpriority group 1, at 38 CFR 59.50(a)(1)(i), is for applications for projects that remedy life or safety deficiencies and that have matching State funding. This interim final rule makes a number of changes to this subpriority group that will allow VA to more effectively prioritize life or safety projects when awarding State home construction grants.
First, under paragraph (a)(1)(i), as amended, VA prioritizes in subpriority group 1 applications for projects that are solely or primarily intended to remedy a condition or conditions at an existing facility that have been cited as threatening the life or safety of the residents or program participants. Formerly, § 59.50(f) directed that projects with multiple components be categorized in the priority group towards which the preponderance of the costs in the application would be dedicated. Therefore, an application could be prioritized in priority group 1, subpriority group 1, at § 59.50(a)(1)(i), if a State combined a project to remedy a citation with another type of project, as long as the larger share of the project cost was used to remedy the citation. Prior to this rulemaking, there were no stated limits on combining life or safety projects and projects unrelated to protecting residents and participants' life or safety. As revised, the rule allows for such “mixed” projects only when the total cost of the life or safety project on its own would be under the $400,000 minimum required by § 59.80 and 38 U.S.C. 8134(d)(2)(A), and the majority of the funds sought will be used to remedy a citation. Allowing States to submit applications with components unrelated to life or safety under these limited circumstances will help VA ensure that less costly life or safety projects are ranked in subpriority group 1 for VA grant funding. This rulemaking will ensure that VA does not rank projects in priority 1, subpriority group 1, where it is unnecessary to mix life or safety projects and projects unrelated to protecting life or safety (i.e., where the life or safety project by itself meets the statutory minimum), and in this manner will better ensure that VA directs the maximum amount of grant funds to projects that protect the lives and safety of the residents and participants.
Second, under § 59.50(a)(1)(i), as amended, we clarify which VA staff members may issue citations for threats to life or safety in a State home. Prior to this rulemaking, this paragraph provided that such citations may be issued by a “VA Life Safety Engineer.” This position is not currently used by VA. Therefore, we have replaced this reference with language that adequately identifies the VA offices responsible for issuing these citations.
Third, we specify that applications for projects for the addition or replacement of building utility systems or features may be included in priority group 1, subpriority group 1, if the projects are necessary to remedy a cited threat to the life or safety of residents and program participants. Prior to this amendment, VA could only prioritize applications for projects adding or replacing utility systems or features in priority group 1, subpriority group 4. In order to best protect the lives and safety of residents or program participants in State veterans homes, we believe it is necessary to include these projects in subpriority group 1 under the limited circumstances that they are needed to remedy a life or safety threat.
Fourth, revised § 59.50(a)(1)(i) now specifically refers to “[s]ecurity” projects. Under the prior rule, all applications for projects that would remedy cited threats to life or safety conditions were further prioritized in the following order: Seismic, building construction, egress, building compartmentalization, fire alarm/detection, asbestos/hazardous materials, and “all other projects.” In the past, security projects such as video cameras to monitor the inside or outside of the building or other devices to watch or secure the premises have been prioritized as “other projects.” Based on our administration of the State home program, we believe that security projects should be given higher priority. Therefore, we add “[s]ecurity” following “[f]ire alarm/detection” to the list of conditions used to prioritize applications ranked in subpriority group 1. We also reorganize the listed prioritizations in separate paragraphs, so that the list is easier to identify and read.
Fifth, VA has noticed instances in which States with outstanding citations for life or safety threats submit and are provided funding for applications for grants for projects unrelated to protecting residents and participants' lives or safety. Prior to this amendment, VA's regulations did not provide any mechanism for VA to encourage States to remedy outstanding life or safety citations. Therefore, this rulemaking adds a new penultimate subpriority group in priority group 1 for applications from States that have failed to demonstrate they have remedied, or will remedy, a life or safety citation. Under revised § 59.50(e), a State that has an existing State home with an outstanding citation must include in all of its applications for grant funds a description of a reasonable plan to remedy the citations. Revised paragraph (e) does not require the State to seek a VA grant to fund such remedy; however, failure to provide such a plan would result in decreased prioritization of the State's applications in the manner described in paragraph (e)(1), which states that applications from that State for a project for which the State has authorized matching funds will be placed in priority group 1, new subpriority group 6, or paragraph (e)(2), which states that applications from that State with an outstanding citation for a project without matching funds will be placed in a new priority group 7 that is described in paragraph (a)(7). By doing so, VA will reduce the likelihood of funding new grants from States with outstanding safety citations. VA's authority to establish this new subpriority group is 38 U.S.C. 8135(c)(2)(G), which authorizes VA to prioritize applications that “meet[ ] other criteria as the Secretary [of Veterans Affairs] determines appropriate and has established in regulations.”
The final change to § 59.50(a)(1)(i) clarifies that not all residents or
In addition to the changes to priority group 1, subpriority group 1 described above, this interim final rule amends certain other priority and subpriority groups; the amendments are described as follows.
Section 59.50(a)(1)(iv) is revised to reorganize the listed prioritizations to make them easier to read. We also clarify VA's authority to provide grants for certain types of renovations in new paragraph (a)(1)(iv)(A) and (B). VA has interpreted its authority to prioritize States' applications for grants for renovations at 38 U.S.C. 8135(c)(2)(E) as authorizing the same prioritization for applications to replace an existing building when needed to serve the same purposes as a renovation. This is consistent with VA's current procedures and is reflected in the example set forth in the note to § 59.50(a)(1) which indicates that priority group 1, subpriority group 4, includes applications for “Nursing Unit Renovation/Replacement.”
The note to § 59.50(a)(1), which contains a chart to aid readers' understanding how VA prioritizes projects in priority group 1, will be amended to conform with the changes to this section.
VA will continue to perform a final prioritization of applications in each priority or subpriority group based on the date that VA receives the application, with the applications received earlier given higher priority. The prior rule had that stipulation in each priority and subpriority group paragraph, but the revised rule states it only once at new § 59.50(d).
This rule updates delegations of VA's authority for administration of the State home construction grant program. VHA recently changed its organizational structure, and has aligned management of the State home construction grant program under the director of the Office of Capital Asset Management and Support. These authorities were previously assigned to the Chief Consultant of the Office of Geriatrics and Extended Care. VHA is, therefore, revising its regulations at §§ 59.4 and 59.5 to reflect the new organizational structure.
Once a priority list is approved by the Secretary, VA cannot change it unless a change is needed as a result of an appeal. See 38 CFR 59.50(g). This rulemaking, therefore, will not affect the ranking of projects on a priority list that has been approved by the Secretary.
The Secretary finds that there is good cause, under 5 U.S.C. 553(b)(B) and (d)(3), to dispense with the opportunity for advance notice and opportunity for public comment and good cause to publish this rule with an immediate effective date. As stated above, VA's current regulations do not provide the necessary tools to use public funds more effectively in the interest of veterans' safety. For example, during its fiscal year 2011 survey of State homes, VA cited nearly 2.5 percent of State homes for deficiencies in emergency power, to include illuminating exit signs, and powering emergency communication systems; these deficiencies pose threats to veterans' safety. This regulation would close a loophole whereby a State with a cited safety deficiency in one State home could still apply for, and be likely to receive, a grant from VA to construct or acquire a different State home. VA finds that continuing to fund applications in this manner is contrary to VA's priorities of ensuring veterans' safety.
Because this interim final rule will help VA ensure veterans' lives and safety are protected in State homes, the Secretary finds that it is contrary to the public interest to delay this rule for the purpose of soliciting advance public comment or to have a delayed effective date. Furthermore, it would be against the public interest to award publicly funded grant money to States that have not remedied, or do not have a plan for remedying, safety citations in existing State homes. For the above reasons, the Secretary issues this rule as an interim final rule, effective immediately upon publication. VA will consider and address comments that are received within 60 days of the date this interim final rule is published in the
Title 38 of the Code of Federal Regulations, as revised by this interim final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible, or, if not possible, such guidance is superseded by this rulemaking.
This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This interim final rule will directly affect only States and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for Construction of State Home Facilities; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.022, Veterans Home Based Primary Care; 64.024, VA Homeless Providers Grant and Per Diem Program; and 64.026, Veterans State Adult Day Health Care.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on March 11, 2013 for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Grant programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.
For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 59 as follows:
38 U.S.C. 101, 501, 1710, 1742, 8105, 8131-8137.
The revisions and additions read as follows:
(a) * * *
(1) * * *
(i)
(A) Seismic;
(B) Building construction;
(C) Egress;
(D) Building compartmentalization (e.g., smoke barrier, fire walls);
(E) Fire alarm/detection;
(F) Security;
(G) Asbestos/hazardous materials; and
(H) All other projects (e.g., nurse call systems, patient lifts).
(ii)
(iii)
(iv)
(A) Adult day health care renovation and construction of a new adult day health care facility that replaces an existing facility;
(B) Nursing home renovation (e.g., patient privacy) and construction of a new nursing home that replaces an existing nursing home;
(C) Code compliance under the Americans with Disabilities Act;
(D) Building systems and utilities (e.g., electrical; heating, ventilation, and
(E) Clinical-support facilities (e.g., for dietetics, laundry, rehabilitation therapy); and
(F) General renovation/upgrade (e.g., warehouse, storage, administration/office, multipurpose).
(v)
(vi)
(vii)
The following chart is intended to provide a graphic aid for understanding priority group 1 and its subpriorities.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(d) Applications in each priority or subpriority group will be further prioritized based on the date the application was received in VA (the earlier the application was received, the higher the priority given). Projects will be prioritized under this paragraph after all prioritization is completed under the projects' priority or subpriority group, as specified in paragraph (a) of this section, and only if necessary to give separate priorities to applications that have the same priority ranking after the prioritization specified in paragraph (a) of this section is accomplished.
(e) If any State home in a State has been cited by a VA safety office, VA engineering office, or other VA office with responsibility for life and safety inspections; a State or local government agency (including a Fire Marshal); or an accrediting institution (including the Joint Commission on Accreditation of Healthcare Organizations) for conditions that threaten the lives or safety of one or more of the residents or program participants in the facility, the State must include in any application submitted under § 59.20 or its updates to such application its plan to address all such citations. If VA determines that the State's plan fails to set forth how it will address such citations in a reasonable period of time, then VA will prioritize all applications of such State as follows:
(1) Applications that meet the criteria of paragraph (a)(1) of this section, but do not meet the criteria of paragraphs (a)(1)(i) or (vii) of this section, will be prioritized in subpriority group 6 of priority group 1 (paragraph (a)(1)(vi) of this section).
(2) Applications not meeting the criteria for placement in priority group 1 (paragraph (a)(1) of this section) and not meeting the criteria of subpriority group 1 of priority group 1 (paragraph (a)(1)(i) of this section) will be prioritized in priority group 7 (paragraph (a)(7) of this section).
(h) Except for applications that must be included in subpriority group 1 of priority group 1, applications for projects with components that could be prioritized in more than one priority group will be placed in the priority group toward which the largest share of the cost of the project is allocated. Once the correct priority group is determined, applications for projects with components that could be prioritized in more than one subpriority group in that priority group will be placed in the subpriority group toward which the largest share of the cost of the project is allocated. For example, if a project for which 25 percent of the funds needed would address seismic issues and 75 percent of the funds needed would be for building construction in a State with a great need for new beds, the project would be placed in subpriority group 3. If the highest-cost component of an application for multiple projects does not meet the criteria for placement in priority group 1, subpriority group 1, because it is estimated to cost $400,000.00 or more, it will be prioritized based on the component with the next largest share of the cost.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of dinotefuran in or on all food/feed items (other than those covered by a higher tolerance as a result of use on growing crops) in food/feed handling establishments. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective April 10, 2013. Objections and requests for hearings must be received on or before June 10, 2013, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0092, is available at
Rita Kumar, Registration Division, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (703) 308-8291; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0092 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 10, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0092, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *.”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for dinotefuran including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with dinotefuran follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Dinotefuran has low acute toxicity by oral, dermal, and inhalation exposure routes. It is not a dermal sensitizer, but causes a low level of skin irritation. The main target of toxicity is the nervous system, but effects on the nervous system were only observed at high doses. Nervous system toxicity was manifested as clinical signs and decreased motor activity seen after acute dosing (in both rats and rabbits) and changes in motor activity which are consistent with effects on the nicotinic cholinergic nervous system seen after repeated dosing. Typically, low to moderate levels of neonicotinoids, such as dinotefuran, activate the nicotinic acetylcholine receptors causing stimulation of the peripheral nervous system (PNS). High levels of neonicotinoids can over stimulate the PNS, maintaining cation channels in the open state which blocks the action potential and leads to paralysis.
Dinotefuran was well tolerated at high doses following dietary administration for ninety days to mice, rats, and dogs. The most sensitive effects were decreases in body weight and/or body weight gain, but even these effects occurred at or near the limit dose. Changes in spleen and thymus weights were seen in mice, rats and dogs following subchronic and chronic dietary exposures. However, these weight changes were not corroborated with alterations in hematology parameters, histopathological lesions in these organs, or toxicity to the hematopoietic system. Furthermore, the toxicology data base contains immunotoxicity studies in mice and rats and a developmental immunotoxicity study in rats. In the immunotoxicity studies there were no effects on T-cell dependent antibody response when tested up to the limit dose in male and female mice and in male and female rats. There were no changes in spleen
No systemic or neurotoxicity was seen following repeated dermal applications at the limit dose to rats for 28 days. No systemic or portal of entry effects were seen following repeated inhalation exposure at the maximum obtainable concentrations to rats for 28 days.
In the prenatal studies, no maternal or developmental toxicity was seen at the limit dose in rats. In rabbits, maternal toxicity manifested as clinical signs of neurotoxicity, but no developmental toxicity was seen. In the reproduction study, parental, offspring, and reproductive toxicity was seen at the limit dose. Parental toxicity included decreased body weight gain, transient decrease in food consumption, and decreased thyroid weights. Offspring toxicity was characterized as decreased forelimb grip strength or hindlimb grip strength in the F
There was no evidence of carcinogenicity in male and female mice and in male and female rats fed diets containing dinotefuran at the limit dose for 78 weeks to mice and 104 weeks to rats. Dinotefuran was non-mutagenic in both
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors (U/SF) are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for dinotefuran used for human risk assessment is shown in the Table of this unit. The dinotefuran hazard profile was updated in the risk assessment completed on July 20, 2012, and nothing has changed since this update. For a more detailed discussion of the endpoint selection, refer to Appendix A.3 on pp 44-47 in the document titled “Dinotefuran: Human Health Risk Assessment for Proposed Section 3 Uses on Tuberous and Corm Vegetables Subgroup 1C, Onion Subgroup 3-07A, Onion Subgroup 3-07B, Small Fruit Subgroup 13-07F, Berry Subgroup 13-07H, Peach, and Watercress, And a Tolerance on Imported Tea” in docket ID number EPA-HQ-OPP-2011-0433.
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i.
Such effects were identified for dinotefuran. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) under the National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA assumed 100 percent crop treated (PCT) and tolerance-level residues for all current crops.
ii.
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Based on the Tier 1 Rice Model and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of dinotefuran for acute exposures are estimated to be 269 parts per billion (ppb) for surface water and 4.9 ppb for ground water, and for chronic exposures for non-cancer assessments are estimated to be 253-257 ppb, depending upon retention time from 10-30 days, for surface water and 4.9 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 269 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 257 ppb was used to assess the contribution to drinking water.
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EPA has not found dinotefuran to share a common mechanism of toxicity with any other substances, and dinotefuran does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that dinotefuran does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for dinotefuran is complete.
ii. The neurotoxic potential of dinotefuran has been adequately considered. Dinotefuran is a neonicotinoid and has a neurotoxic mode of pesticidal action. Consistent with the mode of action, changes in motor activity were seen in repeat-dose studies, including the subchronic
iii. As discussed in Unit III.D.2., there is no evidence that dinotefuran results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to dinotefuran in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children from incidental oral exposures. These assessments will not underestimate the exposure and risks posed by dinotefuran.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 790. Because EPA's level of concern for dinotefuran is a MOE of 100 or below, these MOEs are not of concern.
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Adequate enforcement methodology, a high performance liquid chromatography/tandem mass spectrometry (HPLC/MS/MS method for the determination of residues of dinotefuran, and the metabolites DN, and UF; an HPLC/ultraviolet (UV) detection method for the determination of residues of dinotefuran; and HPLC/MS and HPLC/MS/MS methods for the determination of DN and UF) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for dinotefuran.
Therefore, a tolerance of 0.01 ppm is established for residues of dinotefuran, (RS)-1-methyl-2-nitro3-((tetrahydro-3-furanyl)methyl)guanidine, including its metabolites and degradates, in or on all food and/or feed commodities (other than those already covered by a higher tolerance as a result of use on growing crops or inadvertent residues) in food and/or feed handling establishments where food and/or feed products are held, stored, processed, prepared, or served. Compliance with the tolerance level is to be determined by measuring only dinotefuran.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
(3) A tolerance of 0.01 parts per million is established for residues of the insecticide dinotefuran, (
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Nuclear Regulatory Commission.
Draft regulatory basis and draft rule concepts; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is requesting comment on the draft regulatory basis document to support the potential amendment of its regulations concerning nuclear power plant licensees' station blackout mitigation strategies. Appendix A of the draft regulatory basis provides a discussion of rule language concepts that the NRC staff is considering for this potential rulemaking. In addition, Appendix A contains a set of questions soliciting stakeholder feedback in areas that would support the NRC staff in developing a proposed rule. The issuance of this draft regulatory basis document is one of the actions stemming from the NRC's lessons-learned efforts associated with the March 2011 Fukushima Dai-ichi Nuclear Power Plant accident in Japan.
Submit comments by May 28, 2013. Comments received after this date will be considered if it is practical to do so, but the NRC is only able to ensure consideration of comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Timothy A. Reed, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1462; email:
Please refer to Docket ID NRC-2011-0299 when contacting the NRC about the availability of information for this notice. You may access information related to this document, which the NRC possesses and is publicly available, by the following methods:
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Please include Docket ID NRC-2011-0299 in the subject line of your comment submission 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 in comment submissions 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 into ADAMS.
As the NRC continues its ongoing proposed rulemaking effort to amend portions of parts 50 and 52 of Title 10 of the
The NRC has posted on
In addition, in Appendix A, the draft regulatory basis provides a discussion of rule language concepts that the NRC staff is considering for this potential rulemaking. Appendix A also contains a set of questions soliciting stakeholder feedback in areas that would support the NRC staff in developing a proposed rule. The draft rule concepts provide the NRC's current thoughts about what requirements would be needed. The draft rule concepts do not represent a final NRC staff position nor have they been reviewed by the Commission. These concepts may undergo significant revision during the rulemaking process.
The NRC is requesting formal public comments on the draft regulatory basis and the draft rule concepts. The NRC may post additional materials to the Federal rulemaking Web site at
(1) Navigate to the docket folder (NRC-2011-0299); (2) click the “Email Alert” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes. This proposed AD was prompted by reports of cracked and corroded nuts on an outboard flap support rib. This proposed AD would require, for certain airplanes, repetitive inspections of the cap seal for damaged sealant on nuts common to certain outboard flap support ribs, related investigative and corrective actions if necessary, and replacement of all fasteners in the support ribs, which terminates the repetitive inspections. For certain other airplanes, this proposed AD would require repetitive inspections of the cap seal for damaged sealant on nuts common to certain outboard flap support ribs, related investigative and corrective actions if necessary, and if necessary, a detailed inspection to determine the nut type installed in the outboard flap support rib and corrective actions; for these airplanes, this proposed AD provides optional replacement of all fasteners in the support ribs, which would terminate the repetitive inspections. We are proposing this AD to detect and correct cracked and corroded nuts and bolts and the installation of incorrect nuts on certain outboard flap support ribs, which could lead to additional nut and bolt damage in the joint, and result in loss of an outboard flap, and adversely affect continued safe flight and landing of the airplane.
We must receive comments on this proposed AD by May 28, 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 Boeing service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports that two cracked and corroded nuts were found on support rib number 2 of an outboard flap. It was determined that incorrect nuts were installed on support rib numbers 2 and 7. The correct nuts for this installation have part number (P/N) BACN10HR12 and a torque of 3,300 to 4,300 inch-pounds (in-lbs). The installed incorrect nuts have P/N
We reviewed Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012. For information on the procedures and compliance times, see this service information at
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously.
The phrase “related investigative actions” might be used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) are actions that further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
We estimate that this proposed AD affects 440 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 related investigative and corrective actions and detailed inspections for nut type that would be required based on the results of the proposed inspections. We have no way of determining the number of aircraft that might need these actions.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(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.
We must receive comments by May 28, 2013.
None.
This AD applies to The Boeing Company Model 767-200, 767-300, 767-300F, and 767-400ER series airplanes; certificated in any category; as identified in Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of cracked and corroded nuts on an outboard flap support rib. We are issuing this AD to detect and correct cracked and corroded nuts and bolts and the installation of incorrect nuts on certain outboard flap support ribs, which could lead to additional nut and bolt damage in the joint, and result in loss of an outboard flap, and adversely affect continued safe flight and landing of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For Group 1 airplanes, as specified in Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Except as required by paragraph (j) of this AD, at the time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Do a detailed inspection of the cap seal for damaged sealant on the nuts common to outboard flap support rib numbers 1, 2, 7, and 8, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012. Do all applicable related investigative and corrective actions before further flight, except as specified in paragraphs (g)(1)(ii) and (g)(2)(ii) of this AD.
(1) If, during any detailed inspection of the cap seal required by paragraph (g) of this AD, no damaged sealant is found on any support rib, do the actions specified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD.
(i) Repeat the detailed inspection of the cap seal on that support rib thereafter at the intervals specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012, until all fasteners are replaced within that support rib as required by paragraph (g)(1)(ii) of this AD.
(ii) Except as required by paragraph (j) of this AD, at the time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Replace all fasteners within the support rib in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012.
(2) If, during any related investigative action required by paragraph (g) of this AD, no cracking and no corrosion is found on the nut, bolt, and washers of any support rib, do the actions specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD.
(i) Repeat the detailed inspection of the cap seal on that support rib thereafter at the intervals specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012, until all fasteners are replaced within that support rib as required by paragraph (g)(2)(ii) of this AD.
(ii) Except as required by paragraph (j) of this AD, at the time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Replace all fasteners within the support rib in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012.
For Group 2 and 3 airplanes, as specified in Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Except as required by paragraph (j) of this AD, at the time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Do a detailed inspection of the cap seal for damaged sealant on the nuts common to outboard flap support rib numbers 1, 2, 7, and 8, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012. Do all applicable related investigative and corrective actions before further flight.
(1) If, during any detailed inspection of the cap seal required by paragraph (h) of this AD, no damaged sealant is found on any support rib, do the actions specified in paragraphs (h)(1)(i) and (h)(1)(ii) of this AD.
(i) Repeat the detailed inspection of the cap seal on that support rib thereafter at the intervals specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012, until the actions required by paragraph (h)(1)(ii) of this AD are done or until all fasteners are replaced within that support rib as specified in paragraph (i) of this AD.
(ii) Except as required by paragraph (j) of this AD, at the time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Do a detailed inspection to determine the nut type installed in the outboard flap support rib and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012. Do all applicable corrective actions before further flight.
(2) If, during any related investigative action required by paragraph (h) of this AD, no cracking and no corrosion is found on the nut, bolt, and washers of any support rib, do the actions specified in paragraphs (h)(2)(i) and (h)(2)(ii) of this AD.
(i) Repeat the detailed inspection of the cap seal on that support rib thereafter at the intervals specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012, until the actions required by paragraph (h)(2)(ii) of this AD are done or until all fasteners are replaced within that support rib as specified in paragraph (i) of this AD.
(ii) Except as required by paragraph (j) of this AD, at the time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012: Do a detailed inspection to determine the nut type installed in the outboard flap support rib and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012. Do all applicable corrective actions before further flight.
Replacing all fasteners within outboard flap support rib number 1, 2, 7, or 8, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012, terminates the inspections required by paragraphs (g) and (h) of this AD for that support rib only.
Where Boeing Alert Service Bulletin 767-57A0131, dated October 30, 2012, specifies a compliance time relative to the issue date of that service bulletin, this AD requires compliance within the specified compliance time after the effective date 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.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6577; fax: 425-917-6590; email:
(2) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 737-100 and -200 series airplanes. The existing AD currently requires replacement of certain underwing fuel tank access covers with stronger, fire-resistant covers. Since we issued that AD, we received reports of standard access doors installed where impact resistant access doors are required and reports of impact resistant doors without stencils. This proposed AD would require inspecting fuel tank access doors to determine that impact resistant access doors are installed in the correct locations, inspecting application of stencils and index markers of impact resistant access doors, corrective actions if necessary, revising the maintenance program, and adding airplanes to the applicability. We are proposing this AD to prevent foreign object penetration of the wing tank, which could lead to a fuel leak near ignition sources (engine, hot brakes), consequently leading to a fuel-fed fire.
We must receive comments on this proposed AD by May 28, 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, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On December 29, 1986, we issued AD 87-02-07, Amendment 39-5506 (Docket No. 86-NM-175-AD; 52 FR 518-01, January 7, 1987), for certain Model 737-100 and 737-200 series airplanes. That AD requires replacement of certain underwing fuel tank access covers with stronger, fire-resistant covers. That AD resulted from an incident of cover penetration, which resulted in a fire and total loss of the airplane. We issued that AD to prevent foreign object penetration of the wing tank, which could lead to a fuel leak near ignition sources (engine, hot brakes), consequently leading to a fuel-fed fire.
Since we issued AD 87-02-07, Amendment 39-5506 (Docket No. 86-NM-175-AD; 52 FR 518-01, January 7, 1987), we received reports of standard access doors installed where impact resistant access doors are required and reports of impact resistant doors without stencils.
We reviewed Boeing Service Bulletin 737-28-1286, dated January 10, 2012.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would retain none of the requirements of AD 87-02-07, Amendment 39-5506 (Docket No. 86-NM-175-AD; 52 FR 518-01, January 7, 1987). Since that AD was issued, the FAA issued section 121.316 of the Federal Aviation Regulations (14 CFR 121.316) requiring that each turbine powered transport category airplane meet the requirements of section 25.963(e) of the Federal Aviation Regulations (14 CFR 25.963(e)). Section 25.963(e) outlines the certification requirements for fuel tank access covers on turbine powered transport category airplanes.
This proposed AD would require inspecting fuel tank access doors to determine that impact resistant access doors are installed in the correct locations, inspecting application of stencils and index markers of impact resistant access doors, corrective actions if necessary, and revising the maintenance program. This proposed AD also would add Model 737-200C and 737-300 series airplanes to the applicability, since these models are similar in design to Model 737-100 and -200 series airplanes.
This proposed AD requires revisions to certain operator maintenance documents to include a new critical design configuration control limitation (CDCCL). Compliance with CDCCLs is required by section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator might 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 the procedures specified in paragraph (j) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.
The phrase “related investigative actions” might be used in this proposed AD. “Related investigative actions” are follow-on actions that: (1) are related to the primary actions, and (2) are actions that further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
We estimate that this proposed AD affects 128 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by May 28, 2013.
This AD supersedes AD 87-02-07, Amendment 39-5506 (Docket No. 86-NM-175-AD; 52 FR 518-01, January 7, 1987).
This AD applies to The Boeing Company Model 737-100, -200, -200C, and -300 series airplanes, certified in any category, as identified in Boeing Service Bulletin 737-28-1286, dated January 10, 2012.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by reports of standard access doors installed where impact resistant access doors are required and reports of impact resistant doors without stencils. We are issuing this AD to prevent foreign object penetration of the wing tank, which could lead to a fuel leak near ignition sources (engine, hot brakes), consequently leading to a fuel-fed fire.
Comply with this AD within the compliance times specified, unless already done.
Within 72 months after the effective date of this AD, do a general visual inspection of the left-wing and right-wing fuel tank access doors to determine that impact resistant access doors are installed in the correct locations, and an inspection for proper application of stencils and index markers of impact resistance access doors; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-28-1286, dated January 10, 2012. Do all applicable corrective actions before further flight.
Within 60 days after the effective date of this AD, revise the maintenance program to incorporate airworthiness limitation (AWL) 57-AWL-01, as specified in Section C, Airworthiness Limitations (AWLs)—Fuel Systems, of the Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, dated August 2012.
After accomplishing the revision required by paragraph (h) of this AD, no alternative CDCCLs may be used unless the CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (j) 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) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6438; 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, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing action on four Missouri State Implementation Plan (SIP) submissions. First, EPA is proposing to approve portions of two SIP submissions from the State of Missouri addressing the applicable requirements of Clean Air Act (CAA) for the 1997 and 2006 National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM
Comments must be received on or before May 10, 2013.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2013-0208, by one of the following methods:
1.
2.
3.
4.
Ms. Amy Bhesania, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219;
Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:
In today's proposed rulemaking, EPA is proposing action on four Missouri SIP submissions. EPA received the first submission on February 27, 2007, addressing the infrastructure SIP requirements relating to the 1997 PM
The third submission was received by EPA on September 5, 2012. This submission revises Missouri's rule in Title 10, Division 10, Chapter 6.060 of the Code of State Regulations (CSR) (10 CSR 10-6.060) “Construction Permits Required” to implement certain elements of the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
EPA received the fourth submission on August 8, 2012. This submission addresses the conflict of interest provisions in section 128 of the CAA as it relates to infrastructure SIPs described in element E below.
Section 110(a)(1) of the CAA requires, in part, that states make a SIP submission to EPA to implement, maintain and enforce each of the NAAQS promulgated by EPA after reasonable notice and public hearings. Section 110(a)(2) includes a list of specific elements that such infrastructure SIP submissions must address. SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS. These SIPs submissions are commonly referred to as “infrastructure” SIPs.
On October 2, 2007, EPA issued guidance to address infrastructure SIP elements required under sections 110(a)(1) and (2) for the 1997 8-hour ozone and PM
The applicable infrastructure SIP requirements are contained in sections 110(a)(1) and (2) of the CAA. EPA is proposing action on each of the requirements of section 110(a)(2)(A) through section 110(a)(2)(M), as applicable, except for the elements detailed in the following paragraphs.
This rulemaking will not cover four substantive issues that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source New Source Review (NSR) programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's December 31, 2002, “Final NSR Improvement Rule” (67 FR 80186), as amended by the “NSR Reform” final rulemaking on June 13, 2007 (72 FR 32526). Instead, EPA has indicated that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive issues are not part of the scope of infrastructure SIP rulemakings can be found at 76 FR 41075, 41076-41079 (July 13, 2011).
In addition to the four substantive areas above, EPA is not acting in this action on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D and on the visibility protection portion of section 110(a)(2)(J). A detailed rationale for not acting on elements of these requirements is discussed within each applicable section of this rulemaking. As described above in section I, EPA is also not acting on portions of section 110(a)(2)(D)(i)—Interstate and international transport as final actions have already been taken on portions of this element for both the Missouri 1997 and 2006 PM
Finally, as part of this action, EPA is evaluating the state's compliance with the new PSD requirements promulgated in the “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM
The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure SIP submission. As described above, EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which states must submit by the dates statutorily prescribed under part D within subparts 2 through 5, extending as far as ten years following designations for some elements. Given these separate applicable SIP submission dates, EPA concludes that these specific requirements are outside the scope of the infrastructure SIPs.
On July 18, 1997, EPA promulgated new PM
The State of Missouri's Air Conservation Law and Air Pollution Control Rules authorize the Missouri Department of Natural Resources (MDNR) to regulate air quality and implement air quality control regulations. Specifically, Missouri Revised Statutes (RsMO) section 643.030 authorizes the “Air Conservation Commission of the State of Missouri” (MACC) to control air pollution, which is defined in RsMO section 643.020 to include air contaminants in quantities, of characteristics and of a duration which cause or contribute to injury to human, plant, or animal life or health or to property. RsMO section 643.050 authorizes the MACC to classify and identify air contaminants.
Missouri's rule 10 CSR 10-6.010 “Ambient Air Quality Standards” adopts the 1997 PM
RsMO section 643.050 of the Air Conservation Law authorizes the MACC, among other things, to regulate the use of equipment known to be a source of air contamination and to establish emissions limitations for air contaminant sources. Missouri also establishes timetables for compliance in its rules, as appropriate. Appendix A of the state's infrastructure SIP submission for both the 1997 PM
Based upon review of the state's infrastructure SIP submissions for the 1997 and 2006 PM
To address this element, RsMO section 643.050 of the Air Conservation Law provides the enabling authority necessary for Missouri to fulfill the requirements of section 110(a)(2)(B). The Air Pollution Control Program and Air Quality Analysis Section, within MDNR, implement these requirements. Along with their other duties, the monitoring program collects air monitoring data, quality assures the results, and reports the data.
MDNR submits annual monitoring network plans to EPA for approval, including its PM
Based upon review of the state's infrastructure SIP submissions for the 1997 and 2006 PM
(1)
(2)
The second category of minor sources are those that emit above the de minimis levels, but below the major source significance levels. Permits for these sources may only be issued after a determination, among other requirements, that the proposed source or modification would not interfere with attainment or maintenance of a NAAQS (10 CSR 10-6.060(6)).
In this action, EPA is proposing to approve Missouri's infrastructure SIP for the 1997 and 2006 PM
(3)
The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM
As part of identifying pollutants that are precursors to PM
Another provision of the 2008 NSR Rule requires states to account for gases that could condense to form particulate matter, known as condensables, for applicability determinations and in establishing emission limits for PM
The definition of “regulated NSR pollutant” in the PSD provisions of the 2008 rule inadvertently required states to also account for the condensable PM fraction with respect to one indicator of PM referred to as “particular matter emissions.” The term “particulate matter emissions” includes PM
On April 2, 2013 (78 FR 19602), EPA proposed to approve Missouri's request to amend the SIP to meet the 2008 PM
With respect to the 2010 PM
To meet the requirements of element (C), in addition to the PM
Relating to ozone, EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule), was published on November 8, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NO
Regarding greenhouse gases (GHG), on June 3, 2010, EPA issued a final rule establishing a “common sense” approach to addressing GHG emissions from stationary sources under the CAA permitting programs. The “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule,” or “Tailoring Rule,” set thresholds for GHG emissions that define when permits under the NSR PSD and Title V operating permit programs are required for new and existing industrial facilities.
On December 23, 2010, EPA promulgated a subsequent series of rules that put the necessary framework in place to ensure that industrial facilities can get CAA permits covering their GHG emissions when needed, and that facilities emitting GHGs at levels below those established in the Tailoring Rule need not obtain CAA permits.
After EPA adopted the Narrowing Rule, Missouri submitted to EPA, and EPA approved in to the Missouri SIP on April 16, 2012, a revision that limited PSD applicability to GHG-emitting sources at or above the Tailoring Rule thresholds. With this SIP revision, Missouri's PSD program conforms to EPA's requirements for PSD programs with respect to GHG emissions, and avoids an overwhelming increase in the number of required permits and resulting burden on Missouri's permitting resources (77 FR 22500, April 16, 2012).
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
(D)
Section 110(a)(2)(D)(i)(I) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance, of any NAAQS in another state. Furthermore, section 110(a)(2)(D)(i)(II) requires SIPs to include adequate provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required of any other state to prevent significant deterioration of air quality or to protect visibility. Section 110(a)(2)(D)(i) includes four requirements referred to as prongs 1 through 4. Prongs 1 and 2 are provided at section 110(a)(2)(D)(i)(I); Prongs 3 and 4 are provided at section 110(a)(2)(D)(i)(II).
In this notice, we are not proposing to take any actions related to the interstate transport requirements of section 110(a)(2)(D)(i)(I)—prongs 1 and 2. At this time, there is no SIP submission from Missouri relating to 110(a)(2)(D)(i)(I) for the 1997 or 2006 PM
With respect to the PSD requirements of section 110(a)(2)(D)(i)(II)—prong 3, EPA notes that Missouri's satisfaction of the applicable infrastructure SIP PSD requirements for the 1997 and 2006 PM
With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II)—prong 4, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo
Missouri meets this requirement through EPA-approved provisions requiring electric generating units (EGUs) in Missouri to comply with the Clean Air Interstate Rule (CAIR) and through the limited approval and limited disapproval of Missouri's regional haze SIP. Although Missouri's regional haze SIP has not been fully approved, EPA believes that the infrastructure SIP submission together with previously approved SIP provisions, specifically those provisions that require EGUs to comply with CAIR and the additional measures in the regional haze SIP addressing best available retrofit technology (BART) and reasonable progress requirements for other sources or pollutants, are adequate to demonstrate compliance with prong 4; thus, EPA is proposing to fully approve this aspect of the submission.
Missouri's regional haze SIP relied on the previous incorporation of CAIR into the EPA-approved SIP for Missouri as an alternative to the requirement that regional haze SIPs provide for source-specific BART emission limits for SO
In 2008, however, the D.C. Circuit remanded CAIR back to EPA (see
After the remand of CAIR by the D.C. Circuit and the promulgation by EPA of a new rule—Cross State Air Pollution Rule (CSAPR)—to replace CAIR, EPA issued a limited disapproval and Federal Implementation Plan (FIP) for Missouri regional haze SIP (and other states' regional haze SIPs that relied similarly on CAIR), which merely substituted reliance on CSAPR NO
Since the above-described developments with regard to Missouri's regional haze SIP, the situation has changed. In August 2012, the D.C. Circuit issued a decision to vacate CSAPR (
EPA filed a petition for rehearing of the Court's decision on CSAPR, which was denied by the D.C. Circuit on January 24, 2013. However, based on the current direction from the Court to continue administering CAIR, EPA believes that it is appropriate to rely on CAIR emission reductions as permanent and enforceable for purposes of assessing the adequacy of Missouri's infrastructure SIP with respect to prong 4 while a valid replacement rule is developed and until implementation plans complying with any new rule are submitted by the states and acted upon by EPA or until the court case is resolved in a way that provides direction regarding CAIR and CSAPR.
As neither Missouri nor EPA has taken any action to remove CAIR from the Missouri SIP, CAIR remains part of the EPA-approved SIP and can be considered in determining whether the SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i). EPA is proposing to approve the infrastructure SIP submission with respect to prong 4 because Missouri's regional haze SIP which EPA has given a limited approval, in combination with its SIP provisions to implement CAIR, adequately prevent sources in Missouri from interfering with measures adopted by other states to protect visibility during the first planning period. While EPA is not at this time proposing to change the June 7, 2012, or June 26, 2012, limited disapproval and limited approval of Missouri's regional haze SIP, EPA expects to propose an appropriate action regarding Missouri's regional haze SIP upon final resolution of
Section 110(a)(2)(D)(ii) also requires that the SIP insure compliance with the applicable requirements of sections 126 and 115 of the CAA, relating to interstate and international pollution abatement, respectively.
Section 126(a) of the CAA requires new or modified sources to notify neighboring states of potential impacts from sources within the state. Missouri regulations require that affected states receive notice prior to the commencement of any construction or modification of a source. Missouri's rule 10 CSR 10-6.060(6), “Construction Permits Required” requires that the review of all PSD permit applications follow the procedures of section (12)(A), Appendix A. Appendix A, in turn, requires that the permitting authority shall issue a draft permit for public comment, with notification to affected states on or before the time notice is provided to the public. In addition, no Missouri source or sources have been identified by EPA as having any interstate impacts under section 126 in any pending actions relating to any air pollutant.
Section 115 of the CAA authorizes EPA to require a state to revise its SIP under certain conditions to alleviate international transport into another country. There are no final findings under section 115 of the CAA against Missouri with respect to any air pollutant. Thus, the State's SIP does not need to include any provisions to meet the requirements of section 115.
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
(1) Section 110(a)(2)(E)(i) requires states to establish that they have adequate personnel, funding and authority. With respect to adequate authority, we have previously discussed Missouri's statutory and regulatory authority to implement the 1997 and 2006 PM
With respect to adequate resources, MDNR asserts that it has adequate personnel to implement the SIP. The infrastructure SIP submission for both the 1997 and 2006 PM
With respect to funding, the Air Conservation Law requires the MACC to establish an annual emissions fee for sources in order to fund the reasonable costs of administering various air pollution control programs. RsMO section 643.079 of the Air Conservation Law provides for the deposit of the fees into various subaccounts (e.g., a subaccount for the Title V operating permit program used for Title V implementation activities; a subaccount for non-Title V air pollution control program activities). The state uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, sections 103 and 105 of the CAA, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement the SIP.
(2) Conflict of interest provisions—Section 128
Section 110(a)(2)(E)(ii) requires that each state SIP meet the requirements of section 128, relating to representation on state boards and conflicts of interest by members of such boards. Section 128(a)(1) requires that any board or body which approves permits or enforcement orders under the CAA must have at least a majority of members who represent the public interest and do not derive any “significant portion” of their income from persons subject to permits and enforcement orders under the CAA. Section 128(a)(2) requires that members of such a board or body, or the head of an agency with similar powers, adequately disclose any potential conflicts of interest. In 1978, EPA issued a guidance memorandum recommending ways that states could meet the requirements of section 128, including suggested interpretations of certain terms in section 128.
EPA's analysis consisted of review of Missouri's August 8, 2012, SIP submission and EPA's additional review of Missouri statutes and authorities. The first step in the analysis included identifying boards, bodies and persons responsible for approving permits and enforcement orders and determining the applicability of the section 128 requirements to these entities. Section 643.050 of the Air Conservation Law authorizes the MACC to approve enforcement orders. In addition, Missouri Chapter 1 rule “General Organization” (2)(B) gives the Director of MDNR the authority to issue orders and act upon permit applications. Therefore, at a minimum the MACC must satisfy the requirements of sections 128(a)(1) and (2), and as the head of an executive agency with similar powers, the Director of MDNR must satisfy the requirements of section 128(a)(2).
Section 128(a)(1) contains two separate requirements applicable to any board or body which approves permits or enforcement orders under the CAA. First, a majority of members of the board or body must “represent the public interest” (“public interest” requirement). Second, a majority of members must “not derive any significant portion of their income from persons subject to permits or enforcement orders” (“significant income” requirement). The specific provisions of Missouri's Air Conservation Law submitted as SIP revisions are relevant to the requirements of CAA section 128(a)(1).
With respect to the “public interest” requirement, section 643.040.2 of the Air Conservation Law establishes that the MACC members must “be representative of the general interest of the public.” With respect to the “significant income” requirement, both sections 643.040.2 and 105.450 of Missouri's Air Conservation Law were submitted to EPA for inclusion in the SIP. Section 643.040.2 states that “the governor shall not appoint any other person who has a substantial interest as defined in 105.450” in any business entity regulated under the Air Conservation Law or any business entity which would be regulated under the Air Conservation Law if located in Missouri. “Substantial interest,” in turn, is defined in section 105.450 as ownership by the individual, the individual's spouse, or the individual's dependent children, whether singularly or collectively, directly or indirectly, of ten percent or more of any business entity, or of an interest having a value of ten thousand dollars or more, or the receipt by an individual, the individual's spouse or the individual's dependent children, whether singularly or collectively, of a salary, gratuity, or other compensation or remuneration of five thousand dollars, or more, per year from any individual, partnership, organization, or association with any calendar year. The provisions at sections 643.040 and 105.450 have both been submitted for inclusion in to the SIP. In addition, section 105.463 which has also been submitted for inclusion in to the SIP, requires members of the commission to file a financial interest statement.
To satisfy section 128(a)(2) of the CAA, Missouri's August 8, 2012, submission identified RsMO section 643.040.2, which establishes “rules of procedure which specify when members shall exempt themselves from participating in discussions and from voting on issues before the commission due to potential conflict of interest.” In addition, RsMO sections 105.452 and 105.454 identify “prohibited acts” that apply to both elected or appointed officials and to state employees which relate to disclosure of conflicts of interest and financial gain. As an example of a “prohibited act,” elected or appointed officials or employees of Missouri shall not act (or refrain from acting in any capacity in which she is lawfully empowered to act) “by reason of any payment, offer to pay, promise to pay, or receipt of anything of actual pecuniary value” paid or received to herself or any third person in relationship to or as a condition of the performance of an official act (RsMO 105.452.1(1)). These officials or employees are also prohibited from using or disclosing confidential information obtained in the course of or by reason of her employment or official capacity in any manner with intent to result in financial gain for herself, her spouse, her dependent child, or any business with which she is associated (RsMO 105.452.1(2),(3)).
Chapter 1 Missouri State regulation “Commission Voting and Meeting Procedures” (1) and (2) also further require disclosure of conflicts of interest and require members with conflicts of interest to be excluded from voting on the matter at issue, unless that member receives a determination from the MACC that the interest is “not so substantial as to be deemed likely to affect the integrity of the services which the state expects from commission members.” Finally, RsMO sections 105.466 and 105.472 include applicable exemptions to the “prohibited acts” identified in RsMO sections 105.450 to 105.458 and 105.462 to 105.468 and information regarding complaints about any violations of these prohibitions related to boards and executives. All of these provisions have been submitted by Missouri for inclusion in to the SIP.
As it relates to appointed public officials, such as the Director of MDNR, the provisions as described above in sections 105.452 and 105.454 also apply to heads of the executive agency.
EPA believes that the above identified relevant sections of Missouri's Air Conservation Law and the Missouri air regulations directly address the provisions related to sections 128(a)(1) and (2) of the CAA. We propose to approve the following provisions in to the Missouri SIP, as they strengthen the SIP with respect to the conflict of interest requirement of CAA section 128:
(3) With respect to assurances that the state has responsibility to implement the SIP adequately when it authorizes local or other agencies to carry out portions of the plan, RsMO section 643.190 designates the MDNR as the air pollution control agency “for all purposes” of the CAA. Although RsMO section 643.140 authorizes the MACC to grant local governments such as cities or counties authority to carry out their own air pollution control programs, the MACC retains authority to enforce the provisions of Missouri's Air Conservation Law in these local areas, notwithstanding any such authorization (RsMO 643.140.4). The MACC may also suspend or repeal the granting of
There are three local air agencies that conduct air quality work in Missouri: Kansas City, Springfield/Greene County and St. Louis County. The MDNR's Air Pollution Control Program has a signed Memorandum of Understanding (MOU) with Kansas City and Springfield/Greene County and a draft agreement for St. Louis County (to be finalized) which outlines the responsibilities for air quality activities with each local agency. The MDNR Air Program oversees the activities of the local agencies to ensure adequate implementation of the Missouri SIP. EPA conducts reviews of the local program activities in conjunction with its oversight of the state program.
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
To address this element, RsMO section 643.050.1(3)(a) of the Air Conservation Law authorizes the MACC to require persons engaged in operations which result in air pollution to monitor or test emissions and to file reports containing information relating to rate, period of emission and composition of effluent. Missouri rule 10 CSR 10-6.030 “Sampling Methods for Air Pollution Sources” incorporates various EPA reference methods for sampling and testing source emissions, including methods for PM emissions. The Federal test methods are in 40 CFR part 51, Appendix M and part 60, Appendix A.
Missouri rule 10 CSR 10-6.110 “Reporting & Emission Data, Emission Fees, and Process Information” also requires monitoring of emissions and filing of periodic reports on emissions (see (4)(A) for the specific information required). Missouri uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements. Missouri makes this information available to the public (10 CSR 10-6.110(3)(D) “Reporting & Emission Data, Emission Fees, and Process Information”). Missouri rule 10 CSR 10-6.210 “Confidential Information,” specifically excludes emissions data from confidential treatment. Under that rule emissions data includes the results of any emissions testing or monitoring required to be reported by sources under Missouri's air pollution control rules (10 CSR 10-6.210(3)(B)2).
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
RsMO section 643.090.1 of the Air Conservation Law authorizes the MACC or the director of MDNR to declare an emergency where the ambient air, “due to meteorological conditions and a buildup of air contaminants” in Missouri, may present an “emergency risk to the public health, safety, or welfare.” The MACC or director may, with the written approval of the governor, by order prohibit, restrict or condition all sources of air contaminants contributing to the emergency condition, during such periods of time necessary to alleviate or lessen the effects of the emergency condition. The statute also enables the MACC to promulgate implementing regulations. Even in the absence of an emergency condition, RsMO section 643.090.2 also authorizes the MACC or the director to issue “cease and desist” orders to any specific person who is either engaging or may engage in activities which involve a significant risk of air contamination or who is discharging into the ambient air any air contaminant, and such activity or discharge presents a clear and present danger to public health or welfare.
Missouri rule 10 CSR 10-6.130 “Controlling Emissions During Episodes of High Air Pollution Potential” includes action levels and contingency measures for PM
With respect to contingency plan requirements of section 110(a)(2)(G), EPA has issued guidance making recommendations for how states may elect to approach this issue. In that guidance, EPA recommended that, where a state can demonstrate that PM
That said, Missouri's regulations provide for contingency plans (or alert plans) to be implemented if an area's Air Quality Alert value exceeds 200 micrograms per cubic meter. These plans must include provisions for reducing emissions, such as curtailing production processes, diverting power generation to facilities outside of the alert area, and stoppage of waste disposal practices or open burning. Missouri rule 10 CSR 10-6.130(3)(D)4 “Controlling Emissions During Episodes of High Air Pollution Potential.”
Based on a review of these regulatory requirements (which have previously been approved by EPA as part of Missouri's SIP (
In addition to the MACC's general enabling authority in RsMO section 643.050 of the Air Conservation Law, discussed previously in element (A), section 643.055.1 grants the MACC and MDNR authority to promulgate rules and regulations to establish standards and guidelines, to ensure that Missouri complies with the provisions of the Federal CAA. Missouri's Chapter 1 state rule “General Organization” (2) grants similar powers to MDNR. This includes the authority to submit SIP revisions to the EPA for approval as necessary to respond to a revised NAAQS and to respond to EPA findings of substantial inadequacy (
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
As noted earlier, EPA does not expect infrastructure SIP submissions to address subsection (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. Instead, EPA will take action on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D.
(1) With respect to interagency consultation, the SIP should provide a process for consultation with general-purpose local governments, designated organizations of elected officials of local governments, and any Federal Land Manager having authority over Federal land to which the SIP applies. Section 643.050.3 of the Missouri Air Conservation Law requires the MACC to consult and cooperate with other Federal and state agencies, and with political subdivisions, for the purpose of prevention, abatement, and control of air pollution. Missouri also has appropriate interagency consultation provisions in its preconstruction permit program. For instance, Missouri rule 10 CSR 10-6.060(12)(B)2.E “Construction Permits Required” requires that when a permit goes out for public comment, the permitting authority must provide notice to local air pollution control agencies, the chief executive of the city and county where the installation or modification would be located, any comprehensive regional land use planning agency, any state air program permitting authority, and any Federal Land Manager whose lands may be affected by emissions from the installation or modification.
(2) With respect to the requirements for public notification in section 127, the infrastructure SIP should provide citations to regulations in the SIP requiring the air agency to regularly notify the public of instances or areas in which any NAAQS are exceeded; advise the public of the health hazard associated with such exceedances; and enhance public awareness of measures that can prevent such exceedances and of ways in which the public can participate in the regulatory and other efforts to improve air quality. Missouri rule 10 CSR 10-6.130 “Controlling Emissions During Episodes of High Air Pollution Potential,” discussed previously in connection with the state's authority to address emergency episodes, contains provisions for public notification of elevated PM
(3) With respect to the applicable requirements of part C of the CAA, relating to prevention of significant deterioration of air quality and visibility protection, we note in section VII of this rulemaking how the Missouri SIP meets the PSD requirements, incorporating the federal rule by reference. With respect to the visibility component of section 110(a)(2)(J), EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. However, when EPA establishes or revises a NAAQS, these visibility and regional haze requirements under part C do not change. EPA believes that there are no new visibility protection requirements under part C as a result of a revised NAAQS. Therefore, there are no newly applicable visibility protection obligations pursuant to element J after the promulgation of a new or revised NAAQS. Missouri has submitted a SIP revision to satisfy the requirements of CAA sections 169A and 169B, and the regional haze and BART rules contained in 40 CFR 51.308. On June 7, 2012, EPA published a final rulemaking regarding Missouri's regional haze program consisting of a limited disapproval and FIP (
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
Missouri has authority to conduct air quality modeling and report the results of such modeling to EPA. Section 643.050 of the Air Conservation Law provides the MACC with the general authority to develop a general comprehensive plan to prevent, abate and control air pollution. Along with section 643.055, which grants the MACC the authority to promulgate rules and regulations to establish standards and guidelines to ensure that Missouri is in compliance with the provisions of the CAA, EPA believes MDNR has the authority to conduct modeling to address NAAQS issues. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, Missouri regulation 10 CSR 10-6.060(12)(F) “Construction Permits Required” requires the use of EPA-approved air quality models (e.g., those found in 40 CFR part 51, Appendix W) for construction permitting. Rule 10 CSR 10-6.110(4) “Reporting & Emission Data, Emission Fees, and Process Information” requires specified sources of air pollution to report emissions to MDNR, which among other purposes may be utilized in modeling analyses. These data are available to any member of the public, upon request (10 CSR 10-6.110(3)(D)).
Based upon review of the state's infrastructure SIP submissions for the 1997 and 2006 PM
Section 643.079 of the Air Conservation Law provides authority for MDNR to collect permit fees, including Title V fees. EPA approved Missouri's Title V program in May 1997 (s
Therefore, EPA believes that the requirements of section 110(a)(2)(L) are met and is proposing to approve the February 27, 2007, submission regarding the 1997 PM
Section 643.050.3 of the Air Conservation Law requires that the MACC encourage political subdivisions to handle air pollution control problems within their respective jurisdictions to the extent possible and practicable, and to provide assistance to those political subdivisions. The MACC is also required to advise, consult and cooperate with other political subdivisions in Missouri. RsMO section 643.140 provides the mechanism for local political subdivisions to enact and enforce their own air pollution control regulations, subject to the oversight of the MACC. The MDNR's Air Pollution Control Program has a signed Memorandum of Understanding (MOU) with Kansas City and Springfield/Greene County and a draft agreement with St. Louis County (to be finalized) which outlines the responsibilities for air quality activities with each local agency. In addition, MDNR participates in community meetings and consults with and participates in interagency consultation groups such as the Metropolitan Planning Organizations in both Kansas City and St. Louis. In Kansas City, MDNR works with the Mid-America Regional Council and in St. Louis, MDNR works with East-West Gateway Coordinating Council of Governments.
Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM
The 2010 PM
That rule also permitted states, at their discretion, to choose to adopt and submit for EPA approval into the SIP SILs, used as a screening tool (by a major source subject to PSD), to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and a SMC (also a screening tool), used by a major source subject to PSD to determine the subsequent level of data gathering required for a PSD permit application for emissions of PM
Accordingly, the only remaining requirements from the 2010 rule are the PM
For PSD baseline purposes, a baseline area for a particular pollutant emitted from a source includes the attainment or unclassifiable/attainment area in which the source is located, as well as any other attainment or unclassifiable/attainment area in which the source's emissions of that pollutant are projected (by air quality modeling) to result in an ambient pollutant increase of at least 1 ug/m
In addition to PSD increments for the 2006 PM
To address the requirements of EPA's October 20, 2010, PM
Specifically, regarding the PSD increments, the submitted SIP revision changes include: (1) The PM
As described under element C in section V of this rulemaking, states had an obligation to address condensable PM emissions as a part of the 2008 PM
In today's action, EPA is proposing to approve Missouri's September 5, 2012, revision to address the PM
Within Missouri's September 5, 2012, SIP submission, Missouri amended rule 10 CSR 10-6.060 “Construction Permits Required” to defer the application of the PSD permitting requirements to carbon dioxide emissions from bioenergy and other biogenic stationary sources pursuant to the July 20, 2011, EPA final rulemaking “Deferral for Carbon Dioxide (CO
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EPA recognizes that use of certain types of biomass can be part of the national strategy to reduce dependence on fossil fuels. Efforts are underway at the Federal, state and regional level to foster the expansion of renewable resources and promote bioenergy projects when they are a way to address climate change, increase domestic alternative energy production, enhance forest management and create related employment opportunities.
For stationary sources co-firing fossil fuel and biologically-based fuel, and/or combusting mixed fuels (e.g., tire derived fuels, municipal solid waste (MSW)), the biogenic CO
EPA's final biomass deferral rule is an interim deferral for biogenic CO
EPA also wishes to clarify that we do not require that a PSD permit issued during the deferral period be amended or that any PSD requirements in a PSD permit existing at the time the deferral took effect, such as BACT limitations, be revised or removed from an effective PSD permit for any reason related to the deferral or when the deferral period expires. The regulation at 40 CFR 52.21(w) requires that any PSD permit shall remain in effect, unless and until it expires or it is rescinded, under the limited conditions specified in that provision. Thus, a PSD permit that is issued to a source while the deferral was effective need not be reopened or amended if the source is no longer eligible to exclude its biogenic CO
Any future actions to modify, shorten, or make permanent the deferral for biogenic sources are beyond the scope of the biomass deferral action and this proposed approval of the deferral into the Missouri SIP, and will be addressed through subsequent rulemaking. The results of EPA's review of the science related to net atmospheric impacts of biogenic CO
Similar to our approach with the Tailoring Rule, EPA incorporated the biomass deferral into the regulations governing state programs and into the Federal PSD program by amending the definition of “subject to regulation” under 40 CFR sections 51.166 and 40 CFR 52.21 respectively. Missouri implements its PSD program by incorporating section 52.21 by reference in its rule 10 CSR 10-6.060 “Construction Permits Required.” The Missouri submission incorporates by reference the CFR through July 1, 2011, in order to adopt the Biomass Deferral.
Based upon EPA's analysis of the required provisions of the July 20, 2011, Biomass Deferral rule and how Missouri meets these requirements, EPA is proposing to approve the September 5, 2012, Missouri SIP revision incorporating the Biomass Deferral.
EPA proposes to approve the infrastructure SIP submissions from Missouri which address the requirements of CAA sections 110 (a)(1) and (2) as applicable to the 1997 and 2006 NAAQS for PM
In addition, EPA proposes to approve two additional SIP submissions from Missouri, one addressing the Prevention of Significant Deterioration (PSD) program in Missouri as it relates to PM
We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The statutory authority for this action is provided by Section 110 of the CAA, as amended (42 U.S.C. 7410).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve most elements of New Jersey's State Implementation Plan (SIP) revisions submitted to demonstrate that the State meets the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter (PM
Comments must be received on or before May 10, 2013.
Submit your comments, identified by Docket ID number EPA-R02-OAR-2013-0130, by one of the following methods:
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• Email:
• Fax: 212-637-3901.
• Mail: Richard Ruvo, Acting Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
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Paul Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249, or by email at
EPA is proposing to approve, conditionally approve, and disapprove elements of the State of New Jersey Infrastructure SIP as meeting the section 110(a) infrastructure requirements of the Clean Air Act (CAA) for the 1997 ozone, 1997 PM
On July 18, 1997, EPA promulgated new and revised NAAQS for 8-hour ozone (62 FR 38856) and PM
Section 110(a) of the CAA requires states to submit State Implementation Plans (SIPs) that provide for the implementation, maintenance, and enforcement of new or revised NAAQS within three years following the promulgation of such NAAQS.
Section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. Sections 110(a)(1) and (2) of the CAA requires, in part, that states submit to EPA plans to implement, maintain and enforce each of the NAAQS promulgated by EPA. EPA interprets this provision to require states to address basic SIP requirements including emission inventories, monitoring, and modeling to assure attainment and maintenance of the standards. By statute, SIPs meeting the requirements of section 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised standard. These SIPs are commonly called infrastructure SIPs. In 1997, EPA promulgated the 8-hour ozone primary and secondary NAAQS and a new annual and 24-hour PM
The infrastructure requirements are listed in EPA's October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM
Two elements identified in section 110(a)(2) are not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather due at the time that the nonattainment area plan requirements are due pursuant to section 172. See 77 FR 46354 (August 3, 2012); 77 FR 60308 (October 3, 2012) (footnote 1). These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address the above infrastructure elements related to section 110(a)(2)(C) or 110(a)(2)(I).
This action also does not address the requirements of section 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM
This rulemaking will not cover four substantive issues that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (“SSM”) at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). A detailed rationale for why these four substantive issues are not part of the scope of infrastructure SIP rulemakings can be found in EPA's July 13, 2011, final rule entitled, “Approval and Promulgation of Air Quality Implementation Plans; Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM
EPA is acting on two New Jersey SIP submittals, dated February 25, 2008 and January 15, 2010, which address the section 110 infrastructure requirements for the three NAAQS: The 1997 8-hour ozone NAAQS, the 1997 annual and 24-hour PM
New Jersey's section 110 infrastructure submittal was submitted by the New Jersey Department of Environmental Protection (NJDEP) on February 25, 2008 and addressed the 1997 8-hour ozone and fine particulate matter (PM
New Jersey's section 110 infrastructure submittal for the 2006
EPA's evaluation of both submittals is detailed in the “Technical Support Document for EPA's Proposed Rulemaking for the New Jersey State Implementation Plan Revision: State Implementation Plan Revision For Meeting the Infrastructure Requirements In the Clean Air Act Dated February 2008 and January 2010” (TSD). As explained in the
The NJDEP is authorized by NJSA 26:2C-19 to enforce its control measures and the air permitting program for stationary sources. The minor source permitting and enforcement programs operate under NJAC 7:27 and 7:27A, respectively. EPA proposes to find that the State has adequate authority and regulations to insure that SIP approved control measures are enforced for the 1997 8-hour ozone and 1997 and 2006 PM
New Jersey's is currently subject to 40 CFR 52.1603 with respect to the PSD permit program required by Part C of the Act. As a result, a Federal Implementation Plan (FIP) includes 40 CFR 52.21 as part of the New Jersey applicable State plan. New Jersey has been delegated authority to implement 40 CFR 52.21 and has been successfully implementing the program. Because New Jersey does not have its own State adopted rule, its infrastructure submissions are not approvable with respect to this element. However, the State is not subject to mandatory sanctions solely as a result of this type of infrastructure SIP deficiency, since the SIP deficiency is neither with respect to a submittal that is required under part D nor in response to a SIP call under section 110(k)(5) of the CAA. Moreover, the requirements for which the State is subject to the FIP are already satisfied by the incorporation by reference of the provisions of 40 CFR 52.21 into a FIP for New Jersey, and so EPA has no additional FIP obligations under section 110(c).
EPA proposes to find that the State has adequate authority and regulations to ensure that SIP-approved control measures are enforced. EPA also finds that, based on the delegation of 40 CFR 52.21, New Jersey has the delegated authority to regulate the construction of new or modified stationary sources to meet the PSD program requirements. Though New Jersey satisfies the requirement to regulate the construction of new or modified sources through PSD delegation, since New Jersey's PSD program is a federally delegated program, New Jersey has not satisfied the requirements of sections 110(a)(2)(C) and (J) for all three NAAQS to have a state adopted program and the currently existing FIP remains in place.
Section 110(a)(2)(D)(ii) addresses interstate and international pollution abatement, and requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.
In this action for New Jersey, with respect to section 110(a)(2)(D)(i), we are only addressing prong 3 (i.e., interference with PSD) and prong 4 (i.e., to protect visibility) of 110(a)(2)(D)(i)(II). EPA previously took rulemaking action on prong 1 and prong 2 on October 1, 2007 (72 FR 55666) and July 20, 2011 (76 FR 43153), respectively. For prong 3, as discussed previously under (C) (Program for enforcement of control measures), New Jersey is currently subject to a PSD FIP. A state's infrastructure SIP submittal cannot be considered for approvability with respect to prong 3 until EPA has issued final approval of that state's PSD SIP or, alternatively, has issued final approval of a SIP that EPA has otherwise found adequate to prohibit interference with other state's measures to prevent significant deterioration of air quality. Therefore, we are proposing to disapprove New Jersey's 110(a) submissions for the 1997 8-hour ozone and 1997 and 2006 PM
For prong 4, New Jersey has met its obligations pursuant to section 110(a)(2)(D)(i)(II) for visibility protection for all three NAAQS through its Regional Haze SIP submittals, which were approved by EPA on January 3, 2012,
Regarding section 110(a)(2)(D)(ii), which relates to interstate and international pollution abatement, as noted above, New Jersey is subject to a PSD FIP. States relying on the Federal PSD program requirements of 40 CFR 52.21(q), (which provide for notification of affected state and local air agencies) to satisfy this requirement have programs that are considered technically deficient and not approvable. Therefore, we are proposing to disapprove New Jersey's submissions for infrastructure element 110(a)(2)(D)(ii) for the 1997 8-hour ozone and 1997 and 2006 PM
New Jersey has adequate authority, under NJSA 13:1D-9, to carry out its SIP obligations with respect to the 1997 ozone and 1997 and 2006 PM
Congress added section 128 in the 1977 amendments. Titled “State boards,” section 128 provides in relevant part: “(a) Not later than the date one year after August 7, 1977, each applicable implementation plan shall contain requirements that: (1) Any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under this chapter, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.” New Jersey does not have a state board that approves permits or enforcement orders under the CAA. Instead, permits and enforcement orders are approved by the State's Commissioner of Environmental Protection. Thus, the requirements of subsection 128(a)(1) are not applicable to New Jersey. New Jersey is subject to the requirements of section 128(a)(2). In its SIP submission New Jersey cited NJSA 52:13D-12 et seq. which addresses the conflict of interest requirement. EPA proposes to conditionally approve the infrastructure SIP in fulfilling the requirements of section 110(a)(2)(E)(ii) for the 1997 8-hour ozone and 1997 and 2006 PM
Section 110(a)(2)(E)(iii) requires states to provide necessary assurances that, where the state has relied on a local or regional government, agency or instrumentality for the implementation of any provision of the SIP, the state has responsibility for ensuring adequate implementation of the SIP provision. The NJDEP has the authority to delegate inspection and enforcement efforts for various regulations under the County Environmental Health Act (NJSA 26:3A2-21 et seq.). EPA in the past identified a deficiency in meeting this requirement. See 40 CFR 52.1579 Intergovernmental cooperation.
While New Jersey has the authority to delegate responsibilities to county or local governments to implement certain SIP responsibilities, the information provided in both infrastructure SIP submittals does not identify the specific organizations that will participate in developing, implementing, and enforcing the plan and the responsibilities of such organizations. EPA proposes to conditionally approve the infrastructure SIP with regard to the requirements of section 110(a)(2)(E)(iii). The State must identify the county or local governments or entities such as metropolitan planning organizations (MPOs) that participate in the SIP planning efforts, identify the county or local governments or entities that have been delegated responsibilities to implement or enforce portions of the SIP, and provide copies of the agreements or memoranda of understanding (MOUs) between the State and the county or local governments or entities. Since it is EPA's understanding that this deficiency involves information that exists but was not provided in the SIP submittal, EPA proposes to conditionally approve section 110(a)(2)(E)(iii) for the 1997 8-hour ozone and 1997 and 2006 PM
The NJDEP has the authority pursuant to NJSA 26:2C-9 to require emissions reports from stationary sources and to allow emission information to be made available to the public.
EPA previously disapproved inclusion of NJSA 26:2C-9 into the SIP finding that, in some circumstances, it could prohibit the disclosure of emission data to the public. See 40 CFR 52.1575. In 1995 New Jersey revised NJSA 26:2C-9, specifically NJSA 26:2C-9b.(4) to limit what information could
Based on the revisions to the New Jersey Air Pollution Control Act and the adoption of the Subchapter 21—“Emission Statements,” EPA is proposing to find that New Jersey has met the requirements of section 110(a)(2)(F) for the 1997 8-hour ozone and 1997 and 2006 PM
For PM
Since 2006 air-quality monitors in New Jersey show that PM
In general and for the 1997 ozone standard, the section 110(a)(2)(G) requirements are addressed by New Jersey's Air Pollution Emergency Control Act (NJSA 26:2C-26 et seq.), which is implemented through NJAC 7:27-12 “Prevention and Control of Air Pollution Emergencies.” While the New Jersey SIP contains Subchapter 12, it is not the current version of the State rule. In addition, Subchapter 12 requires that the NJDEP publish in the New Jersey Register the emergency criteria that will be used in making alerts, warnings or emergencies. NJDEP has not provided the criteria. Therefore, EPA is proposing to condition its approval based on NJDEP submitting, for approval into the SIP, the current version of Subchapter 12 and the emergency criteria levels that will be used.
The NJDEP is given the authority by NJSA 13:1D-9 to formulate comprehensive policies “for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State.” EPA proposes to find that the State has adequate authority to develop and implement plans and programs that fulfills the requirements of section 110(a)(2)(H) for the 1997 8-hour ozone and 1997 and 2006 PM
Section 121 requires a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements. EPA finds that the 110(a) submittals from New Jersey, and the cited authority of NJSA 26:2C-8 and 9, meet the requirements of section 110(a)(2)(J) for consultation with government officials.
Section 127 requires that the state plan include measures to effectively notify the public of any NAAQS exceedances, advise the public of health hazards associated with such pollution, and include measures to enhance public awareness of measures that can be taken to prevent exceedances.
New Jersey is a partner participating in EPA's AIRNOW and EnviroFlash Air Quality Alert programs. (See
Section 110(a)(2)(J) also requires states to meet applicable requirements of Part C related to prevention of significant deterioration and visibility protection. EPA evaluated this requirement in the context of section 110(a)(2)(C) with respect to permitting (see discussion under (C) (program for enforcement of control measures)). EPA interprets this section 110 provision relating to visibility as not being “triggered” by a new NAAQS because the visibility requirements in part C are not changed by a new NAAQS.
New Jersey is currently subject to a PSD FIP, as discussed under (C) (Program for enforcement of control measures). The approvability of a state's PSD program in its entirety is essential to the approvability of the infrastructure SIP with respect to section 110(a)(2)(J). Until the State provides such a program, the New Jersey infrastructure SIP is not approvable with respect to section 110(a)(2)(J). Therefore, EPA proposes to disapprove New Jerseys' infrastructure SIP with respect to the PSD sub-element of 110(a)(2)(J) for the 1997 8-hour ozone and 1997 and 2006 PM
The infrastructure submittals from New Jersey reference regulations that have provisions for performing air-quality modeling, including modeling for attainment plans, permits, and redesignation requests. NJAC 7:27-8.5 and 22.8. EPA proposes to find that the State has adequate authority to perform air quality modeling that fulfills the requirements of section 110(a)(2)(K).
EPA is proposing to approve New Jersey's submittals as fully meeting the infrastructure requirements for the 1997 8-hour ozone and the 1997 and 2006 PM
EPA is proposing to disapprove New Jersey's submittals for the 1997 8-hour ozone and 1997 and 2006 PM
EPA is proposing to conditionally approve New Jersey's submittals for the 1997 8-hour ozone and 1997 and 2006 PM
Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from a State to adopt specific enforceable measures by a date certain, but not later than one year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to complete requirements of each section 110(a)(2) element listed above. If New Jersey fails to do so for any section 110(a)(2) element, our conditional approval of that element will, by operation of law, become a disapproval for New Jersey one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved SIP for New Jersey. EPA subsequently will publish a document in the
If EPA disapproves a State's new submittal, the conditionally approved section 110(a)(2) element will also be disapproved at that time. If EPA approves the submittal, the section 110(a)(2) element will be fully approved in its entirety and replace the conditionally approved 110(a)(2) element in the SIP. Finally, if, based on information received before EPA takes final action on this proposal, EPA determines that it cannot issue a final conditional approval for one or more elements for which EPA has proposed a conditional approval, then EPA will instead issue a disapproval for such elements.
As discussed in section I, above, EPA is not acting on New Jersey's submittal as it relates to nonattainment provisions, the NSR program required by part D in section 110(a)(2)(C) and the measures for attainment required by section 110(a)(2)(I), as part of the infrastructure SIPs because these submittals have been addressed by other SIP revisions which EPA has or will be acting on in other rulemakings.
EPA is soliciting public comments on the issues discussed in this proposal. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional Office listed in the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the New York State Implementation Plan (SIP) for ozone concerning the control of oxides of nitrogen. The proposed SIP revision consists of amendments to Title 6 of the New York Codes, Rules and Regulations Part 200, “General Provisions,” Part 212, “General Process Emission Sources,” Part 220, “Portland Cement Plants and Glass Plants,” and Subpart 227-2, “Reasonably Available Control Technology (RACT) For Major Facilities of Oxides of Nitrogen (NOx).” The intended effect of this action is to approve control strategies, required by the Clean Air Act, which will result in emission reductions that will help attain and maintain the national ambient air quality standards for ozone.
Comments must be received on or before May 10, 2013.
Submit your comments, identified by Docket Number EPA-R02-OAR-2013-0180, by one of the following methods:
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Kirk J. Wieber (
In 1997, EPA revised the health-based national ambient air quality standards (NAAQS or standard) for ozone, setting it at 0.08 parts per million averaged over an 8-hour period. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially with regard to children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma. On April 30, 2004 (69 FR 23858), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 8-hour ozone standard. These actions became effective on June 15, 2004. The three 8-hour ozone moderate nonattainment areas located in New York State are: the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area; the Poughkeepsie nonattainment area; and the Jefferson County nonattainment area. The New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area is composed of the five boroughs of New York City and the surrounding counties of Nassau, Suffolk, Westchester and Rockland. This is collectively referred to as the New York City Metropolitan Area or NYMA. The Poughkeepsie nonattainment area is composed of Dutchess, Orange and Putnam counties.
The April 30, 2004 designations triggered the Act's requirements under section 182(b) for moderate nonattainment areas, including a requirement to submit a demonstration of attainment. EPA notes that on December 7, 2009 (74 FR 63993), EPA determined that the Poughkeepsie area attained the 8-hour ozone standard and on March 25, 2008 (73 FR 15672) EPA determined that Jefferson County attained the 8-hour ozone standard. On June 18, 2012 (77 FR 36163) EPA determined that the New York City Metropolitan Area attained the 8-hour ozone standard.
To assist states in meeting the Act's requirements for ozone, EPA released an 8-hour ozone implementation rule in two phases. EPA's Phase 1 8-hour ozone implementation rule, published on April 30, 2004 (69 FR 23951) and referred to as the Phase 1 Rule, specifies that states must submit these attainment demonstrations to EPA by no later than three years from the effective date of designation—that is, submit them by June 15, 2007.
On November 29, 2005, EPA published Phase 2 of the 8-hour ozone implementation rule (70 FR 71612), referred to as the Phase 2 Rule, which addressed the control and state plan obligations that apply to areas designated nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and Phase 2 Rules outline the SIP requirements and deadlines for various requirements in areas designated as moderate nonattainment. For such areas, reasonably available control technology (RACT) plans were due by September 2006 (40 CFR 51.912(a)(2)).
Both the Phase 1 and Phase 2 rules require that modeling and attainment demonstrations, reasonable further progress plans, reasonably available control measure (RACM) analysis, projection year emission inventories, motor vehicle emissions budgets and contingency measures were all due by June 15, 2007 (40 CFR 51.908(a)).
On July 23, 2010 (75 FR 43066), EPA conditionally approved New York's statewide RACT and RACM SIP revision. EPA conditionally approved the RACT and RACM analyses for the 1997 8-hour ozone NAAQS based on New York's commitment to submit adopted RACT/RACM rules for several source categories by August 31, 2010. On May 28, 2010 (75 FR 29897) and March 8, 2012 (77 FR 13974), EPA approved five New York VOC RACT/RACM rules that New York committed to adopt pursuant to EPA's July 23, 2010 conditional approval. The three NO
On August 19, 2010 and December 15, 2010, the New York State Department of Environmental Conservation (NYSDEC), submitted to EPA proposed revisions to the SIP, which included State adopted revisions to four regulations contained in Title 6 of the New York Code of Rules and Regulations (6 NYCRR) Part 200, “General Provisions,” Part 212, “General Process Emission Sources,” Part 220, “Portland Cement Plants and Glass Plants,” and Part 227-2, “Reasonably Available Control Technology (RACT) For Major Facilities of Oxides of Nitrogen (NO
The NYSDEC revised 6 NYCRR Part 212, by adding section 212.12, “Hot mix asphalt production plants,” to include control requirements for hot mix asphalt production plants. These control requirements will be specifically aimed at reducing NO
With the exception of section 212.12, NO
The new compliance requirements under section 212.12 apply uniformly statewide. Under the proposed requirements, owners and operators of hot mix asphalt production plants must comply with NO
The owners or operators of plants will also be required to analyze the economic feasibility of installing a low NO
Section 212.12 requires facilities to do the following for reducing NO
New York amended Part 212 by including new provisions applicable to asphalt production plants that will result in additional reductions in NO
Part 212 contains the required elements for a federally enforceable rule: emission control requirements, compliance procedures and test methods, compliance dates and record keeping provisions. Therefore, EPA is proposing to approve the revisions to Part 212.
The NYSDEC revised 6 NYCRR Part 220, which is divided into two subparts: 220-1 for portland cement plants; and 220-2 for glass manufacturing plants. In addition to other requirements, the existing regulation imposed RACT requirements on NO
The NYSDEC is taking a RACT approach that requires a facility specific analysis. The plant owner or operator will be required to perform a facility specific RACT analysis for emissions of NO
The revised Subpart 220-1 revisions include the removal of a definition, the addition of several new definitions, and revisions to the RACT requirements for NO
Section 220.6 will become section 220-1.6 and the existing NO
Section 220.8 will become section 220-1.7 and will be revised to require NO
Proposed Subpart 220-2 is new. This subpart will require NO
Section 220-2.3 contains the NO
The section 220-2.4 revisions require NO
It is EPAs understanding that there are three portland cement plants located in New York State that are subject to the RACT provisions of subpart 220-1. These three facilities are also subject to New York's regional haze plan's best available retrofit technologies (BART) provisions pursuant to 6 NYCRR Part 249.
Of the three cement plants, EPA has been informed that one of the facilities (Holcim) will be shutting down operations and surrendering the operating permit for the kiln. Another facility (Lafarge) will be modernizing the existing plant by replacing the two existing long wet kilns with a new short dry kiln and pre-heater pre-calciner tower. The third facility (LeHigh) concluded that SNCR technology is cost effective ($1,145/ton NO
According to EPA's November 7, 1996 policy memo, entitled “Approval Options for Generic RACT Rules Submitted to Meet the non-CTG VOC RACT Requirement and Certain NO
EPA evaluated the provisions of subpart 220-1 for consistency with the Act, EPA regulations, and EPA policy and proposes to conditionally approve them based on New York submitting the individual single source RACT determinations to EPA by December 1, 2013.
It is EPA's understanding that there are four glass plants located in New York State. Subpart 220-2 does not identify a specific control strategy or emission limit as RACT for these facilities and requires individual source specific RACT determinations. To date, EPA has not received any of those source specific RACT determinations. However, in a letter dated February 28, 2013 to EPA, New York commits to submit the applicable single source NO
EPA evaluated the provisions of subpart 220-2 for consistency with the Act, EPA regulations, and EPA policy (see EPA's RACT policy memo referenced above) and proposes to conditionally approve them based on New York submitting the individual single source RACT determinations to EPA by December 1, 2013.
New York adopted revisions to Subpart 227-2 for the purpose of imposing more stringent emission limits on major stationary sources of NO
The Subpart 227-2 revisions include the removal of several definitions (to be relocated to Part 200) and revision of other definitions, a change in the application and permitting requirements, a change in emission limits for most boiler categories, a requirement to submit a new RACT proposal for combined cycle combustion turbines, and revisions to the compliance options.
Section 227-2.2 was revised to remove the definitions of boiler, combined cycle combustion turbine, combustion turbine, continuous emissions monitoring system (CEMS) certification protocol, emergency power generating stationary internal combustion engine, preliminary continuous emissions monitoring system plan, simple cycle combustion turbine, and very large boiler. These definitions will be moved to 6 NYCRR Part 200 (preliminary continuous emissions monitoring system plan will be changed to continuous emissions monitoring system plan), as stated above. Also, the revisions will modify the terms mid-size boiler and small boiler. A mid-size boiler will now be defined as “a boiler with a maximum heat input capacity greater than 25 million Btu per hour and equal to or less than 100 million Btu per hour.” A small boiler will now be defined as “a boiler with a maximum heat input capacity equal to or greater than one million Btu per hour and equal to or less than 25 million Btu per hour.”
Section 227-2.3 was revised to specifically require that subject facilities must submit an application for a Title V permit or permit modification (depending on the current facility status). The requirement to submit a compliance plan was removed since this information is now included in the facility's permit application.
Section 227-2.4 was revised to change the presumptive RACT emission limits for very large, large, and mid-size boilers. Combined cycle turbines will be required to perform a case-by-case RACT analysis. Also, the revisions will remove the 500-hour non-ozone season presumptive emission limit exemption for simple cycle combustion turbines.
Section 227-2.5 was revised to include a shutdown option for any subject emission source. The intent to shut down an emission source must be recorded as part of a permit modification prior to January 1, 2012, wherein the owner or operator commits to permanently shut down the emission source prior to December 31, 2014. Section 227-2.5 also allows for additional compliance flexibility via applying for a system averaging plan.
New York has revised section 227-2.4 (Control requirements) requiring stricter NO
• For very large boilers, presumptive NO
• For large boilers, presumptive NO
• For mid-size boilers, presumptive NO
• For small boilers, the upper range of this boiler category is lowered from 50 mmBTU/hr to 25 mmBTU/hr thereby requiring boilers in the range greater than 25 mmBTU/hr up to 50 mmBTU/hr to be reclassified as mid-size boilers thereby requiring these boilers to meet the presumptive emission limits for mid-size boilers. Currently these small boilers only need to conduct an annual tune-up. New York's revised definitions of the terms “Small boiler” and “Mid-size boiler” are found at sections 227-2.2(b)(8) and 227-2.2(b)(4), respectively, and these revised definitions are acceptable to EPA.
• For small size boilers, the lower limit of this boiler category was 20 mmBTU/hr (10 mmBTU/hr for coal and residual oil-fired sources in the severe ozone nonattainment area) but is now equal to or greater than one mmBTU/hr. Therefore, the additional boilers will need to comply with the section 227-2.4(d) requirement to conduct an annual tune-up.
• For all combined cycle combustion turbines that operate after July 1, 2014, owners or operators must submit a RACT proposal to NYSDEC for approval. 6 NYCRR 227-2.4(e)(3). The State's approved RACT plan would be submitted to EPA for approval as a SIP revision in accordance with section 227-2.3(c).
• New York removed the presumptive emission limit exemption for peaking combustion turbines that operate less than 500 hours during the non-ozone season. These sources must now comply annually with the control requirements at section 227-2.4(e).
• Small combustion turbines and small stationary internal combustion engines are now required to comply with the section 227-2.4(d) requirement to conduct an annual tune-up. New York defines the terms “Small combustion turbine” and “Small stationary internal combustion engine” at sections 227-2.2(b)(9) and (10), respectively, and these new definitions are acceptable to EPA.
EPA believes that the new presumptive emission limits and other control requirements will result in additional NO
There are two revisions to Part 227-2 that will allow subject sources increased flexibility in achieving compliance—one allows different owners to engage in a systems averaging plan and the second allows a permanent shutdown by a date certain as a compliance option.
New York revised the definition of “system” at section 227-2.2(b)(12), as used in the term “system averaging plan” in subpart 227-2.5(b), to read as “a combination of operating emission sources that are located within the same ozone nonattainment area. A system may consist of multiple emission sources at multiple facilities having different owners and/or operators.” New York verbally confirmed to EPA that the detailed procedures for determining compliance with the averaging plan are included in title V permits of those facilities that choose to make use of this option. In addition, New York's system averaging plan requires that “every owner or operator of an emission source participating in the system averaging plan is liable for any and all violations of the provisions of this Subpart [i.e., subpart 227-2] by any owner or operator of any emission source participating in the system averaging plan.” 6 NYCRR 227-2.5(b)(4). New York's averaging provision, 227-2.5(b)(2) further restricts the plan by only allowing averaging of facilities within the “severe ozone nonattainment area” but not with facilities inside and outside the nonattainment area. Although EPA has not classified any 8-hour ozone nonattainment areas in New York as severe, New York retained the term “severe ozone nonattainment area” to
New York provides owners/operators with a new compliance option at section 227-2.5(d) that allows them to comply with the State's NO
New York's revised system averaging plan is acceptable to EPA as it is enforceable through federally enforceable title V permits and it reflects current situations where there could be multiple ownership of a particular facility.
EPA evaluated the provisions of Part 227-2 for consistency with the Act, EPA regulations, and EPA policy and proposes to approve them.
New York also made administrative changes to Part 200, “General Provisions” which reflect implementation of the Part 212, 220 and 227-2 provisions. The Part 200 revisions also reflect implementation of provisions for three previously approved New York regulations, Part 228, “Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers,” Part 234, “Graphic Arts,” and Part 241, “Asphalt Pavement and Asphalt Based Surface Coating,” (see 77 FR 13974). Specifically, New York made amendments to section 200.1, “Definitions.” The section 200.1 amendments add the definitions for the terms boiler, combined cycle combustion turbine, combustion turbine, continuous emissions monitoring system (CEMS) certification protocol, continuous emissions monitoring system plan, emergency power generating stationary internal combustion engine, simple cycle combustion turbine, and very large boiler. These definitions are being included under section 200.1 for consistency due to their use in multiple regulations.
The revisions to Part 200 will also add new references in section 200.9, “Referenced Material,” Table 1. The revisions to Table 1 include all documents referenced in the proposed amendments to Parts 212, 220, 227-2 and previously approved Parts 228, 234 and 241. It is important to note that EPA is proposing to approve only those revisions made to Part 200, specifically sections 200.1 and 200.9, as effective January 1, 2011.
EPA has evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA proposes that the revisions made to 6 NYCRR Part 200, “General Provisions,” Part 212, “General Process Emission Sources,” Part 220, “Portland Cement Plants and Glass Plants,” and Part 227-2, “Reasonably Available Control Technology (RACT) For Major Facilities of Oxides of Nitrogen (NO
EPA is proposing a conditional approval of New York's proposed revisions to 6 NYCRR Part 220 based on New York's February 28, 2013 letter, committing to submit the applicable NO
Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to adopt the identified source specific SIP revisions. If the State fails to do so, this action will become a disapproval upon the State's failure to meet its commitment. EPA will notify the State by letter that this action has occurred. If the conditional approval converts to a disapproval, the commitment will no longer be a part of the approved New York SIP. Upon notification to the State that the conditional approval has converted to a disapproval, EPA will publish a notice in the
For didactical purposes, EPA provides the following discussion regarding the consequences of a final conditional approval converting to a disapproval. EPA does not expect this situation to occur.
The Act provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if states fail to correct any deficiencies identified by EPA in a final disapproval action within certain timeframes.
As mentioned above, if New York does not submit the applicable NO
In addition to sanctions, if EPA finds that a state failed to submit the required SIP revision or if EPA disapproves the required SIP revision, or a portion thereof, EPA must promulgate a FIP no later than 2 years from the date of the finding if the deficiency has not been corrected.
Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) because application of those requirements would be inconsistent with the 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 proposed action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Oxides of Nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would revise the exception to the physician self-referral prohibition for certain arrangements involving the donation of electronic health records items and services. Specifically, it would extend the sunset date of the exception, remove the electronic prescribing capability requirement, and update the provision under which electronic health records technology is deemed interoperable. In addition, we are requesting public comment on other changes we are considering.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on June 10, 2013.
In commenting, please refer to file code CMS-1454-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Michael Zleit, (410) 786-2050.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
Comments received by CMS will be shared with the HHS Office of Inspector General.
Section 1877 of the Social Security Act (the Act), codified at 42 U.S.C. 1395nn, also known as the physician self-referral statute: (1) prohibits a physician from making referrals for certain designated health services (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership interest or compensation arrangement), unless an exception applies; and (2) prohibits the entity from submitting claims to Medicare for those referred services, unless an exception applies. The statute establishes a number of exceptions and grants the Secretary the authority to create additional regulatory exceptions for financial relationships that do not pose a risk of program or patient abuse. Since the original enactment of the statute in 1989, we have published a series of final rules interpreting the statute and promulgating numerous exceptions.
In accordance with this authority, we published an exception to protect certain arrangements involving the provision of interoperable electronic health records software or information technology and training services. The final rule for this exception was published on August 8, 2006 (71 FR 45140) (hereinafter referred to as the August 2006 final rule) and is scheduled to sunset on December 31, 2013 (See 42 CFR 411.357(w)(13)). The purpose of this proposed rule is to update certain aspects of the electronic health records exception and to extend the sunset date.
This proposed rule would amend the current exception in at least three ways. First, the proposed rule would update the provision under which electronic health records software is deemed interoperable. Second, we propose to remove the requirement related to electronic prescribing capability from the exception. Third, we propose to extend the sunset date of the exception. In addition to these proposals, we are soliciting public comment on other possible amendments to the exception, including limiting the scope of protected donors, and adding or modifying conditions to limit the risk of data and referral lock-in.
The proposed rule would modify an already-existing exception to the physician self-referral statute. This exception permits certain entities to provide technology-related items and services to certain parties to be used to create, maintain, transmit, or receive electronic health records. The proposed modifications to the exception do not impose new requirements on any party. This is not a major rule, as defined at 5 U.S.C. 804(2). It is also not economically significant, because it would not have a significant effect on program expenditures, and there are no additional substantive costs to implement the resulting provisions. The proposed rule would update the provision under which electronic health records software is deemed interoperable, and remove the requirement related to electronic prescribing capability, and extend the exception's expiration date (currently set at December 31, 2013). We expect these proposed changes to continue to facilitate the adoption of electronic health records technology.
Section 1877 of the Social Security Act (the Act), 42 U.S.C. 1395nn, also known as the physician self-referral law: (1) prohibits a physician from making referrals for certain designated health services (DHS) payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership interest or compensation arrangement), unless an exception applies; and (2) prohibits the entity from submitting claims to Medicare for those referred services, unless an exception applies. The statute at 42 U.SC. 1395nn(b)(4), establishes a number of exceptions and grants the Secretary of the Department of Health and Human Services (the Secretary) (HHS) the authority to create additional regulatory exceptions for financial relationships that do not pose a risk of program or patient abuse. Since the original enactment of the statute in 1989, we have published a series of final rules interpreting the statute and promulgating numerous exceptions.
In the October 11, 2005
On August 8, 2006 (71 FR 45140), we published a final rule that, among other things, finalized an exception at 42 CFR 411.357(w)
This proposed rule sets forth certain proposed changes to the electronic health records exception to the physician self-referral law. The OIG is proposing almost identical changes to the anti-kickback statute electronic health records safe harbor
Our current electronic health records exception to the physician self-referral law specifies at § 411.357(w)(2) that the donated software must be interoperable at the time it is provided to the physician. As discussed in the March 7, 2013 (78 FR 14795) request for information (RFI), “HHS envisions an information rich, person-centered, high performance health care system where every health care provider has access to longitudinal data on patients they treat to make evidence-based decisions, coordinate care and improve health outcomes.” Additionally, as emphasized in this RFI, interoperability will play a critical role in supporting this vision. Interoperability is also an important concept in the context of the electronic health records exception. Although we have long been concerned that parties could use the donation of technology to capture referrals, we have viewed interoperability as a potential mitigating factor, or safeguard, to justify other exception conditions that are less stringent than might otherwise be appropriate in the absence of interoperability. This is because if the donated technology is interoperable, the recipient will be able to use it to transmit electronic health records not only to the donor, but to others, including competitors of the donor, and will not be “locked in” to communications with the donor only.
First, we propose to modify § 411.357(w)(2) to reflect that ONC is responsible for “recognizing” certifying bodies, as referenced in this provision.
Second, we propose to modify the portion of this provision concerning the time period within which the software must have been certified. Currently, the electronic health records exception deeming provision requires that software must have been certified within no more than 12 months prior to the date of donation in order to ensure that products have an up-to-date certification. Subsequent to issuing the final electronic health records exception, ONC developed a regulatory process for adopting certification criteria and standards. That process is anticipated to occur on a 2-year regulatory interval. (For more information, see ONC's September 4, 2012 final rule titled “Health Information Technology: Standards, Implementation Specifications, and Certification Criteria for Electronic Health Record Technology”, 2014 Edition; Revisions to the Permanent Certification Program for Health Information Technology (77 FR 54163).) Further, some certification criteria could remain unchanged from one edition of electronic health record certification criteria to the next. Thus, the current 12-month timeframe is not in line with the anticipated 2-year regulatory interval and does not account for the fact that some certification criteria may not change from one edition to the next. Therefore, we propose to modify this portion of the exception by removing the 12-month timeframe and substituting a provision that more closely tracks the current ONC certification program. Accordingly, we propose that software would be eligible for deeming if, on the date it is provided to the recipient, it has been certified to any edition of the electronic health record certification criteria that is identified in the then applicable definition of Certified EHR Technology in 45 CFR part 170. For example, for 2013, the applicable definition of Certified EHR Technology identifies both the 2011 and 2014 editions of the electronic health record certification criteria and the 2014 edition. Therefore, in 2013, software certified to meet either the 2011 edition or the 2014 edition could satisfy the exception provision as we propose to modify it. The current definition of Certified EHR Technology applicable for 2014, however, identifies only the 2014 edition. Thus, based on that definition, in 2014, only software certified to the 2014 edition could satisfy our proposed, modified provision. Future modifications to the definition of Certified EHR Technology could result in the identification of other editions to which software could be certified and satisfy our proposed, modified provision. As we stated in the 2006 final rule (71 FR 45156), we understand “that the ability of software to be interoperable is evolving as technology develops. In assessing whether software is interoperable, we believe the appropriate inquiry is whether the software is as interoperable as feasible given the prevailing state of technology at the time the items or services are provided to the physician recipient.” We believe our proposed change is consistent with that understanding and our objective of ensuring that products are certified to the current standard of interoperability when they are donated. We seek
Our current electronic health records exception at § 411.357(w)(11) specifies that the donated software must “contain [* * *] electronic prescribing capability, either through an electronic prescribing component or the ability to interface with the physician's existing electronic prescribing system that meets the applicable standards under Medicare Part D at the time the items and services are provided.” In the preamble to the August 2006 final rule (71 FR 45153), we stated that we included “this requirement, in part, because of the critical importance of electronic prescribing in producing the overall benefits of health information technology, as evidenced by section 101 of the [Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Public Law 108-173].” We also noted at (71 FR 45153), it was “our understanding that most electronic health records systems already include an electronic prescribing component.”
We continue to believe in the critical importance of electronic prescribing. However, in light of developments since the August 2006 final rule, we do not believe that it is necessary to retain a requirement related to electronic prescribing capability in the electronic health records exception. First, Congress subsequently enacted legislation addressing electronic prescribing. In 2008, Congress passed the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), Pub. L. 110-275. Section 132 of MIPPA authorized an electronic prescribing incentive program (starting in 2009) for certain types of eligible professionals. Further, in 2009, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111-5. The HITECH Act at 42 U.S.C. 1395w-4(o), 1395ww(n), 1395f(l)(3), and 1396b(t) authorizes us to establish Medicare and Medicaid electronic health record incentive programs for certain eligible professionals, eligible hospitals, and critical access hospitals. The HITECH Act requires that eligible professionals under the Medicare and Medicaid electronic health record incentive programs demonstrate meaningful use of certified electronic health record technology, including the use of electronic prescribing. Second, the industry has made great progress related to electronic prescribing. Recent analysis by ONC notes an increase in the percentage of physicians electronic prescribing via electronic health record technology from 7 percent in 2008 to 48 percent in 2012, reflecting rapid increases over the past few years in the rate of electronic health record-based electronic prescribing capabilities.
In light of these developments, we propose to delete the electronic prescribing condition at § 411.357(w)(11).
We believe that there are sufficient alternative policy drivers supporting the adoption of electronic prescribing capabilities. We also note that electronic prescribing technology would remain eligible for donation under the electronic health records exception or under the electronic prescribing exception at 42 CFR 411.357(v). We note that, unlike other provisions in the exception, the electronic prescribing condition was not imposed to satisfy the statutory requirement that regulatory exceptions promulgated under section 1877(b)(4) of the Act pose no risk of program or patient abuse. Rather, the condition was imposed to further the policy of encouraging donations that would produce the overall benefits of health information technology. Accordingly, we do not believe that removing the electronic prescribing condition would pose a risk of program or patient abuse for donations made under this exception.
The electronic health records exception is scheduled to sunset on December 31, 2013. In adopting this condition of the electronic health records exception, we acknowledged “that the need for donations of electronic health records technology should diminish substantially over time as the use of such technology becomes a standard and expected part of medical practice.” Some have suggested that we extend the sunset date or even remove the sunset provision entirely.
In recent years, electronic health record technology adoption has risen dramatically, largely as a result of the HITECH Act in 2009. For example, see, Farzad Mostashari, M.D., ScM., National Coordinator, ONC, U.S. Department of Health and Human Services, Testimony before the Subcommittee on Technology and Innovation Committee on Science and Technology, available at
As we stated in the preamble to the August 2006 final rule (71 FR 45156) for the electronic health records exception, “[w]e [originally] proposed to limit the scope of protected donors under the electronic health records exception to hospitals, group practices, [prescription drug plan (PDP)] sponsors, and [Medicare Advantage (MA)] organizations, consistent with the MMA-mandated donors for the electronic prescribing exception.” In the August 2006 final rule (71 FR 45156), we indicated that we selected these donors because they have a “direct and primary patient care relationship and a central role in the health care delivery infrastructure that would justify protection under the exception for the provision of electronic health records technology that would not be appropriate for other types of providers and suppliers, including providers and suppliers of ancillary services.” However, in the August 2006 final rule (71 FR 45157), we expanded the exception to permit donations by any DHS entity, stating that such an expansion “will expedite adoption of electronic records,” which was an important public policy goal. We also stated (71 FR 45157) that, “the requirements that donated software be interoperable and that physicians contribute 15 percent to the cost of the donated technology, and the limited duration of the exception * * *, if met, [would] provide adequate protection against program and patient abuse.”
Notwithstanding this conclusion, we have concerns about the potential for abuse of the exception by other types of providers and suppliers (including providers and suppliers of ancillary services who do not have a direct and primary patient care relationship and a central role in the health care delivery infrastructure). The OIG also indicated that it has concerns related to the potential for laboratories and other ancillary service providers to abuse its safe harbor. The OIG has received comments suggesting that abusive donations are being made under the electronic health records safe harbor. For example, some of the responses OIG received to its annual solicitation of safe harbors and special fraud alerts (see the December 28, 2012
Therefore, we propose to limit the scope of protected donors under the electronic health records exception, with the continued goal of promoting adoption of interoperable electronic health record technology that benefits patient care while reducing the likelihood that donors would misuse electronic health record technology donations to secure referrals. In this regard, we are considering revising the exception to cover only the original MMA-mandated donors: hospitals, group practices, PDP sponsors, and MA organizations. We are considering, and seek comments regarding, whether other individuals or entities with front-line patient care responsibilities across health care settings, such as safety net providers, should be included, and, if so, which ones. Alternatively, we are considering retaining the current definition of protected donors, but excluding specific types of donors. We are considering excluding suppliers of ancillary services associated with a high risk of fraud and abuse, because the donations by such suppliers may be more likely to be motivated by a purpose of securing future business than by a purpose of better coordinating care for beneficiaries across health care settings. In particular, we are considering excluding laboratory companies from the scope of permissible donors as their donations have been the subject of complaints. We are also considering excluding other high risk categories as well, such as durable medical equipment (DME) suppliers and independent home health agencies. We seek comment on the alternatives under consideration, including comments, with supporting reasons, regarding particular types of providers and suppliers that should or should not be protected donors given the goals of the exception.
In the preceding section, we propose to limit the scope of permissible donors as a means to prevent donations that subvert the intent of the exception—because they are used to lock in referrals—from receiving protection under the exception. We are also considering inclusion of new or modified conditions in the exception as an alternative or additional means of achieving that result. We are particularly interested in new or modified conditions that would help achieve two related goals. The first goal is to prevent the misuse of the exception in a way that results in data and referral lock-in. The second, related goal is to encourage the free exchange of data (in accordance with protections for privacy). These goals reflect our interest, which we discussed previously, in promoting the adoption of interoperable electronic health record technology that benefits patient care while reducing the likelihood that donors would misuse electronic health record technology donations to secure referrals. The August 2006 final rule requires donated software to be interoperable at the time it is donated to the physician. The software is deemed interoperable if it is certified as described previously. However, it has been suggested that even when donated software meets the interoperability requirements of the rule, policies and practices sometimes affect the true ability of electronic health record technology items and services to be used to exchange information across organizational and vendor boundaries.
We received questions concerning whether certain items or services, for example services that enable the interoperable exchange of electronic
The provisions in this proposed rule would not impose any new or revised information collection, recordkeeping, or disclosure requirements. Consequently, this rule does not need additional Office of Management and Budget review under the authority of the Paperwork Reduction Act of 1995.
Because of the large number of public comments we normally receive on
We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We believe this proposed rule does not reach the economic threshold for being considered economically significant, and thus, is not considered a major rule. We solicit comment on the assumptions and findings presented in this initial regulatory impact analysis.
The proposed rule would extend the exception's expiration date (currently set at December 31, 2013), update the provision under which electronic health records software is deemed interoperable, and remove the requirement related to electronic prescribing capability. Neither this proposed rule nor the regulations it amends requires any entity to donate electronic health record technology to physicians, but we expect these proposed changes to continue to facilitate the adoption of electronic health record technology by filling a gap rather than creating the primary means by which physicians would adopt this technology.
The summation of the economic impact analysis regarding the effects of electronic health records in the ambulatory setting, that is presented in the August 2006 final rule (71 FR 45164) still pertains to this proposed rule. However, since the August 2006 final rule, several developments have occurred to make us conclude that it is no longer necessary to retain a requirement related to electronic prescribing capability in the electronic health records exception. These developments include: (1) in 2008, Congress passed the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), Pub. L. 110-275; (2) in 2009, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111-5; and (3) an increase over the past few years in the rate of electronic health record-based electronic prescribing capabilities.
As discussed in more detail earlier in the preamble, section 132 of MIPPA authorized an electronic prescribing incentive program (starting in 2009) for certain types of eligible professionals. The HITECH Act authorizes us to establish Medicare and Medicaid electronic health record incentive programs for certain eligible professionals, eligible hospitals, and critical access hospitals. Also, the HITECH Act requires that eligible professionals under the Medicare and Medicaid electronic health record incentive programs demonstrate meaningful use of certified electronic health record technology, including the use of electronic prescribing. Specifically, the final rule of the Stage 2 meaningful use (September 4, 2012; 77 FR 53968) includes more demanding requirements for electronic prescribing and identifies electronic prescribing as a required core measure. As a result, beginning in calendar year (CY) 2015 an eligible professional risks a reduction in the Medicare Physician Fee schedule amount that will otherwise apply for covered professional services if they are not a meaningful EHR user for an EHR reporting period during that year. Our intent remains to allow physicians not to receive products or services they already own, but rather to receive electronic health record technology that advances their adoption and meaningful use. Lastly, according to ONC, electronic prescribing by physicians using electronic health record technology has increased from 7 percent in December 2008 to approximately 48 percent in June 2012.
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7.0 million to $34.5 million in any 1 year. Individuals and States are not included in the definition of a small entity. The Secretary has determined that this proposed rule would not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. The Secretary has determined, that this proposed rule would not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2013, that threshold is approximately $141 million. This proposed rule would have no consequential effect on State, local, or tribal governments or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of Executive Order 13132 are not applicable.
In accordance with the provisions of Executive Order 12866, this rule was reviewed by the Office of Management and Budget.
Kidney diseases, Medicare, Physician Referral, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR part 411 as set forth below:
Secs. 1102, 1860D-1 through 1860D-42, 1871, and 1877 of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-152, 1395hh, and 1395nn).
The revision reads as follows:
(w) * * *
(2) The software is interoperable (as defined in § 411.351) at the time it is provided to the physician. For purposes of this paragraph (w), software is deemed to be interoperable if a certifying body authorized by the National Coordinator for Health Information Technology has certified the software to any edition of electronic health record certification criteria identified in the then-applicable definition of Certified EHR Technology in 45 CFR part 170, on the date it is provided to the physician.
Office of Inspector General (OIG), HHS.
Proposed rule.
In this proposed rule, the Office of Inspector General (OIG) proposes to amend the safe harbor regulation concerning electronic health records items and services, which defines certain conduct that is protected from liability under the Federal anti-kickback statute in the Social Security Act (the Act). The proposed amendments include an update to the provision under which electronic health records software is deemed interoperable; removal of the electronic prescribing capability requirement; and extension of the sunset provision. In addition, OIG is requesting public comment on other changes it is considering.
To assure consideration, comments must be delivered to the address provided below by no later than 5 p.m. Eastern Standard Time on June 10, 2013.
In commenting, please reference file code OIG-404-P. Because of staff and resource limitations, we cannot accept comments by facsimile (fax) transmission. However, you may submit comments using one of three ways (no duplicates, please):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
James A. Cannatti III or Heather L. Westphal, Office of Counsel to the Inspector General, (202) 619-0335.
Pursuant to section 14 of the Medicare and Medicaid Patient and Program Protection Act of 1987 and its legislative history, Congress required the Secretary of Health and Human Services (the Secretary) to promulgate regulations setting forth various “safe harbors” to the anti-kickback statute, which would be evolving rules that would be periodically updated to reflect changing business practices and technologies in the health care industry. In accordance with this authority, OIG published a safe harbor to protect certain arrangements involving the provision of interoperable electronic health records software or information technology and training services. The final rule for this safe harbor was published on August 8, 2006 (71 FR 45110) and is scheduled to sunset on December 31, 2013 (42 CFR 1001.952(y)(13)). The purpose of this proposed rule is to update certain aspects of the electronic health records safe harbor and to extend the sunset date.
This proposed rule would amend the current safe harbor in at least three ways. First, the proposed rule would update the provision under which electronic health records software is deemed interoperable. Second, we propose to remove the requirement related to electronic prescribing capability from the safe harbor. Third, we propose to extend the sunset date of the safe harbor. In addition to these proposals, we are soliciting public comment on other possible amendments to the safe harbor, including limiting the scope of protected donors and adding or modifying conditions to limit the risk of data and referral lock-in.
The proposed rule would modify an already-existing safe harbor to the anti-kickback statute. This safe harbor permits certain entities to provide technology-related items and services to certain parties to be used to create, maintain, transmit, or receive electronic health records. Parties may voluntarily seek to comply with safe harbors so that they have assurance that their conduct will not subject them to any enforcement actions under the anti-kickback statute, but safe harbors do not impose new requirements on any party.
This is not a major rule, as defined at 5 U.S.C. 804(2). It is also not economically significant, because it will not have a significant effect on program expenditures, and there are no additional substantive costs to implement the resulting provisions. The proposed rule would update the provision under which electronic health records software is deemed interoperable, remove the requirement related to electronic prescribing capability, and extend the safe harbor's sunset date (currently set at December 31, 2013). We expect these proposed changes to continue to facilitate the adoption of electronic health records technology.
Section 1128B(b) of the Social Security Act (the Act) (42 U.S.C. 1320a-7b(b), the anti-kickback statute) provides criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration in order to induce or reward the referral of business reimbursable under any of the Federal health care programs, as defined in section 1128B(f) of the Act. The offense is classified as a felony and is punishable by fines of up to $25,000 and imprisonment for up to 5 years. Violations of the anti-kickback statute may also result in the imposition of civil monetary penalties (CMP) under section 1128A(a)(7) of the Act (42 U.S.C. 1320a-7a(a)(7)), program exclusion under section 1128(b)(7) of the Act (42 U.S.C. 1320a-7(b)(7)), and liability under the False Claims Act (31 U.S.C. 3729-33).
The types of remuneration covered specifically include, without limitation, kickbacks, bribes, and rebates, whether made directly or indirectly, overtly or covertly, in cash or in kind. In addition, prohibited conduct includes not only the payment of remuneration intended to induce or reward referrals of patients, but also the payment of remuneration intended to induce or reward the purchasing, leasing, or ordering of, or arranging for or recommending the purchasing, leasing, or ordering of, any good, facility, service, or item reimbursable by any Federal health care program.
Because of the broad reach of the statute, concern was expressed that some relatively innocuous commercial arrangements were covered by the statute and, therefore, potentially subject to criminal prosecution. In response, Congress enacted section 14 of the Medicare and Medicaid Patient and Program Protection Act of 1987, Public Law 100-93 (section 1128B(b)(3)(E) of the Act; 42 U.S.C. 1320a-7b(B)(3)(E)), which specifically required the development and promulgation of regulations, the so-called “safe harbor” provisions, that would specify various payment and business practices that would not be subject to sanctions under the anti-kickback statute, even though they may potentially be capable of inducing referrals of business under the Federal health care programs. Since July 29, 1991, we have published in the
Health care providers and others may voluntarily seek to comply with safe harbors so that they have the assurance that their business practices will not be subject to any enforcement action under the anti-kickback statute, the CMP provision for anti-kickback violations,
In the October 11, 2005
On August 8, 2006 (71 FR 45110), we published a final rule (the 2006 Final Rule) that, among other things, finalized a safe harbor
The present proposed rule sets forth certain proposed changes to the electronic health records safe harbor. CMS is proposing almost identical changes to the physician self-referral law electronic health records exception
Our current electronic health records safe harbor specifies at 42 CFR 1001.952(y)(2) that the donated software must be “interoperable at the time it is provided to the recipient.” As discussed in a recently issued Request for Information (RFI) from the Department, “HHS envisions an information rich, person-centered, high performance health care system where every health care provider has access to longitudinal data on patients they treat to make evidence-based decisions, coordinate care and improve health outcomes.” 78 FR 14793, 14795 (Mar. 7, 2013). Additionally, as emphasized in the RFI, interoperability will play a critical role in supporting this vision. Interoperability is also an important concept in the context of the electronic health records safe harbor. Although we have long been concerned that parties could use the offer or donation of technology to capture referrals, we have viewed interoperability as a potential mitigating factor, or safeguard, to justify other safe harbor conditions that are less stringent than might otherwise be appropriate in the absence of interoperability. This is because if the donated technology is interoperable, the recipient will be able to use it to transmit electronic health records not only to the donor, but to others, including competitors of the donor, and will not be “locked in” to communications with the donor only.
First, we propose to modify the provision to reflect that ONC is responsible for “recognizing” certifying bodies, as referenced in this provision.
Second, we propose to modify the portion of this provision concerning the time period within which the software must have been certified. Currently, the electronic health records safe harbor deeming provision requires that software must have been certified within no more than 12 months prior to the date of donation in order to ensure that products have an up-to-date certification. Subsequent to issuing the final electronic health records safe harbor, ONC developed a regulatory process for adopting certification criteria and standards. That process is anticipated to occur on a 2-year regulatory interval. (For more information,
Our current electronic health records safe harbor specifies at 42 CFR 1001.952(y)(10) that the donated software must “contain [ ] electronic prescribing capability, either through an electronic prescribing component or the ability to interface with the recipient's existing electronic prescribing system, that meets the applicable standards under Medicare Part D at the time the items and services are provided.” In the preamble to the 2006 Final Rule, we stated that we included “this requirement, in part, because of the critical importance of electronic prescribing in producing the overall benefits of health information technology, as evidenced by section 101 of the [Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), Pub. L. 108-173].” 71 FR 45110, 45125 (Aug. 8, 2006). As we noted, it was “our understanding that most electronic health records systems already include an electronic prescribing component.”
We continue to believe in the critical importance of electronic prescribing. However, in light of developments since the 2006 Final Rule, we do not believe that it is necessary to retain a requirement related to electronic prescribing capability in the electronic health records safe harbor. First, Congress subsequently enacted legislation addressing electronic prescribing. In 2008, Congress passed the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), Pub. L. 110-275. Section 132 of MIPPA authorized an electronic prescribing incentive program (starting in 2009) for certain types of eligible professionals. Further, in 2009, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111-5. The HITECH Act authorizes CMS to establish Medicare and Medicaid electronic health record incentive programs for certain eligible professionals, eligible hospitals, and critical access hospitals. 42 U.S.C. 1395w-4(o), 1395ww(n), 1395f(l)(3), and 1396b(t). The HITECH Act requires that eligible professionals under the Medicare and Medicaid electronic health record incentive programs demonstrate meaningful use of certified electronic health record technology, including the use of electronic prescribing. 42 U.S.C. 1395w-4(o)(2)(A)(i). Second, the industry has made great progress related to electronic prescribing. Recent analysis by ONC notes an increase in the percentage of physicians electronically prescribing via electronic health record technology from 7 percent in 2008 to 48 percent in 2012, reflecting rapid increases over the past few years in the rate of electronic health record-based electronic prescribing capabilities.
In light of these developments, we propose to delete the electronic prescribing condition at 42 CFR 1001.952(y)(10). We believe that there are sufficient alternative policy drivers supporting the adoption of electronic prescribing capabilities. We also note that electronic prescribing technology would remain eligible for donation under the electronic health records safe harbor or under the electronic prescribing safe harbor at 42 CFR 1001.952(x). Additionally, we considered whether removing this condition would increase the risk of fraud or abuse posed by donations made under the safe harbor; we do not believe that it would.
The electronic health records safe harbor is scheduled to sunset on December 31, 2013. In adopting this condition of the electronic health records safe harbor, we acknowledged “that the need for a safe harbor for donations of electronic health records technology should diminish substantially over time as the use of such technology becomes a standard and expected part of medical practice.” 71 FR 45110, 45133 (Aug. 8, 2006). Some have suggested that we extend the sunset date or even remove the sunset provision entirely.
In recent years, electronic health record technology adoption has risen dramatically, largely as a result of the HITECH Act in 2009. For example, see Farzad Mostashari, M.D., ScM., National Coordinator, ONC, U.S. Department of Health and Human Services, Testimony before the Subcommittee on Technology and Innovation Committee on Science and Technology, available at
As we stated in the preamble to the 2006 Final Rule for the electronic health records safe harbor, “[w]e [originally] proposed to limit the scope of protected donors under § 1001.952(y) to hospitals, group practices, [prescription drug plan (PDP)] sponsors, and [Medicare Advantage (MA)] organizations, consistent with the MMA-mandated donors for the electronic prescribing safe harbor.” 71 FR 45110, 45127 (Aug. 8, 2006);
We have received comments suggesting that abusive donations are being made under the electronic health records safe harbor. For example, some responses to our annual solicitation of safe harbors and special fraud alerts allege that donors are using the safe harbor to provide referral sources with items and services that appear to support the interoperable exchange of information on their face, but, in practice, lead to data and referral lock-in.
In light of (1) these comments, (2) our continued concern about the potential for fraud and abuse by certain donors that we articulated in the 2006 Final Rule,
In the preceding section, we propose to limit the scope of permissible donors as a means to prevent donations that subvert the intent of the safe harbor—because they are used to lock in referrals—from receiving safe harbor protection. We are also considering inclusion of new or modified conditions in the safe harbor as an alternative or additional means of achieving that result. We are particularly interested in new or modified conditions that will help achieve two related goals. The first goal is to prevent the misuse of the safe harbor in a way that results in data and referral lock-in. The second, related goal is to encourage the free exchange of data (in accordance with protections for privacy). These goals reflect our interest, which we discussed above, in promoting the adoption of interoperable electronic health record technology that benefits patient care while reducing the likelihood that donors will misuse electronic health record technology
We received questions concerning whether certain items or services, for example services that enable the interoperable exchange of electronic health records data, fall within the scope of covered technology under the electronic health records safe harbor. The answer to such questions depends on the exact items or services that are being donated. In the 2006 Final Rule, we explained that we interpreted the term “ `software, information technology and training services necessary and used predominantly' for electronic health records purposes to include the following, by way of example: [i]nterface and translation software; rights, licenses, and intellectual property related to electronic health records software; connectivity services, including broadband and wireless Internet services; clinical support and information services related to patient care (but not separate research or marketing support services); maintenance services; secure messaging (
We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (Sept. 30, 1993); Executive Order 13563 on Improving Regulation and Regulatory Review (Jan. 18, 2011); the Regulatory Flexibility Act (RFA) (Sept. 19, 1980, Pub. L. 96-354, codified at 5 U.S.C. 601 et seq.); section 1102(b) of the Act; section 202 of the Unfunded Mandates Reform Act of 1995 (Mar. 22, 1995; Pub. L. 104-4); Executive Order 13132 on Federalism (August 4, 1999); and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We believe this proposed rule does not reach the economic threshold for being considered economically significant and thus is not considered a major rule. We solicit comment on the assumptions and findings presented in this initial regulatory impact analysis.
The proposed rule would update the provision under which electronic health records software is deemed interoperable, remove the requirement related to electronic prescribing capability, and extend the safe harbor's sunset date (currently set at December 31, 2013). Neither this proposed rule nor the regulation it amends requires any entity to donate electronic health record technology, but we expect these proposed changes to continue to facilitate the adoption of electronic health record technology by filling a gap rather than creating the primary means by which this technology will be adopted.
The summation of the economic impact analysis regarding the effects of electronic health records in the ambulatory setting that is presented in the 2006 Final Rule still pertains to this proposed regulation. 71 FR 45110 (Aug. 8, 2006). However, since the 2006 Final Rule, several developments have occurred to make us conclude that it is no longer necessary to retain a requirement related to electronic prescribing capability in the electronic health records safe harbor. These developments include: (1) In 2008, Congress passed the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA), Pub. L. 110-275; (2) in 2009, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111-5; and (3) an increase over the past few years in the rate of electronic health record-based electronic prescribing capabilities.
As discussed in more detail earlier in the preamble, section 132 of MIPPA authorized an electronic prescribing incentive program (starting in 2009) for certain types of eligible professionals. The HITECH Act authorizes CMS to establish Medicare and Medicaid electronic health record incentive programs for certain eligible professionals, eligible hospitals, and critical access hospitals. Also, the HITECH Act requires that eligible professionals under the Medicare and Medicaid electronic health record incentive programs demonstrate meaningful use of certified electronic health record technology, including the use of electronic prescribing. Specifically, the final regulation of the Stage 2 meaningful use (77 FR 53968 (Sept. 4, 2012)) includes more demanding requirements for electronic prescribing and identifies electronic prescribing as a required core measure. As a result, beginning in CY 2015 an eligible professional risks a reduction in the Medicare Physician Fee Schedule amount that will otherwise apply for covered professional services if they are not a meaningful EHR user for an EHR reporting period during that year. Our intent remains to allow potential recipients not to receive products or services they already own, but rather to receive electronic health record technology that advances its adoption and use. Lastly, according to ONC, electronic prescribing by physicians using electronic health record technology has increased from 7 percent
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7.0 million to $34.5 million in any 1 year. Individuals and States are not included in the definition of a small entity. The Secretary has determined that this proposed rule would not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. The Secretary has determined that this proposed rule would not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2013, that threshold is approximately $141 million. This rule will have no consequential effect on State, local, or tribal governments or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of Executive Order 13132 are not applicable.
In accordance with Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
Administrative practice and procedure, Fraud, Grant programs—Health, Health facilities, Health professions, Maternal and child health, Medicaid, Medicare, Social Security.
Accordingly, 42 CFR part 1001 is proposed to be amended as set forth below:
42 U.S.C. 1302, 1320a-7, 1320a-7b, 1395u(j), 1395u(k), 1395w-104(e)(6), 1395y(d), 1395y(e), 1395cc(b)(2)(D), (E) and (F), and 1395hh; and sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note).
The revisions read as follows:
The following payment practices shall not be treated as a criminal offense under section 1128B of the Act and shall not serve as the basis for an exclusion:
(y)
(2) The software is interoperable at the time it is provided to the recipient. For purposes of this subparagraph, software is deemed to be interoperable if a certifying body authorized by the National Coordinator for Health Information Technology has certified the software to any edition of the electronic health record certification criteria identified in the then-applicable definition of Certified EHR Technology in 45 CFR part 170, on the date it is provided to the recipient.
(13) The transfer of the items and services occurs, and all conditions in this paragraph (y) have been satisfied, on or before December 31, 2016.
Federal Communications Commission.
Proposed rule.
This document proposes to amend the Commission's rules governing the operation of Unlicensed National Information Infrastructure (U-NII) devices in the 5 GHz band. The Commission has gained much experience with U-NII devices since it first made spectrum available in the 5 GHz band for U-NII in 1997. The Commission believes that the time is now right to revisit the rules. The initiation of this proceeding satisfies the requirements of the “Middle Class Tax Relief and Job Creation Act of 2012” which requires the Commission to begin a proceeding to modify the rules to
Comments must be filed on or before May 28, 2013, and reply comments must be filed on or before June 24, 2013.
Aole Wilkins, Office of Engineering and Technology, (202) 418-2406, email:
You may submit comments, identified by ET Docket No. 13-49, by any of the following methods:
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This is a summary of the Commission's
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
▪ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
▪ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
▪ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
1. By the Notice of Proposed Rulemaking (NPRM), the Commission proposes to amend part 15 of its rules governing the operation of Unlicensed National Information Infrastructure (U-NII) devices in the 5 GHz band. U-NII devices are unlicensed intentional radiators that operate in the frequency bands 5.15-5.35 GHz and 5.47-5.825 GHz, and which use wideband digital modulation techniques to provide a wide array of high data rate mobile and fixed communications for individuals, businesses, and institutions. Since the Commission first made available spectrum in the 5 GHz band for U-NII in 1997, it has gained much experience with these devices. The Commission believes that the time is now right to revisit the part 15 rules, and, in the
2. The Commission also seeks comment on making available an additional 195 megahertz of spectrum in the 5.35-5.47 GHz and 5.85-5.925 GHz bands for U-NII use. This could increase the spectrum available to unlicensed devices in the 5 GHz band by approximately 35 percent and would represent a significant increase in the spectrum available for unlicensed devices across the overall radio spectrum. The initiation of this proceeding satisfies the requirements of section 6406 (a) of the “Middle Class Tax Relief and Job Creation Act of 2012” which requires the Commission to begin a proceeding to modify part 15 of title 47, Code of Federal Regulations, to allow unlicensed U-NII devices to operate in the 5350-5470 MHz band. The Commission believes that an increase in capacity gained from 195 megahertz of additional spectrum, combined with the ease of deployment and operational flexibility provided by its U-NII rules would continue to foster the development of new and innovative unlicensed devices, and increase wireless broadband access and investment.
3. Part 15 of the Commission's rules permits the operation of radio frequency devices without issuing individual licenses to operators of these devices. The Commission's part 15 rules are designed to ensure that there is a low probability that these devices will cause harmful interference to other users of the same or adjacent spectrum. Typically, unlicensed devices operate at very low power over relatively short distances, and often employ various techniques, such as dynamic spectrum access or listen-before-talk protocols, to reduce the interference risk to others as well as themselves. The primary operating condition for unlicensed devices is that the operator must accept whatever interference is received and must correct whatever interference it causes. Should harmful interference occur, the operator is required to
4. In 1997, the Commission made available 300 megahertz of spectrum at 5.15-5.25 GHz (referred to hereinafter as U-NII-1), 5.25-5.35 GHz (referred to hereinafter as U-NII-2A), and 5.725-5.825 GHz (referred to hereinafter as U-NII-3) for use by a new category of unlicensed equipment, called U-NII devices which are regulated under part 15, Subpart E of the Commission's rules. In 2003, the Commission made an additional 255 megahertz of spectrum available in the 5.47-5.725 GHz (referred to hereinafter as U-NII-2C) for U-NII devices. These actions align the frequency bands used by U-NII devices in the United States with the frequency bands used by U-NII devices in other parts of the world, thus decreasing development and manufacturing costs by allowing for the same products to be used in most parts of the world.
5. The U-NII-1 band is allocated on a primary basis to the Aeronautical Radionavigation Service for both Federal and non-Federal operations and on a primary basis for Fixed Satellite Service (Earth-to-space) for non-Federal operations. The U-NII-2A band is allocated on a primary basis to the Earth Exploration Satellite (active), Radiolocation, and Space Research (active) Services for Federal operation, and for non-Federal operation on a secondary basis.
6. The U-NII-2C band is allocated on a primary basis to the Radiolocation Service for Federal operation. The sub-band at 5.47-5.65 GHz band is allocated on a primary basis to the Radiolocation Service for non-Federal operation, and on a primary basis to the Maritime Radionavigation Service for both Federal and non-Federal operations. The 5.47-5.570 GHz band segment is allocated on a primary basis to the Earth Exploration-Satellite (active) and Space Research (active) Services for Federal operation and on the secondary basis for non-Federal operation. The 5.6-5.65 GHz band segment is allocated on a primary basis to the Meteorological Aids Service for both Federal and non-Federal operations. The band segment at 5.65-5.725 GHz is allocated on a secondary basis to the Amateur Radio Service for non-Federal operation.
7. The U-NII-3 band is allocated on a primary basis to the Radiolocation Service for Federal operation, and is allocated on a secondary basis to the Amateur Radio Service for non-Federal operation.
8. In early 2009, Federal Aviation Administration (FAA) reported interference to their Terminal Doppler Weather Radar (TDWR) that operates within the 5.60-5.65 GHz band. Early field studies performed by the National Telecommunications and Information Administration's (NTIA's) Institute for Telecommunications Sciences (ITS) and FAA staff indicated the interference sources were unlicensed U-NII devices that incorporated dynamic frequency selection (DFS), from different manufacturers, and operated in the same frequency band as these Federal radar systems.
9. The Commission brought together all of the principal parties including NTIA, FAA, industry participants and the FCC's Enforcement Bureau and Office of Engineering and Technology to analyze the interference situation. Based on these investigations, the Commission has taken actions to mitigate the interference situation, including issuing enforcement advisories to heighten users' awareness of TDWR interference issues, and the Office of Engineering and Technology has placed conditions on U-NII device certifications to curtail the interference risk. The Commission also has sent enforcement teams to work with FAA staff in the field, and has taken enforcement actions against operators of U-NII devices that caused interference to TDWR installations including issuing Letters of Inquiry and Notices of Apparent Liability for Forfeitures to operators found to be causing interference. Most of these interference cases were caused by devices not certified for operation in the U-NII-2C band, which includes the 5.6-5.65 GHz band used by the TDWRs. Instead, these devices had been certified for operation in the U-NII-3 band, either as U-NII devices under § 15.407 of the Commission's rules or as digitally modulated intentional radiators under § 15.247 of the Commission's rules, and which were operating at high power levels in elevated locations. The Commission's investigations found that most U-NII devices are manufactured to enable operation across a wide range of frequencies, extending down into the 4-GHz bands and up to almost 6 GHz. In many cases, the interference was caused by third parties modifying software configurations to enable operation in frequency bands other than those for which the device had been certified but without meeting the technical requirements for operation in those frequency bands. There was also an issue with devices that employed frame based architectures that allowed operators to reconfigure the talk/listen ratio of their devices.
10. In recent years, there has been an industry wide push to increase the amount of spectrum available for unlicensed use. In June 2010, the President issued an Executive Memorandum that encouraged the Commission to work closely with the Department of Commerce, through NTIA, to make available a total of 500 megahertz for commercial mobile and fixed wireless broadband use by the year 2020. The FCC's 2010 National Broadband Plan recommended that the Commission make available 500 megahertz of new spectrum for wireless broadband within 10 years. In analyzing the need for broadband spectrum, the Commission also concluded that nearly 300 megahertz of spectrum is needed by 2014, and that making available additional spectrum for mobile broadband would create value in excess of $100 billion through avoidance of unnecessary costs.
11. In addition, Congress has enacted legislation that addresses unlicensed use of the 5 GHz band. The Spectrum Act requires the Commission to begin a proceeding to modify part 15 title 47, Code of Federal Regulations (CFR), to allow unlicensed U-NII devices to operate in the 5.35-5.47 GHz band (referred to hereinafter as U-NII-2B) no later than 1 year after the date of the enactment of the Act if, in consultation with the Assistant Secretary of Commerce (i.e., the NTIA Administrator), it determines that licensees will be protected by technical solutions and that the primary mission of Federal spectrum users in the band will not be compromised by the introduction of unlicensed devices in this band.
12. The Spectrum Act also requires NTIA, in consultation with the Department of Defense and other impacted agencies, to conduct a study evaluating known and proposed spectrum sharing technologies and the risks to Federal users if unlicensed U-NII devices were allowed to operate in the U-NII-2B band as well as in the 5.85-5.925 GHz band (referred to hereinafter as U-NII-4). NTIA was required to publish a report on the U-NII-2B band no later than 8 months after the date of enactment of the Spectrum Act and a report on the 5.85-5.925 GHz band (referred to hereinafter as U-NII-4) no later than 18 months after the date of enactment of the Spectrum Act. NTIA published a report (hereinafter referred to as “NTIA 5 GHz Report”) on both the U-NII-2B and U-NII-4 bands on January 25, 2013.
13. In the NPRM, the Commission took the first steps towards ensuring the U-NII bands continue to meet the demand for broadband spectrum, while ensuring protection of authorized
14. The Commission also addresses ways to ensure compliance with its rules across all of the U-NII bands and, in particular, the U-NII-2A and U-NII-2C bands to curtail interference to incumbent Federal operations (e.g. TDWR installations). The Commission seeks comment on various ways to prevent unlawful modification and operation of unlicensed devices in the U-NII bands as well as compliance issues that are likely to arise as the Commission moves toward wider bandwidth systems operating across multiple U-NII bands. Although some of the methods discussed would ensure that manufacturers and users comply with the Commission's requirements across any of the U-NII band segments, the Commission also seeks comment on some techniques that may be useful mainly in curtailing interference to incumbent Federal operations, such as Terminal Doppler Weather radar (TDWR) installations, in the U-NII-2A and U-NII-2C bands, such as geo-location and database registration, unwanted emissions limits, and guard band requirements. The Commission also seeks comment on several issues specific to the U-NII-2A and U-NII-2C bands regarding DFS functionality, the sensing threshold for co-channel operation, and revised DFS measurement procedures. The Commission asks that commenters address the benefits of adopting any of the proposals in the NPRM as well as the costs to do so, and that they weigh and compare the benefits and costs in each case. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
15. In the
16. The Commission believes that now is an appropriate time to review its rules to eliminate the disparity and decrease the complexity associated with interpreting its rules for digitally modulated devices operating in the U-NII-3 band under § 15.407 and in the 5.725-5.85 GHz band under § 15.247 The Commission believes the changes proposed will ensure compliance with requirements designed to protect authorized services in the U-NII bands, simplify the Commission's authorization procedures, and reduce certification cost for manufacturers of these devices. The spectrum ecosystem has changed considerably since the Commission allowed the certification of “digitally modulated” devices. For example, the standards for wireless broadband devices are now capable of producing data rates in excess of 1 Gbits/s. In addition, devices are now able to utilize advances in antenna technology that allow the multiple data streams to be transmitted over multiple antennas. This provides an opportunity for the Commission to reflect on recent industry developments and propose new rules that have the potential to increase consistency in the process of certifying 5 GHz wireless broadband devices, while continuing to protect authorized services.
17. The Commission is proposing two changes that will eliminate the disparity in its rules for 5.7 GHz digitally modulated devices. First, the Commission proposes to extend the upper edge of the U-NII-3 band from 5.825 GHz to 5.85 GHz to match the amount of spectrum available for digitally modulated devices under § 15.247. The Commission believes that this change would eliminate the complexity and costs associated with multiple rule part certifications for these devices which are technically similar. Adopting this proposal would not increase the potential for harmful interference because this 25 megahertz segment is already available for devices certified under § 15.247. The Commission seeks comment on the potential benefits of expanding the U-NII-3 band to include an additional 25 megahertz of spectrum at the upper band edge. The Commission invites comment on whether there are cost advantages of this proposal. The Commission asks that commenter's assessment of adopting the proposal weigh and compare the benefits and costs to do so. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
18. Second, the Commission proposes to consolidate all equipment authorizations for digitally modulated devices in the 5.725-5.85 GHz band under the U-NII rules, while maintaining many of the technical rules that currently make equipment authorization under § 15.247 more attractive for equipment manufacturers. The Commission also proposes to remove the 5.725-5.85 GHz band for digital modulation devices from § 15.247. By doing this, the Commission will ensure that all digitally modulated equipment, which is technically similar, operates under a single rule part using identical technical rules. The Commission proposes to modify § 15.407 for digitally modulated devices and it seeks comment on all of these proposed rule changes. The Commission invites comment on the benefits of adopting any of the proposed rule changes below as well as the costs to do so. The Commission asks that commenter's assessment of adopting the proposals weigh and compare the benefits and costs to do so. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
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26. The Commission adopted technical rules for the U-NII-1 band in 1997 that it believed would provide sufficient flexibility for the introduction of a variety of short-range communication devices within localized indoor settings. Although that vision was reasonable at the time, the Commission finds that today—over 15 years since those rules were adopted—the wireless device market has changed dramatically and the assumptions made in 1997 may not be valid for today's market. Unlicensed communication links are included in a wide variety of devices which are increasingly mobile or portable in nature, not easily limited to indoor locations, and often needing more power to link with other networks at farther locations.
27. At the same time, the Commission must protect incumbent authorized services, both Federal and non-Federal. A global network of satellite systems in non-geostationary satellite orbit (NGSO) in the mobile satellite service (MSS) operates feeder links in the U-NII-1 band. These NGSO/MSS feeder links require co-channel interference protection. The Commission also needs to consider the potential for interference to services in the bands immediately
28. The Commission seeks comment on whether the rules for the U-NII-1 band should be modified to harmonize with the rules for the U-NII-2A band in three areas. Specifically, the Commission seeks comment on whether it should increase the power limits to those applicable in the U-NII-2A band, i.e., 250 mW with a maximum EIRP of 30 dBm with 6 dBi antenna gain. The Commission also invites comment on whether the rules for the U-NII-1 band should be modified to increase the PSD limits to those applicable in the U-NII-2A band, i.e., 11 dBm/MHz. Finally, the Commission seeks comment on whether the rules for the U-NII-1 band should be modified to eliminate the restriction on outdoor operation, and, if the Commission were to do so, whether it should allow outdoor operation only under the current power and PSD limits for the band or under the limits now permitted only in the U-NII-2 bands. The Commission believes that these changes would permit a new generation of wireless devices to be developed in the U-NII bands, particularly if industry develops wider bandwidth devices that would operate across multiple U-NII band segments. Harmonizing the power and use conditions across the lower 200 megahertz of U-NII spectrum would likely permit the introduction of a wide-range of new broadband products capable of operating at higher data rates than is now possible. The Commission seeks comment on these assumptions, and on the potential impacts to incumbent services, including any suggestions for mitigating interference.
29. The Commission also seek comment on whether the rules for the U-NII-1 band should be modified to harmonize with the rules for the U-NII-3 band to: (a) increase the power limits to 1 W with a maximum EIRP of 36 dBm with 6 dBi antenna gain; (b) increase the PSD limits to 17 dBm; and (c) limit out-of-band emissions to an EIRP of −27 dBm/MHz and (d) eliminate the restriction on outdoor operation. The Commission believes that these changes would permit for wider bandwidth devices that would not rely on contiguous spectrum under new Wi-Fi standards, and would permit the introduction of more outdoor access points for broadband use. The Commission seeks comment on these assumptions, and on the potential impacts to incumbent services, including any suggestions for mitigating interference.
30. The Commission invites comment on the benefits of adopting either of these approaches as well as the costs of doing so. The Commission asks that commenter's assessment of adopting either approach weigh and compare the benefits and costs to do so. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
31. The Commission's Enforcement Bureau working cooperatively with the FAA has been successful in finding and resolving a large number of interference cases. In some cases, equipment that met the Commission's certification standards nonetheless caused interference, due to a variety of factors such as the configuration of the transmitter, its height and azimuth relative to the TDWR, and the device's failure to detect and avoid the radar signal. In many cases, however, the Commission staff found that the interfering devices were not certified or otherwise were not compliant with the Commission's rules. For example, the Commission found that devices that were certified as digital devices under § 15.247 for operation in the 5.725-5.850 GHz band had been unlawfully modified to transmit in the U-NII-2C band without demonstrating compliance with the DFS and TPC requirements for those bands. Typically, these modifications are made by operators of the devices, but manufacturers have produced equipment that is easily modified, especially through software changes, to permit devices to operate in non-compliant modes. The Enforcement Bureau is continuing to take action against companies for operating devices that cause interference to the TDWRs. The Commission notes that, while the TDWRs have been the focus of Commission investigations, DFS was designed to protect all incumbent radar operations and modification of devices as described poses a risk of interference to more than just TDWRs.
32. Interference studies conducted by NTIA and the FAA indicate that there may be some potential for interference from U-NII devices operating in frequencies occupied by or adjacent to radar systems. In its Third Technical Report regarding the interference into the TDWRs, NTIA explores frequency separations, distance separations, and maximum U-NII emissions limits needed to preclude harmful interference into the TDWR. The report analyzes the distances at which U-NII transmissions can be expected to routinely interfere with TDWR receivers. U-NII devices on rooftops, towers, and other high points that are 153 m to 305 m (500 to 1000 ft.) above ground level, as NTIA observed in San Juan, PR, will interfere with a TDWR mainbeam at distances within 25 km to 41 km (16 mi to 25 mi), respectively, of a TDWR station. The report also specifies frequency separations necessary to protect TDWR from interference due to unwanted emissions from U-NII devices.
33. As a result of its ongoing discussions with NTIA, FAA and industry representatives, as well as the results of investigations conducted by the Commission, NTIA and FAA, and, the Office of Engineering and Technology has provided applicants for certification a representative way for demonstrating that their U-NII devices should not cause harmful interference to TDWR installations operating in the U-NII-2C band and accordingly can be authorized for manufacture and use. Specifically, OET has advised applicants that it will approve such devices upon assurance by the applicant that: (a) U-NII devices may not operate co-frequency with TDWR operations at 5.6-5.65 GHz; (b) grantee will provide owners, operators and installers of these devices with instructions that a master or client device within 35 km of a TDWR location must be separated by at least 30 megahertz (center-to-center) from the TDWR operating frequency and procedures for registering the devices in an industry-sponsored database; (c) the device does not include configuration controls to change the frequency of operation to any frequency other than those specified in the grant of certification; and (d) the device's software configurations do not allow for ad hoc networking, country code selection, or other mode of operation that would disable the DFS functionality of the U-NII device.
34. The interference cases the Commission has seen to date raise serious concerns with ensuring compliance with the Commission's rules in the U-NII-2C band, but there are other circumstances that also make this an opportune time for the Commission to consider compliance issues across the 5 GHz U-NII bands. For example, unlicensed wireless broadband device manufactures are now designing devices employing wider bandwidths (e.g., IEEE 802.11ac standard currently in development) using transmitters that are capable of operating across two or more U-NII bands. When devices are designed to operate across multiple frequency
35. The Commission expects that more and more devices with even wider bandwidths will continue to be introduced in the 5 GHz band in the not too distant future as a result of new technical standards. The introduction of wider bandwidths under the IEEE 802.11ac standard presents complex issues for emissions testing to demonstrate compliance with the various requirements in the different U-NII bands. The Office of Engineering and Technology has published two guidance documents addressing these issues for testing of devices designed under this new standard as well as “pre-ac” devices, taking into account the current rules that permit authorization of digitally modulated devices under both §§ 15.407 and 15.247.
36. The Commission, NTIA, and the FAA have been working with manufacturers of U-NII devices and the WISPA to fully understand the causes of interference to TDWR systems and to identify ways to mitigate and significantly reduce the likelihood of interference. The Commission believes the rules proposed herein, in addition to continuing enforcement efforts, will enable us to achieve this goal while allowing U-NII devices to continue to operate successfully in the 5 GHz band.
37. Wireless networking devices that operate within the 5 GHz band typically have similar operational parameters, so that a device certified for operation in any one of the 5 GHz frequency bands, whether a U-NII band or not, can be easily tuned to another frequency band in the same spectrum range through software modifications. The Commission's experience with these devices shows that some of these devices are designed so that end-users can modify them to operate in bands for which they are not certified and thus do not meet the specific requirements intended to protect sensitive incumbent services. For example, in some recent interference cases investigated by the Commission's Enforcement Bureau, operators of devices certified under § 15.247 were tuned down into the U-NII-2C frequency band and operated with a higher gain antenna than what is permitted by the Commission's U-NII rules. The modification of devices in this manner resulted in both in-band and out-of-band emissions that were far in excess of what § 15.407 allows in the U-NII-2C band. Such unlawful modification and operation of these devices could considerably increase the distance at which these non-compliant devices cause harmful interference to incumbent services. The Commission believes that its proposals, discussed to authorize all digitally modulated devices under identical rules in a modified § 15.407 will allow the Commission to more effectively and efficiently address interference risk to incumbent operations in the U-NII-2C and U-NII-3 bands.
38. The Commission believes that it should consider additional steps to further reduce the likelihood of interference not only to TDWR systems but to all other incumbent services in the 5 GHz bands as more composite and wideband devices are introduced across the 5 GHz band. The Commission recognizes that one of the difficulties in ensuring compliance with its current rules comes from the fact that these devices can easily be re-configured by operators modifying the software that controls the device's operational parameters, such as frequency band. This makes it difficult for the Commission not only to ensure compliance with its rules but also to enforce those rules.
39. Because the current and future use of the 5 GHz bands is heavily reliant on the successful implementation of the Commission's technical rules, the Commission proposes to require that manufacturers implement security features in any digitally modulated device capable of operating in the U-NII bands, so that third parties are not able to reprogram the devices to operate outside the parameters for which the device was certified. The Commission proposes and seeks comment on adopting this safeguard regardless of whether or how it modifies § 15.247 or § 15.407. The Commission is particularly concerned that U-NII devices—which are not certified under the rules as software defined radios (SDRs) and thus may lack safeguards that are required for certified SDRs—may nevertheless be susceptible to manipulation by third parties who can modify the operating parameters of country code, frequency range, modulation type, maximum output power or the circumstances under which the transmitter has been approved. Specifically, the Commission seeks comment on whether it should require manufacturers to make it difficult for third parties to reprogram the embedded transmitter chip in certified devices. For example, should the Commission require that manufacturers ensure that modifying or reconfiguring firmware or software will make a device inoperable in certain bands? The Commission also seeks comment on whether it should require U-NII devices to transmit identifying information so that, in the event interference to authorized users occurs, the Commission can identify the source of interference and its location. What type of information should be transmitted and in what format?
40. Although the Commission believes that requiring manufacturers to secure the software in their radios to prevent modifications by third parties provides a clear public benefit in ensuring that these devices comply with the rules as more devices are introduced and the number of users increases, the Commission recognizes that this requirement will add some cost to these devices. The Commission seeks comment on the proposals discussed, particularly information on the costs to manufacturers for implementing them. The Commission invites comment on the benefits of adopting these proposals as well as the costs to do so. The Commission asks that commenter's assessment of adopting the proposals weigh and compare the benefits and costs to do so. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
41. The Commission believes that its proposals to modify the technical rules in the U-NII-3 band, along with its proposal to enhance the security requirements of all U-NII devices, would have prevented most of the interference cases that the Commission has observed to date. The Commission also notes, however, that the NTIA Third Technical Report and its own discussions with NTIA, FAA and industry representatives have identified additional techniques that could mitigate in-band and adjacent band interference to incumbents. These include using a database registration process combined with geo-location technology to determine whether there is any potential interference to radar systems such as the TDWR; limiting the unwanted emission levels of the U-NII devices; or increasing the sensing frequency range (e.g., detection bandwidth) of U-NII devices operating in the U-NII-2A and U-NII-2C bands. These other techniques, could supplement or replace the assurances (described in paragraph 45 of the NPRM) that OET has accepted from certification applicants on an ad-hoc basis as sufficient to address interference concerns that might otherwise warrant denial of equipment certification requests for U-NII devices in the U-NII-2C band. The Commission
42.
43. One way to implement frequency and distance separation requirements is to require geo-location and database registration. Because the TDWR locations are known and somewhat limited in number, implementation of geo-location and database registration might be very straightforward and easy to accomplish. With this interference avoidance method, the location of an unlicensed device could be determined by a professional installer or by using geo-location technology such as GPS incorporated within the device. Using either of these methods, a user could determine from either an internal or external database whether the unlicensed device is located far enough from the TDWR to avoid causing harmful interference; if not, it could transmit on a frequency farther away from the TDWR's center frequency. CSMAC, for example, recommends implementing a Dynamic Database approach to device authorization. On a going-forward basis, devices and systems sharing a band would be “connected” devices and a geo-location/database approach could enforce permission and terms-of-use updates on an automated basis. The concept of database-enabled cognitive radios can lend itself to many applications, including ultimately sharing spectrum with Federal users. As noted, a voluntary database has been implemented by WISPA, which disseminates the location of TDWR to WISPs and encourages operators that install devices within 35 km or the line-of-sight of a TDWR, to operate at least 30 megahertz away from the TDWR operation frequencies. WISPA has also agreed to voluntarily provide a database where WISPs can register the locations of the outdoor transmitters that they use. The Commission seeks comment on whether, given the limited number of TDWR locations, a geo-location/database approach could be effectively implemented and maintained for numerous U-NII devices that would operate in the 5.6-5.65 GHz band. How will this approach protect other incumbent operations?
44. The Commission recognizes that its rules already require radar avoidance via the DFS mechanism. The Commission further recognizes that requiring the implementation of a database for TDWR could increase the complexity of U-NII devices if the Commission were to require that they include a geo-location capability. Alternatively, the Commission could modify its rules to specifically require professional installation and permit manufacturers to pass on this cost to the user of the device. In addition, a database for registering TDWR locations and, perhaps, U-NII device users and locations as well would entail some cost to establish and maintain. The Commission seeks comment on what the cost would be to implement geo-location/database protection, what the requirements should be, and how to define “professional installation.” The Commission also seeks comment on whether requiring the implementation of both DFS and geo-location interference protection mechanisms would be overly burdensome for equipment manufacturers and whether it is necessary to require both. Are there alternative approaches that can be implemented to protect the incumbent radar systems? Because higher power outdoor devices (such as those used by Wireless Internet Service Providers) in the U-NII-2C band have a greater potential to cause harmful inference as compared to lower power consumer type devices, the Commission requests comment on whether a geo-location/database requirement should apply only to those devices or to lower power indoor U-NII devices as well.
45.
46. NTIA's report details the measurements and analysis that determine the power levels at which TDWR receivers experience interference from U-NII emissions at an interference-to-noise (I/N) ratio of −8 dB. In its report, NTIA finds that the maximum allowable co-channel interference power that can be received in the TDWR without exceeding the I/N level of −8 dB is shown to be −119 dBm/MHz at the antenna terminals. This equates, for example, to a mainbeam-to-mainbeam interference power density of 43 dBm/MHz between TDWR and U-NII transmitters at a distance of 8 km, or an interference power density of −22 dBm/MHz when the mainbeam of the U-NII device is in the TDWR sidelobe at a distance of 2 km. These power density thresholds are a function of separation distance between TDWR receivers and U-NII transmitters as well as the receive antenna gain of the TDWR in the direction of the U-NII transmitter.
47. The Commission's existing rules for the U-NII-2C band specify that the peak power spectral density shall not exceed 11 dBm in any 1 megahertz band. If transmitting antennas of directional gain greater than 6 dBi are used, both the maximum conducted output power and the peak power spectral density must be reduced by the amount in dB that the directional gain of the antenna exceeds 6 dBi. These rules implicitly allow a maximum EIRP of 17 dBm/MHz in the U-NII-2C band. Additionally, for devices operating within the U-NII-2C band, the Commission's rules specify that all emissions transmitted outside of the U-NII-2C band shall not exceed an EIRP of −27 dBm/MHz. The Commission recognizes, based on NTIA's report, that these two limits may not be sufficient to protect the TDWR from adjacent channel emissions from U-NII devices. Accordingly, the Commission seeks comment on whether requiring new unwanted emission limits for U-NII devices operating in the U-NII-2A and UNII-2C bands is appropriate and whether the Commission should modify its emission limits to reflect NTIA's findings.
48. If the Commission were to impose new limits on U-NII devices, as suggested, the Commission believes that different limits can be set for lower power indoor and higher power outdoor devices. For indoor devices, the Commission believes that setting an out-of-channel emissions limit of −27dBm/MHz maximum EIRP may be appropriate because building materials would likely further attenuate these emissions. When measured outside of the building, the emissions from an indoor device would likely drop to a level that would appear as no more than −41dbm/MHz. An out-of-channel emissions limit of −41 dBm/MHz for outdoor devices may be appropriate as well. The Commission seeks comment on modifying its rules to adopt these out-of-channel limits for indoor versus outdoor U-NII devices, including how the Commission should define the terms “indoor” and “outdoor”, and how different operating requirements for indoor versus outdoor operations can be accommodated through the Commission's equipment authorization and the Commission's enforcement procedures.
49. As an alternative, if the Commission determines that reductions in unwanted emissions are necessary, the Commission could allow outdoor devices to operate with an out-of-channel emissions limit of −27 dBm/MHz peak EIRP as long as the separation distance between the device and the TDWR is at least 53 km. Should the Commission impose this new out-of-channel limit based on the maximum power levels of the devices rather than whether a device is based indoor or outdoor? For instance, the Commission recognizes that lower power device devices provide short-range communications, such as those between computing devices within a very local area and therefore pose less of a potential risk to TDWR operations. Higher power devices, however, are intended to be used in an outdoor environment for longer-range communications. The Commission seeks comment on the assumptions made in its analysis.
50.
51. The DFS mechanism is designed to avoid co-channel interference to the TDWR by dynamically detecting radar signals and avoiding co-channel operation with those systems. The efficacy of the DFS mechanism is dependent upon the U-NII device's ability to detect and avoid a radar pulse within a region of its occupied bandwidth. Specifically, the current measurement procedures require that a U-NII device sense for radar across 80 percent of its occupied bandwidth. With respect to the remaining 20 percent, the Commission does not require sensing in a 10 percent region above or below the occupied bandwidth. The Commission recognizes that currently implementation of the sensing bandwidth will ensure co-channel interference protection only when the radar signal falls within 80 percent of the U-NII device's occupied bandwidth. Therefore, it is possible for the U-NII device to transmit on the same frequency as the radar when the radar signal falls within the 20 percent of occupied bandwidth that does not require sensing. When the radar signal falls within the region of occupied bandwidth that does not require sensing, the U-NII device will continue to transmit. This could result in simultaneous and overlapping transmissions from the U-NII device and the TDWR, which would increase the potential for harmful interference.
52. In addition, NTIA's Third Technical Report suggests that adjacent channel interference is possible when the frequency separation between the radar and the U-NII device is less than a specified amount. For example, when a radar signal falls outside of the sensing bandwidth and occupied bandwidth, and is within 30 megahertz from the U-NII devices' fundamental frequency, the unwanted emissions from the U-NII devices could still cause harmful interference to the TDWR. If the Commission requires that U-NII devices sense for radar on the frequencies immediately adjacent to the occupied bandwidth, the Commission would ensure that the fundamental frequency is more than 30 megahertz away from the radar.
53. The Commission seeks comment on whether it should implement a rule requiring that U-NII devices sense for radar signals at or exceeding 100 percent of its occupied bandwidth, or whether the Commission should continue to reference this, as it does now, as part of the U-NII measurement procedures. The Commission believes that expanding the sensing bandwidth will prevent the co-channel operations between U-NII devices and radars receiver and thus will reduce the potential for harmful interference. The Commission also invites comment on the technical difficulty and cost of implementing this capability in U-NII devices.
54. DFS is an essential element allowing U-NII devices to share the U-NII-2A and U-NII-2C bands successfully with vital government and military radar systems. As the Commission has gained experience with these devices and the implementation of DFS in the field, it is proposing changes in three areas to improve the utility and reliability of this function, thus ensuring that incumbent services in these bands are protected from interference. These changes include lowering the permitted PSD for lower power devices that use the relaxed sensing threshold, and modifying the Bin-1 radar simulating waveform used in the measurement procedures. The Commission believes that these changes will reduce the potential for co-channel interference to the TDWR and other radar systems. The Commission is also proposing to remove the uniform channel loading requirement found in the U-NII measurement procedures.
55.
56. Recently, the Office of Engineering and Technology has had to clarify which types of U-NII devices are required to demonstrate compliance with the DFS requirement. The Commission knows that many U-NII devices operate in a master-client configuration, i.e., the master device controls the operational parameters of the client devices. Typically, DFS-enabled master devices would include both the radar sensing and DFS functions, but new configurations are being designed. For example, radios can operate in a network configuration with the sensing function distributed among various “client” devices. Also, some radios are designed so that they can communicate directly with each other, rather than through a control point, and thus they could function as either a “master” that initiates a network or as a “client” device within the network. The Commission proposes that any U-NII device that is subject to the DFS requirements in § 15.407 that is capable of initiating a network must have radar detection functionality and must be approved with that capability.
57. The Commission believes that responsible operation of U-NII devices in these bands is a joint responsibility of both manufacturers and users. The Commission seeks comment on these proposals regarding DFS functionality as well as information on costs to implement them. The Commission also invites comment on whether the DFS requirement has limited in any way the types of applications that have been or could be implemented in the U-NII-2A and U-NII-2C bands, particularly if wider bandwidth devices are deployed in this spectrum. The Commission invites comment on the benefits of adopting this proposal as well as the costs to do so. The Commission asks that commenters' assessments of adopting the proposal weigh and compare the benefits and costs to doing so. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
58.
(a) 62 dBm for lower power devices with a maximum EIRP less than 200 mW (23 dBm), and (b) −64 dBm for higher power devices with a maximum EIRP between 200 mW (23 dBm) and 1 W (30 dBm), averaged over 1 µs. The Commission also requires that the conducted peak power spectral density shall not exceed 11 dBm in any 1 megahertz band. If transmitting antennas of directional gain greater than 6 dBi are used, the Commission requires that both the maximum conducted output power and the power spectral density be reduced by the amount in dB that the directional gain of the antenna exceeds 6 dBi. Thus, the implicit limit on the EIRP spectral density is 17 dBm in any 1 megahertz band.
59. The lower power U-NII devices are permitted to use the relaxed sensing threshold because the range at which these devices can potentially cause interference is reduced and thus they are allowed to operate closer to the radar. In order to ensure that interference potential does not increase with the use of the relaxed sensing threshold, the Commission believes that applying a reduction in EIRP spectral density for devices that use the −62 dBm sensing threshold is appropriate. The Commission proposes that devices must operate with both an EIRP of less than 200 mW (23 dBm), and an EIRP spectral density of less than 10 dBm/MHz (10 mW/MHz), in order to use the relaxed sensing detection threshold of −62 dBm. Devices that do not meet the proposed EIRP and EIRP spectral density requirements must use the −64 dBm sensing threshold. The proposed changes will further enhance protection for radars from co-channel interference by reducing both the range and the in-band spectral density emissions of the U-NII device. The Commission seeks comment on this proposal, including the cost to manufacturers to implement it. The Commission notes that a reduction in the EIRP spectral density limit would be consistent with recent actions taken by European Telecommunications Standards Institute (ETSI). Specifically, ETSI chose to restrict a device's use of the relaxed sensing threshold by reducing both the EIRP and the EIRP spectral density by 7 dB to 23 dBm (200 mW) and 10 dBm/MHz (10 mW/MHz), respectively. The Commission invites comment on the benefits of adopting this proposal as well as the costs to do so. The Commission asks that commenter's assessment of adopting the proposal weigh and compare the benefits and costs to do so. This assessment should address which costs should be borne by U-NII device manufacturers, U-NII device operators or other third parties, as appropriate.
60.
61. The Commission's current rules and measurement procedures require that the DFS function provide a uniform spreading of loading over all available channels. The measurement procedure further explains this provision by stating that “Uniform Channel Spreading” is the spreading of U-NII devices operating over the DFS bands to avoid dense clusters of devices operating on the same channel. Some manufacturers comply with this requirement by using random channel selection, but the Commission believes that similar benefits could be obtained by manual selection of channels and may actually result in better spectrum usage at a given location. In particular, the Commission notes that enhanced spectrum use may be possible when devices use a very high bandwidth and the number of usable channels is small. The Commission also notes that the trend for U-NII devices is to operate with ever wider bandwidths. Operation over wider bandwidths causes U-NII energy to be spread throughout the frequency band in which the device is operating, rather than concentrated in a narrow bandwidth. This potentially makes the uniform channel spreading requirement unnecessary. The Commission proposes to remove the “Uniform Channel Spreading” requirement from the rules and measurement procedures. The Commission also proposes to permit either random channel selection or manual selection of the initial channel. For example, should the Commission permit a device to create a master list of available channels that it would use if they continue to be available? The Commission seeks comment on whether these changes will, in any way, negatively impact spectrum reuse or potentially increase interference to incumbent users. In addition, the Commission's measurement procedures require that system testing be performed with an MPEG test file that streams full motion video at 30 frames per second for channel loading. Experience certifying U-NII devices has indicated that not all U-NII devices are designed for video transmission or support the specific coding format, and so other methods of channel loading are used. The Commission seeks comment on whether specifying video streaming as the preferred channel loading method for compliance measurements is as appropriate today as it was when the measurement procedures were created, or whether the channel loading requirement in the Commission's test procedures should be specified in a more general manner so as only to specify that measurements be conducted with the device under test operating in a loaded condition. The Commission seeks comments on how it should specify alternate means of channel loading for measurement purposes. Additionally, the Commission seeks comment on the effects of wider U-NII device bandwidths on channel loading requirements.
62. The 5.35-5.47 GHz (U-NII-2B) and 5.85-5.925 GHz (U-NII-4) bands have great potential for fostering ongoing technological innovation, expanding broadband access, and encouraging competitive entry. The additional spectrum also would expand opportunities for innovative spectrum access models by creating new avenues for opportunistic and unlicensed use of spectrum and increasing research into new spectrum technologies. Creating ways to access spectrum under a variety of new models, including unlicensed uses, increases opportunity for entrepreneurs and other new market entrants to develop wireless innovations that may not have otherwise been possible under licensed spectrum models.
63. These bands currently are used for various Federal and non-Federal services, and the Spectrum Act requires that the Commission begin a proceeding to modify the part 15 rules to permit unlicensed devices in the U-NII-2B band if, in consultation with NTIA, it determines that licensed users will be protected by technical solutions and that the primary mission of Federal spectrum users will not be compromised by the introduction of unlicensed devices in these bands. Thus, the Commission's goal in this proceeding is to promote efficient use of radio spectrum through spectrum sharing. As part of this collaborative effort and as required by the Spectrum Act, NTIA has published a report, prepared in consultation with Department of Defense and other impacted Federal agencies, evaluating spectrum-sharing technologies and the risk to Federal users of unlicensed operations in the U-NII-2B and U-NII-4 bands.
64. The Commission explores the potential for future unlicensed operations in the 5 GHz band, incumbent operations in the U-NII-2B and U-NII-4 bands, and the technical requirements and sharing technologies and techniques that could be used to protect Federal and non-Federal incumbent operations. The Commission also invites comments on the NTIA 5 GHz Report itself, including its underlying assumptions and risk assessments.
65. The current U-NII bands are already being used for a variety of different commercial uses such as wireless internet services, cordless phone, scientific and medical applications, etc. In this proceeding, the Commission seeks comment on what types of uses could be deployed in the U-NII-2B and U-NII-4 bands, used either independently of the current U-NII bands or in conjunction with them. The Commission is interested in knowing how companies of different types might deploy U-NII devices, what types of services they might offer, and where they might deploy them. The Commission is particularly interested in gathering information on ongoing industry standards activity and international efforts to harmonize uses of the 5 GHz band to make more efficient use of the 5 GHz spectrum.
66. The Commission knows, for example, that unlicensed and licensed broadband networks often complement one another in important ways. The availability of unlicensed Wi-Fi networks in many locations enables licensed wireless providers to take data traffic off of their networks, thus reducing network congestion and delivering a better overall quality of service. Wi-Fi technology also can be “networked” to provide wider geographic coverage and, when configured this way, may be used by some service providers in offering broadband service.
67. The introduction of the IEEE 802.11ac standard, can open new windows to wireless broadband for many users. The deployment of wide channel bandwidths with higher data rates in the 5 GHz band can help meet the challenge that rapid growth in
68. Also, at the 2012 World Radio Conference, the United States along with other countries agreed that the next World Radio Conference in 2015 (WRC-15) should consider additional spectrum allocations to the mobile service for the development of terrestrial mobile broadband applications. In preparation for WRC-15, the International Telecommunications Union initiated spectrum sharing studies that consider possible expansion of the existing international allocations to the mobile services in the 5 GHz band which are used primarily by the radio local area network (RLAN) devices. The Commission seeks comment on how these activities should inform the Commission's consideration of technical requirements for these bands and sharing technologies and techniques in the following paragraphs. The Commission also seeks comment on importance and benefits of harmonization between the Commission's U-NII rules and the international radio regulations.
69. The 5.35-5.47 GHz band is allocated on a primary basis to the Earth Exploration Satellite, Space Research, and Radiolocation Services for Federal operations and on a secondary basis for non-Federal operations. The 5.35-5.46 GHz band segment is allocated on a primary basis to the Aeronautical Radionavigation Service for both Federal and non-Federal operations. The 5.46-5.47 GHz band segment is allocated on a primary basis to the Radionavigation Service for both Federal and non-Federal operations.
a. Overview of Federal Systems
70.
71.
72.
73.
74. The types of Federal and non-Federal systems in the 5.35-5.47 GHz band are similar except that non-Federal users in the Earth Exploration Satellite, Space Research, and Radiolocation Services operate on a secondary basis. Broadcast and media entities use radars operating in the 5.35-5.47 GHz band for tracking storms and providing weather radar information to the public via news and weather reporting. Weather radars are employed by broadcasters throughout the USA and used to detect supercell storms capable of developing tornados and severe weather. Local TV stations throughout the country utilize 5.35-5.47 GHz band providing viewers with weather maps, weather pictures, and informing the public on a range of local and regional weather warnings. Part 90 of FCC rules permit the operation of weather radar services in the 5.35-5.47 GHz band.
75. The 5.85-5.925 GHz band is allocated on a primary basis to the Radiolocation Service for Federal operations and to the Fixed Satellite
76. The radars that operate in the 5.825-5.925 GHz band are primarily military surveillance and test range instrumentation systems and can be either mobile or transportable. In addition to the DoD operation, NASA, NOAA, and Department of Energy operate radar systems in the 5.85-5.925 GHz band throughout the United States.
77.
78. The FSS is widely used to provide a variety of commercial services domestically and internationally. For example, the FSS supports video distribution both on point-to-point basis and point-to-multipoint bases. The FSS also provides network services consisting of “backbone” capacity for point-to-point trunking for voice, data or Internet traffic; backhaul of communications services; and redundancy and restoration of communications services when other primary technologies fail. Further, the FSS is used to provide corporate, government, and military voice and data communications, as well as broadband and video services directly to the home.
79.
80. DSRC is a wireless ITS system designed for automotive use. In October 1999, the FCC allocated 75 megahertz of spectrum in the 5.85-5.925GHz band for DSRC to be used by ITS. DSRC is a two-way short- to- medium-range wireless communications capability that permits very high data transmission critical in communications-based active safety applications. DSRC which involves vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) communications can save lives by warning drivers of an impending dangerous condition or event in time to take corrective or evasive actions. Vehicle safety applications that use V2V and V2I communications need secure, wireless interface dependability in extreme weather conditions, and short time delays; all of which are facilitated by DSRC. FCC grants licenses for state and regional transportation agencies to operate DSRC roadside units, while DSRC onboard units are licensed by rule under Part 95.
81.
82. The technical requirements for U-NII devices operating in the U-NII-2B and U-NII-4 bands will depend ultimately on a determination of the types of unlicensed operations that can be supported while maintaining interference protection to incumbent Federal and non-Federal users. Nonetheless, the Commission believes that because the types of incumbent services across the 5 GHz spectrum share similar characteristics, the technical requirements for unlicensed devices also could share similar characteristics.
83.
84.
85.
86. The signal detection technology currently used by U-NII-2A and U-NII-2C DFS devices senses radar signals whose parameters (such as pulsewidth, pulse repetition interval, and the number of pulses per burst) are well-known and can be used to improve signal detection. To improve range resolution and accuracy, some radar systems operating in the U-NII-2B and U-NII-4 bands employ short (sub-microsecond) pulse widths. The smallest pulsewidth used in the development of the existing U-NII DFS regulations was 1 microsecond. A narrower radar pulsewidth used in conjunction with the higher data rates associated with the 802.11ac standard could affect a device's ability to detect pulsed radar signals. The Commission seeks comment on the ability of signal sensing spectrum-sharing technologies to detect sub-microsecond pulses and whether the current DFS mechanism would protect the current and future radars that employ sub-microsecond pulses. Are there other detection mechanisms that could be considered?
87. In addition, some fielded and in-development radar systems in the U-NII-2B and U-NII-4 bands include low-power modes or are designed to avoid detection to meet their mission requirements. The Commission seeks comment on whether DFS or any other spectrum-sharing technology would be capable of protecting such radar systems from possible interference.
88. Finally, what measures should be taken to protect non-radar systems that operate in the U-NII-2B and U-NII-4 bands and what is the cost implication for manufacturers, vendors and consumers? The Commission seeks comment on what types of sharing technology or techniques could be used to protect non-radar systems, such as the DSRCS which includes both road side units (RSU-fixed) and on board units (OBU-mobile) operating under a primary allocation. For example, U-NII signal detection technologies used for DFS may not be able to detect signals from incumbents other than radar systems. Could U-NII devices detect signals from both DSRC fixed and mobile stations? The Commission seeks comments on evolving technologies that may help to detect non-radar signals and to protect those operations from harmful interference.
89. NTIA has published a report of its initial study on the potential for U-NII devices to share the U-NII-2B and U-NII-4 bands with incumbent Federal operations. The report includes an initial evaluation of known and proposed spectrum-sharing technologies and also completed a high-level evaluation of the risk to Federal users if the Commission allows U-NII devices to operate in the U-NII-2B and U-NII-4 bands.
90. NTIA, in collaboration with the Federal agency members of the Policy and Plans Steering Group (PPSG), developed a work plan for evaluating the risks to Federal systems operating in the U-NII-2B and U-NII-4 bands. The plan outlined the technical and operational information necessary to perform the evaluation. Several Federal agencies also conducted preliminary electromagnetic compatibility and interference analyses to begin to quantify risks to their systems. NTIA also used input from industry stakeholders related to their projected technical and deployment parameters for U-NII devices, and reviewed domestic and international technical studies used in the development of the existing U-NII regulations in performing their study. For the study, NTIA assumed that the FCC's existing U-NII TPC and DFS regulations would be extended to the U-NII-2B and U-NII-4 bands, and that the Federal agencies will not have to alter their systems or operations to accommodate U-NII devices. The report concludes that additional analysis is needed to determine the feasibility of introducing U-NII devices into these two bands and includes a tentative schedule and milestones for quantitative study consistent with the ongoing work for WRC-15.
91. The Commission seeks comments on all aspects of the NTIA 5 GHz Report, particularly the spectrum sharing technologies and risk analysis described in the following paragraphs.
92. The report addresses three spectrum sharing technologies that might be used as reference models in the U-NII-2B and U-NII-4 bands. These are classified as sensing based, geo-location based, and beaconing/pilot channel technologies.
93.
94.
95.
96. The NTIA 5 GHz Report provides an overview of the risk elements to each type of Federal operation and suggests some mitigation strategies associated with each risk element for further investigation.
97.
98. The report states that the existing U-NII signal detection technologies may not be capable of detecting UAS signals because the existing U-NII regulations were not developed to detect such signals (there is no UAS signal in the bands governed by the existing U-NII regulations) and changes to U-NII DFS detection parameters may not protect UAS operations from performance degradation. The report also points out that existing U-NII regulations were not developed to protect spaceborne receivers. The report also states that the density of U-NII devices is one of the key parameters in determining the amount of potential interference to the incumbent Federal systems.
99.
100. The Commission also believes that there are a number of other changes that need to be considered to simplify and clarify part 15 of the rules. The Commission's analysis revealed several sections of the rules that reference procedures or provisions that are no longer in use and therefore, may no longer be necessary. The Commission has also identified sections of the rules that need to be updated with minor revisions.
101. The Commission proposes to establish a 12-month timetable after the effective date of any new or modified rules that the Commission eventually decides to adopt in this proceeding for manufacturers to produce U-NII devices that comply with new or modified rules. The Commission also proposes to establish a 2 year timetable after the effective date of any new or modified rules for requiring that any U-NII devices manufactured in or imported into the United States for sale comply with the new or modified rules. The Commission believes that a 12-month transition period should provide sufficient time for manufacturers to design equipment that complies with any new or modified rules and to obtain equipment certification. Therefore, the Commission would provide transitional provisions in its rules to allow for the certification of U-NII devices under the current rules for up to 12 months after the new or modified rules are published in the
102. The Commission also proposes that U-NII devices that are already installed or in use should be grandfathered for the life of the equipment. Requiring the immediate upgrade or replacement of existing U-NII devices would be a financial burden on operators of these devices. The Commission believes that grandfathering equipment that is installed and operating will ensure that entities will be permitted to operate their existing U-NII devices until replacement is necessary or desired due to age, malfunction, or other concerns. The Commission seeks comments on this proposal.
103. 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 small entities by the policies and rules
104. This NPRM proposes to amend part 15 of the FCC's rules governing the operation of unlicensed National Information Infrastructure (U-NII) devices in the 5 GHz band. U-NII devices are unlicensed intentional radiators that operate in the frequency bands 5150-5350 MHz and 5470-5825 MHz that use wideband digital modulation techniques to provide a wide array of high data rate mobile and fixed communications for individuals, businesses, and institutions. The NPRM proposes to modify certain technical requirements for U-NII devices to ensure that these devices can continue to operate successfully while protecting incumbent spectrum users.
105. This action is authorized under Sections 1, 4(i), 302, 303(f) and (r), 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 1, 4(i), 154(i), 302, 303(f) and (r), 332, 337.
106. 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 which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
107.
108. The NPRM proposes to establish a 12-month timetable after the effective date of any new or modified rules that we eventually decide to adopt in this proceeding for manufacturers to produce U-NII devices that comply with new or modified rules. We also propose to establish a 2-year timetable after the effective date of any or modified rules for requiring that any U-NII devices manufactured in or imported into the United States for sale comply with the new or modified rules. We believe that a 12-month transition period should provide sufficient time for manufacturers to design equipment that complies with any new or modified rules and to obtain equipment certification. Therefore, we would provide transitional provisions in our rules to allow for certification of U-NII devices under the current rules for up to 12 months after the new or modified rules are published in the
109. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
110. The proposals contained in this Notice of Proposed Rulemaking (NPRM) are aimed at improving the sharing of the spectrum between U-NII devices and other spectrum users. This NPRM proposes to amend Part 15 of our rules governing the operation of Unlicensed National Information Infrastructure (U-NII) devices in the 5 GHz band. U-NII devices are unlicensed intentional radiators that operate in the frequency bands 5.15-5.35 GHz and 5.47-5.825 GHz, and which use wideband digital modulation techniques to provide a wide array of high data rate mobile and fixed communications for individuals, businesses, and institutions. Since the Commission first made available spectrum in the 5 GHz band for U-NII in 1997, we have gained much experience with these devices. We believe that the time is now right for us to revisit our rules, and, in this NPRM, we propose to modify certain technical requirements for U NII devices to ensure that these devices do not cause harmful interference and thus can continue to operate in the 5 GHz band and make broadband technologies available for consumers and businesses.
111. We also seek comment on making available an additional 195 megahertz of spectrum in the 5.35-5.47 GHz and 5.85-5.925 GHz bands for U-NII use. This could increase the spectrum available to unlicensed devices in the 5 GHz band by approximately 35 percent and would represent a significant increase in the
112. None.
113. Pursuant to sections 1, 4(i), 7(a), 301, 303(f), 303(g), 303(r), and 307(e) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), and 307(e), and section 6406(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, § 6406(a), 126 Stat. 156, 231 (2012), the Notice of Proposed Rule Making
114. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Communications equipment.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 15 as follows:
47 U.S.C. 154, 302a, 303, 304, 307, 336, 544a, and 549.
(c) * * * In the case of intentional radiators operating under the provisions of Subpart E, the emission bandwidth may span across multiple frequency bands identified in that Subpart. * * *
(a) * * *
(2) Systems using digital modulation techniques may operate in the 902-928 MHz, and 2400-2483.5 MHz bands. * * *
(b) * * *
(3) For systems using digital modulation in the 902-928 MHz, and 2400-2483.5 MHz bands: 1 Watt. * * *
(c) * * *
(1) * * *
(ii) Frequency hopping systems operating in the 5725-5850 MHz band that are used exclusively for fixed, point-to-point operations may employ transmitting antennas with directional gain greater than 6 dBi without any corresponding reduction in transmitter conducted output power.
(f) * * * The power spectral density conducted from the intentional radiator to the antenna due to the digital modulation operation of the hybrid system, with the frequency hopping operation turned off, shall not be greater than 8 dBm in any 3 kHz band during any time interval of continuous transmission.
(m)
(a) * * *
(3) For the band 5.725-5.850 GHz, the maximum conducted output power over the frequency band of operation shall not exceed 1 W. In addition, the maximum power spectral density shall not exceed 8 dBm in any 3-kHz band. If transmitting antennas of directional gain greater than 6 dBi are used, both the maximum conducted output power and the maximum power spectral density shall be reduced by the amount in dB that the directional gain of the antenna exceeds 6 dBi. However, fixed point-to-point U-NII devices operating in this band may employ transmitting antennas with directional gain up to 23 dBi without any corresponding reduction in the transmitter peak output power or maximum power spectral density. For fixed, point-to-point U-NII transmitters that employ a directional antenna gain greater than 23 dBi, a 1 dB reduction in peak transmitter power and maximum power spectral density for each 1 dB of antenna gain in excess of 23 dBi would be required. Fixed, point-to-point operations exclude the use of point-to-multipoint systems, omnidirectional applications, and multiple collocated transmitters transmitting the same information. The operator of the U-NII device, or if the equipment is professionally installed, the installer, is responsible for ensuring that systems employing high gain directional antennas are used exclusively for fixed, point-to-point operations.
The Commission strongly recommends that parties employing U-NII devices to provide critical communications services should determine if there are any nearby Government radar systems that could affect their operation.
(4) The maximum conducted output power must be measured over any interval of continuous transmission using instrumentation calibrated in terms of an rms-equivalent voltage.
(5) The maximum power spectral density is measured as a conducted emission by direct connection of a calibrated test instrument to the equipment under test. If the device cannot be connected directly, alternative techniques acceptable to the Commission may be used. Measurements are made over a bandwidth of 1 MHz or the 26-dB emission bandwidth of the device, whichever is less. A resolution bandwidth less than the measurement bandwidth can be used, provided that the measured power is integrated to
(6) The ratio of the maximum peak excursion of the modulation envelope (measured in a 1 MHz bandwidth using a peak hold function) to the maximum power spectral density during an interval of continuous transmission (measured in a 1 MHz bandwidth) shall not exceed 13 dB. Each of the two maxima shall be separately determined across the full emission bandwidth. If the emission bandwidth is less than 1 MHz, the measurement may be performed in a resolution bandwidth narrower than 1 MHz but wider than or equal to the emission bandwidth.
(b) * * *
(4) For transmitters operating in the 5.725-5.850 GHz band: all emissions within the frequency range from the band edge to 10 MHz above or below the band edge shall not exceed an e.i.r.p. of −17 dBm/MHz; for frequencies 10 MHz or greater above or below the band edge, emissions shall not exceed an e.i.r.p. of −27 dBm/MHz.
(f) Within the 5.725-5.85 GHz band, the minimum 6 dB bandwidth of U-NII devices shall be at least 500 kHz.
(j) All U-NII Devices must contain security features to protect against modification of software by unauthorized parties.
Federal Communications Commission.
Proposed rule.
In this document the Commission requests comment on a petition filed by Tejas Broadcasting Ltd., LLP (“Petitioner”), licensee of FM Station KMJR, Channel 252C2, Odem, Texas. Petitioner proposes to amend the FM Table of Allotments by substituting Channel 291A for vacant Channel 252A, at Matagorda. The proposal is part of a contingently filed “hybrid” application and rule making petition. Channel 291A can be allotted at Matagorda, Texas, in compliance with the Commission's minimum distance separation requirements, at city reference coordinates of 28-41-25 NL and 95-58-02 WL, without site restriction. Concurrence by the Government of Mexico is required because Matagorda, Texas, is located within 320 kilometers (199 miles) of the U.S.-Mexican border.
Comments must be filed on or before April 22, 2013, and reply comments must be filed on or before May 7, 2013.
You may submit comments, identified by MB Docket No 13-52, by any of the following methods:
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For detailed instructions for submitting comments and additional information of the rulemaking process, see the
Deborah A. Dupont, Media Bureau (202) 418-7072.
This is a synopsis of the Commission's
The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
Animal and Plant Health Inspection Service, Department of Agriculture.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS) has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et. seq.).
Comments must be submitted May 10, 2013.
Written comments may be submitted to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503;
To request additional information, please contact Ruth Brown (202) 720-8958 or Charlene Parker (202) 720-8681.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received no comments in response to the 60-day notice published in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Food Safety and Inspection Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to request extension of an information collection for business registration requirements because the information collection approval is scheduled to expire on June 30, 2013.
Comments on this notice must be received on or before June 10, 2013.
FSIS invites interested persons to submit comments on this
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John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW., Room 6065, South Building, Washington, DC 20250; Telephone: (202) 720-0345.
FSIS is planning to request an extension of an approved information collection addressing paperwork requirements for business registration requirements because the OMB approval will expire on June 30, 2013. Provisions of the FMIA (21 U.S.C. 643) and the PPIA (21 U.S.C. 460 (c)) prohibit any person, firm, or corporation from engaging in commerce as a meat or poultry products broker; renderer; animal food manufacturer; wholesaler of livestock or poultry carcasses or parts; or public warehouseman storing such articles in or for commerce, or from engaging in the business of buying, selling, or transporting in commerce, or importing any dead, dying, or disabled or diseased livestock or poultry or parts of the carcasses of livestock or poultry that died otherwise than by slaughter, unless it has registered its business with FSIS as required by the regulations. An official establishment that conducts any of these activities does not have to register (9 CFR 320.5(c) and 381.179(c)). (An official establishment is a slaughtering, cutting, canning, or other food processing establishment where inspection is maintained under the meat and poultry regulations (9 CFR Subchapters A, D, and E).)
According to the regulations (9 CFR 320.5 and 381.179), parties required to register with FSIS must do so by submitting a form (FSIS Form 5020-1, Registration of Meat and Poultry Handlers) and must provide current and correct information to FSIS, including their name, the address of all locations at which they conduct the business that requires them to register, and all trade or business names under which they conduct these businesses. In addition, parties required to register with FSIS must do so within 90 days after they begin to engage in any of the businesses that require registration. They must also notify FSIS in writing when information on the form changes.
FSIS has made the following estimates based upon an information collection assessment:
Copies of this information collection assessment can be obtained from John O'Connell, Paperwork Reduction Act Coordinator, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW., Room 6065, South Building, Washington, DC 20250; Telephone: (202) 720-0345.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed 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, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent both to FSIS, at the addresses provided above, and to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253.
Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at 202-720-2600 (voice and TTY).
To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.
FSIS will announce this notice online through the FSIS Web page located at
FSIS will also make copies of this
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension of a currently approved information collection; Annual Wildfire Summary Report.
Comments must be received in writing on or before June 10, 2013 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Tim Melchert, Fire and Aviation Management, National Interagency Fire Center, USDA Forest Service, 3833 S. Development Avenue, Boise, ID, 83705.
Comments also may be submitted via facsimile to 208-387-5375 or by email to:
The public may inspect comments received at National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705 during normal business hours. Visitors are encouraged to call ahead to 208-387-5604 to facilitate entry to the building.
Tim Melchert, Fire and Aviation Manager, National Interagency Fire Center, 208-387-5887.
Individuals who use TDD may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
State fire marshals and state forestry officials use form FS-3100-8 (Annual Wildfire Summary Report) to report information to the Forest Service regarding state and local wildfire suppression efforts. The Forest Service is unable to assess the effectiveness of the State and Private Forestry Cooperative Fire Program without this information. Forest Service managers evaluate the information to determine if the Cooperative Fire Program funds used by state and local fire agencies have improved fire suppression capabilities. The Forest Service shares the information with Congress as part of the annual request for funding for this program.
The information collected includes the number of fires responded to by state or local firefighting agencies within a fiscal year, as well as the following information pertaining to such fires:
• Fire type (timber, structural, or grassland);
• Size (in acres) of the fires;
• Cause of fires (lightning, campfires, arson, etc.); and
• Suppression costs associated with the fires.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Forest Service, USDA.
Notice.
Deciding Officers in the Southern Region will publish notice of decisions subject to administrative appeal or objection under 36 CFR parts 215, 218 and 219 in the legal notice section of the newspapers listed in the
Use of these newspapers for purposes of publishing legal notice of decisions subject to appeal under 36 CFR 215 and Appendix A to 36 CFR 219.35, notices of proposed actions under 36 CFR part 215, and notices of the opportunity to object under 36 CFR 218 and 36 CFR 219 shall begin the first day after the date of this publication.
James W. Bennett, Regional Appeal Coordinator, Southern Region, Planning, 1720 Peachtree Road, NW., Atlanta, Georgia 30309, Phone: 404/347-2788.
Deciding Officers in the Southern Region will give legal notice of decisions subject to appeal under Appendix A to 36 CFR 219.35, the Responsible Officials in the Southern Region will give notice of decisions subject to appeal under 36 CFR part 215 and opportunity to object to a proposed authorized hazardous fuel reduction project under 36 CFR part 218 or developing, amending or revising land management plans under 36 CFR 219 in the following newspapers which are listed by Forest Service administrative unit. Responsible Officials in the Southern Region will also give notice of proposed actions under 36 CFR part 215.5 in the following newspapers of record which are listed by Forest Service administrative unit. The timeframe for comment on a proposed action shall be based on the date of publication of the notice of the proposed action in the newspaper of record. The timeframe for appeal shall be based on the date of publication of the legal notice of the decision in the newspaper of record for 36 CFR 215 and Appendix A to 36 CFR 219.35. The timeframe for an objection shall be based on the date of publication of the legal notice of the opportunity to object for projects subject to 36 CFR part 218 or 36 CFR part 219.
Where more than one newspaper is listed for any unit, the first newspaper listed is the newspaper of record that will be utilized for publishing the legal notice of decisions and calculating timeframes. Secondary newspapers listed for a particular unit are those newspapers the Deciding Officer/Responsible Official expects to use for purposes of providing additional notice.
The following newspapers will be used to provide notice.
Regional Forester Decisions:
Affecting National Forest System lands in more than one Administrative unit of the 15 in the Southern Region,
Forest Supervisor Decisions:
Affecting National Forest System lands in more than one Ranger District of the 6 in the National Forests in Alabama,
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
Area Supervisor Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Supervisor Decisions:
District Ranger Decisions:
Forest Service, USDA.
Notice of meeting; request for public input.
There will be three open houses, one in Denver, Colorado; one in Salt Lake City, Utah; and one in Lake Tahoe, California, to provide initial public input on a new water rights clause for ski area permits issued by the Forest Service. There will be several stations at the open houses that will remain open from 4:00 p.m. to 6:30 p.m.; there will be no presentations by the Forest Service. The open houses will allow the public to provide comments and suggestions that the Forest Service will consider in developing a new ski area water rights clause. There will be another opportunity for the public to comment when the proposed clause is published in the
The open houses will be held in Denver, Colorado, on April 16, 2013, from 4:00 p.m. to 6:30 p.m.; in Salt Lake City, Utah, on April 17, 2013, from 4:00 p.m. to 6:30 p.m.; and in Lake Tahoe, California, on April 18, 2013, from 4:00 p.m. to 6:30 p.m.
The open houses will be held at the offices of the U.S. Fish and Wildlife Service, 134 Union Boulevard, first floor conference room, in Lakewood, Colorado, on April 16, 2013; at the offices of the Utah Department of Natural Resources, 1594 West North Temple, Suite 3710, in Salt Lake City, Utah, on April 17, 2013; and the offices of the Forest Service's Lake Tahoe Basin Management Unit, 35 College Drive, in South Lake Tahoe, California, on April 18, 2013.
Loren Kroenke, Winter Sports Program Manager, Recreation, Heritage, and Volunteer Resources Staff, at 801-975-3793. Individuals who use telecommunication devices for the deaf may call the Federal Information Relay Service at 800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Daylight Time, Monday through Friday.
United States Commission on Civil Rights.
Notice of Briefing and Business Meeting.
Friday, April 19, 2013; 9:30 a.m. EST.
1331 Pennsylvania Ave NW., Suite 1150, Washington, DC 20425.
This briefing is open to the public.
Topic:
Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8591.
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact Pamela Dunston at (202) 376-8105 or at
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
On November 30, 2012, in the U.S. District Court, Northern District of Illinois, Andro Telemi, a/k/a Andre Telimi, a/k/a Telemi (“Telemi”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2006 & Supp. IV 2010)) (“AECA”). Specifically, Telemi was convicted of knowingly and willfully attempting to export from the United States to Iran, defense articles designated on the United States Munitions List, namely, 10 connector adapters, without first having obtained the required license or other approval for such export. Telemi was sentenced to five years of probation with the first six months served under home confinement, 500 hours of community service, a fine of $10,000 and a $100 assessment. Telemi is also listed on the U.S. Department of State Debarred List.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
I have received notice of Telemi's conviction for violating the AECA, and have provided notice and an opportunity for Telemi to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Telemi. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Telemi's export privileges under the Regulations for a period of 10 years from the date of Telemi's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Telemi had an interest at the time of his conviction.
Accordingly, it is hereby
I. Until November 30, 2022, Andro Telemi, a/k/a Andre Telimi, a/k/a Andre Telemi (“Telemi”) with a last known address at: 8868 Bluffdale Drive, La Tuna Canyon, CA 91352, and when acting for or on behalf of Telemi, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Telemi by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until November 30, 2022.
VI. In accordance with Part 756 of the Regulations, Telemi may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. A copy of this Order shall be delivered to the Telemi. This Order shall be published in the
On April 17, 2012, in the U.S. District Court, Central District of California, Liem Duc Huynh (“Huynh”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2006 & Supp. IV 2010)) (“AECA”). Specifically, Huynh was convicted of aiding and abetting and willfully exporting Generation 3 Night Vision Goggles, defense articles listed on the United States Munitions List, from the United States to Vietnam, without first obtaining from the U.S. Department of State a license or written authorization for such export. Huynh was sentenced to one day of prison, (credit for time served), followed by three years of supervised release and a $1,500 fine. Huynh is also listed on the U.S. Department of State Debarred List.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
I have received notice of Huynh's conviction for violating the AECA, and have provided notice and an opportunity for Huynh to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Huynh. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Huynh's export privileges under the Regulations for a period of 10 years from the date of Huynh's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Huynh had an interest at the time of his conviction.
Accordingly,
Ordered
I. Until April 17, 2022, Liem Duc Huynh (“Huynh”), with a last known address at: 2905 South Elm, Broken Arrow, OK 74012, and when acting for or on behalf of Huynh, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Huynh by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until April 17, 2022.
VI. In accordance with Part 756 of the Regulations, Huynh may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. A copy of this Order shall be delivered to the Huynh. This Order shall be published in the
The Emerging Technology and Research Advisory Committee (ETRAC) will meet on April 25 and 26, 2013, 8:30 a.m., Room 3884, at the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on emerging technology and research activities, including those related to deemed exports.
1. Opening Remarks.
2. Panel Discussion on Deemed Exports.
3. Emerging Technologies—Results from the Conference: Impact of Export Controls on Higher Education and Scientific Institutions—March 26-27, 2013, at the University of Pennsylvania.
4. Intelligence and National Security Alliance Innovations Showcase Program.
Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on October 4, 2012, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended, that the portion of the meeting dealing with matters the of which would be likely to frustrate significantly implementation of a proposed agency action as described in 5 U.S.C. 552b(c) (9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)1 and 10(a)(3). The remaining portions of the meeting will be open to the public.
1. Discussion on status of the Export Control Reform Initiatives.
2. Basic Research and Emerging Technologies.
3. Emerging Technologies and Export Controls-NASA Tech Briefs.
4. Emerging Technologies Implications for Industry-University Collaborations.
5. Upcoming Committee tasks.
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482-2813.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Extension of comment period.
On March 29, 2013, notice was published in the
All comments and written statements must be postmarked no later than Thursday, June 27, 2013.
The Supplemental DEIS is available for review online at
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Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on
Candace Nachman, Jolie Harrison, or Michael Payne, Office of Protected Resources, NMFS, at (301) 427-8401.
Additional information on the content of the Supplemental DEIS can be found in the Notice of Availability (78 FR 19212, March 29, 2013).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Samuel Wasser, Ph.D., University of Washington, Department of Biology, P.O. Box 351800, Seattle, WA 98195, has applied in due form for a permit to conduct research on killer whales (
Written, telefaxed, or email comments must be received on or before May 10, 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
Northwest Region, NMFS, 7600 Sand Point Way NE., BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206) 526-6150; fax (206) 526-6426.
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.
Carrie Hubard or Jennifer Skidmore, (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 permit to study killer whales of the endangered Eastern North Pacific Southern Resident stock in waters of Washington, including the San Juan Islands and Puget Sound. The objective of the research is to use noninvasive physiological and genetic measures to examine the impacts of the three major threats to this stock: (1) Reduced prey ability; (2) excessive exposures to environmental contaminants; and (3) disturbance from private and commercial vessel traffic. The primary research method is the collection of opportunistic fecal samples, which would be scooped from the water column and then analyzed for genetics, hormones, and contaminants. Each year, the entire population of Southern Resident killer whales (currently estimated at 87 individuals) would be
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
Committee for Purchase From People Who Are Blind or Severely Disabled.
Rescission of Previous Procurement List Decision.
The Committee for Purchase From People Who Are Blind or Severely Disabled (Committee) is providing notice of a rescission of its previous Procurement List decision adding “Eyewear” as described in the Notice in the
Barry S. Lineback, Director, Business Operations, 1401 S. Clark St., Suite 10800, Arlington, VA, Telephone: (703) 603-2118; FAX 703-603-0655 or email
Through earlier Committee decisions that have not been rescinded, the VA's
Under Secretary of Defense for Personnel and Readiness, DoD.
Meeting notice.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the following Federal advisory committee meeting of the Defense Advisory Committee on Military Personnel Testing will take place.
Thursday, May 9, 2013, from 9:00 a.m. to 4:00 p.m. and Friday, May 10, 2013, from 9:00 a.m. to 12:00 p.m.
The meeting will be held at the Pine Inn, Ocean Avenue, between Lincoln and Monte Verde Street, Carmel, California.
Committee's Designated Federal Officer or Point of Contact: Dr. Jane M. Arabian, Assistant Director, Accession Policy, Office of the Under Secretary of Defense (Personnel and Readiness), Room 3D1066, The Pentagon, Washington, DC 20301-4000, telephone (703) 697-9271.
Purpose of the Meeting: The purpose of the meeting is to review planned changes and progress in developing computerized tests for military enlistment.
Agenda: The agenda includes an overview of current enlistment test development timelines and planned research for the next 3 years.
Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Persons desiring to make oral presentations or submit written statements for consideration at the Committee meeting must contact Dr. Jane M. Arabian at the address or telephone number in
Department of the Navy, DoD.
Notice of Partially Closed Meeting.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meeting of the aforementioned subcommittee will be held. The executive session of this meeting from 9:00 a.m. to 11:30 a.m. on April 25, 2013, will involve premature disclosure of information that is likely to significantly frustrate implementation of proposed agency actions, and disclosure of information of a personal nature that would constitute an invasion of privacy. For this reason, the executive session of this meeting will be closed to the public.
The meeting will be held on Wednesday, April 24, 2013, from 8:00 a.m. to 4:30 p.m. and on Thursday, April 25, 2013, from 8:00 a.m. to 4:30 p.m. Pacific Time Zone. All sessions with the exception of the executive session on April 25, 2013, from 9:00 a.m. to 11:30 a.m. are open to the public.
The meeting will be held at the Naval Postgraduate School, Ingersoll Hall, Room 361, 1 University Circle, Monterey, CA.
Ms. Jaye Panza, Naval Postgraduate School, Monterey, CA 93943-5001, telephone number 831-656-2514.
The purpose of the meeting is to elicit the advice of the Board on the Naval Service's Postgraduate Education Program and the collaborative exchange and partnership between the Naval Postgraduate School (NPS) and the Air Force Institute of Technology. The board examines the effectiveness with which the NPS is accomplishing its mission. To this end, the board will inquire into the curricula; instruction; physical equipment; administration; state of morale of the student body, faculty, and staff; fiscal affairs; and any other matters relating to the operation of the NPS as the board considers pertinent. In particular, the subcommittee will hear and discuss with NPS leadership the recently issued report on NPS by the Department of the Navy Inspector General. The subcommittee will review the NPS plans for addressing the deficiencies and recommendations cited in the IG report and provide advice to NPS leaders. The subcommittee will also through the Board of Advisors (BOA) to the Presidents of NPS and Naval War College report on progress to the Secretary of the Navy. The Board will meet in closed executive session on Thursday, April 25, 2013 from 9:00 a.m. to 11:30 a.m. in accordance with the provision set forth in section 552b(c) of Title 5 U.S.C. Topics to be discussed are: (a) Inspection Recommendations from the Naval Inspector General and potential actions in response, led by Assistant Secretary of the Navy, Manpower and Reserve Affairs; and (b) nominations for Board vacancies. The closed session will disclose information that is likely to significantly frustrate implementation of proposed agency actions. With respect to filling Board vacancies this portion will include disclosure of information of a personal nature that would constitute an unwarranted invasion of personal privacy. Individuals without a Department of Defense government/CAC card require an escort at the meeting location. For access, information, or to send written comments regarding the NPS Subcommittee contact Ms. Jaye Panza, Designated Federal Officer, Naval Postgraduate School, 1 University Circle, Monterey, CA 93943-5001 or by fax 831-656-3145 by April 23, 2013.
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during January 2013, it issued orders granting authority to import and export natural gas and liquefied natural gas and vacating prior authority. These orders are summarized in the attached appendix and may be found on the FE Web site at
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during February 2013, it issued orders granting authority to import and export natural gas and liquefied natural gas and vacating prior authority. These orders are summarized in the attached appendix and may be found on the FE Web site at
Department of Energy.
Notice of the Title X claims during fiscal year (FY) 2013.
In light of fiscal uncertainties facing the Department of Energy (DOE) and the passing of the Consolidated and Further Continuing Appropriations Act, 2013 (Public Law 113-6), funds are not currently available for reimbursement for cleanup work performed by licensees at eligible uranium and thorium processing sites in accordance with Title X of the Energy Policy Act of 1992 (Public Law 102-486). However, licensees may submit their claims for cleanup work with the understanding that DOE is not able to perform audits on the claims or provide licensees with reimbursements unless sufficient funds become available. If licensees do not submit claims in FY 2013, they can do so the following year. In order to keep an accurate account of claims, DOE will continue to provide an annual status report or report letter on reimbursements to licensees of eligible uranium and thorium processing sites. If licensees submit claims in FY 2013, those licensees are not required to resubmit those same claims in later years.
If claims are submitted during FY 2013 for cleanup work, the closing date is October 1, 2013. All reimbursements are subject to the availability of funds from congressional appropriations.
Claims should be forwarded by certified or registered mail, return receipt requested, to U.S. Department of Energy, Office of Legacy Management, Attn: Tracy Plessinger, Title X Coordinator, 2597 Legacy Way, Grand Junction, Colorado 81503. Two copies of the claim should be included with each submission.
Contact Theresa Kliczewski at (202) 586-3301 of the U.S. Department of Energy, Office of Environmental Management, Office of Disposition Planning & Policy.
DOE published a final rule under 10 CFR Part 765 in the
Section 1001-1004 of Pub. L. 102-486, 106 Stat. 2776 (42 U.S.C. 2296a
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric corporate filings:
Description: Request for Reauthorization and Extension of Blanket Authorizations Under Section 203 of the Federal Power Act and Request for Expedited Consideration of BlackRock, Inc.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”). The Committee's mission is to provide recommendations to the Commission regarding policies and practices that will further enhance diversity in the telecommunications and related industries. In particular, the Committee will focus primarily on lowering barrier to entry for historically disadvantaged men and women, exploring ways in which to ensure universal access to and adoption of broadband, and creating an environment that enables employment of a diverse workforce within the telecommunications and related industries. The Committee will be charged with gathering the data and information necessary to formulate meaningful recommendations for these objectives.
Thursday, April 25 at 2:00 p.m.
Federal Communications Commission, Room TW-C305 (Commission Meeting Room), 445 12th Street SW., Washington, DC 20554.
Barbara Kreisman, 202-418-1605
At this meeting the current committee structure and other organizational matters will be discussed. The goals and approaches of the advisory group will be discussed, including the substantive direction further recommendations should consider. Committee reports may be submitted.
Members of the general public may attend the meeting. The FCC will attempt to accommodate as many people as possible. However, admittance will be limited to seating availability. The public may submit written comments before the meeting to: Barbara Kreisman, the FCC's Designated Federal Officer for the Diversity Committee by email:
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via email to
Additional information regarding the Diversity Committee can be found at
Federal Communications Commission.
Federal Communications Commission.
Notice.
In this document, the Commission's Wireless Telecommunications and Wireline Competition Bureaus announce a reverse auction to award up to $50 million in one-time Tribal Mobility Fund Phase I support scheduled to commence on October 24, 2013. This document also seeks comment on competitive bidding procedures for Auction 902 and certain program requirements.
Comments are due on or before May 10, 2013, and Reply comments are due on or before May 24, 2013.
All filings in response to this public notice must refer to AU Docket No. 13-53. The Wireless Telecommunications Bureau and Wireline Competition Bureau strongly encourage interested parties to file comments electronically, and request that an additional copy of all comments and reply comments be submitted electronically to the following address:
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 a.m. to 7 p.m. Eastern Time. 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.
This is a summary of the
1. The Wireless Telecommunications and Wireline Competition Bureaus (the Bureaus) announce a reverse auction to award up to $50 million in one-time Tribal Mobility Fund Phase I support and seek comment on auction procedures and certain related programmatic issues. This auction is scheduled to begin on October 24, 2013, and is designated as Auction 902.
2. Tribal Mobility Fund Phase I will provide one-time support to deploy mobile voice and broadband services to unserved Tribal lands, which have significant telecommunications deployment and connectivity challenges. Auction 902 will award high-cost universal service support through reverse competitive bidding, as envisioned by the Commission in the
3. Many of the pre-auction processes and bidding procedures for this auction will be similar to those used in the Commission's first auction of universal service support, Auction 901, which were modeled on those regularly used for the Commission's spectrum license auctions. In Auction 902, support for Tribal lands generally will be awarded on the same terms and subject to the same rules as general Mobility Fund Phase I support with a few exceptions tailored to address the unique needs of communities on Tribal lands. Specifically, unlike general Mobility Fund Phase I, for which the number of units in a given unserved census block were calculated according to the number of road miles in that block, for Tribal Mobility Fund Phase I, the number of units in a given census block will be the population of that block. The Commission concluded in the
4. Throughout this document, the term per-pop means per population (or per person) within a given geographic area. The terms 3G, 3G or better, current generation, and advanced are used interchangeably in this document to refer to mobile wireless services that provide voice telephony service on networks that also provide services such as Internet access and email. Areas without 3G or better services and the population within them are referred to as unserved. This document refers to awarding or selecting awardees by auction for simplicity of expression. Each party that becomes a winning bidder in the auction must file an application for support. Only after review of the application to confirm compliance with all the applicable requirements will a winning bidder become authorized to receive support.
5. In the
6. In the
7. Tribal Mobility Fund Phase I will provide up to $50 million in one-time support to address gaps in mobile services by supporting the build-out of current- and next-generation mobile networks on Tribal lands where these networks are unavailable. This support will be awarded by reverse auction with the objective of maximizing the population covered in eligible unserved areas on Tribal lands within the established budget. The support offered under Tribal Mobility Fund Phase I is in addition to any ongoing support provided under existing high-cost universal service program mechanisms.
8.
9. Because of the lead time necessary to receive designation as an ETC and to acquire access to spectrum, prospective applicants that need to do so are strongly encouraged to initiate both processes as soon as possible in order to increase the likelihood that they will be eligible to participate in Auction 902. Carriers subject to the jurisdiction of a state in which they seek designation should petition that state's commission for designation as an ETC to provide voice service. Carriers not subject to the jurisdiction of the relevant state commission should petition the Commission for designation as an ETC. The Commission has established a framework for determining whether a state commission or the Commission itself has jurisdiction to designate ETCs on Tribal lands. First, a carrier serving Tribal lands must petition the Commission for a determination on whether the state has jurisdiction over the carrier. The Commission then determines whether the carrier is subject to the jurisdiction of a state commission or whether it is subject to a Tribal authority given the Tribal interests involved. In the latter case, the Commission has jurisdiction to designate the carrier as an ETC and will proceed to consider the merits of the carrier's petition for designation. The Bureaus have provided guidance on existing requirements for filing an ETC application with the Commission in a separate public notice:
10. In addition, an Auction 902 applicant must certify that it is financially and technically capable of providing 3G or better service. An applicant seeking to use the 25 percent bidding credit preference for Tribally-owned or -controlled providers must certify that it is a Tribally-owned or -controlled entity and identify the applicable Tribe and Tribal land in its application. To ensure that Tribal Mobility Fund Phase I support meets the Commission's public interest objectives, recipients will be subject to a variety of obligations, including performance, coverage, collocation, voice and data roaming requirements, and Tribal engagement obligations. Among other things, winning bidders will be required either to deploy 3G service within two years, or 4G service within three years, after the date on which it is authorized to receive support. Those seeking to participate in the auction must file a short-form application by a deadline to be announced, providing information and certifications as to their qualifications to receive support. After the close of the auction, winning bidders must submit a detailed long-form application and procure an irrevocable stand-by Letter (or Letters) of Credit (LOC) to secure the Commission's financial commitment, along with an opinion letter from counsel.
11.
12.
13.
14. The list of potentially eligible areas the Bureaus released in connection with the
15. The Bureaus seek comment on whether to establish any maximum acceptable bid amounts or reserve amounts. In addition, consistent with recent practice in spectrum license auctions and Auction 901, the Bureaus propose to withhold, until after the close of bidding, information from applicants' short-form applications regarding their interest in particular eligible census blocks. The Bureaus seek comment on this proposal.
16.
17.
18. In the
19. The Bureaus identified census blocks within Tribal lands using 2010 Census data. Tribal lands include any federally recognized Indian tribe's reservation, pueblo or colony, including former reservations in Oklahoma, Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act, and Indian Allotments, as well as Hawaiian Home Lands—areas held in trust for native Hawaiians by the state of Hawaii, pursuant to the Hawaiian Homes Commission Act, as amended. Tribal lands in Alaska, i.e., the Annette Island Reserve and areas where federally recognized Alaska Native villages are located within the Alaska Native regions, were identified using 2010 Census data identifying the Annette Island Reserve and Alaska Native village statistical areas.
20. The Bureaus then used geographic information system (GIS) software to determine whether the Mosaik data shows 3G or better wireless coverage at the centroid of each census block. The Bureaus use the term centroid to refer to the internal point (latitude/longitude) of a census block polygon. The Bureaus used ArcGIS software from Esri to determine whether the Mosaik data showed 3G or better coverage at each block's centroid. The following technologies were considered 3G or better: EV-DO, EV-DO Rev A, UMTS/HSPA, HSPA+, WiMAX, and LTE. If the Mosaik data did not show such coverage, the block was determined to be potentially eligible for Tribal Mobility Phase I support. Because support will be awarded based on the bids that will maximize the population covered by new mobile services, any of these census blocks without population were excluded. The Bureaus then excluded any blocks that, during the Auction 901 challenge process, were determined to be served or to be ineligible for Mobility Fund Phase I support because a provider had made a regulatory commitment to provide 3G or better wireless service or had received a funding commitment from a federal executive department or agency in response to the provider's commitment to provide 3G or better wireless service in that area. In addition, the Bureaus identified those census blocks that were the subject of winning bids in Auction 901. Any census block that was the subject of a winning bid in Auction 901 and for which support is authorized at the conclusion of the Auction 901 long-form application review will not be eligible for Tribal Mobility Fund Phase I support. If prior to the release of the list of eligible census blocks the Bureaus determine that any of the identified winning bids from Auction 901 cannot be authorized, but would otherwise be eligible for Auction 902, then such eligible blocks will be made available.
21. Pursuant to the
22. Attachment A-1 released with the
23. If commenters think certain blocks included in the list should not be eligible for support, they should indicate which blocks and provide supporting evidence. Similarly, if commenters think certain blocks not included in the list should be eligible for support, they should indicate which blocks and provide supporting evidence. In particular, the Bureaus note that, in the
24. Based on a review of the comments and any related information, the Bureaus will provide a list of the specific census blocks eligible for support in Auction 902 when it releases the public notice announcing procedures for Auction 902. In addition to providing files containing this final list of census blocks and related data, the Bureaus anticipate providing an interactive mapping interface for this information on the Commission Web site. This interface could aid bidders in matching up their own information on the geographic areas in which they are interested with the blocks available in the auction. The files and/or the interactive mapping interface will also provide data such as associated population and area. The Bureaus anticipate that the file formats and the interactive mapping interface will be very similar to those provided for Auction 901. If potential bidders believe that the Bureaus should not provide the same types of files and interactive mapping interface as those provided for Auction 901, or that the Bureaus should provide additional information or other tools, they should submit detailed comments describing the types of files, information, or tools requested and explaining the reasons for the request.
25. In Auction 902, the Bureaus will use population as the basis for calculating the number of units in each eligible census block for purposes of comparing bids and measuring the performance of Tribal Mobility Fund Phase I support recipients. To establish the population associated with each census block eligible for Tribal Mobility Fund Phase I support, the Bureaus will use the 2010 Census data made available by the Census Bureau. The Attachment A file at
26. The Bureaus propose to include as eligible only those unserved census blocks where there is a population greater than zero. The Bureaus seek comment on this proposal.
27. The Bureaus discuss and seek comment on which auction design is most appropriate. The Bureaus also discuss related auction design options, including aggregation approaches, the coverage requirement, and awardee determination. The Bureaus ask for input on these approaches and options, and request that commenters explain how their suggestions will promote the Commission's objective in Tribal Mobility Fund Phase I of maximizing, within the $50 million budget, the population with newly available 3G or better service.
28. The Bureaus seek comment on which reverse auction design would be the most appropriate for the Tribal Mobility Fund Phase I auction. In the Notice of Proposed Rulemaking for Mobility Fund Phase I, the Commission proposed a single-round auction format to disburse funds. A variety of commenters supported a format with more than one round of bidding, arguing that multiple rounds would maximize the benefits of the program through more informed bidding and more competitive bidding. In the
29.
30.
31. The Commission determined that the census block should be the minimum geographic building block for which support is provided, but left to the Bureaus the task of deciding how to facilitate bidding on aggregations of eligible census blocks. Some aggregation of census blocks may be necessary because census blocks are numerous and can be quite small. The 5,554 census blocks potentially eligible for support under Tribal Mobility Fund Phase I have an average area of approximately 2.1 square miles. The Bureaus believe that on average these blocks are much smaller than the average area covered by a single cell site, which is likely to be the minimum incremental geographic area of expanded coverage with Tribal Mobility Fund Phase I support. The Bureaus propose bidding procedures that will define biddable items consisting of certain aggregations of eligible census blocks and for this purpose suggest using census tracts and Tribal land boundaries.
32.
33. Under this approach, for each aggregated area that a bidder bids on, the bidder would indicate a per-unit price to cover the population in the eligible census blocks within that area. The auction would assign support to awardees equal to the per-pop rate of their bid multiplied by the population associated with the eligible census blocks within the aggregated area as shown in the information that will be provided by the Bureaus prior to the auction. Under this approach, bidders would be able to bid on multiple aggregated areas and win support for any or all of them.
34. The Bureaus release with the
35. In the
36. The Bureaus ask whether commenters believe that further packaging of the predefined aggregations would be helpful. If so, they should explain the specific need for package bidding and their proposed approach. For example, could such a need be met by allowing bidding on a package of all of the tracts and parts of tracts within a Tribal land? The Bureaus also seek comment on whether a multiple round format, such as a descending clock auction, could facilitate aggregation by allowing bidders to shift bids if outbid on a piece of a group of areas they were seeking to serve.
37.
38.
39. Because using the ranking method would likely result in monies remaining available from the budget after identifying the last lowest per-pop bid that does not exceed the funds available, the Bureaus seek comment on what to do in these circumstances. If the Bureaus use an approach similar to that used for Auction 901, they would continue to consider bids in order of per-pop bid amount while skipping bids that would require more support than is available. The Bureaus would award such bids as long as funds are available. The Bureaus seek comment on this approach and others. Alternatives could include, for example, not awarding any further support; awarding support as long as the per-pop bid amount does not exceed the last bid by more than twenty percent; or, if there is a set of tied bids all of which cannot be supported, awarding support to that combination of bids that will most nearly exhaust the remaining funds.
40.
41. One issue that must be addressed is the case of more than one bid for the same area, since the Bureaus propose to award only one subsidy per area. A possible solution would be to continue running the clock in those areas where there are multiple bids until only one bid remains. If the clock were initially stopped when the budget requirement was just met, continuing to run the clock in the areas with multiple bids would result in not spending all the funds. The Bureaus seek comment on how to address this overshooting. Possible solutions may include permitting intra-round bids that allow bidders to indicate their change in supply at specified prices between the opening and closing prices in each round.
42. Under the Commission's rules on competitive bidding for high-cost universal service support adopted in the
43. The Bureaus will conduct Auction 902 over the Internet. For the single round of bidding in Auction 901, the Bureaus did not provide a telephonic bidding option. In Commission spectrum license auctions, telephonic bidding has served as a backup to on-line bidding. The Bureaus seek comment on whether telephonic bidding should be available in Auction 902, particularly if they use a multiple-round format.
44. The start time for bidding will be announced in a public notice to be released at least one week before the start of the auction. The Bureaus seek comment on this proposal.
45. For Auction 902, the Bureaus propose that, by public notice or by announcement during the auction, the Bureaus may delay, suspend, or cancel the auction in the event of natural disaster, technical failures, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureaus, in their sole discretion, may elect to resume the auction or cancel the auction in its entirety. Network interruption may cause the Bureaus to delay or suspend the auction. The Bureaus emphasize that exercise of this authority would be solely within the discretion of the Bureaus. The Bureaus seek comment on this proposal.
46. Under the Commission's rules on competitive bidding for high-cost universal service support adopted in the
47. The Bureaus concluded that for Auction 901, a reserve price was not needed to guard against unreasonably high winning bids because cross-area competition for support from a budget that was not likely to cover support for all of the areas receiving bids would constrain the bid amounts. The Bureaus seek comment on whether any maximum acceptable per-unit bid amounts, reserve amounts, or maximum opening bid amounts would be appropriate for Auction 902. Although the $50 million budget available for Auction 902 is less than the $300 million budget available for Auction 901, the number of eligible census blocks is also significantly lower in this auction. Will cross-area competition for support adequately constrain bid amounts? The Bureaus further seek comment on what methods should be used to calculate reserve prices and/or maximum or minimum bids if they are adopted. Commenters are advised to support their claims with valuation analyses and suggested amounts or formulas. The Bureaus also seek comment on the appropriate policy if, at the reserve price, less than the full budget is exhausted.
48. For Auction 902, the Bureaus propose and seek comment on bid removal procedures. In the case of a single-round auction, the Bureaus propose that before the end of the single round of bidding, a bidder would have the option of removing any bid it has placed. By removing selected bids, a bidder may effectively undo any of its bids placed within the single round of bidding. Once the single round of bidding ends, a bidder may no longer remove any of its bids. For multiple-round auction designs, the Bureaus seek comment on potential bid removal mechanisms and whether bidders should be permitted to withdraw bids from previous rounds and, if so, subject to what limitations.
49. In the
50. As noted in the
51. In determining what size payment would be appropriate for a bidder that defaults in the auction, the Bureaus' goals are to ensure the stability and predictability of the auction process by deterring insincere or uninformed bidding without establishing such a high amount as to unduly deter participation in the auction. Such a decision must be made in light of the procedures established for the auction, including auction design. According to the Commission's rules, if the auction default payment is determined as a percentage of the defaulted bid amount, the default payment will not exceed 20 percent of the total defaulted bid. The Bureaus propose to use a rate of five percent of the total defaulted bid. The Bureaus would apply the percentage to the total amount of support based on the bid amount for the geographic area covered by the defaulted bid(s). The Bureaus believe that this amount, below the maximum percentage, will protect against the costs to the Commission and the USF of auction defaults and provide bidders sufficient incentive to fully inform themselves of the obligations associated with participation in the Tribal Mobility Fund Phase I program and to commit to fulfilling those obligations. Under this method of calculating the default payment, bidders would be aware ahead of time of the exact amount of their potential liability based on their bids. The Bureaus note that this proposal is the same percentage instituted for Auction 901.
52. The Bureaus seek comment on this proposal. The Bureaus ask commenters to assess whether their proposal to use an auction default payment percentage of five percent will be adequate to deter insincere or uninformed bidding, and safeguard against costs to the Commission and the USF that may result from such auction defaults, without unduly discouraging auction participation, particularly given that liability for the auction default payment will be imposed without regard to the intentions or fault of any specific defaulting bidder. Are there any circumstances unique to bids to serve Tribal lands that should be considered in the analysis? The Bureaus also seek comment on whether they should use an alternative methodology, such as basing the auction default payment on the difference between the defaulted bid and the next best bid(s) to cover the same population as without the default. Commenters advocating such an approach should explain with specificity how such an approach might work under the options the Bureaus present for auction design. In addition, the Bureaus seek comment on whether, prior to bidding, all applicants for Auction 902 should be required to furnish a bond or place funds on deposit with the Commission in the amount of the maximum anticipated auction default payment. The Bureaus ask for specific input on whether a bond or deposit would be preferable for this purpose and on methodologies for anticipating the maximum auction default payment.
53. Pursuant to the Mobility Fund Phase I rules adopted in the
54. The Bureaus propose to assess a 10 percent default payment where a winning bidder fails to satisfy its performance obligations or any of the requirements and conditions for the support. The percentage would be applied to the total amount of support based on the bid amount for the geographic area covered by the defaulted bid(s). Under this proposal, the LOC would include an additional 10 percent based on the total level of support for which a winning bidder is eligible. In determining what size payment would be appropriate for a performance default, the Bureaus' goals are to ensure the stability and predictability of the auction process by deterring insincere or uninformed bidding without establishing such a high amount as to unduly deter participation in the auction. While both auction defaults and performance defaults may threaten the integrity of the auction process and impose costs on the Commission and the USF, an auction default occurs earlier in the process and may permit an earlier alternative use of the funds that were assigned to the defaulted bid, consistent with the purposes of the universal service program. Thus, the Bureaus believe that the amount of a performance default payment should be higher than the amount of the auction default payment. The Bureaus proposed, and adopted, a 10 percent performance default penalty for Auction 901. The Bureaus seek comment on their proposal for calculating the performance default payment. Will a performance default payment of 10 percent of the total amount of support for which the winning bidder defaults be effective in ensuring that those authorized to receive support will be capable of meeting their obligations and protect against costs to the Commission and the USF, without unduly discouraging auction participation? Are there any circumstances unique to provisioning service to Tribal lands that should be considered in the Bureaus' analysis?
55.
56. The Bureaus propose that recipients of Tribal Mobility Fund Phase I support may demonstrate compliance with the reasonably comparable rates requirement in the same manner as recipients of general Mobility Fund Phase I support. The Bureaus propose that a supported provider must demonstrate that its required stand-alone voice plan, and one service plan that offers data services, if it offers such plans, are (1) substantially similar to a service plan offered by at least one mobile wireless service provider in an urban area, and (2) offered at or below the rate for the matching urban service plan. The Bureaus note that any provider that itself offers the same service plan for the same rate in a supported area and in an urban area would be able to meet this requirement. The Bureaus seek comment on this proposal and any alternatives. Commenters offering alternatives to the Bureaus' proposal should address the feasibility of implementing their alternatives in advance of the deadlines for parties to participate in competitive bidding for Tribal Mobility Fund Phase I support. In addition, the Bureaus request that commenters describe the costs and benefits associated with the position they advocate. Adopting this approach for purposes of Tribal Mobility Fund Phase I does not prejudge the approach to be taken with respect to Phase II of the Mobility Fund or the Connect America Fund generally. The Bureaus note that in line with the approach in Auction 901, they do not propose to adopt an urban rate floor for recipients of Tribal Mobility Fund Phase I support.
57. For purposes of Tribal Mobility Fund Phase I, any rate equal to or less than the highest rate charged for a matching service in an urban area would be reasonably comparable to, i.e., within a reasonable range of, rates for
58. The Bureaus would retain discretion to consider whether and how variable rate structures should be taken into account. For example, should a supported stand-alone voice plan that offers 1,000 minutes a month for $50 and additional minutes at $0.08 per minute be considered more expensive than a plan in an urban area that offers 2,000 minutes a month for $100 and additional minutes at $0.10 per minute? There may be circumstances under which data plans with equivalent prices-per-unit match each other even if there are other differences in the plans. The Bureaus propose to address such issues on a case-by-case basis and welcome comment on how to address such circumstances.
59. To provide recipients with flexibility to tailor their offerings to consumer demand while complying with the rule, the Bureaus propose that they deem a Tribal Mobility Fund Phase I support recipient compliant with the terms of the required certification if it can demonstrate that its rates for services satisfy the requirements, and if it provides supporting documentation. The Bureaus seek comment on all aspects of this proposal, in particular whether it meets the goal of assuring that supported services are provided at rates reasonably comparable to those in urban areas, while allowing recipients to have appropriate flexibility in structuring their offerings. The Bureaus also seek comment on any potential alternatives. For example, is there a readily available set of benchmark urban rates for mobile voice and broadband service that the Bureaus could use with respect to Tribal Mobility Fund Phase I?
60.
61. The Bureaus propose to make a specific exception for supported parties serving Alaska in light of the distinct character of Alaska and the related costs of providing service, and in line with the approach adopted for Auction 901. The Bureaus propose that supported parties in Alaska may demonstrate comparability by comparison with rates offered in the CMA for Anchorage, Alaska. In this regard, the Bureaus note that the Anchorage, Alaska CMA has a population of over 250,000 and four wireless providers, which indicates that, while reflecting the particular challenges of offering service in Alaska, competition for customers there could act to keep rates for offered services reasonable.
62. This proceeding shall be treated as a permit-but-disclose proceeding in accordance with the Commission's
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The Commission gives notice that the following applicants have filed an application for an Ocean Transportation Intermediary (OTI) license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF) pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101). Notice is also given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a licensee.
Interested persons may contact the Office of Ocean Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523-5843 or by email at
By the Commission.
The Commission gives notice that the following Ocean Transportation Intermediary license has been reissued pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101).
The Commission gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101) effective on the date shown.
10:00 a.m., Thursday, April 25, 2013.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (entry from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Jean Ellen (202) 434-9950/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
Board of Governors of the Federal Reserve System.
Background. Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer, Cynthia Ayouch, Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer, Shagufta Ahmed, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW.,Washington, DC 20503.
1.
2.
Final approval under OMB delegated authority of the extension for three years, with revision, of the following survey:
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 April 26, 2013.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and the Board's Regulation LL (12 CFR part 238) to acquire shares of a savings and loan 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 April 26, 2013.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
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 May 7, 2013.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Office of Government-wide Policy, General Services Administration (GSA).
Meeting notice.
Notice of this meeting is being provided according to the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., 10(a)(2). This notice provides the schedule and agenda for the May 1, 2013, meeting of the Green Building Advisory Committee Meeting (the Committee). The meeting is open to the public and the site is accessible to individuals with disabilities. Due to limited conference space, individuals must register to attend as instructed below under Supplementary Information.
Ken Sandler, Designated Federal Officer, Office of Federal High-Performance Green Buildings, Office of Government-wide Policy, General Services Administration, 1275 First Street NE., Room 633D, Washington, DC 20417, telephone 202-219-1121 (note: this is not a toll-free number). Additional information about the Committee is available online at
Materials may also be accessed online at
• Introductions & Plans for Today's Meeting.
• Climate Change Adaptation.
• Green Building Certification System Review.
• Lunch.
• Next Steps for the Committee.
• Public Comment Period: 30 minute public comment period for individuals pre-registered per instructions above. Each individual will be able to speak for no more than 5 minutes.
• Closing comments.
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). The ICR is for extending the use of the approved information collection assigned OMB control number 0990-0275, which expires on October 31, 2013. Prior to submitting that ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before June 10, 2013.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS-OS-19226-60D for reference.
OS specifically requests comments on (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.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, most recently, August 3, 2011, and will expire on August 3, 2013.
The agenda is subject to change as priorities dictate.
Because there is not a public comment period, written comments may be submitted. Any written comments received will be included in the official record of the meeting and should be submitted to the contact person below in advance of the meeting.
Contact Person For More Information: Theodore M. Katz, M.P.A., Designated Federal Official, NIOSH, CDC, 1600 Clifton Rd. NE., Mailstop: E-20, Atlanta, GA 30333, Telephone (513)533-6800, Toll Free 1-800-CDC-INFO, Email
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Family and Youth Services Bureau (FYSB), Administration on Children, Youth, and Families (ACYF), ACF, HHS.
This notice was originally published as Funding Opportunity Number HHS-2013-ACF-ACYF-FVPS-
This announcement governs the proposed award of formula grants under the Family Violence Prevention and Services Act (FVPSA) to Native American Tribes (including Alaska Native Villages) and Tribal organizations. The purpose of these grants is to assist Tribes in efforts to increase public awareness about, and primary and secondary prevention of family violence, domestic violence, and dating violence and to provide immediate shelter and supportive services for victims of family violence, domestic violence, or dating violence, and their dependents. This announcement sets forth the application requirements, the application process, and other administrative and fiscal requirements for grants in Fiscal Year 2013. Grantees are to be mindful that although the expenditure period for grants is a two-year period, an application is required each year to provide continuity in the provision of services.
Section 309 of the Family Violence Prevention and Services Act, as amended by Section 201 of the CAPTA Reauthorization Act of 2010, Pub.L. 111-320.
The Administration on Children, Youth and Families (ACYF) is committed to facilitating healing and recovery and promoting the social and emotional well-being of victims, children, youth, and families who have experienced domestic violence, maltreatment, exposure to violence, and trauma. This FVPSA funding opportunity announcement, administered through ACYF's Family and Youth Services Bureau (FYSB) is designed to assist Tribes in their efforts to support the establishment, maintenance, and expansion of programs and projects: (1) to prevent incidents of family violence, domestic violence, and dating violence; (2) to provide immediate shelter, supportive services, and access to community-based programs for victims of family violence, domestic violence, or dating violence, and their dependents; and (3) to provide specialized services for children exposed to family violence, domestic violence, or dating violence, underserved populations, and victims who are members of racial and ethnic minority populations (section 10406 (a).
Tribes face unique circumstances and obstacles when responding to family violence. The particular legal relationship of the United States to Indian Tribes creates a Federal trust responsibility to assist Tribal governments in safeguarding the lives of Indian victims of family violence.
The Department of Health and Human Services (HHS) consulted with Tribal governments regarding this grant program and the issue of violence against women. In FY 2012, the Administration for Children and Families (ACF) consulted with Tribal governments on all of the grant programs administered by ACF. In addition, ACYF representatives consulted during the Inter-Departmental Tribal Justice Safety and Wellness Consultation on FVPSA issues.
During FY 2012, HHS awarded FVPSA grants to 141 Tribes or Tribal organizations in support of 224 Tribes; 55 States and Territories; and 55 non-profit State Domestic Violence Coalitions. In addition, HHS awarded FVPSA grants to one National Indian Resource Center addressing Domestic Violence and Safety for Indian Women, and other national, special issue and culturally specific resource centers, and the National Domestic Violence Hotline.
ACYF is committed to facilitating healing and recovery and promoting the social and emotional well-being of children, youth, and families/adults who have experienced maltreatment, exposure to violence, and/or trauma. This funding opportunity announcement and other spending this fiscal year are designed to ensure that effective interventions are in place to build skills and capacities that contribute to the healthy, positive, and productive functioning of families.
Children, youth, adults and families who have experienced maltreatment, exposure to violence, and/or trauma are impacted along several domains, each of which must be addressed in order to foster social and emotional well-being and promote healthy, positive functioning:
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•
•
•
The skills and capacities in these areas support children, youth, adults and families as challenges, risks, and opportunities arise. In particular, each domain impacts the capacity of children, youth, adults and families to establish and maintain positive relationships with caring adults and supportive peers. The necessity of these relationships to social and emotional well-being and lifelong success in school, community, and at home cannot be overstated and should be central to all interventions with vulnerable children, youth, adults and families.
An important component of promoting social and emotional well-being includes addressing the impact of trauma, which can have a profound effect on the overall functioning of children, youth, adults and families. ACYF promotes a trauma-informed approach, which involves understanding and responding to the symptoms of chronic interpersonal trauma and traumatic stress across the domains outlined above, as well as the behavioral and mental health consistency of trauma.
ACYF anticipates a continued focus on social and emotional well-being as a critical component of its overall mission to ensure positive outcomes for all children, youth, adults and families. Tribal grantees have a critical role in incorporating ACYF priorities by helping to ensure trauma-informed interventions are embedded within the service provision framework of all services funded by FVPSA. Tribes and Tribal organizations are strongly encouraged to leverage the expertise of the FVPSA-funded National Indigenous Women's Resource Center on Domestic Violence and the National Center on Domestic Violence, Trauma and Mental Health to infuse programs with best and promising practices on trauma-informed interventions to support the social and emotional well-being of families seeking shelter and supportive services.
Grantees should ensure that not less than 70 percent of the funds distributed are used for the primary purpose of providing immediate shelter and supportive services to adult and youth victims of family violence, domestic violence, or dating violence and their dependents; not less than 25 percent of the funds will be used for the purpose of providing supportive services and prevention services (section 10408(b)). FVPSA funds awarded to grantees should be used for activities described in (section 10408(b)):
• Provision of immediate shelter and related supportive services to adult and youth victims of family violence, domestic violence, or dating violence, and their dependents, including paying for the operating and administrative expenses of the facilities for such shelter.
• Provision of individual and group counseling, peer support groups, and referral to community-based services to assist family violence, domestic violence, and dating violence victims, and their dependents, in recovering from the effects of the violence.
• Provision of services, training, technical assistance, and outreach to increase awareness of family violence, domestic violence, and dating violence, and increase the accessibility of family violence, domestic violence, and dating violence services.
• Provision of culturally and linguistically appropriate services.
• Provision of services for children exposed to family violence, domestic violence, or dating violence, including age-appropriate counseling, supportive services, and services for the non-abusing parent that support that parent's role as a caregiver, which may, as appropriate, include services that work with the non-abusing parent and child together.
• Provision of advocacy, case management services, and information and referral services, concerning issues related to family violence, domestic violence, or dating violence intervention and prevention, including: (1) Assistance in accessing related Federal and State financial assistance programs; (2) legal advocacy to assist victims and their dependents; (3) medical advocacy, including provision of referrals for appropriate health care services (including mental health, alcohol, and drug abuse treatment), but which shall not include reimbursement for any health care services; (4) assistance locating and securing safe and affordable permanent housing and homelessness prevention services; (5) transportation, child care, respite care, job training and employment services, financial literacy services and education, financial planning and related economic empowerment services; and (6) parenting and other educational services for victims and their dependents.
• Provision of prevention services, including outreach to underserved populations.
• Assistance in developing safety plans, and supporting efforts of victims of family violence, domestic violence, or dating violence to make decisions related to their ongoing safety and well-being.
FVPSA Tribal grantees must plan to attend the annual grantee meeting and may use grant funding to support the travel of up to two participants. The meeting is a training and technical assistance activity focusing on FVPSA administrative issues as well as the promotion of evidence informed and promising practices to address family violence, domestic violence and dating violence. Subsequent correspondence will advise the FVPSA Tribal grantees of the date, time and location of their grantee meeting.
In order to ensure the safety of adult, youth, and child victims of family violence, domestic violence, or dating violence, and their families, FVPSA-funded programs must establish and implement policies and protocols for maintaining the confidentiality of records pertaining to any individual provided domestic violence services. Consequently, when providing statistical data on program activities and program services, individual identifiers of client records will not be used (section 10406(c)(5)).
In the annual grantee Performance Progress Report (PPR), grantees must collect unduplicated data from each program. No client level data should be shared with a third party, regardless of encryption, hashing, or other data security measures, without a written, time-limited release as described in section 10406(c)(5). The address or location of any FVPSA-supported shelter facility shall, except with written authorization of the person or persons responsible for the operation of such shelter, not be made public (section 10406(c)(5)(H)) and the confidentiality of records pertaining to any individual provided domestic violence services by any FVPSA-supported program will be strictly maintained.
The impacts of family violence may include physical injury and death of primary or secondary victims, psychological trauma, isolation from family and friends, harm to children living with a parent or caretaker who is either experiencing or perpetrating family violence, increased fear, reduced mobility, damaged credit, employment and financial instability, homelessness, substance abuse, chronic illnesses, and a host of other health and related mental
It is essential that community service providers are involved in the design and improvement of intervention and prevention activities. Coordination and collaboration among victim services providers; community-based, culturally specific, and faith-based services providers; housing and homeless services providers; and Tribal, Federal, State, and local public officials and agencies are needed to provide more responsive and effective services to victims of family violence, domestic violence, and dating violence, and their families.
To promote a more effective response to family violence, domestic violence, and dating violence, HHS requires States receiving FVPSA funds to collaborate with State Domestic Violence Coalitions, Tribes, Tribal organizations, service providers, and community-based organizations to address the needs of family violence, domestic violence, and dating violence victims, particularly for those who are members of racial and ethnic minority populations and underserved populations (section 10407(a)(2)).
To serve victims most in need and to comply with Federal law, services must be widely accessible. Services must not discriminate on the basis of age, disability, sex, race, color, national origin, or religion (section 10406(c)(2)). The HHS Office for Civil Rights provides guidance to grantees in complying with civil rights laws that prohibit discrimination on these bases. Please see
Services must also be provided on a voluntary basis; receipt of emergency shelter or housing must not be conditioned on participation in supportive services (section 10408(d)).
Tribes and Tribal organizations should use the following definitions in carrying out their programs.
Subject to the availability of Federal appropriations and as authorized by law, in FY 2013, ACYF will allocate 10 percent of the appropriation available under section 10403(a) to Tribes and Tribal organizations for the establishment and operation of shelters, safe houses, and the provision of supportive services for victims of family violence, domestic violence, or dating violence, and their dependents.
HHS will also make available funds to States to support local domestic violence programs to provide immediate shelter and supportive services for adult and youth victims of family violence, domestic violence, or dating violence, and their dependents; State Domestic Violence Coalitions to provide technical assistance and training, advocacy services, among other activities with local domestic violence programs; the national resource centers, special issue resource centers and culturally specific resource centers; the National Domestic Violence Hotline; and to support discretionary projects including training and technical assistance, collaborative projects with advocacy organizations and service providers, data collection efforts, public education activities, research, and other demonstration projects.
In computing tribal allocations, ACF will use the latest available population figures from the Census Bureau. The latest Census population counts may be viewed at:
The funding formula for the allocation of family violence funds is based upon the Tribe's population. The formula has two parts, the Tribal population base allocation and a population category allocation.
The base allocations are determined by a Tribe's population and a funds allocation schedule. Tribes with populations between 1 and 50,000 people receive a $2,500 base allocation for the first 1,500 people. For each additional 1,000 people above the 1,500 person minimum, a Tribe's base allocation is increased $1,000. Tribes with populations between 50,001 to 100,000 people receive base allocations of $125,000, and Tribes with a population of 100,001 to 150,000 receive a base allocation of $175,000.
Once the base allocations have been distributed to the Tribes that have applied for FVPSA funding, the ratio of the Tribal population category allocation to the total of all base allocations is then considered in allocating the remainder of the funds. By establishing base amounts with distribution of proportional amounts for larger Tribes, FYSB is balancing the need for basic services for all Tribes with the greater demand for services among Tribes with larger populations. In FY 2012, actual grant awards ranged from $14,897-$1,675,967.
Tribes are encouraged to apply for FVPSA funding as a consortium (see
FVPSA Tribal formula grant awards are for a 2-year period. The project period for this award is from October 1, 2012-September 30, 2014.
The project period under this program announcement is 24 months. The FVPSA funds may be used for expenditures starting October 1 of each fiscal year for which they are granted, and will be available for expenditure through September 30 of the following fiscal year; i.e., FY 2013 funds may be used for expenditures from October 1, 2012, through September 30, 2014. For example:
Re-allotted funds, if any, are available for expenditure until the end of the fiscal year following the fiscal year that the funds became available for re-allotment. FY 2013 grant funds that are made available to Tribes and Tribal organizations through re-allotment must be expended by the grantee no later than September 30, 2014.
Tribes, Tribal organizations and nonprofit private organizations authorized by a Tribe, as defined in
Data Universal Numbering System (DUNS) Number is the nine-digit, or thirteen-digit (DUNS + 4), number established and assigned by Dun and Bradstreet, Inc. (D&B) to uniquely identify business entities.
All applicants and sub-recipients must have a DUNS number at the time of application in order to be considered for a grant or cooperative agreement. A
The process to request a DUNS Number by telephone will take between 5 and 10 minutes.
The System for Award Management (SAM) at
SAM is the Federal registrant database and repository into which an entity must provide information required for the conduct of business as a recipient. The former CCR Web site is no longer be available. All information previously held in the Central Contractor Registration (CCR) system has been migrated to SAM.gov.
Applicants may register at
Applicants are strongly encouraged to register at SAM well in advance of the application due date. Registration at SAM.gov must be updated annually.
It can take 24 hours or more for updates to registrations at SAM.gov to take effect. An entity's registration will become active after 3-5 days. Therefore, c
See the SAM Quick Guide for Grantees at
• Be registered in at Sam.gov prior to submitting an application or plan;
• Maintain an active registration at
• Provide its active DUNS number in each application or plan it submits to an HHS agency.
ACF is prohibited from making an award to an applicant that has not complied with these requirements. If, at the time an award is ready to be made, if the intended recipient has not complied with these requirements, ACF:
• May determine that the applicant is not qualified to receive an award; and
• May use that determination as a basis for making an award to another applicant
Applicants seeking financial assistance under this announcement must submit the listed Standard Forms (SFs), assurances, certifications and policy. All required Standard Forms, assurances, and certifications are available at
Each applicant must provide signed copy of both the assurance and policy. (See Appendices A and B)
The content of the application should include the following in this order:
The cover letter of the application should include the following information:
(1) The name of the Tribe, Tribal organization, or nonprofit private organization applying for the FVPSA grant and the mailing address.
(2) The name of the Tribally Designated Official authorized to administer this grant, along with the telephone number, fax number, and email address.
(3) The name of a Program Contact designated to administer coordination of the programming, including the telephone number, fax number, and email address.
(4) The Employee Identification Number (EIN) of the applicant organization submitting the application.
(5) The D-U-N-S number of the applicant organization submitting the application (see
(6) The signature of the Tribally Designated Official (see
(1) A description of the service area(s) and population(s) to be served.
(2) A description of the services to be provided with FVPSA funds.
(3) A description of barriers that challenge the effectiveness of the operation of the program and/or services provided to victims of domestic violence, family violence and dating violence and their dependents.
(4) A description of the technical assistance needed to address the described barriers.
A description of the applicant's operation of and/or capacity to carry out a FVPSA program. This might be demonstrated in ways such as the following:
(1) The current operation of a shelter, safe house, or domestic and dating violence prevention program;
(2) The establishment of joint or collaborative service agreements with a local public agency or a private non-profit agency for the operation of family violence, domestic violence, or dating violence activities or services; or
(3) The operation of other social services programs.
A description of the activities and services to be provided, including:
(1) How the grant funds will be used to provide shelter, supportive services, and prevention services for victims of family violence, domestic violence, and dating violence. Please note that for the purposes of this grant, domestic violence does not include services targeted solely to address child abuse and neglect.
(2) How the services are designed to reduce family violence, domestic violence, and dating violence.
(3) A plan describing how the organization will provide specialized services for children exposed to family violence, domestic violence, or dating violence.
(4) An explanation of how the program plans to evaluate the services to determine effectiveness.
(5) A description of how the funds are to be spent. For example, a half-time Domestic Violence Advocate and costs for transportation to shelter.
A description of the procedures designed to involve knowledgeable individuals and interested organizations in providing services under FVPSA. For example, knowledgeable individuals and interested organizations may include Tribal officials or social services staff involved in family violence prevention, Tribal law enforcement officials, representatives of State or Tribal Domestic Violence Coalitions, and operators of domestic violence shelters and service programs.
(1) A description of how the applicant will involve community-based organizations whose primary purpose is to provide culturally appropriate services to underserved populations.
(2) A description of how these community-based organizations can assist the Tribe in addressing the unmet needs of such populations.
A copy of a current Tribal Resolution or an equivalent document that:
(1) Covers the entirety of FY 2013, including a date when the resolution or equivalent document expires, which can be no more than 5 years.
(2) States that the Tribe or Tribal organization has the authority to submit an application on behalf of the individuals in the Tribe(s) and to administer programs and activities funded.
An applicant that received no funding in the immediately preceding fiscal year must submit a new Tribal resolution or its equivalent. An applicant funded as part of a consortium in the immediately preceding year that is now seeking funds as a single Tribe must also submit a new resolution or its equivalent. Likewise, an applicant funded as a single Tribe in the immediately preceding fiscal year that is now seeking funding as a part of a consortium must submit a new resolution or its equivalent. In addition to 1 and 2 above, new resolutions should state the Tribal service area and the primary services to be provided by the Tribe or Tribal organization under this grant.
Written documentation of the policies and procedures developed and implemented, including copies of the policies and procedures, to ensure that the safety and confidentiality of clients and their dependents served is maintained as described in
As required by the Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520, the public reporting burden for the project description is estimated to average 10 hours per response, including the time for reviewing instructions, gathering and maintaining the data needed, and reviewing the collection of information. The Project Description information collection is approved under OMB control number 0970-0280, which expires November 30, 2014. 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.
The review and comment provisions of the Executive Order (E.O.) 12372 and Part 100 do not apply. Federally recognized Tribes are exempt from all provisions and requirements of E.O. 12372.
The Consolidated Appropriations Act, 2012 (Pub.L. 112-74), enacted December 23, 2011, limited the salary amount that could be awarded and charged to ACF mandatory and discretionary grants. Public Law 112-175 extended this salary limitation through the earlier of March 27, 2013 or enactment of the relevant FY 2013 appropriations statue(s). Accordingly, award funds issued under this announcement may not be used to pay the salary, or any percentage of salary, to an individual at a rate in excess of Executive Level II. The Executive Level II salary of the Federal Executive Pay scale is $179,700 (
Applications should be sent or delivered to: Family Violence Prevention and Services Program, Family and Youth Services Bureau, Administration on Children, Youth and Families, Administration for Children and Families, Attention: Shena R. Williams, 1250 Maryland Avenue, SW., Suite 8213, Washington, DC 20024.
Awards issued under this announcement are subject to the uniform administrative requirements and cost principles of 45 CFR § 74 (Uniform Administrative Requirements for Awards and Subawards to Institutions of Higher Education, Hospitals, Other Nonprofit Organizations, and Commercial Organizations) or 45 CFR§ 92 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State, Local, and Tribal Governments). The Code of Federal Regulations (CFR) is available at
An application funded with the release of Federal funds through a grant award, does not constitute, or imply, compliance with Federal regulations. Funded organizations are responsible for ensuring that their activities comply with all applicable federal regulations.
Grantees are also subject to the requirements of 45 C.F.R. Part 87.1(c), Equal Treatment for Faith-Based Organizations, which says, “Organizations that receive direct financial assistance from the [Health and Human Services] Department under any Department program may not engage in inherently religious activities such as religious instruction, worship, or proselytization as part of the programs or services funded with direct financial assistance from the Department.” Therefore, organizations must take steps to completely separate the presentation of any program with religious content from the presentation of the Federally funded program by time or location
A faith-based organization receiving HHS funds retains its independence from Federal, State, and local governments, and may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs. For example, a faith-based organization may use space in its facilities to provide secular programs or services funded with Federal funds without removing religious art, icons, scriptures, or other religious symbols. In addition, a faith-based organization that receives Federal funds retains its authority over its internal governance, and it may retain religious terms in its organization's name, select its board members on a religious basis, and include religious references in its organization's mission statements and other governing documents in accordance with all program requirements, statutes, and other applicable requirements governing the conduct of HHS funded activities.
Regulations pertaining to the Equal Treatment for Faith-Based Organizations, which includes the prohibition against Federal funding of inherently religious activities, Understanding the Regulations Related to the Faith-Based and Neighborhood Partnerships Initiative” are available at
The Drug-Free Workplace Act of 1988 (41 U.S.C. § 8102 et seq.) requires that all organizations receiving grants from any Federal agency agree to maintain a drug-free workplace. By signing the application, the Authorizing Official agrees that the grantee will provide a drug-free workplace and will comply with the requirement to notify ACF if an employee is convicted of violating a criminal drug statute. Failure to comply with these requirements may be cause for debarment. Government wide requirements for Drug-Free Workplace for Financial Assistance are found in 2 CFR part 182; HHS implementing regulations are set forth in 2 CFR part 382.400. All recipients of ACF grant funds must comply with the requirements in Subpart B—Requirements for Recipients Other Than Individuals, 2 CFR part 382.225. The rule is available at
HHS regulations published in 2 CFR part 376 implement the government-wide debarment and suspension system guidance (2 CFR part 180) for HHS' non-procurement programs and activities. “Non-procurement transactions” include, among other things, grants, cooperative agreements, scholarships, fellowships, and loans. ACF implements the HHS Debarment and Suspension regulations as a term and condition of award. Grantees may decide the method and frequency by which this determination is made and may check the Excluded Parties List System (EPLS) located at
The Pro-Children Act of 2001, 20 U.S.C. §§ 7181 through 7184, imposes restrictions on smoking in facilities where federally funded children's services are provided. HHS grants are subject to these requirements only if they meet the Act's specified coverage. The Act specifies that smoking is prohibited in any indoor facility (owned, leased, or contracted for) used for the routine or regular provision of kindergarten, elementary, or secondary education or library services to children under the age of 18. In addition, smoking is prohibited in any indoor facility or portion of a facility (owned, leased, or contracted for) used for the routine or regular provision of federally funded health care, day care, or early childhood development, including Head Start services to children under the age of 18. The statutory prohibition also applies if such facilities are constructed, operated, or maintained with Federal funds. The statute does not apply to children's services provided in private residences, facilities funded solely by Medicare or Medicaid funds, portions of facilities used for inpatient drug or alcohol treatment, or facilities where WIC coupons are redeemed. Failure to comply with the provisions of the law may result in the imposition of a civil monetary penalty of up to $1,000 per violation and/or the imposition of an administrative compliance order on the responsible entity.
The Secretary of HHS shall approve any application that meets the requirements of FVPSA and this announcement. The Secretary shall not disapprove an application unless the Secretary gives the applicant reasonable
ACF grantees must submit a PPR using the standardized format provided by FVPSA and approved by OMB (0970-0280). This report will describe the grant activities carried out during the year, report the number of people served, and contain an evaluation of the effectiveness of such activities. Consortia grantees should compile the information into a comprehensive PPR for submission. A copy of the PPR is available on the FYSB Web site at:
PPRs for Tribes and Tribal organizations are due on an annual basis at the end of the calendar year (December 30) and will cover from October 1 through September 30. Grantees should submit their reports online through the Online Data Collection (OLDC) system at the following address:
Grantees must submit annual Financial Status Reports. The first SF-425A is due December 30, 2012. The final SF-425A is due December 30, 2013. SF-425A can be found at:
Grantees have the option of submitting their reports online through the Online Data Collection (OLDC) system at the following address:
Failure to submit reports on time may be a basis for withholding grant funds, or suspension or termination of the grant. All funds reported as unobligated after the obligation period will be recouped.
Awards issued as a result of this funding opportunity may be subject to the Transparency Act subaward and executive compensation reporting requirements of 2 CFR § 170. See ACF's
ACF has implemented the use of the SF-428
Shena R. Williams, Program Specialist at (202) 205-5932 or email at
Deborah Bell, Division of Mandatory Grants at (202) 401-4611 or email at
Shena R. Williams at (202) 205-5932 or email at
The grantee certifies that it will comply with the following assurances under the Family Violence Prevention and Services Act, 42 U.S.C. § 10401, et seq. (cited herein by the applicable section number only):
(1) Family Violence Prevention and Services Act (FVPSA) grant funds will be used to provide shelter, supportive services or prevention services to adult and youth victims of family violence, domestic violence, or dating violence and their dependents (section 10408(b)(1)).
(2) Not less than 70 percent of the funds distributed shall be for the primary purpose of providing immediate shelter and supportive services as defined in section 10402(9) and (12) to adult and youth victims of family violence, domestic violence or dating violence as defined in section 10402(2), (3) and (4), and their dependents (section 10408(b)(2)).
(3) Not less than 25 percent of the funds distributed shall be for the purpose of providing supportive services and prevention services as described in section 10408(b)(1)(B) through (H), to victims of family violence, domestic violence, or dating violence, and their dependents (section 10408(b)(2)).
(4) Grant funds will not be used as direct payment to any victim of family violence, domestic violence, or dating violence, or to any dependent of such victim (section 10408(d)(1)).
(5) No income eligibility standard will be imposed on individuals with respect to eligibility for assistance or services supported with funds appropriated to carry out the FVPSA (section 10406(c)(3)).
(6) No fees will be levied for assistance or services provided with funds appropriated to carry out the FVPSA (section 10406(c)(3)).
(7) The address or location of any shelter or facility assisted under the FVPSA that otherwise maintains a confidential location will, except with written authorization of the person or persons responsible for the operation of such shelter, not be made public (section 10406(c)(5)(H)).
(8) Procedures are established to ensure compliance with the provisions of section 10406(c)(5) regarding non-disclosure of confidential of private information (section 10407(a)(2)(A)).
(9) Pursuant to Section 10406(c)(5), comply with the new FVPSA provisions regarding non-disclosure of confidential or private information. As such, the applicant will comply with additional requirements imposed by that section which include but are not limited to: (A) grantees shall not disclose any personally identifying information collected in connection with services requested (including services utilized or denied), through grantee's funded activities or reveal personally identifying information without informed, written, reasonably time-limited consent by the person about whom information is sought, whether for the FVPSA funded activities or any other Federal or State program (additional consent requirements have been omitted
(10) As prescribed by section 10406(c)(2) of the FVPSA, the Tribe will use grant funds in a manner which avoids prohibited
(11) Funds made available under the FVPSA will be used to supplement and not supplant other Federal, State and local public funds expended to provide services and activities that promote the objectives of the FVPSA (section 10406(c)(6)).
(12) Receipt of supportive services under the FVPSA will be voluntary. No condition will be applied for the receipt of emergency shelter (section 10408(d)(2)).
(13) The Tribe has a law or procedure to bar an abuser from a shared household or a household of the abused person, which may include eviction laws or procedures (section 10407(a)(2)(H)).
As the Authorized Organizational Representative (AOR) signing this application on behalf of
I hereby attest and certify that:
The needs of lesbian, gay, bisexual, transgender, and questioning (also known as “Two-Spirited”) program participants are taken into consideration in applicant's program design. Applicant considered how its program will be inclusive of and non-stigmatizing toward such participants. If not already in place, awardee and, if applicable, sub-awardees must establish and publicize policies prohibiting harassment based on race, sexual orientation, gender, gender identity (or expression), religion, and national origin. The submission of an application for this funding opportunity constitutes an assurance that applicants have or will put such policies in place within 12 months of the award. Awardees should ensure that all staff members are trained to prevent and respond to harassment or bullying in all forms during the award period. Programs should be prepared to monitor claims, address them seriously, and document their corrective action(s) so all participants are assured that programs are safe, inclusive, and non-stigmatizing by design and in operation. In addition, any sub-awardees or subcontractors:
• Have in place or will put into place within 12 months of the award policies prohibiting harassment based on race, sexual orientation, gender, gender identity (or expression), religion, and national origin;
• Will enforce these policies;
• Will ensure that all staff will be trained during the award period on how to prevent and respond to harassment or bullying in all forms, and;
• Have or will have within 12 months of the award, a plan to monitor claims, address them seriously, and document their corrective action(s).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by June 10, 2013.
Submit electronic comments on the collection of information to
Daniel Gittleson, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-5156,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
On June 22, 2009, the President signed the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) into law. The Tobacco Control Act amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) by adding, among other things, a new chapter granting FDA important authority to regulate the manufacture, marketing, and distribution of tobacco products to protect the public health generally and to reduce tobacco use by minors. The Tobacco Control Act created many new requirements for the tobacco industry. Section 101 of the Tobacco Control Act amended the FD&C Act by adding, among other things, section 904(a)(4) (21 U.S.C. 387d(a)(4)).
Section 904(a)(4) of the FD&C Act requires each tobacco product manufacturer or importer, or agent thereof, to submit all documents developed after June 22, 2009, “that relate to health, toxicological, behavioral, or physiologic effects of current or future tobacco products, their constituents (including smoke constituents), ingredients, components, and additives” (herein referred to as “tobacco health documents”).
FDA announced the availability of a guidance on this collection in the
FDA has been collecting the information submitted pursuant to section 904(a)(4) through a facilitative electronic form and through a paper form (Form FDA 3743) for those individuals who choose not to use the electronic method. In both forms, FDA is requesting the following information from firms that have not already reported or still have documents to report:
• Submitter identification: Submitter type, company name, address, country, company headquarters Dun and Bradstreet number, and company headquarters Facility Establishment Identifier number;
• Submitter point of contact: Contact name, title, position title, email, telephone, and fax; and
• Submission format and contents (as applicable):
○ Electronic documents: Media type, media quantity, size of submission, quantity of documents, file type, and file software;
○ Paper documents: Quantity of documents, quantity of volumes, and quantity of boxes; and
○ Whether or not a submission is being provided.
• Confirmation statement (with identification and signature of submitter including name, company name, address, position title, email, telephone, and fax); and
• Document categorization (as applicable): Relationship of the document or set of documents to the following:
○ Health, behavioral, toxicological, or physiological effects;
○ Specific current or future tobacco product(s);
○ Class of current or future tobacco product(s);
○ Specific ingredient(s), constituent(s), component(s), or additive(s);
○ Class of ingredient(s), constituent(s), component(s), or additive(s).
• Document readability and accessibility: Keywords; glossary or explanation of any abbreviations, jargon, or internal (e.g., code) names; special instructions for loading or compiling submission; and
• Document metadata: Date document was created, document author(s), document recipient(s), document custodian, document title or identification number, beginning and ending Bates numbers, and Bates number ranges for documents attached to a submitted email.
In addition to the electronic and paper forms, the guidance that FDA issued in April 2010 (75 FR 20606) was intended to assist persons making tobacco health document submissions. For further assistance, FDA is providing a technical guide, embedded hints, and a Web tutorial on the electronic portal.
The estimated 50 hours per response burden is based on the average burden estimate among all 4 respondents. Therefore, on an individual basis, the actual burden per respondent may be higher or lower than the 50 hours estimate because it is an average value. FDA currently is evaluating the classification/coding recommendations and will revisit this issue in future guidance. The number of documents received each year since the original collection period has fallen to less than 5 percent of the number received in the original collection period. FDA expects this is because documents created within the specified period have already been submitted. Also, the number of respondents who still have documents to submit has decreased. Therefore, FDA estimates the biannual burden of the continuation of this collection to be at most, 5 percent of the original burden.
FDA estimates the burden of this collection of information as follows:
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Health Resources and Services Administration (HRSA) will submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB). Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period. To request a copy of the clearance requests submitted to OMB for review, email
The annual estimate of burden is as follows:
Submit your comments to the desk officer for HRSA, either by email to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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.
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 on (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.
As the Federal agency responsible for developing and disseminating authoritative knowledge about substance abuse prevention, addiction treatment, and mental health services and for mobilizing consumer support and increasing public understanding to overcome the stigma attached to addiction and mental illness, the Substance Abuse and Mental Health Services Administration (SAMHSA) is responsible for development and dissemination of a wide range of education and information materials for both the general public and the
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2-1057, One Choke Cherry Road, Rockville, MD 20857
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 on (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.
The Substance Abuse and Mental Health Services Administration (SAMHSA) is requesting OMB approval for a revision to the Behavioral Health Web site and Resources data collection. SAMHSA is authorized under section 501(d)(16) of the Public Health Service Act (42 U.S.C. 290aa(d)(16)) to develop and distribute materials for the prevention, treatment, and recovery from substance abuse and mental health disorders. To improve customer service and lessen the burden on the public to locate and obtain these materials, SAMHSA has developed a Web site that includes more than 1,400 free publications from SAMHSA and its component Agencies: the Center for Substance Abuse Treatment, the Center for Substance Abuse Prevention, the Center for Mental Health Services, the Center for Behavioral Health Statistics and Quality, and other SAMHSA partners, such as the Office of National Drug Control Policy. These products are available to the public for ordering and download. When a member of the public chooses to order hard-copy publications, it is necessary for SAMHSA to collect certain customer information in order to fulfill the request. To further lessen the burden on the public and provide the level of customer service that the public has come to expect from product Web sites, SAMHSA has developed a voluntary registration process for its publication Web site that allows customers to create accounts. Through these accounts, SAMHSA customers are able to access their order histories and save their shipping addresses. This reduces the burden on customers of having to re-identify materials they ordered in the past and to re-enter their shipping information each time they place an order with SAMHSA. During the Web site registration process, SAMHSA also asks customers to provide optional demographic information that helps SAMHSA evaluate the use and distribution of its publications and improve services to the public.
SAMHSA is employing a Web-based form for information collection to avoid duplication and unnecessary burden on customers who register both for an account on the product Web site and for email updates. The Web technology allows SAMHSA to integrate the email update subscription process into the Web site account registration process.
SAMHSA collects all customer information submitted for Web site registration and email update subscriptions electronically via a series of Web forms on the samhsa.gov domain. Customers can submit the Web forms at their leisure, or call SAMHSA's toll-free Call Center and an information specialist will submit the forms on their behalf. The electronic collection of information reduces the burden on the respondent and streamlines the data-capturing process. SAMHSA places Web site registration information into a Knowledge Management database and places email subscription information into a database maintained by a third-party vendor that serves multiple Federal agencies and the White House. Customers can change, add, or delete their information from either system at any time.
The respondents are behavioral health professionals, researchers, parents, caregivers, and the general public.
SAMHSA proposes two changes to the information collection. The first change is increasing the number of responses based on the average annual number of actual responses in 2011 and 2012. The second change is modifying the response options for “Organization Type” in the following ways: “Treatment Facility” will be changed to “Behavioral Health Treatment Facility”, “Individual/Group Practice” will be changed to “Other Health Care Facility”, and adding four new categories including “Military/Veterans Organization,” “Criminal Justice/Courts,” “Health Insurer,” and “Human Resources/Employee Assistance Program.”
SAMHSA estimates the burden of this information collection as follows:
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.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the certification of flood proof residential basements in Special Flood Hazard Areas.
Comments must be submitted on or before June 10, 2013.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
(4)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Mary Ann Chang, Insurance Examiner, FEMA, Mitigation Directorate, (202) 212-4712 for additional information. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
The National Flood Insurance Program (NFIP) is authorized by Public Law 90-448 (1968) and expanded by Public Law 93-234 (1973). The National Flood Insurance Act of 1968 requires that the Federal Emergency Management Agency (FEMA) provide flood insurance. Title 44 CFR 60.3, Floodplain management criteria for flood-prone areas, ensures that communities participating in the NFIP, in Special Flood Hazard Areas (SFHAs), have basement construction at the lowest floor elevation or above the 100 year flood elevation, or Base Flood Elevation. This requirement is to reduce the risks of flood hazards to new buildings in SFHAs and reduce insurance rates. Title 44 CFR 60.6(c) allows communities to apply for an exception to permit and certify the
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the application process for the conveyance of Federal real property for public benefit. The purpose of this application is to implement the processes and procedures for the successful, lawful, and expeditious conveyance of real property from the Federal Government to public entities such as State, local, city, town, or other like government bodies as it relates to emergency management response purposes, including Fire and Rescue services. Compliance will ensure that properties will be fully positioned to use at their highest and best potentials as required by General Services Administration and Department of Defense regulations, Federal law, Executive Orders, and the Code of Federal Regulations.
Comments must be submitted on or before June 10, 2013.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Adrian Austin, Building Management Specialist, FEMA, Support Services and Facilities Management Division, 202-212-2099. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
Excess Federal real property is defined as property that is no longer mission critical to the needs of the Federal Government. The conveyance and disposal of excess real property is governed by the Federal Property and Administrative Services Act of 1949 (Property Act) as amended, 40 U.S.C. 541,
Under the sponsorship of Federal Emergency Management Agency (FEMA) the Property Act gives the Administrator of the General Services Administration (GSA) authority to convey Federal real and related surplus property (without monetary consideration) to units of State and local government for emergency management response purposes, including fire rescue services. The scope and philosophy of GSA's real property policies are contained in 41 CFR part 102-71.
Comments may be submitted as indicated in the
30-Day Notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until May 10, 2013. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to DHS, and to the OMB USCIS Desk Officer. Comments may be submitted to: DHS, USCIS, Office of Policy and Strategy, Chief, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2140. Comments may also be submitted to DHS via email at
All submissions received must include the agency name, OMB Control Number and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
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(4)
(5)
• Business/Private Sector: 135 respondents averaging 2 hours per response; plus
• Individual/Households: 400 respondents averaging 1 hour per response.
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If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of the HP
LaserJet Enterprise 500 Color Printer and Fax Machine M551. Based upon the facts presented, CBP has concluded in the final determination that China is the country of origin of the HP LaserJet Enterprise 500 Color Printer and Fax Machine M551, for purposes of U.S. Government procurement.
The final determination was issued on April 3, 2013. A copy of the
Karen Greene, Valuation and special Programs Branch, Regulations and Rulings, Office of International Trade (202-3235-0041).
Notice is hereby given that on April 3, 2013, pursuant to subpart B of part 177, Customs and Border Protection (CBP) Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of the HP LaserJet Enterprise 500 Color Printer and Fax Machine M551 which may be offered to the United States government under an undesignated government procurement contract. This final determination, in HQ H219519, was issued at the request of Hewlett-Packard Company under procedures set forth at 19 CFR part 177, Subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In the final determination CBP concluded that the HP LaserJet Enterprise 500 Color Printer and Fax Machines M551 assembled in Mexico from foreign made parts are products of China for purposes of U.S. Government procurement.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that notice of final determinations shall be published in the
This is in response to your letter dated May 21, 2012, requesting a final determination on behalf of Hewlett-Packard Company (“HP”), pursuant to subpart B of part 177 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 CFR Part 177). Under these regulations, which implement Title III of the Trade Agreements Act of 1979 (“TAA”) as amended (19 U.S.C. 2511 et seq.), CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or practice for products offered for sale to the U.S. Government.
The final determination concerns the country of origin of the HP LaserJet Enterprise 500 Color Printer and Fax Machine M551 (“LaserJet 500”). We note that as a U.S. importer, HP is a party-at-interest within the meaning of 19 CFR 177.22(d)(1) and is entitled to request this final determination. A telephone conference was held on this matter on September 27, 2012.
The LaserJet 500 is a laser-based office machine for printing and faxing, suitable for use in homes and small to medium-size businesses. It is composed of the following components: (1) an incomplete print engine, which consists of a metal frame, plastic skins, motors, controller board (supplier provided firmware), a laser scanning system, fuser, paper trays, cabling, paper transport rollers, miscellaneous sensing and imaging systems; (2) the formatter board, which consists of a printed circuit board, industry standard components and customized integrated circuits; (3) the fax card; (4) the hard disc drive; (5) the solid state drive; (6) the firmware; (7) the intermediate transfer belt (“ITB”); and (8) minor components and accessories. The incomplete print engine may also come in two other configurations that include either the ITB or the base unit and all of the hardware components.
It is stated that the complete print engine is the central mechanism of the LaserJet 500 that performs printing. It translates a laser image generated by the formatter to markings on paper, transports paper, and fuses the image on the paper. The ITB is essential to the imaging function because it transfers the image from each toner cartridge to the ITB by color plane and then carries the image to the paper. The print formatter is the main controller of the printer. Its main function is to receive input data from remote devices via different input ports, translate that data into format the print engine understands, and send the data onto the print engine, enabling the information to be printed onto paper. It is also responsible for providing command and control signals allowing the engine to start, run and stop motors in a manner that allows the paper to move from input devices to the designated output bin of the printer, while at the same time putting the printed image on the paper.
All the parts are produced in China except for the hard disc drive, which is produced in Malaysia. The firmware that allows access to the hardware (such as trays, and paper size) and software (ex. job counting, security, stored jobs) is developed and written in the U.S. and is tested and debugged in either Brazil or India. The formatter and other sub-systems have their own firmware for operation.
You presented three different scenarios. In scenarios one and two, the LaserJet 500 undergoes the following operations in Mexico: final assembly, downloading firmware written in U.S., and testing, which includes making settings appropriate to the country of the buyer and the client's specific needs. In scenario one, the assembly takes 3-4 minutes whereby the external memory drive is installed onto the formatter and the cables are routed as necessary. The firmware for the engine and formatter is downloaded onto the hard drive or solid state drive. In scenario two, the assembly takes 7-8 minutes and involves the assembly discussed in scenario one, plus the installation of the ITB. In both scenarios, the testing takes 7-14 minutes and includes making certain settings for the language, paper, functionality, and other feature settings, as described above. In scenario three, the LaserJet 500 undergoes assembly in Mexico that takes 2-3 minutes, the firmware for the sub-systems (engine, formatter) is downloaded onto the hard drive or solid state drive, and the product undergoes testing.
The cost of the incomplete print engine is the most expensive of the hardware components, with the formatter board being the second-most expensive component.
What is the country of origin of the imported LaserJet 500 for government procurement purposes under the three different scenarios?
Pursuant to Subpart B of part 177, 19 CFR 177.21et seq., which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511 et seq.), CBP issues country of origin advisory rulings and final determinations as to whether an article is or would be a product of a designated country or instrumentality for the purposes of granting waivers of certain “Buy American” restrictions in U.S. law or practice for products offered for sale to the U.S. Government.
Under the rule of origin set forth under 19 U.S.C. 2518(4)(B):
An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
It is your position that the country of origin in scenarios one and two is Mexico because the final assembly, programming and testing results in a finished and operational laser printer. You believe that the country of origin in scenario three is Mexico because although the incomplete print engine already includes all hardware components when it is imported
In determining whether the combining of parts or materials constitutes a substantial transformation, the determinative issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article.
In order to determine whether a substantial transformation occurs when components of various origins are assembled into completed products, CBP considers the totality of the circumstances and makes such determinations on a case-by-case basis. The country of origin of the item's components, extent of the processing that occurs within a country, and whether such processing renders a product with a new name, character, and use are primary considerations in such cases. Additionally, factor such as the resources expended on product design and development, the extent and nature of post-assembly inspection and testing procedures, and worker skill required during the actual manufacturing process will be considered when determining whether a substantial transformation has occurred. No one factor is determinative.
In
You cite HRL H185775, dated December 21, 2011, where CBP ruled that a laser-jet machine that operates as a printer, scanner, copy and fax machine, was considered a product of Mexico for procurement purposes. The scanner in that case was designed, developed and assembled in the U.S. The control panel was also designed in the U.S. The print engine was produced in Vietnam. The formatter, control panel, and solid state drive were produced in China. The hard disk drive was produced in Malaysia. This case is distinguishable from the instant case because the hardware was produced in various Asian countries.
You also cite HRL H175415, dated October 4, 2011, where CBP held that development of U.S. software, at significant cost to the company and over many years plus the programming of an imported local area network switch in the U.S. together substantially transformed the switch in the U.S. In that case, the software provided the hardware with its essential character of data transmission by providing network switching and routing functionality among other operations. Accordingly, the country of origin of the switch was considered the U.S.
Unlike H185775, in all three scenarios presented in this case, all the components except the hard disc drive are produced in China. The assembly performed in Mexico is a simple assembly not significant enough to result in a substantial transformation of those Chinese components and subassemblies. There is no showing that in any of the scenarios, the processing in Mexico is complex. The downloading of the firmware in Mexico does not change or define the use of the finished printer/fax machine. The firmware itself provides the essential characteristics of performing as a printer and fax machine. While the firmware may be developed in the U.S., the downloading is not occurring in the U.S. Further, the firmware downloaded in Mexico does not include all the firmware necessary for the finished good. Furthermore, some of the assemblies (formatter, for example) have their own firmware. All the significant parts that are the essence of the finished product are produced in China, particularly the high-cost print engine and formatter board. Accordingly, we find that the country of origin of the imported LaserJet 500 for government procurement purposes would be China under all three scenarios.
Based on the facts provided, the LaserJet 500 will be considered a product of China under all three scenarios for government procurement purposes.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of certain ultrasound systems. Based upon the facts presented, CBP has concluded in the final determination that the U.S. is the country of origin of the ultrasound systems for purposes of U.S. government procurement.
The final determination was issued on April 3, 2013. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination on or before May 10, 2013.
Elif Eroglu, Valuation and Special Programs Branch: (202) 325-0277.
Notice is hereby given that on April 3, 2013, pursuant to subpart B of part 177, Customs Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of the Siemens Medical S2000 and Antares ultrasound systems which may be offered to the U.S. Government under an undesignated government procurement contract. This final determination, Headquarters Ruling Letter (“HQ”) H219597, was issued at the request of Siemens Medical Solutions USA under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In the final determination, CBP has concluded that, based upon the facts presented, the assembly of the S2000 and Antares ultrasound systems in the U.S., from parts made in Japan, Korea, Italy, China, and the U.S., constitutes a substantial
Section 177.29, Customs Regulations (19 CFR 177.29), provides that notice of final determinations shall be published in the
Dear Mr. Gourley:
This is in response to your correspondence of January 30, 2012 and additional information you submitted on May 22, 2012, July 23, 2012, August 29, 2012, and September 4, 2012, requesting a final determination on behalf of Siemens Medical Solutions USA, Inc. (“Siemens Medical”), pursuant to subpart B of part 177, U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 177.21
This final determination concerns the country of origin of the Siemens Medical S2000 and Antares ultrasound systems. We note that Siemens Medical is a party-at-interest within the meaning of 19 C.F.R. § 177.22(d)(1) and is entitled to request this final determination.
The merchandise at issue are two Siemens Medical ultrasound units, known as the S2000 and Antares ultrasound systems, engineered, designed, and subject to final assembly in the U.S. from U.S. and foreign components. The S2000 and Antares ultrasound systems are diagnostic imaging systems that transmit sound waves and then receive and process the echoes of those waves to create a visual representation of a patient's tissues and organs. You state these systems comprise three core elements: (1) the transducers that send and receive the acoustic signals from the patient; (2) the electronics module that processes signals and “beamform” the data to convert it into a form that can be used by Siemens' proprietary application software; and (3) the application software that manipulates and displays the patient image data to allow for diagnostic and prescriptive use by healthcare professionals.
One of the most critical elements required for the manufacture of a functional ultrasound system is the transducer which is the handset that is passed over the surface of the patient's body, where it produces high-frequency sound waves that penetrate the area of the body being scanned. The transducer focuses the sound-wave beam of pulses into specific dimensions as well as scans the beam over the region of interest in the patient's anatomy. The transducer then receives the “echo” of these sound waves as they rebound from the patient's internal organs and tissue, and transmits this returned data (as electrical impulses) to the electronics module. The quality of the beam and return echo define the quality of the signal and resulting image which is of key significance to the diagnostician employing the ultrasound. The typical customer-ordered S2000 or Antares ultrasound systems will have three or more transducers that allow for application-specific usage. The transducers are manufactured in Korea.
The electrical signals from the transducer are processed by the electronics module and, once converted to usable digital data, manipulated by the application software and then displayed on the machine's monitor for the clinical user. The proprietary software is run on what are essentially commoditized computer hardware components.
The application software is stated to be the key element that enables the electronics module to “translate” the data received from the transducer into an image to be displayed on the monitor. The software performs a variety of functions including standard work flow items such as archiving and displaying patient data as well as image data manipulation/transformation, custom display, and analytics/calculations. Depending on the specific customer's intended end-use (
You state that the manufacturing of the electronics module in China involves: (1) the incorporation and testing of the Chinese-origin circuit boards (printed wiring assemblies) to specification; and (2) the incorporation of Chinese-origin real-time manager assembly, which includes a commercial computer motherboard, CPU, hard drive, and video card. These assembly operations also require the installation of Chinese-origin subcomponents and sub-assemblies including:
• A “backplane” which is a circuit board that connects the various system boards;
• A “cardcage” which is a mechanical structure to which the backplane is bolted;
• A “continuous beamformer” used for Doppler imaging to depict both visual images and audio interpretation of blood flow;
• A power supply system (including a U.S.-origin transformer, Japanese-origin power supplies for both the analog and digital portions of the system, and the alternating current tray and cable that will connect to the external power receptacle); and
• A trolley frame assembly, which is the structure that houses the CPU and that ultimately will house the other components added after importation into the U.S. (i.e., the monitor, the control panel, connecting cables, transducers, etc.).
Following assembly of the electronics module, the test version of the Siemens Medical's operating system software, which is designed, engineered, and written in the U.S., is uploaded onto the real-time manager assembly hard drive to test the hardware to correct any manufacturing defects. The testing involves the use of a temporary licensing schema (via the use of a USB license key tool) to temporarily enable various application features. Once the testing is completed and the USB thumb drive is removed, the software is no longer enabled. You state that the condition of the system when it leaves Shanghai is a tested, but incomplete electronics module. You state that even with the application of power, the addition of a control panel, monitor, and transducers, the electronics module, in its form as exported from China, could not be used as a diagnostics ultrasound machine.
After importation, the partially completed electronics module initially arrives to the facility of a Siemens Medical contract manufacturer in San Jose, CA for completion of the electronics module. This includes the installation of the Italian-origin monitor, the U.S.-origin control panel, and the U.S.-origin outer covers that cover the electronics, the alternating current tray, and the transformer.
In addition, depending on the specific customer order at issue, the assembly may also include installation of the “Physio Module” (a component that provides the system with an interface to patient respiration and electrocardiogram (ECG) data, whereby that data can be overlaid on the ultrasound image such that a video clip of the imaging data will include ECG and respiration data in real time) and a digital video recorder assembly.
Once the assembly is completed, the following series of tests and system adjustments are performed:
• Electrical safety testing of the components.
• Calibration of the Italian-origin display monitor using a specific ultrasound imaging procedure.
• Diagnostic and imaging tests using Korean-origin “slave” transducers to ensure proper functioning of the control panel and monitor.
• 24 hours of reliability testing for any latent failures. This involves a series of power-on and power-off operations, customer use simulations, stress testing of the real-time manager assembly, automated software tests, and tests of numerous standby operations.
At the conclusion of the reliability testing, the system is checked for cosmetic acceptance, which involves a physical review of the product against certain customer criteria. The system is then packaged and shipped to Siemens Medical's Buffalo Grove, Illinois location for final assembly, configuration and testing.
Upon arrival at Siemen's Medical's Buffalo Grove facility, the system is “whitewashed”, where the test version of the software is wiped from the system in its entirety. Next, the most current version of the operating system software, which is designed, developed, and written in the U.S., is uploaded to each unit using DVDs. The application software is enabled by loading the permanent licensing keys into the system using a web-based tool that interfaces with Siemen's enterprise resource planning system (SAP). You state that every feature and system type has a unique license key. The web-based tool identifies the features and system type as shown in the customer's order in the SAP and creates the corresponding license key file on a DVD or USB drive. That file, in turn, is uploaded to the unit and enables only the purchased features in the systems software. Next, the equipment is adjusted and configured to meet customer requirements for line voltage (including addition of the appropriate power cord), language (control panel overlay and system software settings), and documentation devices (printer etc.). An electrical safety test is then performed on the system's final configuration. The final test process is the execution of the Customer Relevant Simulation Testing, which is a high-level imaging process that uses the customer ordered Korean-origin transducers and capitalized transducers to fully test the functionality of the complete ultrasound system (including customized applications, transducers, system, and peripherals). You state that this test requires a highly trained skilled diagnostician as it is intended to replicate the customer's intended user environment.
The S2000 ultrasound system is comprised of approximately 19 subassemblies and additional components. It takes approximately 23-24 hours to produce the finished S2000 ultrasound system of which 13-14 hours takes place in the U.S. The Antares ultrasound system is comprised of 17 subassemblies and additional components. It takes approximately 24-25 hours to produce the finished Antares ultrasound system of which 14-15 hours takes place in the U.S.
You submitted the costed bill of materials for the S2000 and Antares ultrasound systems. You also submitted a copy of the product brochures for the S2000 and Antares systems. Additionally, you provided pictures of various transducers, the electronics components, the partially completed electronics module, the list of printed wire assemblies and functions, and the manufacturing process flow chart.
What is the country of origin of the S2000 and Antares ultrasound systems for the purpose of U.S. government procurement?
Pursuant to subpart B of part 177, 19 C.F.R. § 177.21
Under the rule of origin set forth under 19 U.S.C. § 2518(4)(B):
In rendering advisory rulings and final determinations for purposes of U.S. government procurement, CBP applies the provisions of subpart B of part 177 consistent with the Federal Acquisition Regulations.
In order to determine whether a substantial transformation occurs when components of various origins are assembled into completed products, CBP considers the totality of the circumstances and makes such determinations on a case-by-case basis. The country of origin of the item's components, extent of the processing that occurs within a country, and whether such processing renders a product with a new name, character, and use are primary considerations in such cases. Additionally, factors such as the resources expended on product design and development, the extent and nature of post-assembly inspection and testing procedures, and worker skill required during the actual manufacturing process will be considered when determining whether a substantial transformation has occurred. No one factor is determinative.
In
In
HQ H203555, dated April 23, 2012, concerned the country of origin of certain oscilloscopes. CBP considered five manufacturing scenarios. In the various scenarios, the motherboard and the power controller of either Malaysian or Singaporean origin were assembled in Singapore with subassemblies of Singaporean origin into oscilloscopes. CBP found that under the various scenarios, there were three countries under consideration where programming and/or assembly operations took place, the last of which was Singapore. CBP noted that no one country's operations dominated the manufacturing operations of the oscilloscopes. As a result, while the boards assembled in Malaysia were important to the function of the oscilloscopes and the U.S. firmware and software were used to program
HQ H170315, dated July 28, 2011, concerned the country of origin of satellite telephones. CBP was asked to consider six scenarios involving the manufacture of PCBs in one country and the programming of the PCBs with second country software either in the first country or in a third country where the phones were assembled. In the third scenario, the application and transceiver boards for satellite phones were assembled in Malaysia and programmed with U.K.-origin software in Singapore, where the phones were also assembled. CBP found that no one country's operations dominated the manufacturing operations of the phones and that the last substantial transformation occurred in Singapore.
In this case, substantial manufacturing operations are performed in China, the U.S., Korea, and Italy. The electronics module, which is partially assembled in China, is imported into the U.S., where it is assembled with other core components, including the Korean-origin transducers that send and receive the acoustic signals, the Italian-origin monitor that permits display of images, and the U.S.-origin control panel that serves as the user interface. The completely assembled ultrasound systems are then uploaded with U.S. designed, developed, and written operating system software and application software. You state that the software is necessary for the ultrasound systems to perform their intended function of providing diagnostic information (an observable image with related data). As previously noted, it takes approximately 23-24 hours to produce the finished S2000 ultrasound system of which 13-14 hours takes place in the U.S. It takes approximately 24-25 hours to produce the finished Antares ultrasound system of which 14-15 hours takes place in the U.S. You claim that the assembly, integration, and testing in the U.S. is conducted by specialized technicians. You also state that all of the research & development, product engineering and design investment occur in the U.S. Based on the totality of the circumstances, we find that the last substantial transformation occurs in the U.S., the location where the final assembly and installation of the operating system software and application software occurs. Prior to the assembly and programming in the U.S., the products are unable to carry out the functions of ultrasound systems. However, the assembly and programming in the U.S. creates a new product that is capable of providing diagnostic information. Consequently, we find that the country of origin of the ultrasound systems is the U.S.
The imported components that are used to manufacture the S2000 and Antares ultrasound systems are substantially transformed as a result of the assembly and software installation operations performed in the U.S. Therefore, we find that the country of origin of the S2000 and Antares ultrasound systems for government procurement purposes is the U.S.
Notice of this final determination will be given in the
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. HUD is soliciting public comments on the subject proposal.
This information collection is used by Owner entities and submitted to HUD on a periodic basis (generally monthly) during the course of construction for the purpose of obtaining Section 202/811 capital advance/loan funds. The information will also be used to identify the Owner, the project, the type of disbursement being requested, the items to be covered by the disbursement, and the name of the depository holding the Owner's bank account, including the account number.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0187) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of Strategic Planning and Management, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. HUD is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2535-0113) and should be sent to: Colette Pollard, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; Telephone (202) 402-4300, (this is not a toll-free number) or email Ms. Pollard at
Dorthera Yorkshire, Grants Management and Oversight Division, Office of Strategic Planning and Management Department of Housing and Urban Development, 451 7th Street SW., Room 3156, Washington, DC 20410; email:
This notice informs the public that HUD has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
Description of the need for the information and proposed use: HUD's standardized form for the Collection of Race and Ethnic Data complies with OMB's revised standards for Federal Agencies issued, October 30, 1997. These standards apply to HUD Program Office and partners that collect, maintain, and report Federal Data on race and ethnicity for program administrative reporting.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. HUD is soliciting public comments on the subject proposal.
This information collection is required in connection with the operation of the Ginnie Mae Multiclass Securities Program. Ginnie Mae's authority to guarantee multiclass instruments is contained in 306(g)(1) of the National Housing Act (“NHA”) (12
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2503-0030) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard., Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the Information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing and Office of Multifamily Programs, HUD.
Announcement of funding awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Fiscal Year 2012 (FY2012) Notice of Funding Availability (NOFA) for the Choice Neighborhoods Planning Grants and the FY2012 NOFA for Choice Neighborhoods Implementation Grants. This announcement contains the consolidated names and addresses of these award recipients under the Choice Neighborhoods Grant Program for FY2012.
For questions concerning the Choice Neighborhoods Grant Program awards, contact Ms. Mindy Turbov, Director of the Choice Neighborhoods Program, Office of Public Housing Investments, 451 7th Street SW., Room 4130, Washington, DC 20410, telephone (202) 401-8812. Hearing or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Building upon the successes achieved and the lessons learned from the HOPE VI program, the Choice Neighborhoods Program employs a comprehensive approach to community development centered on housing transformation. The program aims to transform neighborhoods of poverty into viable mixed-income neighborhoods with access to economic opportunities by revitalizing severely distressed public and assisted housing and investing and leveraging investments in well-functioning services, effective schools and education programs, public assets, public transportation, and improved access to jobs. Choice Neighborhoods grants primarily funds the transformation of public and/or HUD-assisted housing developments through preservation, rehabilitation, and management improvements as well as demolition and new construction. In addition, these funds can be used on a limited basis (and combined with other funding) for improvements to the surrounding community, public services, facilities, assets and supportive services. Choice Neighborhoods grant funds are intended to catalyze other investments that will be directed toward necessary community improvements. For FY2012, HUD awarded two types of grants for the Choice Neighborhoods Initiative: Planning Grants and Implementation Grants.
(1) Planning Grants enable those communities that are not yet able to fully undertake a successful neighborhood transformation to build the capacity to do so, with the Federal government supporting their endeavors and incentivizing local support. The Planning Grants enable more communities to create a rigorously developed plan and build support necessary for neighborhood transformation to be successful.
(2) Implementation Grants provide a significant amount of Federal support to those communities that have undergone a comprehensive local planning process and are now moving forward with their “Transformation Plan” to redevelop the neighborhood.
The FY2012 Choice Neighborhoods Planning Grant awards totaled $4,950,000 and 17 applicants were selected for funding in a competition, the results of which were announced on October 11, 2012. At that time, and in addition to the applicant and Congressional notification processes, the grantees were posted to the HUD Web site at:
The FY2012 Choice Neighborhoods Implementation Grant awards totaled $108,980,000 and four applicants were selected for funding in a competition, the results of which were announced on December 13, 2012. At that time, and in addition to the applicant and Congressional notification processes, the grantees were posted to the HUD Web site at:
In accordance with Section 102 (a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat.1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of the Choice Neighborhoods awards made under the competition in Appendix A to this document.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of a Federal advisory committee Structural and Design Subcommittee teleconference meeting.
This notice sets forth the schedule and proposed agenda for a teleconference meeting of the Manufactured Housing Consensus Committee (MHCC), Structural and Design Subcommittee. The teleconference meeting is open to the public. The agenda provides an opportunity for citizens to comment on the business before the Subcommittee.
The teleconference meeting will be held on April 23, 2013, from 1:00 p.m. to 4:00 p.m. EST. The teleconference numbers are: US toll-free: 1-855-747-8824, and US toll: 1-719-325-2630; Participant Code: 547096.
Henry S. Czauski, Acting Deputy Administrator and Designated Federal Official (DFO), Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 Seventh Street SW., Room 9166, Washington, DC 20410, telephone 202-708-6423 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards;
• Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring; and
• Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation.
Written comments are encouraged. The MHCC Structural and Design Subcommittee strives to accommodate citizen comments to the extent possible within the time constraints of the meeting agenda. Advance registration is strongly encouraged. The MHCC will also provide an opportunity for public comment on specific matters before the Structural and Design Subcommittee.
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of our final Comprehensive Conservation Plan (CCP) and finding of no significant impact (FONSI) for the Don Edwards San Francisco Bay National Wildlife Refuge (Refuge). In the CCP, we describe how we will manage the Refuge for the next 15 years.
The CCP and FONSI are available now. The FONSI was signed on October 10, 2012. Implementation of the CCP may begin immediately.
You may view or obtain copies of the final CCP and FONSI by any of the following methods. You may request a hard copy or CD-ROM.
Winnie Chan, Planning Team Leader, at (510) 792-0222 (See
Don Edwards San Francisco Bay National Wildlife Refuge was established in 1972 pursuant to the Act Authorizing the Transfer of Certain Real Property for Wildlife, or other purposes (16 U.S.C. 667b), Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and the Fish and Wildlife Act of 1956 (16 U.S.C. 742f(b)(1)). The roughly 30,000-acre Don Edwards San Francisco Bay National Wildlife Refuge, located in the Alameda, Santa Clara, and San Mateo Counties of California, consists of several noncontiguous parcels divided into four management units that surround the southern edge of the San Francisco Bay. The Refuge was established to preserve and enhance wildlife habitat, protect migratory birds, and protect threatened and endangered species. The Refuge also provides opportunities for wildlife-dependent recreation and environmental education.
We announce our decision and the availability of the FONSI for the final CCP for Don Edwards San Francisco Bay in accordance with National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)) requirements. We completed a thorough analysis of impacts on the human environment, which we included in the environmental assessment (EA) that accompanied the draft CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and
Our Draft CCP and EA were available for a 45-day public review and comment period, which we announced via several methods, including press releases, updates to constituents, and a
Under Alternative A (no action alternative), the current management actions, including habitat management, wildlife management, wildlife-oriented recreation opportunities, and environmental education, would be continued. Current staffing and funding would remain the same. Existing restoration and management plans (e.g., Bair Island Restoration and Management Plan and South Bay Salt Pond Restoration Project) would continue to be implemented. We would also actively work with partners and willing sellers to acquire the remaining lands within the approved acquisition boundary.
Alternative B (preferred alternative) includes those actions in Alternative A. In addition, we would moderately expand biological, habitat management, visitor service, and environmental education activities. Refuge staff would expand the volunteer program to recruit new volunteers and provide additional learning opportunities to existing volunteers. Additional staff and funding would be needed to implement this alternative.
Under Alternative C, in addition to tasks included in Alternative A and B, we would increase the frequency of baseline monitoring, investigate reintroduction of listed species (e.g., the salt marsh harvest mouse and the California clapper rail), survey for listed plant species, and encourage additional research to benefit listed species. Additional staff and funding would be needed to implement this alternative.
We received eighteen letters on the Draft CCP and EA during the review and comment period. Comments focused upon the meaning of an “approved acquisition boundary” and the scope of our authority within the approved boundary, applicability of state health and safety codes in relation to mosquito management on the Refuge, and wildlife-public use conflicts. We incorporated comments we received into the CCP when appropriate, and we responded to the comments in an appendix to the CCP. In the FONSI, we selected Alternative B for implementation. The FONSI documents our decision and is based on the information and analysis contained in the EA.
Under the selected alternative, the Service will expand both natural resource management and visitor services opportunities on the Refuge. Additional biological activities would include baseline surveys on native flora and fauna, as well as a revised predator management program to include avian predators. Habitat would be improved along the marsh-upland ecotone to benefit tidal marsh species as well as for the western snowy plover and California least tern. Other habitat management activities would include development of a comprehensive weed management plan, addressing climate change impacts on Refuge resources, and efforts to acquire additional lands to meet Refuge purposes. A mosquito management plan would be implemented to improve coordination with local mosquito abatement districts to manage the threat of mosquito-borne disease on the Refuge. The mosquito management plan would be developed in accordance with Service policies.
Visitor services will be expanded considerably through interpretation and environmental education opportunities. A wildlife photography permit system would be implemented to expand additional wildlife photography opportunities. Dog walking would be limited primarily to upland trails in order to further protect tidal marsh areas. A new LEED-certified visitor center complex would be constructed and additional interpretation activities would be provided. The environmental education program would be updated and expanded in several ways, such as through a LEED-certified remodel of the Environmental Education Center, Spanish translation of materials and curriculum, and adding programs at different sites. The volunteer program would be expanded through improving training for volunteers and developing permanent stewardship projects.
The selected alternative best meets the Refuges' purposes, vision, and goals; contributes to the Refuge System mission; addresses the significant issues and relevant mandates; and is consistent with principles of sound fish and wildlife management. Based on the associated environmental assessment, this alternative is not expected to result in significant environmental impacts and therefore does not require an environmental impact statement.
National Indian Gaming Commission, Interior.
Notice.
This notice advises the public that the National Indian Gaming Commission (NIGC) as lead agency, in cooperation with the Jamul Indian Village (Tribe), intends to gather information necessary to prepare a supplemental environmental impact statement (SEIS) for the proposed Gaming Management Contract between the Tribe and San Diego Gaming Ventures, LLC (SDGV). The Gaming Management Contract, if approved, would allow SDGV to manage the approved 203,000 square foot tribal gaming facility to be located on the Tribe's Reservation, which qualifies as “Indian Lands” pursuant to 25 U.S.C. 2703.
The Bureau of Indian Affairs (BIA), Pacific Region, Division of Environmental, Cultural Resources Management & Safety will serve as environmental staff to the NIGC in the preparation of the SEIS. As such, the BIA is the contact for further information, in lieu of the NIGC.
This notice also announces that no public scoping meeting will be held for the SEIS.
Written comments on the scope and implementation of this proposal must arrive by May 10, 2013. No public scoping meeting will be held for the proposal given the long history of the project and the extensive public input received to-date.
You may mail, email, hand carry or fax written comments to: Mr. John Rydzik, Chief, Division of Environmental, Cultural Resources Management &Safety, Bureau of Indian Affairs, Pacific Region, 2800 Cottage Way, Sacramento, CA 95825; Facsimile (916) 978-6055; Email
Mr. John Rydzik (916) 978-6051.
The Tribe is requesting NIGC approval of a Gaming Management Contract between the Tribe and SDGV for the management of a 203,000 square foot gaming facility on the Tribe's Reservation, which is located in unincorporated San Diego County approximately 1-mile south of the unincorporated community of Jamul. Pursuant to the Indian Gaming Regulatory Act, signed into law on October 17, 1988, the Tribe may enter into a Gaming Management Contract for the operation and management of a gaming facility subject to the approval of the NIGC. The purpose of the Proposed Action is to help provide for the economic development of the Jamul Reservation.
The enterprise to be managed includes a gaming facility, a multi-level parking structure, surface parking lot, fire-fighting facilities, wastewater treatment plant/disposal facilities, water delivery system, and improved on-site traffic circulation. The main use within the gaming facility is the gaming floor, which would contain slot machines, table games, and poker entertainment. The total estimated gaming floor area for the gaming facility is 70,000 square feet. The exterior of the complex would include downcast lighting consistent with San Diego County codes and ordinances to maintain consistency with the surrounding area.
The environmental effects of a gaming facility on the Tribe's Reservation has been extensively studied and evaluated since 2000 when the Tribe originally approached the BIA and NIGC with fee-to-trust and Gaming Management Contract requests. Serving as the lead agency for these initial requests, the BIA originally developed and published an environmental assessment (EA) on February 1, 2001. The NIGC served as a Cooperating Agency for this early request. The Final EA was completed and published in November 2001. Following a decision by the BIA and NIGC that the mitigation measures in the EA were too provisional, the BIA and NIGC developed an environmental impact statement (EIS) for the proposed fee-to-trust and Management Contract requests. The notice of intent for the EIS was published in the
Between late 2003 and early 2006, the Tribe revised their project to eliminate the fee-to-trust component and to reconfigure all uses onto the existing Reservation except for an access road, which is designed to travel through adjacent tribally owned land connecting the Reservation with State Route 94. The project modifications were evaluated by the Tribe in a Tribal Environmental Impact Statement/Report (December 2006). Additional changes to the project resulted in the release of a Draft Tribal Environmental Evaluation (Tribal EE) in March 2012 and a Final Tribal EE in January 2013. Between release of the Draft and Final Tribal EE, the Tribe provided a public comment period and held a public meeting to accept comments on the Draft Tribal EE. All written and oral comments provided by the public during the comment period were responded to and incorporated into the Final Tribal EE. The Final Tribal EE was certified as adequate and complete by the Tribe in January 2013. Now that the Tribe has completed the final version of the proposed gaming facility, they are requesting NIGC approval of a Gaming Management Contract between the Tribe and SDGV.
The gaming facility has always been designed to be located on the Reservation; however, other uses such as the wastewater treatment/disposal facilities, fire-fighting facilities, and structured parking were designed to be located on adjacent land north of the Reservation. The reconfiguration of uses to place all features on the Reservation, together with the passage of time since the Final EIS was circulated, has resulted in the need for the NIGC to develop and issue an SEIS to address these changes. No other alternatives will be addressed in the SEIS.
Issues to be addressed in the SEIS include updating the environmental baseline and impact/mitigation analysis of the 2003 Final EIS as it relates to the new design alternative. Areas to be analyzed include land resources, water resources, air quality, biological resources, cultural and paleontological resources, socioeconomics, transportation, land use, agriculture, public services, noise, hazardous materials and visual resources.
This notice is published in accordance with 25 U.S.C. 2711, section 1501.7 of the Council on Environmental Quality Regulations (40 CFR parts 1500 through 1508), and the Department of the Interior regulations (43 CFR part 46), implementing the procedural requirements of NEPA, as amended (42 U.S.C. 4321 et seq.).
National Park Service, Interior.
Notice.
The Center for Archaeological Research at the University of Texas at San Antonio has completed an inventory of human remains, in consultation with the appropriate Indian tribe, and has determined that there is a cultural affiliation between the human remains and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Center for Archaeological Research at the University of Texas at San Antonio. Repatriation of the human remains to the Indian tribe stated below may occur
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Center for Archaeological Research at the University of Texas at San Antonio at the address below by May 10, 2013.
Cynthia Munoz, Center for Archaeological Research, 1 UTSA Circle, San Antonio, TX 78249, telephone (210) 458-4394.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Center for Archaeological Research at the University of Texas at San Antonio, TX. The human remains were removed from site 41ZP144 in San Ygnacio, Zapata County, TX.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Center for Archaeological Research at the University of Texas at San Antonio professional staff in consultation with representatives of the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico.
In December 2012, as a result of a court order, human remains representing, at minimum, one individual were removed from site 41ZP144 in Zapata County, TX. The partial remains were recovered from a single grave in a prehistoric site in San Ygnacio. The burial was located under a paved street on a high terrace, 55 meters east of the Rio Grande River. In late 1991, the San Ygnacio Municipal Utility District was engaged in trenching for a wastewater pipeline installation. During the course of this work, the human remains were accidentally unearthed under caliche road material. Portions of the remains, consisting of the skull, vertebrae, rib cage, and left arm, were damaged by excavation machinery. The trenching was monitored by Archaeology Consultants Inc. of George West Texas. Work was stopped in the area of the find and the Zapata County Sheriff's office, the Texas Antiquities Committee, and the Office of the State Archeologist were contacted. The agencies agreed that the burial should only be exposed to the extent needed to determine its identity. The burial was determined to be Native American based on mussel shells and lithic debitage encountered in the burial fill. A radiocarbon assay of a bone sample dated the remains to AD 1400. The remains were reburied and a paved road was constructed over the burial. The 1991 work is reported in an archeological report titled:
In 2012, a Petition for Removal of Remains was filed by Zapata County. The petition was heard by the 49th Judicial Court of Webb-Zapata County and a court order was issued to allow for the removal of the human remains. The County of Zapata contracted with the Center for Archaeological Research at the University of Texas at San Antonio to exhume the burial. The partial remains of one adult individual were recovered. The remains are represented primarily by fragmented elements of the cranial vault, the right arm, the sacrum, the pelvis, and both legs. The sex of this individual is female based on traits associated with the pelvis. A specific age range determination was not possible; however, morphologic traits indicate that these remains are those of an adult who, most likely, was 20-35 years old at the time of death. No known individual was identified. No associated funerary objects are present.
The context and date of the burial (AD 1400) demonstrate the remains are of Native American ancestry. The femora are platymeric, a trait associated with Native Americans. Given the absence of associated artifacts, it is not possible to ascribe tribal affiliation, though the burial location is within the region of South Texas first inhabited by the Coahuiltecans (not a Federally-recognized tribe) and later by the Apaches. Apache tribes entered Texas relatively late in time, appearing in the Panhandle region in the 1500s, and in south Texas in the 1700s. This site is located within the land claim areas of the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico.
Officials of the Center for Archaeological Research at the University of Texas at San Antonio have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains should contact Cynthia Munoz, Center for Archaeological Research, 1 UTSA Circle, San Antonio, Texas, 78249, telephone (210) 458-4394, by May 10, 2013. Repatriation of the human remains to the Mescalero Apache Tribe of the Mescalero Reservation, New Mexico may proceed after that date if no additional claimants come forward.
The Center for Archaeological Research at the University of Texas at San Antonio is responsible for notifying the Mescalero Apache Tribe of the Mescalero Reservation New Mexico that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Grand Canyon National Park has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact Grand Canyon National Park. Repatriation of the human remains to the Indian tribes stated below may occur
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact Grand Canyon National Park at the address below by May 10, 2013.
David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of Grand Canyon National Park, Grand Canyon, AZ. The human remains were removed from within Grand Canyon National Park, Coconino County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Grand Canyon National Park.
A detailed assessment of the human remains was made by Grand Canyon National Park professional staff in consultation with representatives of the Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Navajo Nation, Arizona, New Mexico, & Utah; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); San Juan Southern Paiute Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
In 1967-1968, human remains representing a minimum of six individuals were removed from the Unkar Delta site in Coconino County, AZ, during legally authorized excavations by the School of American Research under the direction of Douglas W. Schwartz. The human remains were curated at the School of American Research until 1980, when they were transferred to the University of Arizona, Tucson, AZ. In 2006, the human remains were transferred to Grand Canyon National Park. No known individuals were identified. No associated funerary objects are present.
The Unkar Delta site is a complex of 52 agricultural and habitation areas spread across 300 acres. Site architecture, cross-dating, ceramics, and tools indicate that the site was occupied between A.D. 750 and 1200. Three culturally distinct groups of people are represented at Unkar Delta—the Virgin and Kayenta branches of the ancestral Puebloan peoples and the Cohonina people.
Architectural similarities, geography, and material culture indicate close cultural and historical ties between the ancestral Puebloan peoples and the Hopi Tribe of Arizona and Zuni Tribe of the Zuni Indian Reservation, New Mexico.
Archeological assemblages, geography, place names, and oral history indicate cultural and historical ties between the inhabitants of the Unkar Delta and several of the Southern Paiute tribes (Kaibab Band of Paiute Indians, Las Vegas Tribe of Paiute Indians, Moapa Band of Paiute Indians, San Juan Southern Paiute Tribe of Arizona, and Shivwits Band of Paiutes).
Geography and oral history indicate close historical ties between the inhabitants of the Unkar Delta and the Havasupai Tribe of the Havasupai Reservation, Arizona.
Officials of Grand Canyon National Park have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of six individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); San Juan Southern Paiute Tribe of Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains should contact David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945, before May 10, 2013. Repatriation of the human remains to the Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); San Juan Southern Paiute Tribe of Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico may proceed after that date if no additional claimants come forward.
Grand Canyon National Park is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
Central Washington University has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Central Washington University. If no additional requestors come forward, transfer of control of the human remains to the non-Federally recognized Indian group stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Central Washington University at the address in this notice by May 10, 2013.
Lourdes Henebry-DeLeon, Department of Anthropology Central Washington University, 400 East University Way, Ellensburg, WA 98926-7544, telephone (509) 963-2167.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of Central Washington University, Ellensburg, WA. The human remains were removed from Yakima County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Central Washington University professional staff in consultation with representatives of the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; and the Wanapum Band of Priest Rapids, a non-Federally recognized Indian group.
On May 5, 1957, human remains representing, at minimum, one individual were removed from site 45-YK-13 in Yakima County, WA, by Mr. and Mrs. Cyril Davis, members of the Washington Archaeological Society (WAS), a local amateur archaeology group. The human remains consist of a cranium and mandible found at the north end of site 45-YK-13. Mr. Edward Nolan donated the cranium and mandible to the Thomas Burke Memorial Washington State Museum (Burke Museum) on September 29, 1959. The collection was formally accessioned by the Burke Museum in 1965 (Burke Accn. 1965-77). In 1974, the Burke Museum legally transferred the cranium and mandible to Central Washington University Department of Anthropology (CWU ID AA). No known individuals were identified. No associated funerary objects are present.
In 1958, Dr. Robert Greengo, University of Washington, recorded 45-YK-13 as a late prehistoric to historic site during an archaeological survey in the Priest Rapids and Wanapum Reservoirs. Dr. Greengo noted that prior to his work, the WAS dug a narrow test trench perpendicular to the river bank. This test trench was never formally reported, but Dr. Greengo was informed that some human bones had been found. Subsequently, those human remains were examined by physical anthropologist Lourdes Henebry-DeLeon of Central Washington University. “Priest Rapids” is written on the cranium. The morphology of the remains is consistent with individuals of Native American ancestry and the archaeological site context supports the Native American determination.
The Wanapum Band of Priest Rapids, a non-Federally recognized Indian group, maintains that, according to tradition, they have always inhabited the land area where the human remains were removed. Site 45-YK-13 lies within the ceded lands of the Confederated Tribes and Bands of the Yakama Nation in the Treaty of 1855, but none of the leaders of the Wanapum Band of Priest Rapids signed that treaty. The Wanapum Band of Priest Rapids continues to live near their ancient village site at P'na (Sharkey 1984: 69). In 1951, Harry Tomalawash and Johnny Buck describe P`na as being “upstream from the [first Priest Rapids power plant].* * * It means fish caught or fish trap. They used to catch fish there in P`na. It was a long trap made of willows. They put it into the water and it caught the fish.” (L.V. McWorter Collection, 1951). Beyond the foot of Priest Rapids and extending to the confluence of the Snake and Columbia Rivers, Relander reports that the Wanapums “had fifteen villages, the largest being Towmowtowee (Richland), Chanout (Hanford), and Tacht (White Bluffs).” He further states that from Kosith (Pasco) northward to Vantage, the Wanapum occupied another “thirty-five dwelling places” (Relander 1956:32).
Site 45-YK-13 is located within the area identified by the Indian Claims Commission as the aboriginal territory of the Wanapum Band of Priest Rapids. A. J. Splawn was one of the best informed early settlers in central Washington, and expert witnesses for petitioners and defendants with claims before the Indian Claims Commission relied on his writings (12 Ind. Cl. Comm. 301:324-325). The Indian Claims Commission (1963:325-326) found that “Mr. Splawn's writings concerning the areas of occupation of the various Indian tribes and bands within the claimed area substantiate and confirm much of the earlier recorded observations.” Mr. Splawn described the areas of occupation of the Wanapum to include: “Wi-nah-pams or Sokulks were Shahap-tam Indians and occupied both banks of the Columbia from a short distance above the mouth of the Yakima River to Saddle Mountain.” Splawn wrote that this band belonged to the Simcoe (Yakama) reservation but refused to move onto it, preferring to die where their bones might rest in the sand hills beside their ancestors. James Mooney (1896) wrote that the Wanapum “ranged along both banks of the Columbia from above Crab Creek down to the mouth of Snake River. The village where their chief Smohalla resided was on the west bank of the Columbia at the * * * foot of Priest's Rapids.”
At the time of the excavation and removal of these human remains, the land from which the remains were removed was not the tribal land of any Indian tribe or Native Hawaiian organization. Central Washington University consulted with all Indian tribes who are recognized as aboriginal to the area from which these Native American human remains were removed. These tribes are the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; and the Wanapum Band of Priest Rapids, a non-Federally recognized Indian group.
Pursuant to 43 CFR 10.11(c)(2)(ii), the Secretary of the Interior may make a recommendation for a transfer of control of culturally unidentifiable human remains with a “tribal land” or “aboriginal land” provenience to a non-Federally recognized Indian group. In
• Central Washington University consulted with every appropriate Indian tribe or Native Hawaiian organization,
• none of the Indian tribes or Native Hawaiian organizations agreed to accept control,
• none of the Indian tribes or Native Hawaiian organizations objected to the proposed transfer of control, and
• Central Washington University may proceed with the agreed-upon transfer of control of the culturally unidentifiable human remains to the Wanapum Band of Priest Rapids, a non-Federally recognized Indian group.
Officials of Central Washington University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on morphology and archeological context.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.11(c)(2)(ii), the disposition of the human remains will be to the Wanapum Band of Priest Rapids, a non-Federally recognized Indian group.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Lourdes Henebry-DeLeon, Department of Anthropology Central Washington University, 400 East University Way, Ellensburg, WA, 98926-7544, telephone (509) 963-2167, by May 10, 2013. After that date, if no additional requestors have come forward, transfer of control of the human remains to the Wanapum Band of Priest Rapids, a non-Federally recognized Indian group, may proceed.
Central Washington University is responsible for notifying the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; and the Wanapum Band of Priest Rapids, a non-Federally recognized Indian group, that this notice has been published.
National Park Service, Interior.
Notice.
The San Francisco State University NAGPRA Program has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the San Francisco State University NAGPRA Program. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the San Francisco State University NAGPRA Program at the address in this notice by May 10, 2013.
Jeffrey Boland Fentress, San Francisco State University NAGPRA Program, c/o Department of Anthropology, San Francisco State University, 1600 Holloway Avenue, San Francisco, CA 94132, telephone (415) 338-3075.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the San Francisco State University NAGPRA Program. The human remains and associated funerary objects were removed from site CA-TUO-328 in Tuolumne County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the San Francisco State University NAGPRA Program professional staff in consultation with representatives of the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California.
Between 1970 and 1971, human remains representing, at minimum, one individual were removed from site CA-TUO-328 in Tuolumne County, CA, by San Francisco State University personnel in conjunction with the construction of the New Don Pedro Reservoir. Site materials from the New Don Pedro Reservoir project were curated at San Francisco State University after excavation. No known individuals were identified. The 16 individual and 3 lots of associated funerary objects are 5 chert flakes and tools, 1 obsidian projectile point, 4 obsidian flakes, 1 basalt flake, 1 ground stone, 1 one bone tool, 2 square cut nails, 1 piece of haliotis shell, and 3 lots of unmodified faunal.
The age of site Ca-Tuo-328 is unknown, but the site is located within the historically documented territory of the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California. The objects are consistent with the material culture of the ancestral and contact period Sierra Miwok, who occupied this area from circa A.D. 500, at a minimum, and during the Euro-American contact period. Oral history evidence presented during consultation indicates that the area has been continuously occupied by the Miwok since the contact period and that there is cultural affiliation between the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California and the ancestral Sierra Miwok Indians.
Officials of the San Francisco State University NAGPRA Program have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 19 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Jeffrey Boland Fentress, San Francisco State University NAGPRA Program, c/o Department of Anthropology, San Francisco State University, 1600 Holloway Avenue, San Francisco, CA 94132, telephone (415) 338-3075, by May 10, 2013. After that date, if no additional requestors have come forward, transfer of control of the human remains and associated funerary objects to the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California may proceed.
The San Francisco State University NAGPRA Program is responsible for notifying the Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Grand Canyon National Park has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact Grand Canyon National Park. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact Grand Canyon National Park at the address below by May 10, 2013.
David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of Grand Canyon National Park, Grand Canyon, AZ. The human remains and associated funerary objects were removed from within Grand Canyon National Park, Coconino County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Grand Canyon National Park.
A detailed assessment of the human remains was made by Grand Canyon National Park professional staff in consultation with representatives of the Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Navajo Nation, Arizona, New Mexico, & Utah; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); San Juan Southern Paiute Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
In 1970, human remains representing a minimum of two individuals were removed from the Bright Angel site in Coconino County, AZ, during legally authorized excavations under the direction of Douglas W. Schwartz on behalf of the School of American Research. No known individuals were identified. The human remains were curated at Arizona State University until 2008, when they were returned to Grand Canyon National Park. No associated funerary objects are present.
In 1977, human remains representing a minimum of one individual were removed from AZ B:16:85 in Coconino County, AZ, during legally authorized excavations by former Grand Canyon anthropologist Robert C. Euler. The human remains and associated funerary objects were curated by the University of Arizona, Tucson, AZ until 1986, when they were transferred to Grand Canyon National Park. No known individuals were identified. The 12 associated funerary objects are 1 bag of yucca cordage, 1 vegetal fiber cordage net, 1 bag of juniper bark, 5 basketry
AZ B:16:85 is a rock crevice likely associated with the nearby Bright Angel site, dated between A.D. 1050 and 1140.
In 1982, human remains representing a minimum of one individual were removed from the Bright Angel site in Coconino County, AZ, during legally authorized excavations by former Grand Canyon anthropologist Robert C. Euler. No known individuals were identified. Some of the human remains were first held at the School of American Research, transferred to the National Park Service's Western Archeological and Conservation Center in Tucson, AZ, in 1989, and then transferred to Grand Canyon National Park in 2006. The rest have been held at Grand Canyon National Park since excavation. The funerary objects were transferred from Robert C. Euler to Grand Canyon National Park in 1986. The 13 associated funerary objects are 1 Tusayan corrugated ceramic jar, 1 incomplete olivella shell bead, and 11 stone beads.
Site architecture, ceramic typology, cross-dating, and tools indicate that the site was occupied by ancestral Puebloan peoples between A.D. 1050 and 1140.
Architectural similarities, material culture, geography, and oral histories indicate close cultural and historical ties between the ancestral Puebloan peoples and the Hopi Tribe of Arizona and Zuni Tribe of the Zuni Indian Reservation, New Mexico.
Officials of Grand Canyon National Park have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 25 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Hopi Tribe of Arizona and Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945, before May 10, 2013. Repatriation of the human remains and associated funerary objects to the Hopi Tribe of Arizona and Zuni Tribe of the Zuni Reservation, New Mexico may proceed after that date if no additional claimants come forward.
Grand Canyon National Park is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Grand Canyon National Park has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact Grand Canyon National Park. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact Grand Canyon National Park at the address below by May 10, 2013.
David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of Grand Canyon National Park, Grand Canyon, AZ. The human remains and associated funerary objects were removed from within Grand Canyon National Park, Coconino County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Grand Canyon National Park.
A detailed assessment of the human remains was made by Grand Canyon National Park professional staff in consultation with representatives of the Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Navajo Nation, Arizona, New Mexico, & Utah; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); San Juan Southern Paiute Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
In 1969, human remains representing a minimum of one individual were removed from site AZ B:16:103 in Coconino County, AZ, during legally authorized excavations by Robert Cornelius. No known individuals were identified. The two associated funerary objects are one Deadman's Black-on-red ceramic bowl and one Dogozshi Black-on-white ceramic canteen.
Site architecture and associated funerary objects indicate that the site was occupied by ancestral Puebloan peoples, and the human remains were buried between A.D. 1050 and 1150.
In 1969-1970, human remains representing a minimum of four
Walhalla Ruin is part of a larger complex of hundreds of sites located on the North Rim of the Grand Canyon. Site architecture, cross-dating, ceramic typology, dendrochronology, and tools found at the site indicate that Walhalla Ruin was occupied by ancestral Puebloan peoples between A.D. 1050 and 1150.
In 1969-1970, human remains representing a minimum of one individual were removed from GC 671 in Coconino County, AZ, during legally authorized excavations conducted by Southern Utah University under the direction of Richard A. Thompson. The human remains were curated at Southern Utah University until 1996, when they were transferred to Grand Canyon National Park. No known individuals were identified. The three associated funerary objects are one worked and drilled bowl fragment (Sosi black-on-white), one plain gray jar, and one mano fragment.
Site architecture, ceramics, and flaked stone tools indicate that the site was occupied by ancestral Puebloan peoples between A.D. 1000 and 1300.
In 1976-1977, human remains representing a minimum of six individuals were removed from GC 663 in Coconino County, AZ, during legally authorized excavations by the Southern Utah University Archeological Field School under the direction of Richard A. Thompson. The human remains were curated at Southern Utah University until 1996, when they were transferred to Grand Canyon National Park. No known individuals were identified. The three associated funerary objects are one partial small ceramic jar, one ceramic sherd, and one ceramic bowl fragment with rim.
Site architecture and associated funerary objects suggest that GC 663 was occupied by ancestral Puebloan peoples between A.D. 400 and 1300.
In 1977, human remains representing a minimum of one individual were removed from AZ C:13:85 in Coconino County, AZ, during legally authorized excavations by former Grand Canyon anthropologist Robert C. Euler. No known individuals were identified. The three associated funerary objects are one Tusayan Black-on-red ceramic seed jar, one Black-on-white ceramic bowl fragment, and one Tusayan corrugated wide-mouth ceramic jar.
The associated funerary objects indicate that this individual was buried between A.D. 1050 and 1150.
Architectural similarities, material culture, geography, and oral histories indicate close cultural and historical ties between the ancestral Puebloan peoples and the Hopi Tribe of Arizona and Zuni Tribe of the Zuni Indian Reservation, New Mexico.
Archeological assemblages, geography, place names, and oral history indicate cultural and historical ties between the inhabitants of these sites and several of the Southern Paiute tribes (Kaibab Band of Paiute Indians, Las Vegas Tribe of Paiute Indians, Moapa Band of Paiute Indians, and Shivwits Band of Paiutes).
Officials of Grand Canyon National Park have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 13 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 114 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); and Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945, before May 10, 2013. Repatriation of the human remains and associated funerary objects to the Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); and Zuni Tribe of the Zuni Reservation, New Mexico may proceed after that date if no additional claimants come forward.
Grand Canyon National Park is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Grand Canyon National Park has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact Grand Canyon National Park. Repatriation of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact Grand Canyon National Park at the address below by May 10, 2013.
David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of Grand Canyon National Park, Grand Canyon, AZ. The human remains and associated funerary objects were removed from Muav Cave, Mohave County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Grand Canyon National Park.
A detailed assessment of the human remains was made by Grand Canyon National Park professional staff in consultation with representatives of the Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Navajo Nation, Arizona, New Mexico, & Utah; Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); San Juan Southern Paiute Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
In 1936, human remains representing a minimum of one individual were removed from the Muav Cave site in Mohave County, AZ, during legally authorized excavations by National Park Service archeologists under the direction of Willis Evans. The human remains and associated funerary objects were stored at the National Park Service's Western Archeological and Conservation Center in Tucson, AZ, until 2002, when they were transferred to Grand Canyon National Park. No known individuals were identified. The associated funerary objects are 70 burned olivella shell beads and olivella shell bead fragments.
The Muav Cave site is not well-dated. However, ceramics, unfired pottery, yucca chews, yucca fiber, animal bones, and chipped stone tools indicate occupation sometime after A.D. 1300.
The artifacts found at Muav Cave are consistent with materials identified by archeologists as associated with the Cerbat culture. Considered the ancestors of the Pai people, the Cerbat are believed to have migrated to the Grand Canyon around the 1300s. Their descendants, two Pai groups who eventually divided into what are now known as the Hualapai and Havasupai tribes, remained in the region. Aquarius brownware and Lower Colorado buffware ceramics, locally procured lithic tools, geography, and the known protohistoric occupation of the area by the Cerbat people, indicate historical ties between inhabitants of Muav Cave and the Havasupai Tribe of the Havasupai Reservation, Arizona, and the Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona.
Geography, place names, and oral history indicate historical ties between the inhabitants of Muav Cave and several of the Southern Paiute tribes (Kaibab Band of Paiute Indians, Las Vegas Tribe of Paiute Indians, Moapa Band of Paiute Indians, and Shivwits Band of Paiutes).
Officials of Grand Canyon National Park have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 70 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Havasupai Tribe of the Havasupai Reservation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; and Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)).
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact David Uberuaga, Superintendent, Grand Canyon National Park, P.O. Box 129, Grand Canyon, AZ 86023, telephone (928) 638-7945, before May 10, 2013. Repatriation of the human remains and associated funerary objects to the Havasupai Tribe of the Havasupai Reservation, Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab
Grand Canyon National Park is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, Bureau of Indian Affairs, and the University of Denver Department of Anthropology and Museum of Anthropology, have completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and have determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the U.S. Department of the Interior, Bureau of Indian Affairs. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the U.S. Department of the Interior, Bureau of Indian Affairs at the address in this notice by May 10, 2013.
Anna Pardo, Museum Program Manager/NAGPRA Coordinator, U.S. Department of the Interior, Indian Affairs, 12220 Sunrise Valley Drive, Room 6084, Reston, VA 20191, telephone (703) 390-6343, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, Bureau of Indian Affairs, Washington, DC, and in the physical custody of University of Denver Department of Anthropology and Museum of Anthropology. The human remains and associated funerary objects were removed from a site located south from the town of Bluff, in San Juan County, UT, and on the Navajo Indian Reservation.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Denver Department of Anthropology and Museum of Anthropology professional staff in consultation with representatives of Jicarilla Apache Nation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; and the Zuni Tribe of the Zuni Reservation, New Mexico. The following tribes were invited to consult and were sent copies of the cultural affiliation findings for comment: Hopi Tribe of Arizona; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Pueblo of Picuris, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Skull Valley Band of Goshute Indians of Utah; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; and Ysleta Del Sur Pueblo of Texas.
In June 1978, human remains representing, at minimum, one individual were removed from a site referenced in documentation as UT W:10:2, located south of the town of Bluff, in San Juan County, UT, by Mimi Kiser, a University of Denver student, who donated the remains to the University's Museum of Anthropology in December 1978. No known individuals were identified. The 47 associated funerary objects are one non-human tooth; one piece of fabric, woven cotton; one grass seed head; three pieces of knotted cordage with what appears to be feathers; nine cordage fragments; 24 knotted fibers; four hoops of fiber; one lot of knotted fiber; and three unidentified organic items.
Prior to the beginning of a University of Denver archeology field school project at Butler Wash, Ms. Kiser hiked south of Bluff, UT, crossing the San Juan River, and came upon a room block, a kiva, and a pithouse located on one side of a crevice overlooked by a cliff. The architecture is described as being nestled against the indented cliff, providing sufficient protection. The burial was found less than one foot below the ground surface in sedimentary sand. The burial was found in a flexed position. Corn, knots, and twine were buried with the human remains, though no ceramics were found. The presence of twine and cord, a sandal, and corn along with the absence of ceramics would suggest a late Basketmaker or early Pueblo assemblage. There is a well-documented cultural affiliation between these groups and the modern-day Pueblo tribes. Migration stories and oral histories specify the Four Corners area as being
Based on the preponderance of evidence, including archeology, architecture, material culture, oral traditions, and expert opinion, officials of the Bureau of Indian Affairs have reasonably determined that the Native American human remains are ancestral Puebloan. Descendants of ancestral Puebloan culture are members of the present-day tribes of the Hopi Tribe of Arizona; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta Del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
Officials of the Bureau of Indian Affairs and the University of Denver Department of Anthropology and Museum of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 47 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Anna Pardo, Museum Program Manager/NAGPRA Coordinator, U.S. Department of the Interior, Indian Affairs, 12220 Sunrise Valley Drive, Room 6084, Reston, VA 20191, telephone (703) 390-6343, email
The Bureau of Indian Affairs is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Michigan Department of Transportation has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Michigan Department of Transportation. Repatriation of the human remains and associated funerary objects to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Michigan Department of Transportation at the address below by May 10, 2013.
James A. Robertson, Staff Archaeologist, Environmental Section, Bureau of Highway Development, Michigan Department of Transportation, 425 West Ottawa, P.O. Box 30150, Lansing, MI 48909, telephone (517) 335-2637.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the Michigan Department of Transportation (MDOT). The human remains and associated funerary objects were removed from Iosco County, MI.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Michigan Department of Transportation professional staff in consultation with representatives of the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Bay Mills Indian Community, Michigan; Chippewa-Cree Indians of the Rocky Boy's Reservation, Montana; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake); Fond du Lac Band; Grand Portage Band; Leech Lake Band; Mille Lacs Band; White Earth Band); Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Saginaw Chippewa Indian Tribe of Michigan; Sault Ste. Marie Tribe of Chippewa Indians of Michigan; Sokaogon Chippewa Community, Wisconsin; St. Croix Chippewa Indians of Wisconsin; and the Turtle Mountain
MDOT also met with the Michigan Anishinaabek Cultural Protection and Repatriation Alliance (MACPRA). MACPRA approved a motion to support the Saginaw Chippewa Indian Tribe of Michigan's request for repatriation of the human remains and associated funerary objects. MDOT also received a letter from the Tribal Historic Preservation Officer of the Leech Lake Band supporting the Saginaw Chippewa Indian Tribe of Michigan's request.
In May 2012, human remains representing, at minimum, nine individuals were removed by MDOT from site 20IS299 in Oscoda Township, Iosco County, MI. No known individuals were identified. The 202 associated funerary objects include 1 brass kettle lid, 1 trade axe with wood handle fragment, 38 earbobs and earbob fragments, 9 brooches and brooch fragments, 10 arm/wrist band fragments, 1 metal jewelry setting, 1 nail embedded in wood, 130 trade beads, 1 faceted glass ornament, 6 white clay pipe fragments, and 4 fragments of woven fabric that were associated with a metal brooch.
Based on the archaeological evidence, MDOT archaeological staff and archaeological consultant concluded that the human remains were of Native American ancestry and that the human remains and associated funerary objects date to the 1820s and 1850s. At the request of MDOT, the Michigan State University Forensic Anthropology Laboratory (MSUFAL) conducted non-invasive analysis of the human remains. The MSUFAL confirmed that the physical anthropological evidence corroborated the MDOT assessment. The Saginaw Chippewa Indian Tribe of Michigan also provided MDOT historical evidence documenting their presence during the 1820s to 1850s in the location where the human remains and associated funerary objects were removed.
Officials of the Michigan Department of Transportation have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of nine individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 202 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Saginaw Chippewa Indian Tribe of Michigan.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact James A. Robertson, Staff Archaeologist, Environmental Section, Bureau of Highway Development, Michigan Department of Transportation, 425 West Ottawa, P.O. Box 30150, Lansing, MI 48909, telephone (517) 335-2637 before May 10, 2013. Repatriation of the human remains and associated funerary objects to the Saginaw Chippewa Indian Tribe of Michigan may proceed after that date if no additional claimants come forward.
The Michigan Department of Transportation is responsible for notifying the Saginaw Chippewa Indian Tribe of Michigan that this notice has been published.
National Park Service, Interior.
Notice.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix (1988), of two meetings of the Native American Graves Protection and Repatriation Review Committee (Review Committee). The Review Committee will meet on November 6-7, 2013, in Mount Pleasant, MI, and on December 5, 2013, from 2 p.m. until approximately 4 p.m. EST via teleconference. Both meetings will be open to the public.
The Review Committee will meet on November 6-7, 2013, and December 5, 2013, if necessary. Public comment requests must be received by September 20, 2013. Requests for CUI disposition must be received by August 30, 2013. Requests for findings of fact must be received by August 16, 2013. Requests to convene parties and facilitate the resolution of a dispute must be received by July 12, 2013. All submission dates apply to the November meeting.
The Review Committee will meet in the Ziibiwing Center of Anishinabe Culture and Lifeways, 6650 East Broadway, Mount Pleasant, MI 48858, on November 6-7, 2013. Electronic submissions are to be sent to
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix (1988), of two meetings of the Native American Graves Protection and Repatriation Review Committee (Review Committee). The Review Committee was established in Section 8 of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), 25 U.S.C. 3006.
The Review Committee will meet on November 6-7, 2013, in the Ziibiwing Center of Anishinabe Culture and Lifeways, 6650 East Broadway, Mount Pleasant, MI 48858. This meeting will be open to the public. The agenda for this meeting will include the finalization of the Review Committee Report to Congress for 2013; the appointment of the subcommittee to draft the Review Committee Report to Congress for 2014 and discussion of the scope of the Report; and National NAGPRA Program reports. In addition, the agenda may include requests to the Review Committee for a recommendation to the Secretary of the Interior, as required by law, in order to effect the agreed-upon disposition of Native American human remains determined to be culturally unidentifiable; public comment by Indian tribes, Native Hawaiian organizations, museums, Federal agencies, and the public; requests to the Review Committee, pursuant to 25 U.S.C. 3006 (c)(3), for review and findings of fact related to the identity or cultural affiliation of human remains or other cultural items, or the return of such items; and facilitation of the resolution of disputes among parties convened by the Review Committee pursuant to 25 U.S.C. 3006 (c)(4). The agenda and materials for this meeting
The Review Committee is soliciting public comment by Indian tribes, Native Hawaiian organizations, museums, and Federal agencies on the following two topics: (1) The progress made, and any barriers encountered, in implementing NAGPRA and (2) the outcomes of disputes reviewed by the Review Committee pursuant to 25 U.S.C. 3006 (c)(4). The Review Committee also will consider other public comment by Indian tribes, Native Hawaiian organizations, museums, Federal agencies, and the public. A public comment request must, at minimum, include an abstract of the presentation and contact information for the presenter(s). Public comment requests must be received by September 20, 2013.
The Review Committee will consider requests for a recommendation to the Secretary of the Interior, as required by law, in order to effect the agreed-upon disposition of Native American human remains determined to be culturally unidentifiable (CUI). A CUI disposition request must include the appropriate, completed form posted on the National NAGPRA Program Web site and, as applicable, the ancillary materials noted on the form. To access and download the appropriate form—either the form for CUI with a “tribal land” or “aboriginal land” provenience or the form for CUI without a “tribal land” or “aboriginal land” provenience—go to
The Review Committee will consider requests, pursuant to 25 U.S.C. 3006 (c)(3), for review and findings of fact related to the identity or cultural affiliation of human remains or other cultural items, or the return of such items, where consensus among affected parties is unclear or uncertain. A request for findings of fact must be accompanied by a statement of the fact(s) at issue and supporting materials, including those exchanged by the parties to consultation concerning the Native American human remains and/or other cultural items. Requests for findings of fact must be received by August 16, 2013.
The Review Committee will consider requests, pursuant to 25 U.S.C. 3006 (c)(4), to convene parties and facilitate the resolution of a dispute, where consensus clearly has not been reached among affected parties regarding the identity or cultural affiliation of human remains or other cultural items, or the return of such items. A request to convene parties and facilitate the resolution of a dispute must be accompanied by a statement of the decision of the museum or Federal agency subject to the dispute resolution request, a statement of the issue and supporting materials, including those exchanged by the parties to consultation concerning the Native American human remains and/or other cultural items. Requests to convene parties and facilitate resolution of a dispute must be received by July 12, 2013.
Submissions may be made in one of three ways:
1. Electronically, as an attachment to a message (preferred for submissions of 10 pages or less). Electronic submissions are to be sent to
2. By mail, on a single compact disc (preferred for submissions of more than 10 pages). Mailed submissions are to be sent to: Designated Federal Officer, NAGPRA Review Committee, National Park Service, National NAGPRA Program, 1201 Eye Street NW., 8th Floor (2253), Washington, DC 20005.
3. By mail, in hard copy.
Such items are subject to posting on the National NAGPRA Program Web site prior to the meeting.
The Review Committee will also meet via teleconference on December 5, 2013, from 2 p.m. until approximately 4 p.m. EST, for the sole purpose of finalizing the Review Committee Report to Congress, should the item not be resolved by November 7. This meeting will be open to the public. Those who desire to attend the meeting should contact
Information about NAGPRA, the Review Committee, and Review Committee meetings is available on the National NAGPRA Program Web site at
Review Committee members are appointed by the Secretary of the Interior. The Review Committee is responsible for monitoring the NAGPRA inventory and identification process; reviewing and making findings related to the identity or cultural affiliation of cultural items, or the return of such items; facilitating the resolution of disputes; compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum, and recommending specific actions for developing a process for disposition of such human remains; consulting with Indian tribes and Native Hawaiian organizations and museums on matters affecting such tribes or organizations lying within the scope of work of the Committee; consulting with the Secretary of the Interior on the development of regulations to carry out NAGPRA; and making recommendations regarding future care of repatriated cultural items. The Review Committee's work is carried out during the course of meetings that are open to the public.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before March 16, 2013. Pursuant to § 60.13 of 36 CFR part 60, written comments are being accepted
A request to move has been made for the following resource:
National Park Service, Interior.
Notice.
The Arizona State Museum, University of Arizona, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definition of unassociated funerary object. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request to the Arizona State Museum. If no additional claimants come forward, transfer of control of the cultural item to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Arizona State Museum, University of Arizona, at the address in this notice by May 10, 2013.
John McClelland, NAGPRA Coordinator, Arizona State Museum, University of Arizona, P.O. Box 210026, Tucson, AZ 85721, telephone (520) 626-2950.
Notice is here given in accordance with the
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1930, a cultural item was removed from Queen Creek Ruin, also known as Sonoqui Pueblo, Pozos de Sonoqui, or Sun Temple Ruin (site AZ U:14:48(ASM)/SACATON:2:6(GP)) in Maricopa County, AZ, during legally authorized excavations conducted by the Gila Pueblo Foundation. The item was reportedly found in association with a human burial, but the human remains are not present in the collections. In December 1950, the Gila Pueblo Foundation closed and the item was donated to the Arizona State Museum. In 1953, the cultural item was transferred to the Field Museum of Natural History as a permanent loan. In 2013, the Field Museum transferred control of the item back to the Arizona State Museum. The unassociated funerary object is a stone bowl.
Queen Creek Ruin was a large habitation site that included trash mounds, burials, pithouses, canals, adobe compounds, and a ballcourt. Architectural features, the mortuary program, ceramic types, and other items of material culture are consistent with the Hohokam archaeological tradition and indicate occupation between approximately A.D. 950 and 1450.
Continuities of mortuary practices, ethnographic materials, and technology indicate affiliation of Hohokam settlements with present-day O'odham (Piman) and Puebloan cultures. On April 13, 2011, representatives of the Gila River Indian Community of the Gila River Indian Reservation, Arizona, submitted documentation that addresses continuities between the Hohokam and the O'odham tribes. Furthermore, oral traditions that are documented for the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and the Tohono O'odham Nation of Arizona support affiliation with Hohokam sites in central Arizona.
Officials of the Arizona State Museum, University of Arizona, have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the cultural item described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and is believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary object and the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and the Tohono O'odham Nation of Arizona.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to John McClelland, NAGPRA Coordinator, Arizona State Museum, University of Arizona, PO Box 210026, Tucson, AZ 85721, telephone (520) 626-2950 by May 10, 2013. After that date, if no additional claimants have come forward, transfer of control of the unassociated funerary object to the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and the Tohono O'odham Nation of Arizona may proceed.
The Arizona State Museum is responsible for notifying the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and the Tohono O'odham Nation of Arizona that this notice has been published.
National Park Service, Interior.
Notice.
The Field Museum of Natural History, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects and objects of cultural patrimony. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to The Field Museum of Natural History. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to The Field Museum of Natural History at the address in this notice by May 10, 2013.
Helen Robbins, Repatriation Director, The Field Museum, 1400 South Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of The Field Museum of Natural History, Chicago, IL, that meet the definition of sacred objects and objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative
The 90 cultural items consist of Western Apache ceremonial items collected at the San Carlos Apache Reservation and White Mountain Apache Reservation in the late 1800s and early 1900s. The items to be repatriated come from four separate Field Museum accessions.
Of the 90 requested cultural items, 21 items come from Field Museum accession 769. Charles Owen, acting on behalf of The Field Museum of Natural History, purchased these 21 items from various individuals on the White Mountain Apache Reservation, Arizona, in the spring of 1901, during a Field Columbian Museum expedition to the Southwest. The requested items include 8 medicine hats, 5 buckskin medicine shirts, 3 cradle charms/ornaments, 1 necklace, 1 wristlet of medicine beads, 2 medicine shields, and 1 medicine cord with a wooden figure.
Of the 90 requested cultural items, 67 items come from Field Museum accession 847. Charles Owen purchased these 67 items from various individuals on the White Mountain Apache and San Carlos Reservations during a 1903 Field Columbian Museum expedition to the Southwest. The requested items include 11 medicine strings, 18 painted medicine shirts and buckskins, 12 medicine hats, 7 necklaces, 4 wooden figures, 3 amulets, 2 medicine rings, 2 buckskin bags with wooden figures, 2 wristlets, 1 necklace and bag, 1 group of 12 eagle breath feathers, 1 hunting charm, 1 medicine shield, 1 medicine stick, and 1 wooden medicine cross.
Of the 90 requested cultural items, one item comes from Field Museum accession 895. This item was purchased by the Field Columbian Museum in 1904, in Chicago, from an individual identified as Apache. This item is a wooden figure, and is identified in collection records as an “Apache's Medicine-man's effigy.” Charles Owen had previously seen the figure on the Apache Reservation during one of his expeditions in 1901 or 1903, but had been unable to purchase it for lack of funds.
Of the 90 requested cultural items, one item comes from Field Museum accession 1926. The Field Museum of Natural History accessioned this item in 1931, receiving it as a gift from Mrs. A. Shreve Badger of Chicago. This item is identified in collection records as a “medicine man's hat.” According to donor information, the hat was originally collected on the Fort Apache Reservation in 1884 or 1885.
The 90 cultural items have been identified as Native American sacred objects and objects of cultural patrimony through museum records, scholarly publications, primary documents, consultation information, and testimony provided by representatives of the Western Apache NAGPRA Working group, a consortium of the San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona.
Officials of The Field Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the 90 cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the 90 cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the 90 cultural items and the San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Helen Robbins, Repatriation Director, The Field Museum, 1400 South Lake Shore Drive, Chicago, IL 60605, telephone (312) 665-7317, by May 10, 2013. After that date, if no additional claimants have come forward, transfer of control of the sacred objects and objects of cultural patrimony through the Western Apache NAGPRA Working Group, to the San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona, may proceed.
The Field Museum of Natural History is responsible for notifying the Apache Tribe of Oklahoma; Fort McDowell Yavapai Nation, Arizona; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona, that this notice has been published.
Bureau of Reclamation, Interior.
Notice of availability.
The following Water Management Plans are available for review:
To meet the requirements of the Central Valley Project Improvement Act of 1992 and the Reclamation Reform Act of 1982, the Bureau of Reclamation developed and published the Criteria for Evaluating Water Management Plans (Criteria). For the purpose of this announcement, Water Management Plans (Plans) are considered the same as Water Conservation Plans. The above entities have each developed a Plan, which Reclamation has evaluated and preliminarily determined to meet the requirements of these Criteria.
All public comments must be received by May 10, 2013.
Please mail comments to Ms. Laurie Sharp, Bureau of Reclamation, 2800 Cottage Way, MP-410, Sacramento, California, 95825, or email at
To be placed on a mailing list for any subsequent information, please contact Ms. Sharp at the email address above or 916-978-5232 (TDD 978-5608).
We are inviting the public to comment on our preliminary (i.e., draft) determination of Plan adequacy. Section 3405(e) of the Central Valley Project Improvement Act (Title 34 Pub. L. 102-575), requires the Secretary of the Interior to establish and administer an office on Central Valley Project water conservation best management practices that shall “develop criteria for evaluating the adequacy of all water conservation plans developed by project contractors, including those plans required by section 210 of the Reclamation Reform Act of 1982.” Also, according to Section 3405(e)(1), these criteria must be developed “with the purpose of promoting the highest level of water use efficiency reasonably achievable by project contractors using best available cost-effective technology and best management practices.” These criteria state that all parties (Contractors) that contract with Reclamation for water supplies (municipal and industrial contracts over 2,000 acre-feet and agricultural contracts over 2,000 irrigable acres) must prepare a Plan that contains the following information:
1. Description of the District;
2. Inventory of Water Resources;
3. Best Management Practices (BMPs) for Agricultural Contractors;
4. BMPs for Urban Contractors;
5. Plan Implementation;
6. Exemption Process;
7. Regional Criteria; and
8. Five-Year Revisions.
Reclamation evaluates Plans based on these criteria. A copy of these Plans will be available for review at Reclamation's Mid-Pacific Regional Office, 2800 Cottage Way, MP-410, Sacramento, California, 95825. Our practice is to make comments, including names and home addresses of respondents, available for public review. If you wish to review a copy of these Plans, please contact Ms. Sharp.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Reclamation, Interior.
Notice of public meeting.
The Glen Canyon Dam Adaptive Management Work Group (AMWG) makes recommendations to the Secretary of the Interior concerning Glen Canyon Dam operations and other management actions to protect resources downstream of Glen Canyon Dam, consistent with the Grand Canyon Protection Act. The AMWG meets two to three times a year.
The May 8, 2013, AMWG WebEx/conference call will begin at 3 p.m. (EDT), 1 p.m. (MDT), and 12 p.m. (PDT) and conclude three (3) hours later in the respective time zones. See call-in information in the
Glen Knowles, Bureau of Reclamation, telephone (801) 524-3781; facsimile (801) 524-3858; email at
The Glen Canyon Dam Adaptive Management Program (AMP) was implemented as a result of the Record of Decision on the Operation of Glen Canyon Dam Final Environmental Impact Statement to comply with consultation requirements of the Grand Canyon Protection Act (Pub. L. 102-575) of 1992. The AMP includes a Federal advisory committee, the AMWG, a technical work group, a Grand Canyon Monitoring and Research Center, and independent review panels. The technical work group is a subcommittee of the AMWG and provides technical advice and recommendations to the AMWG.
1. Go to:
2. If requested, enter your name and email address.
3. If a password is required, enter the meeting password: AMWG.
4. Click “Join.”
There will be limited ports available, so if you wish to participate, please contact Linda Whetton at 801-524-3880 to register.
To view a copy of the agenda and documents related to the above meeting, please visit Reclamation's Web site at:
Before including your name, 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.
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing that the information collection request for the Exemption for Coal Extraction Incidental to the Extraction of Other Minerals, has been submitted to the Office of Management and Budget (OMB) for review and approval. The information collection request describes the nature of the information collection and its expected burden and cost.
Comments must be submitted on or before May 10, 2013, to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Department of the Interior Desk Officer, via email at
To receive a copy of the information collection request contact John Trelease at (202) 208-2783, or electronically at
OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval for the collection of information found at 30 CFR Part 702—Exemption for Coal Extraction Incidental to the Extraction of Other Minerals. OSM is requesting a 3-year term of approval for this collection. This collection is required to obtain or retain a benefit.
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. The OMB control number for this collection of information is 1029-0089 and is displayed at 30 CFR 702.10.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information, to the offices listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of a full review pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) (the Act) to determine whether revocation of the antidumping duty order on low enriched uranium from France would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Christopher J. Cassise (202-708-5408), 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
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
On the basis of the record
The Commission instituted these investigations effective March 1, 2012, following receipt of a petition filed with the Commission and Commerce by Elkay Manufacturing Company, Oak Brook, IL. The final phase of the investigations was scheduled by the Commission following notification of a preliminary determinations by Commerce that imports of drawn stainless steel sinks from China were subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)) and dumped within the meaning of 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on April 4, 2013. The views of the Commission are contained in USITC Publication 4390 (April 2013), entitled
By order of the Commission.
On March 27, 2013, the Department of Justice lodged a proposed consent decree (“Decree”) with the United States District Court for the Northern District of New York in the lawsuit entitled
Attachment A to the Decree is the St. Lawrence River Environment Natural Resource Damage Assessment: Restoration and Compensation Determination Plan and Environmental Assessment (“RCDP”). The RCDP describes the natural resource injuries and associated losses and outlines proposed restoration projects. Notice of the issuance of the RCDP was published by the National Oceanic and Atmospheric Administration in the
The publication of this notice opens a period for public comment on the Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $155.25 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy of the consent decree without the appendices the cost is $4.75.
On April 3, 2013, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Southern District of Texas in the lawsuit entitled
Co-plaintiffs United States and State of Texas seek redress from Defendant Akema, Inc. for damages to natural resources that resulted from discharge of hazardous substances at and from a facility that formulated agricultural chemicals, located in the vicinity of 201 West Dodge Street, Bryan, Brazos County, Texas.
Under the settlement embodied in the proposed Decree, Arkema will pay the federal and state natural resource trustees a total of $1.4 million, of which more than $1.1 million will be jointly administered and used by those trustees to restore, replace, or acquire the equivalent of the injured natural resources. The balance of the payment will be used to reimburse the trustees for previously-incurred assessment costs (almost $0.160 million to the United States and almost $0.124 million to the State). Also under the proposed settlement, the United States covenants not to sue Arkema for natural resource damages at the facility under specified provisions of the Clean Water Act and the Comprehensive Environmental Response Compensation and Liability Act. The State covenants not to sue Arkema on similar terms.
The publication of this notice opens a period for public comment on the proposed Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $4.25 (25 cents per page reproduction cost) payable to the United States Treasury.
On April 4, 2013, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Eastern District of Missouri, in the lawsuit entitled
The United States filed this lawsuit under the Clean Air Act (CAA), 42 U.S.C. Sections 7412(r)(7) and 7413 (b)(2), for noncompliance with the requirements of the chemical accident prevention provisions of the CAA, including failure to test or replace safety relief valves, improperly co-located gas-fired boilers and ammonia compressors, and other failures to abide by the Risk Management Program (“RMP”) requirements of Section 112(r)(7) of the Act. The proposed Consent Decree, which resolves all of these claims, requires Tyson to undertake extensive measures to ensure compliance with RMP regulatory requirements, including comprehensive third-party audits of RMP components at all 23 Tyson facilities within Missouri, Kansas, Iowa, and Nebraska. Tyson is required correct any violations found within specified periods of time and certify the completion of that work.
Tyson will also audit each facility to determine the thickness of threaded piping connections used in its refrigeration systems. Tyson will replace and/or otherwise correct any non-compliant piping it finds in its facilities.
Tyson must also pay a civil penalty of $3,950,000 and undertake a supplemental environmental project. Tyson will purchase and deliver emergency equipment that is relevant to responses to emergencies involving chemicals that are regulated pursuant to the CAA Risk Management Program, to fire departments in the affected communities within 180 days after the Effective Date of the Consent Decree.
The Consent Decree provides Tyson with a release for the RMP violations alleged in the Complaint, and for other RMP violations uncovered by the audits that Tyson fully and timely corrects pursuant to the Consent Decree.
The publication of this notice opens a period for public comment on the Proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, Ignacia S. Moreno, and should refer to
During the public comment period, the Proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $13.50 (25 cents per page reproduction cost) payable to the United States Treasury.
The Legal Services Corporation's Board of Directors and its six committees will meet April 14-16, 2013. On Sunday, April 14, the first meeting will commence at 2:30 p.m., Eastern Daylight Time (EDT), with the meeting thereafter commencing promptly upon adjournment of the immediately preceding meeting. On Monday, April 15, the first meeting will commence at 9:00 a.m., EDT, with each meeting thereafter commencing promptly upon adjournment of the immediately preceding meeting. On Tuesday, April 16, the Board meeting will commence at 9:00 a.m., EDT, and will continue until the conclusion of the Board's agenda.
F. William McCalpin Conference Center, Legal Services Corporation, 3333 K Street, NW., Washington DC 20007.
Unless otherwise noted herein, the Board and all committee meetings will be open to public observation. Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348
• When connected to the call, please immediately “MUTE” your telephone.
Members of the public are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold if doing so will trigger recorded music or other sound. From time to time, the presiding Chair may solicit comments from the public.
Open, except as noted below.
* Please note that all times in this notice are in the
** Any portion of the closed session solely of briefings does not fall within the Sunshine Act's definitkion of the term “meeting” and, therefore, the requirements of the Sunshine Act do not apply to such portion of the closed session. 5 U.S.C. 552(a)(2) and (b).
A verbatim written transcript will be made of the closed session of the Board and Institutional Advancement Committee meetings. The transcript of any portions of the closed session falling within the relevant provisions of the Government in the Sunshine Act, 5 U.S.C. § 552b(c)(6), (9) and (10), and the corresponding provisions of the Legal Services Corporation's implementing regulations, 45 CFR 1622.5(e), (g) and (h), will not be available for public inspection. A copy of the General Counsel's Certification that, in his opinion, the closing is authorized by law will be available upon request.
1. Approval of agenda
2. Approval of minutes of the Committee's meeting on January 25, 2013
3. Consider and act on the proposed Request for Information regarding representation of criminal defendants in tribal courts
Kara Ward, Assistant General Counsel
4. Consider and act on the proposed Notice of Rulemaking Workshop regarding potential changes to the private attorney involvement rule in a manner responsive to the recommendations of the Pro Bono Task Force Report
Kara Ward, Assistant General Counsel
5. Consider and act on initiating rulemaking to conform Part 1626 (Restrictions on Assistance to Aliens) with existing statutory authorizations
Kara Ward, Assistant General Counsel
6. Public comment
7. Consider and act on other business
8. Consider and act on adjournment of meeting
1. Approval of agenda
2. Approval of minutes of the Committee's meeting of January 26, 2013
3. Staff reports on
• Staff report on progress in implementing GAO recommendations
4. Public Welfare Foundation Grant Materials
5. Report on Public Welfare Foundation grant and LSC research agenda
• Jim Sandman, President
6. Report on evaluation of LSC Comptroller
7. Consider and act on other business
8. Public comment
9. Consider and act on motion to adjourn meeting
1. Approval of agenda
2. Approval of minutes of the Committee's open session meeting of January 26, 2013
3. Discussion of plans for LSC's 40th anniversary celebration
4. Discussion of fundraising objectives
5. Public comment
6. Consider and act on other business
1. Approval of minutes of the Committee's closed session meeting of January 26, 2013
2. Approval of minutes of the Committee's closed session meeting of February 13, 2013
3. Approval of minutes of the Committee's closed session meeting of February 26, 2013
4. Approval of minutes of the Committee's closed session meeting of March 12, 2013
5. Discussion of prospective funders for LSC's development activities
6. Discussion of prospective members of the honorary auxiliary group
7. Consider and act on adjournment of meeting
1. Approval of Agenda
2. Approval of minutes of the Committee's meeting of January 25, 2013
3. Discussion of Committee's evaluations for 2012 and the Committee's goals for 2013
4. Presentation of the District of Columbia Neighborhood Legal Services Program
5. Panel Presentation on using assessments of legal needs of the low income population to set priorities for the work of legal services programs
6. Public comment
7. Consider and act on other business
8. Consider and act on motion to adjourn the meeting
1. Approval of agenda
2. Approval of minutes from the January 26, 2013 meeting
3. Quarterly review of 403(b) plan performance
4. Briefing by Inspector General
• Jeff Schanz, Inspector General
5. Reports on audits and implementation of findings and recommendations made by the OIG and external auditors, and compliance with the restrictions of 45 CFR Part 1612
• Jim Sandman, President
• David Richardson, Treasurer/Comptroller
• Lora Rath, Director, Office of Compliance and Enforcement
6. Discussion regarding future Management process reports
7. Public comment
8. Consider and act on other business
9. Consider and act on motion to adjourn the meeting
10. Briefing on Insurance Coverage
• David Richardson, Treasurer/Comptroller
1. Approval of agenda
2. Approval of the minutes from the January 26, 2013 meeting
3. Consider and act on the Consolidated Operating Budget for FY 2013 and recommend Resolution 2013-XXX to the full Board
• David Richardson, Treasurer/Comptroller
4. Presentation on LSC's Financial Report for the five-month period ending February 28, 2013
• David Richardson, Treasurer/Comptroller
5. Report on FY 2013 appropriations
• Carol Bergman, Director, Office of Government Relations and Public Affairs
6. Report on FY 2014 appropriations process
• Carol Bergman, Director, Office of Government Relations and Public Affairs
7. Discussion with Management regarding process and timetable for FY 2015 budget “mark”
8. Public comment
9. Consider and act on other business
10. Consider and act on motion to adjourn the meeting
1. Pledge of Allegiance
2. Approval of agenda
3. Approval of minutes of the Board's meeting of January 26, 2013
4. Chairman's Report
5. Members' Reports
6. President's Report
7. Inspector General's Report
8. Consider and act on the report of the Promotion and Provision for the Delivery of Legal Services Committee
9. Consider and act on the report of the Finance Committee
10. Consider and act on the report of the Audit Committee
11. Consider and act on the report of the Operations and Regulations Committee
12. Consider and act on the report of the Governance and Performance Review Committee
13. Consider and act on the report of the Institutional Advancement Committee
14. Consider and act on Resolution 2013-XXX in recognition of distinguished service by Victor M. Fortuno
15. Public comment
16. Consider and act on other business
17. Consider and act on whether to authorize an executive session of the Board to address items listed below, under Closed Session
18. Approval of minutes of the Board's closed session meeting of January 26, 2013
19. Briefing by Management
20. Briefing by the Inspector General
21. Consider and act on General Counsel's report on potential and pending litigation involving LSC
22. Consider and act on motion to adjourn meeting
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1628. Questions may be sent by electronic mail to
Non-confidential meeting materials will be made available in electronic format at least 24 hours in advance of the meeting on the LSC Web site, at
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals who need other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
National Aeronautics and Space Administration.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Protection Subcommittee of the NASA Advisory Council (NAC). This Subcommittee reports to the Science Committee of the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons scientific and technical information relevant to program planning.
Monday, April 29, 2013, 9:00 a.m. to 5:00 p.m., and Tuesday, April 30, 2013, 8:30 a.m. to 4:30 p.m., Local Time.
NASA Headquarters, 300 E Street SW., Room 9H40 (April 29), Room 1Q39 (April 30, 9:00 a.m. to 2:00 p.m.), and Room 6H41A (April 30, 2:00 p.m. to 4:30 p.m.), Washington, DC 20546.
Ms. Marian Norris, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4452, fax (202) 358-3094, or
The meeting will be open to the public up to the capacity of the room. The meeting will also be available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 800-857-7040, pass code PPS, to participate in this meeting by telephone. The WebEx link is
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be requested to sign a register and to
By telephone vote on April 4, 2013, members of the Board of Governors of the United States Postal Service met and voted unanimously to close to public observation its meeting held in Washington, DC, via teleconference. The Board determined that no earlier public notice was possible.
1. Strategic Issues.
2. Personnel Matter.
The General Counsel of the United States Postal Service has certified that the meeting was properly closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at (202) 268-4800.
Securities and Exchange Commission (“Commission”).
Notice of an application under (a) section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 2(a)(35), 14(a), 19(b), 22(d) and 26(a)(2)(C) of the Act and rules 19b-1 and rule 22c-1 thereunder and (b) sections 11(a) and 11(c) of the Act for approval of certain exchange and rollover privileges.
TSC Distributors LLC (“TSC”) and TSC UITS (the “TSC UITS”).
Applicants request an order to permit certain unit investment trusts to: (a) Impose sales charges on a deferred basis and waive the deferred sales charge in certain cases; (b) offer unitholders certain exchange and rollover options; (c) publicly offer units without requiring the Depositor to take for its own account $100,000 worth of units; and (d) distribute capital gains resulting from the sale of portfolio securities within a reasonable time after receipt.
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 April 29, 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, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, 10 High Street, Suite 70, Boston, MA 02110.
Jean E. Minarick, Senior Counsel, at (202) 551-6811, or Daniele Marchesani, Branch Chief, at (202) 551-6821 (Office of Investment Company Regulation, Division of Investment Management).
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. TSC UITS is a unit investment trust (“UIT”) that is registered under the Act. Any future Trust will be a registered UIT. TSC, a Delaware limited liability company, is registered under the Securities Exchange Act of 1934 as a broker-dealer and is the Depositor of the TSC UITS. Each Series will be created by a trust indenture between the Depositor and a banking institution or trust company as trustee (“Trustee”).
2. The Depositor acquires a portfolio of securities, which it deposits with the Trustee in exchange for certificates representing units of fractional undivided interest in the Series' portfolio (“Units”). The Units are offered to the public through the Depositor and dealers at a price which, during the initial offering period, is based upon the aggregate market value of the underlying securities, or, the aggregate offering side evaluation of the underlying securities if the underlying securities are not listed on a securities exchange, plus a front-end sales charge, a deferred sales charge or both. The maximum sales charge may be reduced in compliance with rule 22d-1 under the Act in certain circumstances, which are disclosed in the Series' prospectus.
3. The Depositor may, but is not legally obligated to, maintain a secondary market for Units of an outstanding Series. Other broker-dealers may or may not maintain a secondary market for Units of a Series. If a secondary market is maintained, investors will be able to purchase Units on the secondary market at the current public offering price plus a front-end sales charge. If such a market is not
1. Applicants request an order to the extent necessary to permit one or more Series to impose a sales charge on a deferred basis (“DSC”). For each Series, the Depositor would set a maximum sales charge per Unit, a portion of which may be collected “up front” (i.e., at the time an investor purchases the Units). The DSC would be collected subsequently in installments (“Installment Payments”) as described in the application. The Depositor would not add any amount for interest or any similar or related charge to adjust for such deferral.
2. When a Unitholder redeems or sells Units, the Depositor intends to deduct any unpaid DSC from the redemption or sale proceeds. When calculating the amount due, the Depositor will assume that Units on which the DSC has been paid in full are redeemed or sold first. With respect to Units on which the DSC has not been paid in full, the Depositor will assume that the Units held for the longest time are redeemed or sold first. Applicants represent that the DSC collected at the time of redemption or sale, together with the Installment Payments and any amount collected up front, will not exceed the maximum sales charge per Unit. Under certain circumstances, the Depositor may waive the collection of any unpaid DSC in connection with redemptions or sales of Units. These circumstances will be disclosed in the prospectus for the relevant Series and implemented in accordance with rule 22d-1 under the Act.
3. Each Series offering Units subject to a DSC will state the maximum charge per Unit in its prospectus. In addition, the prospectus for such Series will include the table required by Form N-1A (modified as appropriate to reflect the difference between UITs and open-end management investment companies) and a schedule setting forth the number and date of each Installment Payment, along with the duration of the collection period. The prospectus also will disclose that portfolio securities may be sold to pay the DSC if distribution income is insufficient and that securities will be sold pro rata, if practicable, otherwise a specific security will be designated for sale.
1. Applicants request an order to the extent necessary to permit Unitholders of a Series to exchange their Units for Units of another Series (“Exchange Option”) and Unitholders of a Series that is terminating to exchange their Units for Units of a new Series of the same type (“Rollover Option”). The Exchange Option and Rollover Option would apply to all exchanges of Units sold with a front-end sales charge, a DSC or both.
2. A Unitholder who purchases Units under the Exchange Option or Rollover Option would pay a lower sales charge than that which would be paid for the Units by a new investor. The reduced sales charge will be reasonably related to the expenses incurred in connection with the administration of the DSC program, which may include an amount that will fairly and adequately compensate the Depositor and participating underwriters and brokers for their services in providing the DSC program.
1. Section 4(2) of the Act defines a “unit investment trust” as an investment company that issues only redeemable securities. Section 2(a)(32) of the Act defines a “redeemable security” as a security that, upon its presentation to the issuer, entitles the holder to receive approximately his or her proportionate share of the issuer's current net assets or the cash equivalent of those assets. Rule 22c-1 under the Act requires that the price of a redeemable security issued by a registered investment company for purposes of sale, redemption or repurchase be based on the security's current net asset value (“NAV”). Because the collection of any unpaid DSC may cause a redeeming Unitholder to receive an amount less than the NAV of the redeemed Units, applicants request relief from section 2(a)(32) and rule 22c-1.
2. Section 22(d) of the Act and rule 22d-1 under the Act require a registered investment company and its principal underwriter and dealers to sell securities only at the current public offering price described in the investment company's prospectus, with the exception of sales of redeemable securities at prices that reflect scheduled variations in the sales load. Section 2(a)(35) of the Act defines the term “sales load” as the difference between the sales price and the portion of the proceeds invested by the depositor or trustee. Applicants request relief from section 2(a)(35) and section 22(d) to permit waivers, deferrals or other scheduled variations of the sales load.
3. Under section 6(c) of the Act, the Commission may exempt classes of transactions, if and to the extent that 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 their proposal meets the standards of section 6(c). Applicants state that the provisions of section 22(d) are intended to prevent (a) Riskless trading in investment company securities due to backward pricing, (b) disruption of orderly distribution by dealers selling shares at a discount, and (c) discrimination among investors resulting from different prices charged to different investors. Applicants assert that the proposed DSC program will present none of these abuses. Applicants further state that all scheduled variations in the sales load will be disclosed in the prospectus of each Series and applied uniformly to all investors, and that applicants will comply with all the conditions set forth in rule 22d-1.
4. Section 26(a)(2)(C) of the Act, in relevant part, prohibits a trustee or custodian of a UIT from collecting from the trust as an expense any payment to the trust's depositor or principal underwriter. Because the Trustee's payment of the DSC to the Depositor may be deemed to be an expense under section 26(a)(2)(C), applicants request relief under section 6(c) from section 26(a)(2)(C) to the extent necessary to permit the Trustee to collect Installment Payments and disburse them to the Depositor. Applicants submit that the relief is appropriate because the DSC is more properly characterized as a sales load.
Sections 11(a) and 11(c) of the Act prohibit any offer of exchange by a UIT for the securities of another investment company unless the terms of the offer have been approved in advance by the Commission. Applicants request an order under sections 11(a) and 11(c) for Commission approval of the Exchange Option and the Rollover Option.
1. Section 14(a) of the Act requires that a registered investment company have $100,000 of net worth prior to making a public offering. Applicants state that each Series will comply with
2. Rule 14a-3 under the Act exempts UITs from section 14(a) if certain conditions are met, one of which is that the UIT invest only in “eligible trust securities,” as defined in the rule. Applicants state that they may not rely on rule 14a-3 because certain Series (collectively, “Equity Series”) will invest all or a portion of their assets in equity securities or shares of registered investment companies which do not satisfy the definition of eligible trust securities.
3. Applicants request an exemption under section 6(c) of the Act to the extent necessary to exempt the Equity Series from the net worth requirement in section 14(a). Applicants state that the Series and the Depositor will comply in all respects with the requirements of rule 14a-3, except that the Equity Series will not restrict their portfolio investments to “eligible trust securities.”
1. Section 19(b) of the Act and rule 19b-1 under the Act provide that, except under limited circumstances, no registered investment company may distribute long-term gains more than once every twelve months. Rule 19b-1(c), under certain circumstances, exempts a UIT investing in eligible trust securities (as defined in rule 14a-3) from the requirements of rule 19b-1. Because the Equity Series do not limit their investments to eligible trust securities, however, the Equity Series will not qualify for the exemption in paragraph (c) of rule 19b-1. Applicants therefore request an exemption under section 6(c) from section 19(b) and rule 19b-1 to the extent necessary to permit capital gains earned in connection with the sale of portfolio securities to be distributed to Unitholders along with the Equity Series' regular distributions. In all other respects, applicants will comply with section 19(b) and rule 19b-1.
2. Applicants state that their proposal meets the standards of section 6(c). Applicants assert that any sale of portfolio securities would be triggered by the need to meet Trust expenses, Installment Payments, or by redemption requests, events over which the Depositor and the Equity Series do not have control. Applicants further state that, because principal distributions must be clearly indicated in accompanying reports to Unitholders as a return of principal and will be relatively small in comparison to normal dividend distributions, there is little danger of confusion from failure to differentiate among distributions.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Whenever the Exchange Option or the Rollover Option is to be terminated or its terms are to be amended materially, any holder of a security subject to that privilege will be given prominent notice of the impending termination or amendment at least 60 days prior to the date of termination or the effective date of the amendment, provided that: (a) no such notice need be given if the only material effect of an amendment is to reduce or eliminate the sales charge payable at the time of an exchange, to add one or more new Series eligible for the Exchange Option or the Rollover Option, or to delete a Series which has terminated; and (b) no notice need be given if, under extraordinary circumstances, either (i) there is a suspension of the redemption of Units of the Series under section 22(e) of the Act and the rules and regulations promulgated thereunder, or (ii) a Series temporarily delays or ceases the sale of its Units because it is unable to invest amounts effectively in accordance with applicable investment objectives, policies and restrictions.
2. An investor who purchases Units under the Exchange Option or the Rollover Option will pay a lower sales charge than that which would be paid for the Units by a new investor.
3. The prospectus of each Series offering exchanges or rollovers and any sales literature or advertising that mentions the existence of the Exchange Option or Rollover Option will disclose that the Exchange Option and the Rollover Option are subject to modification, termination or suspension without notice, except in certain limited cases.
4. Any DSC imposed on a Series' Units will comply with the requirements of subparagraphs (1), (2) and (3) of rule 6c-10(a) under the Act.
5. Each Series offering Units subject to a DSC will include in its prospectus the disclosure required by Form N-1A relating to deferred sales charges (modified as appropriate to reflect the differences between UITs and open-end management investment companies) and a schedule setting forth the number and date of each Installment Payment.
Applicants will comply in all respects with the requirements of rule 14a-3 under the Act, except that the Equity Series will not restrict their portfolio investments to “eligible trust securities.”
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act 1940 (the “Act”) granting an exemption from sections 12(d)(1)(A) and 12(d)(1)(C) of the Act, under section 17(b) of the Act granting an exemption from section 17(a) of the Act, and under section 17(d) of the Act and rule 17d-1 thereunder permitting certain joint transactions.
Royce Value Trust, Inc. (“Value Trust”), Royce Global Value Trust, Inc. (“Global Trust”) (each a “Fund” and together, the “Funds”) and Royce & Associates, LLC (the “Adviser”).
Applicants seek an order to permit Value Trust to transfer a segment of its assets to Global Trust, a newly formed, wholly-owned subsidiary that is a registered closed-end investment company, and to distribute the shares of Global Trust common stock to Value Trust's common stockholders.
The application was filed on March 17, 2011 and amended on August 16, 2011, May 22, 2012, and March 6, 2013.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: c/o Frank P. Bruno, Esq., Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019-6018.
Laura J. Riegel, Senior Counsel, at (202) 551-6873 or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Exemptive Applications Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. Value Trust, a Maryland corporation, is registered under the Act as a diversified closed-end management investment company. Value Trust seeks long-term growth of capital primarily through investment in the equity securities of small- and micro-cap companies. Value Trust has a non-fundamental investment policy that limits its investment in securities of issuers headquartered outside the United States to 25% of the Fund's assets.
2. Global Trust was incorporated in Maryland on February 14, 2011 and filed a notification of registration on Form N-8A on March 11, 2011 to register under the Act as a diversified closed-end management investment company. Global Trust filed a registration statement under the Securities Act of 1933 (the “1933 Act”) on Form N-14 on March 16, 2011 (the “Proxy Statement/Prospectus”) and filed a registration statement on Form N-2 on June 8, 2011. Application will be made to list Global Trust's common stock for trading on the New York Stock Exchange. Global Trust seeks long-term growth of capital by investing a significant portion of its assets in the equity securities of micro-cap, small-cap, and/or mid-cap companies. Unlike Value Trust, Global Trust may invest without limitation in securities of foreign issuers and, under normal market circumstances, will invest at least 65% of its assets in equity securities of companies located outside of the United States.
3. The Adviser, a Delaware limited liability company, is registered under the Investment Advisers Act of 1940 and serves as the investment adviser to the Funds. The investment advisory fee structures for Value Trust and Global Trust will be different. Value Trust's advisory fee consists of a base fee and a fulcrum fee. The base advisory fee of Value Trust is a monthly fee equal to 1/12 of 1% (1% on an annualized basis) of the average of Value Trust's month-end net assets, including the liquidation value of any preferred stock issued and outstanding, for the rolling 60-month period ending with such month.
4. The board of directors of Value Trust consists of eight directors who are also directors on the eight member board of directors of Global Trust (each such board of directors, a “Board” and collectively, the “Boards”). Six of the eight directors on each Board are not “interested persons,” as defined in section 2(a)(19) of the Act (the “Independent Directors”). All of the principal officers of Value Trust hold the same offices with Global Trust.
5. The Board of Value Trust has approved, subject to the issuance of the requested relief and subsequent stockholder approval, the contribution of a segment of Value Trust's assets having a value of approximately $100 million to Global Trust, in exchange for shares of Global Trust common stock. It is anticipated that the contributed assets will consist largely or exclusively of cash, short-term fixed income instruments, and/or unappreciated common stock and unappreciated preferred stock whose value at the time of the Transaction (as defined below) are less than or equal to their cost basis for tax purposes (together, such unappreciated common stock and unappreciated preferred stock are “Unappreciated Equity Securities”). All the shares of common stock of Global Trust will then be distributed by Value Trust to its common stockholders at a rate of one (1) share of Global Trust common stock for every seven (7) shares held of Value Trust common stock.
6. The Proxy Statement/Prospectus of the Funds will be used, following the issuance of the requested relief, to solicit approval of the Value Trust stockholders of the Transaction. Prior to the effectiveness of the Proxy Statement/Prospectus under the 1933 Act, Value Trust will purchase approximately 10,000 shares of Global Trust's shares of common stock, par value $0.001, in consideration of Value Trust's contribution to Global Trust of at least $100,000 initial net asset value (the “Seed Capital Shares”), in order to satisfy the requirements of section 14(a) of the Act. Value Trust represents that the Seed Capital Shares will be sold only pursuant to a registration statement under the 1933 Act or an applicable exemption from registration under the 1933 Act. Applicants intend that the Seed Capital Shares will be included in the distribution of Global Trust's shares of common stock to the common stockholders of Value Trust.
7. Applicants represent that Value Trust's activities in the Transaction may be deemed to be underwriting shares of Global Trust's common stock. Value Trust has a fundamental investment
8. Applicants state that Value Trust's Underwriting Restriction cannot be changed without the affirmative vote of the majority of the outstanding voting securities of Value Trust. Applicants undertake that they will not rely on the requested order until the amendment to the Underwriting Restriction
9. The Board of Value Trust, including the Independent Directors, concluded that the Transaction will result in the following benefits to Value Trust stockholders: (a) Stockholders will receive shares of an investment company with a different risk-return profile than Value Trust; (b) stockholders will acquire the shares of Global Trust common stock at a much lower transaction cost than is typically the case for a newly-organized closed-end equity fund since there will be no underwriting discounts or commissions; and (c) stockholders will be able to seek capital appreciation opportunities presented by Global Trust's ability to invest at least 65% of its net assets in non-U.S. securities.
10. Shortly before the date of the Transaction, the Adviser will review with the Boards of Global Trust and Value Trust, including the Independent Directors: (a) the Unappreciated Securities, if any, it recommends contributing in the Transaction; (b) the methodology used by the Adviser in selecting Unappreciated Equity Securities to be contributed to Global Trust and those to be retained by Value Trust; (c) the cost basis and current fair market value of each Unappreciated Equity Security to be contributed; (d) the aggregate amount of Unappreciated Equity Securities to be contributed and the percentage of Value Trust's entire portfolio and of its unappreciated common stock and preferred stock that the Unappreciated Equity Securities to be contributed constitute; and (e) the percentage of Global Trust's portfolio that the Unappreciated Equity Securities will constitute.
11. Global Trust has been advised by counsel that the distribution of shares of Global Trust to the common stockholders of Value Trust likely will be a taxable event for Value Trust stockholders to some extent and a taxable event for Value Trust, but only to the extent that the value of Global Trust shares distributed exceeds Value Trust's cost of such shares. Specifically, the value of Global Trust shares will exceed Value Trust's cost of those shares only to the extent that the value of the short-term fixed income instruments and Unappreciated Equity Securities, if any, contributed to Global Trust exceeds Value Trust's cost of such short-term fixed income instruments and Unappreciated Equity Securities. Applicants state that no significant excess is expected. Further, the Transaction is not expected to increase significantly the total amount of taxable distributions received by Value Trust common stockholders for the year in which the Transaction is consummated because Value Trust distributes to stockholders each year substantially all of its taxable income and accordingly, any taxable income included in the distribution of Global Trust shares would be distributed at some point during the year in any event. The Board of Value Trust, including all of the Independent Directors, has considered the tax consequences of the Transaction and has determined that the benefits of the Transaction outweigh any adverse tax consequences to Value Trust and its common stockholders, particularly because such adverse tax consequences are expected to be minimal.
12. The costs of organizing Global Trust and effecting the distribution of Global Trust's shares to Value Trust's common stockholders, including the fees and expenses of counsel and accountants and printing, listing, and registration fees, the costs of soliciting Value Trust's stockholders' approval of the Transaction, and the costs incurred in connection with the application for relief, are estimated to be approximately $700,000, and will be borne by the Adviser. Global Trust will incur operating expenses on an ongoing basis, including investment advisory fees, and legal, auditing, transfer agency, and custodian expenses that, when aggregated with the fees payable by Value Trust for similar services after the distribution, will likely exceed the fees currently payable by Value Trust for those services. It is not expected that the Transaction will have a significant effect on the annual expenses of Value Trust as a percentage of its assets.
1. Applicants request an order under section 12(d)(1)(J) of the Act granting an exemption from sections 12(d)(1)(A) and 12(d)(1)(C) of the Act, under section 17(b) of the Act granting an exemption from section 17(a) of the Act and under section 17(d) of the Act and rule17d-1 thereunder permitting certain joint transactions.
2. Section 12(d)(1)(A) of the Act 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)(C) of the Act prohibits an investment company from acquiring any security issued by a registered closed-end investment company if such acquisition would result in the acquiring company, any other investment companies having the same investment adviser, and companies controlled by such investment companies, collectively, owning more than 10% of the outstanding voting stock of the registered closed-end investment company.
3. Applicants state that the proposed Transaction may be viewed as violating sections 12(d)(1)(A) and 12(d)(1)(C). At the time of the purchase of Seed Capital Shares and at the time of the transfer of Value Trust's assets in return for shares of Global Trust common stock, Value Trust will acquire 100% of the voting stock of Global Trust, a closed-end investment company, and the value of Value Trust's holdings of Global Trust common stock will exceed 5% of Value Trust's assets for a momentary period.
4. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or
5. Applicants submit that the structure of the Transaction adequately addresses the concerns underlying the limits in section 12(d)(1), which include concerns about control by a fund of funds over underlying funds and a layering of costs to investors in terms of duplication of administrative expenses, sales charges and advisory fees. Applicants submit that there is no danger of control over Global Trust by Value Trust or of a layering of costs to stockholders of Value Trust. Applicants note that ownership of Global Trust by Value Trust (other than the Seed Capital Shares) will exist for only an instant. In addition, applicants state the Transaction involves no layering of costs to stockholders, since Global Trust will not incur any advisory, administrative, transfer agency, custody, or similar fees until after completion of the Transaction.
6. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and an affiliated person. 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 voting securities are directly or indirectly owned controlled or held with the 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. Value Trust may be viewed as an affiliated person of Global Trust under section 2(a)(3) because Value Trust will own 100 percent of the Global Trust's voting securities until the consummation of the Transaction. Value Trust and Global Trust also may be viewed as affiliated persons of each other to the extent that they may be deemed to be under the common control of the Adviser. As a result of the affiliation between Value Trust and Global Trust, section 17(a) would prohibit the Transaction.
7. Applicants request an exemption pursuant to section 17(b) of the Act from the provisions of section 17(a) in order to permit applicants to effect the Transaction. Section 17(b) authorizes the Commission to issue such an exemptive order if the Commission finds that the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any persons concerned, and the proposed transaction is consistent with the policy of each registered investment company and the general purposes of the Act.
8. Applicants assert that the terms of the Transaction, including the consideration to be paid or received, are fair and reasonable and do not involve overreaching by any person concerned. Applicants state that the proposed contribution by Value Trust of a portion of its assets to Global Trust in exchange for shares of Global Trust common stock will be based on the value of such assets computed as of the close of trading on the New York State Exchange on a business day to be selected by the Board of Value Trust (such business day, the “Valuation Date”), in the same manner as for purposes of the daily net asset valuation for Value Trust. The Transaction will occur after the close of trading on the New York Stock Exchange on the Valuation Date. Applicants anticipate that such assets will consist largely or exclusively of cash, short-term fixed income instruments and/or Unappreciated Equity Securities and thus will pose no issues with respect to valuation.
9. With respect to the Transaction, each Board, including a majority of the Independent Directors, determined that participation in the Transaction is in the best interests of Value Trust or Global Trust, as applicable, and that the interests of the existing stockholders of Value Trust or Global Trust, as applicable, will not be diluted as a result of the Transaction. These findings, and the basis upon which the findings were made, will be recorded fully in the minute book of Value Trust or Global Trust, as applicable. In addition, the Adviser, in selecting Unappreciated Equity Securities to be contributed to Global Trust, will, in the exercise of its fiduciary responsibilities, act in a manner it believes to be in the best interests of both Funds.
10. Applicants state that the Transaction will be consistent with the stated investment policies of Value Trust and Global Trust as disclosed to stockholders. The distribution of shares of Global Trust common stock will not initially change the position of Value Trust's stockholders with respect to the underlying investments that they then own. The Proxy Statement/Prospectus will be used to solicit the approval of Value Trust's stockholders of the Transaction at a vote to take place following the issuance of the requested order. Value Trust's stockholders will have the opportunity to vote on the Transaction after having received disclosure concerning the Transaction.
11. Applicants also seek an order under section 17(d) of the Act and rule 17d-1 under the Act. Section 17(d) and rule 17d-1 prohibit affiliated persons from participating in joint arrangements with a registered investment company unless authorized by the Commission. In passing on applications for these orders, rule 17d-1 provides that the Commission will consider whether the participation of the investment company is consistent with the provisions, policies and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of the other participants. Applicants request an order pursuant to rule 17d-1 to the extent that the participation of applicants in the Transaction may be deemed to constitute a prohibited joint transaction.
12. Applicants state that the Transaction will not place any of Value Trust, Global Trust, or existing shareholders of Value Trust in a position less advantageous than that of any other person. The value of Value Trust's assets transferred to Global Trust (and the shares of Global Trust common stock received in return) will be based on their value as computed on as of the close of trading on the New York Stock Exchange on the Valuation Date in accordance with the requirements of the Act and pursuant to valuation procedures adopted by the Board of Value Trust. The shares of Global Trust common stock will be distributed to Value Trust's common stockholders, leaving the stockholders in the same investment posture immediately following the Transaction as before, subject only to changes in market price of the underlying assets subsequent to the Transaction.
13. Applicants assert that the Transaction has been proposed in order to benefit the stockholders of Value Trust as well as Global Trust. Although the advisory fee for Global Trust will be
For the Commission, by the Division of Investment Management, under 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 19(b) of the Act and rule 19b-1 under the Act.
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, Frank P. Bruno, Esq., Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019-6018.
Laura J. Riegel, Senior Counsel, at (202) 551-6873, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Exemptive Applications Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. RFT, RMT, and RVT (the “Current Funds”) are Maryland corporations registered under the Act as closed-end management investment companies.
2. R&A, a Delaware limited liability company, is registered under the Investment Advisers Act of 1940 (the “Advisers Act”) as an investment adviser. R&A provides investment advisory services to the Current Funds. Each Adviser to a Fund will be registered as an investment adviser under the Advisers Act.
3. Each Current Fund relied on the Prior Order to implement distribution policies with respect to their common stock and institute dividend payment policies with respect to their preferred stock. To maintain certainty for the distribution policies of the Current Funds and the distribution policies that other Funds may adopt in the future (each, a “Distribution Policy”), applicants request an order that would supersede the Prior Order. When the requested order is issued, it will supersede the Prior Order and applicants may rely solely on the order.
4. Applicants state that prior to a Fund's implementing a Distribution Policy in reliance on the order, the board of directors (the “Board”) of each Fund, including a majority of the directors who are not “interested
5. Applicants state that the purpose of a Distribution Policy, generally, would be to permit a Fund to distribute over the course of each year, through periodic distributions in relatively equal amounts (plus any required special distributions), an amount closely approximating the total taxable income of such Fund during such year and, if so determined by its Board, all or a portion of returns of capital paid by portfolio companies to such Fund during the year. Under the Distribution Policy of a Fund, such Fund would distribute to its respective common stockholders a fixed percentage of the market price of such Fund's common stock at a particular point in time or a fixed percentage of NAV at a particular time or a fixed amount per share of common stock, any of which may be adjusted from time to time. It is anticipated that under a Distribution Policy, the minimum annual distribution rate with respect to such Fund's common stock would be independent of the Fund's performance during any particular period but would be expected to correlate with the Fund's performance over time. Except for extraordinary distributions and potential increases or decreases in the final dividend periods in light of a Fund's performance for an entire calendar year and to enable the Fund to comply with the distribution requirements of Subchapter M of the Internal Revenue Code (“Code”) for the calendar year, each distribution on the Fund's common stock would be at the stated rate then in effect.
6. Applicants state that prior to the implementation of a Distribution Policy for any Fund in reliance on the order, the Board of such Fund will have adopted policies and procedures under rule 38a-1 under the Act that: (i) Are reasonably designed to ensure that all notices required to be sent to the Fund's stockholders pursuant to section 19(a) of the Act, rule 19a-1 thereunder and condition 4 below (each a “19(a) Notice”) include the disclosure required by rule 19a-1 under the Act and by condition 2(a) below, and that all other written communications by the Fund or its agents regarding distributions under the Distribution Policy include the disclosure required by condition 3(a) below; and (ii) require the Fund to keep records that demonstrate its compliance with all of the conditions of the order and that are necessary for such Fund to form the basis for, or demonstrate the calculation of, the amounts disclosed in its 19(a) Notices.
1. Section 19(b) of the Act generally makes it unlawful for any registered investment company to make long-term capital gains distributions more than once every twelve months. Rule 19b-1 limits the number of capital gains dividends, as defined in section 852(b)(3)(C) of the Code (“distributions”), that a fund may make with respect to any one taxable year to one, plus a supplemental distribution made pursuant to section 855 of the Code not exceeding 10% of the total amount distributed for the year, plus one additional capital gain dividend made in whole or in part to avoid the excise tax under section 4982 of the Code.
2. Section 6(c) of the Act provides, in relevant part, that the Commission may exempt any person or transaction from any provision of the Act to the extent that 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.
3. Applicants state that the one of the concerns leading to the enactment of section 19(b) and adoption of rule 19b-1 was that stockholders might be unable to distinguish between frequent distributions of capital gains and dividends from investment income. Applicants state, however, that rule 19a-1 effectively addresses this concern by requiring that distributions (or the confirmation of the reinvestment thereof) estimated to be sourced in part from capital gains or capital be accompanied by a separate statement showing the sources of the distribution (
4. Applicants further state that each Fund will make the additional disclosures required by the conditions set forth below, and each Fund will adopt compliance policies and procedures in accordance with rule 38a-1 under the Act to ensure that all required 19(a) Notices and disclosures are sent to stockholders. Applicants state that the information required by section 19(a), rule 19a-1, the Distribution Policy, the policies and procedures under rule 38a-1 noted above, and the conditions listed below will help ensure that each Fund's stockholders are provided sufficient information to understand that their periodic distributions are not tied to a Fund's net investment income (which for this purpose is the Fund's taxable income other than from capital gains) and realized capital gains to date, and may not represent yield or investment return. Accordingly, applicants assert that continuing to subject the Funds to section 19(b) and rule 19b-1 would afford stockholders no extra protection.
5. Applicants note that section 19(b) and rule 19b-1 also were intended to prevent certain improper sales practices, including, in particular, the practice of urging an investor to purchase shares of a fund on the basis of an upcoming capital gains dividend (“selling the dividend”), where the dividend would result in an immediate corresponding reduction in NAV and would be in effect a taxable return of the investor's capital. Applicants submit that the “selling the dividend” concern should not apply to closed-end investment
6. Applicants also note that the common stock of closed-end funds often trades in the marketplace at a discount to its NAV. Applicants believe that this discount may be reduced if the Funds are permitted to pay relatively frequent dividends on their common stock at a consistent rate, whether or not those dividends contain an element of long-term capital gains.
7. Applicants assert that the application of rule 19b-1 to a Distribution Policy actually could have an inappropriate influence on portfolio management decisions. Applicants state that, in the absence of an exemption from rule 19b-1, the adoption of a periodic distribution plan imposes pressure on management (i) not to realize any net long-term capital gains until the point in the year that the fund can pay all of its remaining distributions in accordance with rule 19b-1, and (ii) not to realize any long-term capital gains during any particular year in excess of the amount of the aggregate pay-out for the year (since as a practical matter excess gains must be distributed and accordingly would not be available to satisfy pay-out requirements in following years), notwithstanding that purely investment considerations might favor realization of long-term gains at different times or in different amounts. Applicants assert that by limiting the number of long-term capital gain dividends that a Fund may make with respect to any one year, rule 19b-1 may prevent the normal and efficient operation of a periodic distribution plan whenever that Fund's realized net long-term capital gains in any year exceed the total of the periodic distributions that may include such capital gains under the rule.
8. Applicants also assert that rule 19b-1 may force fixed regular periodic distributions under a periodic distribution plan to be funded with returns of capital
9. Applicants state that Revenue Ruling 89-81 under the Code requires that a fund that seeks to qualify as a regulated investment company under the Code and that has both common stock and preferred stock outstanding designate the types of income, e.g., investment income and capital gains, in the same proportion as the total distributions distributed to each class for the tax year. To satisfy the proportionate designation requirements of Revenue Ruling 89-81, whenever a fund has realized a long-term capital gain with respect to a given tax year, the fund must designate the required proportionate share of such capital gain to be included in common and preferred stock dividends. Applicants state that although rule 19b-1 allows a fund some flexibility with respect to the frequency of capital gains distributions, a fund might use all of the exceptions available under the rule for a tax year and still need to distribute additional capital gains allocated to the preferred stock to comply with Revenue Ruling 89-81.
10. Applicants assert that the potential abuses addressed by section 19(b) and rule 19b-1 do not arise with respect to preferred stock issued by a closed-end fund. Applicants assert that such distributions are either fixed or determined in periodic auctions by reference to short-term interest rates rather than by reference to performance of the issuer, and Revenue Ruling 89-81 determines the proportion of such distributions that are comprised of long-term capital gains.
11. Applicants also submit that the “selling the dividend” concern is not applicable to preferred stock, which entitles a holder to no more than a specified periodic dividend at a fixed rate or the rate determined by the market, and, like a debt security, is priced based upon its liquidation preference, dividend rate, credit quality, and frequency of payment. Applicants state that investors buy preferred stock for the purpose of receiving payments at the frequency bargained for, and any application of rule 19b-1 to preferred stock would be contrary to the expectation of investors.
12. Applicants request an order under section 6(c) of the Act granting an exemption from the provisions of section 19(b) of the Act and rule 19b-1 thereunder to permit each Fund to distribute periodic capital gain dividends (as defined in section 852(b)(3)(C) of the Code) as frequently as monthly in any one taxable year in respect of its common stock and as often as specified by, or determined in accordance with the terms of, any preferred stock issued by the Fund.
Applicants agree that, with respect to each Fund seeking to rely on the order, the order will be subject to the following conditions:
The Fund's chief compliance officer will: (a) report to the Fund's Board, no less frequently than once every three months or at the next regularly scheduled quarterly Board meeting, whether (i) the Fund and its Adviser have complied with the conditions of the order, and (ii) a material compliance matter (as defined in rule 38a-1(e)(2) under the Act) has occurred with respect to such conditions; and (b) review the adequacy of the policies and procedures adopted by the Board no less frequently than annually.
(a) Each 19(a) Notice disseminated to the holders of the Fund's common stock, in addition to the information required by section19(a) and rule 19a-1:
(i) Will provide, in a tabular or graphical format:
(1) the amount of the distribution, on a per share of common stock basis, together with the amounts of such distribution amount, on a per share of common stock basis and as a percentage of such distribution amount, from estimated: (A) net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source;
(2) the fiscal year-to-date cumulative amount of distributions, on a per share of common stock basis, together with the amounts of such cumulative amount, on a per share of common stock basis and as a percentage of such cumulative amount of distributions, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source;
(3) the average annual total return in relation to the change in NAV for the 5-year period (or, if the Fund's history of operations is less than five years, the time period commencing immediately following the Fund's first public offering) ending on the last day of the month ended immediately prior to the most recent distribution record date compared to the current fiscal period's annualized distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution record date; and
(4) the cumulative total return in relation to the change in NAV from the last completed fiscal year to the last day of the month prior to the most recent distribution record date compared to the fiscal year-to-date cumulative distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution record date. Such disclosure shall be made in a type size at least as large and as prominent as the estimate of the sources of the current distribution; and
(ii) Will include the following disclosure:
(1) “You should not draw any conclusions about the Fund's investment performance from the amount of this distribution or from the terms of the Fund's Distribution Policy”;
(2) “The Fund estimates that it has distributed more than its income and net realized capital gains; therefore, a portion of your distribution may be a return of capital. A return of capital may occur, for example, when some or all of the money that you invested in the Fund is paid back to you. A return of capital distribution does not necessarily reflect the Fund's investment performance and should not be confused with `yield' or `income' ”
(3) “The amounts and sources of distributions reported in this 19(a) Notice are only estimates and are not being provided for tax reporting purposes. The actual amounts and sources of the amounts for tax reporting purposes will depend upon the Fund's investment experience during the remainder of its fiscal year and may be subject to changes based on tax regulations. The Fund will send you a Form 1099-DIV for the calendar year that will tell you how to report these distributions for federal income tax purposes.”
(b) On the inside front cover of each report to stockholders under rule 30e-1 under the Act, the Fund will:
(i) describe the terms of the Distribution Policy (including the fixed amount or fixed percentage of the distributions and the frequency of the distributions);
(ii) include the disclosure required by condition 2(a)(ii)(1) above;
(iii) state, if applicable, that the Distribution Policy provides that the Board may amend or terminate the Distribution Policy at any time without prior notice to Fund stockholders; and
(iv) describe any reasonably foreseeable circumstances that might cause the Fund to terminate the Distribution Policy and any reasonably foreseeable consequences of such termination.
(c) Each report provided to stockholders under rule 30e-1 under the Act and each prospectus filed with the Commission on Form N-2 under the Act, will provide the Fund's total return in relation to changes in NAV in the financial highlights table and in any discussion about the Fund's total return.
(a) The Fund will include the information contained in the relevant 19(a) Notice, including the disclosure required by condition 2(a)(ii) above, in any written communication (other than a communication on Form 1099) about the Distribution Policy or distributions under the Distribution Policy by the Fund, or agents that the Fund has authorized to make such communication on the Fund's behalf, to any Fund stockholder, prospective stockholder or third-party information provider;
(b) The Fund will issue, contemporaneously with the issuance of any 19(a) Notice, a press release containing the information in the 19(a) Notice and will file with the Commission the information contained in such 19(a) Notice, including the disclosure required by condition 2(a)(ii) above, as an exhibit to its next filed Form N-CSR; and
(c) The Fund will post prominently a statement on its (or the Adviser's) Web site containing the information in each 19(a) Notice, including the disclosure required by condition 2(a)(ii) above, and will maintain such information on such Web site for at least 24 months.
If a broker, dealer, bank or other person (“financial intermediary”) holds common stock issued by the Fund in nominee name, or otherwise, on behalf of a beneficial owner, the Fund: (a) Will request that the financial intermediary, or its agent, forward the 19(a) Notice to all beneficial owners of the Fund's stock held through such financial intermediary; (b) will provide, in a timely manner, to the financial intermediary, or its agent, enough copies of the 19(a) Notice assembled in the form and at the place that the financial intermediary, or its agent, reasonably requests to facilitate the financial intermediary's sending of the 19(a) Notice to each beneficial owner of the Fund's stock; and (c) upon the request of any financial intermediary, or its agent, that receives copies of the 19(a) Notice, will pay the financial intermediary, or its agent, the reasonable expenses of sending the 19(a) Notice to such beneficial owners.
If:
(a) The Fund's common stock has traded on the stock exchange that they primarily trade on at the time in question at an average premium to NAV equal to or greater than 10%, as determined on the basis of the average of the discount or premium to NAV of the Fund's shares of common stock as of the close of each trading day over a 12-week rolling period (each such 12-week rolling period ending on the last trading day of each week); and
(b) The Fund's annualized distribution rate for such 12-week rolling period, expressed as a percentage of NAV as of the ending date of such 12-week rolling period, is greater than the Fund's average annual total return in relation to the change in NAV over the 2-year period ending on the last day of such 12-week rolling period; then:
(i) At the earlier of the next regularly scheduled meeting or within four months of the last day of such 12-week rolling period, the Board, including a majority of the Independent Directors:
(1) will request and evaluate, and the Fund's Adviser will furnish, such information as may be reasonably necessary to make an informed determination of whether the Distribution Policy should be continued or continued after amendment;
(2) will determine whether continuation, or continuation after amendment, of the Distribution Policy is consistent with the Fund's investment objective(s) and policies and is in the best interests of the Fund and its stockholders, after considering the information in condition 5(b)(i)(1) above; including, without limitation:
(A) whether the Distribution Policy is accomplishing its purpose(s);
(B) the reasonably foreseeable material effects of the Distribution Policy on the Fund's long-term total return in relation to the market price and NAV of the Fund's common stock; and
(C) the Fund's current distribution rate, as described in condition 5(b) above, compared with the Fund's average annual taxable income or total return over the 2-year period, as described in condition 5(b), or such longer period as the Board deems appropriate; and
(3) based upon that determination, will approve or disapprove the continuation, or continuation after amendment, of the Distribution Policy; and
(ii) The Board will record the information considered by it, including its consideration of the factors listed in condition 5(b)(i)(2) above, and the basis for its approval or disapproval of the continuation, or continuation after amendment, of the Distribution Policy in its meeting minutes, which must be made and preserved for a period of not less than six years from the date of such meeting, the first two years in an easily accessible place.
The Fund will not make a public offering of the Fund's common stock other than:
(a) a rights offering below NAV to holders of the Fund's common stock;
(b) an offering in connection with a dividend reinvestment plan, merger, consolidation, acquisition, spin-off or reorganization of the Fund; or
(c) an offering other than an offering described in conditions 6(a) and 6(b) above, provided that, with respect to such other offering:
(i) the Fund's annualized distribution rate for the six months ending on the last day of the month ended immediately prior to the most recent distribution record date,
(ii) the transmittal letter accompanying any registration statement filed with the Commission in connection with such offering discloses that the Fund has received an order under section 19(b) to permit it to make periodic distributions of long-term capital gains with respect to its shares of common stock as frequently as twelve times each year, and as frequently as distributions are specified by or determined in accordance with the terms of any outstanding shares of preferred stock as such Fund may issue.
The requested order will expire on the effective date of any amendment to rule 19b-1 that provides relief permitting certain closed-end investment companies to make periodic distributions of long-term capital gains with respect to their outstanding common stock as frequently as twelve times each year.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission.
Notice of Meeting.
The Securities and Exchange Commission Advisory Committee on Small and Emerging Companies is providing notice that it will hold a public meeting on Wednesday, May 1, 2013, in Multi-Purpose Room LL-006 at the Commission's headquarters, 100 F Street NE., Washington, DC. The meeting will begin at 9:30 a.m. (EDT) and will be open to the public. The meeting will be webcast on the Commission's Web site at
The public meeting will be held Wednesday, May 1, 2013. Written statements should be received on or before April 26, 2013.
The meeting will be held at the Commission's headquarters, 100 F Street NE., Washington, DC. Written statements may be submitted by any of the following methods:
• Use the Commission's Internet submission form (
• Send an email message to
• Send paper statements in triplicate to Elizabeth M. Murphy, Federal Advisory Committee Management Officer, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Johanna V. Losert, Special Counsel, at (202) 551-3460, Office of Small Business Policy, Division of Corporation Finance, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-3628.
In accordance with Section 10(a) of the Federal Advisory Committee Act, 5 U.S.C.-App. 1, and the regulations thereunder, Lona Nallengara, Designated Federal Officer of the Committee, has ordered publication of this notice.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission Advisory Committee on Small and Emerging Companies will hold a public meeting on Wednesday, May 1, 2013, in Multi-Purpose Room LL-006 at the Commission's headquarters, 100 F Street NE., Washington, DC. The meeting will begin at 9:30 a.m. (EDT) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will open at 9:00 a.m. Visitors will be subject to security checks. The meeting will be Webcast on the Commission's Web site at www.sec.gov.
On April 5, 2013 the Commission published notice of the Committee meeting (Release No. 33-9399), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting includes consideration of recommendations and other matters relating to rules and regulations affecting small and emerging companies under the federal securities laws. For further information, please contact the Office of the Secretary at (202) 551-5400.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission Investor Advisory Committee will hold a meeting on Thursday, April 11, 2013, in Multi-Purpose Room LL-006 at the Commission's headquarters, 100 F Street NE., Washington, DC. The meeting will begin at 10:00 a.m. (EDT) and will be open to the public, except for subcommittee meetings. Seating will be on a first-come, first-served basis. Doors will open at 9:30 a.m. Visitors will be subject to security checks. The meeting will be Webcast on the Commission's Web site at
Commissioner Aguilar, as duty officer, determined that no earlier notice thereof was possible.
On March 29, 2013, the Commission issued notice of the Committee meeting (Release No. 33-9397), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a quorum of the Commission may attend the meeting.
The agenda for the meeting includes: (i) approval of minutes; (ii) consideration of a recommendation of the Investor as Purchaser subcommittee regarding target date funds; (iii) subcommittee meetings; and (iv) subcommittee updates. For further information, please contact the Office of the Secretary at (202) 551-5400.
On December 18, 2012, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-NSCC-2012-810 (“Advance Notice”) pursuant to Section 806(e) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”),
NSCC filed the Advance Notice to permit it to make rule changes to its Rules & Procedures (“Rules”) designed to eliminate the offset of NSCC obligations with institutional delivery (“ID”) transactions that settle at The Depository Trust Company (“DTC”) for the purpose of calculating the NSCC clearing fund (“Clearing Fund”) under Procedure XV of its Rules, as discussed below.
NSCC maintains a Clearing Fund to have on deposit assets sufficient to satisfy losses that may otherwise be incurred by NSCC as the result of the default of an NSCC member (“Member”) and the resulting closeout of that Member's unsettled positions under NSCC's trade guaranty. Each Member is required to contribute to the Clearing Fund pursuant to a formula calculated daily. The Clearing Fund formula accounts for a variety of risk factors through the application of a number of components, including Value-at-Risk
NSCC currently calculates the VaR and MMDOM components of a Member's Clearing Fund required deposit after allowing for a Member's net unsettled NSCC positions in a particular CUSIP to be offset by any pending ID transactions settling at DTC in the same CUSIP, which have been confirmed and/or affirmed through an institutional delivery system acceptable to NSCC (“ID Offset”).
Generally, when NSCC ceases to act for a Member, it is obligated, for those transactions that it has guaranteed, to pay for deliveries made by non-defaulting Members that are due to the failed Member on the day they are due. If NSCC is unable to complete the ID transactions as contemplated by the current Clearing Fund calculation, then NSCC may need to liquidate a portfolio that could be substantially different than the portfolio for which NSCC collected its Clearing Fund, leaving NSCC potentially under-collateralized and exposed to market risk.
A defaulting Member's pending ID transactions may not be completed for a number of reasons. Completion of an ID transaction by its institutional counterparty is voluntary because that counterparty is not a Member, which means it is not bound by NSCC's Rules and is not party to any legally binding contract with NSCC that requires it or its custodian to complete the transaction. Moreover, based on news that a Member may be in distress or insolvent, the institutional counterparty or its investment adviser may take immediate market action with respect to the ID transaction, in order to reduce its market risk, which effectively eliminates the option for NSCC to complete the transactions. Finally, ID transactions settle trade-by-trade between the executing broker and the custodian; the netted ID positions used to offset the NSCC position could be comprised of thousands of individual trades with hundreds of different counterparties. In the event of a Member default, it could be time consuming for NSCC to contact the counterparties individually to get their agreement to complete the ID transactions. Even if NSCC were to get all of the counterparties to agree to complete the ID transactions, this could delay the prompt closeout of the defaulter's open positions and possibly expose NSCC to additional market risk in excess of the Clearing Fund.
Due to the risk that, in the event it ceases to act for a Member with pending ID transactions, NSCC may be unable to complete the pending ID transactions in the timeframe contemplated by its current Clearing Fund calculations and, as a result, may have insufficient margin in its Clearing Fund, as described above, NSCC will eliminate the ID Offset calculation from the VaR and MMDOM components of a Member's Clearing Fund requirement deposit.
In order to mitigate the impact of this rule change on its Members, NSCC will implement the changes set forth in the Advance Notice over an 18-month period. On a date no earlier than 10 days following notice to Members by Important Notice (“Initial Implementation Date”), NSCC will eliminate ID Offset from ID transactions that have only been confirmed, but have not yet been affirmed. Beginning on a date approximately 12 months from the Initial Implementation Date, and no earlier than 10 days following notice to Members by Important Notice, NSCC will eliminate from ID Offset all affirmed ID transactions that have reached settlement date at the time the Clearing Fund calculations are run. Three months later, or approximately 15 months following the Initial Implementation Date, and on a date no earlier than 10 days following notice to Members by Important Notice, NSCC will eliminate from ID Offset all affirmed ID transactions that have reached either settlement date or the day prior to settlement date. Finally, on a date approximately 18 months following the Initial Implementation Date, and no earlier than 10 days following notice to Members by Important Notice, NSCC will eliminate ID Offset entirely for all ID transactions. Members will be advised of each proposed implementation date through issuance of NSCC Important Notices, which are publicly available at
Although Title VIII does not specify a standard of review for an Advance Notice, the stated purpose of Title VIII is instructive.
Section 805(a)(2) of the Clearing Supervision Act
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act on October 22, 2012 (“Clearing Agency Standards”).
As a CCP, NSCC occupies an important role in the securities settlement system by interposing itself between counterparties to financial transactions, thereby reducing certain risks faced by Members and contributing to global financial stability. In this role, however, NSCC is necessarily subject to certain risks in the event of the default of a Member.
NSCC's proposal to eliminate ID Offsets, as described above, is designed to help mitigate the risk that NSCC will be under-collateralized if it ceases to act for a defaulting Member and is unable to complete the offsetting ID transactions in the time currently contemplated by its Clearing Fund calculation. Consistent with Section 805(a), the Commission believes this proposal promotes robust risk management, as well as the safety and soundness of NSCC's operations, while reducing systemic risks and supporting the stability of the broader financial system, by improving NSCC's risk management systems in preparation for a possible Member default via a more accurate representation of risk in its Clearing Fund calculation. As discussed above, NSCC's calculation of its Clearing Fund margin will be more accurate in that it will not include an assumption of trade closeouts following a Member insolvency with respect to trades for which there is a corresponding ID transaction.
Additionally, Commission Rule 17Ad-22(b)(1) regarding measurement and management of credit exposure,
Furthermore, Commission Rules 17Ad-22(d)(4) regarding identification and mitigation of operational risk,
In its assessment of the Advance Notice, the Commission assessed whether the issues raised by the Lek Letters relate to the level or nature of risks presented by NSCC's proposal, which is designed to mitigate risks to NSCC, as discussed above. After evaluating NSCC's responses to the Lek Letters, the Commission believes that the issues raised in the Lek Letters relate to the potential competitive effects of NSCC's proposal, not the level or nature of risks presented by it.
Pursuant to Section 19(b)(1)
The Exchange proposes to establish certain fees for the NYSE Arca Trades and NYSE Arca Realtime Reference Prices (“NYSE Arca RRP”) market data products. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to establish certain fees for the NYSE Arca Trades and NYSE Arca RRP market data products.
In 2009, the Securities and Exchange Commission (“SEC” or the “Commission”) approved the NYSE Arca Trades data feed and certain fees for it.
The Exchange currently charges NYSE Arca Trades data feed recipients an access fee of $750 per month, and a subscriber fee for professional subscribers of $10 per month per device, which may be counted, at the election of the vendor based on the number of “Subscriber Entitlements”
The Exchange also offers NYSE Arca RRP.
The Exchange currently charges a flat fee of $30,000 per month with no user-based fees for NYSE Arca RRP. For that fee, the vendor may provide NYSE Arca RRP to an unlimited number of the vendor's subscribers and customers without having to differentiate between professional subscribers and nonprofessional subscribers, without having to account for the extent of access to the data, and without having to report the number of users. As an alternative to the NYSE Arca RRP flat monthly fee, the Exchange offers an alternative fee of $.004 for each real-time reference price that a vendor disseminates to its customers (“per query fee”), which is capped at $30,000 per month, the same amount as the flat fee. In order to take advantage of the per-query fee, a vendor must document that it has the ability to measure accurately the number of queries and must have the ability to report aggregate query quantities on a monthly basis. The per-query fee is imposed on vendors, not end-users. There are currently no fees for NYSE Arca RRP that are specifically designed for television or mobile device distribution.
NYSE Arca RRP was created to allow distribution of a last sale data product for reference purposes on Web sites at a low cost that would facilitate distribution to millions of retail investors and relieve vendors of administrative burdens.
The Exchange recently created a new version of NYSE Arca Trades, NYSE Arca Trades Digital Media, which will allow market data vendors, television broadcasters, Web site and mobile device service providers, and others to distribute the product to their customers for viewing via television, Web site, and mobile devices.
The Exchange also will offer NYSE Arca RRP Digital Media so that NYSE Arca RRP will be available for distribution in the same manner as NYSE Arca Trades Digital Media, via television, Web site, and mobile devices. The data elements of NYSE Arca RRP (last sale price, time, and stock summary message) will remain unchanged from today's NYSE Arca RRP product offering.
The Exchange has established these Digital Media products in recognition of the demand for a more seamless and easier-to-administer data distribution model that takes into account the expanded variety of media and communication devices that investors utilize today. For example, a television broadcaster could display the NYSE Arca Trades data during market-related television programming and on its Web site and allow its viewers to view the data via their mobile devices, creating a more seamless distribution model that will allow investors more choice in how they receive and view market data.
The NYSE Arca Trades Digital Media Enterprise Fee will be $20,000 per month, and the NYSE Arca RRP Digital Media Enterprise Fee will be $15,000 per month. The Exchange notes that the NYSE Arca RRP Digital Media Enterprise Fee is lower than NYSE Arca Trades Digital Media Enterprise Fee because it does not include trade size data. Vendors that pay these fees will not be required to pay an access fee, but they will be required to pay the redistribution fees as described below. As with the current NYSE Arca RRP product and the Broadcast Fee, a vendor paying the Digital Media Enterprise Fee may deliver the NYSE Arca Trades and NYSE Arca RRP data to an unlimited number of television, Web site, and mobile device viewers without having to differentiate between professional subscribers and nonprofessional subscribers, without having to account for the extent of access to the data, and without having to report the number of users.
For NYSE Arca Trades, the television-only $20,000 Broadcast Fee option will no longer be available. For NYSE Arca RRP, web-only distribution for $30,000 per month will no longer be available. The Exchange does not believe that any customers would elect these options in light of the broader distribution offered with the new Digital Media Enterprise Fees and the substantially lower price for NYSE Arca RRP Digital Media.
The Exchange will continue to offer the $.004 per query fee for NYSE Arca RRP to any vendor that so chooses, but the Exchange proposes to reduce the cap to $15,000, the same amount as the NYSE Arca RRP Digital Media Enterprise Fee. Vendors and subscribers receiving NYSE Arca Trades via traditional distribution methods, e.g. a Bloomberg terminal or a broker-dealer customer Web site that permits order entry, will not be eligible for Digital Media Enterprise Fees and will continue to pay NYSE Arca Trades basic fees.
The Exchange also proposes to charge a redistribution fee of $750 per month for NYSE Arca Trades and $1,500 per month for NYSE Arca RRP.
The Digital Media Enterprise Fees will be operative on April 1, 2013 and the redistribution fees will be operative on May 1, 2013.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed NYSE Arca Trades Digital Media Enterprise Fee of $20,000 per month and NYSE Arca RRP Digital Media Enterprise Fee of $15,000 per month are reasonable because they will offer a means for vendors to more widely distribute NYSE Arca Trades and NYSE Arca RRP data to investors for informational purposes at the same cost (in the case of NYSE Arca Trades) or a lower cost (in the case of NYSE Arca RRP) than is available today. Currently, NYSE Arca Trades can be distributed via television for a $20,000 monthly fee, but that fee does not include Web site or mobile device distribution. NYSE Arca RRP can be distributed over Web sites for a $30,000 monthly fee, but that fee does not include television or mobile device distribution. The Exchange believes that the proposed Digital Media Enterprise Fees are reasonable because in certain instances they are less than the fees charged by another exchange for a similar product.
The proposed Digital Media Enterprise Fees also are equitable and not unfairly discriminatory because they will be applied uniformly to market data vendors, television broadcasters, Web site and mobile service providers, or any other person that distributes the data on
In establishing the Digital Media Enterprise Fees, the Exchange recognizes that there is demand for a more seamless and easier-to-administer data distribution model that takes into account the expanded variety of media and communication devices that investors utilize today. As is the case with the current NYSE Arca RRP product and the Broadcast Fee, the Exchange believes that the Digital Media Enterprise Fee will be easy to administer because vendors that purchase it will not have to differentiate between professional subscribers and nonprofessional subscribers, account for the extent of access to the data, or report the number of users; this is a significant reduction in vendors' administrative burdens and is a significant value to vendors. For example, a television broadcaster could display the NYSE Arca Trades Digital Media data during market-related television programming and on its Web site and allow its viewers to view the data via their mobile devices, creating a more seamless distribution model that will allow investors more choice in how they receive and view market data, all without having to account for and/or measure who accesses the data and how much they do so. By easing administration, broadening distribution channels, and, in the case of NYSE Arca RRP, reducing prices, the Exchange believes that more vendors will choose to offer NYSE Arca Trades and NYSE Arca RRP, thereby expanding the distribution of market data for the benefit of investors.
The proposed redistribution fees also are reasonable because they are comparable to other redistribution fees charged by the Exchange as well as other exchanges.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system ‘evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed’ and that the SEC wield its regulatory power ‘in those situations where competition may not be sufficient,’ such as in the creation of a ‘consolidated transactional reporting system.’
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards.
As the
For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory.
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. An exchange's ability to price its proprietary data feed products is constrained by (1) actual competition for the sale of proprietary market data products, (2) the existence of inexpensive real-time consolidated data and free delayed consolidated data, and (3) the inherent contestability of the market for proprietary last sale data and the joint product nature of exchange platforms.
Competitive markets for listings, order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. The U.S. Department of Justice also has acknowledged the aggressive
It is common for broker-dealers to further exploit this recognized competitive constraint by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. As a 2010 Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume … dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
In addition, in the case of products that are distributed through market data vendors, the market data vendors themselves provide additional price discipline for proprietary data products because they control the primary means of access to certain end users. These vendors impose price discipline based upon their business models. For example, vendors that assess a surcharge on data they sell are able to refuse to offer proprietary products that their end users do not or will not purchase in sufficient numbers. Internet portals, such as Google, impose price discipline by providing only data that they believe will enable them to attract “eyeballs” that contribute to their advertising revenue. Similarly, television broadcasters and Web site and mobile device service providers will not elect to make available NYSE Arca Trades or NYSE Arca RRP unless they believe it will help them attract or maintain viewers/customers for their television, Web site, or mobile device offerings. All of these operate as constraints on pricing proprietary data products.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's broker-dealer customers view the costs of transaction executions and market data as a unified cost of doing business with the exchange.
Other market participants have noted that the liquidity provided by the order book, trade execution, core market data, and non-core market data are joint products of a joint platform and have common costs.
Analyzing the cost of market data product production and distribution in isolation from the cost of all of the inputs supporting the creation of market data and market data products will inevitably underestimate the cost of the data and data products. Thus, because it is impossible to obtain the data inputs to create market data products without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of both of obtaining the market data itself and creating and distributing market data products. It would be equally misleading, however, to attribute all of an exchange's costs to the market data portion of an exchange's joint products. Rather, all of an exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including 12 equities self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Competition among trading platforms can be expected to constrain the aggregate return that each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to
The fact that proprietary data from ATSs, BDs, and vendors can bypass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the amount of data available via proprietary products is greater in size than the actual number of orders and transaction reports that exist in the marketplace. Because market data users can thus find suitable substitutes for most proprietary market data products, a market that overprices its market data products stands a high risk that users may substitute another source of market data information for its own.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20-minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data by highlighting the optional nature of proprietary products.
Those competitive pressure imposed by available alternatives are evident in the Exchange's proposed pricing. The Digital Media Enterprise Fees, which will permit broader distribution at the same price (in the case of NYSE Arca Trades) or a lower price (in the case of NYSE Arca RRP) than is available today, also are lower than the maximum fee for a similar product offered by another exchange
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid and inexpensive. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. Today, BATS and Direct Edge provide certain market data at no charge on their Web sites in order to attract more order flow, and use revenue rebates from resulting additional executions to maintain low execution charges for their users.
Further, data products are valuable to certain end users only insofar as they provide information that end users expect will assist them or their customers in tracking prices and market trends. The Exchange believes that the Digital Media Enterprise Fees, which will permit wider distribution of last sale information at either the same or a lower price, may encourage more vendors to choose to offer NYSE Arca Trades or NYSE Arca RRP over multiple communication devices and thereby benefit public investors and other market participants by providing them with more convenient ways to track prices and market trends during the course of the trading day. The Exchange further believes that only vendors that expect to derive a reasonable benefit from redistributing NYSE Arca Trades and NYSE Arca RRP data will choose to become redistributors and pay the attendant monthly fees.
In establishing the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to the Exchange's products, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if its cost to purchase is not justified by the returns any particular vendor or subscriber would achieve through the purchase.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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)
The Exchange proposes to phase out the functionality associated with liquidity replenishment points (“LRPs”) to coincide with the implementation of the Limit Up—Limit Down Plan (the “Plan”) by adding language to NYSE MKT Rule 1000—Equities that, beginning on April 8, 2013, LRPs will no longer be in effect for Tier 1 NMS Stocks, and on the earlier of August 1, 2013 or such date as Phase II of the Limit Up—Limit Down Plan is implemented, LRPs will no longer be in effect for all NMS Stocks. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to phase out the functionality associated with LRPs to coincide with the implementation of the Plan by amending NYSE MKT Rule 1000—Equities to provide that, beginning on April 8, 2013, LRPs will no longer be in effect for Tier 1 NMS Stocks, and beginning on the earlier of, August 1, 2013 or such date as Phase II of the Limit Up—Limit Down Plan is implemented, LRPs will no longer be in effect for all NMS stocks.
The LRP mechanism was approved in 2006 to address market volatility on the New York Stock Exchange, and approved for use on the Exchange in 2008.
Nevertheless, the Exchange proposes to phase out LRPs as a result of the scheduled implementation of the Plan, which was adopted in response to the market disruption of May 6, 2010. Specifically, in addressing comments focused on the relationship between the Plan and exchange-specific volatility mechanisms—such as the NYSE MKT's LRPs—the Commission stated that it was “aware of the potential for unnecessary complexity that could result if the Plan were adopted, and exchange-specific volatility mechanisms were retained” and “[t]o this end, the Commission
Although the Exchange understands the need for industry-wide responses to address extraordinary volatility events such as the market disruption that occurred on May 6, 2010, the Exchange does not agree that such initiatives should come at the expense of existing investor protection mechanisms, particularly without any impact analysis, because such initiatives can have unintended consequences to the detriment of investors and the marketplace as a whole. In light of the fact that only
Indeed, there is nothing particularly complex about how LRPs would have operated alongside the Plan. As the LRP bands are generally narrower than the Limit Up—Limit Down bands, LRPs might have continued to serve their current purpose of creating a temporary auction market buffer to rapid and extraordinary price movements occurring in the electronic market. They would have been triggered within Limit Up—Limit Down bands, would have applied only to the Exchange, and trading on away markets could have continued to occur because the NYSE MKT quotation is not protected during an LRP. Moreover, the Exchange believes that any incremental complexity the LRPs would have added to the operation of the Plan would have been outweighed substantially by their proven effectiveness in minimizing rapid price movements that are driven by erroneous orders.
Furthermore, the Exchange wishes to respectfully, but strenuously, object not only to the substance of the Commission's decision to effectively insist that the Exchange abandon LRPs, but also the policy implications of the decision. From a policy perspective, the Commission's required removal of LRPs would seem to embody an effort to force markets “into a single mold”
Nevertheless, the Exchange proposes to phase out
As such, the Exchange proposes to add rule language to NYSE MKT Rule 1000—Equities that, beginning on April 8, 2013, LRPs will no longer be in effect for Tier 1 NMS Stocks, and on the earlier of August 1, 2013 or such date as Phase II of the Limit Up—Limit Down Plan is implemented, LRPs will no longer be in effect for all NMS Stocks. In order to accommodate the phasing out process, prior to the implementation of Phase II of the Plan, the Exchange will file a separate rule proposal deleting the references to LRP functionality in NYSE MKT Rules 60—Equities, 79A—Equities, 104—Equities, 128—Equities, 501—Equities, 508—Equities, 512—Equities, and 1000—Equities. The Exchange will apprise members and member organizations of the dates of the discontinuation of the LRP functionality via an Information Memorandum. The Exchange plans to revisit the merits of discontinuing the LRP functionality after the initial Plan pilot period has ended and may file to reincorporate the LRP functionality at that time as well.
The Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose a burden on competition because the Exchange is discontinuing the LRP functionality to fulfill the Commission's expectations. In this respect, the Exchange notes that because Commission expects all exchanges to discontinue their respective volatility mechanisms, there should be no burden on competition because all exchanges as well as their members and issuers would be similarly situated.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Schedule of Fees and Charges for Exchange Services (“Fee Schedule”) to (i) amend Step Up Tier 1 and Step Up Tier 2 (the “Step Up Tiers”) to increase the volume threshold requirements needed to be eligible for each respective tier; (ii) amend the Cross-Asset Tier to replace the numeric benchmark needed to be eligible for the tier with a benchmark based on a percentage of options contract volume; (iii) add a new Retail Order Cross-Asset Tier; (iv) raise the fee charged for transactions in securities with a per share price below $1.00; and (v) amend the options-related volume requirements in certain tiers in the Fee Schedule to exclude volume in mini options from contributing to the volume requirements of the affected tiers. The Exchange proposes to implement the changes on April 1, 2013. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Fee Schedule to (i) amend the Step Up Tiers to increase the volume threshold requirements needed to be eligible for each respective tier; (ii) amend the Cross-Asset Tier to replace the numeric benchmark needed to be eligible for the tier with a benchmark based on a percentage of options contract volume; (iii) add a new Retail Order Cross-Asset Tier; (iv) raise the fee charged for transactions in securities with a per share price below $1.00; and (v) amend the options-related volume requirements in certain tiers in the Fee Schedule to exclude volume in mini options from contributing to the volume requirements of the affected tiers. The Exchange proposes to implement the changes on April 1, 2013.
Currently, in order to qualify for Step Up Tier 1, an ETP Holder on a daily basis, measured monthly, must directly execute providing volume on NYSE Arca in an amount that is an increase of no less than 0.15% of U.S. consolidated average daily volume (“US CADV”) in Tape A, Tape B, and Tape C securities for that month over the ETP Holder's average daily providing volume in June 2011 (the “Baseline Month”), subject to a minimum increase of 15 million average daily providing shares.
Similarly, in order to qualify for Step Up Tier 2, an ETP Holder on a daily basis, measured monthly, must directly execute providing volume on NYSE Arca in an amount that is an increase of no less than 0.10% of US CADV for that month over the ETP Holder's average daily providing volume in the Baseline Month, subject to a minimum increase of 10 million average daily providing shares. The Exchange proposes to increase the eligibility requirement for Step Up Tier 2 to no less than 0.12% of US CADV for the month over the ETP Holder's average daily providing volume in the Baseline Month, subject to a minimum increase of 12 million average daily providing shares.
By way of example, if an ETP Holder executed an average daily providing volume of 5 million shares in the Baseline Month, then to qualify for Step Up Tier 2 in a month where US CADV is 11 billion shares, that ETP Holder would need to increase its average daily providing volume by at least 13.2 million shares, or 0.12% of that month's US CADV, for a total average daily providing volume of at least 18.2 million shares. If that same ETP Holder in that same month increased its average daily providing volume by at least 22 million shares, or 0.20% of that month's US CADV, for a total average daily providing volume average of at least 27 million shares, then that ETP Holder would qualify for Step Up Tier 1.
As previously explained,
Currently, under the Cross-Asset Tier, ETP Holders and Market Makers that (1) provide liquidity of 0.45% or more of the US CADV per month in Tape A, Tape B, and Tape C securities combined, and (2) are affiliated with an NYSE Arca Options Trading Permit (“OTP”) Holder or OTP Firm that provides an average daily volume (“ADV”) of electronic posted Customer executions in Penny Pilot issues on NYSE Arca Options of at least 90,000 contracts receive a per share credit of $0.0030 for orders in Tape A, Tape B
The Exchange also is proposing a new Retail Cross-Asset Tier. Under the Retail Cross-Asset Tier, firms that execute at least 0.30% of US CADV in retail orders and are affiliated with an NYSE Arca OTP Holder or OTP Firm that provides an ADV of electronic posted Customer executions in customer penny pilot options of at least 0.50% of total Customer equity and ETF option (as discussed below, excluding mini options) ADV would qualify for a $.0034 rebate for retail orders that provide liquidity. The Retail Cross-Asset Tier would provide firms with a second way to qualify for the $0.0034 rebate (in addition to Investor Tier 1) using equity retail and options customer post. The Exchange notes that the $0.0034 rebate is $.0001 higher than the current Retail Order Tier in light of the tier including an additional options requirement and a higher equity retail requirement.
Currently, a fee of 0.2% of the total dollar value of the transaction is charged for transactions with a per share price below $1.00 that take liquidity from the Book. The Exchange proposes raising the fee from 0.2% of the total dollar value of the transaction to 0.3% of the total dollar value of the transaction. The Exchange is proposing these changes as they are consistent with similar fee amounts charged by other exchanges.
The Exchange proposes to amend the Fee Schedule to specifically exclude volume in mini options from contributing to the volume requirements for tiers with an options volume-related component. Specifically, the proposed amendment would exclude volume in mini options from contributing to the volume requirements in Tier 1 and the Cross-Asset Tier. Mini option volume similarly would be excluded from the proposed Retail Order Cross-Asset Tier discussed above.
The proposed changes are not otherwise intended to address any other problem, and the Exchange is not aware of any significant problem that the affected market participants would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed amendments to the Step Up Tiers that raise the volume requirements needed to be eligible for each respective tier are reasonable because the proposed changes are designed to further incent ETP Holders to increase the orders sent directly to NYSE Arca and therefore provide liquidity that supports the quality of price discovery and promotes market transparency. The Exchange believes that this is especially the case given that the credits for Tape A and Tape C securities under Step Up Tier 1 ($0.00295) and Step Up Tier 2 ($0.0029) are substantially higher than the credits for Tape A and Tape C securities under Basic Rates ($0.0021) and Tier 3 ($0.0025). The Exchange further believes that the proposed amendments to the Step Up Tiers are equitable and not unfairly discriminatory because they will benefit ETP Holders whose increased order flow provides added levels of liquidity (thereby contributing to the depth and market quality of the Book), but who may still not be eligible for Tier 1, 2 or 3, or other tiers. Moreover, the Step Up Tiers are available for all ETP Holders to satisfy.
The Exchange believes that the proposal to amend the Cross-Asset Tier to replace the current fixed benchmark needed to be eligible for the tier with a variable benchmark based on a percentage of volume is reasonable because it will make the eligibility requirement consistent with the Exchange's other variable eligibility requirements that also are based on percentage of volume. In addition, the Exchange believes that expanding the basis for the Cross-Asset Tier to include all Customer equity and ETF options ADV will better reflect the correlation between options trading and the underlying securities, which trade at the Exchange, including ETFs. In this respect, the Exchange notes that Equity and ETF Customer volume is a widely followed benchmark of industry volume and is indicative of industry market
Moreover, the Cross-Asset Tier is available for all ETP Holders to satisfy, except for those ETP Holders that are not affiliated with an NYSE Arca Options OTP Holder or OTP Firm. However, the Exchange notes that ETP Holders that are not affiliated with an NYSE Arca Options OTP Holder or OTP Firm are still eligible for the $0.0030 Cross-Asset Tier rate when they qualify for one of the other Tiers described in the Fee Schedule (e.g., Tier 1).
The Exchange believes that the proposal to add the new Retail Order Cross-Asset Tier is reasonable because it would provide firms with a way in which to qualify for $0.0034 rebate through equity retail and options customer orders. The Exchange further believes that the proposed Retail Order Cross-Asset Tier is equitable and not unfairly discriminatory because a firm that does not submit options orders can still be eligible for the $0.0034 rebate available from Investor Tier 1.
The Exchange believes that the proposal to raise the fee charged for transactions with a per share price below $1.00 that take liquidity from the Book from 0.2% to 0.3% of the total dollar value of the transaction is reasonable because the proposed new rate is consistent with similar fee amounts charged by other exchanges.
Finally, the Exchange believes that the proposal to exclude volume in mini options from contributing to the option volume requirements for Tier 1, the Cross-Asset Tier and the proposed Retail Order Cross-Asset Tier is reasonable because the options volume requirement currently in place in the fee schedule were established prior to the existence of mini options, a new product on NYSE Arca Options. Because mini options are such a new product, the Exchange believes it is reasonable to exclude mini option volume in this way. The Exchange further believes that the proposal to exclude volume in mini options from the tiers mentioned above is equitable and not unfairly discriminatory because all market participants that are eligible for the affected tiers will be similarly situated.
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. In particular, the proposed amendments to the Step Up Tiers that raise the volume requirement needed to be eligible for each respective tier are designed to incent ETP Holders and Market Makers to increase the volume of orders sent directly to NYSE Arca and therefore provide liquidity that supports the quality of price discovery and promotes market transparency.
The proposal to amend the Cross-Asset Tier to replace the numeric benchmark needed to be eligible for the tier with a benchmark based on a percentage of volume will not place an undue burden on competition because it will apply uniformly to all ETP Holders and Market Makers. The proposal to add the new Retail Order Cross-Asset Tier will not place an undue burden on competition because all firms can be eligible for the $0.0034 credit, as those firms that do not submit options orders can still qualify to receive the $0.0034 rebate by meeting the requirements of Investor Tier 1.
The proposal to raise the fee charged for transactions with a per share price below $1.00 from 0.2% to 0.3% of the total value of orders that take liquidity from the Book is consistent with similar fees charged by other exchanges. Finally, the proposal to exclude volume in mini options from contributing to the option volume requirements for Tier 1, the Cross-Asset Tier and the proposed Retail Order Cross-Asset Tier will not place an undue burden on competition because all market participants will be similarly situated in their inability to the use volume in mini options to satisfy the options volume requirements of the affected tiers.
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 credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
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 is filing with the Commission a proposal to amend the functionality of the Market Maker Peg Order to more closely resemble analogous order types offered by NASDAQ Stock Market LLC (“Nasdaq”) and EDGX Exchange, Inc. (“EDGX”)
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to amend BATS Rule 11.9(c)(16). Specifically, the Exchange proposes to: (1) Remove the option to allow Market Maker Peg Orders to be priced and executed during the Pre-Opening Session
The Exchange is proposing to amend BATS Rule 11.9(c)(16) to eliminate the option for Market Maker Peg Orders to be priced and executed outside of Regular Trading Hours and to cancel all Market Maker Peg Orders that are on the BATS Book at the end of Regular Trading Hours. As currently written, a Market Maker may enter a Market Maker Peg Order at any time during the Pre-Opening Session
Specifically, the Exchange is proposing rule changes to eliminate the ability for a Market Maker to designate that an order be priced and executable immediately upon entry during the Pre-Opening Session, to state that all Market Maker Peg Orders that are on the BATS Book expire at the end of Regular Trading Hours, and to reject all Market Maker Peg Orders entered during the After Hours Trading Session. The Exchange is proposing these changes in order to make its Market Maker Peg Order functionality more closely resemble that of Market Maker Peg Orders at Nasdaq and EDGX. Because the Market Maker Peg Order is designed to help Market Makers meet their quoting obligation on the Exchange and the Exchange's quoting obligations do not include any obligations outside of Regular Trading Hours, the Exchange does not believe that allowing Market Maker Peg Orders to be priced and executed outside of Regular Trading Hours provides Market Makers with any benefit that would warrant the additional complexity that the
The Exchange is proposing to amend BATS Rule 11.9(c)(16) to eliminate the functionality that would allow a Market Maker to designate Market Maker Peg Orders to be cancelled where there is no NBBO and the order would otherwise be priced to the last reported sale from the single plan processor. Currently, a Market Maker may optionally designate that a Market Maker Peg Order be cancelled where it would be priced to the last reported sale from the single plan processor.
The Exchange is proposing to eliminate this functionality in order to make its Market Maker Peg Order functionality more closely resemble that of Market Maker Peg Orders at Nasdaq and EDGX. Additionally, the Exchange believes that removing the ability to designate that Market Maker Peg Orders be cancelled where the order would peg based on the last reported sale will, in conjunction with the other changes proposed in this filing, act to simplify the Market Maker Peg Order type, thereby increasing its utility to Market Makers and decreasing the likelihood of unforeseen complications.
The Exchange is proposing to amend BATS Rule 11.9(c)(16) in order to eliminate the functionality that would allow a Market Maker to designate a more aggressive offset from the NBBO than the Designated Percentage. As currently written, the rule allows a Market Maker to designate a more aggressive offset from the NBBO and a percentage away from the NBBO or the price of the last reported sale from the responsible single plan processor at which the order will be adjusted back to the Market Maker-designated offset.
The Exchange is proposing to eliminate this functionality in order to, as mentioned above, simplify the Market Maker Peg Order functionality. Market Makers will still be able to enter orders priced more aggressively than the automatically priced Market Maker Peg Orders and will have access to existing pegged order functionality. The Exchange believes that this existing functionality will provide Market Makers with the necessary tools to enter orders priced more aggressively than the Market Maker Peg Order while not adding an additional level of complexity by requiring Market Makers to establish additional parameters for their Market Maker Peg Orders.
The Exchange is proposing to amend BATS Rule 11.9(c)(16) in order to make clear that a Market Maker Peg Order will not use its own pegged price as the basis for adjusting the order's price. Where there is no NBBO and a Market Maker Peg Order, whether upon entry or already on the BATS Book, is pegged to the last reported sale from the single plan processor, the Market Maker Peg Order will be reported to the SIPs and will be disseminated to the Exchange as the NBBO. The Exchange is seeking to make clear that, in this situation, the Exchange will not reprice the order based on the fact that the Market Maker Peg Order is the NBBO. Rather, the Exchange will only adjust the market Maker Peg Order when there is either a new consolidated last sale or a new NBBO is established by a national securities exchange.
The Exchange is proposing to amend BATS Rule 11.9(c)(16) in order to make clear that only a registered Market Maker can enter a Market Maker Peg Order. The Exchange believes that, as currently constructed, only a registered Market Maker is allowed to enter Market Maker Peg Orders under Rule 11.9(c)(16) despite lacking any explicit language stating as much. As discussed above, the order type was created to help Market Makers comply with their quoting requirements on the Exchange and, for that reason, the behaviors of the Market Maker Peg Order are based specifically on the Exchange's quoting requirements. The Exchange does not make the order type available to other market participants because it does not believe that there would be any demand for the order type or that it would be particularly useful for market participants that are not Market Makers, especially given the availability of more customizable peg orders.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed changes to the Market Maker Peg Order type functionality will further align the Exchange's functionality with that offered by certain other competing market centers. Specifically, the rule change proposed herein is based on Nasdaq Rule 4751(f)(15) and EDGX Rule 11.5(c)(15).
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Doing so will allow the Exchange to make the improvements and clarifications to the Market Maker Peg Order effective immediately and address any technical or operative issues that member organizations may experience if the Exchange's implementation of Market Maker Peg Order is different from that of other exchanges.
Therefore, the Commission designates the proposal operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 4, 2012, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act
As stated in the Notice, FINRA classifies arbitrators under the Codes as either “non-public” (otherwise known as “industry” arbitrators) or “public.” Arbitrators are generally considered non-public if they are affiliated with the securities industry either because they (1) are currently or were formerly employed in a securities business; or (2) provide professional services to securities businesses. Arbitrators are generally considered public if they (1) do not have any significant affiliation with the securities industry; and (2) are not related to anyone with a significant affiliation with the securities industry.
To improve investor confidence in the neutrality of FINRA's public arbitrator roster, FINRA has amended its arbitrator definitions a number of times over the years.
In 2004, FINRA amended the definitions of “public arbitrator” and “non-public arbitrator” to:
• Increase from three years to five years the amount of time necessary after leaving the securities industry to transition from a non-public to public arbitrator;
• Clarify that “retired” from the industry includes anyone who spent a substantial part of his or her career in the industry;
• Prohibit anyone who has been associated with the industry for at least twenty years from ever becoming a public arbitrator, regardless of how long ago the association ended;
• Exclude from the definition of “public arbitrator” attorneys, accountants, or other professionals whose firms have derived ten percent or more of their annual revenue in the previous two years from clients involved in securities-related activities (“Ten-Percent Rule”); and
• Provide that investment advisers may not serve as public arbitrators, and may only serve as non-public arbitrators if they otherwise qualify as non-public.
• Exclude individuals who were employed by, or who served as an officer or director of, a company in a control relationship with a broker-dealer.
• Exclude individuals with a spouse or immediate family member who was employed by, or who served as an officer or director of, a company in a control relationship with a broker-dealer; and
• Clarify that people registered through a broker-dealer could not be public arbitrators even if they are employed by a non-broker-dealer (such as a bank).
Finally, in 2008, FINRA revised the public arbitrator definition to add a dollar limit to the Ten-Percent Rule. The amended definition was designed to preclude an attorney, accountant, or other professional from serving as a public arbitrator if the individual's firm derived $50,000 or more in annual revenue in the past two years from professional services rendered to certain industry entities relating to customer
The proposed rule change is designed to improve investor confidence in the neutrality of FINRA's public arbitrator roster. In particular, the proposed rule change would (a) exclude persons associated with a mutual fund or hedge fund from serving as public arbitrators and (b) require individuals to wait for two years after ending certain affiliations before they may be permitted to serve as public arbitrators.
FINRA has indicated that it would announce the effective date of the proposed rule change in a
As stated above, the Commission received 45 comment letters on the proposed rule change in response to the Notice. Thirty-eight of those commenters (represented by 39 comment letters) generally supported FINRA's proposal to revise the definition of “public arbitrator” to exclude persons associated with a mutual fund or hedge fund from serving as public arbitrators.
Three commenters suggested that the definition of “public arbitrator” should be further narrowed to expressly exclude from ever acting as a public arbitrator persons associated with issuers or sponsors of private placements, publicly offered non-traded REITs, variable insurance products, and other investment products.
One commenter suggested that the definition of “public arbitrator” should exclude any attorney whose firm has derived $50,000 or ten percent or more of its annual revenue in the prior two years from professional services rendered to claimants in customer disputes concerning an investment account or transaction.
One commenter generally approved of the proposed rule change but maintained that, in the context of customer disputes, FINRA's current definition of “non-public arbitrator” must be broadened to include the entire securities industry, particularly if FINRA plans to open up its forum to non-members.
Finally, another commenter believed the proposed rule change should exclude additional categories of individuals from the definition of “public arbitrator” but ultimately disapproved of the proposed rule change on the grounds that it would continue to permit individuals who previously worked in and have financial interests connected to the securities industry to be classified as public arbitrators.
Fourteen commenters suggested that FINRA's proposal to require individuals to wait for two years after ending certain affiliations before they may be permitted to serve as public arbitrators should be amended to increase the proposed “cooling off” period from two years to at least five years.
In its Response Letter, FINRA stated that the purpose of the proposed rule change is to respond to investor representatives' concerns that certain arbitrators on the public roster were not perceived as public because of their background and experience. Specifically, FINRA stated that the proposed rule change would affect certain persons whose job precludes them from being classified as a public arbitrator but does not qualify them as a non-public arbitrator. In addition, FINRA stated that the proposed rule would require persons precluded by their job from being classified as a public arbitrator to wait two years
The Commission has carefully reviewed the proposed rule change, the comments received, and FINRA's Response Letter. Based on its review of the record, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
More specifically, the Commission finds that the proposed rule change to exclude persons associated with a mutual fund or hedge fund from serving as public arbitrators and require individuals to wait for two years after ending certain affiliations before they may be permitted to serve as public arbitrators would benefit investors and other participants in the forum by improving investor confidence in the neutrality of FINRA's public arbitrator roster. While the Commission appreciates the suggestions regarding exclusions from the definition of “public arbitrator” and the proposed two-year cooling off period, we believe that FINRA has responded adequately to comments. We also agree with the Response Letter's position that the proposed rule change should improve investors' perception about the fairness and neutrality of FINRA's public arbitrator roster, particularly given the Response Letter's representation that FINRA intends to conduct a comprehensive review of both the public and non-public arbitrator definitions with a view towards further clarifying the definitions and reviewing additional issues such as those raised in comment letters on the proposed rule change.
For the reasons stated above, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Standard Options Transaction Fees. 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 purpose of this filing is to modify the transaction charges for executing standard options trades on NYSE Arca. The Exchange proposes to raise the Take Liquidity Rate in both Penny Pilot Issues and non-Penny Pilot issues, while reducing the Post Liquidity credit for NYSE Arca Market Makers in non-Penny Pilot issues. The Exchange also proposes to modify the Customer Monthly Posting Credit Tiers and Qualifications to provide additional tiers to incent an increased level of Customer activity, and create new Tiers for a similar increase in Customer activity by providing higher Post Liquidity credits in non-Penny Pilot issues.
First, the Exchange proposes to no longer differentiate the Take Liquidity rate by contra party, so that a participant will have a single fee for Taking Liquidity in Penny Pilot issues. The Exchange proposes to raise the Take Liquidity rate for all non-Customers trading in Penny Pilot issues to $0.47 per contract.
Similarly, the Exchange proposes raising the Take Liquidity fee for Electronic Executions in non-Penny Pilot issues for all participants, with similar increases but differentiated fees by participant type. The Take Liquidity fee for LMMs trading in non-Penny Pilot issues will be increased from $0.78 to
The Exchange proposes to modify the Post Liquidity rate for NYSE Arca Market Makers in non-Penny Pilot issues by reducing it to a credit of $0.05.
The increases in various Take Liquidity rates and the reduction of the Post Liquidity credit for NYSE Arca Market Makers in non-Penny Pilot issues is to provide sufficient funding for various Customer Post Liquidity credits.
NYSE Arca proposes to modify the Customer Monthly Posting Credit Tiers and Qualifications for Executions in Penny Pilot Issues. First, the Exchange proposes to eliminate the first and third qualification requirements for Tier 4. Secondly, the Exchange proposes to reduce the level of activity needed to meet the current second qualification for Tier 4 from 0.95% to 0.85% of Total Industry Customer equity and ETF option Average Daily Volume (ADV) from Posted Orders in Penny Pilot Issues, all account types. Thirdly, the Exchange proposes to add Tier 5 with a credit of $0.45 to be applied to posted electronic Customer executions in Penny Pilot issues. To earn the new Tier 5 credit, a firm must qualify by providing “At least 0.50% of Total Industry Customer equity and ETF option ADV from Customer Posted Orders in both Penny Pilot and non-Penny Pilot Issues, plus executed ADV of Retail Orders of 0.3% of U.S. Equity Market Share Posted and Executed on NYSE Arca Equity Market”. The Exchange also proposes an additional Tier, Tier 6, with a qualification of “At least 0.95% of Total Industry Customer equity and ETF option ADV from Customer Posted Orders in both Penny Pilot and non-Penny Pilot Issues”, with a credit for meeting the qualification of $0.47 per contract applied to posted electronic executions in Penny Pilot issues.
The Exchange also proposes the creation of Customer Posting Credit Tiers in Non-Penny Pilot Issues with two Tiers to receive a higher credit to be applied to posted electronic Customer executions in non-Penny Pilot issues. To qualify for the first tier, Tier A, an Order Flow Provider would need to provide “At least 0.50% of Total Industry Customer equity and ETF option ADV from Customer Posted Orders in both Penny Pilot and Non-Penny Pilot Issues Plus executed ADV of Retail Orders of 0.3% ADV of U.S. Equity Market Share Posted and Executed on NYSE Arca Equity Market”, the same criterion as Tier 5 in the Customer Posted Liquidity Credits for Penny Pilot issues. Meeting the qualifications for Tier A will provide a credit applied to posted electronic Customer executions in non-Penny Pilot issues of $0.80.
The qualification basis for Tier B would be the same as for the new Tier 6 in the Customer Tiers for Posting Credits in Penny Pilot Issues: at least 0.95% of Total Industry Customer equity and ETF option ADV from Customer posted orders in both Penny Pilot and non-Penny Pilot issues. Order Flow Provider (“OFP”) firms that meet the qualification would, in addition to the higher tier in Penny Pilot issues, also receive a credit of $0.81 applied to posted electronic executions in non-Penny Pilot names.
The changes to various Customer Post Liquidity credit tiers, and the creation of the new Customer Posting Credit Tiers in Non-Penny Pilot Issues, are to encourage additional Customer order flow to be sent to the Exchange.
NYSE Arca also proposes additional language in endnote 8, to define Retail Orders. A Retail Order must qualify for the Retail Order Tier set forth in the Schedule of Fees and Charges for NYSE Arca Equities, Inc.
NYSE Arca intends for the new fees to be in effect on April 1, 2013.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange proposal to raise certain Take Liquidity fees in Penny Pilot issues is reasonable in that all of the non-Customer rates are being raised to a rate that is already applied to certain transactions in Penny Pilot issues. While the rate for Customers will remain at a slightly lower level, this is not unfairly discriminatory, as non-Customers want to attract Customer order flow, and Customers have other costs, such as commissions, which are not charged to non-Customers.
The Exchange proposal to raise the Take Liquidity fees in non-Penny Pilot names is reasonable because they are within the established range of similar fees charged by other markets. One exchange charges a Take Liquidity fee of as much as $0.89 per contract. In addition, the increase in Take Liquidity fees is also non- discriminatory because the Exchange is making a similar increase for all participant types. While the fees are not identical, they are equitable in that the increases are by similar amounts, and the resultant fees are differentiated by the overall costs and obligations of the different participants. The Exchange will now be charging the same Take Liquidity rate to both Market Makers and LMMs. While the rate for Firms and Broker Dealers is slightly higher, it is not unreasonably discriminatory because Market Makers have higher fees for Trading Permits and have market maker obligations which require them to pay for equipment and connectivity. Customers will pay a slightly lower Take Liquidity rate because Customers have other costs not borne by non-Customers, and a lower fee for Customers is not discriminatory because non-Customers wish to have Customer orders attracted to the Exchange by having lower fees.
The Exchange proposal to reduce the Post Liquidity credit in non-Penny Pilot issues for NYSE Market Makers is reasonable in that the range of fees for Market Maker transactions in non-Penny Pilot issues varies across all market centers from a credit of $0.70 to a fee of $0.85. It is not unfairly discriminatory as different market participants have different costs and obligations. It is not unfairly discriminatory to have a higher Post Liquidity credit for Lead Market Makers as compared to other NYSE Arca Market Makers because LMMs have a higher quoting obligation and higher costs and there are barriers to entry and exit of appointment as an LMM that are not imposed on other Market Makers.
The NYSE Arca proposal to modify the Customer Monthly Posting Credit Tiers and Qualifications in Penny Pilot issues is reasonable in that it sets credits within the range of credits offered for similar Customer activity on other markets, which range as high as $0.48. It is not unreasonably discriminatory to set credit tiers to incent higher amounts of Customer volume, as non-Customers wish to have Customer orders attracted to the Exchange by having more attractive fees. The differing Credit Tiers are not unreasonably discriminatory amongst various OFPs because, while
Additionally, the NYSE Arca creation of new Customer Posting Credit Tiers in non-Penny Pilot issues is reasonable and non-discriminatory in that it extends upon the common and reasonable concept of rewarding higher Customer volume with higher Post Liquidity credits by applying it to non-Penny Pilot issues. As stated before, it is not unreasonably discriminatory to set credit tiers to incent higher amounts of Customer volume, as non-Customers wish to have Customer orders attracted to the Exchange by having more attractive fees. As with Customer Tier 6 in the Customer Monthly Posting Credit Tiers and Qualifications in Penny Pilot issues, those firms who only have an Options Trading Permit may still achieve Tier B and the greatest Customer Posting Credit by meeting a reasonable level of market share and including all options volume, from both Penny Pilot and non-Penny Pilot issues, to meet that market share level.
In addition, the Exchange believes that the addition of the proposed language in end note 8 to define Retail Orders, which refers to qualification for the Retail Order Tier set forth in the Schedule of Fees and Charges for NYSE Arca Equities, Inc., will provide clarifying language to investors regarding calculation of ADV executed on NYSE Arca Equity Market, for purposes of the proposed charges.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes that the new Take Liquidity rates in Penny Pilot issues does not impose a burden on competition because it sets the same rate for all non-Customer participants, regardless of contra party.
Similarly, by raising all of the Take Liquidity rates for non-Penny Pilot issues by similar amounts, the new Take Liquidity fees for non-Penny Pilot issues do not impose a burden on competition because all participants are affected to the same extent.
In addition, the adjustment of the NYSE Arca Market Maker Post Liquidity rate in non-Penny Pilot issues reduces the burden on competition because it aligns the NYSE Market Maker rate to an equitable balance that reflects both the higher costs of being a Lead Market Maker and the lower overall costs of other non-Customers.
The Exchange notes that the modifications to the Customer Monthly Credit Tiers and Qualifications reduces the burden on competition by providing additional incentives for Customers to bring orders to the Exchange. This incents competition because non-Customers wish to have Customer orders attracted to the Exchange by having attractive fees and incentives.
Similarly, the creation of new Customer Posting Credit Tiers for higher Customer credits in non-Penny Pilot issues does not impose a burden on competition but incents additional order flow to come to NYSE Arca and will increase competition amongst non-Customers to trade against Customer orders.
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 credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send 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 the functionality of the Market Maker Peg Order to more closely resemble analogous order types offered by NASDAQ Stock Market LLC (“Nasdaq”) and EDGX Exchange, Inc. (“EDGX”)
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The purpose of this proposed rule change is to amend BYX Rule 11.9(c)(16). Specifically, the Exchange proposes to: (1) Remove the option to allow Market Maker Peg Orders to be priced and executed during the Pre-Opening Session
The Exchange is proposing to amend BYX Rule 11.9(c)(16) to eliminate the option for Market Maker Peg Orders to be priced and executed outside of Regular Trading Hours and to cancel all Market Maker Peg Orders that are on the BATS [sic] Book at the end of Regular Trading Hours. As currently written, a Market Maker may enter a Market Maker Peg Order at any time during the Pre-Opening Session
Specifically, the Exchange is proposing rule changes to eliminate the ability for a Market Maker to designate that an order be priced and executable immediately upon entry during the Pre-Opening Session, to state that all Market Maker Peg Orders that are on the BATS [sic] Book expire at the end of Regular Trading Hours, and to reject all Market Maker Peg Orders entered during the After Hours Trading Session. The Exchange is proposing these changes in order to make its Market Maker Peg Order functionality more closely resemble that of Market Maker Peg Orders at Nasdaq and EDGX. Because the Market Maker Peg Order is designed to help Market Makers meet their quoting obligation on the Exchange and the Exchange's quoting obligations do not include any obligations outside of Regular Trading Hours, the Exchange does not believe that allowing Market Maker Peg Orders to be priced and executed outside of Regular Trading Hours provides Market Makers with any benefit that would warrant the additional complexity that the functionality would require. As such, the Exchange believes that eliminating the ability to have Market Maker Peg Orders price and execute outside of Regular Trading Hours will, in conjunction with the other changes proposed in this filing, act to simplify the Market Maker Peg Order type, thereby increasing its utility to Market Makers and decreasing the likelihood of unforeseen complications.
The Exchange is proposing to amend BYX Rule 11.9(c)(16) to eliminate the functionality that would allow a Market Maker to designate Market Maker Peg Orders to be cancelled where there is no NBBO and the order would otherwise be priced to the last reported sale from the single plan processor. Currently, a Market Maker may optionally designate
The Exchange is proposing to eliminate this functionality in order to make its Market Maker Peg Order functionality more closely resemble that of Market Maker Peg Orders at Nasdaq and EDGX. Additionally, the Exchange believes that removing the ability to designate that Market Maker Peg Orders be cancelled where the order would peg based on the last reported sale will, in conjunction with the other changes proposed in this filing, act to simplify the Market Maker Peg Order type, thereby increasing its utility to Market Makers and decreasing the likelihood of unforeseen complications.
The Exchange is proposing to amend BYX Rule 11.9(c)(16) in order to eliminate the functionality that would allow a Market Maker to designate a more aggressive offset from the NBBO than the Designated Percentage. As currently written, the rule allows a Market Maker to designate a more aggressive offset from the NBBO and a percentage away from the NBBO or the price of the last reported sale from the responsible single plan processor at which the order will be adjusted back to the Market Maker-designated offset.
The Exchange is proposing to eliminate this functionality in order to, as mentioned above, simplify the Market Maker Peg Order functionality. Market Makers will still be able to enter orders priced more aggressively than the automatically priced Market Maker Peg Orders and will have access to existing pegged order functionality. The Exchange believes that this existing functionality will provide Market Makers with the necessary tools to enter orders priced more aggressively than the Market Maker Peg Order while not adding an additional level of complexity by requiring Market Makers to establish additional parameters for their Market Maker Peg Orders.
The Exchange is proposing to amend BYX Rule 11.9(c)(16) in order to make clear that a Market Maker Peg Order will not use its own pegged price as the basis for adjusting the order's price. Where there is no NBBO and a Market Maker Peg Order, whether upon entry or already on the BATS [sic] Book, is pegged to the last reported sale from the single plan processor, the Market Maker Peg Order will be reported to the SIPs and will be disseminated to the Exchange as the NBBO. The Exchange is seeking to make clear that, in this situation, the Exchange will not reprice the order based on the fact that the Market Maker Peg Order is the NBBO. Rather, the Exchange will only adjust the market Maker Peg Order when there is either a new consolidated last sale or a new NBBO is established by a national securities exchange.
The Exchange is proposing to amend BYX Rule 11.9(c)(16) in order to make clear that only a registered Market Maker can enter a Market Maker Peg Order. The Exchange believes that, as currently constructed, only a registered Market Maker is allowed to enter Market Maker Peg Orders under Rule 11.9(c)(16) despite lacking any explicit language stating as much. As discussed above, the order type was created to help Market Makers comply with their quoting requirements on the Exchange and, for that reason, the behaviors of the Market Maker Peg Order are based specifically on the Exchange's quoting requirements. The Exchange does not make the order type available to other market participants because it does not believe that there would be any demand for the order type or that it would be particularly useful for market participants that are not Market Makers, especially given the availability of more customizable peg orders.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed changes to the Market Maker Peg Order type functionality will further align the Exchange's functionality with that offered by certain other competing market centers. Specifically, the rule
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. Doing so will allow the Exchange to make the improvements and clarifications to the Market Maker Peg Order effective immediately and address any technical or operative issues that member organizations may experience if the Exchange's implementation of Market Maker Peg Order is different from that of other exchanges. Therefore, the Commission designates the proposal operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 phase out the functionality associated with liquidity replenishment points (“LRPs”) to coincide with the implementation of the Limit Up—Limit Down Plan (the “Plan”) by adding language to NYSE Rule 1000 that, beginning on April 8, 2013, LRPs will no longer be in effect for Tier 1 NMS Stocks, and on the earlier of August 1, 2013 or such date as Phase II of the Limit Up—Limit Down Plan is implemented, LRPs will no longer be in effect for all NMS Stocks. The text of the proposed rule change is
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to phase out the functionality associated with LRPs to coincide with the implementation of the Plan by amending Rule 1000 to provide that, beginning on April 8, 2013, LRPs will no longer be in effect for Tier 1 NMS Stocks, and beginning on the earlier of August 1, 2013 or such date as Phase II of the Limit Up—Limit Down Plan is implemented, LRPs will no longer be in effect for all NMS stocks.
The LRP mechanism was approved in 2006 to address market volatility on the Exchange.
Nevertheless, the Exchange proposes to phase out LRPs as a result of the scheduled implementation of the Plan, which was adopted in response to the market disruption of May 6, 2010. Specifically, in addressing comments focused on the relationship between the Plan and exchange-specific volatility mechanisms—such as the NYSE's LRPs—the Commission stated that it was “aware of the potential for unnecessary complexity that could result if the Plan were adopted, and exchange-specific volatility mechanisms were retained” and “[t]o this end, the Commission
Although the Exchange understands the need for industry-wide responses to address extraordinary volatility events such as the market disruption that occurred on May 6, 2010, the Exchange does not agree that such initiatives should come at the expense of existing investor protection mechanisms, particularly without any impact analysis, because such initiatives can have unintended consequences to the detriment of investors and the marketplace as a whole. In light of the fact that only potential concerns were noted and there is no evidence of systemic problems that would be caused by simultaneously operating the Plan and LRPs, the Exchange continues to believe that data could have been collected during the Plan pilot period and would have served as an excellent testing ground to determine if both the Limit Up—Limit Down bands as well as the LRP bands could function effectively together. The Exchange believes that only after such careful monitoring could an informed determination be made that accurately assesses whether the functionalities were redundant or conflicting so as to warrant continuing with one or the other, or both. The Plan pilot period could also have afforded the Commission and the Exchange the ability to compile and analyze data that would contribute to the making of an informed decision with respect to the merits of both programs.
Indeed, there is nothing particularly complex about how LRPs would have operated alongside the Plan. As the LRP bands are generally narrower than the Limit Up—Limit Down bands, LRPs might have continued to serve their current purpose of creating a temporary auction market buffer to rapid and extraordinary price movements occurring in the electronic market. They would have been triggered within Limit Up—Limit Down bands, would have applied only to the Exchange, and trading on away markets could have continued to occur because the NYSE quotation is not protected during an LRP. Moreover, the Exchange believes that any incremental complexity the LRPs would have added to the operation of the Plan would have been outweighed substantially by their proven effectiveness in minimizing rapid price movements that are driven by erroneous orders.
Furthermore, the Exchange wishes to respectfully, but strenuously, object not only to the substance of the Commission's decision to effectively insist that the Exchange abandon LRPs, but also the policy implications of the decision. From a policy perspective, the Commission's required removal of LRPs would seem to embody an effort to force markets “into a single mold”
Nevertheless, the Exchange proposes to phase out
As such, the Exchange proposes to add rule language that, beginning on April 8, 2013, LRPs will no longer be in effect for Tier 1 NMS Stocks, and on the earlier of August 1, 2013 or such date as Phase II of the Limit Up—Limit Down Plan is implemented, LRPs will no longer be in effect for all NMS Stocks. In order to accommodate the phasing out process, prior to the implementation of Phase II of the Plan, the Exchange will file a separate rule proposal deleting the references to LRP functionality in NYSE Rules 60, 79A, 104, 128, and 1000. The Exchange will apprise members and member organizations of the dates of the discontinuation of the LRP functionality via an Information Memorandum. The Exchange plans to revisit the merits of discontinuing the LRP functionality after the initial Plan pilot period has ended and may file to reincorporate the LRP functionality at that time as well.
The Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose a burden on competition because the Exchange is discontinuing the LRP functionality to fulfill the Commission's expectations. In this respect, the Exchange notes that because Commission expects all exchanges to discontinue their respective volatility mechanisms, there should be no burden on competition because all exchanges as well as their members and issuers would be similarly situated.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 17, 2012, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NSCC-2012-10 (“Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NSCC filed the Proposed Rule Change to permit it to make rule changes to its Rules and Procedures (“Rules”) designed to eliminate the offset of NSCC obligations with institutional delivery (“ID”) transactions that settle at The Depository Trust Company (“DTC”) for the purpose of calculating the NSCC clearing fund (“Clearing Fund”) under Procedure XV of its Rules, as discussed below.
NSCC maintains a Clearing Fund to have on deposit assets sufficient to satisfy losses that may otherwise be incurred by NSCC as the result of the default of an NSCC member (“Member”) and the resulting closeout of that Member's unsettled positions under NSCC's trade guaranty. Each Member is required to contribute to the Clearing Fund pursuant to a formula calculated daily. The Clearing Fund formula accounts for a variety of risk factors through the application of a number of components, including Value-at-Risk (“VaR”)
NSCC currently calculates the VaR and MMDOM components of a Member's Clearing Fund required deposit after allowing for a Member's net unsettled NSCC positions in a particular CUSIP to be offset by any pending ID transactions settling at DTC in the same CUSIP, which have been confirmed and/or affirmed through an institutional delivery system acceptable to NSCC (“ID Offset”).
Generally, when NSCC ceases to act for a Member, it is obligated, for those transactions that it has guaranteed, to pay for deliveries made by non-defaulting Members that are due to the failed Member on the day they are due. If NSCC is unable to complete the ID transactions as contemplated by the current Clearing Fund calculation, then NSCC may need to liquidate a portfolio that could be substantially different than the portfolio for which NSCC collected its Clearing Fund, leaving NSCC potentially under-collateralized and exposed to market risk.
A defaulting Member's pending ID transactions may not be completed for a number of reasons. Completion of an ID transaction by its institutional counterparty is voluntary because that counterparty is not a Member, which means it is not bound by NSCC's Rules and is not party to any legally binding contract with NSCC that requires it or its custodian to complete the transaction. Moreover, based on news that a Member may be in distress or insolvent, the institutional counterparty or its investment adviser may take immediate market action with respect to
Due to the risk that, in the event it ceases to act for a Member with pending ID transactions, NSCC may be unable to complete the pending ID transactions in the timeframe contemplated by its current Clearing Fund calculations and, as a result, may have insufficient margin in its Clearing Fund, as described above, NSCC will eliminate the ID Offset calculation from the VaR and MMDOM components of a Member's Clearing Fund requirement deposit.
In order to mitigate the impact of this rule change on its Members, NSCC will implement the changes set forth in the Proposed Rule Change over an 18-month period. On a date no earlier than 10 days following notice to Members by Important Notice (“Initial Implementation Date”), NSCC will eliminate ID Offset from ID transactions that have only been confirmed, but have not yet been affirmed. Beginning on a date approximately 12 months from the Initial Implementation Date, and no earlier than 10 days following notice to Members by Important Notice, NSCC will eliminate from ID Offset all affirmed ID transactions that have reached settlement date at the time the Clearing Fund calculations are run. Three months later, or approximately 15 months following the Initial Implementation Date, and on a date no earlier than 10 days following notice to Members by Important Notice, NSCC will eliminate from ID Offset all affirmed ID transactions that have reached either settlement date or the day prior to settlement date. Finally, on a date approximately 18 months following the Initial Implementation Date, and no earlier than 10 days following notice to Members by Important Notice, NSCC will eliminate ID Offset entirely for all ID transactions. Members will be advised of each proposed implementation date through issuance of NSCC Important Notices, which are publicly available at
The Commission received two comment letters to the Proposed Rule Change from a single commenter,
The commenter's arguments opposing NSCC's proposal generally fall into two categories: (1) Those that challenge a premise for, or the decision-making process with respect to, the Proposed Rule Change; and (2) those that identify potential ramifications of the Proposed Rule Change.
The commenter argues that it is a reasonable assumption that most ID transactions will be completed because institutional customers are reliable and creditworthy, so NSCC should not assume for purposes of the Proposed Rule Change that all ID transactions will not be completed.
NSCC responded that there is no guarantee that any pending ID transaction will be completed because there is no privity of contract between NSCC and the non-member institutional counterparties to the ID transactions,
The commenter claims that NSCC currently collects sufficient margin, as NSCC has never had to use the Clearing Fund deposits of a non-defaulting Member, nor has it ever suffered a loss due to insufficient margin.
In response, NSCC stated, and to which the commenter agreed,
The commenter argues that agency broker-dealers are less risky than Members engaged in proprietary trading for a number of reasons, including that agency broker-dealers do not trade on margin, cannot assume short positions, and cannot write options.
NSCC responds that agency broker-dealer firms, along with other firms, are trading in greater volume and frequency and are employing riskier trading techniques, like high frequency trading, than they have historically.
Citing the requirement in Section 17A(b)(3)(C) of the Act that the rules of a registered clearing agency should assure a fair representation of its members and participants in the selection of its directors and administration of its affairs, the commenter suggests that the Depository Trust and Clearing Corporation (“DTCC”)
The commenter argues that the proposal has a disparate, negative impact on agency broker-dealers not only because such firms are less risky and, therefore, should not require as much margin, as discussed above, but also because the elimination of the ID Offset will likely increase Clearing Fund margin requirements, increases that independent broker-dealers (i.e., non-bank affiliated firms) may be unable to meet due to funding restraints, which may force such broker-dealers out of business, possibly reducing competition in the industry. The commenter has also stated that the proposal may have a negative impact on customers of such broker-dealers.
NSCC responded that the elimination of the ID Offset is equally applied to its Members, and that the ID Offset provides an unfair and disproportionate advantage currently enjoyed by Members who have ID transactions to offset; therefore, the proposal actually “levels the playing field,” with respect to calculating the margin collected for the Clearing Fund.
The commenter states that a viable alternative to the proposal to eliminate the ID Offset exists, in that NSCC could serve as a central counterparty (“CCP”) for ID transactions (“CCP Alternative”),
NSCC counters, generally, that alternatives to the proposal were explored, particularly through the working group mentioned above, but no viable options exist.
In its assessment of the Proposed Rule Change for consistency with the Act, the Commission carefully considered the comments and responses it received and the information provided in the Proposed Rule Change itself. After an extended review, the Commission finds that the Proposed Rule Change is consistent with the requirements of the Act and the applicable rules and regulations thereunder, as discussed below.
Section 17A(b)(3)(F) of the Act requires that, among other things, “[t]he rules of the clearing agency are designed to promote the prompt and accurate clearance and settlement of securities transactions and * * * to assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible.”
As a CCP, NSCC occupies an important role in the securities settlement system by interposing itself between counterparties to financial transactions, thereby reducing certain risks faced by Members and contributing to global financial stability. In this role, however, NSCC is
Here, NSCC's proposal to eliminate the ID Offset, as described above, is designed to help mitigate the risk that NSCC will be under-collateralized if it ceases to act for a defaulting Member and is unable to complete the offsetting ID transactions in the time currently contemplated by its Clearing Fund calculation. As such, the Commission believes that NSCC's proposal to eliminate ID Offsets should help further promote the prompt and accurate clearance and settlement of securities transactions, and assure the safeguarding of securities and funds for which NSCC is responsible.
Furthermore, Commission Rule 17Ad-22(b)(1) regarding measurement and management of credit exposure,
Here, as described in detail above, NSCC's proposal to eliminate ID Offsets should help to limit its exposure, as well as non-defaulting members' exposure, to potential losses from a defaulting Member, while minimizing disruption to its CCP operations, by more accurately reflecting its risks in the calculation of its Clearing Fund margin. As discussed above, NSCC's calculation of its Clearing Fund margin will be more accurate in that it will not include an assumption of trade closeouts following a Member insolvency with respect to trades for which there is a corresponding ID transaction.
Finally, Commission Rules 17Ad-22(d)(4) regarding identification and mitigation of operational risk,
Here, as described in detail above, the elimination of ID Offsets should help NSCC better minimize settlement risks and better ensure that it can contain losses and liquidity pressures, and meet its obligations in a timely fashion, by more accurately accounting for those risks in its Clearing Fund calculation that is designed to satisfy potential losses in a timely manner.
After specifically considering each of the commenter's claims, as discussed below, the Commission maintains its belief that the Proposed Rule Change is consistent with the requirements of the Act and the applicable rules and regulations thereunder, as discussed above.
The Commission understands that institutional counterparties to ID transactions are not NSCC members and, therefore, maintain no privity of contract with NSCC regarding ID trades.
Given the risk that NSCC may not be able to settle ID trades, as discussed above, NSCC may be collecting insufficient margin, regardless of past needs, potentially leaving it under-collateralized if a Member defaults. The Commission believes that the Proposed Rule Change furthers NSCC's compliance with the requirements of Section 17A(b)(3)(F)
The Commission believes that agency broker-dealer firms are not riskless and those Members could present serious risks to NSCC, as demonstrated by the significant market events involving an NSCC Member in August 2012, which both NSCC and the commenter acknowledge.
Though the commenter did not suggest that DTCC Board's composition is a direct violation of 17A(b)(3)(C) of the Act,
By eliminating the ID Offset, which the Commission believes applies universally to all Members and which would be consistent with Section 17A(b)(3)(F) of the Act,
NSCC has not proposed the CCP Alternative discussed above as a proposed rule change, and thus the CCP Alternative is outside the scope of this Proposed Rule Change. Nonetheless, in considering the consistency of the Proposed Rule Change with the requirements of the Act and the applicable rules and regulations thereunder, the Commission acknowledges that the CCP Alternative does not appear practical for NSCC at the current time because, as NSCC has pointed out, the institutional counterparties to ID trades are not NSCC members, and thus, absent new membership for these counterparties, NSCC would have to voluntarily guarantee uncollateralized ID trades without collecting margin to insulate NSCC from a default of a counterparty, which would not resolve the market risk that ID Offsets present and NSCC seeks to eliminate through the Proposed Rule Change. Furthermore, even if the CCP Alternative did resolve the market risk that the Proposed Rule Change is intended to address, the CCP Alternative does not appear to be an immediately viable option for NSCC, as it would likely require potentially complicated changes to the current clearance and settlement structure.
On the basis of the foregoing, the Commission finds the Proposed Rule Change consistent with the requirements of the Act, particularly with the requirements of Section 17A of the Act,
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to establish certain fees for the NYSE Trades and NYSE Realtime Reference Prices (“NYSE RRP”) market data products. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to establish certain fees for the NYSE Trades and NYSE RRP market data products.
In 2009, the Securities and Exchange Commission (“SEC” or the “Commission”) approved the NYSE Trades data feed and certain fees for it.
The Exchange currently charges NYSE Trades data feed recipients an access fee of $1,500 per month, and a subscriber fee for professional subscribers of $15 per month per device, which may be counted, at the election of the vendor based on the number of “Subscriber Entitlements”
The Exchange also offers NYSE RRP.
The Exchange currently charges a flat fee of $60,000 per month with no user-based fees for NYSE RRP. For that fee, the vendor may provide NYSE RRP to an unlimited number of the vendor's subscribers and customers without having to differentiate between professional subscribers and nonprofessional subscribers, without having to account for the extent of access to the data, and without having to report the number of users. As an alternative to the NYSE RRP flat monthly fee, the Exchange offers an alternative fee of $.004 for each real-time reference price that a vendor disseminates to its customers (“per query fee”), which is capped at $60,000 per month, the same amount as the flat fee. In order to take advantage of the per-query fee, a vendor must document that it has the ability to measure accurately the number of queries and must have the ability to report aggregate query quantities on a monthly basis. The per-query fee is imposed on vendors, not end-users. There are currently no fees for NYSE RRP that are specifically designed for television or mobile device distribution.
NYSE RRP was created to allow distribution of a last sale data product for reference purposes on Web sites at a low cost that would facilitate distribution to millions of retail investors and relieve vendors of administrative burdens.
The Exchange recently created a new version of NYSE Trades, NYSE Trades Digital Media, which will allow market data vendors, television broadcasters, Web site and mobile device service providers, and others to distribute the product to their customers for viewing via television, Web site, and mobile devices.
The Exchange also will offer NYSE RRP Digital Media so that NYSE RRP will be available for distribution in the same manner as NYSE Trades Digital Media, via television, Web site, and mobile devices. The data elements of NYSE RRP (last sale price, time, and stock summary message) will remain unchanged from today's NYSE RRP product offering.
The Exchange has established these Digital Media products in recognition of the demand for a more seamless and easier-to-administer data distribution model that takes into account the expanded variety of media and communication devices that investors utilize today. For example, a television broadcaster could display the NYSE Trades data during market-related television programming and on its Web site and allow its viewers to view the data via their mobile devices, creating a more seamless distribution model that will allow investors more choice in how they receive and view market data.
The NYSE Trades Digital Media Enterprise Fee will be $40,000 per month, and the NYSE RRP Digital Media Enterprise Fee will be $25,000 per month. The Exchange notes that the NYSE RRP Digital Media Enterprise Fee is lower than NYSE Trades Digital Media Enterprise Fee because it does not include trade size data. Vendors that pay these fees will not be required to pay an access fee, but they will be required to pay the redistribution fees as described below. As with the current NYSE RRP product and the Broadcast Fee, a vendor paying the Digital Media Enterprise Fee may deliver the NYSE Trades and NYSE RRP data to an unlimited number of television, Web site, and mobile device viewers without having to differentiate between professional subscribers and nonprofessional subscribers, without having to account for the extent of access to the data, and without having to report the number of users.
For NYSE Trades, the television-only $40,000 Broadcast Fee option will no longer be available. For NYSE RRP, web-only distribution for $60,000 per month will no longer be available. The Exchange does not believe that any customers would elect these options in light of the broader distribution offered with the new Digital Media Enterprise Fees and the substantially lower price for NYSE RRP Digital Media.
The Exchange will continue to offer the $.004 per query fee for NYSE RRP to any vendor that so chooses, but the Exchange proposes to reduce the cap to $25,000, the same amount as the NYSE RRP Digital Media Enterprise Fee. Vendors and subscribers receiving NYSE Trades via traditional distribution methods, e.g. a Bloomberg terminal or a broker-dealer customer Web site that permits order entry, will not be eligible for Digital Media Enterprise Fees and
The Exchange also proposes to charge a redistribution fee of $1,000 per month for NYSE Trades and $1,500 per month for NYSE RRP.
The Digital Media Enterprise Fees will be operative on April 1, 2013 and the redistribution fees will be operative on May 1, 2013.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed NYSE Trades Digital Media Enterprise Fee of $40,000 per month and NYSE RRP Digital Media Enterprise Fee of $25,000 per month are reasonable because they will offer a means for vendors to more widely distribute NYSE Trades and NYSE RRP data to investors for informational purposes at the same cost (in the case of NYSE Trades) or a lower cost (in the case of NYSE RRP) than is available today. Currently, NYSE Trades can be distributed via television for a $40,000 monthly fee, but that fee does not include Web site or mobile device distribution. NYSE RRP can be distributed over Web sites for a $60,000 monthly fee, but that fee does not include television or mobile device distribution. The Exchange believes that the proposed Digital Media Enterprise Fees are reasonable because in certain instances they are less than the fees charged by another exchange for a similar product.
The proposed Digital Media Enterprise Fees also are equitable and not unfairly discriminatory because they will be applied uniformly to market data vendors, television broadcasters, Web site and mobile service providers, or any other person that distributes the data on the basis described in this filing. The Exchange believes that it is appropriate to offer a lower cost fee structure that is designed to facilitate broader media distribution of the NYSE Trades and NYSE RRP data for informational purposes because it will benefit investors generally. Moreover, the value of the data distributed generally in the media for informational purposes differs from when it is distributed in manner in which it can immediately be utilized for trading decisions. The Exchange believes that the data is more valuable in that latter context, and as such, it is fair and equitable to have differential pricing for it.
In establishing the Digital Media Enterprise Fees, the Exchange recognizes that there is demand for a more seamless and easier-to-administer data distribution model that takes into account the expanded variety of media and communication devices that investors utilize today. As is the case with the current NYSE RRP product and the Broadcast Fee, the Exchange believes that the Digital Media Enterprise Fee will be easy to administer because vendors that purchase it will not have to differentiate between professional subscribers and nonprofessional subscribers, account for the extent of access to the data, or report the number of users; this is a significant reduction in vendors' administrative burdens and is a significant value to vendors. For example, a television broadcaster could display the NYSE Trades Digital Media data during market-related television programming and on its Web site and allow its viewers to view the data via their mobile devices, creating a more seamless distribution model that will allow investors more choice in how they receive and view market data, all without having to account for and/or measure who accesses the data and how much they do so. By easing administration, broadening distribution channels, and, in the case of NYSE RRP, reducing prices, the Exchange believes that more vendors will choose to offer NYSE Trades and NYSE RRP, thereby expanding the distribution of market data for the benefit of investors.
The proposed redistribution fees also are reasonable because they are comparable to other redistribution fees charged by other exchanges.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system `evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed' and that the SEC wield its regulatory power `in those situations where competition may not be sufficient,' such as in the creation of a `consolidated transactional reporting system.'
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards.
As the
For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory.
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. An exchange's ability to price its proprietary data feed products is constrained by (1) Actual competition for the sale of proprietary market data products, (2) the existence of inexpensive real-time consolidated data and free delayed consolidated data, and (3) the inherent contestability of the market for proprietary last sale data and the joint product nature of exchange platforms.
Competitive markets for listings, order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. The U.S. Department of Justice also has acknowledged the aggressive competition among exchanges, including for the sale of proprietary market data itself. In announcing that the bid for NYSE Euronext by NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. had been abandoned, Assistant Attorney General Christine Varney stated that exchanges “compete head to head to offer real-time equity data products. These data products include the best bid and offer of every exchange and information on each equity trade, including the last sale.”
It is common for broker-dealers to further exploit this recognized competitive constraint by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. As a 2010 Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume * * * dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
In addition, in the case of products that are distributed through market data vendors, the market data vendors themselves provide additional price discipline for proprietary data products because they control the primary means of access to certain end users. These vendors impose price discipline based upon their business models. For example, vendors that assess a surcharge on data they sell are able to refuse to offer proprietary products that their end users do not or will not purchase in sufficient numbers. Internet portals, such as Google, impose price discipline by providing only data that they believe will enable them to attract “eyeballs” that contribute to their advertising revenue. Similarly, television broadcasters and Web site and mobile device service providers will not elect to make available NYSE Trades or NYSE RRP unless they believe it will help them attract or maintain viewers/customers for their television, Web site, or mobile device offerings. All of these operate as constraints on pricing proprietary data products.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's broker-dealer customers view the costs of transaction executions and market data as a unified cost of doing business with the exchange.
Other market participants have noted that the liquidity provided by the order book, trade execution, core market data, and non-core market data are joint products of a joint platform and have
Analyzing the cost of market data product production and distribution in isolation from the cost of all of the inputs supporting the creation of market data and market data products will inevitably underestimate the cost of the data and data products. Thus, because it is impossible to obtain the data inputs to create market data products without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of both of obtaining the market data itself and creating and distributing market data products. It would be equally misleading, however, to attribute all of an exchange's costs to the market data portion of an exchange's joint products. Rather, all of an exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including 12 equities self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Competition among trading platforms can be expected to constrain the aggregate return that each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to pay rebates to attract orders, charge relatively low prices for market data products (or provide market data products free of charge), and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market data products, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering.
The fact that proprietary data from ATSs, BDs, and vendors can bypass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products. Second, because a single order or transaction report can appear in an SRO proprietary product, a non-SRO proprietary product, or both, the amount of data available via proprietary products is greater in size than the actual number of orders and transaction reports that exist in the marketplace. Because market data users can thus find suitable substitutes for most proprietary market data products, a market that overprices its market data products stands a high risk that users may substitute another source of market data information for its own.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20-minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data by highlighting the optional nature of proprietary products.
Those competitive pressure imposed by available alternatives are evident in the Exchange's proposed pricing. The Digital Media Enterprise Fees, which will permit broader distribution at the same price (in the case of NYSE Trades) or a lower price (in the case of NYSE RRP) than is available today, also are lower than the maximum fee for a similar product offered by another exchange
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid and inexpensive. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. Today, BATS and Direct Edge provide certain market data at no charge on their Web sites in order to attract more order flow, and use revenue rebates from resulting additional
Further, data products are valuable to certain end users only insofar as they provide information that end users expect will assist them or their customers in tracking prices and market trends. The Exchange believes that the Digital Media Enterprise Fees, which will permit wider distribution of last sale information at a lower price, may encourage more vendors to choose to offer NYSE Trades or NYSE RRP over multiple communication devices and thereby benefit public investors and other market participants by providing them with more convenient ways to track prices and market trends during the course of the trading day. The Exchange further believes that only vendors that expect to derive a reasonable benefit from redistributing NYSE Trades and NYSE RRP data will choose to become redistributors and pay the attendant monthly fees.
In establishing the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to the Exchange's products, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if its cost to purchase is not justified by the returns any particular vendor or subscriber would achieve through the purchase.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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)
The Exchange proposes to establish certain fees for the NYSE MKT Trades and NYSE MKT Realtime Reference Prices (“NYSE MKT RRP”) market data products. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to establish certain fees for the NYSE MKT Trades and NYSE MKT RRP market data products.
In 2010, the Securities and Exchange Commission (“SEC” or the “Commission”) approved the NYSE MKT Trades data feed and certain fees for it.
The Exchange currently charges NYSE MKT Trades data feed recipients an access fee of $750 per month, and a subscriber fee for professional subscribers of $10 per month per device, which may be counted, at the election of the vendor based on the number of “Subscriber Entitlements”
The Exchange also offers NYSE MKT RRP.
The Exchange currently charges a flat fee of $10,000 per month with no user-based fees for NYSE MKT RRP. For that fee, the vendor may provide NYSE MKT RRP to an unlimited number of the vendor's subscribers and customers without having to differentiate between professional subscribers and nonprofessional subscribers, without having to account for the extent of access to the data, and without having to report the number of users. As an alternative to the NYSE MKT RRP flat monthly fee, the Exchange offers an alternative fee of $.004 for each real-time reference price that a vendor disseminates to its customers (“per query fee”), which is capped at $10,000 per month, the same amount as the flat fee. In order to take advantage of the per-query fee, a vendor must document that it has the ability to measure accurately the number of queries and must have the ability to report aggregate query quantities on a monthly basis. The per-query fee is imposed on vendors, not end-users. There are currently no fees for NYSE MKT RRP that are specifically designed for television or mobile device distribution.
NYSE MKT RRP was created to allow distribution of a last sale data product for reference purposes on Web sites at a low cost that would facilitate distribution to millions of retail investors and relieve vendors of administrative burdens.
The Exchange recently created a new version of NYSE MKT Trades, NYSE MKT Trades Digital Media, which will allow market data vendors, television broadcasters, Web site and mobile device service providers, and others to distribute the product to their customers for viewing via television, Web site, and mobile devices.
The Exchange also will offer NYSE MKT RRP Digital Media so that NYSE MKT RRP will be available for distribution in the same manner as NYSE MKT Trades Digital Media, via television, Web site, and mobile devices. The data elements of NYSE MKT RRP (last sale price, time, and stock summary message) will remain unchanged from today's NYSE MKT RRP product offering.
The Exchange has established these Digital Media products in recognition of
The NYSE MKT Trades Digital Media Enterprise Fee will be $5,000 per month, and the NYSE MKT RRP Digital Media Enterprise Fee will be $2,500 per month. The Exchange notes that the NYSE MKT RRP Digital Media Enterprise Fee is lower than NYSE MKT Trades Digital Media Enterprise Fee because it does not include trade size data. Vendors that pay these fees will not be required to pay an access fee, but they will be required to pay the redistribution fees as described below. As with the current NYSE MKT RRP product and the Broadcast Fee, a vendor paying the Digital Media Enterprise Fee may deliver the NYSE MKT Trades and NYSE MKT RRP data to an unlimited number of television, Web site, and mobile device viewers without having to differentiate between professional subscribers and nonprofessional subscribers, without having to account for the extent of access to the data, and without having to report the number of users.
For NYSE MKT Trades, the television-only $5,000 Broadcast Fee option will no longer be available. For NYSE MKT RRP, web-only distribution for $10,000 per month will no longer be available. The Exchange does not believe that any customers would elect these options in light of the broader distribution offered with the new Digital Media Enterprise Fees and the substantially lower price for NYSE MKT RRP Digital Media.
The Exchange will continue to offer the $.004 per query fee for NYSE MKT RRP to any vendor that so chooses, but the Exchange proposes to reduce the cap to $2,500, the same amount as the NYSE MKT RRP Digital Media Enterprise Fee. Vendors and subscribers receiving NYSE MKT Trades via traditional distribution methods, e.g. a Bloomberg terminal or a broker-dealer customer Web site that permits order entry, will not be eligible for Digital Media Enterprise Fees and will continue to pay NYSE MKT Trades basic fees.
The Exchange also proposes to charge a redistribution fee of $750 per month for NYSE MKT Trades and $1,500 per month for NYSE MKT RRP.
The Digital Media Enterprise Fees will be operative on April 1, 2013 and the redistribution fees will be operative on May 1, 2013.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed NYSE MKT Trades Digital Media Enterprise Fee of $5,000 per month and NYSE MKT RRP Digital Media Enterprise Fee of $2,500 per month are reasonable because they will offer a means for vendors to more widely distribute NYSE MKT Trades and NYSE MKT RRP data to investors for informational purposes at the same cost (in the case of NYSE MKT Trades) or a lower cost (in the case of NYSE MKT RRP) than is available today. Currently, NYSE MKT Trades can be distributed via television for a $5,000 monthly fee, but that fee does not include Web site or mobile device distribution. NYSE MKT RRP can be distributed over Web sites for a $10,000 monthly fee, but that fee does not include television or mobile device distribution. The Exchange believes that the proposed Digital Media Enterprise Fees are reasonable because in certain instances they are less than the fees charged by another exchange for a similar product.
The proposed Digital Media Enterprise Fees also are equitable and not unfairly discriminatory because they will be applied uniformly to market data vendors, television broadcasters, Web site and mobile service providers, or any other person that distributes the data on the basis described in this filing. The Exchange believes that it is appropriate to offer a lower cost fee structure that is designed to facilitate broader media distribution of the NYSE MKT Trades and NYSE MKT RRP data for informational purposes because it will benefit investors generally. Moreover, the value of the data distributed generally in the media for informational purposes differs from when it is distributed in manner in which it can immediately be utilized for trading decisions. The Exchange believes that the data is more valuable in that latter context, and as such, it is fair and equitable to have differential pricing for it.
In establishing the Digital Media Enterprise Fees, the Exchange recognizes that there is demand for a more seamless and easier-to-administer data distribution model that takes into account the expanded variety of media and communication devices that investors utilize today. As is the case with the current NYSE MKT RRP product and the Broadcast Fee, the Exchange believes that the Digital Media Enterprise Fee will be easy to administer because vendors that purchase it will not have to differentiate between professional subscribers and nonprofessional subscribers, account for the extent of access to the data, or report the number of users; this is a significant reduction in vendors' administrative burdens and is a significant value to vendors. For example, a television broadcaster could display the NYSE MKT Trades Digital Media data during market-related television programming and on its Web site and allow its
The proposed redistribution fees also are reasonable because they are comparable to other redistribution fees charged by the Exchange as well as other exchanges.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system `evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed' and that the SEC wield its regulatory power `in those situations where competition may not be sufficient,' such as in the creation of a `consolidated transactional reporting system.'
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards.
As the
For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory.
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. An exchange's ability to price its proprietary data feed products is constrained by (1) Actual competition for the sale of proprietary market data products, (2) the existence of inexpensive real-time consolidated data and free delayed consolidated data, and (3) the inherent contestability of the market for proprietary last sale data and the joint product nature of exchange platforms.
The market for proprietary data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings and order flow and sales of market data itself, providing virtually limitless opportunities for entrepreneurs who wish to compete in any or all of those areas, including producing and distributing their own market data. Proprietary data products are produced and distributed by each individual exchange, as well as other entities, in a vigorously competitive market.
Competitive markets for listings, order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. The U.S. Department of Justice also has acknowledged the aggressive competition among exchanges, including for the sale of proprietary market data itself. In announcing that the bid for NYSE Euronext by NASDAQ OMX Group Inc. and IntercontinentalExchange Inc. had been abandoned, Assistant Attorney General Christine Varney stated that exchanges “compete head to head to offer real-time equity data products. These data products include the best bid and offer of every exchange and information on each equity trade, including the last sale.”
It is common for broker-dealers to further exploit this recognized competitive constraint by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. As a 2010 Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume * * * dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
In addition, in the case of products that are distributed through market data vendors, the market data vendors themselves provide additional price discipline for proprietary data products because they control the primary means of access to certain end users. These vendors impose price discipline based upon their business models. For example, vendors that assess a surcharge on data they sell are able to refuse to offer proprietary products that their end users do not or will not purchase in sufficient numbers. Internet portals, such as Google, impose price discipline by providing only data that they believe will enable them to attract “eyeballs” that contribute to their advertising revenue. Similarly, television broadcasters and Web site and mobile device service providers will not elect to make available NYSE MKT Trades or NYSE MKT RRP unless they believe it will help them attract or maintain viewers/customers for their television, Web site, or mobile device offerings. All of these operate as constraints on pricing proprietary data products.
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade executions are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platforms where the order can be posted, including the execution fees, data quality, and price and distribution of their data products. The more trade executions a platform does, the more valuable its market data products become.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, an exchange's broker-dealer customers view the costs of transaction executions and market data as a unified cost of doing business with the exchange.
Other market participants have noted that the liquidity provided by the order book, trade execution, core market data, and non-core market data are joint products of a joint platform and have common costs.
Analyzing the cost of market data product production and distribution in isolation from the cost of all of the inputs supporting the creation of market data and market data products will inevitably underestimate the cost of the data and data products. Thus, because it is impossible to obtain the data inputs to create market data products without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of both of obtaining the market data itself and creating and distributing market data products. It would be equally misleading, however, to attribute all of an exchange's costs to the market data portion of an exchange's joint products. Rather, all of an exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including 12 equities self-regulatory organization (“SRO”) markets, as well as internalizing broker-dealers (“BDs”) and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Competition among trading platforms can be expected to constrain the aggregate return that each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. For example, some platforms may choose to pay rebates to attract orders, charge relatively low prices for market data products (or provide market data products free of charge), and charge relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower rebates (or no rebates) to attract orders, setting relatively high prices for market data products, and setting relatively low prices for accessing posted liquidity. In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering.
The large number of SROs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including but not limited to the Exchange, NYSE, NYSE Arca, NASDAQ OMX, BATS, and Direct Edge.
The fact that proprietary data from ATSs, BDs, and vendors can bypass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products. Second, because a single order or transaction report can appear in an SRO proprietary
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available at no cost with a 15- or 20-minute delay. Because consolidated data contains marketwide information, it effectively places a cap on the fees assessed for proprietary data (such as last sale data) that is simply a subset of the consolidated data. The mere availability of low-cost or free consolidated data provides a powerful form of pricing discipline for proprietary data products that contain data elements that are a subset of the consolidated data by highlighting the optional nature of proprietary products.
Those competitive pressure imposed by available alternatives are evident in the Exchange's proposed pricing. The Digital Media Enterprise Fees, which will permit broader distribution at the same price (in the case of NYSE MKT Trades) or a lower price (in the case of NYSE MKT RRP) than is available today, also are lower than the maximum fee for a similar product offered by another exchange
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid and inexpensive. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TrackECN, BATS Trading and Direct Edge. Today, BATS and Direct Edge provide certain market data at no charge on their Web sites in order to attract more order flow, and use revenue rebates from resulting additional executions to maintain low execution charges for their users.
Further, data products are valuable to certain end users only insofar as they provide information that end users expect will assist them or their customers in tracking prices and market trends. The Exchange believes that the Digital Media Enterprise Fees, which will permit wider distribution of last sale information at either the same or a lower price, may encourage more vendors to choose to offer NYSE MKT Trades or NYSE MKT RRP over multiple communication devices and thereby benefit public investors and other market participants by providing them with more convenient ways to track prices and market trends during the course of the trading day. The Exchange further believes that only vendors that expect to derive a reasonable benefit from redistributing NYSE MKT Trades and NYSE MKT RRP data will choose to become redistributors and pay the attendant monthly fees.
In establishing the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to the Exchange's products, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if its cost to purchase is not justified by the returns any particular vendor or subscriber would achieve through the purchase.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): International Bear ETF. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares:
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. In addition, Commentary .06 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the open-end fund's portfolio.
According to the Registration Statement, the Fund's investment objective will be to seek capital appreciation through short sales of international equity securities.
According to the Registration Statement, the Sub-Adviser will seek to achieve the Fund's investment objective by short selling a portfolio of foreign equity securities, U.S. exchange-listed and traded equity securities of non-U.S. organizations, and American Depositary Receipts (“ADRs”), as described in more detail herein. The Fund may invest in such equity securities of any capitalization range and in any market sector at any time as necessary to seek to achieve the Fund's investment objective. Under normal circumstances,
According to the Registration Statement, the Fund will be actively managed and thus will not seek to replicate the performance of a specified passive index of securities. Instead, it will use an active investment strategy to seek to meet its investment objective. The Sub-Adviser, subject to the oversight of the Adviser and the Board of Trustees, will have discretion on a daily basis to manage the Fund's portfolio in accordance with the Fund's investment objective and investment policies. The Sub-Adviser will utilize various fundamental and technical research techniques in security selection. In selecting short positions, the Sub-Adviser will seek to identify securities that may be overvalued and due for capital depreciation. Once a position is included in the Fund's portfolio, it will be subject to regular fundamental and technical risk management review.
According to the Registration Statement, the equity securities in which the Fund may invest consist of common stocks, preferred stocks, warrants to acquire common stock, securities convertible into common stock, investments in master limited partnerships, rights and REITs. The Fund may transact in equity securities traded in the U.S. on registered exchanges or, in the case of ADRs, the over-the-counter market. The Fund may short sell up to 10% of its total assets in unsponsored ADRs. The Fund may invest in the equity securities of foreign issuers, including the securities of foreign issuers in emerging market countries.
According to the Registration Statement, the Fund may invest in issuers located outside the United States directly, or in financial instruments that are indirectly linked to the performance of foreign issuers. Examples of such financial instruments include ADRs, Global Depositary Receipts (“GDRs”), European Depositary Receipts (“EDRs”), International Depository Receipts (“IDRs”), “ordinary shares,” and “New York shares.”
According to the Registration Statement, the Fund may engage regularly in short sales transactions in which the Fund sells a security it does not own. To complete such a transaction, the Fund must borrow or otherwise obtain the security to make delivery to the buyer. The Fund then is obligated to replace the security borrowed by purchasing the security at the market price at the time of replacement. The price at such time may be more or less than the price at which the security was sold by the Fund.
According to the Registration Statement, until the security is replaced, the Fund will be required to pay to the lender amounts equal to any dividends or interest, which accrue during the period of the loan. To borrow the security, the Fund also may be required to pay a premium, which would increase the cost of the security sold. The Fund may also use repurchase agreements to satisfy delivery obligations in short sales transactions. The proceeds of the short sale will be retained by the broker, to the extent necessary to meet the margin
According to the Registration Statement, until the Fund closes its short position or replaces the borrowed security, the Fund will: (a) Maintain a segregated account containing cash or liquid securities at such a level that (i) the amount deposited in the account plus the amount deposited with the broker as collateral will equal the current value of the security sold short and (ii) the amount deposited in the segregated account plus the amount deposited with the broker as collateral will not be less than the market value of the security at the time the security was sold short; or (b) otherwise cover the Fund's short position. The Fund may use up to 100% of its portfolio to engage in short sales transactions and collateralize its open short positions.
While the Fund will invest at least 80% of its assets as described above, the Fund may invest in certain other investments, as described below. According to the Registration Statement, the Fund may invest in exchange-traded funds (“ETFs”) registered pursuant to the 1940 Act, exchange-traded notes (“ETNs”),
According to the Registration Statement, on a day-to-day basis, the Fund may hold U.S. government securities,
According to the Registration Statement, to respond to adverse market, economic, political or other conditions, the Fund may refrain from short selling and increase its investment in U.S. government securities, short-term high quality fixed income securities, money market instruments, overnight and fixed-term repurchase agreements, cash and cash equivalents with maturities of one year or less. The Fund may hold little or no short positions for extended periods, depending on the Sub-Adviser's assessment of market conditions.
According to the Registration Statement, the Fund may invest in several different types of investment companies from time to time, including mutual funds and business development companies (“BDCs”),
According to the Registration Statement, the Fund may invest, under normal circumstances, up to 10% of its net assets in debt securities. Debt securities include a variety of fixed income obligations, including, but not limited to, corporate debt securities, government securities, municipal securities, convertible securities, and mortgage-backed securities. Debt securities include investment-grade securities, non-investment-grade securities, and unrated securities. The Fund may invest in non-investment-grade securities.
The Fund may enter into repurchase agreements with financial institutions, which may be deemed to be loans.
According to the Registration Statement, the Fund may invest directly and indirectly in foreign currencies.
According to the Registration Statement, the Fund, in the ordinary course of business, may purchase securities on a when-issued or delayed-delivery basis (
According to the Registration Statement, the Fund may not (i) with respect to 75% of its total assets, purchase securities of any issuer (except securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities or shares of investment companies) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer.
The Fund may not invest 25% or more of its total assets in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries. The Fund will not invest 25% or more of its total assets in any investment company that so concentrates. This limitation does not apply to investments in securities issued or guaranteed by the U.S. Government, its agencies or instrumentalities, or shares of investment companies.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities (calculated at the time of investment), including Rule 144A securities. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid securities. Illiquid securities include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
According to the Registration Statement, the Fund will seek to qualify for treatment as a Regulated Investment Company under the Internal Revenue Code.
The Fund will not invest in options contracts, futures contracts or swap agreements. The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
The Fund will calculate its NAV by: (i) Taking the current market value of its total assets; (ii) subtracting any liabilities; and (iii) dividing that amount by the total number of Shares owned by shareholders.
The Fund will calculate NAV once each business day as of the regularly scheduled close of trading on the New York Stock Exchange, LLC (the “NYSE”) (normally, 4:00 p.m., Eastern Time).
In calculating NAV, the Fund generally will value its investment portfolio at market price. If market prices are unavailable or the Fund believes that they are unreliable, or when the value of a security has been materially affected by events occurring after the relevant market closes, the Fund will price those securities at fair value as determined in good faith using methods approved by the Trust's Board of Trustees.
According to the Registration Statement, the Fund will issue and redeem Shares on a continuous basis at the NAV only in a large specified number of Shares called a “Creation Unit.” The Shares of the Fund will be “created” at their NAV by market makers, large investors and institutions only in block-size Creation Units of at least 25,000 Shares.
The Trust will issue and sell Shares of the Fund only in Creation Units on a continuous basis through the Distributor, at their NAV next determined after receipt, on any business day, for an order received in proper form. Creation Units of the Fund will be sold only for cash. Creation Units will be sold at the NAV next computed, plus a transaction fee. All orders to create Creation Units must be placed for one or more Creation Unit size aggregations of Shares. All orders to create must be received by the Distributor no later than 3:00 p.m. Eastern Time, an hour before the close of the regular trading session on the NYSE (ordinarily 4:00 p.m. Eastern Time) on the date such order is placed in order for the creation of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form. All purchases of the Fund will be effected through a transfer of cash directly through DTC.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Administrator and only on a business day. The Trust will not redeem Shares in amounts less than Creation Units. The redemption proceeds for a Creation Unit of the Fund will consist solely of cash in an amount equal to the NAV of the Shares being redeemed, as next determined after receipt of a request in proper form, less a redemption transaction fee. An order to redeem Creation Units will be deemed received on the transmittal date if such order is received by the Administrator not later than 3:00 p.m. Eastern Time, on such transmittal date; such order will be effected based on the NAV of the Fund as next determined.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Adviser will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Fund's Web site (
On a daily basis, the Fund's Web site will disclose for each portfolio security and other financial instrument of the Fund the following information: ticker symbol (if applicable), name of security and financial instrument, number of shares and dollar value of securities and financial instruments held in the portfolio, and percentage weighting of the security and financial instrument in the portfolio. The Web site information will be publicly available at no charge.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations. FINRA, on behalf of the Exchange, will communicate as
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern Time each trading day.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. Except for up to 10% of ADRs, which may be unsponsored, the Fund will invest only in equity securities (including financial instruments that are linked to the performance of foreign issuers),
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Exchange Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of additional types of actively-managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 1, 2013, New York Stock Exchange LLC (“NYSE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the Exchange's proposal, as described above, and the comments received.
Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 31, 2013, NASDAQ OMX PHLX LLC (“PHLX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 1092(f)(ii) to permit the nullification of trades involving catastrophic errors in certain situations. Specifically, the proposed rule would enable a non-broker dealer customer
Under the current rule, and under the rules of all options exchanges, all transactions that qualify as a catastrophic error are adjusted, not nullified. The purpose of the proposal is to help market participants better manage their risk by addressing the situation where, under current rules, a trade can be adjusted to a price outside of a customer's limit price, forcing the customer to spend additional money for a trade that it may not be able to afford. The Exchange notes that this proposal is a fair way to address the issue of a customer's limit price while balancing the competing interests of certainty that trades stand with the policy concerns about dealing with true errors.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act
The Commission received one comment letter expressing support for the proposed rule change.
The Exchange notes that the proposed rule change is not unfairly discriminatory, even though it offers non-broker dealer customers a choice not provided to other market participants. Specifically, the Exchange notes that the existing obvious error rules differentiate among market participants.
The Commission notes that in considering the proposed rule change the Exchange has weighed the benefits of certainty to non-broker-dealer customers that their limit price will not be violated against the costs of increased uncertainty to market makers and broker-dealers that their trades may be nullified instead of adjusted depending on whether the other party to the transaction is or is not a customer.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 21, 2013, NYSE Euronext, on behalf of New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC (“NYSE MKT”), and NYSE Arca, Inc. (“NYSE Arca”), and the following parties to the National Market System Plan: BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, the Nasdaq Stock Market LLC, and National Stock Exchange, Inc. (collectively with NYSE, NYSE MKT, and NYSE Arca, the “Participants”), filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”)
The Participants filed the Plan in order to create a market-wide limit up-limit down mechanism that is intended to address extraordinary market volatility in “NMS Stocks,” as defined in Rule 600(b)(47) of Regulation NMS under the Act.
As set forth in Section V of the Plan, the price bands would consist of a Lower Price Band and an Upper Price Band for each NMS Stock.
The Processors would also calculate a Pro-Forma Reference Price for each NMS Stock on a continuous basis during Regular Trading Hours. If a Pro-Forma Reference Price did not move by one percent or more from the Reference Price in effect, no new price bands would be disseminated, and the current Reference Price would remain the effective Reference Price. If the Pro-Forma Reference Price moved by one percent or more from the Reference Price in effect, the Pro-Forma Reference Price would become the Reference Price, and the Processors would disseminate new price bands based on the new Reference Price. Each new Reference Price would remain in effect for at least 30 seconds.
When one side of the market for an individual security is outside the applicable price band, the Processors would be required to disseminate such National Best Bid
These limit up-limit down requirements would be coupled with trading pauses
Under the Plan, all trading centers would be required to establish, maintain, and enforce written policies and procedures reasonably designed to prevent the display of offers below the Lower Price Band and bids above the Upper Price Band for an NMS Stock. The Processors would disseminate an offer below the Lower Price Band or bid above the Upper Price Band that nevertheless inadvertently may be submitted despite such reasonable policies and procedures, but with an appropriate flag identifying it as non-executable; such bid or offer would not be included in National Best Bid or National Best Offer calculations. In addition, all trading centers would be required to develop, maintain, and enforce policies and procedures reasonably designed to prevent trades at prices outside the price bands, with the exception of single-priced opening, reopening, and closing transactions on the Primary Listing Exchange.
As stated by the Participants in the Plan, the limit up-limit down mechanism is intended to reduce the negative impacts of sudden, unanticipated price movements in NMS Stocks,
The Third Amendment proposed two changes to the Plan. First, the Participants propose to amend Section VI.A.1 of the Plan to clarify that odd-lot sized transactions are not exempt from the limitation on trades provision of Section VI.A.1.
The Commission received one comment letter in favor of the Third Amendment to the Plan.
The commenter further stated that one of the key drivers of the Plan is the protection of retail investors.
After careful review, the Commission finds that Third Amendment is consistent with the requirements of the Act and the rules and regulations thereunder.
The Third Amendment would make two changes to the Plan. The first change amends the Plan to specify that odd-lot transactions will be subject to the limitation on trades provision of Section VI.A.1. As such, the requirement that trading centers in NMS stocks establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trades at prices that are below the Lower Price Band or above the Upper Price Band for an NMS stock will apply to odd-lot transactions. The Commission notes that this change could reduce the ability of market participants to engage in odd-lot transactions to circumvent the requirements of the Plan, thereby further protecting investors. The Commission also notes that the change is widely anticipated and supported in the industry, as it would reduce compliance burdens because firms would not need to code specially for odd lots.
The second change would reconcile an inconsistency in the current rule text of the Plan. The current language states that the price bands shall not be calculated and disseminated less than 30 minutes before the end of the trading day, and that trading shall not enter a Limit State less than 25 minutes before the end of the trading day. Under this formulation, there would be no price bands after 3:30 p.m. ET, although a stock could still enter a Limit State until 3:35 p.m. ET. This is internally inconsistent, since the price bands must be calculated and disseminated in order for the Limit State to be triggered. The Participants proposed to amend the Plan to state that no price bands shall be calculated and disseminated and, therefore, trading shall not enter a Limit State, less than 30 minutes before the end of the trading day. The Commission believes that this change provides further clarity on the operation of the limit up-limit down mechanism during Phase I of the Plan.
Therefore, the Commission believes that the Third Amendment to the Plan is consistent with Section 11A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act” or “Exchange Act”)
The Exchange proposes to amend Rule 11.24(k) regarding routing of orders under the National Market System Plan established pursuant to Rule 608 of the Exchange Act, to address extraordinary market volatility (the “Regulation NMS Plan to Address Extraordinary Market Volatility” or “Plan”),
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
Since May 6, 2010, when the markets experienced excessive volatility in an abbreviated time period,
The Plan is designed to prevent trades in NMS Stocks from occurring outside of specified Price Bands.
In sum, Exchange Rule 11.24, Limit Up-Limit Down, addresses the treatment of certain orders to prevent executions outside the Price Bands.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Exchange Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. All national securities exchanges are required to establish, maintain, and enforce policies and procedures reasonably designed to comply with the requirements of the Plan. Every member of those exchanges, including ETP Holders of the Exchange, are subject to those procedures and prevented from executing an order in an NMS Stock outside of the Price Bands prescribed by the Plan. Therefore, the Exchange believes the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments on the proposed rule change were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
To enhance its ability to meet its liquidity requirements, NSCC is proposing to amend its Rules & Procedures (“Rules”) to provide for a supplemental liquidity funding obligation, as described below.
In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
As a central counterparty (“CCP”), NSCC occupies an important role in the securities settlement system by interposing itself between counterparties to financial transactions, thereby reducing the risk faced by its Members and contributing to global financial stability. Further, pursuant to the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”),
A substantial proportion of the liquidity needed by NSCC is attributable to the exposure presented by those unaffiliated Members and Affiliated Families that regularly incur the largest gross settlement debits over a settlement cycle during trading activity on business days other than periods coinciding with quarterly triple options expiration dates (“Regular Activity Periods”), as well as during times of increased trading activity that arise around quarterly triple options expiration dates (“Options Expiration Activity Periods”).
With the goal of ensuring that NSCC has sufficient liquidity to meet its obligations during Regular Activity Periods, as well as during Options Expiration Activity Periods, it is appropriate that those unaffiliated Members and Affiliated Families provide additional liquidity to NSCC. Under proposed Rule 4(A), this will take the form of supplemental liquidity deposits to the Clearing Fund (i) in an amount based on the largest liquidity need NSCC would have in the event of the default of an unaffiliated Member or Affiliated Family during a Regular Activity Period (“Regular Activity Supplemental Deposit”), and (ii) an additional amount to cover the largest liquidity need NSCC would have in the event of the default of an unaffiliated Member or Affiliated Family during an Options Expiration Activity Period (“Special Activity Supplemental Deposit”) (collectively with Regular Activity Supplemental Deposit, “Supplemental Deposit”).
The obligation of an unaffiliated Member or the Members of an Affiliated Family to make a Regular Activity Supplemental Deposit (“Regular Activity Liquidity Obligation”) or a Special Activity Supplemental Deposit (“Special Activity Liquidity Obligation”) would be imposed on the thirty (30) unaffiliated Members and/or Affiliated Families who generate the largest aggregate liquidity needs over a settlement cycle that would apply in the event of a closeout (i.e., over a period from date of default through the following three (3) settlement days), based upon a lookback period. The Regular Activity Liquidity Obligation of an unaffiliated Member or the Members of an Affiliated Family to make a Regular Activity Supplemental Deposit will be reduced by any liquidity such Members or their affiliates may provide in the form of commitments under NSCC's committed liquidity facility (“Credit Facility”).
The calculations for both the Regular Activity Liquidity Obligation and the Special Activity Liquidity Obligation are designed so that NSCC has adequate liquidity resources to enable it to settle transactions, notwithstanding the default of an unaffiliated Member and/or Affiliated Family during Regular Activity Periods, as well as during Options Expiration Activity Periods. The Liquidity Obligations imposed on Affiliated Families would be allocated among the Family Members in proportion to the liquidity risk (or peak exposure) they present to NSCC.
As both a CCP and a designated SFMU, NSCC adheres to strict risk management processes that are regularly reviewed against applicable regulatory and industry standards. This includes the securities laws and rulemaking promulgated by the Commission, such as Rule 17Ad-22(b)(3), which requires registered clearing agencies to maintain sufficient financial resources to withstand, at a minimum, a default by the participant (defined in Rule 17Ad-22(a)(3) to include a participant family) to which it has the largest exposure.
NSCC is also mindful of the standards set forth in the Principles for Financial Market Infrastructures (“PFMI”) of the Committee on Payment and Settlement Systems and the Technical Committee of the International Organization of Securities Commissions. Key Consideration 4 of PFMI Principle 7, addressing liquidity risk, provides that a CCP should maintain sufficient liquidity resources to meet its payment obligations under a wide range of stress scenarios including the default of the participant and its affiliates that would generate the largest aggregate payment obligation to the CCP.
NSCC believes the proposed rule change should assist NSCC in securing adequate liquidity resources to meet its settlement obligations during both Regular Activity Periods and Options Expiration Activity Periods, notwithstanding the default of one of its unaffiliated Members and/or Affiliated Families that pose the largest aggregate liquidity need over the four day settlement cycle.
Every business day NSCC measures the liquidity obligations of its unaffiliated Members and Affiliated Families by taking the sum of their purchase obligations on that day in securities that are eligible for processing in NSCC's Continuous Net Settlement (“CNS”) system and for the following three (3) settlement days (which equates to the period from the date of default through the remaining settlement cycle). NSCC then takes into account certain adjustments, assumptions and offsets, and assumes the occurrence of certain stressed conditions.
The stressed market conditions NSCC assumes in this calculation include, but are not limited to, (i) the simultaneous default, without prior warning, of all Members of the Affiliated Family with the largest aggregate four (4) day settlement obligations; (ii) that on the day of such default, the Members of such Affiliated Family are trading at peak historical trading levels and no market participants curtail their activity with any Members of the Family; and (iii) leading up to or after the default, there is no increased volatility in the market that would result in a significant increase in Clearing Fund requirements, mark-to-market collections, or other risk-based premiums that would have the result of increasing NSCC's liquidity resources. NSCC believes that these conditions simulate the impact of significant credit risk and market risk stresses on NSCC's liquidity need across both Regular Activity Periods and Options Expiration Activity Periods.
NSCC then identifies the largest Member liquidity need on each day and determines if the available liquidity resources, consisting of the aggregate Required Deposits, any Supplemental Deposits, and any Prefund Deposits in the Clearing Fund on the day the liquidity need was observed, are adequate to cover that liquidity need, or if there is a calculated liquidity shortfall under the assumed stressed market conditions described above.
The Regular Activity Supplemental Deposits will be calculated to address those daily liquidity shortfalls that fall on any business day included in a Regular Activity Period (“Regular Activity Supplemental Liquidity Need”), and the Special Activity Supplemental Deposits will be calculated to address those additional daily liquidity shortfalls that fall on any business day included in an Options Expiration Activity Period (“Special Activity Supplemental Liquidity Need”).
Under this proposal, every six (6) months, NSCC will determine (i) its largest Regular Activity Supplemental Liquidity Need (“Regular Activity Peak Liquidity Need”) over the preceding twelve (12) month period and (ii) those unaffiliated Members and Affiliated Families that presented the largest aggregate liquidity exposures to NSCC over the preceding six-month period. NSCC will then rank the aggregate liquidity exposures presented by the
The first of these semi-annual calculations of the Regular Activity Liquidity Obligations will be made to coincide with NSCC's annual renewal of the Credit Facility each year (“Regular Activity First Tranche Liquidity Obligations”) and the second calculation each year will be made six (6) months thereafter (“Regular Activity Second Tranche Liquidity Obligations”).
Special Activity Supplemental Deposits are deposits made in addition to Regular Activity Supplemental Deposits, designed to cover the additional liquidity exposure that occurs over an Options Expiration Activity Period. Each calendar quarter, on a day that is no later than the fifth business day preceding any Options Expiration Activity Period, NSCC will also determine (i) its largest Special Activity Supplemental Liquidity Need (“Special Activity Peak Liquidity Need”) over the preceding twenty-four (24) months (i.e., the eight prior Options Expiration Activity Periods, or a longer lookback period as determined by NSCC) and (ii) those unaffiliated Members and Affiliated Families that presented the largest aggregate Special Activity liquidity exposures to NSCC over the same period. NSCC will then rank the aggregate Special Activity liquidity exposures presented by such unaffiliated Members and/or Affiliated Families (referred to as their respective “Special Activity Peak Liquidity Exposures”) during the lookback period to determine which thirty (30) such unaffiliated Members and Affiliated Families presented the largest respective Special Activity Peak Liquidity Exposures within the lookback period. NSCC's Special Activity Supplemental Peak Need will then be allocated to these thirty (30) Members and Affiliated Families (“Special Activity Liquidity Providers”), in proportion to the Special Activity Peak Liquidity Exposures they presented to NSCC during the lookback period.
With the goal of ensuring that NSCC's liquidity resources remain adequate between the specified calculation dates, if either current liquidity needs increase significantly over those liquidity needs used for the regular calculations (or Special Activity Calculations), or the amount of liquidity resources is significantly reduced, the proposal permits NSCC to make interim recalibrations and liquidity calls: if between the semi-annual calculations of the Regular Activity Liquidity Obligations, the aggregate amount of Regular Activity Supplemental Deposits decreases by an amount that exceeds a threshold as determined by NSCC (whether as a result of the retirement of Members, a cease to act, or otherwise), then NSCC will recalculate its Regular Activity Peak Liquidity Need and allocate it among the unaffiliated Members and Affiliated Families that then comprise the applicable thirty (30) largest Regular Activity Liquidity Providers, in the same manner such calculations and allocations would be made at each semi-annual calculation of Regular Activity Liquidity Obligations.
Conversely, if on any business day between regular semi-annual calculation dates NSCC observes an increase in its Regular Activity Liquidity Needs that exceeds a predetermined threshold amount, or between the dates on which it calculates Special Activity Liquidity Obligations it observes an increase in its Special Activity Liquidity Needs that exceeds a predetermined threshold amount, NSCC shall be entitled to call for an additional deposit from the Member whose increase in activity levels caused (or was the primary cause of) such increased liquidity need (“Liquidity Call”). Liquidity Call amounts will be treated as a part of that Member's Regular Activity Supplemental Deposit or Special Activity Supplemental Deposit, as applicable.
Each Regular Activity Liquidity Provider will be obligated to contribute to the Clearing Fund, no later than five (5) business days following the effective date of the renewal of the Credit Facility, the amount of its Regular Activity Liquidity Obligation, reduced (i) dollar for dollar by amounts committed to the Credit Facility by that Regular Activity Liquidity Provider or its affiliates, and (ii) ratably (among all Regular Activity Liquidity Providers) by amounts committed to the Credit Facility by the lenders party thereto which are not Members or their affiliates.
If the amount of the Regular Activity Second Tranche Liquidity Obligation of an unaffiliated Member or Affiliated Family exceeds its Regular Activity First Tranche Liquidity Obligation (including because the unaffiliated Member or Affiliated Family had no Regular Activity First Tranche Liquidity Obligation), such Regular Activity Liquidity Provider will be obligated to contribute its calculated amount within three (3) business days following the final notice of such amount. If the Regular Activity Second Tranche Liquidity Obligation of an unaffiliated Member or Affiliated Family is less than its Regular Activity First Tranche Liquidity Obligation, then it shall be entitled to a refund of the amount of the difference, provided, that nothing shall reduce or in any way affect any commitment or other obligation of any Member or its affiliate under the Credit Facility.
Promptly after calculation of the Special Activity Liquidity Obligations, NSCC will inform Special Activity Liquidity Providers of their Special Activity Liquidity Obligations, and those Special Activity Liquidity Providers must make their Special Activity Supplemental Deposits to the Clearing Fund in cash no later than the close of business on the second business day preceding the applicable Options Expiration Activity Period (i.e., generally the Wednesday before the options expiration date).
However, if a Special Activity Liquidity Provider anticipates that its Special Activity Peak Liquidity Exposure at any time during an Options Expiration Activity Period will be greater than the amount calculated by NSCC, it may, no later than the first business day of that Options Expiration Activity Period, make an additional cash deposit to the Clearing Fund that is in excess of its Required Deposit and is designated as a “Special Activity Prefund Deposit.” Members may also, at their discretion, deposit to the Clearing Fund amounts in excess of their Required Deposit that are designated “Regular Activity Prefund Deposits.” Because Prefund Deposits are included in calculating available liquidity resources, they thus reduce NSCC's Supplemental Liquidity Needs, as well as the depositing Member's Regular
As noted above under “Interim Adjustments and Calls,” to the extent that NSCC observes a peak shortfall that breaches predetermined thresholds at any time throughout the year, the amount of the shortfall will be allocated solely to the Member responsible for the activity that caused the shortfall. The liquidity called as a result of that shortfall will be held until the next applicable reset period. This is intended to incentivize Members to make Prefund Deposits to avoid Liquidity Calls, since Prefund Deposits are refunded after the period of activity for which they were made, while Liquidity Calls are retained until the next regular calculation of the applicable supplemental deposit.
All Regular Activity Supplemental Deposits (other than Regular Activity Prefund Deposits), as adjusted semi-annually, shall remain on deposit in the Clearing Fund, and may not be withdrawn by the applicable Member until five (5) business days after the next following maturity date of the Credit Facility (generally, for a period of 364 days). Regular Activity Prefund Deposits shall remain on deposit in the Clearing Fund and may not be withdrawn by the applicable Member until seven (7) days after they are deposited. All Special Activity Supplemental Deposits (including Special Activity Prefund Deposits) may be refunded to the Special Activity Liquidity Providers seven (7) business days after the end of the applicable Options Expiration Activity Period.
Any amounts deposited in response to a Liquidity Call for an additional Regular Activity Supplemental Deposit must remain in the Clearing Fund until the next semi-annual calculations of the Regular Activity Liquidity Obligations, and any amounts deposited in response to a Liquidity Call for an additional Special Activity Supplemental Deposit must remain in the Clearing Fund until two (2) business days preceding the next Options Expiration Activity Period.
A Member's Supplemental Deposit will be made in addition to its Required Deposit to the Clearing Fund, and any other deposit of any such Member to the Clearing Fund.
A Member's Supplemental Deposit will be considered part of that Member's actual deposit to the Clearing Fund, and, as such, may be used to satisfy obligations of that Member to NSCC, in the same manner as provided in Section 3 of Rule 4. Therefore, if the Member who contributed the Supplemental Deposit defaults, NSCC will be permitted to use its entire actual deposit, which will include the amount of its Supplemental Deposit, to satisfy any loss resulting from closing out that Member's open positions.
A Member's Supplemental Deposit will not, however, constitute part of its Required Deposit under NSCC's Rule 4, and, as such, will not be used, pursuant to Section 4 of Rule 4, to satisfy the obligations of any other Member of NSCC that has defaulted in the performance of its obligations to NSCC. A Member's Supplemental Deposit, therefore, will not be used in calculating any pro rata charge (i.e., loss assessment) due from that Member in the event of the default of another Member under Rule 4. Supplemental Deposits will also not be subject to the provisions of Section 6 of Rule 4 when a Member ceases to be a participant.
Pending any permitted use described in NSCC's Rules, the aggregate of all Supplemental Deposits on deposit at NSCC may be invested by NSCC as permitted pursuant to the investment policy adopted by NSCC and as in effect from time to time, and in the same manner the Clearing Fund is invested pursuant to such investment policy. Any interest earned on investment of a Supplemental Deposit, as a part of a Member's actual deposit, will be payable at the rate that NSCC earns on the investment of such funds, credited monthly and paid on demand.
Pending Commission approval, Members will be advised of the implementation date of this proposal through issuance of an NSCC Important Notice. Members will be provided not less than ten (10) days' notice of the first date on which Supplemental Deposits will be payable.
NSCC proposes to amend its Rules to create a new Rule 4A to reflect the changes as described above. For both the Regular Activity Supplemental Deposits and the Special Activity Supplemental Deposits, the new Rule 4A will provide: (i) A general description of the relevant Supplemental Deposit, (ii) a provision describing the calculation and operation of the funding obligation, and (iii) a description of the treatment and permitted uses of the Supplemental Deposit by NSCC. NSCC believes that this proposed rule change contributes to NSCC's goal of assuring that NSCC has adequate liquidity resources to meet its settlement obligations during both Regular Activity Periods and Options Expiration Activity Periods, notwithstanding the default of its unaffiliated Members and/or Affiliated Families that pose the largest aggregate liquidity exposure over the relevant settlement cycle. As such, NSCC believes that the proposal is consistent with the requirements of the Act, as amended, and the rules and regulations thereunder applicable to NSCC.
NSCC believes that the proposed rule change will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. By calculating an unaffiliated Member's or Affiliated Family's Supplemental Deposit funding obligation in proportion to the liquidity needs that such unaffiliated Member or Affiliated Family presents to NSCC, NSCC believes that the proposed rule change will ensure that NSCC's Members fairly and equitably contribute to NSCC's liquidity resources for settlement. Further, NSCC believes that the proposed rule change contributes to the goal of financial stability in the event of Member default, rendering not unreasonable or inappropriate any burden on competition that the changes could be regarded as imposing.
Written comments relating to the proposed rule change have not yet been solicited or received. NSCC will notify the Commission of any written comments received by NSCC.
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.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
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.
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 No. SR-NSCC-2013-02 and should be submitted on or before May 1, 2013.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that DeltaPoint Capital IV, L.P. and DeltaPoint Capital IV (New York), L.P., 45 East Avenue, 6th Floor, Rochester, NY 14604, Federal Licensees under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). DeltaPoint Capital IV, L.P. provided financing to Switchgear Acquisition, Inc., 1211 Stewart Avenue, Bethpage, NY 11714. The financing was contemplated for working capital and general corporate purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because DeltaPoint Capital IV (New York), L.P., an Associate of DeltaPoint Capital IV, L.P., owns more than ten percent of Switchgear Acquisition, Inc.
Therefore, this transaction is considered a financing of an Associate requiring an exemption. Notice is hereby given that any interested person may submit written comments on the transaction within fifteen days of the date of this publication to the Acting Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
Notice is hereby given that DeltaPoint Capital IV, L.P. and DeltaPoint Capital IV (New York), L.P., 45 East Avenue, 6th Floor, Rochester, NY 14604, Federal Licensees under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). DeltaPoint Capital IV, L.P. provided financing to BioMaxx, Inc., 1 Fishers Road, Suite 160, Pittsford, NY 14534. The financing was contemplated for working capital and general corporate purposes.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because DeltaPoint Capital IV (New York), L.P., an Associate of DeltaPoint Capital IV, L.P., owns more than ten percent of Switchgear Acquisition, Inc.
Therefore, this transaction is considered a financing of an Associate requiring an exemption. Notice is hereby given that any interested person may submit written comments on the transaction within fifteen days of the date of this publication to the Acting Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Rhode Island (FEMA-4107-DR), dated 03/22/2013.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 03/22/2013, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13528B and for economic injury is 13529B.
U.S. Small Business Administration.
Notice of open Federal Interagency Task Force Meeting.
The SBA is issuing this notice to announce the location, date, time, and agenda for its public meeting of the Interagency Task Force on Veterans Small Business Development. The meeting will be open to the public.
Friday, April 26, 2013, from 9:00 a.m. to 12:00 p.m. in the Conference Room.
SBA Washington Area District Office, 740 15th Street, NW., Suite 300, Washington, DC 20005.
Pursuant to section 10(a) (2) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), SBA announces the meeting of the Interagency Task Force on Veterans Small Business Development. The Task Force is established pursuant to Executive Order 13540 and focused on coordinating the efforts of Federal agencies to improve capital, business development opportunities and pre-established Federal contracting goals for small business concerns owned and controlled by veterans (VOB's) and service-disabled veterans (SDVOSB'S). Moreover, the Task Force shall coordinate administrative and regulatory activities and develop proposals relating to “three focus areas”: (1) Training, Counseling & Capital; (2) Federal Contracting & Verification; (3) Improved Federal Support. On November 1, 2011, the Interagency Task Force on Veterans Small Business Development submitted its first report to the President, which included 18 Recommendations. In addition, the Task Force will allow time to obtain public comment from individuals and representatives of organizations regarding the areas of focus.
The meeting is open to the public, however, advance notice of attendance is requested. Anyone wishing to attend and/or make a presentation to the Task Force must contact Cheryl Simms, by April 19, 2013, by email in order to be placed on the agenda. Comments for the Record should be applicable to the “three focus areas” of the Task Force and emailed prior to the meeting for inclusion in the public record, verbal presentations; however, will be limited to five minutes in the interest of time and to accommodate as many presenters as possible.
Written comments should be emailed to Cheryl Simms, Program Liaison, Office of Veterans Business Development, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416, at the email address for the Task Force,
Maritime Administration, Department of Transportation.
Notice.
Under the Small Shipyard Grant Program, there is currently $9,457,986.00 available for grants for capital and related improvements to qualified shipyard facilities that will be effective in fostering efficiency,
The period for submitting grant applications, as mandated by statute, commenced on March 26, 2013. All applications must be received by the Maritime Administration by 5:00 p.m. EDT on May 28, 2013. Applications not received by this deadline will not be considered. The Maritime Administration intends to award grants no later than July 24, 2013.
Grant Applications should be sent to the Associate Administrator for Business and Finance Development, Room W21-318, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
David M. Heller, Director, Office of Shipyards and Marine Engineering, Maritime Administration, Room W21-318, 1200 New Jersey Ave. SE., Washington, DC 20590;
Grants under the Maritime Administration's Small Shipyard Grant Program may not be used to construct buildings or other physical facilities or to acquire land unless such use is specifically approved by the Maritime Administration as being consistent with, and supplemental to, capital and related infrastructure improvements. Grant funds may also be used for maritime training programs to foster technical skills and operational productivity in communities, the economies of which are related to or dependent upon the maritime industry. Grants for such training programs may only be awarded to “Eligible Applicants” as described below, but training programs can be established through vendors to such applicants.
Section 1: A description of the shipyard including (a) location of the shipyard; (b) a description of the shipyard facilities; (c) years in operation; (d) ownership; (e) customer base; (f) current order book, including type of work; (g) vessels delivered (or major projects) over last 5 years; and (h) Web site address, if any.
Section 2: For each project proposed for funding, the following:
(a) A comprehensive detailed description of the project including a statement of whether the project will replace existing equipment, and, if so, the disposition of the replaced equipment.
(b) A description of the need for the project in relation to shipyard operations and business plan and an explanation of how the project will fulfill this need.
(c) A quantitative analysis demonstrating how the project will be effective in fostering efficiency, competitive operations, and quality ship construction, repair, or reconfiguration (for capital improvement projects) or how the project will be effective in fostering employee skills and enhancing productivity (for training projects). The analysis should quantify the benefits of the projects in terms of man-hours saved, dollars saved, percentages, or other meaningful metrics. The methodology of the analysis should be explained with assumptions used, identified and justified.
(d) A detailed methodology and timeline for implementing the project.
(e) A detailed itemization of the cost of the project together with supporting documentation, including current vendor quotes and estimates of installation costs.
(f) A statement explaining if any elements of the project require action under the National Environmental Policy Act (42 U.S.C. 4321,
Section 3: A table with a prioritized list of projects and total cost and Federal portion (in dollars) for each.
Section 4: A description of any existing programs or arrangements, if
Section 5: Special economic circumstances and conditions, if any, of the maritime community in which the shipyard is located (beyond that which is reflected in the unemployment rate of the county in which the shipyard is located and whether that county is in an economically distressed area, as defined by 42 U.S.C. 3161).
Section 6: Shipyard company officer's certification of each of the following requirements:
(a) That the shipyard facility for which a grant is sought is located in a single geographical location in or near a maritime community and (i) the shipyard facility has no more than 600 production employees, or (ii) the shipyard facility has more than 600 production employees, but fewer than 1200 production employees (shipyard officer must certify to either (i) or (ii));
(b) That the applicant has the authority to carry out the proposed project; and
(c) Certification in accordance with the Department of Transportation's regulation restricting lobbying, 49 CFR part 20, that the applicant has not, and will not, make any prohibited payments out of the requested grant. Certifications are not required to be notarized.
Section 7: Unique identifier of shipyard's parent company (when applicable): Data Universal Numbering System (DUNS + 4 number) (when applicable).
Section 8: 2011 or 2012 (if available) year-end, audited, reviewed, or compiled financial statements, prepared by a certified public accountant, according to U.S. generally accepted accounting principles, not on an income-tax basis. The September 30, 2012 financial statements prepared by the company if December 31, 2012, CPA-prepared statements are not available. Note: Do not provide tax returns.
Section 9: Statement regarding the relationship between applicants and any parents, subsidiaries, or affiliates, if any such entity is going to provide a portion of the match.
Section 10: Evidence documenting applicant's ability to make the proposed matching contribution (loan agreement, commitment from investors, cash on balance sheet, etc.) and in the time period outlined in 2(d) above.
Section 11: Pro-forma financial statements reflecting (a) September 30, or December 31, 2012, financial condition; (b) effect on balance sheet of grant and matching funds (i.e. a decrease in cash or increase in debt, additional equity and an increase in fixed assets); and (c) impact on company's projected financial condition (balance sheet) of completion of project, showing that company will have sufficient financial resources to remain in business.
Section 12: Statement whether during the past five years, the applicant or any predecessor or related company has been in bankruptcy or in reorganization under Chapter 11 of the Bankruptcy Code, or in any insolvency or reorganization proceedings, and whether any substantial property of the applicant or any predecessor or related company had been acquired in any such proceeding or had been subject to foreclosure or receivership during such period. If so, provide details.
Additional information may be requested as deemed necessary by the Maritime Administration in order to facilitate and complete its review of the application. If such information is not provided, the application may be deemed incomplete by the Maritime Administration and will not be processed.
By Order of the Maritime Administrator.
Union Pacific Railroad Company (UP) has filed a verified notice of exemption under 49 C.F.R. pt. 1152 subpart F—
UP has certified that: (1) No local traffic has moved over the line for at least two years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on May 10, 2013, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to UP's representative: Mack H. Shumate, Jr., 101 North Wacker Drive, #1920, Chicago, IL 60606.
If the verified notice contains false or misleading information, the exemption is void
UP has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by April 15, 2013. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), UP shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by UP's filing of a notice of consummation by April 10, 2014, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the name of one entity whose property and interests in property have been unblocked pursuant to Executive Order 12978 of October 21, 1995, “Blocking Assets and Prohibiting Transactions With Significant Narcotics Traffickers.” In addition, OFAC is publishing an amendment to the identifying information of four individuals previously designated pursuant to Executive Order 12978 to remove the name of the entity from their published identifying information.
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the one entity identified in this notice whose property and interests in property were blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on April 3, 2013.
Assistant Director, Sanctions Compliance & Evaluation, Department of the Treasury, Office of Foreign Assets Control, Washington, DC 20220, Tel: (202) 622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) the foreign persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and the Secretary of State: (a) To play a significant role in international narcotics trafficking centered in Colombia; or (b) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to the Order; and (3) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to the Order.
On April 3, 2013, the Director of OFAC removed from the SDN List the entity listed below, whose property and interests in property were blocked pursuant to the Order:
CORPORACION DEPORTIVA AMERICA (a.k.a. CLUB AMERICA DE CALI; a.k.a. CLUB DEPORTIVO AMERICA), Carrera 56 No. 2-70, Cali, Colombia; Avenida Guadalupe No. 2-70, Cali, Colombia; Calle 24N No. 5BN-22, Cali, Colombia; Calle 13 Carrera 70, Cali, Colombia; Sede Cascajal, Cali, Colombia; Sede Naranjal, Cali, Colombia; NIT # 890305773-4 (Colombia) [SDNT].
In addition, OFAC has amended the identifying information for the following individuals previously designated pursuant to Order:
1. PUENTE GONZALEZ, Carlos Alberto, c/o CORPORACION DEPORTIVA AMERICA, Cali, Colombia; DOB 28 Nov 1937; Cedula No. 2449885 (Colombia); Passport 2449885 (Colombia) (individual) [SDNT].
2. RODRIGUEZ MONDRAGON, Jaime, c/o PLASTICOS CONDOR LTDA., Cali, Colombia; c/o LABORATORIOS KRESSFOR DE COLOMBIA S.A., Bogota, Colombia; c/o FLEXOEMPAQUES LTDA., Cali, Colombia; c/o GRACADAL S.A., Cali, Colombia; c/o LABORATORIOS BLAIMAR DE COLOMBIA S.A., Bogota, Colombia; c/o MARIELA DE RODRIGUEZ Y CIA. S. EN C., Cali, Colombia; c/o PENTA PHARMA DE COLOMBIA S.A., Bogota, Colombia; c/o DISTRIBUIDORA MIGIL LTDA., Cali, Colombia; c/o RIONAP COMERCIO Y REPRESENTACIONES S.A., Quito, Ecuador; c/o DISTRIBUIDORA DE DROGAS CONDOR LTDA., Bogota, Colombia; c/o DISTRIBUIDORA DE DROGAS LA REBAJA S.A., Bogota, Colombia; c/o DEPOSITO POPULAR DE DROGAS S.A., Cali, Colombia; c/o FARMATODO S.A., Bogota, Colombia; c/o BLANCO PHARMA S.A., Bogota, Colombia; c/o CORPORACION DEPORTIVA AMERICA, Cali, Colombia; c/o D'CACHE S.A., Cali, Colombia; c/o INVERSIONES MONDRAGON Y CIA. S.C.S., Cali, Colombia; c/o CREDIREBAJA S.A., Cali, Colombia; c/o ASESORIAS DE INGENIERIA EMPRESA UNIPERSONAL, Cali, Colombia; c/o BONOMERCAD S.A., Bogota, Colombia; c/o DECAFARMA S.A., Bogota, Colombia; c/o DROCARD S.A., Bogota, Colombia; c/o INVERSIONES Y CONSTRUCCIONES COSMOVALLE LTDA., Cali, Colombia; c/o JAROMO INVERSIONES S.L., Madrid, Spain; c/o PROSPECTIVA EMPRESA UNIPERSONAL, Cali, Colombia; c/o REPRESENTACIONES Y DISTRIBUCIONES HUERTAS Y ASOCIADOS S.A., Bogota, Colombia; c/o SERVICIOS DE LA SABANA E.U., Bogota, Colombia; c/o FUNDASER, Cali, Colombia; c/o LATINFAMRACOS S.A., Quito, Ecuador; c/o ALERO S.A., Cali, Colombia; c/o MEGAPLAST S.A., Palmira, Valle, Colombia; DOB 30 Mar 1960; Cedula No. 16637592 (Colombia); Passport AE426347 (Colombia); alt. Passport 16637592 (Colombia); N.I.E. x2641093-A (Spain) (individual) [SDNT].
3. RODRIGUEZ MONDRAGON, Maria Alexandra (a.k.a. RODRIGUEZ MONDRAGON, Alexandra), c/o BLANCO PHARMA S.A., Bogota, Colombia; c/o DEPOSITO POPULAR DE DROGAS S.A., Cali, Colombia; c/o DISTRIBUIDORA MIGIL LTDA., Cali, Colombia; c/o MARIELA DE RODRIGUEZ Y CIA. S. EN C., Cali, Colombia; c/o PENTA PHARMA DE COLOMBIA S.A., Bogota, Colombia; c/o TOBOGON, Cali, Colombia; c/o DISTRIBUIDORA DE DROGAS CONDOR LTDA., Bogota, Colombia; c/o DISTRIBUIDORA DE DROGAS LA REBAJA S.A., Bogota, Colombia; c/o LABORATORIOS BLAIMAR DE COLOMBIA S.A., Bogota, Colombia; c/o GRACADAL S.A., Cali, Colombia; c/o INTERAMERICA DE CONSTRUCCIONES S.A., Cali, Colombia; c/o CORPORACION DEPORTIVA AMERICA, Cali, Colombia; c/o D'CACHE S.A., Cali, Colombia; c/o INVERSIONES MONDRAGON Y CIA. S.C.S., Cali, Colombia; c/o MARIELA MONDRAGON DE R. Y CIA. S. EN C., Cali, Colombia; c/o CREDIREBAJA S.A., Cali, Colombia; c/o CUSTOMER NETWORKS S.L., Madrid, Spain; c/o DROCARD S.A., Bogota, Colombia; c/o INVERSIONES INMOBILIARIAS VALERIA S.L., Madrid, Spain; c/o INVERSIONES Y CONSTRUCCIONES COSMOVALLE LTDA., Cali, Colombia; c/o SISTEMAS Y SERVICIOS TECNICOS EMPRESA UNIPERSONAL, Cali, Colombia; c/o FUNDASER, Cali, Colombia; c/o ALERO S.A., Cali, Colombia; DOB 30 May 1969; alt. DOB 05 May 1969; Cedula No. 66810048 (Colombia); Passport AD359106 (Colombia); alt. Passport 66810048 (Colombia); N.I.E. X2561613-B (Spain) (individual) [SDNT].
4. RODRIGUEZ OREJUELA DE GIL, Amparo, c/o DISTRIBUIDORA MIGIL LTDA., Cali, Colombia; c/o LABORATORIOS BLAIMAR DE COLOMBIA S.A., Bogota, Colombia; c/o CREACIONES DEPORTIVAS WILLINGTON LTDA., Cali, Colombia; c/o DEPOSITO POPULAR DE DROGAS S.A., Cali, Colombia; c/o LABORATORIOS KRESSFOR DE COLOMBIA S.A., Bogota, Colombia; c/o BLANCO PHARMA S.A., Bogota, Colombia; c/o RADIO UNIDAS FM S.A., Cali, Colombia; c/o DISTRIBUIDORA DE DROGAS CONDOR LTDA., Bogota, Colombia; c/o CORPORACION DEPORTIVA AMERICA, Cali, Colombia; c/o D'CACHE S.A., Cali, Colombia; c/o DROBLAM S.A., Cali, Colombia; c/o AQUILEA S.A., Cali, Colombia; DOB 13 Mar 1949; Cedula No. 31218703 (Colombia); Passport AC342062 (Colombia) (individual) [SDNT].
The listings for these individuals now appear as:
1. PUENTE GONZALEZ, Carlos Alberto; DOB 28 Nov 1937; Cedula No. 2449885 (Colombia); Passport 2449885 (Colombia) (individual) [SDNT].
2. RODRIGUEZ MONDRAGON, Jaime; DOB 30 Mar 1960; Cedula No. 16637592 (Colombia); Passport AE426347 (Colombia); alt. Passport 16637592 (Colombia); N.I.E. x2641093-A (Spain) (individual) [SDNT] (Linked To: PLASTICOS CONDOR LTDA.; Linked To: LABORATORIOS KRESSFOR DE COLOMBIA S.A.; Linked To: FLEXOEMPAQUES LTDA.; Linked To: LABORATORIOS BLAIMAR DE COLOMBIA S.A.; Linked To: INVERSIONES MONDRAGON Y CIA. S.C.S.; Linked To: PENTA PHARMA DE COLOMBIA S.A.; Linked To: RIONAP COMERCIO Y REPRESENTACIONES S.A.; Linked To: DISTRIBUIDORA DE DROGAS CONDOR LTDA.; Linked To: DISTRIBUIDORA DE DROGAS LA REBAJA S.A.; Linked To: DEPOSITO POPULAR DE DROGAS S.A.; Linked To: LABORATORIOS BLANCO PHARMA S.A.; Linked To: D'CACHE S.A.; Linked To: CREDIREBAJA S.A; Linked To: ASESORIAS DE INGENIERIA EMPRESA UNIPERSONAL; Linked To: BONOMERCAD S.A.; Linked To: DECAFARMA S.A.; Linked To: DROCARD S.A.; Linked To: JAROMO INVERSIONES S.L.; Linked To: PROSPECTIVA EMPRESA UNIPERSONAL; Linked To: REPRESENTACIONES Y DISTRIBUCIONES HUERTAS Y ASOCIADOS S.A.; Linked To: SERVICIOS DE LA SABANA E.U.; Linked To: FUNDASER; Linked To: ALERO S.A.; Linked To: MEGAPLAST S.A.; Linked To: DISMERCOOP; Linked To: DISTRIBUIDORA MIGIL LTDA.; Linked To: LATINOAMERICANA DE FARMACOS S.A.).
3. RODRIGUEZ MONDRAGON, Maria Alexandra (a.k.a. RODRIGUEZ MONDRAGON, Alexandra); DOB 30 May 1969; alt. DOB 05 May 1969; Cedula No. 66810048 (Colombia); Passport AD359106 (Colombia); alt. Passport 66810048 (Colombia); N.I.E. X2561613-B (Spain) (individual) [SDNT] (Linked To: LABORATORIOS BLANCO PHARMA S.A.; Linked To: DEPOSITO POPULAR DE DROGAS S.A.; Linked To: DISTRIBUIDORA MIGIL LTDA.; Linked To: INVERSIONES MONDRAGON Y CIA. S.C.S.; Linked To: PENTA PHARMA DE COLOMBIA S.A.; Linked To: TOBOGON; Linked To: DISTRIBUIDORA DE DROGAS CONDOR LTDA.; Linked To: DISTRIBUIDORA DE DROGAS LA REBAJA S.A.; Linked To: LABORATORIOS BLAIMAR DE COLOMBIA S.A.; Linked To: DISMERCOOP; Linked To: INTERAMERICANA DE
4. RODRIGUEZ OREJUELA DE GIL, Amparo; DOB 13 Mar 1949; Cedula No. 31218703 (Colombia); Passport AC342062 (Colombia) (individual) [SDNT] (Linked To: LABORATORIOS BLAIMAR DE COLOMBIA S.A.; Linked To: DISTRIBUIDORA MIGIL LTDA.; Linked To: DEPOSITO POPULAR DE DROGAS S.A.; Linked To: LABORATORIOS KRESSFOR DE COLOMBIA S.A.; Linked To: LABORATORIOS BLANCO PHARMA S.A.; Linked To: RADIO UNIDAS FM S.A.; Linked To: DISTRIBUIDORA DE DROGAS CONDOR LTDA.; Linked To: D'CACHE S.A.; Linked To: LABORATORIOS Y COMERCIALIZADORA DE MEDICAMENTOS DROBLAM S.A.; Linked To: AQUILEA S.A.).
Office of Foreign Assets Control, Treasury.
Notice, publication of general licenses.
The U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing General License No. 18 and General License No. 19 issued under the Burma sanctions program on November 16, 2012, and February 22, 2013, respectively. General License No. 18 authorizes the importation into the United States of any article that is a product of Burma, subject to certain limitations. General License No. 19 authorizes transactions involving Asia Green Development Bank, Ayeyarwady Bank, Myanma Economic Bank, and Myanma Investment and Commercial Bank, subject to certain limitations.
Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490, Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Policy, tel.: 202-622-2746, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202-622-2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
This document and additional information concerning OFAC are available from OFAC's Web site (
The Department of State, pursuant to a delegation of authority from the President, has waived the ban on the importation of products of Burma set forth in section 3(a) of the Burmese Freedom and Democracy Act of 2003 (“BFDA”) and implemented by Executive Order 13310 of July 28, 2003.
Consistent with this waiver, on November 16, 2012, OFAC issued General License No. 18 (“GL 18”) authorizing the importation into the United States of any article that is a product of Burma, subject to certain limitations. GL 18 does not authorize the importation into the United States of jadeite or rubies mined or extracted from Burma, or of articles of jewelry containing jadeite or rubies mined or extracted from Burma, or any other activity prohibited by Section 3A of the BFDA, an amendment added by the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008. GL 18 also does not authorize transactions with any person whose property and interests in property are blocked under the Burma sanctions program.
On February 22, 2013, OFAC issued General License No. 19 (“GL 19”) authorizing U.S. persons to conduct most transactions, including opening and maintaining accounts and conducting a range of other financial services, with four blocked Burmese financial institutions: Asia Green Development Bank, Ayeyarwady Bank, Myanma Economic Bank, and Myanma Investment and Commercial Bank. Among other limitations, GL 19 does not unblock any property or interests in property or authorize transactions involving any other person blocked under the Burma sanctions program.
With this notice, OFAC is publishing General License No. 18 and General License No. 19 in the
(a) The importation into the United States of any article that is a product of Burma is authorized, subject to the limitations set forth in paragraphs (c) and (e) of this general license.
(b) For the purposes of this general license, the term
(c) This general license does not authorize the importation into the United States of jadeite or rubies mined or extracted from Burma, or of articles of jewelry containing jadeite or rubies mined or extracted from Burma or any other activity prohibited by Section 3A of the Burmese Freedom and Democracy Act of 2003 (Pub. L. 108-61), as amended by the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Pub. L. 110-286).
(d) For the purposes of this general license, the term
(e) This general license does not authorize transactions with, directly or indirectly, any person whose property and interests in property are blocked pursuant to 31 CFR 537.201(a), Executive Order 13448 of October 18, 2007, Executive Order 13464 of April 30, 2008, or Executive Order 13619 of July 11, 2012.
The reimportation into the United States of jadeite, rubies, and articles of jewelry containing jadeite or rubies that were previously exported from the United States, including those that accompanied an individual outside the United States for personal use, if they are reimported into the United States by the same person who exported them, without having been advanced in value or improved in condition by any process or other means while outside
The importation into the United States of jadeite or rubies mined or extracted from a country other than Burma, or of articles of jewelry containing jadeite or rubies mined or extracted from a country other than Burma, is prohibited unless such importation satisfies the conditions set forth in 19 CFR § 12.151.
Issued: November 16, 2012.
(a) Effective February 22, 2013, all transactions involving Asia Green Development Bank, Ayeyarwady Bank, Myanma Economic Bank, and Myanma Investment and Commercial Bank are authorized, subject to the limitations set forth below.
(b) This general license does not authorize transactions involving any person other than Asia Green Development Bank, Ayeyarwady Bank, Myanma Economic Bank, and Myanma Investment and Commercial Bank whose property and interests in property are blocked pursuant to 31 CFR 537.201(a), Executive Order 13448 of October 18, 2007, Executive Order 13464 of April 30, 2008, or Executive Order 13619 of July 11, 2012.
(c) This general license does not authorize, in connection with the provision of security services, the exportation or reexportation of financial services, directly or indirectly, to the Burmese Ministry of Defense, including the Office of Procurement; any state or non-state armed group; or any entity in which any of the foregoing own a 50 percent or greater interest.
(d) This general license does not authorize any new investment, as defined in 31 CFR 537.311, including in or with Asia Green Development Bank, Ayeyarwady Bank, Myanma Economic Bank, or Myanma Investment and Commercial Bank.
(e) This general license does not authorize the importation into the United States of jadeite or rubies mined or extracted from Burma, or of articles of jewelry containing jadeite or rubies mined or extracted from Burma or any other activity prohibited by Section 3A of the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Public Law 110-286).
(f) All property and interests in property blocked pursuant to 31 CFR 537.201(a), Executive Order 13448 of October 18, 2007, Executive Order 13464 of April 30, 2008, or Executive Order 13619 of July 11, 2012, remain blocked.
As a result of this general license, the special measures against Burma imposed under Section 311 of the USA PATRIOT Act (Public Law 107-56) no longer apply to the operation of correspondent accounts for Asia Green Development Bank, Ayeyarwady Bank, Myanma Economic Bank, and Myanma Investment and Commercial Bank, or to transactions that are conducted through such accounts, provided the transactions are authorized pursuant to the Burmese Sanctions Regulations. See 31 CFR § 1010.651(b)(3). This general license does not affect any obligation of U.S. financial institutions processing such transactions to conduct enhanced due diligence under Section 312 of the USA PATRIOT Act.
Issued: February 22, 2013.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments computation of foreign taxes deemed paid under section 902 pursuant to a pooling mechanism for undistributed earnings and foreign axes.
Written comments should be received on or before June 10, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The burden for the collection of information is reflected in the burden for Form 1118, Foreign Tax Credit—Corporations.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning income attributable to domestic production activities.
Written comments should be received on or before June 10, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202)622-6665, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning relief from joint and several liability.
Written comments should be received on or before June 10, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Allan Hopkins, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-6665, or through the Internet at
The estimate of the reporting burden in § 1.6015-5 for filing a claim for relief from joint and several liability is reflected in the burden of Form 8857.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Request for Comments: Comments submitted in response to this notice will be summarized and/or 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 agency, including whether the information shall have 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 of information 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.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments Notice 2009-90, Production Tax Credit for Refined Coal.
Written comments should be received on or before June 10, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of notice should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8275, Disclosure Statement, and Form 8275-R, Regulation Disclosure Statement.
Written comments should be received on or before June 10, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-6665, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning notional principal contracts; contingent nonperiodic payments.
Written comments should be received on or before June 10, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, (202) 622-6665, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-21), this notice announces that the Veterans Health Administration (VHA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before May 10, 2013.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632-7492, fax (202) 632-7583 or email
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. The
By direction of the Secretary.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.